Paul Mginah v Health and Care Professions Council

Mr Justice Poole: Introduction and Applications in the Appeal

1. Mr Mginah (“the Appellant”) is a Biomedical Scientist registered with the Health and Care Professions Council (“HCPC”). He appeals against the decisions of the panel of the Conduct and Competence Committee (“the Panel”) of the HCPC finding that his fitness to practise was impaired due to misconduct and that he should be struck off the register.

2. The Panel’s decisions were made on 23 February 2024 at the conclusion of a five day hearing. By CPR r52.21(3): “The appeal court will allow an appeal where the decision of the lower court was – (a) Wrong; or (b) Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.” By Article 38(3) of the Health Professions Order 2001 (SI 2002 No. 254), the Court’s powers on appeal are to dismiss the appeal, allow the appeal and quash the decision appealed against, substitute any other decision which the Panel could have made, or remit the case to the Panel with directions.

3. The Appellant is in his late 60s. Following the Panel’s decision he cannot work as a Biomedical Scientist but he has been able to work in medical laboratories, most recently in Dublin. He appeared at the one day appeal hearing unrepresented. He cut a dignified but forlorn figure, clutching a sheaf of papers which he later informed the Court contained personal references and evidence of training he had undergone. He sought an adjournment of the hearing of his appeal which I refused at the hearing, reserving my reasons to this written judgment. He then indicated that he wished to withdraw the appeal but also that he wanted someone to hear his case. I found it difficult to clarify what he wanted the Court to do and ultimately decided that the prudent course was to continue with the appeal given that the costs of the appeal had already been incurred by the Respondent, that the Appellant was uncertain and unclear about whether he wanted to withdraw, and that the case had been listed to be heard and all persons were present in court. The Appellant then pressed his case on appeal in his submissions and replies to the Respondent’s submissions.

4. Both before the Panel and in this appeal the Appellant has maintained that fairness requires him to rely on disclosure of documentation from his former employee, Whittington Health NHS Trust (“the Trust”), and for him to have legal representation. He contends that no-one will represent him without his first having obtained the disclosure he seeks. I note that in July 2023 he sought and obtained an adjournment of the Panel hearing in order to take steps to obtain documentation from the Trust. A timetable was set out for production of documentation by the Appellant which he then failed to meet. He was required to identify the documentation that he sought but failed to do so. The assistance of solicitors for the HCPC was made available to him but he did not take it up. He applied again for an adjournment of the first day of the hearing in February 2024 but his application was refused.

5. On 14 November 2025 by written application in this appeal, the Appellant sought further time to obtain legal representation and to secure disclosure of documents from the Trust.

6. At the outset of the appeal hearing I tried to ascertain what documents the Appellant sought from the Trust. Following discussion with him I understood that he sought documents relating to: a. Complaints from consultants and staff about him; b. Procurement by the Trust of chemicals used in the laboratory; c. The supply of laboratory equipment to the Trust; d. Health and Safety Directorate communications and internal H&S meetings. I note that he referred to the same categories of documents when seeking adjournments of the hearings before the Panel.

7. The Appellant contends that unless and until there is full disclosure of these documents, (i) no lawyer will represent him, and (ii) the Court will not be able fairly to consider his case that the allegations against him were motivated by ill-will towards him. His case is that this ill-will was generated by one or more consultants at the Trust and that his dismissal was triggered by that dislike of his character rather than his lack of competence.

8. The Appellant has now had well over two years to obtain the documentation he seeks from his former employer. He referred to communications with the Trust and with his Member of Parliament, but he has not produced any evidence showing what request for specific documentation he has made nor what the Trust’s responses have been. He told me that he understands that some of the documentation may no longer be available. If he were to seek to adduce the documentation in evidence in the appeal, he would require leave because such documentation was not before the Panel. He would have to show that he could not have obtained it earlier, that it would be important to the outcome of the appeal and that it was credible or reliable.

