Miss Marie A Fell

: Biomedical scientist

: BS64012

: Final Hearing

Date and Time of hearing:10:00 18/09/2017 End: 17:00 22/09/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

(as amended at Substantive Hearing):

 

Between 2010 and 2013 and whilst registered as a Biomedical Scientist, you:


1. During your employment at Royal Albert Edward Infirmary, Wigan, you falsified:


a. Departmental sign-in records, on:
i. 05 July 2011;
ii. 06 July 2011;
iii. 09 August 2011;
iv. 06 September 2011;
v. 13 September 2011;
vi. 15 September 2011;


b. Flexi-time records, on:
i. 05 July 2011;
ii. 06 July 2011;
iii. 01 August 2011;
iv. 02 August 2011;
v. 09 August 2011;
vi. 06 September 2011;
vii. 13 September 2011;
viii. 15 September 2011;


2. In relation to your employment at Morecambe Bay Foundation Trust, you:


a. Gave a false reason for your contract ending at Salford Royal NHS Foundation Trust;


b. Submitted a false reference from Person A.


3. On 27 April 2012, received a conditional discharge for two counts of theft.


4. You did not declare that you had received a conditional discharge to the Health and Care Professions Council in a timely manner.


5. Your actions described in paragraphs 1, 2 and 4 were dishonest.


6. The matters described in paragraphs 1 to 5 constitute misconduct.


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

Finding

Preliminary Matters


1. The Registrant, Ms Marie Fell, has neither attended nor been represented at this hearing.


2. The Panel was satisfied that the letter dated 28 April 2017 addressed to the Registrant at her HCPC Registered address informing her of the date, time and location of the hearing, constituted a valid notice of hearing.


3. After the Panel decided that a valid notice of hearing had been sent to the Registrant, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. In considering this application, the Panel heeded the advice it received as to the care that should be taken before making such a direction, and it also heeded the terms of the Practice Note entitled, “Proceeding in the Absence of the Registrant” issued by the HCPTS. Having carefully considered the matter, the Panel concluded that the hearing should proceed in the Registrant’s absence.  The reasons for this decision were as follows:


• The Registrant had communicated an intention not to attend the hearing, and she had not engaged with the suggestion that the issue of her engaging by telephone could be explored.
• The Registrant explicitly stated that she was not applying for an adjournment.
• The tone of the Registrant’s communications was that there was no significant prospect of her attending a hearing on a future occasion in the event of the present hearing being adjourned.
• The Registrant had requested that the Panel should be provided with copies of her written representations to the HCPC, and the HCPC, having clarified with the Registrant what she expected to be included within the terms of this request, had provided these documents to the Panel.
• The Panel therefore concluded that every reasonable step had been taken to minimise any disadvantage to the Registrant arising from her absence from the hearing.
• There were witnesses in attendance who were prepared to give their evidence.
• The importance of avoiding delay that applies in every case was particularly acute in the present case that concerned events that occurred over six years ago.
• For all these reasons the clear public interest in the case proceeding outweighed any disadvantage to the Registrant arising from her absence.


4. During the presentation of the HCPC’s case, it was appreciated that an error had been made as to the date “8 July 2011”, alleged by particulars 1(a)(ii) and 1(b)(ii), as it should have been 6 July 2011. The Panel accepted that the correct date of 6 July 2011 had been advanced by the witness evidence produced by the HCPC for the purposes of the present hearing, and it had also been the basis of questions asked of the Registrant contemporaneously. The Panel concluded that there was no risk or prejudice to the Registrant were the error to be corrected.  In these circumstances the Panel acceded to the application to amend the date.


Background


5. In 2011 the Registrant was employed as a Band 6 Biomedical Scientist by the Wrightington, Wigan and Leigh Foundation Trust (“the Wigan Trust”).  In 2012, a merger of the pathology services of the Wigan Trust and that of the Salford Royal NHS Foundation Trust resulted in an organisation described as Pathology at Wigan and Salford (“PAWS”) being established.


6. The falsifications alleged by particular 1 allegedly took place during the period when the Registrant was employed by the Wigan Trust.  She was suspended from that employment as a result of the allegations. By the time they were considered at a disciplinary hearing, her employment had been transferred to the newly created PAWS. The HCPC’s case is that the Registrant was dismissed from her PAWS employment as a result of a disciplinary hearing held on 19 April 2012, and that the dismissal was upheld when the Registrant appealed the decision to dismiss her on 24 August 2012.


