Ms Kumarini Fonseka

: Biomedical scientist

: BS67247

Interim Order: Imposed on 15 Jan 2016

: Final Hearing

Date and Time of hearing:10:00 20/03/2017 End: 17:00 22/03/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

During the course of your employment as a Biomedical Scientist at Portsmouth Hospital NHS Trust from around May 2015 to around October 2015, you:

1. On various dates in or around May 2015 until in or around October 2015, did not appropriately manage the urgency of phone calls into Transfusion.

2. On various dates in or around May 2015 until in or around October 2015, did not consistently demonstrate that you understand the actions necessary to supply blood products in a critical situation.

3. On various dates in or around May 2015 until in or around October 2015, exceeded the confines of your signed off competencies in:
a) Transfusion
b) Haematology.

4. On various dates in or around May 2015 until in or around October 2015, did not consistently adequately perform basic laboratory techniques in pipetting.

5. On various dates in or around May 2015 until in or around October 2015, you did not consistently demonstrate your ability to work unsupervised.

6. The matters set out in paragraphs 1-5 constitute lack of competence.

7. By reason of your lack of competence your fitness to practise is impaired.

Finding


Preliminary matters:

Amendment of Allegation

1.Ms Mitchell-Dunn, on behalf of the HCPC, applied to amend the Allegation.  She submitted that the amendments were consistent with the evidence before the Investigating Committee and they served to clarify the allegation.

2.The Registrant did not object to the amendment.

3.The Panel accepted the advice of the Legal Assessor who advised that it was open to the Panel to amend the allegation, provided no injustice would be caused by the amendment. The Panel considered that the amendments sought did not change the substance of the allegation. The amendments served to clarify the Allegation and would not cause injustice. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.


Background:

4.The Registrant was employed as a Band 5 Biomedical Scientist (BMS) at Portsmouth Hospitals NHS Trust (the “Trust”) in May 2015. She was employed within Haematology. When the Registrant was employed at the Trust she was required to undertake training in line with a competency folder. She was responsible for being signed off in a competency before being able to practise without supervision in that area.

5.Concerns were raised about the Registrant’s practice by Witness 2, Senior BMS, and Witness 3, Senior BMS, in August and September 2015. These concerns were reviewed with the Registrant in probationary review sessions with Witness 1 who was the Transfusion Operational Manager. Concerns about the Registrant’s management of telephone calls were reviewed with Witness 1 and she provided the Registrant with additional training.

6. In October 2015, a number of senior managers reviewed the Registrant’s practice and they considered that the Registrant had not demonstrated the level of competence required to work unsupervised. The Registrant was advised that her employment was to be terminated. The Registrant resigned from her position.


Decision on Facts:

7.The Panel considered all the evidence in this case together with the submissions made by Ms Mitchell-Dunn on behalf of the HCPC and by Mrs Geetha Fonseka on behalf of the Registrant.

8.The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant does not need to disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

9.The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

•Witness 1, Transfusion Operational Manager at the Trust during the relevant period. The Panel found Witness 1’s evidence to be credible. She did become flustered on occasions but her evidence remained credible and authoritative.

•Witness 2, Senior Biomedical Scientist (BMS) in Blood Transfusion at the Trust during the relevant period. The Panel found Witness 2’s evidence to be credible and consistent. She answered questions readily and clearly.

•Witness 3, Senior Biomedical Scientist (BMS) in Blood Transfusion at the Trust during the relevant period. The Panel found Witness 3’s evidence to be credible and consistent. She answered questions readily and clearly.

•Witness 4, Pathology Quality Risk and Governance Manager. He carried out the review of the Registrant’s training records. The Panel found his evidence to be lacking in detail and substance. Witness 4 was poorly prepared and he struggled to provide evidential detail as he had a poor recollection of events. There were flaws in his review of the training records which he acknowledged, e.g. – no formal report of his conclusions was made and neither did he speak to the Registrant as part of his investigation.