9. The documentation he has specified to this court would not be relevant to the appeal. As explained later in this judgment, the Panel made four findings of fact against the Appellant. He does not seek the documentation to show that the factual findings were wrong but, rather, that the allegations were borne of ill-will towards him. He told me that Health and Safety records would show that he was competent at his job which might go to the issue of impairment but the Panel’s findings on impairment were firmly grounded in the findings of misconduct made against him. There was no finding of general incompetence or unfitness due to a medical or cognitive difficulty (as the Appellant appeared to suggest during some of his submissions).

10. Given the Appellant’s lack of success in obtaining documentation in the previous two and a half years or so, there is little prospect that he would do so during the period of an adjournment of the appeal. Indeed, he himself seemed fatalistic about that.

11. I do not accept that the Appellant could not have obtained legal advice or representation without the documentation that he seeks. Again, he has had months during the appeal process to obtain representation if he wished to do so, but he has not. No evidence of any difficulties in obtaining representation has been put before the court. A competent lawyer could represent him without the documentation which, as I have noted, would not in any event be relevant.

12. This hearing has been listed for several months and the appeal has been proceeding for over eighteen months. His application for an adjournment was received on 13 October 2025 but it does not reveal any changes in circumstances or relevant developments since the appeal was listed, indeed none since it was brought in March 2024. The appeal risks becoming stale if there were an adjournment of this hearing. Costs incurred by the Respondent are already significant. Any further delay would be adverse to the interests of the HCPC and the protection of the public. I refused the application for an adjournment of the appeal at the hearing giving brief reasons which I have expanded in this written judgment.

13. After submissions from the Appellant and Mr Micklewright, at about 4pm, the Appellant informed the court that he had with him copies of references from employers and evidence of his participation in training courses. He had produced to the Panel only one reference, from his employer in Dublin, which was short and not particularly informative. On exploring the documentation with the Appellant I concluded that: a. Much of the documentation post-dated the Panel decision under appeal. b. Some employer references were from 2023 and therefore could and should have been put before the Panel but were not. The Panel hearing was conducted remotely and the Appellant said he was in Ireland and did not have the documentation with him. However, he managed to send one reference to the Panel and he had had months to prepare for the important Panel hearing. c. The documents showed his participation in some training courses in 2024 after the Panel hearing but the training was not specific to the misconduct found by the Panel. d. Some of the documentation was undated and/or unsigned and its provenance was unclear.

14. Mr Mginah was a litigant in person before the Panel. They will have noted, as have I, that he does not express himself very clearly in writing. Nevertheless, he is an intelligent man who made oral submissions to this court, as he did to the Panel, with solemn determination. Even allowing for the disadvantages he has as a litigant in person, it is quite clear that the documentation he sought to put before me was either irrelevant to the appeal – which is a review of a decision made in February 2024, not a rehearing – or was material which was available to him and which he ought to have provided to the Panel. Having seen the material which might be relevant to the appeal, such as employer references, it does not in fact add to the single reference that the Panel had. Like that reference, these further references from 2023 are short, they are not specific about the Appellant’s competence, and do not indicate an awareness by the writer of the Panel proceedings or allegations made against the Appellant (which concern events in 2017-2018). The references from 2023 appear to be relevant to when the Appellant was carrying out work which was not as a professional Biomedical Scientist but at a lower level. None of the findings by the Panel related to the Appellant’s time-keeping, his capacity for hard work, or his general character which are matters covered by these references.

