Mr Nicholas A Mitchell
During the course of your employment as a Biomedical Scientist with Dumfries and Galloway Royal Infirmary, you:
1. Between 2010 and 15 August 2015, behaved in a bullying and/or threatening and/or intimidating and/or inappropriate manner towards colleagues, in that:
a) on or around 26 January 2010, you:
i. shouted aggressively at staff;
ii. ripped information from the walls of the department of Haematology and Blood Transfusion;
iii. moved and/or threw centrifuges around the benches.
b) on or around 17 June 2015, when addressing colleagues in the Blood Bank, said “am I talking a foreign language?! Or am I working with a bunch of ******* thickos?!” or words to that effect.
c) on or around October 2014 and/or on various dates that are not known, made inappropriate comments about Colleague B’s footwear, in that you:
i. described Colleague B’s high-heeled shoes and/or boots as ‘sexy’ because you were ‘a pervert’, or words to that effect;
ii. referred to Colleague B’s flat shoes as ‘lesbo’ shoes, or words to that effect.
d) on or around 13 December 2014, questioned Colleague B about her relationship status;
e) on 5 May 2012, sent a text message to Colleague B describing a colleague as ‘a ***** lying arse wipe ***** as far as I am concerned’;
f) on 14 January 2015 discussed personal information about Colleague B’s relationship status with Colleague C;
g) on 15 January 2015, asked Colleague H ‘what her (Colleague B’s) ******* problem is’, or words to that effect;
h) on 22nd January 2015 telephoned Colleague B and told her to come into work when her annual leave had been agreed;
i) in Colleague B's presence, referred to having a ‘hit list’ of people whom you ‘would get your own back on’, or words to that effect;
j) on or around 20 August 2015, in Colleague D's presence:
ii. acted in a threatening and/or aggressive manner;
iii. made derogatory comments about clinical and management staff.
k) on 26 August 2015 confronted and criticised your senior staff;
l) on unknown date, in the presence of Colleague D, threatened to slash Colleague C’s tyres;
m) on an unknown date, referred to Colleague F as ‘a ****’ in the presence of Colleague D.
2. In around May 2014, asked Colleague A to sign off your competency log although you:
a) had not undertaken the required re-training;
b) had not spent the appropriate time with the Blood Bank to renew your competency to an appropriate level.
3. The actions described in particular 2 is dishonest.
4. The matters described in particulars 1 to 3 constitute misconduct.
5. By reason of your misconduct and your fitness to practise is impaired.
Service of Notice of Hearing
1. The Panel was informed by the Hearings Officer that notice of this hearing was sent to the Registrant’s registered address by letter dated 18 August 2017.
2. The Panel received and accepted the advice of the Legal Assessor. The Panel was satisfied that the service of the letter dated 18 August 2017 had complied with the service requirements of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).
Proceeding in absence
3. Mr Paterson for the HCPC applied for the hearing to proceed in the Registrant’s absence. He submitted that this hearing had been notified in August 2017, some 5 months ago. Mr Paterson submitted that it was in the public interest to proceed and that he had two witnesses present today (29 January 2018) and another three to be heard tomorrow (30 January 2018) and two witnesses on 31 January 2018.
4. The Panel received and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution. The Panel had regard to the guidance given in the HCPTS Practice Note, “Proceeding in the absence of the Registrant" dated March 2017 and to the House of Lords in R v Jones  UKHL 5. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care.
5. The Panel noted the history of this case and the communication received from the Registrant explaining his reason for his non-attendance and also his detailed submissions in response to the allegations. There was no request for an adjournment from the Registrant.
6. The Panel considered the information received from Mr Paterson on behalf of the HCPC and considered the Registrant’s written submissions, prepared and submitted by his Solicitor, and his acknowledgement of what the Panel would have available to consider in his absence. The Panel accepted the advice of the Legal Assessor.
7. The Panel took account of the Registrant’s interest and the interest of justice as well as the public interest in the expeditious disposal of this case. Witnesses had been warned and were in attendance and the Panel was mindful of the already lengthy period since some of the events in question took place. Taking all of these matters into consideration, as well as the fact that the Registrant had not sought an adjournment, the Panel decided that it was in the interest of justice to proceed with the hearing in the absence of the Registrant.
Decision on application to amend Particulars
8. Mr Paterson applied to amend several of the particulars and numbering of the allegation.
He applied to amend particulars 1,1a)i,1),a)ii and 1)a)iii; 1.b),1c),1c)i.b), 1c)i, 1.d); 1.e), 1.f), 1.g), 1.h), 1.i), 1i)j), 1i)k), 1i)l , 1i)m, 2, 3, 4 and 5 of the allegation by omitting the stem of the allegation numbered 1 and changing the subsequent lettering to become numbering.
