Mr Rakesh Chumber

: Biomedical scientist

: BS69091

: Final Hearing

Date and Time of hearing:10:00 11/09/2017 End: 17:00 11/09/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

(as amended at the final hearing)
While registered with the Health and Care Professions Council as a
Biomedical Scientist:

1. On or around 14 July 2016, you provided a reference purporting to be from Person A to the recruitment agency 'Your World Recruitment LTD’ with a view to obtaining paid employment as a Biomedical Scientist.

2. On around the 14 July 2016 you created an email and/or sent an email purporting to be from Person A to supply a reference to the recruitment agency ’Your World Recruitment LTD’.

3. Your actions as described in paragraphs 1 - 2 were dishonest.

4. The matters as described in paragraphs 1 - 3 constitute misconduct.

5. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters
1. Ms David applied to the Panel for the case to be heard in the Registrant’s absence. She referred the Panel to the written Proforma Response dated 6 August 2017, signed by the Registrant and attached to an email from the Registrant to the HCPC dated 14 August 2017. In answer to the each of the following questions on the Proforma Response, ‘Do you intend to appear in person at the hearing?’ and ‘Do you intend to be represented at the hearing?’, he stated ‘No’. In the email the Registrant stated, ‘I would like the following statement to be read at the final hearing if possible:- …’ The Panel read that statement, in which the Registrant apologised for his actions, accepted that they were dishonest and expressed his regret about what he had done.

2. The Panel received advice from the Legal Assessor, who referred to Rule 11 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended and the principles set out by the Court of Appeal in R v Adeogba [2016] EWCA Civ. 162. The Panel decided that in all the circumstances it would be fair to proceed in his absence as he had deliberately chosen not to attend the hearing or to be represented.

3. Ms. David applied to amend the Allegation in the form set out in the HCPC’s letter to the Registrant dated 27 January 2017. In his Proforma Response the Registrant indicated that he admitted the ‘Notice of Allegation at pages 15-16’. Those pages include a copy of the letter of 27 January 2017 containing the proposed amendment to the Allegation. The Legal Assessor advised that the amendments could be made if they caused no injustice to the Registrant. The Panel allowed the amendments, having decided that they did not alter the substance of the case and that sufficient notice of them had been given to the Registrant.   

Background
4. The Registrant is a Band 5 Biomedical Scientist and was employed in the Histology Department of Worcester Royal Hospital (‘WRH’). In July 2016, he made an agreement with his employer, Worcester Acute Hospitals NHS Trust to take a short career break to care of a sick family member. During his career break he took up a locum position at the Royal Orthopaedic Hospital (‘ROH’) in Birmingham. WRH received some slides from ROH in September 2016 and a member of its pathology department claimed to recognise the handwriting on the accompanying documents as that of the Registrant. Subsequent investigations were made by WRH, which culminated in the matter being referred to the HCPC on 12 September 2016.     

Decision on facts
5. Ms David relied on two bundles of documents. The Panel also heard oral evidence from the following witnesses who were called on behalf of the HCPC:
• SC, Lead Biomedical Scientist for the Cellular Pathology Department at WRH;
• GR, Biomedical Scientist, employed by Derby Teaching Hospitals NHS Trust.

6. Each witness gave evidence, which the Panel found to be credible, being clear, cogent, inherently probable and consistent with the contemporaneous documents.  
 
7. The statement referred to and set out in the Registrant’s email of 14 August 2017 stated:

‘I would like to sincerely apologise for my actions. I believe I have caused a lot of anger and have lost a lot of respect from my former colleagues. My actions were dishonest and I deeply regret them by all means. If I could turn back time to undo it all, I would but at this point I feel that my actions are too far gone to change. I would especially like to apologise to [SC] and [GR] for my actions. Both of my former colleagues are honest and sincere people and I have the upmost respect for them both. I hope in time they could forgive me and see me for the person I was when I worked alongside them.’