15. Having regard to the principles in Ladd v Marshall [1954] 1 WLR 1489 (CA) I am not satisfied that the material would have an effect on the outcome of the case. That which pre-dates the Panel decision could and should with reasonable diligence have been put before the Panel and the Appellant has offered no satisfactory explanation of why it was not. None of the material that post-dates the Panel decision would be relevant to the appeal. The provenance and therefore credibility or reliability of some of the documentary evidence he seeks to rely upon is not established. I therefore refuse to admit the new documentation in evidence into the appeal. In the remainder of this judgment I only refer to such documentation in order to assist the Appellant to understand the decision I am making on his appeal. The Decision Under Appeal

16. The Appellant is a qualified and registered Biomedical Scientist. As a Biomedical Scientist he may conduct laboratory tests on biological samples to assist with histopathological analyses and diagnoses. In 2004, he was employed by the Trust as a Band 7 Specialist Biomedical Scientist. In 2017 he was working as a Band 5 scientist. He has been made the subject of a “Performance Objective for Reintroduction of Routine Tasks” programme from September 2017. The evidence is that even before then he was on reduced duties. It was alleged that he had been guilty of a number of clinical failings which occurred during that period and he was subsequently placed in an “Informal Capability Management” programme from 22 February 2018 to 3 April 2018 when he was moved on to a “Formal Capability Management” review. He was then dismissed by the Trust which made a referral to the HCPC regarding their concerns about the Appellant’s competence and conduct. From about 2016, the Appellant was on restricted duties meaning that he was not undertaking some of the laboratory work expected of a Biomedical Scientist.

17. Before the Panel, the Appellant faced eight factual allegations. These were allegations of errors made by him between December 2017 and July 2018. The Panel amended to allegations such that all errors were alleged to constitute misconduct. It was alleged that by reason of his misconduct, the Appellant’s fitness to practise was impaired.

18. The Panel heard evidence from the Appellant’s former line manager and that manager’s senior, neither of whom were working for the Trust at the time of the hearing. The Panel had a bundle of documents for the hearing which included reviews of the Appellant’s performance and the Trust’s Capability Management report. The Appellant was unrepresented at the hearing before the Panel. The hearing was conducted remotely. He did not give evidence either orally or in writing but he cross-examined the witnesses called by the HCPC and he made submissions. The Panel found four allegations not to be proved, and four to be proved. The allegations found proved were: a. On 15 January 2018, following replacement of the reagents in the staining machine you failed to run a control to ensure the machine was now working properly. b. In June 2018, when a fault arose with the down draft bench, you did not check the airflow readings until prompted to do so. c. Between June and July 2018 you twice requested for the same immune test to be carried out, d. From March 2018 to June 2018 you did not carry out formalin readings. The Panel found that the proven conduct amounted to misconduct and that the Appellant’s fitness to practise was impaired.

19. The Panel noted that it had evidence as to the allegation at 18(a) above from three sources including the Appellant’s line manager, whose evidence the Panel accepted, who said that she had personally observed his failure to carry out the control run after reversing the positioning of the two reagents, something that “was required to ensure that the machine was working properly.”

20. The Panel noted that the failing at 18(b) had resulted in a one day delay in staining samples and extra expense for the Trust. An engineer had been called which would have been avoided if the Appellant had checked the readings, “something which is required to be done regularly to ensure a safe working environment in the laboratory.” The Panel relied on the evidence from the Appellant’s line manager to establish this allegation to the required standard of proof. It transpired that the error with the machine was not one affecting airflow but that could not have been known by the Appellant without carrying out the requisite testing which he failed to do. As a result time and resources were wasted.

21. The Panel found the allegation at 18(c) above proved on the basis of the evidence before it. It accepted that the requests for the tests did not expose anyone to risk but found that it had financial implications. The paper trail within the bundle of documents before the Panel showed that two forms had been prepared on successive days for the same testing of the same sample. Hearsay evidence from the doctor concerned was relied upon by the Panel to find that the Appellant had wrongly required the doctor to fill in a repeat form.

22. As to the allegation at 18(d) above, the Panel noted that undertaking the reading of formalin levels is a legal requirement and had been part of the Appellant’s remit as health and safety officer. Evidence was given to the Panel that formalin is a fixative used in the laboratory which is toxic and carcinogenic. It must be used in a well-ventilated area over either a downdraft bench or a specially designed table. There is a workplace exposure limit of 2 parts per million for both short term and long term exposure. A formalin log is maintained. During his cross-examination of the witnesses before he Panel, the Appellant had accepted that he had not undertaken these readings but stated that he knew how to “handle the situation” for example he could “open the windows”.