9. He submitted that the amendments were necessary to clarify the case against the Registrant. The proposed amendments had been notified to the Registrant on 8 March 2017 and no observations in respect of the proposed amendments have been received from the Registrant.
10. The Panel received and accepted the advice of the Legal Assessor that an amendment to the allegation could be made, provided no injustice was caused. The Panel noted that the Registrant had been made aware of the proposed amendments and had made no observations. The Registrant had made submissions to the allegation as amended and this confirmed to the Panel that the Registrant was certainly aware of it.
11. The Panel considered that the proposed amendments did not alter the nature of the case against the Registrant but merely clarified the allegation.
12. Accordingly the Panel was satisfied that the amendments would not cause any prejudice to the Registrant and determined they should be allowed.
Proceeding in Private
13. Mr Paterson made an application under Rule 10(1)(a) of HCPC (Conduct & Competence) (Procedure) Rules 2003 for the hearing to proceed in private where any personal or private matters relating to the Registrant may be heard in evidence.
14. The Panel received advice from the Legal Assessor. The Panel considered the submission made by Mr Paterson and determined in the exercise of its discretion that the Hearing would proceed in public except where the evidence related to health or personal private matters and these would be heard in private.
15. The Registrant, a Biomedical Scientist, was employed as a senior manager in the Haematology and Blood Transfusion (and laterally Blood Science) Department. He was employed in a senior line management position at Dumfries and Galloway NHS Trust Royal Infirmary. The allegation relate to the Registrant’s inappropriate behaviour towards colleagues and failure to keep high standards of personal conduct. The allegation of dishonesty relates to the Registrant asking a colleague to sign off his competency log despite the fact she had not witnessed his competencies.
Decision on Facts
16. The Panel is mindful that the burden of proving the allegations rests throughout upon the HCPC and the standard of proof is the civil standard based upon the balance of probabilities. There is no burden on the Registrant to prove anything and the Panel has drawn no adverse inference from the Registrant not attending this hearing. The Panel has given the words and phrases contained within the allegation their ordinary English meaning.
17. The Panel had the benefit of hearing from seven live witnesses:
• MC - Internal Investigation Officer
• FP - Colleague A - Senior Biomedical Scientist
• KK - Colleague B - Biomedical Scientist
• CH - Colleague C - Biomedical Scientist (by telephone link)
• MB - Colleague D - Quality Manager
• DC - Colleague G - Clinical Director
• KE - Colleague H- Biomedical Scientist
18. The HCPC submitted that the Panel should also take account of the signed statement of witness KS. The Panel accepted the advice of the Legal Assessor in respect of the weight to be given to hearsay evidence.
19. The Panel found Moira Cossar (MC) to be a helpful witness. MC was the Investigation Officer and author of the 2016 Investigation Report prepared for NHS Dumfries into a Datix incident in the laboratory for which the Registrant was responsible. The Panel found MC to be a credible witness, she answered questions to the best of her ability. The Panel however found that her evidence was not always reliable as her answers were sometimes speculative.
20. The Panel considered Colleague A to be clear and direct in giving evidence. She admitted what she had seen or not seen with regard to the “competency log.” Her evidence was credible and reliable. Colleague A gave the Registrant recognition for having supported her in her career. She acknowledged the support she received and stated that initially their relationship was generally positive.
21. The Panel found Colleague B to be a credible witness. She answered questions in an open manner and did not speculate. She was reliable in her recollection of events.
22. Colleague C gave evidence by telephone. The Panel was therefore not able to assess his visual demeanour. The Panel considered Colleague C was a little guarded on some matters; however, Colleague C acknowledged that he and the Registrant had generally enjoyed a good relationship. The Registrant had helped him with some matters both within and outside the work setting. The Panel found his evidence both reliable and helpful.
23. The Panel found Colleague D to be credible, reliable and open. He had a good recollection of events, did not speculate and could recall specific details.
24. Colleague G, a Consultant and Clinical Director had a good recollection of the events in question and he communicated it clearly. He did not speculate. He seemed more detached than others and this may be because he did not normally work in the same physical space as the Registrant and also was in a position of seniority to the Registrant. He was credible, reliable and he was able to speak to his observations of the Registrant’s general conduct.
25. Colleague H gave a balanced account of events. She spoke positively about how the Registrant had helped her with her career to become a Biomedical Scientist. She did not speculate outside her recall.
26. Each one of the colleagues’ evidence demonstrated concern and unhappiness about the working environment and atmosphere that had continued during the period of the allegation. The Panel found the witnesses accounts to be fair and balanced.
27. The Panel also had the benefit of seeing contemporaneous and near-contemporaneous documentary material exhibited by these witnesses in the HCPC bundle as well as the signed witness statement of Kevin Smith. Although the Registrant was not in attendance, the Panel noted that there was documentary evidence in the bundle giving his account of events. In particular there were two investigatory interviews that appeared to have been signed by him as well as submissions in response to each allegation. There was also a signed letter from the Registrant dated 24 January 2018.