7. In 2015 a Biomedical Scientist who knew of the Registrant during the period when she had been employed by the Wigan Trust, visited the Microbiology Department of the Royal Lancaster Infirmary for the purposes of verifying the portfolios of trainee Biomedical Scientists. As he knew of the outcome of the disciplinary processes undertaken in 2012 he was surprised to see the Registrant and spoke to the manager of the laboratory he was visiting. This conversation led to the investigation that has resulted in particular 2 being considered by the Panel.


8. Particular 3 is concerned with the contention that on 27 April 2012, the Registrant pleaded guilty to two charges of theft when she appeared in the Magistrates’ Court, as a result of which a conditional discharge for a period of 12 months was imposed.


9. Particular 4 contends that the Registrant failed to discharge the obligation on her to report to the HCPC the fact of the imposition of the conditional discharge.


10. Particular 5 alleges that the matters included in particulars 1, 2 and 4 amounted to dishonest behaviour on the part of the Registrant.

Decision on Facts


11. The HCPC relied upon the evidence of six witnesses.  Of these, four were called to give oral evidence before the Panel. These four witnesses were:
• Ms JE, a Biomedical Scientist who, as the Directorate Manager for PAWS, was a decision maker at the disciplinary process held on 19 April 2012 that resulted in the Registrant being dismissed from the employment of PAWS.  She was also present at the Registrant’s appeal against that decision on 24 August 2012 when she explained the reasons for the decision made on 19 April 2012.
• Mr JE, at the relevant time Head of Medical Devices and Divisional Business Manager at Morecambe Bay NHS Trust (“the Morecambe Trust”), who investigated issues relevant to the circumstances in which the Registrant became employed by the Trust for which he worked.  Accordingly, his evidence was relevant to the matters included in particular 2 being considered by the Panel.
• Ms SF, who was employed as a Senior Biomedical Scientist in the Microbiology Department at the Wigan Trust while the Registrant was working there.  She was the Registrant’s line manager until August 2012, and it is the reference purportedly written by Ms SF that is relevant to particular 2(b).
• Mr DA, a Registration Manager employed by the HCPC, whose evidence was relevant to the disputed issue of whether the Registrant reported the imposition on 27 April 2012 of a conditional discharge.
The Panel found all of the witnesses to be credible, reliable and balanced in their evidence.  The passage of time had clouded their recollections in respect of some areas of detail, but all were quick to highlight where this was the case. Ms SF was clearly shocked by some of the evidence of emails which it was claimed were sent in her name, but she remained professional and balanced throughout.

12. In addition to the four witnesses who gave evidence before the Panel, the HCPC relied on the evidence of two witnesses who did not attend the hearing to give oral evidence but who had made written witness statements that were introduced in the hearing. These witnesses were Ms KR, a Legal Assistant employed by the HCPC’s Solicitors, and Ms SC, a Case Manager employed by the HCPC. The former gave evidence about requests she made for documents, and produced those she was sent as a result of those requests. Included in these documents was the entry of the Court register evidencing the finding of the Wigan and Leigh Magistrates’ Court on 27 April 2012. The written witness statement of Ms SC outlined the procedure that would be followed by a person disclosing findings made against them by criminal courts, as well as stating that she had searched for a scanned copy of a letter sent by the Registrant disclosing such a finding against her, but had failed to find it on the HCPC’s fitness to practise case management system. The HCPC also introduced a substantial body of documentary exhibits relevant to the matters being decided by the Panel.


13. As indicated when the Panel explained its reasons for proceeding with the hearing in the absence of the Registrant, the Panel was provided with a number of documents that had been submitted by the Registrant to the HCPC.


14. Throughout its decision making, the Panel remembered that the burden of proof rested on the HCPC, the standard of that burden being the balance of probabilities.


15. With these introductory remarks concluded, the Panel now turns to explain its findings on the facts.

Particular 1(a)(i) to (vi)
16. To save unnecessary repetition, the Panel will explain at some length its reasons in relation to particular 1(a)(i). This will enable the Panel to explain its reasons in relation to similar particulars more succinctly. The Panel has considered the departmental sign-in records for 5 July 2011, and the record of computer use for the same date, in the light of the evidence of Ms JE and Ms SF. On the balance of probabilities, the Panel finds that the entries in the sign-in record indicating that the Registrant had cancelled, by crossing through, previously agreed flexible leave, and that she had instead attended work at 08:30, were made by the Registrant and were false.


17. The Panel noted that the Registrant’s entry in the sign-in record timed at 08:30, had been made out of sequence and after an entry for a colleague who had arrived at 12:00 and another who had signed in at 09:00.  Moreover, the record of computer use for 5 July 2011 showed that the Registrant had not logged in at all that day, which the Panel considers to be implausible had she worked a full shift as the sign-in record suggests.  This interpretation is consistent with the evidence of Ms JE and Ms SF and the Panel notes that there is no record of the Registrant reporting IT issues that day. The Panel finds that on the balance of probabilities the Registrant originally requested flexible leave for 5 July 2011, but subsequently cancelled this and added her name and a false arrival time to the sign-in record to suggest that she had worked that day when she had not.