23. In determining whether the conduct as found proved amounted to misconduct, the Panel considered the Standards published by the HCPC: “ Standards of proficiency for a Biomedical Scientist (2014 edition) 2 be able to practise within the legal and ethical boundaries of their profession. 3 be able to maintain fitness to practise. 8.2 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others. 9.1 be able to work, where appropriate, in partnership with service users, other professionals, support staff and others. 9.2 understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team. 14.4 be able to operate and utilise specialist equipment according to their discipline. 14.5 be able to validate scientific and technical data and observations according to pre-determined quality standards. 15 understand the need to establish and maintain a safe practice environment. 15.1 understand the need to maintain the safety of both service users and those involved in their care. Standards of Conduct Performance and Ethics (2016 edition) 2.5 You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers. 2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user. 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible. 6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk. 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession. 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to. 10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.”

24. In relation to the allegation at 18(a) above, the Panel found that the Appellant had accepted that he ought to have run a third control test and that it was good practice to have done so, but having identified what he thought was a resolution to the problem, the Appellant had intentionally chosen not to run a third control test. This in the Panel’s view was “not lack of competence but fell beyond the threshold and into misconduct.” The consequence was that there was no assurance that the staining procedure was working and so a whole day’s work for the locum pathologist was wasted – they could not report on the slides stained on the machine that morning. The Panel considered that the impact of the Appellant’s decision on colleagues and patients made this a matter of serious misconduct.

25. In relation to the allegation at 18(b) above, the Panel found there was an obvious issue with the machine because the fault light was on and there was a bleeping sound coming from the system. A check of the airflow readings was appropriate to ensure that staff members were not being overexposed to any harmful chemicals. The Appellant did not do so and due to the chain of events of which he was “at the heart” a day’s delay was caused and the cost of an unnecessary call out to an engineer incurred. The Panel found that this was not lack of competence by the appellant but “fell beyond the threshold and into misconduct.”

26. In relation to the allegation at 18(c) above, the Panel found that the Appellant had resisted the information from a doctor that a particular sample had already been sent for processing. As a result the sample was processed twice and the doctor interrupted on two occasions to administer the double processing. The Appellant was “incapable of accepting that he was at fault.” Again the Panel concluded that this was misconduct.

27. In relation to the allegation at 18(d) above, the Panel noted that it was a requirement to carry out formalin readings once a week. Breach of that requirement puts staff at danger of developing respiratory difficulties and other health issues. The Panel described a build-up of formalin fumes as “a disaster”. The Appellant had not been taking readings as required and so formalin levels were not being monitored. The Appellant had relied on other measures such as opening the laboratory windows. This monitoring had been his responsibility. The Panel found that the Appellant had not considered his failure to take the readings to be a risk and “did not appreciate the potential impact of his omission … as being a risk to colleagues.” The Panel found that his conduct and his attitude to the situation he had created, “exposed his colleagues to a real risk of harm and was very serious misconduct.”

28. The Panel noted that the Appellant had been working as a Band 6 locum since leaving the Trust’s employment. He had shown little to no insight into his actions and the impact they had had or may have had on colleagues and patients. The Panel noted that, notwithstanding that the Appellant had had years to prepare for the hearing before it, he had not adduced any evidence to establish his current abilities, such as references from the bodies for whom he had been working, nor any evidence of his continuing education and how he retained and updated his knowledge. The exception was one reference provided from his employer in Dublin but it was very generalised, provided no evidence relevant to the found misconduct, did not reveal any knowledge on the part of the writer of the Appellant’s regulatory proceedings, and did not establish any evidence that the Appellant had addressed his past failings. He was not working in Dublin as a fully autonomous Biomedical Scientist but was working on more restricted duties.