10. The Panel also received a bundle of documentary evidence from the HCPC.

11. The Panel heard evidence from the Registrant. The Panel found her eager to assist but her evidence demonstrated, at times, limited understanding of the consequences of her actions and how to learn from them.

12. The Panel also received a bundle of evidence from the Registrant’s current employer.

13. The Registrant admitted all of the factual particulars. However, the Panel was aware that it should first be satisfied that there is a case to answer on each of the factual particulars before accepting the matter proved by the Registrant’s admissions. The Panel considered each factual particular of the allegation in turn. The Panel was satisfied that there was a case to answer in relation to particulars 1, 2, 3 and 4. Accordingly the Panel finds these particulars proved by way of the Registrant’s admissions and further supported by the documentary and live evidence provided by Witness 1, Witness 2 and Witness 3.


Decision on Grounds:

Submissions

14. Having made its findings on fact, the Panel went on to consider whether the facts found proved amounted to a lack of competence on the part of the Registrant. It took account of the submissions of Ms Mitchell-Dunn on behalf of the HCPC, and Mrs Fonseka on behalf of the Registrant.

15.Ms Mitchell-Dunn submitted that the Registrant had breached the following paragraphs of the HCPC’s Standards of proficiency for Biomedical Scientists: 1, 2.1, 2.2, 3.1, 4.1, 4.3, 4.4, 4.5, 4.6, 8.7, 9.1,12.2, 13.2, 14.2, 14.11, 15.1.

16. Mrs Fonseka told the Panel that the Registrant accepted that the facts found proved amounted to a lack of competence on her part.

17. The Panel accepted the advice of the Legal Assessor who referred the Panel to the case of Andrew Francis Holton v General Medical Council [2006] EWHC 2960.

18. The Panel exercised its own judgement in determining whether the particulars found proved amounted to one of the statutory grounds. The Panel was mindful that the standard to be applied, as set out in the case of Holton was that applicable to the post to which the Registrant was employed, i.e. a band 5 Biomedical Scientist with a similar level of experience and within similar disciplines.

19. The Panel considered each of the matters proved against the Registrant and whether they amounted to a lack of competence on her part. 

20.The Panel considered whether the evidence put before it represented a fair sample of the Registrant’s work, sufficient for it to determine whether her failures constitute a lack of competence. Having regard to the nature and scope of her failures as found proved, and the period over which they occurred, the Panel was satisfied that it had been presented with a fair sample of the Registrant’s work.

21.The Panel also considered whether the Registrant had been:

a)alerted to concerns regarding her performance;
b)provided with opportunities to improve her performance; and
c)further assessed in respect of any alleged on-going lack of competence.

22.The Panel was satisfied that the Registrant was provided with an opportunity to address the deficiencies identified in her practice. Her performance had been assessed further but she had failed to address these deficiencies.

23.The facts found proved related to a period between May 2015 and October 2015 during which the Registrant failed to demonstrate the standards of knowledge, skill and judgment required to practise as a Band 5 Biomedical Scientist. They included mistakes made whilst being supervised and not knowing the boundaries of her abilities and competency.

24.The Panel determined that during this period the Registrant was afforded opportunities, by way of the additional training and support given by the other staff, to demonstrate her competency as a Band 5 Biomedical Scientist.

25.The Panel considered that, on the facts found proved, the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:

6.You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.

26.The Panel also determined that the Registrant had breached the following paragraphs of the HCPC’s standards of proficiency for Biomedical Scientists:
Registrant biomedical scientists must:

1 be able to practise safely and effectively within their scope of practice

2.1 understand the need to act in the best interests of service users at all times

2.2  understand what is required of them by the Health and Care Professions Council

4.1  be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

4.4  recognise that they are personally responsible for and must be able to justify their decisions

4.5  be able to make and receive appropriate referrals

4.6  understand the importance of participation in training, supervision and mentoring

9.1  be able to work, where appropriate, in partnership with service users, other professionals, support staff and others

14.11be able to work with accuracy and precision

15.1 understand the need to maintain the safety of both service users and those involved in their care

27. The Panel determined that the facts found proved constitute serious departures from the standards expected of a Biomedical Scientist and demonstrate a lack of competence on the part of the Registrant.