18. With regard to the remaining dates relevant to particular 1(a), the Panel carefully considered the evidence relating to each of them. With the exception of particular 1(a)(iv), the evidence was indistinguishable from that relating to particular 1(a)(i) save, of course, as to the dates of the relevant entries concerned. With regard to particular 1(a)(iv), the Panel noted that the Registrant’s entry in the sign-in record is not out of sequence. However, the computer record, which shows that she did not log in on 6 September 2011, satisfies the Panel that she did not attend work that day.  As such, her entry suggesting that she did, is false.


19. The consequence of all these findings is that the Panel finds particulars 1(a)(i) to (vi) to be proved.


Particulars 1(b)(i) to (viii)
20. As with particular 1(a), the Panel will first explain its reasons with regard to 1(b)(ii) in some detail, and then explain its reasons with regard to the remaining elements of particular 1(b) more succinctly. When dealing with particular 1(a)(i), the Panel has already found that the Registrant did not attend work on 5 July 2011. However, by falsely making an entry in the sign in record that she had attended work from 08:30, she accrued 30 minutes of flexi-time on the basis that she had started work 30 minutes prior to the core start time of 09:00. The Panel has examined the Registrant’s “Flexitime Form” for July 2011, which it is satisfied, on the evidence of Ms JE, was completed by the Registrant herself. This shows an entry for 5 July 2011 of “+0.5” hours in the column headed “Flexitime”.  As the Registrant did not attend work on 5 July 2011, this is, on the balance of probabilities, a falsified entry. The Registrant’s actions, as discussed above in relation to particular 1(a)(i), in writing a flexi-time request in the sign-in record for 5 July 2011, and subsequently deleting it and falsifying an entry to suggest that she worked from 08:30, has two consequences for the accuracy of her flexitime records. Firstly, her flexitime total was not reduced by 7 hours 30 minutes in respect of a day she did not work. Secondly, she accrued an additional 30 minutes of flexitime as a result of falsely claiming that she started work 30 minutes before the core start time. Accordingly, the total benefit inappropriately gained by the Registrant was 8 hours in respect of this day.


21. With the exception of particulars 1(b)(iii) and (iv) (which relate to 1 and 2 August 2011 respectively), the remaining particulars of particular 1(b) reflect those dates in respect of which the Panel has already decided under particular 1(a) that the Registrant falsely signed-in on days she did not work.  The Panel will consider 1(b)(iii) and (iv) separately, but with regard to particulars 1(b)(ii), (v), (vi), (vii) and (viii), having carefully considered the documentary and oral evidence relating to them, the Panel has come to the same conclusion that has been described in relation to particular 1(b)(i).
22. So far as particulars 1(b)(iii) and (iv) relating to 1 and 2 August 2011 are concerned, again the Panel has considered the evidence relating to them separately. In relation to both dates, although there is no evidence of a sign-in record, there is a record that the Registrant claimed 30 minutes of flexitime for these dates. For both dates the record of computer use shows that the Registrant did not log on, and accordingly the Panel is satisfied on the balance of probabilities that she did not attend for work on these days. The Panel is therefore satisfied on the balance of probabilities that the Registrant’s entries on her Flexitime Form were also falsified. The Panel noted in particular that the evidence of Ms JE was that the Registrant acknowledged during the internal disciplinary process that she had made a mistake in respect of these Flexitime Form entries. The Panel rejects the explanation of a mistake, and finds on the balance of probabilities that the Registrant knowingly falsified the entries for 1 and 2 August 2011, as she had the entries for the other dates alleged by particular 1(b).


23. The consequence of these findings is that the Panel finds particulars 1(b)(i) to (viii) to be proved.

Particular 2(a) and (b)
24. The Panel considered that it was helpful to a fair consideration of particular 2 to firstly address particular 2(b) before moving on to consider particular 2(a) in the light of its findings on particular 2(b).


25. The Panel found the evidence of Ms SF, in whose name the reference had been submitted, to be compelling.  She was clear that she had not written the reference and that she had no knowledge of it.  Moreover, she stated that she would have refused any request to give a reference in respect of the Registrant and, even if she had given one, would not have described the Registrant in the positive terms used within the reference. She also confirmed that the email address used to request the reference and from which the reference was supplied was not hers and was not known to her.  Furthermore, she stated that she would never provide a professional reference from a private email address, preferring to use an official work-related one. The only potential beneficiary of the reference was the Registrant, and the Panel finds, on the balance of probabilities, that the Registrant submitted the reference herself, falsely passing it off to be from Ms SF.  Accordingly, particular 2(b) is proved.


