Mr Desmond Estephane

: Biomedical scientist

: BS46554

: Review Hearing

Date and Time of hearing:10:00 20/12/2017 End: 17:00 20/12/2017

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

1. On 12 September 1995 at Thames Magistrates Court you were convicted of driving whilst disqualified contrary to section 103(1) (b) of the Road Traffic Act 1988.

 

2. You failed to declare the conviction at paragraph 1 on your application for registration to the Health and Care Professions Council.

 

3. You did not advise the following organisations that (i) on 2 April 2013* at Stratford Magistrates’ Court you had been found guilty of common assault and/or (ii) not proved

a. Barking, Havering and Redbridge NHS University Hospitals

b. Health and Care Professions Council

 

4. Your actions described in paragraph 3 were dishonest.

 

5. On 14 March 2011 you made discriminatory remarks to a colleague about AB, another colleague at Barking, Havering and Redbridge NHS University Hospitals in that you said or used words to effect that:

a. you were fed up of working with disabled people and that AB cannot streak plates;

b. You’ve given me two disabled people, what do you expect?

 

6. The matters set out in paragraphs 2 - 5 constitute misconduct.

 

7. By reason of your conviction and/or misconduct your fitness to practise is impaired.

 

* Note that the year of conviction (later overturned on appeal) was in fact 2012.

