Ian A Rees

: Biomedical scientist

: BS57222

: Final Hearing

Date and Time of hearing:10:00 10/04/2017 End: 17:00 11/04/2017

: 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 Birmingham
Heartlands Hospital from April 2005 to 22 March 2016:
1. On 3 June 2015;
a. you inappropriately activated the emergency stop button on an Abbott Hot Cell Analyser to top up reagents;
b. You did not follow the cuvette wash procedure once the emergency stop had been activated;
2. The matters set out in paragraph 1 constitute misconduct and/or lack of competence.
3. By reason of your misconduct and/or lack of competence your fitness to practise is impaired

Finding

Background

1. The Registrant is a Biomedical Scientist (BMS) who was employed in a Band 6 role at the Birmingham Heartlands Hospital (the “Hospital”). The Registrant was fully trained in the operation of the Abbott Hot Cell Analyser (the “Analyser”), a machine which carried out the chemical processing of blood samples. The Registrant was aware of and understood the Hospital’s relevant Standard Operating Procedures (SOP) BS.S001 and BS.S004.

2. On 3 June 2015 the Registrant was working alongside SA, a BMS, and AA, a trainee BMS. It was a busy shift and there was pressure to process the samples. The reagents for the Analyser were low and needed to be topped up. The Registrant pressed the STOP button on the Analyser. The correct procedure according to the SOP would have been to press the PAUSE button. The Registrant failed to run the cuvette wash procedure. This is a procedure which must be undertaken when the STOP button is pressed to prevent contamination of samples.

3. MC, the Trust’s Head BMS, was appointed to carry out an investigation into the events on 3 June 2015. He prepared a Management Statement of Case.

Decision on Facts


4. The Panel heard evidence from MC and AA. The Panel found that both witnesses were honest, consistent and credible.

5. The Panel heard evidence from the Registrant. The Panel found that the Registrant was generally a credible witness, but on one matter the Panel preferred the evidence of AA and did not accept the Registrant’s account.

6. The Panel accepted the advice of the Legal Assessor.

7. The Panel found that particular 1a is proved by the admission of the Registrant, the Registrant’s evidence, the evidence of AA and the documentary evidence. The Registrant made a decision to press the STOP button because he believed that it would save time.

8. The Panel found that particular 1b is proved by the admission of the Registrant, the evidence of AA and the documentary evidence.

9. The Registrant’s evidence was that he did not ensure that the cuvette wash process was carried out because he completely forgot about this requirement when he was required to carry out another urgent task. He then did not remember that the cuvette wash had not been carried out until the next morning when a colleague asked him about pressing the STOP button.

10. Ms David invited the Panel to reject this explanation. She submitted that it was more likely that the Registrant decided not to complete the cuvette procedure in order to save time.

11. The Panel noted that AA has given a consistent account that he had a conversation with the Registrant in which the Registrant advised AA that there was no need to run the cuvette procedure because the cuvette washing happens when the machine is stopped. In contrast the Registrant’s account of his thinking process has not been entirely consistent. In his initial interview he gave the impression that he believed there was a cleaning process after he stopped the Analyser.

12. The Panel preferred AA’s evidence. The Registrant knew at the time that there was a need for a cuvette wash after stopping the Analyser. The explanation for the Registrant’s conversation with AA was to justify his decision not to carry out the cuvette wash. The Panel therefore rejected the Registrant’s explanation that he forgot about the requirement for a cuvette wash.

Decision on Grounds

13. The Registrant admitted that the facts in particular 1 constitute misconduct. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

14. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the required standards.

15. A lack of competence is a standard of work which is unacceptably low. It will usually be demonstrated by a fair sample of the Registrant’s work.

16. The Registrant was an experienced BMS, having commenced work as a trainee at the Hospital in 2005. He had received training and understood the relevant SOPs. The incident on 3 June 2015 was a one off incident. The Panel do not have a fair sample of the Registrant’s work. The incident was not due to a lack of understanding, knowledge or training. In the Panel’s judgment particular 1 does not constitute a lack of competence.

17. The Registrant was rushing due to the pressure of work and he made two decisions, to press the STOP button and not the run the cuvette wash, both of which were intended to save time. They were deliberate acts, and contrary to the SOPs. The Registrant knew that SOPs must be followed, and that one of the purposes of following the SOPs is to ensure that the results of tests are not contaminated. In this case no significant harm was caused by the Registrant’s conduct, because the error was identified. However, this did not prevent a premature baby’s blood sample having to be retaken, which would not have been necessary had the Registrant followed the SOP. Additionally, there was a potential risk of harm because clinicians may act on contaminated results if such results are sent out.