28. These were submitted by the Registrant’s legal representative in advance of the Hearing. The Panel found the material unreliable, inconsistent and in some instances lacking in credibility. The Panel noted that whilst the Registrant strongly denied using certain offensive terms, there was documentary evidence, by way of transcripts of text messages, which directly contradicted his assertions. There was little recognition of the relevance of the Registrant’s position of power in relation to many of the colleagues to whom the particulars relate.
29. In the Registrant’s absence the Panel and the Legal Assessor sought to ask questions of the HCPC witnesses that they thought the Registrant may have wished to put.
Particular 1a) – Not Proved
During the course of your employment as a management level Biomedical Scientist with Dumfries and Galloway NHS Trust Royal Infirmary, you:
1) On or around 26 January 2010, you:
a) raised your voice at staff;
30. The Panel heard evidence from Colleague D that the Registrant had entered the laboratory and shouted in anger while inspecting the lab to ensure it would comply with the requirements of an external assessment. Colleague A did not give evidence that she had heard the Registrant shouting or raise his voice. The Panel noted that the Registrant denied this allegation.
31. The Panel noted that the evidence of witnesses D and A differed and was not satisfied that the HCPC had proved its case in respect of this particular.
Particular 1b) – Proved
1) On or around 26 January 2010, you:
b) ripped information from items and/or the walls of the department of Haematology and Blood Transfusion;
32. The Panel heard evidence from witnesses A and D that the Registrant had entered the laboratory and ripped information from items and/or the walls of the department of Haematology and Blood Transfusion while inspecting the laboratory to ensure it would comply with the requirements of a Clinical Pathology Accreditation inspection. The Panel noted that the Registrant denied this allegation. The Registrant stated that having already removed the uncontrolled documentation the previous day he once again removed the documents from the notice board. He submitted that he did this in a controlled manner and did not rip them from the board.
33. The Panel was satisfied with the evidence of witnesses A and D and found this particular proved.
Particular 1c)- Proved
1) On or around 26 January 2010, you:
c) moved and/or threw centrifuges around the benches in an aggressive manner.
34. The Panel heard evidence from colleagues A and D that the Registrant had entered the laboratory and moved a centrifuge around the benches in an aggressive manner in the department of Haematology and Blood Transfusion, while inspecting the laboratory to ensure it would comply with the requirements of a Clinical Pathology Accreditation inspection. The Panel noted that the Registrant denied this allegation. In his written submission he stated that the centrifuge was small and not particularly heavy so the Registrant simply moved it to the correct location. The Registrant stated that he did not shout or throw the centrifuge anywhere. The witnesses both spoke to the centrifuges being heavy and the Registrant appearing red in the face as he aggressively moved the centrifuge.
35. The Panel was satisfied with the evidence of witnesses A and D and found this particular proved in relation to the Registrant moving a single centrifuge.
2. In or around June 2015, whilst in the Blood Bank, when referring to a colleague and/or colleagues said “am I talking a foreign language?! or am I working with a bunch of ******* thickos?!” or words to that effect.
36. Witness B gave evidence that whilst she was working alone in the Blood Bank the Registrant had entered using the words “am I talking a foreign language?! or am I working with a bunch of ******* thickos?!” Witness B thought the Registrant may have said it in anger in response to a junior colleague asking for a computer password to be reset. The Registrant denied this charge stating he had no recollection of this conversation and would not have used this phrase.
37. The Panel was satisfied with witness B’s evidence and that the Registrant’s conduct was consistent with a pattern of behaviour and so found this particular proved.
Particular 3.a Proved
3. On an unknown date or dates made comments about Colleague B’s footwear, in that you:
a) described Colleague B’s high-heeled shoes as “‘sexy’”;
38. The Registrant stated that he and Colleague B were friends out of work. Whilst not specifically denying this particular, the Registrant stated he would occasionally comment on Colleague B’s footwear. This was in the context of a friendship, “as friends do”. The Registrant stated that at no time when these comments were made did colleague B make it known to the Registrant that this was uncomfortable for her.
39. The Panel heard direct evidence from Colleague B about the Registrant commenting that her shoes were ‘sexy’. She described in some detail what the Registrant had said and the regular nature of such comments. Colleague B also indicated to the Panel the adverse effect these comments had on her, and strongly refuted the Registrant’s version of events that they were simply comments between friends. During his oral evidence Colleague C stated that he could recall the Registrant making comments about female colleagues’ footwear. He also gave evidence in support of Colleague B’s account and stated the comments by the Registrant resulted in Colleague B changing her style of footwear. The Panel also saw the transcript of a text message from the Registrant to Colleague B in which he stated ‘sexy heels is a must!!!’