26. So far as particular 2(a) is concerned, having found in relation to particular 2(b) that the Registrant had written and submitted a false reference to the Morecambe Trust, the Panel considered the reason given in the reference for the Registrant leaving her earlier employment.  In the reference, the Registrant gives as the reason for leaving, “….. she unfortunately lost her [the Registrant’s] job due to NHS cuts.”  In their evidence, Ms JE and Ms SF stated that the Registrant had left the employment because she had been dismissed for fraudulent behaviour. In his evidence, Mr JE corroborated the statements of Ms JE and Ms SF. Therefore, on the balance of probabilities, and in the light of the Panel’s finding in respect of particular 2(b), the Panel finds that the Registrant gave a false reason for ending her earlier employment.


Particular 3
27. The Panel is satisfied from the certified extract from the Register of the Wigan and Leigh Magistrates’ Court dated 27 April 2012 that the Registrant received a conditional discharge for two counts of theft.  Accordingly, particular 3 is proved.

Particular 4
28. The HCPC’s Standards of conduct, performance and ethics in force at the material time require registrants to report conditional discharges to the HCPC.  Standard 4 requires registrants to report to the HCPC any important information about their conduct.  It states:
“In particular, you must let us [HCPC] know straight away if you are:
- convicted of a criminal offence, receive a conditional discharge for an offence, or if you accept a police caution;”
The Panel finds that this amounted to a requirement for the Registrant to report her conditional discharge to the HCPC.


29. The Panel considered the Registrant’s claim made in her written submissions dated 10 May 2017 that she reported the matter to the HCPC by telephone and in a letter dated 30 April 2012. The evidence of Mr DA was that there was no record of the telephone call or letter having been received by the HCPC. This was consistent with the witness statement of Ms SC.  The Panel prefers the evidence of Mr DA and Ms SC to that of the Registrant and finds that, on the balance of probabilities, the Registrant did not declare to the HCPC that she had received a conditional discharge.  As the Panel finds that no declaration was made, the issue of timeliness is not engaged. Accordingly, particular 4 is proved.


Particular 5
30. To avoid the risk of a finding of dishonesty being unfairly reached by accumulating criticisms of a different nature, the Panel decided to consider whether the matters contained in particulars 1, 2 and 4 were dishonest by considering each of those particulars separately.


31. With regard to whether particular 1 was dishonest conduct, in falsifying departmental sign-in records and flexi-time records, the Panel finds that the Registrant’s actions would be considered to be dishonest by the standards of reasonable and honest members of the profession and of the public.  Moreover, by those same standards, the Registrant would have realised that she was acting dishonestly.  The Registrant stood to gain from her actions by claiming flexible working time credits in respect of days not worked.  By any standards, this is dishonest conduct.


32. With regard to whether particular 2 was dishonest conduct, the Panel again applied the two-stage test just outlined.  By authoring and submitting a false reference purporting to have been written by Ms SF, and giving in it a false reason for leaving her previous employment, the Panel finds that it was dishonest conduct.  The Registrant sought to gain an unfair advantage in relation to her application for employment and falsely represented herself to a prospective employer.


33. Finally, with regard to whether particular 4 was dishonest conduct, the Panel also applied the two-stage test relevant to a decision on dishonesty, and came to the conclusion that the Registrant’s deliberate decision not to report a matter she knew should have been reported was dishonest.  By failing to make the report she sought to avoid the potential fitness to practise issues that could arise from the making of the report.


34. Accordingly, the allegation of dishonesty advanced by particular 5 is proved in relation to each of particulars 1, 2 and 4.

Decision on Grounds

35. The Panel finds that the Registrant’s actions in engaging in repeated acts of dishonesty fell well short of what was proper in the circumstances.  The Registrant stood to gain from her dishonesty and was seemingly uncaring as to the consequences of her actions for others, such as Ms SM, in whose name the Registrant submitted the false reference. Fellow practitioners would find the Registrant’s actions to be deplorable.


36. The Panel finds that the Registrant has breached the following standards of the HCPC’s Standards of conduct, performance and ethics in force at the relevant time:

3 - You must keep high standards of personal conduct.

4 - You must provide (to us and any other relevant regulator) any important information about your conduct and competence.
 
13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

These, the Panel finds, amount to fundamental tenets of the profession.  The Panel finds misconduct that is sufficiently serious as to require a consideration of the Registrant’s fitness to practise.