29. As it was, the misconduct found against him had occurred when he was on restricted duties and therefore in less stressful circumstances than would normally have been the case for a Biomedical Scientist. The Appellant had complained that he had been singled out because of his colour but his line manager had also been a person who was of Black, Asian or Minority Ethnicity. His view that others had conspired to “get rid of him” was not supported by evidence and showed lack of personal reflection. It noted: “The Panel has little confidence that [the Appellant] would not act the same way again when placed within what he considered a stressful environment. The Panel’s concerns arise first, out of the fact that [the Appellant] has not taken full responsibility for his role in this matter, and secondly, he has not produced any evidence of having identified, adopted and applied, suitable and effective coping strategies for such an event occurring in the future. There has been no expression of remorse, regret or apology for his role in the incidents which he described as ‘mistakes’. The terms in which the Registrant has addressed the Panel at the start of this hearing demonstrated that he considered himself the victim of others’ actions and that he was the ‘innocent’ who was being ‘blamed’ for others’ failings. That position did not change during the hearing. There is no evidence to support his view on this issue.” The Panel considered the impact on public confidence in the profession if the Appellant were allowed to continue “without some form of suitable mark of censure on his practice…. To make no finding on the public component in this case would undermine the public confidence in the profession and this regulatory process.”

30. The Panel properly considered sanctions which were available to it by operation of Article 29 of the Health Professions Order 2001 from “bottom up”. It took into account mitigating features including that the Appellant had ultimately engaged in the HCPC process, the Panel had not been made aware of any further issues relating to his registration, and he had been a Biomedical Scientist for a long time. Aggravating features included his lack of insight or remorse, the absence of evidence that he had addressed his failings and his lack of candour about how two of the incidents had occurred. Having dismissed as inadequate and inappropriate, the possible sanctions of a caution order, conditions on his practice, or suspension, the Panel considered the option to strike the Appellant off the register, an option it referred to as a “last resort”: “The Panel having made that decision moved on to consider the imposition of a Strike Off Order, which is a measure of last resort for serious acts involving failure to raise concerns and a failure to work in partnership, issues which are engaged in this case. [The Appellant] has demonstrated an inability to accept fault and address the underlying issues resulting an unwillingness to resolve matters. The Panel has concluded that the appropriate and proportionate measure in all the circumstances is a strike off order.” The Panel made an interim suspension order pending appeal. The Legal Framework on Appeal

31. The test on appeal is set out in CPR r52.21(3) (above). The appellate court must respect the fact that the lower court had the advantage of seeing and hearing witnesses when assessing the evidence and reaching findings of fact. In regulatory proceedings the appellate court does not have the professional expertise of the tribunal (the Panel) and will approach the tribunal’s determinations about whether conduct is serious misconduct and/or impairs a person’s fitness to practise, and what is necessary to maintain public confidence with diffidence: Khan v General Pharmaceutical Council [2016] UKSC 64 at para.36. A decision on sanction is multi-factorial and evaluative. The overarching concern of the professional regulator is the protection of the public: GMC v Meadow [2006] EWCA Civ 1390 ; Bolton v The Law Society [1993] EWCA Civ 32 . Issues on Appeal

32. The Appellant continues to act without legal advice or representation. His grounds of appeal and other appeal documents are not easy to follow. Mr Micklewright for the HCPC has summarised the Appellant’s grounds of appeal under six headings. I agree that these six headings fairly cover the matters raised by the Appellant: a. The Panel failed to ensure that the Appellant had access to documentation held by the Trust. b. The Panel improperly relied on material provided by the Trust rather than conducting its own investigation. c. The Trust acted in bad faith and the Panel did not give any or any adequate weight to that. d. The Panel failed to consider the Appellant’s performance prior to 2017 or the culture in his working environment. e. The Panel’s conclusion that the conduct at allegations set out 18(b) and (d) above gave rise to a risk to the public was wrong. f. The sanction of striking off the register was wrong and disproportionate. Access to Documentation