40. The Panel accepted the evidence of colleagues B, C and H and found this particular proved.
Particular 3.b Proved
3. On an unknown date or dates made comments about Colleague B’s footwear, in that you:
b) said that you liked long boots and things like that because you were “‘a pervert’”, or words to that effect;
41. The Panel considered the evidence of colleague B who stated the Registrant used the word ‘pervert’ in reference to himself. They also had regard to a text message received in evidence. This had been sent from the Registrant to Colleague B. It stated “Lol u know I am a perv”.
42. Taking account of Colleague B’s evidence and the language of the text message sent by the Registrant, the Panel was satisfied that this charge was proved.
Particular 3.c Proved
3. On an unknown date or dates made comments about Colleague B’s footwear, in that you:
c) referred to Colleague B’s flat shoes as ‘lesbo’ shoes’, or words to that effect.
43. The Panel noted the text message produced in evidence that was sent by the Registrant to Colleague B referring to ‘no lesbo shoes’ and the Panel was satisfied that given the Registrant’s use of the language in the text, as well as the oral evidence of Colleague C, who stated that the Registrant had used this term, the Panel found this particular proved.
Particular 4. Proved
4. On or around 13 December 2014, sent a text message to Colleague B regarding her relationship status;
44. The Panel was satisfied that having considered the Registrant’s admission to this particular, the text produced in evidence and witness B’s evidence about the text message, this particular is proved.
Particular 5 - Proved
5. On 5 May 2012, sent a text message to Colleague B describing a colleague as ‘a ***** lying arse wipe shite as far as I am concerned’;
45. Witness B gave evidence that she had received a text to this effect and this text dated 5 May 2012 was produced to the Panel.
46. The Panel was satisfied that having considered witness B’s evidence and the text message and the Registrant’s admission, this particular was found proved.
Particular 6 - Proved
6. In or around January 2015 discussed with Colleague C personal information about Colleague B’s relationship status and/or sexual behaviour.
47. Colleagues B and C both gave credible evidence confirming that information of a personal nature had been shared by the Registrant with colleague C about B’s alleged relationship with a third party. Witness C had not considered it appropriate but accepted it was not done maliciously. Witness B stated she had been extremely upset at this inappropriate discussion about her and her private life.
48. The Panel took account of the Registrant’s admission and accepted Colleagues B and C’s evidence. The Panel had sight of the lengthy text message exchanges between the Registrant and Colleague B on this topic in which it was clear that Colleague B was unhappy with the Registrant’s behaviour. Taking all the evidence into account, the Panel found this charge proved.
Particular 7 - Proved
7. On or around 15 January 2015, when referring to Colleague B asked Colleague H “‘what’s her ******* problem?’”, or words to that effect;
49. Colleague B stated in her evidence that the Registrant knew she was in the store room upset as he had just opened the door to it and seen her distressed. Colleague H gave clear ,credible evidence that she had heard the Registrant state “‘what’s her ******* problem?’”, when referring to Colleague B.
50. The Panel took account of the Registrant’s denial but accepted Colleague B and H’s evidence and so found this particular proved.
Particular 8. Proved
8. On 22nd January 2015 telephoned Colleague B and said “So we’ll be seeing you in work this morning won’t we” or words to that effect,
51. Colleague B gave evidence in a credible way. She provided a detailed background as to why she was up all night and her resultant tiredness. She stated she had phoned the office and her annual leave for that day was approved. Colleague H spoke to Colleague B’s distress which was noted during Colleague B’s phone call. She stated the Registrant had then called her. Colleague B stated she told the Registrant about her dog’s death that had occurred some hours earlier and that she had had not slept. The Registrant had stated “So we’ll be seeing you in work this morning won’t we” or words to that effect on at least two occasions. Colleague B had then attended at the laboratory and was sent home as she was unfit for work.
52. The Panel preferred colleague B and H’s evidence to that of the Registrant and so found this particular proved.
Particular 9 Proved
9. On an unknown date or dates referred to having a ‘hit list’ of colleagues
53. This particular was denied. The Panel heard evidence from Colleague B on this matter, and were taken to the specific text messages dated 5 May 2012, stated to be from the Registrant which stated …… “four down eight to go” and “Hils in 2yrs, thatl be 5”. Colleague C, also gave evidence to hearing the Registrant refer to having a ‘hit list’ quite a few times.
54. The Panel took account of the Registrant’s denial but accepted colleagues B and C’s evidence and had regard to the implications of the text message from the Registrant referring to having a “list” and so found this particular proved.
Particular 10i - Proved
On or around 20 August 2015, in Colleague D's presence:
55. The Panel heard evidence from colleague D who was present with the Registrant on 20 August 20115 and gave evidence that the Registrant had sworn.
56. The Panel noted the Registrant’s denial but was satisfied that Colleague D was giving an accurate account of what happened.
