
Randall Egger
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Allegation
As a registered Occupational Therapist:
1. Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practice as a band 5 Occupational Therapist, in that:
a. You did not complete an informal improvement plan;
b. You did not maintain accurate and complete service user records in that:
i. On or around 17 August 2020, you failed to record that Patient A had reported poor mental health;
ii. On or around 22 October 2019, you included medical information about Patient D's spouse, within their records;
iii. On or around 22 October 2019, you included Patient D's social history within their occupational therapy notes.
c. You did not demonstrate consistent or accurate clinical reasoning in that:
i. On 28 October 2019, you conducted an assessment on Patient C, when it was clinically inappropriate to do so;
ii. On 17 August 2020, you intended to conduct Patient A's functional transfer review in a place other than their cell, when it was clinically inappropriate to do so.
2. On or around 30 August 2020 you did not communicate professionally within written communication with your employer.
3. The matters set out in particular 1 above constitute lack of competence and/or misconduct.
4. The matters set out in particular 2 above constitute misconduct.
5. By reason of your lack of competence and/or misconduct your fitness to practice is impaired.
Finding
Preliminary Matters
Application for part of the hearing to be in private
1. At the outset of the hearing, Ms Wishart made an application that any references to Mr Egger’s health be heard in private. Dr Danti supported the application.
2. The Panel considered the application with care and accepted the advice of the Legal Assessor, who referred to Rule 10 of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. Rule 10 allows for the hearing, or part of the hearing, to be conducted in private where to do so is in the interests of justice or for the protection of the private life of the Registrant. The Panel agreed that it was appropriate to go into private session as and when any reference was made to Mr Egger’s health. The rest of the hearing would be dealt with in public in the usual way.
Admissions
3. Ms Wishart indicated that Mr Egger admitted Particulars 1(a), 1(b)(ii), 1(b)(iii), 1(c)(i) and 2. However, with regards to Particular 1 and its sub-headings, Ms Wishart made it clear that none of the stems to the sub-particulars were admitted.
Background
4. On 16 March 2022, the HCPC received a referral from Caitlin Charlton, the Interim Service Manager for Perth and Kinross Health and Social Care Partnership, NHS Tayside (“the Trust”), raising concerns regarding the Registrant.
5. The Registrant is an Occupational Therapist (“OT”), previously employed as a newly qualified Band 5 OT at the Trust, between July 2019 and January 2021.
6. Although not in his contract of employment that he would be employed on a rotational basis, it was understood that he would have various placements, designed to offer him experience in a number of different settings at the Trust.
7. Mr Egger’s first placement was with the Inpatient Occupational Therapy Team at Perth Royal Infirmary (“PRI”) from July 2019 to November 2019.
8. In Private
9. Mr Egger’s first four weeks at the Trust consisted of a period of orientation and were spent on Tay Ward (Medicine for Elderly Ward). Thereafter he was moved to the Acute Medical Unit (“AMU”), also referred to as Ward 3.
10. Mr Egger was first supervised by Lynne Armstrong (Occupational Team Lead), but then supervision appears to have passed to Karen Collins (Occupational Team Lead), Crispin Oakley (Occupational Team Lead on the AMU) and Georgia Tsouleas (Senior OT). They were all overseen by Norma Patrick (Band 8 OT and Service Manager).
11. Within the first twelve weeks of commencing employment at the Trust, concerns regarding the Registrant’s development and practice were raised. The key areas of concern were as follows:
• lack of professional insight;
• professional and clinical reasoning;
• poor communication with patients;
• evidence of lack of patient safety awareness and risk;
• clinical competence as an OT;
• inadequate record keeping.
12. The Registrant was placed on an informal development/support plan on 24 September 2019. The key areas to be addressed related to clinical documentation, communication, clinical reasoning and professional autonomy. The Registrant remained on an informal improvement plan (sometimes referred to as a supported improvement plan) until leaving the Trust in January 2021.
13. During supervision discussions at PRI, it was recognised that Ward 3 was not supporting Mr Egger’s learning and development due to its fast pace and it was agreed that he would transfer back to the Medicine for Elderly Ward (Tay Ward), which provided slow-stream rehabilitation. It was anticipated that this would have allowed him to consolidate his learning and development and support him to progress. Mr Egger was given a reduced workload at Tay Ward, however, the concerns around his ability to practise remained. During this time Mr Egger submitted a complaint of bullying, which needed to be investigated (and subsequently was found not to be substantiated).
14. Accordingly, on 24 February 2020 Mr Egger was moved to the General Adult Psychiatry Occupational Therapy Team at Murray Royal Hospital (“MRH”). He was there until 18 May 2020.
15. There was no witness evidence provided for Mr Egger’s progress at MRH, although he was to tell the Panel that during his time there, he received positive feedback and he felt like he was making progress. However, for reasons unconnected with Mr Egger his time at MRH ended in May 2020.
16. On 6 July 2020 Mr Egger was then moved to a third location, namely the Custodial Healthcare Occupational Therapist Team at HMP Perth. His supervisor was Mr Daniel Shanks. It had been explained to Mr Shanks that Mr Egger was working through an improvement plan and would require additional support during his placement. He was there until 17 August 2020. Mr Shanks supervised Mr Egger for four of those six weeks but was on annual leave for two of the six weeks. Whilst on annual leave, Mr Egger was supervised by Sheena Law (Band 6 OT).
17. Mr Egger was provided with an induction to familiarise himself with the prison environment and given a reduced workload of three patients. On average Band 5 OTs would expect to have an average of 15 patients on their caseload. Mr Shanks said that this was the first time that they had had a Band 5 OT working in the prison.
18. In Private
19. Mr Shanks said that the amount of support Mr Egger required became unsustainable for the service and was impacting service delivery. Mr Shanks was of the view that Mr Egger required a setting with no time pressure and no expectations to be placed upon him, in order to support his clinical outcomes to be at a sufficient level for his grading.
20. On 30 August 2020, Mr Egger sent an email to Mr Shanks, resigning from HMP Perth and complaining about the way in which he had been dealt with. That email is the subject of Particular 2, the contents of which were described as “incredibly unprofessional” by Mr Shanks and consisted of Mr Egger being very critical about people at the Trust and using inappropriate language.
21. Mr Egger was then absent from work for an extended period of time.
22. On or around 28 October 2020, Nicola Richardson (at the time employed by the Trust as the Allied Health Professions Lead for Education and Governance) was asked by Mr Egger’s then Line Manager, Caitlin Charlton (Inpatient Service Manager) if she could offer any support for Mr Egger’s education needs. Ms Charlton explained that Mr Egger was working through a supported improvement plan and required additional support in order to action elements of his plan. Ms Richardson was asked if she could work alongside Dawn Mitchell (Occupational Therapist), to plan and provide Mr Egger with support-focused activities based on the objectives in his supported improvement plan, before he commenced his placement at Whitehills Health and Community Care Centre (“WHCCC”) on 4 January 2021.
23. Mrs Richardson and Ms Mitchell carried out two simulation sessions with Mr Egger, one on 8 December 2020 and the other on 17 December 2020, each followed by reflection and 1:1 sessions to discuss the sessions. There were concerns raised by both Mrs Richardson and Ms Mitchell, following these sessions, about the level at which Mr Egger was performing, which was considered to be far below that expected of a Band 5 OT and more akin to a second-year student at university.