28. Having considered each particular in turn, the Panel determined that particulars 1, 2, 3 and 4 each amounted to the statutory ground of lack of competence.


Decision on Impairment: 

29. The Panel then went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of her lack of competence.

30. The Legal Assessor drew the Panel’s attention to the test set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired

31. The Panel determined that the facts proved demonstrate that the Registrant’s failures had the potential to place service users at risk of harm as a consequence of her lack of competence.

32. The Panel considered whether the Registrant’s lack of competence was easily remediable, whether it had been remedied, and the likelihood of any repetition. The Panel also had regard to the issue of insight. The Panel noted the Registrant’s admission as to her lack of competence and her acknowledgment that she need to learn from her errors and be more reflective in her practice. To that extent the Panel considered there was evidence of limited insight. However the evidence before the Panel suggested that the Registrant appeared to have difficulty in disciplining herself to apply such insight in workplace situations when, for example, she had a tendency to act impulsively.

33. The Panel determined that the Registrant’s lack of competence was remediable but that it had not been remedied yet.

34. The Panel particularly took into consideration the additional documents provided by the Registrant’s current employer. It gave an up-to-date assessment of the Registrant’s performance as of March 2017. It is clear that there remain concerns about the Registrant’s lack of competence in relation to her ability to recognise and manage phone calls into the blood transfusion unit, and also that she continues to work outside the confines her agreed competencies. The documentation was accompanied by a letter from the Haematology Manager of the Coventry and Warwickshire Pathology Service (CWPS) where the Registrant works currently. The Panel noted the following comments made in that letter:
“… had made some promising progress after a little bit of a shaky start … Kumarini could work autonomously in areas where she had been signed off as being competent … We agreed that her next move would be into blood transfusion … We stressed to Kumarini the importance of attention to detail, following policy and referring to her colleagues when approporiate … Our next supervisory meeting was on Wednesday 1st March 2017 and this was quite a difficult session because although Kumarini had only been in blood transfusion for a short time there had been several incidences [sic] that caused concern”

35. The above letter also gave details of several incidents that occurred during the period February 2017 and March 2017 and it concluded with the following paragraph:
“Kumanrini has some definite positive points; she is hard working and was mentioned in a team huddle at Burton for clearing the outstanding worklists in automated haematology. Her real weaknesses are knowing the limit of practise and impulsiveness.”

36. The Panel noted the minutes of a supervisory meeting on 1 February 2017 which indicated that the Registrant had performed well during her posting in January 2017 to the Haematology section and that there had been no issues with her pipetting skills.

37. However, the minutes of the supervisory meeting on 1 March 2017 indicated that there had been further issues with the Registrant’s performance of her duties. Those minutes noted that “In the last review meeting we clearly stressed the importance of following Burton’s policy for sample acceptance, but Kumarini would not listen and failed to follow advice from her colleagues.”

38. Furthermore, the Panel noted that the documentation also indicated that there was a further incident on 9 March 2017 when the Registrant again overstepped the limits of her practice and did not ask for advice from a senior BMS.

39. In the light of the above, the Panel determined that there was a high risk of repetition and that the Registrant remains a risk to service users. Therefore, for that reason and having regard to the need to protect the public and uphold proper professional standards and public confidence in the profession, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of her lack of competence.


Decision on Sanction:

40. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction should be imposed. It has heard the submissions of Ms Mitchell-Dunn on behalf of the Council and Mrs Fonseka on behalf of the Registrant.