57. The Panel took account of the Registrant’s denial but preferred Colleague D’s evidence and so found this particular proved.
Particular 10ii - Proved
On or around 20 August 2015, in Colleague D's presence:
ii. acted in a threatening and/or aggressive manner;
58. Colleague D gave evidence that, as the Registrant stated, He and the Registrant did air their frustrations regarding day to day work matters to assist one another, however the Registrant’s behaviour on or around 20 August 2015 was threatening and aggressive. Colleague D gave evidence that he did not feel comfortable and felt threatened.
59. The Panel took account of the Registrant not admitting this particular but preferred colleague D’s evidence and so found this particular proved.
Particular 10iii. Proved
On or around 20 August 2015, in Colleague D's presence:
iii) made derogatory comments about clinical and management staff.
60. Colleague D gave clear evidence that the Registrant had made derogatory comments about clinical and management staff. The Registrant denied that he made any derogatory remarks or comments about clinical and management staff. The Registrant stated that he had a very good working relationship with both clinical and managerial line managers, this was contradicted by the evidence of witnesses and the documentary evidence.
61. The Panel took account of the Registrant’s account but accepted Colleague D’s account and so found this charge proved.
Particular 11 - Proved
11) On 26 August 2015 inappropriately confronted and blamed and/or criticised colleagues;
62. The Registrant submitted that during a meeting on 26 August 2015 his ‘Senior Staff admitted to the Registrant that they had not been as vigilant as they should have been with regards to ensuing that competency logs were completed.’
63. The Registrant stated he was supportive of the staff and pointed out that changes within the department, new instrumentation and new hospital work had taken precedence. The Registrant stated the comments reported by Colleague D had been taken out of context.
64. The Panel heard evidence from Colleague D and Colleague G, and who had both attended the meeting. Colleague D and Colleague G gave consistent and credible evidence that the Registrant had blamed his junior staff and criticised colleagues. Colleague G was surprised and concerned at the Registrant’s behaviour in this regard and considered it unprofessional. Colleague G said that the Registrant’s behaviour was aggressive, defensive and odd and he was blaming others for a range of matters including, the loss of his competency log. Colleague G said this behaviour was not unusual for the Registrant but the silence and fear amongst the staff as a result, was palpable.
65. The Panel accepted the description of events given by Colleagues D and G who both gave a clear account. Colleague D had previously enjoyed a good relationship with the Registrant. The Panel preferred Colleague D and G’s evidence and found particular 11 proved.
Particular 12 Proved
12) On an unknown date, in the presence of Colleague D, threatened to slash Colleague C’s tyres;
66. The Panel heard the evidence of Colleague D who had heard the Registrant making the comment about Colleague C. Colleague C said that whilst the comment had been reported to him, he thought that the Registrant may have said this as an inappropriate joke but without malice.
67. The Panel noted the the Registrant denied that he made this comment, but preferred Colleague D’s evidence and found particular 12 proved.
Particular 13 - Proved
13) On an unknown date, referred to Colleague F as “‘a *****’” in the presence of Colleague D.
68. The Panel noted the Registrant denied this charge. The Registrant stated he had never referred to colleague F, or other colleagues, as a “*****”. The Registrant stated that this was evidenced by the fact that he had been supportive to colleague F throughout her career progression to Senior Biomedical Scientist.
69. The Panel preferred the evidence of Colleague D and Colleague G who stated that the Registrant had made a number of negative comments about Colleague F. Hence the Panel found particular 13 proved.
Particular 14 Proved
14) In 2014, asked Colleague A to sign off your competency log, although you knew that Colleague A had not witnessed your competencies.
70. The Panel noted the Registrant stated he specifically asked Colleague A if she was okay with signing the document and she said yes. The Registrant stated the method of competency recording at the time was for staff members to sign the log if they considered themselves to be confident and competent within the section. This was based on their own professionalism and the fact that they were required to ensure their competency was maintained for registration.
71. Colleague A gave clear, credible evidence that the Registrant had asked her to sign off his competency log. She accepted what she did was wrong and she should have witnessed some of the competencies but she had not. She stated she had signed the log but admitted she should not have. She stated she was too frightened to refuse. Colleague A stated that it was important that certain competencies were observed to ensure competent practise in relation to patient safety.
72. The Panel preferred Colleague A’s evidence and found this particular proved.
Particular 15 Proved
15) the actions described in charge 14 were dishonest.
73. The Panel noted that the Registrant denied this particular and stated that his was not an attempt to mislead anyone, to falsify documents or to make it look like he had done things he had not. He was simply following policy as it was at the time. He stated this was common practice in the workplace at the time. He submitted it was not right, but it certainly was not dishonest.
74. Moira Cossar stated that when she had carried out the investigation she felt that staff were not clear as to the process for completing the competency log. However, the panel also heard evidence from Colleagues A, D, H and KS (via his witness statement) that the Registrant was very aware that some of the competencies had to be witnessed.