33. On 25 July 2023, the Panel had allowed the appellant’s application to adjourn to allow him to seek material from the Trust. The Panel gave directions designed to allow the Appellant to obtain the assistance of the Respondent’s solicitors to obtain documentation. He did not avail himself of that opportunity. Shortly before the effective hearing in February 2024, the Appellant informed solicitors for the Respondent that he had approached the Trust himself but that its responses had been “difficult and tedious”. The Appellant has repeatedly stated that the allegations against him were simply used as cover to “get rid” of him, which is what key people at the Trust wished to do because they did not like him for whatever reason. At times he has suggested it was because of his race or age. He continues to suggest without evidence that the doctors were to blame for some of the incidents which the Panel investigated. At the outset of the hearing before the Panel he said that the material related to his competence. Later, when asked to specify what documents he was wanting, he said , “All documents which are used for procurement, all documents of health and safety, which I used to which I worked for the department and all communications from other places I have been buying reagents … the complaints of the consultant … to all managers.” He regarded these as important because they would show that the consultant pathologist did not like him and that this put pressure on his managers. He has made the same points when seeking an adjournment of this appeal.

34. The Panel was faced with a late application to adjourn a hearing that concerned events in 2017 and 2018, and when a previous hearing had been adjourned for several months for the same reason the Appellant was putting forward again. He had not established that he had taken any effective steps to obtain documentation from the Trust and his description of the documents he sought was unfocused. He clearly bore a grievance against a particular consultant pathologist but it was far from clear that the evidence he thought might exist to show that the allegations were a pretext, did exist. Witnesses who had been stood down in July 2023 were again at the hearing centre ready to give evidence. They could be cross-examined by the Appellant about his case that there was some sort of conspiracy against him. In any event, he had not suggested that the Respondent had the documentation or had withheld it from him and the Panel, nor that the Respondent should have taken steps itself to obtain the documentation or could have obtained it with reasonable diligence. His grievance was with the Trust.

35. It was no part of the case against the Appellant that he had been incompetent for the entirety of his time as a Biomedical Scientist. He was given credit for his long service as mitigation when considering the appropriate sanction. Evidence as to the Appellant’s competence was available to him in any event.

36. The Panel recorded that it was at liberty to revisit the decision to adjourn were it to consider that the documentation to which the Appellant referred were indeed relevant and sufficiently important to justify an adjournment. From its detailed reasons it is clear that the Panel did not consider that any such documentation would be of assistance to its decision making.

37. The Panel was advised of the judgment of Beaston J in R(Johnson and Maggs) v NMC [2008] EWHC 885 (Admin) to the effect that there is not a free-standing positive duty on those bringing the disciplinary proceedings to gather evidence to provide to the registrant.

38. The refusal to adjourn was plainly a decision which the Panel was entitled to make. Indeed, it would have been extremely surprising had they allowed the application to adjourn. The Appellant has made exactly the same application now, in late 2025. He continues to protest that he needs documentation from the Trust but without having taken any effective steps to obtain it himself and when the relevance of such documentation has not at all been established. Over-reliance on Trust Material

39. Material from the Trust as to the Appellant’s competence and capability at the time of the alleged errors and misconduct was clearly relevant and the case could hardly have been fairly heard without such evidence. But the Panel scrutinised the evidence including through the two witnesses who were questioned at the hearing. I have the advantage of having the transcripts of the whole hearing. The Panel’s independent approach to the evidence is demonstrated in those transcripts and by the fact that it found four of the allegations not to be proved: it did not simply take the Trust’s allegations as read. Bad Faith by the Trust