24. On 5 January 2021, Mr Egger was moved to what was to be his final location at the Trust, namely WHCCC. His supervisor was Lynne Houston (Clinical Lead Occupational Therapist and Professional Lead for Tayside). Mr Egger was initially required to attend a two-week induction. Ms Houston described her team as small and close-knit and as the work in her team was not fast paced, it provided Mr Egger the time to feel orientated and a good opportunity to complete his supported improvement plan.
25. It was said that, during his induction period, Mr Egger made a number of errors and, on 12 January 2021, provided an ineffective handover. There were also issues with his timekeeping.
26. On 14 January 2021, Mr Egger informed Ms Houston that he had made the decision to resign and not continue with his supported improvement plan. Ms Houston said that “Overall Mr Egger was unable to prioritise few tasks or adapt to changing needs or demands of his role as an occupational therapist. He struggled to communicate his findings with a small cohesive and supportive team. He displayed willingness and enthusiasm but lacked the confidence to put his knowledge into practice.”
27. Throughout his time in these four locations, Mr Egger was subject to an informal improvement plan (sometimes referred to as a supported improvement plan), but was deemed to have not been able to demonstrate the required skills and knowledge to practise as a Band 5 OT.
Application to amend
28. At the conclusion of the live HCPC evidence in this case, Dr Danti made an application to amend Particular 1(b)(iii). The application was to replace the words ‘medical history’ with the words ‘occupational therapy’. Dr Danti submitted that this was to reflect the evidence of Mr Oakley, when it became apparent that his exhibit CO/6 had been incorrectly labelled. She submitted that this was clearly just a typographical error, it did not affect the nature or seriousness of the matter alleged and would cause no prejudice to Mr Egger.
29. Ms Wishart, on behalf of Mr Egger, did not oppose the application, although she questioned whether what was left with that Particular, if the amendment were allowed, amounted to a regulatory concern.
30. The Panel considered the application with care, taking into account the submissions made by both parties and the legal advice provided by the Legal Assessor. He advised the Panel that, in accordance with established practice in regulatory tribunals, the Panel may amend the allegation at any stage prior to the findings of fact, unless having regard to the merits of the case and the fairness of the proceedings the required amendment cannot be made without injustice.
31. During the course of Mr Oakley’s evidence it was established that his exhibit CO/6 had been incorrectly labeled as ‘medical history notes’, rather than ‘occupational therapy notes’. As a consequence of that error, Particular 1(b)(iii) had been incorrectly drafted. The Panel decided, therefore, that the Particular should be amended in order to accurately reflect the evidence. The Panel was satisfied that allowing the amendment would cause no prejudice to Mr Egger and did not make the allegation he faced more onerous.
32. Ensuring a Particular accurately reflects the evidence is important and in light of the lack of any objection to the proposed amendment the Panel concluded that it was in the interest of justice to allow Dr Danti’s application. The amendment is reflected in the Allegation set out above.
Decision on Facts
33. In reaching its decisions on the facts the Panel took into account all the evidence provided, including the oral evidence of the six witnesses called on behalf of the HCPC and the oral evidence of Mr Egger. The Panel also took into account the submissions made by Dr Danti on behalf of the HCPC and those made by Ms Wishart on behalf of Mr Egger. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case and to do so on the balance of probabilities.
34. The Panel heard live evidence from:
• Dawn Mitchell - Bank OT employed by the Trust;
• Daniel Shanks - OT Team Lead, employed by Prison Healthcare at the Trust;
• Lynne Houston - Clinical Lead OT & Professional Lead for Tayside, based in Whitehall’s Health and Community Hospital, employed by the Trust;
• Karen Collins - Clinical Professional Team Manager and Perth and Kinross Occupational Therapy Professional Lead, employed by the Trust;
• Crispin Oakley - Occupational Therapist Team Lead on the Acute Medical Unit: Stroke and Frailty, within Perth Royal Infirmary, employed by the Trust;
• Nicola Richardson - Director of Allied Health Professions, employed by the Trust;
• Randall Egger - the Registrant.
Particular 1(a)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
a. You did not complete an informal improvement plan.
35. Mr Egger admitted that he did not complete the informal improvement plan and this was confirmed by Ms Mitchell. Mr Egger denied, however, that he had not demonstrated the required skills and knowledge to practise as a Band 5 OT.
36. The Panel considered the timeline in this case from the information that was available. Mr Egger was interviewed for the post at the Trust by Ms Collins. Her memory of the matter was that Mr Egger was employed on a rotational basis, notwithstanding the job description made no mention of it being a rotational role. Ms Collins said that the rotational system was something of an aspiration that they were in the process of implementing and was very much a work in progress. She said that Mr Egger was aware of this and was content. When he gave evidence, Mr Egger confirmed he was employed on a rotational basis, although he was expecting each rotation to last between six to nine months.
37. When he started at the Trust in July 2019, Mr Egger’s clinical supervisor and Team Lead was Lynne Armstrong. There was no evidence provided by Ms Armstrong to the Panel.
38. Ms Collins, who was a Team Lead in a different area, was made aware by a colleague that there were issues with Mr Egger. Ms Collins did not know why the colleague came to her rather than Ms Armstrong. Ms Collins said that she had a ‘niggle’ about Mr Egger. She thought it was inappropriate that he be in charge of Ward 3 and up to 30 patients, when newly qualified. She spoke with Ms Armstrong who, she said, had no concerns as Mr Egger was new to the role.
39. When Ms Armstrong went on annual leave, Ms Collins suggested to her manager that she and her colleague, Mr Oakley, could offer support during Ms Armstrong’s period of leave. Ms Collins did not know, or could not recall, what Mr Egger’s induction at the hospital consisted of, but she said that there were a number of gaps that needed filling and so she devised a development/support plan to assist and monitor Mr Egger’s development. It seems this was done in conjunction with Mr Oakley and Mr Egger.
40. Ms Collins then effectively took over from Ms Armstrong, who did not return to supervising Mr Egger. His workload was reduced to just three patients and his plan was reviewed daily by Ms Collins and Mr Oakley. Ms Collins said that Ward 3 was a particularly fast-paced ward and a challenging environment for a newly qualified OT.
41. Nevertheless, he continued to make the same mistakes, displaying no insight into the nature of the concerns raised about his practice.
42. Over the following weeks some progress was made, particularly when Ms Collins invested a lot of time in supporting Mr Egger. However, when Ms Collins went on annual leave she found on her return that Mr Egger had regressed, and the improvements made seemed to be lost. It appears that even the reduction of the number of patients was not enough to enable Mr Egger to properly develop and the decision was made to move him to Tay Ward, a ward that provided slow-stream rehabilitation and was therefore considered to be a better environment for Mr Egger. Unfortunately, Mr Egger continued to struggle and there continued to be issues with his clinical assessment and interactions with patients, together with issues with the way in which he documented matters. It was said that his notes continued to display no evidence of clear thinking, were not concise and his analysis was difficult to identify.
43. Ms Collins said of her last interactions with Mr Egger that she did not have confidence in him practising as a Band 5 OT. She said she had concerns that there was not the ‘carry-over’ that she would have expected, given the level of support and investment of time provided.
44. In his evidence, Mr Egger highlighted that ordinarily a Band 6 OT would be on the AMU, not a Band 5 and that it was a particularly challenging ward to be placed on fresh out of University. He said that Ms Armstrong did not have an issue with his performance, but that when he started to be supervised by Ms Collins, Mr Oakley and Ms Tsouleas they all had a different way of doing things and it became confusing. He said, “Having so many different people giving their clinical reasoning made it difficult for me to know where I stood.”