75. The Panel in considering the Registrant’s account bore in mind, in the first place, that it was made by a person of previous good character, which may mean that he was less likely than otherwise might be the case, to have committed this dishonest act.
76. The Panel found Colleague A, D and H to be credible witnesses and did not accept the Registrant’s account that he had followed the correct procedure. The Panel was satisfied the Registrant did know that some of the competencies had to be witnessed and knew that to have Colleague A sign the competency log as if it had been correctly completed in compliance with the SOP (which the Registrant said he wrote) and on different dates to make it appear more credible, was dishonest. The Panel also notes that when asked by Colleague A to produce his competency log, the Registrant stated that he left it at home and then two days later stated he could not find the log.
77. The Panel found this particular proved.
Particular 16 - Proved
16) Your conduct towards colleagues as described in particulars 1 and/or 2 and/or 3 and/or 4 and/or 5 and/or 6 and/or 7 and/or 8 and/or 9 and/or 10 and/or 12 and/or 13 was inappropriate.
78. The Panel considered the particulars and were satisfied the Registrant’s conduct as described in in particulars 1b) and 1c) and 2 and 3 and 4 and 5 and 6 and 7 and 8 and 9 and 10 and 12 and 13 was inappropriate. This was not behaviour expected of a professional.
Particular 17 - Proved (with the exception of particulars 1a),4, 7 and 12.
17. The matters described in particulars 1 to 16 constitute misconduct.
79. The Panel considered whether the facts previously found proved amounted to misconduct, and if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.
80. The Panel considered the submissions made by Mr Paterson on behalf of the HCPC. He identified a number of standards which he submitted the Registrant had breached. He also submitted that the facts if found proved which had been found proved, including dishonest behaviour, amounted to misconduct and that the Registrant's fitness to practise is currently impaired by reason of that misconduct.
81. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that findings of misconduct and impairment were matters for the independent judgement of the Panel, and that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to misconduct and that what has to be determined is current impairment, that is looking forward from today.
82. The Panel first considered whether to consider the findings of fact for each particular individually, to establish whether there was misconduct or to consider the findings of fact cumulatively, to consider whether there was misconduct.
83. The Panel had regard to the case of Dr Luise Ruth Schodlok and The General Medical Council  EWCA Civ 769, LJ VOS at paragraph 63.
“I do not think that we should opine on the theoretical possibility that, in a particular case on different facts, a series of non-serious misconduct findings could, taken together, be regarded as serious misconduct. For my part, I would not think that the possibility of taking such a course in a very unusual case on very unusual facts should be ruled out, but I would prefer to leave the argument for a case in which such facts were said to arise.”
84. The Panel considered that this was not a very unusual case and it did not contain very unusual facts and hence determined to consider the Particulars individually.
Decision on Grounds
85. The Panel considered whether the facts found proved in each one of the particulars at 1b), 1c), 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 individually amounted to misconduct and concluded that they did, with the exception of particulars 1a), 4, 7 and 12. This was not a case involving an isolated incident. The Panel considered that the facts found proved demonstrated a pattern of behaviour on the part of the Registrant towards colleagues, and in particular, the women he line managed at work, all of whom were reliant upon him for his clinical expertise and management. The Panel was of the view that the Registrant had abused his position of power as a senior member of staff, acted inappropriately and engaged in serious professional misconduct, including dishonesty, involving members of staff who were unlikely to make a complaint against him due to the “culture of fear” he had engendered.
86. The Panel found misconduct where the Registrant, a Senior Manger had exhibited aggressive behaviour in front of junior colleagues resulting in them being scared and frightened.
87. The Panel found misconduct where the Registrant had sworn in relation to a male junior colleague. This was witnessed by a female junior colleague.
Particular 3, 6
88. The Panel found misconduct as there had been an abuse of power towards junior colleagues with inappropriate comments relating to the Registrant’s female colleagues’ clothes, shoes and relationships. These could not be addressed by the junior colleagues due to the balance of power with the Registrant.
89. The Panel found misconduct where the Registrant had engaged in sending a totally inappropriate text message in respect of a colleague who on a previous occasion had been involved in an investigation into the Registrant’s conduct. The Registrant suspected the Colleague of trying to ruin his career by giving evidence to the investigation.
90. The Panel found misconduct in that the Registrant insisted that Colleague B, who he managed, should attend work when she was unfit to do so. The Registrant had failed to demonstrate a duty of care to a fellow professional as well as to the public who were exposed to the risk of someone performing scientific tests who was unfit to do so. This would give rise to a risk of making mistakes that would expose the public to harm.
91. The Panel found misconduct where the Registrant, a senior line manager had made comments which created a culture of fear. Staff understood that those who had given evidence to a prior investigation were on this list and colleagues worried that if they did not behave in a certain way they would be added to the list.