Finding

Preliminary Matters:
Decision on the composition of the Panel
1. The Registrant, Mr Estephane, raised an objection to the composition of the Panel. He recognised the Registrant member of the Panel who sat on previous Review Hearings on 6 August 2015 and 5 August 2016. His objection was that the Registrant member had made a comment relating to the procedures followed by employers when recruiting Biomedical Scientists and, when doing so, had indicated that he did not carry out checks on “google” (internet searches) for those who applied for employment.
2. The Legal Adviser advised the Panel that the Registrant was objecting to the composition of the Panel on the ground of bias. Ms Bass agreed.
3. Ms Bass submitted that the Panel test for apparent bias was not met and that it was in the public interest for the review of the Conditions of Practice Order to proceed.
4. The Legal Adviser advised the Panel to apply the test in Porter v Magill [2002] 2 AC 357, which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Panel was biased. The Panel should also consider whether there was an appearance of bias.
5. The Panel accepted the advice of the Legal Assessor.
6. The Panel decided to reject the Registrant’s application for the Panel to recuse itself. The Registrant member has sat on two Review Hearings and the Registrant has made no objection. The Panel carefully considered the Registrant’s specific objection to the Registrant member. The Panel decided that the fair minded and informed observer would not consider that the Registrant member had demonstrated any bias. In the Panel’s view, the fair minded and informed observer would recognise that whether employers usually carry out checks on social media of prospective candidates is a moot point and a matter of opinion. The view of a member of the Panel on this issue has no bearing on their impartiality and independence in relation to the issues in the Review Hearing. There was no unfairness to the Registrant nor was there any appearance of bias. 
Background:
7. The Registrant started work as a Band 6 Biomedical Scientist with the Barking, Havering and Redbridge University NHS Trust (the Trust) on 17 November 2008. On March 2011 the Registrant made discriminatory remarks about a work colleague and was issued with a final written warning after an internal disciplinary hearing. On 27 October 2011 the Registrant was arrested following an alleged assault on his partner. He was suspended from his employment in March 2012. On 2 April 2012 he was convicted of common assault and sentenced to a Community Order. He failed to inform his manager of the conviction when interviewed at work on 5 April 2012. This conviction was subsequently overturned on appeal to the Crown Court in August 2012.
8. The Registrant appeared before the Conduct and Competence Committee of the HCPC at a Fitness to Practise hearing on 9 September 2013. As indicated in the particulars of the Allegation above, he was found to have made discriminatory remarks to a colleague in 2011 and to have dishonestly failed to declare his conviction for assault in 2012 to his employer or the HCPC. He was also found to have failed to declare a conviction, imposed in 1995 for driving whilst disqualified, when originally applying for HCPC registration, although this failure was not found to have been dishonest. It should be noted that the Registrant also successfully appealed against this conviction and that he has no convictions of any kind.
9. The Panel at the final hearing found that his fitness to practise was impaired by reason of his misconduct, arising from the discriminatory remarks and failures to declare convictions, and imposed a Suspension Order of 12 months. The Registrant appealed against the Suspension Order. The appeal was dismissed and the Suspension Order came into force on 5 March 2014. The Suspension Order was extended by a further 6 months by the first Review Panel on 2 February 2015.
10. The second Review Panel on 6 August 2015 was impressed by evidence of the Registrant’s remorse and insight into the impact of his language on others. The Registrant was therefore made subject to a Conditions of Practice Order of 12 months, which would have enabled the Registrant to return to work as a Biomedical Scientist under supervision with an obligation to notify the HCPC of his employment and the name of his supervisor.
11. The third Review Panel replaced that Order on 5 August 2016 with a Conditions of Practice Order. This Order required the Registrant to produce a portfolio for a future review panel to demonstrate continuing professional development, together with requirements to meet with a supervisor on a monthly basis and for the Registrant to formulate a Personal Development Plan with a supervisor.
12. At the fourth review on 6 April 2017 the Registrant produced a portfolio of documents in relation to continuing professional development. The Registrant produced a letter from the IBMS (Institute of Biomedical Science) dated 1 November 2016 that confirmed that he had been readmitted as a “Licentiate” and could apply to upgrade to full membership if and when his HCPC conditions are lifted. The Review Panel considered that the Registrant was entitled to credit for producing a comprehensive portfolio.
13. The Registrant told the Panel that he had applied for agency and permanent jobs, but had not secured employment. The Registrant submitted that the conditions of practice imposed onerous supervision obligations and hindered his prospects of obtaining agency work. Prospective employers had also gained the false impression that the Registrant had criminal convictions because of the content of the HCPC web pages which reported the original decision in 2013.
14. The review Panel decided to remove the more onerous supervision conditions and replace them with a more straightforward requirement that the Registrant submitted evidence from any future employer of his competence and progress in advance of this review hearing. The Panel considered imposing a more punitive sanction, but decided that it was unnecessary and disproportionate. However, the Registrant was advised that all options, including the option of striking-off, would be available to a future reviewing panel.
15. The Conditions of Practice Order imposed on 6 April 2017 was in the following terms:-
1) You must promptly inform the HCPC of the identity of your employer if you take up work as a Biomedical Scientist;
2) 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 application)
3) You must provide evidence of continuing professional development – to include recent developments in analytical procedures, technology and anti-biotic sensitivities; health and safety in the laboratory; UKAS/ISO 15189 standards as they relate to your day to day practice. The evidence should be signed, dated, verified and include a reflective piece on your learning and how you have translated the theory into practice.