45. When the Registrant moved to Tay Ward, he felt that his supervisors were just finding holes in his practice as a way of getting him to be reported to the HCPC, or to make him feel so ground down that he would resign. He said, “having all three supervisors observing what I did, I found the whole thing extremely stressful and I put in a complaint of bullying against me.” It was investigated by Caitlin Charlton who, ultimately, did not find the complaint to be substantiated. It was agreed Mr Egger would continue the improvement plan in a different area.
46. Mr Egger was then moved to MRH, where he worked from February 2020 to May 2020. Mr Egger described MRH as a much more positive environment, where he was given more responsibility and felt that not everything he was doing was being scrutinised. He enjoyed his time there and found the team really helpful and supportive. It was a different change of pace and a lot easier to learn the skills and requirements needed there. However, in May 2020 he got Covid and was off for two weeks and thereafter did not return to MRH, for reasons unconnected with him.
47. He was then placed at HMP Perth. Initially Mr Egger was excited as he considered it an amazing experience to work as an OT in a prison setting and he had great respect for Mr Shanks. However, it proved to be a huge adjustment and “quite a scary experience." Mr Egger felt that Mr Shanks was “quite tough”, and he was not “making the grade”. He said he felt he had “given 100%” and yet was not showing any improvement. This made it difficult, mentally, for him to continue.
48. Mr Shanks gave evidence about Mr Egger’s time at HMP Perth. He was aware that Mr Egger was on an improvement plan and needed extra support. He said, however, that the amount of support Mr Egger required became unsustainable and was impacting service delivery. This was due to the large amount of time that was required to support Mr Egger in order for him to work through his improvement plan. This included lengthy debriefs with Mr Egger in order to discuss patient reviews and how these should be written up in patient records. He would also find it difficult to retain, and subsequently recall, accurate levels of information if they were complex, or if the conversation or clinical interaction was fast moving. It also took Mr Egger a long time to put his thoughts or a summary of conversations or interventions onto paper.
49. In Private
50. Mr Shanks was of the view that Mr Egger required a setting with no time pressure and no expectations to be placed upon him in order to support his clinical outcomes, to be at a sufficient level for his grading.
51. Mr Shanks said that Mr Egger told him he was concerned about the amount of support he required and the impact this was having on the service and patient care. Mr Shanks said that Mr Egger raised concerns about not enjoying working as an OT. Mr Egger told Mr Shanks that he wanted to stop his placement as an OT and leave the profession. Mr Shanks said that he reassured Mr Egger that he was seeing improvements in his work and that his hard work was not going unnoticed. Mr Egger then decided to continue with his placement for a few more days. He did not, therefore, complete his supported improvement plan whilst at HMP Perth.
52. On 30 August 2020, Mr Egger sent an email to Ms Charlton and Mr Shanks, headed ‘Constructive dismissal/resignation (the subject of Particular 2 below). Mr Egger accepted this email was unprofessional and he regretted sending it.
53. In October 2020, Ms Dawn Mitchell was asked by Mr Egger’s Line Manager, Caitlin Charlton, to support Mr Egger’s education. It was explained that Mr Egger was working through a supported improvement plan and required additional support to action elements of his plan before commencing a role as a Band 5 OT at WHCCC. It was thought Ms Mitchell would be beneficial to Mr Egger as she had known him from his time at University and because of her educational experience.
54. Mr Mitchell was asked to work alongside Mrs Nicola Richardson, Tayside AHP Lead for Governance and Education, to provide Mr Egger with focussed learning before he commenced his placement at WHCCC in January 2021. Ms Mitchell created a plan jointly with Mr Egger about what would be covered in his first two weeks of induction, designed to familiarise Mr Egger with the setting, team members, clinical processes and documentation at WHCCC. Prior to the induction period Mr Egger participated in two simulated patient learning sessions, which he struggled with.
55. Ms Mitchell also agreed to support Mr Egger in completing a ten-week supported improvement plan once he was based at WHCCC.
56. In Private
57. On 5 January 2021, Mr Egger commenced his placement at WHCCC and was supervised by Ms Lynne Houston. There continued to be issues during those early days at WHCCC and, on 14 January 2021, it was agreed that Mr Egger would complete an assessment with a patient and Ms Mitchell would shadow him. During this assessment, Mr Egger was struggling to ask the patient the appropriate and correct prompting questions in order to establish how they were doing. Ms Mitchell was required to prompt Mr Egger on several occasions during this patient assessment to ensure that Mr Egger obtained all necessary information to complete the assessment.
58. After the assessment, Ms Mitchell asked Mr Egger how he thought the assessment went. Mr Egger said that he wanted to 'call it a day' as he found the process too difficult, and he no longer wanted to be an Occupational Therapist. Ms Mitchell told Mr Egger that she did not want him making any rash decisions and asked him to take a break to reflect, prior to meeting with her again to discuss his decision.
59. Ms Mitchell said that after the break, Mr Egger appeared calm but repeated that he did not wish to continue with his induction. Ms Mitchell highlighted the importance of Mr Egger completing his improvement plan as required by Ms Charlton, but Mr Egger explained that he had made up his mind and that he knew the consequences that not completing his improvement plan could have on his registration.
60. Mr Egger then sent an email the same day, 14 January 2021, entitled ‘email of resignation’. Ms Mitchell described Mr Egger as completely professional within this email and highlighted how he had been given support, but he did not wish to continue with his supported improvement plan.
61. Mr Egger said that “My confidence at this point, having been on the supported improvement plan for so long and transferred to so many different places, meant I was at an all-time low” so he thought he should resign.
62. During their evidence all the live witnesses were similar in that they felt that with more time and in the proper environment and with the necessary support, Mr Egger could succeed as an OT.
63. The informal improvement plan initially put in place on 24 September 2019 documented the same five core skills of a Band 5 that Mr Egger had to achieve. The improvement plan was variously described, but in essence followed Mr Egger as he rotated to the various different settings. It was never completed and, when he resigned on 14 January 2021, Mr Egger acknowledged that he had not completed it. He said, “I fully appreciate this is me declining my support and improvement plan.”
64. Since he resigned before the Improvement Plan was completed it was evident to the Panel that the allegation against Mr Egger in Particular 1(a) was proved and Mr Egger admitted as much.
65. The Panel, therefore, found Particular 1(a) proved.
66. The Panel decided to consider the main stem of Particular 1 once it had made all its findings of fact relating to the sub-particulars contained within Allegation 1.
Particular 1(b)(i)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
b. You did not maintain accurate and complete service user records in that:
i. On or around 17 August 2020, you failed to record that Patient A had reported poor mental health.
67. The HCPC relied on the evidence of Mr Shanks. He said:
“When assessing this medical record, I found that Mr Egger had omitted the fact that Patient A had reported poor mental health. Mr Egger had just written that Patient A had engaged in the session and did not mention his mental health. I found this concerning as it is very important to include comments on a patient’s mental health in their records. Mr Egger would have known to do this because a fundamental of being a health professional is to listen to what a patient tells you and to record all what they have written accurately.”
68. Patient A was assessed by Mr Shanks and it was Mr Egger’s role to make a record of the assessment. On page two of that record there was an entry ‘Mental Health - Patient engaged with OT throughout sessions.’ When reviewing this record Mr Shanks had drawn a line through that entire entry. There was also an asterisk at either end of the entry.
69. In his feedback session with Mr Egger relating to the recoding of this assessment, Mr Shanks recorded: “Clinical reasoning was poor … - no mention of … mental health and wellbeing.”
70. In his oral evidence Mr Shanks confirmed that during the assessment with Patient A he had not been making any notes himself.