41. Ms Mitchell-Dunn reminded the Panel of the approach that it should take and that it should have regard to the Indicative Sanctions Policy. She pointed out that the documentation from the Registrant’s employer indicated that there had  been further incidents despite the imposition of an interim Conditions of Practice Order. Ms Mitchell-Dunn suggested that a Caution Order would not be appropriate in circumstances where the Panel had found only limited insight and a high risk of repetition.

42. Mrs Fonseka reminded the Panel that the Registrant had accepted that her fitness to practise is currently impaired. She pointed out that most of the Registrant’s failings were in relation to her communication with others. She told the Panel that these were because the Registrant was impulsive. Mrs Fonseka informed the Panel that the Registrant was suffering from a medical condition that could explain the Registrant’s behaviour. The Panel was provided with a letter to that effect from the Registrant’s GP.

43. Mrs Fonseka told the Panel that the Registrant was currently under an Interim Conditions of Practice Order and accepted there has been repetition of the Registrant’s lack of competence since the imposition of that order. Mrs Fonseka submitted that the current conditions imposed upon the Registrant’s practice was a good starting point for the Panel when considering whether conditions of practice remained appropriate in this case.

44. Mrs Fonseka submitted that the Registrant had some insight into the issues relating to her practice. She told the Panel that the Registrant recognised that she was impulsive. She was remorseful and regretted the incidents.

45. Mrs Fonseka submitted that the sanction of conditions of practice was still realistic and appropriate. The Panel has found that the Registrant was eager to learn but that it was the application of the learning that was the issue. Mrs Fonseka reminded the Panel that the evidence indicated that the Registrant was capable of improving and remedying the shortcomings in her practice. Her over-eagerness to learn, however, did expose her to making errors.

46. The Panel accepted the advice of the Legal Assessor. He advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.

47. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. He reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. The purpose of a sanction is to protect members of the public and the wider public interest. The Legal Assessor advised that the Panel should consider the least restrictive sanction first and move up the scale of severity only if the sanction being considered is inappropriate. He also reminded the Panel it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest. 

48. The Panel has had regard to all the evidence presented, and also to the Council’s Indicative Sanctions Policy.

49. The Panel considered the aggravating factors in this case to be:

a) The Registrant has limited insight into her lack of competence

b) Her attempts to remediate her failings in the past had had only limited success.

c) There has been a repeated pattern of behaviour

50. The Panel next considered the mitigating factors in this case. It considered them to be:

a) The Registrant has fully engaged with this process.

b) No actual harm was caused to patients.

c) The Registrant has some insight and is clearly remorseful.

d) The Registrant has indicated a clear intention to learn from her errors.

e) There is some evidence that the Registrant has been affected, on occasions, by stress.

51. In considering the matter of sanction, the Panel started with the least restrictive option, moving upwards.

52. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s lack of competence, this would be wholly inappropriate.

53. The Panel then considered whether to make a Caution Order. The Panel was mindful of the risk of repetition. It bore in mind that a Caution Order would not restrict the Registrant’s right to practise. In these circumstances, the Panel concluded that a Caution Order would not be sufficient to protect the public from the risk posed by the Registrant or, in any event, to satisfy the wider public interest.

54. The Panel next considered the imposition of a Conditions of Practice Order. The Registrant has expressed a desire to remain in practice as a Biomedical Scientist and has demonstrated her commitment to the profession. She has also said that she is willing to abide by any conditions the Panel may impose which would allow her to remain in practice.

55. The Panel has found that the Registrant lacked full insight into the implications that her lack of competence could have on patient safety. The Panel balanced these matters and what it has found to be a lack of competence over a period of three months in 2015, despite receiving additional support and training, with the Registrant’s clear desire to improve her practice, her willingness to abide by conditions, the fact that she was a newly qualified Biomedical Scientist at the time of the matters found proved, and was not able to obtain employment as a BMS until late last year, some twelve months after she left the Trust.