4) You must provide a professional reference from your future line manager or employer, which demonstrates your conduct and competence in the workplace, your training and development, and which includes copies of your supervision records.
16. The Registrant lodged an appeal to the High Court on 2 May 2017 against the decisions of the HCPC Conduct and Competence Committee dated 10 September 2014 and 6 April 2017. The appeal was heard by Warby J on 17 August 2017 and was dismissed. Warby J certified that the appeal was totally without merit and made a Civil Restraint Order which forbids the Registrant from issuing an appeal or making an application in the High Court relating to any decision of the Panel until 5 September 2019 without the permission of a High Court Judge.
Decision
17. Ms Bass submitted that the Registrant’s fitness to practise remained impaired. The Registrant has been unable to obtain employment and has therefore not provided a professional reference in accordance with condition 4. There remained concerns about the Registrant’s ability to return to unrestricted practise, given that he has been away from the clinical area for a long period of time. Ms Bass submitted that it would be proportionate for the Panel to confirm the Conditions of Practice Order.
18. The Registrant submitted that he has complied with condition 3. He provided a portfolio of evidence for the Panel to consider.
19. He told the Panel that he believed that his efforts to obtain employment as a Biomedical Scientist have not succeeded because of the existence of the Conditions of Practice and because of the content of the HCPC web pages reporting the original decision in 2013. The Registrant told the Panel that he has applied for approximately one hundred jobs, both directly to employers and through agencies. He has attended approximately five interviews. He did not produce any independent evidence detailing the reasons his job applications have been unsuccessful.
20. The Registrant submitted that his fitness to practise is no longer impaired and asked the Panel to remove the Conditions of Practice.
21. The Panel accepted the advice of the Legal Assessor including in relation to the finding of the Registrant’s recent appeal hearing at the High Court. The Panel did not go behind or reopen the decisions made by previous panels.
22. The Panel decided that the Registrant has satisfied the technical aspects of condition 3. In his portfolio and his submission to the Panel the Registrant demonstrated his technical knowledge base. However, the Panel was not satisfied that the Registrant has fully satisfied condition 3. In the Panel’s opinion the Registrant has not fully complied with all aspects of condition 3, firstly because the documentation provided by the Registrant does not in the Panel’s view constitute an adequate piece as stipulated in the condition and secondly he has not  practised as a Biomedical Scientist or undertaken any related employment in that field and has therefore been unable to demonstrate how he has translated theory into practice.
23. The Registrant has also been unable to satisfy condition 4 because he has not obtained employment.
24. The barrier to the Registrant’s full compliance with the Conditions of Practice is his lack of employment.
25. The Panel did not accept the Registrant’s submission that the Conditions of Practice Order is an insurmountable barrier which prevents him obtaining employment. The evidence the Registrant presented to the Panel in respect of his job search was limited and it did not confirm that that the conditions of practice were the cause of the Registrant’s lack of success. In the Panel’s view the conditions are not overly onerous. There is no longer a requirement for ongoing supervision; the only restriction is that the Registrant must provide a reference from a future employer.
26. The Registrant has not practised as a Biomedical Scientist for over four years. Although there has been some change since the last review, the Panel was not persuaded that there has been sufficient compliance with the conditions of practice to reassure the Panel that the Registrant is currently safe to return to practise without restriction. The Panel identified a continuing risk to the public if the Registrant were permitted to return to unrestricted practice with no further monitoring. The Panel therefore decided that the Registrant’s fitness to practise remains impaired.
27. The Panel considered the options of taking no action or imposing a Caution Order, but decided that they were not sufficient to address the risk the Panel has identified.
28. The Panel decided that the appropriate and proportionate order is to vary the current Conditions of Practice Order. The Panel decided to reformulate condition 3. The reformulated condition is less onerous and less specific. The Panel made no change to conditions 1, 2, or 4.
29. The Panel considered the more punitive sanction of a Suspension Order, but decided that it would be unnecessary and punitive. It would be a barrier to the rehabilitation of the Registrant in the profession.
30. The Panel decided that the Conditions of Practice Order should be for one year to allow the Registrant sufficient time to find a job as a Biomedical Scientist. If the Registrant is able to demonstrate full compliance with the Condition of Practice Order it is open to him to apply for an early review of the Conditions of Practice Order.
31. The Panel noted that the Registrant has previously been reminded that all options remain open to future review panels including the option of a Striking Off Order. The continued passage of time could in the future become a barrier to the rehabilitation of the Registrant. A future review Panel would therefore be assisted by evidence of the proactive steps the Registrant has taken to increase the likelihood of employment and to secure employment.

Order

The Registrar is directed to annotate the Register to show that for a period of 12 months, you (Mr Desmond Estephane) must comply with the following Conditions of Practice:
1) You must promptly inform the HCPC of the identity of your employer if you take up work as a Biomedical Scientist;
2) 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 application);
3) You must provide a reflective piece on how you will satisfy the return to practice requirements as set out in the HCPC booklet “Returning to practice”, including any training courses or other CPD you feel would be of benefit to you.
4) You must provide a professional reference from your future line manager or employer, which demonstrates your conduct and competence in the workplace, your training and development, and which includes copies of your supervision records.

Notes

No notes available

Hearing history

History of Hearings for Mr Desmond Estephane

Date Panel Hearing type Outcomes / Status
20/12/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
06/04/2017 Conduct and Competence Committee Review Hearing Conditions of Practice