71. When being cross-examined on the notes from the feedback session, Ms Wishart asked the question, “Could you take a look at the page because I don’t see a mention of missing mental health cues by Patient A on these notes?” Mr Shanks answered, “No, I agree there isn’t that there.” He was asked why that would be and he replied, “These were just notes that - why would that be? Because it probably wasn’t mentioned during the verbal debrief session. This is what Mr Egger was discussing and verbalising to me. There was no, I’m assuming there was no mention of what had happened or what was missing in that session.”
72. Mr Shanks was asked why, when crossing out the reference to mental health, he had not made any notes, as he had done with other entries he took issue with. Mr Shanks responded saying, “I don’t know. I can’t answer that at all. I don’t know.” Mr Shanks added that there were asterisks next to the entry, but he didn’t know what he was referring to by putting them there. He added that “scoring it out completely (the reference to mental health) was incorrect and it should have been like a tick and then more information required.”
73. In his oral evidence Mr Shanks said that the purpose of seeing Patient A was to carry out a Functional Transfer Review. Mr Egger said he did not recall Patient A making reference to poor mental health during the assessment. Mr Egger said Patient A was able to maintain eye-contact, he was sitting up in bed, he was able to transfer to his wheelchair and was able to describe things happening in his cell. He said Patient A engaged throughout the assessment and that is what he recorded.
74. The Panel considered Mr Shanks’ evidence in relation to this assessment and the feedback afterwards to be less than clear and his lack of an explanation for crossing out the entry relating to mental health did not assist the Panel either. The Panel had to be persuaded, on the balance of probabilities, that Mr Shanks actually carried out an assessment of Patient A’s mental health by asking questions and observing him and that was not clear to the Panel. He had made corrections to Mr Egger’s entries but did not know why he had fully crossed out the entry relating to mental health, nor did he know why he had not put more information required about mental health.
75. In all the circumstances the Panel was not satisfied that Mr Shanks had fully assessed Patient A, certainly in relation to his mental health, and therefore it was not persuaded, on the balance of probabilities, that Mr Egger had failed to record that Patient A had reported poor mental health. This Particular is thus found not proved.
Particular 1(b)(ii)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
b.You did not maintain accurate and complete service user records in that:
ii. On or around 22 October 2019, you included medical information about Patient D's spouse, within their records;
76. In the OT notes for Patient D, timed at 11:51 on 22 October 2019, Mr Egger recorded “wife has alzheimers, pseudogoutt, gout, cateract, hypithyroid, deafness.”
77. Mr Egger has admitted he recorded these details. This is clearly all medical information about D’s spouse and the Panel therefore found Particular 1(b)(ii) proved.
78. The Panel decided to deal with the stem of 1(b) once it had made its findings on all the sub-particulars under 1(b) and this is therefore dealt with below.
Particular 1(b)(iii)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
b.You did not maintain accurate and complete service user records in that:
iii. On or around 22 October 2019, you included Patient D's social history within their occupational therapy notes.
79. In the OT notes for Patient D, timed at 11:51 on 22 October 2019, Mr Egger recorded “GELS Check Equipment/Comment: Social work organising community alarm”.
80. Mr Egger has admitted he recorded these details. This relates to Patient D’s social history and the Panel therefore found Particular 1(b)(iii) proved.
Particular 1(b) stem in relation to 1(b)(ii) and 1(b)(iii)
81. Having found Particulars 1(b)(ii) and 1(b)(iii) proved, the Panel next decided whether this amounted to a failure to maintain accurate and complete service user records for Patient D, as alleged in the stem of Particular 1(b).
82. With regards to 1(b)(ii), Mr Oakley’s evidence was that “a health professional should never write somebody else's past medical history within a patient's past medical history.”
83. Mr Egger said that at the time he thought it was important to record what Patient D had told him about his wife’s conditions, but he could now see, with hindsight, that he should not have put it in the occupational therapy notes and he apologised. He added that he thought it was more important to have recorded it in the occupational therapy notes than to have made no record of it at all.
84. The Panel accepted the evidence of Mr Oakley that it was not appropriate to record the medical history of Patient D’s wife within Patient D’s records. Had Mr Egger referred to Patient D ‘reporting’ that his wife suffered from various medical conditions and how his return to home would be impacted by his wife’s care needs then this would have been more acceptable.
85. However, simply stating as a matter of apparent fact that Patient D’s wife suffers from named illnesses is not appropriate or helpful and meant Patient D’s record was neither accurate nor complete. The Panel therefore found the stem of Particular 1(b) proved in relation to 1(b)(ii).
86. With regards to 1(b)(iii), Mr Oakley’s evidence was that “Mr Egger also wrote about Patient D's social history within their medical history notes. For example, on 22 November 2022, he once wrote Patient D had a community alarm, an alarm used by the elderly to indicate if they have fallen over. This is not supposed to be written in a patient's medical history notes.”
87. Although Mr Oakley had referred to Patient D’s ‘medical history notes’, he was later to agree that this was an incorrect description and that in fact it was Patient D’s ‘occupational therapy notes’, hence the amendment to Particular 1(b)(iii). Mr Oakley said in his oral evidence that the inclusion of the reference to the community alarm was a “minor” point.
88. Mr Egger said he included the comment about the Social Worker having organised the community alarm because this was related to the patient’s discharge. He said organising a community alarm is something that can be done by an OT or a Social Worker. He therefore considered it to be important information to include, because if the patient were moved to another ward the OT would see that note and know that it was not something that they had to organise, as it was already being dealt with by the Social Worker. Mr Egger said that a community alarm is something that can be used if a patient is at home and have a fall. They can touch the community alarm and a team assigned to the individual will get notified and be able to go to the house and provide assistance. Mr Egger said this was a really important piece of information for the MDT (Multi-Disciplinary Team) to be aware of. He said it makes the patient’s discharge home a lot safer and also is not something that needs to be put in place in order for them to be discharged.
89. Mr Egger accepted the suggestion that he could have put this information in the SOAP (Subjective, Objective, Assessment, Plan) note, but said that that the OT record was not just a medical history, nor did it just focus on what had happened in the patient’s past. It also looks at where they are now and he included this information in the ‘equipment’ part of the record.
90. The Panel was of the view that it is relevant and appropriate to document things that will affect a patient’s future discharge-planning in their occupational therapy record. It may have been more appropriate to record it in a SOAP note, but including such information in the occupational therapy record did not render the record inaccurate or incomplete. It followed that the Panel did not find the stem of Particular 1(b) proved in relation to 1(b)(iii).
Particular 1(c)(i)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
c. You did not demonstrate consistent or accurate clinical reasoning in that:
i. On 28 October 2019, you conducted an assessment on Patient C, when it was clinically inappropriate to do so;
91. Mr Oakley said “On 28 October 2019, I asked Mr Egger to continue with assessing and rehabilitating Patient B, someone that Mr Egger was currently providing Occupational Therapy to on the ward.” However, instead of assessing Patient B, Mr Oakley discovered that Mr Egger had assessed Patient C, a patient who was not on Mr Egger’s caseload. Mr Oakley said that he had informed Mr Egger that an occupational therapy referral for Patient C had been received but he did not want anyone going to see Patient C. This was because Mr Oakley had screened Patient C as part of the occupational therapy procedure and deemed him medically unfit to be seen.
92. Mr Oakley went on to say that at the time of Mr Egger's assessment, Patient C had a national early warning score ("NEWS") of 6. Mr Oakley said a NEWS score of 6 indicated that Patient C was very unwell, and it should have been clear to Mr Egger that Patient C was not well enough for occupational therapy. Regardless, Mr Egger started to assess Patient C, which included obtaining their social and functional history and making a treatment plan. Mr Oakley added that on 13 November 2019, in supervision, Mr Egger informed him that he got Patient C up and out of bed.
93. Mr Oakley said, “My concerns with Mr Egger's conduct here were that he performed an assessment on Patient C who was gravely ill and totally not suitable for an Occupational Therapy assessment and not Patient B as instructed. I was very clear with my instructions, and so was concerned that Mr Egger was unable to follow them.”
94. When speaking to Mr Egger about this incident, he explained to Mr Oakley that he had read Patient C's notes prior to conducting the assessment. Mr Oakley found it concerning that Mr Egger did not pick up on how unwell Patient C was when reading those notes. In Mr Oakley’s view a “second-year occupational therapy student would have been able to establish that Patient C was too unwell to commence an occupational therapy assessment, so Mr Egger should have been able to do so also.”
95. On 13 November 2019, in supervision Mr Egger stated that Patient C was appropriate to be seen as he had observed him sitting out in his chair, interacting with nursing staff. However, he acknowledged that he should have considered Patient C's NEWS score prior to intervention. Mr Oakley said this was not accurate and evidence of this is clearly documented in the medical, nurse and physiotherapy clinical records.
96. Mr Oakley added that “Mr Egger's response included him apologising and explaining that he thought I had instructed him to see Patient C, and not Patient B. However, in the supervision session on 13 November 2019, Mr Egger explained that Patient C was suitable for occupational therapy. He outlined how he did not make a mistake and that Patient C was medically fit for occupational therapy. I proceeded to give him a detailed account of the incident after which he no longer disputed Patient C's unfitness for occupational therapy and stated that I had a very good memory.”
97. Mr Oakley said that no physical harm occurred to Patient C as a result of the unnecessary assessment but performing that assessment could have caused considerable stress. Patient C had chest pain and was on oxygen. There was, therefore, high potential for harm to occur as he was not physically able to get out of bed.
98. In his oral evidence Ms Wishart said to Mr Oakley:
“I am going to put Mr Egger’s position to you, Mr Oakley, and then just get your opinion on that at the end. His position is that when Mr Egger went to go and attend Patient B, as instructed by yourself, he was asleep and so was therefore not able to assess, and then after a nurse attending Patient C asked for some assistance to put Patient C onto a slip sheet to move him on his bed, at this stage Patient C was awake, compos mentis, comfortably moved and Mr Egger engaged in basic occupational therapy questions. Mr Egger accepts the NEWS score was high but that Patient C was engaging with staff, able to answer questions and happy to do so. Mr Egger is pretty clear that he did not get the patient out of bed and simply asked Patient C basic occupational therapy questions. What is your position in relation to that?”
99. Mr Oakley replied:
“I have not heard that before. What I did hear in supervision is that he got them up, which actually I probably do not believe did happen because I think he probably would have documented that. However, if a nurse asks you for some help on a ward, then that would be totally appropriate to do that. It does not then mean you reassess that patient to see if they are suitable for occupational therapy against the direct instruction of your supervisor having already said this patient is too unwell to receive therapy, added to which you can see in the notes that a full history was not able to be taken and subsequently the plan would be to gain further information from the family, so I do not quite go along with that line of reasoning.”
100. Mr Egger said that he admitted 1(c)(i) on the basis of the NEWS score. He did not admit that by conducting the assessment on Patient C he had not demonstrated consistent or accurate clinical reasoning, as alleged in the stem of 1(c). Nor did he admit the stem of Particular 1, that he had not demonstrated the required skills and knowledge to practise as a Band 5 OT.
101. Mr Egger said that prior to the board round he was to see Patient C and after the board round he was to see the patient sitting across from them. He said they both had the same first name and were sitting directly opposite each other and he got confused. He said he knew that was not an excuse.
102. Mr Egger also said that the patient Mr Oakley wanted him to see was asleep, so it was not appropriate to assess them. As for Patient C, Mr Egger said that when he entered the Ward room, Patient C was lying on his bed talking to a nurse. The patient nodded to him so he walked over to say hello. The nurse asked him to give her a hand moving the patient up in the bed and he did. Mr Egger said he then asked Patient C if it was okay to ask him a few questions, the Patient said yes and the nurse did not raise any objections. Mr Egger said he asked Patient C how he had managed before coming into hospital, how he felt at the moment and what his goals were. He said he did not get Patent C out of bed. He accepted that Patient C had an elevated NEWS score, but said he was “clearly very alert and really happy to have a conversation at that point.” Mr Egger said that Patient C had been assigned to his caseload and that is why he carried out the initial assessment.
103. Mr Egger said the initial assessment was to find out the patient’s functional baseline, to know how they had been previously and how different they were currently and how that impacts upon their ability to be discharged safely home. This, he said, was to assist the MDT. He accepted that such questions could be taxing, but said Patient C was sitting up in bed, he was orientated and more than happy to have a conversation.
104. Mr Egger’s account in relation to this Patient varied considerably. However, as stated above, he admitted that, based on the NEWS score he conducted an assessment on Patient C when it was not clinically appropriate to do so. Given his varying accounts, and taking into account the passage of time and the affect of that on memory, the Panel considered the OT record made by Mr Egger at the time to be the most reliable source of evidence. That record had Mr Egger introducing himself to the patient and carrying out an OT assessment, during which a nurse came to the bedside and he assisted the nurse to move the patient up the bed. Mr Egger recorded the patient “lying in bed with a nebuliser in situ”.
105. The Panel was satisfied that, with a NEWS score of 6 and a nebuliser in situ it was clinically inappropriate for Mr Egger to have carried out an OT assessment, and Mr Egger admitted as much. Even if Mr Egger was mistaken about the identity of the patient and even if the patient were able to impart some information about his position, it was inappropriate for Mr Egger to have assessed him at that time.
106. Accordingly, the Panel found Particular 1(c)(i) proved.
107. The Panel decided to deal with the stem of 1(c) once it had made its findings on all the sub-particulars under 1(c) and this is therefore dealt with below.
Particular 1(c)(ii)
Between 1 September 2019 and 14 January 2021, you did not demonstrate the required skills and knowledge to practise as a band 5 Occupational Therapist, in that:
c. You did not demonstrate consistent or accurate clinical reasoning in that:
ii. On 17 August 2020, you intended to conduct Patient A's functional transfer review in a place other than their cell, when it was clinically inappropriate to do so.
108. Mr Shanks said that on 17 August 2020, Mr Egger was due to review Patient A, who was diagnosed with spinal arthritis and had limited movement. The reason for the review was in relation to functional transfers. Functional transfer reviews are conducted to assess whether a patient can complete a movement or transfer. For example, from a bed to a chair safely, or whether they require support or assistance to achieve this. Patient A required assistive equipment and an appropriate environment to complete his basic transfers and activities of daily living. Mr Shanks said that Patient A’s reviews by OTs in the Prison Healthcare Team were usually conducted in his cell, as this was the most appropriate location to assess his functional abilities within his daily living environment and with his assistive equipment.
109. When asking Mr Egger for his clinical reason as to why he intended to conduct Patient A's review at the Health Centre and not in his cell, Mr Egger explained to Mr Shanks that he preferred conducting reviews at the Health Centre because it was quieter, making it easier for him to concentrate. Mr Shanks said this clinical reasoning was not appropriate or reasonable as Mr Egger was putting the needs of himself before the needs of Patient A.
110. Mr Egger said he had been told by Sheena Law that they could conduct assessments in the Health Centre. He said that it could be advantageous to do such an assessment in the Health Centre as there was a plinth that could be moved to different heights. This meant you could practise that and then make a referral for a different type of bed for the patient. He added that it was also a quiet environment, which was better for some prisoners. Also some prisoners, he said, felt self-conscious being seen by NHS staff in their cells so it could be easier for them to be in the Health Centre. Mr Egger said that if you were to practise in a cell and the bed was far too low and the prisoner was struggling and needed assistance, they might feel undignified and it might also cause them pain, whereas doing the assessment in the Health Centre with the plinth meant you could move it to a decent height. Mr Egger said that Patient A had been seen in the Health Centre the week prior for a cognitive assessment and he came by wheelchair, so he was aware that it was possible for Patient A to get to the Centre.
111. Mr Egger disputed Mr Shanks’ account of there not being a wheelchair, saying that there was one in the cell with the Patient. Accordingly, he did not think it was a major concern for him to come across to the Health Centre and furthermore, he said, he had not been saying Patient A had to be seen in the Health Centre, it had just been a suggestion he made during a discussion with Mr Shanks before they went to the cell. Mr Egger described it as an opportunity to bounce ideas off one another and when Mr Shanks told him it was not appropriate to do the assessment in the Health Centre, Mr Egger accepted that and so the assessment took place in the cell.
112. The Panel was not persuaded that the HCPC had proved, on the balance of probabilities, that Mr Egger had ‘intended’ to carry out the assessment at the Health Centre. The Panel found Mr Shanks’ evidence to be at times vague on this point. In Panel questions, he could not recall if Patient A had his own wheelchair and in reviewing Mr Eggers draft notes of the session Mr Shanks had crossed out that Patient A was in a disabled cell, but could not explain why. This was a session with Mr Shanks before they went to the cell, discussing what they might do and the Panel was satisfied with Mr Egger’s evidence that this was no more than a suggestion, rather than an informed intent.
113. The Panel did not accept Dr Danti’s submission that it could find this Particular proved whether it found it to be Mr Egger’s intention or a mere suggestion. The allegation was clear. It alleged Mr Egger had intended to conduct Patient A’s functional review in a place other than their cell. The Panel considered there to be a significant difference between an intention and a suggestion. The suggestion was rebuffed, Mr Egger accepted this and it was therefore not followed up. It was not possible for the Panel to infer from that that Mr Egger had gone so far as to form an intent. The Panel therefore found this Particular not proved.
Particular 1(c) stem
114. Having found Particular 1(c)(i) proved, the Panel next decided whether this amounted to a failure to demonstrate consistent or accurate clinical reasoning. The Panel found Mr Egger’s evidence on this Particular to be inconsistent and unreliable. In his oral evidence he gave various contradictory and differing accounts of how he came to be assessing Patient C. For example he referred to confusing Patient C with Patient B and thus going to him in error, but also said that Patient C was on his caseload and it was not a mistake. He referred to a nurse being with Patient C before he, Mr Egger, went over to speak to Patient C, but also referred to the nurse arriving later and at one stage just passing by. Mr Egger also referred to Patient C sitting in a chair, that he got the patient up and out of bed, but also said that he was in his bed and not in his chair.
115. The Panel was not persuaded that Mr Egger had in fact read the medical notes of Patient C: had he done so it would have been clear that he should not have been asking him OT questions. His decision to carry out an initial assessment represented flawed clinal reasoning, in the Panel’s view, as Patient C had a NEWS score of 6. This meant that he was a very high risk patient and indeed was shortly to be transferred to the High Dependency Unit. Furthermore, Patient C was, as Mr Egger recorded in his notes, on a nebuliser. This would have made it difficult for him to converse with anyone and should have been a clear signal for Mr Egger that it was not appropriate to speak with him, even if he had forgotten Mr Oakley’s clear instructions that Patient C was not to be assessed, as he was medically unfit.
116. Given the high NEWS score and the fact that Patient C was soon to be transferred to the High Dependency Unit, Mr Egger should not have engaged with Patient C and should not have been obtaining information to inform discharge planning for a patient who was so poorly.
117. In all the circumstances, the Panel was satisfied that in conducting an assessment with Patient C, Mr Egger had demonstrated inconsistent and inaccurate clinical reasoning and found the sub-stem of Particular 1(c) proved, in relation to 1(c)(i).
Particular 1 overarching stem
118. Having found Particulars 1(a), 1(b)(ii) and 1(c)(i) proved, the Panel then referred back to the stem of Particular 1 to consider whether these facts found proved meant that Mr Egger had not demonstrated the required skills and knowledge to practise as a Band 5 OT, between 1 September 2019 and 14 January 2021.
119. The Panel could see that a great deal of effort had been made by the various personnel in the different settings at the Trust to support Mr Egger. It was equally clear, however, that he had not been given the most constructive of roles for a newly qualified Band 5 OT. The AMU was a challenging, fast-paced environment and the Panel heard evidence that ordinarily one would expect to be a Band 6 on this Ward. Matters were further complicated by the number of different supervisors allocated to Mr Egger, meaning there was a lack of continuity and he received mixed messages, due to their differing approaches.
120. It was unfortunate that, apart from his own account, there was no evidence of Mr Egger’s time at MRH, where he said things were more positive. The prison was another tough environment for a newly qualified Band 5 OT, particularly one on a supported improvement plan who was struggling. The Panel could quite understand Mr Egger’s frustration and demoralisation of being on such a plan for so long and hence his decision in January 2021 to resign.
121. However, the evidence of all the witnesses called on behalf of the HCPC was that between 1 September 2019 and 14 January 2021, Mr Egger did not demonstrate the required skills and knowledge to practise as a Band 5 Occupational Therapist. Indeed, Mr Egger did not really dispute this, but rather added context.
122. Although a newly qualified Band 5 OT, whilst a student Mr Egger had completed and passed five clinical placements in order to qualify. As such he would be expected to be able to demonstrate the core skills of an OT in his first role, even if those skills needed refining. Despite extensive support from many different OTs in many different areas, over an extended period and with a reduced caseload, Mr Egger was still not able to demonstrate he had mastered the core skills required, as detailed in his informal improvement plan.
123. Ms Richardson, the then Lead for Education and Governance at the Trust, summed it up in her oral evidence, saying:
“It was my opinion at the time Mr Egger was not meeting the essential and core requirements of a Band 5 occupational therapist. I had concerns with his core skills …”
“The skills that were being asked for within the simulated session included initial information gathering and initial interviews. It is my professional opinion that those are core skills that would align to our expectation of a second year student, so we would easily expect a registrant, an employed and registered Band 5, to be able to achieve those, but at the time of the assessment Mr Egger was not consistently and safely able to achieve those tasks.”
124. Accordingly, the Panel found the stem of Particular 1 proved in relation to sub-particulars 1(a), 1(b)(ii) and 1(c)(i).
Particular 2
On or around 30 August 2020 you did not communicate professionally within written communication with your employer.
125. Mr Egger admitted sending this email and that by doing so he had not communicated professionally within written communication with his employer. This admission was supported by the evidence of the email sent by Mr Egger to Mr Shanks on 30 August 2020. On any reading of that email, Mr Egger had not communicated professionally. It was littered with expletives, was accusatory and threatening. It left Mr Shanks feeling angry, shocked, disheartened and hurt. Mr Shanks said he felt threatened by the content of the email, which came ‘out of the blue.’ It led to a lot of soul searching by Mr Shanks, who feared he had failed Mr Egger in some way.