8. The Legal Assessor advised that the onus of proof rests throughout on the HCPC and that it must prove its case to the standard of the balance of probabilities.

Particular 1 – found proved
‘On or around 14 July 2016 you provided a reference purporting to be from Person A to the recruitment agency ‘Your World Recruitment LTD’ with a view to obtaining paid employment as a Biomedical Scientist.’

9. At the beginning of September 2016, SC’s department received dissected slides from ROH. KW, a colleague of SC, brought them to his attention because she thought that the accompanying paperwork was in the Registrant’s handwriting. SC telephoned the Registrant as he was on unpaid leave at the time with the proviso not to take up other posts while on leave. The Registrant was surprised to hear from SC, who suggested that they met up. There followed an exchange of emails in which the Registrant asserted, by his email of 9 September 2016, that he had already resigned and had not agreed with the terms of his unpaid leave.

10. SC enquired within his department as to whether or not any of his colleagues had provided a reference for the Registrant, but no-one had done so. He contacted the locum agency used by the department, called ‘Your World’, because he wanted to make sure that they were checking references properly. The agency sent a copy of the reference to SC, who concluded that it was a possible forgery, because:
• He knew that GR, the referee, did not work in the department;
• The email address was non-existent at WRH;
• The covering letter referred to the wrong trust and the logo on the letter looked as though it had been taken from the internet and copied onto the header. It was also the wrong logo.  

11. There was before the Panel a copy of a written reference dated 14 July 2016 expressed to have been given by GR for Rakesh Chumber, the Registrant, with reference to an application for a locum position as a Biomedical Scientist, Histology. GR was identified on the reference as ‘Section Lead BMS’ and his employing organisation as Worcester Acute NHS Trust. The contact details given included an email address titled ‘[GR]@worcesteracute.net’ The reference stated that Mr Chumber had worked for GR from August 2015 until July 2016. The reference stated, ‘Do you believe the named applicant to be honest, ….’ and the response ‘yes’ was given. The reference also contained a number of responses marked ‘excellent’ against the full range of abilities required. Under ‘Comments’, the following was stated:

‘Rakesh is competent throughout the techniques and procedures in histopathology. The candidate is very innovative with good ideas and also efficient; is able to lead laboratory in absence [sic] lab seniors and ensure [sic] all work is completed accurately and to excellent standards.’  

12. In his evidence GR explained that he had known the Registrant when they worked together for a year from 2014 to 2015 in the Histology Department at Walsall Healthcare NHS Trust. GR was the Registrant’s line manager and their relationship was a good one. GR stated that the reference purporting to have been written by him was not a reference that he had written. He also confirmed that he had not written the covering letter dated 14 July 2016 that purported to have been written by him and a copy of which was also before the Panel. The Panel has accepted GR’s evidence.

13. In the circumstances, and in view of the Registrant’s admissions, the Panel has found Particular 1 of the Allegation to have been proved.

Particular 2 – found proved
‘On or around 14 July 2016 you created an email address and/or sent an email purporting to be from Person A to supply a reference to the recruitment agency ‘Your World Recruitment LTD.’

14. GR’s evidence was that he had never worked for the Worcester trust and has never been associated with the email address ‘[GR]@worcesteracute.net.’ An email dated 14 July 2016, a copy of which was in the hearing bundles, was sent from that address to DB from the recruitment agency. The email purported to have been written by GR and it stated:

 ‘Hi Daniel,
 I’ve attached a copy of the reference for you. I hope this helps for Rakesh ..’  

15. In view of this evidence, the Panel has concluded that the Registrant created the email address [GR]@worcesteracute.net which purported to be an email address of GR and sent an email from that address on 14 July 2016 for the purposes of supplying a reference to the recruitment agency. In those circumstances, Particular 2 of the Allegation has been found proved in its entirety.

Particular 3 – found proved
‘Your actions as described in paragraph 3 were dishonest.’