18. The Registrant’s conduct was a breach of the HCPC Standards of conduct, performance and ethics:

• standard 1 you must act in the best interests of service users;

• standard 7 you must communicate properly and effectively with service users and other practitioners.

19. The conduct was also a breach of the Standards of proficiency for BMS:

• standard 4 be able to practice as an autonomous professional, exercising their own professional judgement;

• standard 14.10 be able to work in conformance with standard operating procedures and conditions;

• standard 15.5 be able to establish safe environments for practice, which minimise risks to service users, those treating them and others, including the use of hazard control and particularly infection control;

• standard 15.6 understand the application of principles of good laboratory practice.

20. The Registrant’s conduct fell well below the standards that are expected of a BMS and was sufficiently serious to constitute misconduct.

Decision on Impairment

21. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.

22. The Panel first considered the personal component, which is the Registrant’s current competence and behaviour. The Registrant has been working successfully as a Band 6 BMS employed by Worcestershire Acute Hospitals NHS Trust for approximately nine months. The Registrant provided the Panel with supportive and positive testimonials. He advised the Panel that the two managers who provided the testimonials were aware that they were being provided to the HCPC. The Registrant stated that the machines he now works with were more reliable than those at his former employer, and consequently he has not worked under the same conditions of stress and pressure as existed on 3 June 2015.

23. The Registrant stated that he believed he had learned a very hard lesson from the events on 3 June 2015 and that he would never repeat his misconduct. Despite this assurance, the Panel was concerned about the level of the Registrant’s insight into his past misconduct. The Panel was concerned that the Registrant has not reflected on the underlying cause of his misconduct. The Registrant made extremely poor decisions when he was working under pressure. He did not respond to the pressure by prioritising the work tasks, but instead made decisions which created risk.

24. The Panel was particularly concerned by the recent example of work which the Registrant intended to be a positive illustration of the lessons he has learned. The Registrant told the Panel that he was unwell due to a stomach upset while working a night shift. He said that he was unable to make contact with his manager who was on annual leave and that there was no one else he could contact. He remained at work and at a slow pace he supervised a medical laboratory assistant in the work that was required on his shift. In the Panel’s view this example was concerning rather than reassuring. If the Registrant was unwell as he described, he should have identified a risk that his concentration, and therefore his judgment and decision making, could be adversely affected. In continuing at work without contacting an appropriate person of authority at the Hospital, he presented a risk to patients and colleagues, without thinking about the professional requirement placed upon him that he should practise only when well enough to do so.

25. Although the Registrant has accepted responsibility for his past misconduct, he has not demonstrated full insight. He has acknowledged in his statement the potential risks that his misconduct created, but he has not taken remedial steps to think about or address the underlying causes of his misconduct. It had not occurred to the Registrant that it might be appropriate to prepare a reflective statement on the events. Whilst recognising the benefits, the Registrant has not undertaken self-study on time management or stress management. When asked about this, the Registrant said that he has not had time to carry out CPD outside work because of his long working hours and travel time. The Panel’s view was that the Registrant has given priority to his new job, but should have given greater priority to the important need to remedy his past misconduct. In addition he should have reflected on the relevance of the ongoing need to maintain the CPD requirements of his profession.

26. The Panel’s view was that the misconduct is remediable, but the Registrant has not demonstrated that it has been remedied.  The Panel’s concern was that when working under intense pressure, the Registrant may take risks and in these circumstances there remains a risk of repetition. Therefore, this is a case where the Registrant has in the past acted and there is potential that he may in the future act so as to put service users at risk of harm. The Panel decided that the Registrant’s fitness to practise is impaired on the basis of the personal component.

27. The Panel next considered the critically important public policy considerations which include the need to protect the public, uphold standards of behaviour and conduct, and maintain confidence in the profession and the regulatory process. The Panel has identified a risk of repetition, particularly in circumstances where the Registrant is working under extreme pressure. The nature of the Registrant’s work is that, if work is rushed or risks are taken, there is a potential risk to the public. Members of the public would be concerned by the Panel’s findings and by the Registrant’s failures to follow the SOPs.

28. It is important for a clear message to be given to the public and to other Registrants that it is not acceptable for a BMS to make a deliberate decision to not follow mandatory SOPs. It is necessary to mark the seriousness of the Registrant’s misconduct by finding that his fitness to practise is impaired on the basis of the public component.
Hearing in private

29. Mr Jordan made an application for part of the hearing to be heard in private, retrospectively. This related to a part of the Registrant’s evidence, in which he referred to a personal matter.

30. The Panel decided that it was appropriate for this part of the hearing to be in private, as recorded on the transcript, to protect the Registrant’s private life.