40. The Appellant chose not to give evidence to the Panel. He did not put forward any witnesses or other evidence to support a case that the Trust acted in bad faith, in the sense of conspiring or plotting to “get rid” of him on the pretext of false allegations. The Panel could not have made such a finding because it had no evidence to support it. The Appellant may protest that he was prevented from obtaining such evidence but, as already explained, he had ample opportunity to seek evidence to support his account but had not obtained any. He neither gave oral evidence nor did he provide any written statement to the Panel. That was a surprising decision for him to take when he wanted to put forward a case that the allegations were somehow tainted by ill-will towards him. However, he was allowed to make submissions that included assertions for which he had not adduced evidence. Furthermore, he cross-examined witnesses who previously worked for the Trust and put matters to them for which no evidence had been adduced. Even so, he did not put the case to either of them that the allegations had been used as a pretext to dismiss him when the true reason was that he was not liked or because of his age or race. He did not pursue a case of discrimination either through any evidence he put before the Panel or through his questioning of witnesses called by the HCPC. Appellant’s Performance Before 2017

41. The Panel’s findings of fact show that they made their decisions on the evidence as to what happened in 2017 and 2018. They did not assume general incompetence. Indeed, in considering sanction, the Panel gave credit for the fact that there were no other issues concerning his registration and he had been a Biomedical Scientist for a long time. Nevertheless, the Panel was aware, as was a matter of undisputed fact, that the Appellant was on restricted duties. The Panel took into account the Appellant’s case that the working environment was stressful in its decision-making – not as to findings of fact, but as to whether the Appellant’s fitness to practise was impaired. The Appellant could have given evidence or have adduced evidence about is performance before 2017 but he chose not to do so. Risk to the Public

42. The evidence on the toxicity of formalin was not disputed, nor were the imposed exposure limits. It is not disputable that the failure to take formalin readings gave rise to a risk to the safety of colleagues. Likewise, the failure properly to address airflow levels after a machine fault gave rise to a risk of exposure of others in the laboratory to toxic chemicals (albeit one that transpired not to have arisen). The risk was not to the public at large, but to colleagues. At the appeal, as before the Panel, Mr Mginah did not appear to accept that there was any risk to the health and safety of laboratory users. He told me that the windows were open and the machine was working properly. He seemed to equate the fact that no-one was provably harmed with there having been no risk of harm. The Panel was very concerned about his lack of insight into the risks to others caused by his failings. Sanction

43. Before considering sanction the Panel found that, by reason of the conduct it had found, the Appellant’s fitness to practise was impaired. The Appellant may not have fully understood that this finding of impairment is not on the basis that he does not have the experience, training and qualifications to be a Biomedical Scientist, nor that he has some medical or other impairment that renders him unfit to practise. It is rather that because of his conduct in relation to the four findings of fact, his fitness is impaired (or was impaired at the date of the Panel hearing). The Panel noted that there had been no expression of remorse, regret or apology and no evidence of steps taken by the Appellant to remedy his failings by undertaking training courses specific to his failings, mentoring, or otherwise.

44. The sanction of being struck off the register is the most severe and consequential that could have been imposed and careful consideration must be given as to whether it was justified. The Appellant has not identified any error of law in the Panel’s approach to sanction and I can find none. The Panel was properly advised by the Legal Assessor as to the principles to apply and as to the process of considering sanctions from the bottom up, that is that the Panel should pass the lowest sanction that was necessary and proportionate. The Panel expressly had regard to the HCPC’s Sanctions Policy and the principles underpinning the imposition of sanctions. The Panel identified mitigating and aggravating features. Most importantly, the Panel focused on the Appellant’s lack of insight, the absence of steps taken to remedy his conduct, and the risk of repetition. The Panel had made clear and reasoned findings about the misconduct and impairment.