16. An allegation of dishonesty is a serious one and proof of such an allegation involves particular considerations: see In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586D-H and In re B [2008] UKHL 35 at [70].

17. To establish dishonesty on the part of the Registrant, the HCPC must prove (a) on the balance of probabilities, that the act or omission concerned was dishonest by the standards of reasonable and honest people and (b) on the balance of probabilities that the Registrant realised that what he was doing was dishonest by those standards.

18. It was plainly dishonest to forge a reference with a view to deceiving a recruitment agency and a prospective employer so as to obtain paid employment. It was also dishonest to create a fictitious email address and to send an email from that address with the forged reference so as to give effect to that deception. The Registrant has admitted that what he did was dishonest. The Panel also accepted the evidence of SC that it had been agreed between him and the Registrant that the Registrant would not work elsewhere while on unpaid leave. This explained why the Registrant had the motive to act as he did.

19. Accordingly, Particular 3 of the Allegation has been found proved.  

Decision on grounds
20. The Panel received further legal advice from the Legal Assessor on the issue of statutory grounds and has directed itself in accordance with that advice. The facts proved will amount to the statutory grounds of misconduct if they fell short of what would have been proper in the circumstances and if, in context, they were serious: Roylance v GMC [2000] 1 AC 311, PC at pp. 330 to 331.

21. In view of the findings of fact made by the Panel, it has concluded that the Registrant failed to comply with the following standards set out in the HCPC’s written Standards of conduct, performance and ethics, 26 January 2016:

9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

9.2 - You must be honest about your experience, qualifications and skills.

22. The Registrant’s conduct amounted to an elaborate and premeditated attempt to gain employment by dishonest means, showing a complete disregard for the process of recruitment, which relies on the provision of accurate and truthful information. In all the circumstances, the misconduct was serious.

23. Therefore, Particular 4 of the Allegation has been found proved.        

Decision on impairment
24. The Panel accepted the advice given by the Legal Assessor, who referred to the principles set out in Cheatle v GMC [2009] EWHC 645 (Admin) at [21] and [22] and in CHRE v NMC & Grant [2011] EWHC 927 (Admin) at [64] – [76], to the guidance given in the Practice Note, ‘Finding that Fitness to Practise is Impaired’ and to the Overarching Objective contained in Art. 3(4) and 3(4A) and paragraph 18(10A) of Schedule 1, Health and Social Work Professions Order 2001, as amended.

25. In the statement contained in his email of 14 August 2017, the Registrant went on to state as follows:
 
‘I would also like to apologise to the HCPC for bringing the reputation of my profession In [sic] disrepute and undermining the recruitment process, as well as undermining the public’s confidence in the profession. Being a biomedical scientist is an amazing role and it is a privilege to have such a fascinating role. I have fallen short of the requirements of standards and I recognise that. I have not worked as Biomedical Scientist since last year September since the initial allegations were made and have not since applied for any roles in this field. ………………’

26. The Registrant has apologised and expressed remorse, which the Panel has accepted as genuine. He has shown a degree of insight, to the extent that he expressed an understanding of the effect of his conduct on his colleagues, and on the reputation of the profession. He also recognised that his conduct had brought the profession into disrepute.

27. However, he has made no reference to the potential effects of his actions on patients. The misconduct had the potential to place patients at risk by compromising the integrity of recruitment procedures. The reference was couched in glowing terms that could easily have led an employer to give the Registrant more responsibilities than might have been justified. Therefore, his insight is limited. Apart from his very short reflective statement, there was no evidence that the Registrant has taken any steps with a view to remediating his dishonest conduct, even though dishonesty is by its nature difficult to remediate. Accordingly, there is still a risk of repetition of the type of dishonesty found by the Panel.

28. The Registrant’s attempt to secure remunerative employment by the use of a forged reference was serious and brought the profession into disrepute.