56. The Panel noted that the Registrant has been subject to conditions. However, the conditions were formulated without the benefit of a full hearing. The issue here is not so much the technical skills of the Registrant but more about her ability to put her learning into practice. The Panel was also pleased to note that she currently has a supportive employer.

57. Furthermore, the Panel is of the view that the Registrant is capable of remedying her lack of competence.

58. In the circumstances, the Panel considers that a Conditions of Practice Order would satisfy the wider public interest, and that it is both fair and reasonable to afford the Registrant the opportunity to achieve the ability to practise fully as a Biomedical Scientist.

59. Taking into account all of the above, the Panel concluded that conditions could be formulated which would adequately address the risk posed by the Registrant, and in doing so, protect patients and the public.

60. In all of the circumstances, the Panel determined that a Conditions of Practice Order was both the appropriate and proportionate sanction. It decided to make a Conditions of Practice Order for a period of twelve months.

61. The Panel went on to consider suspension of the Registrant’s practice and decided that this was not an appropriate sanction to be imposed in light of the fact that conditions of practice could be imposed that would allow the Registrant to demonstrate safe practice, protect the public and was in the wider public interest. A Suspension Order would not allow the Registrant to address those shortcomings in the workplace and would have a disproportionate and punitive effect.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Ms Kumarini Fonseka, must comply with the following conditions of practice:

1. When employed as a Biomedical Scientist you must identify and place yourself under the supervision of a laboratory based supervisor who is registered as a Biomedical Scientist with the HCPC, and advise the HCPC of the name and contact details of that supervisor within 14 days of the operative date of this Order.

2. You must meet each week with your supervisor to provide him/her with a reflective account of your previous week’s work:

a. identifying what went well;

b. what did not go well;

c. the learning you have gained; and

d. how you will put that learning into practice.

3. The notes of the supervision meetings referred to in Condition 2 should form part of a report that you should obtain every three months from your supervisor as to the quality of your work and which you should then submit to the HCPC. The quarterly reports from your supervisor will be put before a future Panel reviewing this order.

4. You must not work unsupervised in Blood Transfusion until your competencies as a Band 5 BMS in that discipline have been satisfied.

5. You must identify a suitable individual, within your employing organisation but outside of the Pathology Department, who can act as a mentor to support and advise you on acquiring and applying the insight necessary to develop professionally. This might be someone recommended to you by the Human Resources Department or Training and Development Department.

6. You must advise the HCPC of the name and contact details of your mentor and obtain a report from him/her every three months as to your progress in personal and professional development which should then be sent on to the HCPC for consideration by a future reviewing Panel.

7. You must seek medical help at times of high anxiety that may affect your ability to work, and provide a report to the HCPC every three months from that medical practitioner and/or a registered healthcare practitioner, who can attest to your ability to manage stress at work.

8. You must promptly inform the HCPC of any change in your employment as a Biomedical Scientist.

9. You must promptly inform the HCPC of any disciplinary proceedings taken against you in your role as a Biomedical Scientist by your employer.

10. You must inform the following parties that your registration is subject to these conditions:
a) any organisation or person employing or contracting with you to undertake work as a Biomedical Scientist;
b) any agency you are registered with or apply to be registered with as a Biomedical Scientist (at the time of application);
c) any prospective employer seeking to employ you as a Biomedical Scientist  (at the time of application).

11. You will be responsible for meeting any and all costs associated with complying with these conditions.
The order imposed today will apply from 19 April 2017 (the operative date).  This order will be reviewed again before its expiry on 18 April 2018.

 

Notes

An Interim Conditions Of Practice Order was imposed for a period of 18 months to cover the appeal period. 

Hearing history

History of Hearings for Ms Kumarini Fonseka

Date Panel Hearing type Outcomes / Status
20/03/2017 Conduct and Competence Committee Final Hearing Conditions of Practice
14/03/2017 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice