Simon A Lockyear

Preliminary Matters

Service

1. The Registrant was served with notice of hearing by email dated 20 March 2024. That notice informed the Registrant that the review of the Suspension Order would take place on 18 April 2024 at 10:00 am by Microsoft Teams. By email of the same date, the Registrant acknowledged receipt of the notice of hearing and stated that he would not be attending. In the same email the Registrant gave details of his new residential address. The HCPC sent a second notice of hearing by emails dated 21 March 2024 giving his new postal address and a third notice of hearing dated 27 March 2024 to correct the start date of the Order. The Panel was satisfied that the Registrant had been effectively served with notice of today’s hearing by email dated 20 March 2024 which provided him with the necessary details of the hearing in accordance with the Health and Care Professions (Conduct and Competence Committee) (Procedure) Rules 2023, as amended. The subsequent notices did not invalidate the original notice of hearing.

Proceeding in absence

2. Ms Khorassani made an application for the hearing to proceed in the absence of the Registrant. She submitted that the Panel could be satisfied on the basis of the Registrant’s email dated 20 March 2024 to the HCPC that he had voluntarily absented himself from the hearing and waived his right to attend.

3. The Panel had regard to the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel was mindful that today’s hearing is a mandatory review of a substantive order which should be heard expeditiously and must take place before the order expires on 11 May 2024. The Panel was satisfied that the Registrant had voluntarily absented himself from today’s hearing and that an adjournment to another date would be very unlikely to secure his presence. The Panel noted that the Registrant had only attended the first review hearing and had absented himself from the original substantive hearing and the last two review hearings. The Registrant had not applied for an adjournment or provided any reasons why it should be adjourned. The Panel considered that no useful purpose would be served by an adjournment. The Panel determined that it was in the public interest to proceed with the hearing today in his absence.

Proceeding in private

4. Ms Khorassani submitted that the hearing should proceed partially in private on the grounds that there would be references to the Registrant’s health.

5. The Panel had regard to the HCPTS Practice Note on “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel noted that the original substantive hearing, which took place in the Registrant’s absence, was conducted in private only to the extent that any references were made to the Registrant’s health or private life.

6. At the first review hearing held on 13 January 2022 and 3 February 2022, which the Registrant attended, the panel granted the Registrant’s application that the entire hearing should be conducted in private The panel was persuaded that the Registrant’s ability to participate in the hearing would be inhibited if it were not held entirely in private, as he wished to make extensive reference to his health and private life as being relevant to the original Allegations and the issue of his impairment of fitness to practise.

7. The subsequent review hearings, which the Registrant did not attend, were also conducted entirely in private.

8. The Panel noted that the Registrant had not provided the HCPC with any medical or other supporting evidence in support of the submissions which he made at the first review hearing, or subsequently.

9. The Panel decided that it was possible and appropriate to summarise in public hearing the background facts of the case and the decisions of each of the previous panels but to hear in private only matters relating to the Registrant’s health or private life.

Background

10. The Registrant was employed by the national public health agency, Public Health Wales (the Agency) from 1 April 2003 as a Specialist Biomedical Scientist, initially in South Wales before transferring to North Wales in 2017.

11. The concerns were raised by Colleague 1, a Senior Biomedical Scientist, who took over from the Registrant on the urine bench in the Lab on 8 December 2017. She noted that the Registrant had failed to write on the outside of the agar plates to indicate the work to be carried out. Colleague 1 began to label fresh agar plates to continue the work the Registrant had been doing and came across a lab sample number with a heavy growth of bacteria. There was no corresponding label generated for the sensitivity plate. Colleague 1 then went onto the lab computer to bring up the electronic entry for that sample and found that the report had already been released by the Registrant, within 24 hours of the sample having been received. Based on her knowledge of processes, Colleague 1 knew that this was not possible. She proceeded to work through the plates the Registrant had handed over to her and continued to find errors in a similar vein.

12. At that stage Colleague 1 escalated her concerns to her Lab Manager on site. The concerns were that the Registrant had not been undertaking his work in accordance with the laboratory Standard Operating Procedures (SOPs) in that he had (i) recorded and reported unsubstantiated identification of organisms and (ii) recorded and released unsubstantiated antibiotic sensitivity test results. They continued to find errors, including from previous dates in October and November 2017, and the matter was escalated. The Registrant was subsequently suspended pending investigation.

13. A referral concerning these events was submitted by the Agency to the HCPC on 4 January 2018 following conclusion of the local investigation. On 24 April 2019 the matter was referred by an Investigating Committee panel of the HCPC.

14. At a substantive hearing which took place from the 11 – 14 January 2021 a panel of the Conduct and Competence Committee found all of the factual particulars of the allegation proved. That panel determined that the Registrant’s fitness to practice was impaired by reason of misconduct and imposed a Suspension Order for a period of 12 months.

First Review of the Suspension Order held on 13 January 2022 and 3 February 2022

15. The Registrant attended the first review of the Suspension Order and gave evidence, as summarised below:

“The Registrant explained that he had not understood the previous panel’s recommendations that documentation was required today. He thought that by attending and giving oral evidence he could cover all the issues raised.

[Redacted]… The Registrant recognised that his actions could have caused serious harm to patients. They could have affected the reputation of his laboratory and have a wider impact on the NHS and the public losing confidence in the results of laboratory investigations. He said that he did recognise that his actions could have brought the reputation of the laboratory into disrepute. He said that he feels a great deal of remorse and said that he still thinks about what he did 5 years on and it greatly upsets him, often reducing him to tears.
He said that he recognises clearly that SOPs are there for a reason and would follow them now fully. If he had an issue in the future he would raise it via the correct channels.

The Registrant expressed that it was his intention to return to work as a Biomedical Scientist and he would do whatever was required to facilitate this.”

16. That panel, whilst impressed with the Registrant’s progress, concluded that it had insufficient evidence to be satisfied that the Registrant’s fitness to practise was no longer impaired. It stated:

“The Panel is of the view that the Registrant’s actions are capable of remediation. In contrast to the last panel’s decision, having had the benefit of the Registrant’s persuasive evidence, the Panel does not find that the Registrant has any outstanding attitudinal problems. Whilst the Panel recognised the huge efforts that the Registrant has undertaken to manage his health conditions the Panel is not satisfied that the Registrant has shown that he has taken sufficient steps to ensure that this behaviour will not be repeated.

The Panel was concerned however, that it did not have sight of any independent medical evidence from practitioners treating the Registrant’s medical conditions. In the absence of such medical evidence the Panel could not be confident that these conditions were being managed such as to ensure that there was no risk of repetition.

The Panel considered the three elements of the public component. The first element of the public component - the need to protect service users. It noted that a registrant who has insight and is unlikely to repeat past acts or omissions is unlikely to present an ongoing/ future risk to service users. It did not go behind the findings of the previous panel. The Panel repeats its decision under the personal component that there is still insufficient evidence to demonstrate that his past behaviour will not be repeated.

The other two elements of the public component are maintaining professional standards and public confidence in the profession. The professional standards expected of registrants are what the public expects of them. The public is entitled to expect registrants to be professionally competent and to act with decency, honesty and integrity. The public should also be able to rely on the regulatory process to be robust, fair and transparent.

The Panel found that the public element remained engaged particularly because the public would be dissatisfied that a person who has been out of a lab for 4 years without keeping up to date with any CPD requirements could be allowed to practice without restriction. The Registrant needs to demonstrate that he is professionally competent as of the present time”.

17. That panel imposed a further Suspension Order for a period of 6 months. It considered that this was a sufficient period to enable the Registrant to demonstrate to a reviewing panel that he had fully remediated his actions. That panel considered that this would be sufficient time for the Registrant to provide evidence that he was addressing his health and had undertaken relevant CPD to keep his skills up to date. That panel went on to list the information and documents that would assist a future panel.

Second Review of the Suspension Order held on 12 July 2022

18. The Registrant did not attend. The second review hearing. By email dated 1 July 2022 the Registrant requested a postponement of the review for a period of 3 months as he did not consider he had been given long enough to recover.

19. The panel did not agree to postpone the hearing and it considered that the Registrant’s fitness to practise remained impaired as there had been any change in the underlying factors since the last hearing. That panel imposed a Suspension Order for a period of 12 months to enable the Registrant to develop his insight and provide effective evidence of remediation. That panel repeated the guidance regarding the material that a future reviewing panel might find of assistance. That panel was of the view that a Striking Off Order was disproportionate at that time but that a future panel was likely to give serious consideration to such an Order should the Registrant fail to comply with the recommendations made.

Third Review of the Suspension Order held on 14 July 2023

20. The Registrant did not attend the third review hearing and did not provide any evidence, information or submissions for the consideration of the panel.

21. The panel found that the Registrant’s fitness to practise remained impaired in relation to the personal and public components of impairment. The panel decided to impose a further Suspension Order for a period of 9 months for the following reasons:

• the Registrant had not produced any evidence of remediation of his past failings and had not provided any evidence that his health conditions were being well managed;

• the Registrant had not complied with any of the recommendations made by the previous panels as to what might assist a subsequent review panel. The panel had no evidence that the Registrant had taken any steps to remediate his failings;

• the Registrant had not advanced any substantive argument as to why the panel should not find that his fitness to practise remained impaired;

• there had been no change in the underlying factors, which would justify a conclusion that the Registrant’s fitness to practise was no longer impaired; and

• a well-informed member of the public would in the circumstances expect there to be a finding of impairment.

22. The panel repeated the recommendations of previous panels and considered that a future reviewing panel might be assisted by the following:

1) information about the Registrant’s employment, paid or unpaid;

2) medical reports [Redacted] Such reports could take the form of a report from the Registrant’s GP or a letter from the professional providing his treatment;

3) evidence of a structured CPD plan and any steps taken by the Registrant to keep his practice and skills up to date (which might include online courses);

4) if the Registrant had been employed a reference or testimonial from his colleagues and/or supervisor;

5) his attendance in person at the next review hearing; and;

6) an updated reflective piece in writing to outline what he has learnt from his experience, the impact his medical condition is currently having upon him, and details about any work experience undertaken.

23. The panel warned that, in the event that the Registrant did not comply with the above recommendations, a subsequent reviewing panel was likely to give serious consideration to making a Striking Off Order.

Today’s hearing

24. The Panel was provided by the HCPC with a hearing bundle which included the decisions of the panel at the substantive hearing and each of the subsequent reviews.

25. Ms Khorassani submitted that, in the absence of any information or evidence from the Registrant since the last review hearing, the Panel today must inevitably conclude that the Registrant’s fitness to practise remains impaired both with regard to the personal and public components of impairment.

26. Ms Khorassani submitted that, given the history of this matter, and the Registrant’s persistent failure to take any steps to address the concerns relating to his fitness to practice or to follow the recommendations of previous panels, a Striking Off Order would be appropriate.

27. The Panel received no information or submissions from the Registrant.

Decision

28. The Panel took into account the HCPTS Practice Notes “Review of Article 30 Orders” and “Fitness to Practise Impairment” and accepted the advice of the Legal Assessor.

29. The Panel first considered whether the Registrant’s fitness to practise is currently impaired by reason of the allegations found proved at the substantive hearing.

30. The Panel took into account the decision of the High Court in Abrahaem v GMC [2008] EWHC 183 [Admin] where it was stated that in practical terms there is a “persuasive burden” on the Registrant to demonstrate at a review hearing that he has fully acknowledged the deficiencies which led to the original findings and has addressed his impairment sufficiently “through insight, application, education, supervision or other achievement”.

31. The Panel found that the Registrant had failed to take any steps to discharge this burden by addressing the fitness to practise concerns identified at the substantive hearing, by providing the Panel with any evidence about his health since the date of the substantive hearing or any information concerning his working life or personal circumstances.

32. It followed that the Registrant had not discharged the persuasive burden referred to above. The Panel could not be satisfied that the Registrant is currently safe to practise without restriction. The Panel therefore found that his fitness to practise remains impaired in respect of both the personal and public components.

33. With regard to sanction, the Panel took into account the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor.

34. The Panel considered the need to protect the public, in particular service users, and gave appropriate weight to the wider public interest, which includes the reputation of the profession and public confidence in the regulatory process. The Panel applied the principle of proportionality and considered the available sanctions in ascending order of seriousness.

35. The Panel considered that the concerns about the Registrant’s fitness to practise were too serious to take no further action or for the imposition of a Caution Order.

36. The Panel considered whether to impose a Conditions of Practice Order to give the Registrant an opportunity to demonstrate that he had taken steps to address the issues underlying his failures in practice. Given, however, the Registrant’s failure to engage with the HCPC since the decision of the first substantive review hearing on 3 February 2022, the Panel could not be confident that:

• the Registrant would comply with any conditions imposed; or
• he would not pose a risk of harm to service users, if he were permitted to practise subject to conditions; or
• he is genuinely committed to resolving the concerns raised; or
• he would take any effective measures within a reasonable time, or at all, to mitigate the risk posed to service users.

37. The Panel considered that a Conditions of Practice Order would not be appropriate because conditions would not adequately protect the public unless they were so restrictive as to amount to suspension in all but name.

38. The Panel considered whether to impose a further period of suspension. However, in circumstances where the Registrant had been continuously suspended since 14 January 2021 and had not used the intervening period of more than 3 years to address the failures in his practice, the Panel considered that no useful purpose would be served by a further period of suspension.

39. The Panel noted that the Indicative Sanctions Policy states that:

“A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process, in particular where the registrant:

• lacks insight;
• where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”

40. In the Panel’s judgement, the indicative criteria referred to above apply in this case and the appropriate and proportionate sanction is a Striking Offer Order.

Order: The Registrar is directed to strike the name of of Mr Simon A Lockyear from the register.

This Order will take effect from 11 May 2024

History of Hearings for Simon A Lockyear