29. In all these circumstances, the Panel has concluded that a finding of current impairment of fitness to practise is necessary in order to protect the health, safety and wellbeing of the public, to promote and maintain public confidence in the profession and to promote and to maintain proper professional standards and conduct for members of the profession.

Decision on sanction
30. The Legal Assessor advised that the powers of the Panel are set out in Article 29(5) of the 2001 Order and that it must have regard to the statutory overarching objective in making its decision (paragraph 3(4) and (4A) and paragraph 18(10A) of the 2001 Order).

31. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, the Panel has sought to apply the principle of proportionality as that principle is explained in paragraph 9 of the Indicative Sanctions Policy, 22 March 2017 (‘ISP’).

32. The Panel has taken into account the relevant parts of the ISP in reaching its decision, its earlier findings and the evidence before it at the earlier stages of the hearing. The Panel has also taken into account the submissions of Ms David and has accepted the advice on the issue of sanction given by the Legal Assessor.

33. In the statement contained in his email of 14 August 2017, the Registrant concluded by stating, ‘I would like to request the panel to remove my name from the register.’

34. In reaching its decision the Panel has paid no regard to this statement, which might otherwise have led to the imposition of a disproportionate sanction. 

35. The Panel has taken into account the following as aggravating factors,
• The dishonesty was carried out in the context of registered practice;
• It was premeditated and elaborate;
• It was carried out for pecuniary advantage; and
• There was a risk of repetition of the Registrant’s dishonesty.

36. Further, the deception completely undermined the integrity of the recruitment process, for which the truth and accuracy of information are essential. The deception also had the potential to compromise patient safety in view of the glowing nature of the reference on every aspect of the Registrant’s abilities.

37. The Panel also took into account the following mitigating factors:
• The Registrant’s full admissions;
• The apology and the genuine remorse shown by him;
• He has shown a degree of insight.

38. The Panel considered the available outcomes in ascending order of seriousness.

39. This was clearly not a case where ‘no action’ would have been appropriate in view of the Panel’s findings. Mediation would have been inappropriate in the circumstances. A caution would not have met the seriousness of the case, nor provided the necessary degree of public protection in view of the continued risk of repetition of the type of dishonest misconduct found by the Panel.

40. The Panel next considered whether a Conditions of Practice Order would have been appropriate. However, the misconduct did not relate to the manner in which the Registrant carried on his professional responsibilities so as to be capable of being remedied by conditions and in any event the remediation of dishonesty is not amenable to conditions. Further, the Panel was not satisfied that the Registrant would be likely to comply with any conditions, had they been capable of being formulated. Therefore, a Conditions of Practice Order was not a sufficient response to the impairment.

41. The Panel next considered whether a Suspension Order would have met the demands of the case. The Panel has weighed the aggravating and mitigating factors and also the potential effects of such an order on the Registrant, but has concluded that in the circumstances such an order would not have been sufficient. It would not have met the demands of the wider public interest in this case. The misconduct brought the profession into disrepute. Furthermore, the aggravated features that accompanied it were of an extremely serious nature. They had the potential to put patients at risk and undermined the integrity of the process of recruitment by the use of a forged reference as part of an elaborate, premeditated and dishonest set of actions carried out by the Registrant in the context of registered practice.

42. In those circumstances, nothing less than a Striking-Off Order would be sufficient to maintain public confidence in the profession and to promote and maintain proper professional standards and conduct among members of the profession. Therefore, the Panel has decided that a Striking-Off Order is the necessary, and only sufficient, sanction in this case.

Order

The Registrar is directed to strike the name of Mr Rakesh Chumber from the Register on the date this order comes into effect 

Notes

The order imposed today will apply from 9 October 2017 (the operative date).

Hearing history

History of Hearings for Mr Rakesh Chumber

Date Panel Hearing type Outcomes / Status
11/09/2017 Conduct and Competence Committee Final Hearing Struck off