45. Reading the Panel’s decision it is clear that it was very troubled by the Appellant’s lack of insight and, associated with that, the absence of what is termed “remediation”. He gave bland assurances to the Panel that he was now working in a good environment and the failings would never happen again, yet he failed to recognise that (i) he had not accepted the allegations in the first place, blaming the ill-will of others for the fact that the allegations had been made at all; (ii) the work he was doing at the time of the Panel hearing was not the full role of a Biomedical Scientist - he was protected by the fact that he was on much more restricted duties; (iii) he continued to protest that no-one had been put at risk by his failings and that he had done nothing wrong; and (iv) he had not undertaken any remedial work by way of training, mentoring or otherwise directed to his failings and misconduct. As a consequence, and in accordance with the Sanctions Policy, even though the misconduct was not within a category recognised in the Policy as the most serious, as was dishonesty for example, the sanctions below striking off were inappropriate. In short, the Panel properly concluded there was no way back for the Appellant consistent with the protection of the public. Hearsay Evidence

46. Mr Micklewright properly raised an argument which the Appellant might have raised had he been represented, which is the reliance by the Panel on hearsay evidence to prove the allegation set out at paragraph 18(c) above. Rule 10 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 provides that the Committee may hear or receive evidence which would not be admissible in civil proceedings if it is satisfied that admission of that evidence is necessary in order to protect members of the public. The Panel did not expressly have regard to that provision in relation to the evidence relied upon to prove this particular allegation but it was entitled to admit the evidence and, having done so, to give it what weight it considered appropriate. It had documentary evidence – the two forms to which I have referred – and contemporaneous email exchanges concerning the matter from the doctor involved as well as from the Appellant. Mr Micklewright took me through the evidence and there is no doubt that the Panel would have considered the admission of the hearsay evidence to be necessary to ensure adequate scrutiny of the allegation and therefore for the protection of members of the public. Hearsay evidence is, in any event, not necessarily inadmissible in civil proceedings. No notice of an intention to rely on hearsay evidence had been given but the Panel could have admitted the evidence nevertheless. It is regrettable that the Panel did not expressly address the admission of the evidence but had it done so it would undoubtedly have admitted it. As it happens this was probably the least serious of the four allegations found proved and even if it had not been proved (had evidence not been admitted) then the same sanction would undoubtedly have been imposed. Conclusions

47. The Appeal must be dismissed. Mr Micklewright has tried hard to put the arguments within the Appellant’s appeal documents into a coherent form, for which I am grateful. I tried to elicit from the Appellant his case on appeal even though it was not clear what it was beyond a general sense of grievance against the Trust. However, even doing one’s best to assist the Appellant to articulate his case on appeal, he has not identified any arguable case for the appeal to be allowed. The decision to refuse a second adjournment was fully justified and reasoned. The findings of fact were properly made. The evidence for those findings was strong. There was no evidence to support the Appellant’s case that the allegations against him were concocted or were a pretext of any kind. He gave no evidence to the Panel himself and called no evidence. He questioned witnesses but elicited no evidence to support his case. In fact, he made certain admissions, including that he had not undertaken the formalin readings (allegation at 18(d) above) which the Panel found to be serious misconduct and which weighed heavily in its determinations on impairment and sanction.

48. The appeal court has to give due deference to the expertise of the Panel in determining what failings and misconduct are evidence of impairment of a Biomedical Scientist’s fitness to practise. The advice given to the Panel as to the law and as to the Sanctions Policy was impeccable and the Panel’s written decision demonstrates that it followed that advice. The Panel’s reasoning was clear and detailed. No error of law or fact was made and the Panel’s decisions must be upheld.

49. The Appellant has shown the Court references from employers other than the Trust but those do not address his failings or what he has done to remedy them. Even if he had brought them all to the attention of the Panel, which he did not, it would not have altered the outcome. As it is, for the reasons given I refuse to admit new evidence in this appeal. I end by accepting, as the Appellant asked the Court to do, that he did not act out of malice. It was not alleged that he did. Nor was he accused of dishonesty. There is no question that as a Biomedical Scientist and in other work since, the Appellant has been hard working. However, he was guilty of misconduct which involved a risk of harm to others and by his conduct in the appeal, as well as before the Panel, he has continued to show no understanding of the seriousness of that misconduct. The decision to strike him off the register will stand.