126. Accordingly, the Panel found this Particular proved.
Decision on statutory grounds
127. In reaching its decision on the statutory grounds of lack of competence and/or misconduct, the Panel took account of the submissions of both parties. The Panel also received and accepted legal advice.
Submissions for HCPC
128. In relation to lack of competence (Particular 1(a), 1(b)(ii) and 1(c)(i)), Dr Danti referred the Panel to the cases of Calhaem v GMC [2007] EWHC 2606 (Admin) and Holton v GMC [2006] EWHC 2960. She submitted that the Panel had evidence of a fair sample of the Registrant’s work. Dr Danti referred the Panel to the evidence of the HCPC witnesses who had covered the Registrant’s work over a significant period of time and in a number of different placements. Dr Danti submitted that this was not a case in which there was a single instance of the Registrant’s lack of competence but that those facts found proved in Particular 1 related to a pattern of deficient performance.
129. Dr Danti submitted it was reasonable to expect that a newly qualified registrant who had passed five clinical placements in qualifying as an OT, would be able to demonstrate the core skills of a Band 5 OT, even if those core skills needed refining.
130. Dr Danti referred to three questions which the Panel should consider:
i) was the Registrant made aware of the issues with his competence
ii) was the Registrant given an opportunity to improve
iii) was there evidence of further assessment of the issues.
131. Dr Danti submitted that the evidence showed that the answer to all three questions was “yes”. She referred to the supported improvement plan and the evidence of the HCPC witnesses regarding this. She also referred to the extensive level of support provided to the Registrant during his time with the Trust, and to the Registrant’s evidence where he had agreed that he had been given this support. Dr Danti submitted that despite this level of support, the Registrant had not been able to demonstrate the core skills of a Band 5 OT.
132. Dr Danti reminded the Panel that the overarching objective of the HCPC was the protection of the public. She submitted that the Registrant’s conduct gave rise to a risk of significant harm to patients, and referred the Panel to the risk of harm to Patient C.
133. In relation to misconduct (Particulars 1 (a), 1 (b) (ii), 1 (c) (i), and Particular 2), Dr Danti submitted that the Registrant had acted in a way which fell far short of what would be proper in the circumstances and what the public would expect of a registered Occupational Therapist. Dr Danti referred the Panel to the definition of “misconduct” as set out in the case of Roylance v GMC [2001] 1 AC 311 which states,
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a [medical] practitioner in the particular circumstances”.
134. Dr Danti submitted that the Registrant’s colleagues would be shocked that he had continually failed to meet the standards expected of an OT, and in particular, when he had conducted an assessment of Patient C despite having been told not to do so.
135. Dr Danti submitted that the Registrant’s shortcomings were so serious that public confidence could be undermined to the extent that members of the public would lose trust in the OT profession and may not seek necessary treatment.
136. Dr Danti submitted that the Registrant’s shortcomings in relation to Particular 1 had occurred over a period of time and were sufficiently serious as to amount to misconduct.
137. In relation to Particular 2, Dr Danti referred the Panel to its findings in paragraph 125 above and submitted that no colleague of the Registrant’s should be communicated with in this way. She submitted that colleagues would be shocked and appalled by the email.
138. In relation to both those matters found proved in Particular 1 and in Particular 2, Dr Danti also referred the Panel to the HCPC’s Standards of Conduct, Performance and Ethics (2016) and submitted that the following Standards were engaged and had been breached by the Registrant:
Standard 1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.
Standard 2.1 You must be polite and considerate.
Standard 2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
Standard 3.5 You must ask for feedback and use it to improve your practice.
Standard 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
Standard 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.
Standard 8.1 You must be open and honest when something has gone wrong with the care, treatment or other services that you provide by:
- informing service users or, where appropriate, their carers, that something has gone wrong;
- apologising;
- taking action to put matters right if possible; and
- taking sure that service users or, where appropriate, their carers, receive a full and prompt explanation of what has happened and any likely effects.
Standard 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
Standard 10.1 You must keep full, clear, and accurate records for everyone you care for, or treat, or provide other services to.
139. Dr Danti also referred the Panel to the Standards of Proficiency for Occupational Therapists in force at the relevant time, and submitted that the following were engaged and had been breached:
Standard 1.2 recognise the need to manage their own workload and resources effectively and be able to practise accordingly.
Standard 2.1 understand the need to act in the best interests of service users at all times.
Standard 2.2 understand what is required of them by the Health and Care Professions Council.
Standard 2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing.
Standard 3.3 understand both the need to keep skills and knowledge up to date and the importance of career-long learning.
Standard 4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem.
Standard 4.3 be able to initiate resolution of problems and be able to exercise personal initiative.
Standard 4.4 recognise they are personally responsible for and must be able to justify their decisions.
Standard 4.6 understand the importance of participation in training, supervision and mentoring.
Standard 8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others.
Standard 9.1 be able to work, where appropriate, in partnership with service users, other professionals, support staff and others.
Standard 9.2 understand the need to build and sustain professional relationships both as an independent practitioner and collaboratively as a member of a team.
Standard 10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.
Standard 11.2 recognise the value of case conferences, supervision and other methods of reflecting on and reviewing practice.
Standard 13.1 understand and be able to apply the theoretical concepts underpinning occupational therapy, specifically the occupational nature of human beings and how they function in everyday activities.
Standard 13.3 be able to understand and analyse activity and occupation and their relation to and effect on, health, wellbeing and function.
Standard 13.5 understand the need to identify and assess occupational, physical, psychological, cultural and environmental needs and problems of service users, their families and carers.
Standard 14.3 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment.
Standard 14.9 be able to select and use standardised and non-standardised assessments appropriately to gather information about the service user’s occupational performance, taking account of the environment context.
Standard 14.12 be able to demonstrate a logical and systematic approach problem solving.
Standard 15.1 understand the need to maintain the safety of both service users and those involved in their care.
Submissions for the Registrant
140. Ms Wishart also relied on the cases of Calhaem and Holton (ibid) and submitted that the findings of fact did not amount to either of the statutory grounds: lack of competence or misconduct. Ms Wishart submitted that the Registrant had accepted that he had made errors during his time at the Trust. She submitted that these were relatively minor practice issues and did not amount to lack of competence or misconduct. Ms Wishart also referred to the following cases: R v Renda (2006) 1 WLR 2948; Nandi v GMC [2004] EWHC 2317 (Admin) and Cohen v GMC [2008] EWHC 581 (Admin).
141. Ms Wishart reminded the Panel that the Registrant had admitted the facts of Particular 1(a). In relation to Particular 1(b)(ii) and 1(c)(i), also admitted by the Registrant, Ms Wishart submitted that these were the only two errors which had been found proved in two years of practice as a Band 5 OT and could be seen as isolated incidents.
142. In relation to Particular 2, Ms Wishart submitted that the Registrant had never behaved in such a way before his employment by the Trust, or since then, and he had taken full accountability for his actions. Ms Wishart submitted that the Registrant’s actions should be viewed in context and referred the Panel to his being “pushed from pillar to post” in his placements. Ms Wishart submitted that the Registrant was not a danger to service users and that the findings of fact made against him in these proceedings were sufficient in themselves and no further action was necessary at this stage.
Decision
Lack of competence
143. The Panel first considered, following the case of Calheam (ibid), whether the evidence in relation to the matters found proved, represented a fair sample of the Registrant’s work. In this regard, the Panel had in mind that the Registrant’s employment with the Trust was his first position since qualifying as an OT. The period of September 2019 to January 2021 therefore represented almost the entire period of his post-qualification professional practice. The evidence in relation to the majority of that period came from three of the four placements where the Registrant had worked. The Panel noted that there was no evidence of the Registrant’s work at MRH where he had been placed for the relatively short period of three months in early 2020.