Decision on Impairment


37. The Panel finds that the Registrant’s actions brought her profession into disrepute, breached fundamental tenets of the profession and involved dishonesty.  She has shown no meaningful insight, seeking in her written submissions to deflect blame onto others and showing no awareness of the implications of her actions for others.  There is no evidence before the Panel to suggest that the Registrant has remediated her misconduct and the Panel cannot, therefore, be satisfied that there is not a real risk of repetition. Any repetition would again risk bringing the profession into disrepute, breaching the fundamental tenets of the profession and involving dishonesty.


38. The Panel finds that the Registrant’s current fitness to practice is impaired on the grounds of the wider public interest, of maintaining confidence in the profession and the regulatory process, as well as the need to declare and uphold proper professional standards of conduct and professionalism.


39. The finding of current impairment of fitness to practice has the consequence that the allegation is well founded and the Panel must proceed to consider the issue of sanction.

Decision on Sanction


40. After announcing the decision on the allegation, the Panel received submissions from the Presenting Officer on sanction. The Presenting Officer took the Panel through the HCPC’s Indicative Sanctions Policy, highlighting the elements of it that addressed the factors that can justify the imposition of a sanction. He also took the Panel to guidance offered by the document in relation to each of the available sanctions.  He concluded his review of the available sanctions by submitting that in the light of the Panel’s findings, the only applicable sanction was that of striking-off.

41. In reaching its decision on sanction the Panel has accepted that a sanction should not be imposed to punish a registrant against whom a finding has been made. Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain a proper degree of confidence in the registered profession and in the regulatory process, and to declare and uphold proper professional standards. As a finding that an allegation is well founded does not necessarily require the imposition of a sanction, the first question a panel must consider is whether the findings it has made on the allegation require one to be made.  If a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that satisfies the proper sanction aims just described. In the present case the finding of misconduct has the consequence that the sanction range extends to, and includes, the making of a striking-off order.  In reaching its decision the Panel has had regard to the HCPC’s Indicative Sanctions Policy.

42. When the Panel began its deliberations it identified the mitigating and aggravating factors. In the view of the Panel the mitigating factors are:

• that there were no previous regulatory findings; and,
• there had been partial engagement by the Registrant in this fitness to practise process.
The Panel identified the following aggravating factors:
• the Registrant had attempted to deflect blame;
• the Registrant’s actions had a negative impact on colleagues which was exacerbated by her repeated use of false email address in her submissions to the HCPC ;
• the misconduct involved repeated dishonesty; and,
• a lack of insight and remorse on the part of the Registrant.

43. The Panel approached the ladder of sanctions, beginning with the least restrictive. The misconduct leading to the finding of impairment was serious and involved dishonesty. As such, to take no action at the sanction stage would not be appropriate. Likewise, the imposition of a caution order would be neither appropriate nor proportionate given the circumstances of the case. Such an order would not be sufficient to maintain public confidence or to mark the unacceptability of the Registrant’s actions.

44. In the circumstances of the case, the Panel did not consider it possible to formulate conditions of practice that could in any way mitigate the serious issues relating to the wider public interest. As such, a conditions of practice order is inappropriate.

45. The HCPC’s Indicative Sanctions Policy suggests that a suspension order would be appropriate where, “the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”  In this case the allegation is serious and the Panel has found that, given the absence of meaningful insight or remediation, there is a real risk of repetition. The Panel finds that the Registrant has engaged in a series of deliberate acts of dishonesty and that the wider public interest in maintaining confidence and declaring and upholding proper standards of conduct and professionalism requires a sanction that provides a strong deterrent effect. A suspension order for a period of up to one year would not be sufficient to deliver this.  As such, this sanction is neither appropriate nor proportionate.

46. The Panel went on to consider the imposition of a striking off order. The Indicative Sanctions Policy points to a striking off order as, “a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.” It goes on to state that, “striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process.” The Panel finds that the series of dishonest actions engaged in by the Registrant are indicative of a deep-seated attitudinal problem. The nature and gravity of her actions are such that any sanction less than a striking off order would fail to reflect the seriousness of the allegations and the circumstances of the case.  Accordingly, the Panel directs the Registrar to strike the Registrant’s name from the Register.

Order

ORDER: The Registrar is directed to strike the name of Marie A. Fell from the Register on the date this Order comes into effect.


 

Notes

The Order imposed today will apply from 18 October 2017 (the Operative Date).

Hearing history

History of Hearings for Miss Marie A Fell

Date Panel Hearing type Outcomes / Status
18/09/2017 Conduct and Competence Committee Final Hearing Struck off