92. The Panel found misconduct where the Registrant had conducted himself so inappropriately in relation to the Quality Manager who was undertaking his audit responsibilities. Colleague D reported this behaviour to the Registrant’s line manager. The Registrant’s behaviour threatened the efficient exercising of the quality manager’s duty to monitor the system of work. This had the risk of exposing the public to a lack of protection from poor internal practices.
93. The Panel found misconduct where the Registrant had not accepted responsibility for his own failings in not producing his competency log at the meeting on 26 August 2015. The Registrant also sought to blame his junior colleagues for this personal failure. The Registrant acted bizarrely and aggressively, shouting and bullying colleagues and banging the table.
94. The Panel found misconduct where the Registrant made a totally inappropriate gender based comments about Colleague F.
Particulars 14 and Particular 15
95. The Panel found misconduct where the Registrant was dishonest in by his actions in asking Colleague A to sign off his competency log although he knew that she had witnessed his competencies.
96. The Panel was of the view that the Registrant’s conduct had breached the following HCPC Standards of Conduct, Performance and Ethics (2012 version):
• 3 - You must keep high standards of personal conduct;
• 5 - You must keep your professional knowledge and skills up to date;
• 7 – You must communicate properly and effectively with…other practitioners;
• 10 - You must keep accurate records;
• 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.
97. The Panel was of the view that the Registrant’s conduct had breached the following Standards Of Proficiency for Biomedical Scientists 2012
1a.2 be able to practise in a non – discriminatory manner
1b.1 be able to work, where appropriate, in partnership with other professionals, support staff, service users and their relatives and carers.
1b.3 be able to demonstrate effective and appropriate skills in communicating information, advice, instructions and professional opinion to colleagues, service users, their relatives and carers.
98. In the Panel’s judgement the Registrant’s conduct was serious and included dishonesty. It therefore, amounted to misconduct.
Decision on Impairment
99. The Panel had regard to the HCPTS Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.
100. The Panel first considered the ‘personal component’.
101. Although the Registrant submitted written comments in respect of the particulars, he had not simply denied the allegation, but had submitted response to the allegation in which he sought to portray much of the behaviour simply as ‘banter’ and had apportioned blame to others. The Registrant has still not recognised that his actions in having the competency log signed in the absence of a witnessed audit was dishonest.
102. The Registrant had the opportunity to reflect on the allegations and his behaviour. He could have attended suitable courses to develop some insight into his behaviour and commence changes. Even in the most recent correspondence dated 24 January 2018 the Registrant expressed ”remorse for my colleagues and that I have caused them to be upset by my actions…I was not aware that I was causing such anxiety and upset “….However the Registrant continued to deny some of the particulars where the Panel has found that he caused distress to his colleagues. Taken as a whole, the Registrant’s submissions demonstrated that there has been very limited development of insight with no evidence of remediation.
103. There is, therefore, no evidence before the Panel that the Registrant has meaningfully reflected on his actions or acknowledged his wrongdoing. There is no evidence of steps towards remediation demonstrated by the Registrant. In all the circumstances, the Panel concluded that the Registrant lacked insight into the seriousness of his behaviour, and in particular the impact it had on Colleagues A, B, C and D. It was clear to the Panel that each of Colleagues A, B, C and D had been made to feel uncomfortable and/or scared by the Registrant’s behaviour.
104. In all the circumstances, the Panel was of the view that, in the absence of insight there remained a high risk of repetition that the Registrant would behave in this way again. It therefore concluded that in respect of the personal component, the Registrant’s fitness to practise is currently impaired.
105. The Panel went on to consider the ‘public component’.
106. The Panel was mindful of the public awareness with regards to inappropriate behaviour by way of intimidating, discriminatory or offensive behaviour in the workplace by persons in authority. In the Panel’s judgement, the Registrant, by his dishonesty and misbehaviour towards work colleagues, had brought the profession into disrepute. Colleagues A, B and C were less experienced and more junior members of staff, and the Registrant was an experienced and highly skilled member of staff who had caused Colleagues A, B, C and D a great deal of discomfort and created a ‘climate of fear’ with his behaviour.
107. In the Panel’s view, the public would expect the regulator to take action in order to mark that the Registrant’s conduct was unacceptable for a professional to behave in such a way towards other members of staff. The Panel therefore concluded that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made in this case. Similarly, the Panel concluded that professional standards would be undermined if it did not make a finding of Impairment. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction
108. Having concluded that the Registrant’s current fitness to practise is impaired, the Panel went on to consider what would be the appropriate, proportionate and sufficient sanction or other outcome in this case.
109. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive, but to protect members of the public and to safeguard the public interest. This includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.