Decision on Sanction

31. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions Policy (ISP). The purpose of a sanction is not to punish the Registrant, though it may have that effect. The purpose of a sanction is to protect the public. The Panel should also give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.

32. The Panel applied the principle of proportionality, balancing the Registrant’s interests against the public interest.

33. The Panel identified the following mitigating circumstances:

• the Registrant’s full engagement in the HCPC process;

• the Registrant’s admission of the facts, admission of misconduct, and expression of remorse;

• an isolated incident;

• the Registrant’s otherwise unblemished career;

• two positive testimonials.

34. The Panel identified the following aggravating circumstances:

• the Registrant’s limited insight;

• the limited breadth of the Registrant’s reflection;

• the lack of remedial action;

• the potential for repetition.

35. The Panel considered the available sanctions in ascending order of severity. It would not be sufficient to impose no sanction in the circumstances of this case. Taking no action would not be sufficient to protect the public.

36. A Caution Order would also not be sufficient to protect the public. Although the incident was isolated, it was not minor, there is not a low risk of recurrence and the Registrant has not demonstrated the level of insight the Panel expect.

37. The Panel next considered a Conditions of Practice Order. Mr Jordan informed the Panel that after the Panel announced its decision on impairment he spoke to the Registrant’s line manager, who provided one of the supportive testimonials. She indicated to Mr Jordan that the she wished to continue to support the Registrant in remaining in employment if that was practicable. A condition which required the Registrant to make arrangements for a workplace supervisor to oversee the preparation of a Personal Development Plan was likely to be workable. The Registrant confirmed that he was willing to comply with conditions of practice.

38. The Panel’s view was that a Conditions of Practice Order would be sufficient to protect the public. The deficiencies identified by the Panel are capable of being remedied. The Panel was able to formulate conditions which are effective to protect the public. The conditions are directed to addressing the underlying causes of the incident on 3 June 2015 and for the Registrant to reflect on the Panel’s findings. The conditions requiring training and the preparation of a Personal Development Plan are to ensure that the Registrant is able to manage his workload effectively, even when he is subject to stress and that he does not attempt shortcuts or take risks. The conditions will therefore protect the public against the potential of repetition the Panel has identified.

39. A Conditions of Practice Order is also sufficient to protect the wider public interest. Members of the public would be reassured that the regulator has taken proportionate action in respect of a potential risk and that the Registrant’s case will be subject to a further review. 

40. The Panel considered a Suspension Order. The Panel decided that a Suspension Order would be disproportionate, taking into account the Registrant’s interests in continuing to practise as a BMS and the mitigating factors.

41. The Panel considered the appropriate length for the Conditions of Practice Order. The Panel decided that the appropriate and proportionate length is twelve months. This will enable sufficient time for the Registrant to complete the education requirements, and demonstrate to a review Panel that he has put his learning into practice.

42. The Panel therefore decided that the appropriate and proportionate order is a Conditions of Practice Order for a period of 12 months. The Conditions of Practice Order will be reviewed before it expires. A future review Panel may be assisted by:

• testimonials providing an update to the review Panel on the Registrant’s work over the twelve month period covered by the Order.

Order

Order: The Registrar is directed to annotate the Register to show that, for a period of twelve months from the date that this Order comes into effect (“the Operative Date”), you, Mr Ian A Rees, must comply with the following Conditions of Practice:

1. You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC and supply details of your supervisor to the HCPC within one month of the Operative Date.

2. You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

• adherence to SOPs;

• improving time management skills;

• dealing with stressful workloads.

3. Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.

4. Within your PDP you must:

(a)  write a written plan demonstrating how you intend to approach, address and prioritise in future situations when you are faced with risks arising from competing workplace demands and pressures;

(b)  write a reflective piece considering the Panel’s findings and demonstrating understanding of the importance of adhering to SOPs and forward a copy of the reflective piece to the HCPC as evidence of its completion; and

(c)  satisfactorily complete a stress management course and a time management course and forward a copy of your results and/or evidence of completion of the courses to the HCPC.

5. You must meet with your supervisor on a minimum three monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

6. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

7. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

8. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

9. 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 professional work;

(b)  any agency you are registered with or apply to be registered with (at the time of application); and

(c)  any prospective employer (at the time of your application).

10. You will be responsible for meeting any and all costs associated with these conditions.

Notes

The order imposed today will apply from 9 May 2017.

This order will be reviewed again before its expiry on 9 May 2018.

Hearing history

History of Hearings for Ian A Rees

Date Panel Hearing type Outcomes / Status
10/04/2017 Conduct and Competence Committee Final Hearing Conditions of Practice