110. The Panel considered that the following were mitigating factors in this case:
• The Registrant was of previous good character, with no previous regulatory findings against him;
• There appeared to be a blurring of boundaries in his workplace whereby personal and professional relationships overlapped;
• The Registrant’s increased workload appeared to increase his stress levels and cause a deterioration in his workplace behaviour;
• There was consistent and reliable evidence from witnesses that (i) at various times the Registrant has provided valuable support to his colleagues’ professional development and (ii) he is a skilled biomedical scientist.
111. The Panel considered that the following were aggravating factors:
• The Registrant’s bullying behaviour had a detrimental impact on his colleagues which included leaving some of them feeling frightened and causing at least one female colleague to change the way she dressed for work;
• The Registrant’s inappropriate behaviour appeared to stem from his inability to identify professional and social boundaries and his failure to respect the dignity of his Colleagues;
• He had acted in a discriminatory way towards colleagues;
• A colleague had made the Registrant aware of his unprofessional conduct but this had little impact on his behaviour;
• The Registrant’s conduct took place over a long period of time;
• The Registrant’s dishonesty and behaviour towards others had the potential to negatively affect patient safety;
• The inappropriate behaviour had an impact on Colleagues A, B and D leaving them feeling frightened, uncomfortable and demoralised;
• The Registrant’s dishonesty was self-motivated. He used his position of power to put pressure on Colleague A, a member of his staff, to countersign his competency log.
• This was an abuse of trust of the Registrant’s position, in the course of his employment as an experienced member of staff;
• There is a lack of insight or acknowledgement of wrongdoing on the part of the Registrant.
112. The Panel does not consider the options of taking no further action or mediation to be appropriate or proportionate in the circumstances of this case. Neither would address the identified risks, including that of the high risk of repetition. The case is also too serious, and either course would not meet the wider public interest.
113. The Panel does not consider that a Caution Order would meet the criteria as set out in paragraph 28 of the Policy which reads: ‘A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the Registrant has shown insight and taken appropriate remedial action’. As previously found, this was not an isolated incident, rather a pattern of behaviour, in addition there is a finding of dishonesty. There was no evidence of insight, remorse or remediation; and the risk of repetition is high.
114. The Panel next considered a Condition of Practice Order. The Panel had regard to paragraph 33 of the Policy which reads: ‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so.’ In light of the Registrant’s lack of insight into his behaviour, the Panel could not be satisfied that the Registrant was either committed to resolve his attitude and behaviour, or could be trusted to make the effort to do so.
115. The Panel further considered paragraph 33 of the Policy which continues: ‘conditions of practice are unlikely to be suitable in cases: where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing’. In this case, the Panel has previously found that the Registrant who has only engaged to a very limited extent with the process, lacks insight into the seriousness of his behaviour, and has not acknowledged the extent of his wrongdoing, either minimising it to workplace ‘banter,’ or denying that it was anything other than friendly conversations.The Registrant has denied dishonesty and sought to defend his actions.
116. It was the Panel’s judgement that there was a high risk of repetition, given the Registrant’s lack of insight. The Panel was not satisfied that conditions would be either appropriate or proportionate. Given that the identified risk of repetition of the misconduct includes dishonesty and intimidatory behaviour and abuse of position of trust, the Panel was not satisfied that it would be possible to formulate workable conditions to both address the misconduct as well as providing appropriate protection to members of the public. In any event, Conditions of Practice would not maintain public confidence in the profession or the HCPC as its Regulator, as the case is too serious.
117. The Panel next considered a Suspension Order. The Panel had regard to paragraph 39 of the Policy which states: ‘Suspension should be considered where the Panel considers that a Caution or Conditions of Practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking-off is not merited’. In this case, the Panel had regard to the Registrant’s longstanding career ,the testimonials and his colleagues’ recognition of the high quality of his skills as a Biomedical Scientist .The Registrant has expressed remorse over some of his actions and appears likely to develop insight.The Registrant has no regulatory history and the Panel was satisfied that the Registrant could remediate and develop insight into his behaviour .The Panel was satisfied a Suspension Order was a proportionate disposal taking into account of the interests of the registrant and would serve the purpose of both protecting the public and meeting the wider public interest.
118. The Panel also had regard to paragraph 41 of the Policy, which states: ‘If the evidence suggests that the Registrant will be unable to resolve or remedy his or her failing’s then striking-off may be the more appropriate option.’
119. The Panel considered the appropriateness of a Striking Off Order but were satisfied that in the particular circumstances of this case a Striking Off Order would be punitive and disproportionate.
Order: The Registrar is directed to suspend the registration of Mr Nicholas A Mitchell for a period of 12 months from the date this order comes into effect.
The Panel imposed an Interim Suspension Order for a period of 18 months to cover the appeal period.
History of Hearings for Mr Nicholas A Mitchell
|Date||Panel||Hearing type||Outcomes / Status|
|29/01/2018||Conduct and Competence Committee||Final Hearing||Suspended|