144. The Panel also noted that from September 2019, the Registrant was placed on a supported improvement plan and was working under supervision of more experienced OT practitioners and, at times, was seeing his supervisors on a daily basis. The Panel heard evidence from a number of these supervisors and the supported improvement plans were exhibited together with supervision notes and other documents relevant to the Registrant’s professional practice.
145. The Panel was satisfied on the basis of this evidence in relation to Particular 1, that there was a fair sample of his work on which to judge his professional performance.
146. The Panel then went on to consider whether the Registrant’s standard of professional performance was “unacceptably low”. In considering this, the Panel had regard to the case of Holton (ibid) to the effect that the standard of performance was to be judged against the standard of professional work reasonably to be expected of the practitioner of the same grade, in this case that of a newly qualified Band 5 OT. The Panel noted that this was the Registrant’s first professional employment post-qualification and considered that it would not be reasonable to expect a newly qualified practitioner to immediately start performing at the levels expected of an experienced Band 5 Occupational Therapist. The Panel also noted that in order to qualify for registration as an OT, the Registrant must have completed 5 clinical placements and would be expected to be able to practise at a Band 5 level albeit that his skills and knowledge might need some support or refinement.
147. In respect of Particular 1(a), the Panel considered that the areas of the Registrant’s practice set out in the supported improvement plan covered core skills and knowledge of Occupational Therapy practice at the entry level of Band 5: communication skills, caseload management, clinical reasoning, clinical learning and documentation/record keeping. The Panel considered that despite the amount of time and the significant amount of support provided to the Registrant, and the reasonable adjustments made to assist him in his practice, such as reducing his caseload, providing a computer to assist with notetaking, and allowing time in the afternoons for this and for study, the Registrant was still unable, to practise at the level reasonably expected of a newly qualified Band 5 OT.
148. The Panel accepted the evidence of Ms Richardson, regarding the simulation sessions conducted in December 2020, that in relation to the core skills of information gathering and initial interviews which she would expect second-year students to be able to achieve, the Registrant was “not consistently and safely able to achieve those tasks”. The Panel noted that it was very shortly after the Registrant resumed work at WHCCC on 4 January 2021, that he decided to resign following an error in filing.
149. The Panel also noted that while the evidence showed the Registrant was capable of improvement in some of the core skills in the supported improvement plans, he was unable to maintain this over time. Although there was no evidence of any harm being caused to service users as a result of the Registrant’s deficiencies in these core skills, the Panel concluded that this was due to the high level of supervision being provided by the various experienced OTs involved with the Registrant during his time at the Trust.
150. In the Panel’s judgment, it was evident from each of the witnesses that the Registrant had been unable, over a significant period of time, to apply his academic knowledge in practice so as to achieve the skills required of a newly qualified Band 5 OT in order to practise safely and effectively. The Panel was therefore satisfied that the Registrant’s professional performance was “unacceptably low” for the role he was engaged to fulfil.
151. In relation to Particular 1 (b)(ii), the Panel concluded that in this specific example of not maintaining accurate and complete service user records by including medical information about Patient D’s spouse within their records, the Registrant had certainly made an error. However, the Panel did not consider that in this instance it indicated the Registrant’s professional performance was “unacceptably low”.
152. In relation to Particular 1(c)(i), the Panel was satisfied that in carrying out an assessment of Patient C against the express instructions of Mr Oakley and where it should have been obvious to the Registrant if he had read Patient C’s notes, observed the NEWS score and with a nebuliser in situ, the Registrant’s professional performance in the core skill of clinical reasoning was “unacceptably low”.
153. Whilst the Panel noted that there was no suggestion the Registrant had caused actual harm to Patient C, there had been a risk of potential harm.
154. Accordingly, the Panel found the statutory ground of lack of competence proved in relation to Particular 1(a) and 1(c)(i).
Misconduct
155. The Panel then went on to consider the statutory ground of misconduct in relation to Particular 1(a) and 1(c)(i), and Particular 2, and whether there had been a serious departure from the standards to be expected of an OT and therefore of serious misconduct. The Panel took the view that as it had concluded the Registrant had made an error in relation to Particular 1(b)(ii) which did not amount to a lack of competence, it did not need to consider this matter in terms of misconduct.
156. The Panel was aware that a finding of lack of competence did not preclude a finding of misconduct in relation to the same matters, but the two statutory grounds were conceptually separate. Misconduct in the context of clinical practice, denoted conduct which was serious and fell far below the standards expected of a qualified OT and was not merely “unacceptably low”.
157. In relation to Particular 1(a) and 1(c)(i), the Panel did not consider that the Registrant’s conduct amounted to a serious departure from the standards such as to constitute serious misconduct. The Panel took the view that the concerns in this case were as to the Registrant’s level of competency across all core skills and knowledge required to operate safely and effectively as a Band 5 OT. The Panel noted that the Registrant was engaging with the supported improvement plan and with his various supervisors. The Panel did not find the statutory ground of misconduct in relation to Particular 1.
158. In relation to Particular 2, the Panel took the view that the Registrant had sent the email at a time when he had been angry, upset and emotional. He had since admitted as much and had apologised for his behaviour. The Panel was satisfied that the Registrant had acted in an unprofessional, ill-advised, immature, inappropriate way. However, it was not satisfied, given the context in which the email had been sent, that this amounted to serious misconduct. The Panel therefore did not find misconduct in relation to Particular 2.
Decision on Impairment
159. Having found the statutory ground of lack of competence established in relation to Particular 1(a) and 1(c)(i), the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of that lack of competence.
Submissions
160. Dr Danti submitted that the Registrant’s fitness to practise is currently impaired on both the personal and public components and referred the Panel to the HCPTS Practice Note on “Fitness to Practise Impairment”. Dr Danti accepted that the Registrant’s lack of competence was remediable but submitted that there was no evidence that the Registrant had taken any steps to remedy it and there was, therefore, a real risk of repetition.
161. Dr Danti submitted that the finding of lack of competence in relation to Particular 1(a), namely that the Registrant was not demonstrating the required skills and knowledge to practise as a Band 5 OT, potentially put patients at risk of harm as the Registrant was not able to practise safely. Dr Danti also submitted that the Registrant’s lack of competence in his clinical reasoning had risked worsening Patient C’s already poor medical condition (Particular 1(c)(i)). She submitted that if this lack of competence were to be repeated, it would potentially put patients at serious risk of harm.
162. Dr Danti submitted that the Registrant had not demonstrated insight into his lack of competence. She submitted that despite significant efforts made by various professionals to support the Registrant in a number of different settings and while the Registrant had admitted he had not completed his supported improvement plan, he had sought to minimise the concerns associated with this by emphasising how he had been treated by his various supervisors. In relation to his involvement with Patient C, the Registrant had given inconsistent, unreliable and contradictory accounts of this. Dr Danti submitted that the Registrant was attempting to shift the blame to others and to minimise the concerns regarding his decision to assess the patient.
163. Dr Danti submitted that there was no evidence of the Registrant having properly reflected on the seriousness and ramifications of the facts found proved by the Panel. She submitted that there was no evidence from the Registrant of remorse, regret and acceptance of what had happened.
164. With regard to remediation, Dr Danti submitted that the lack of competence found in the case occurred some 4 to 5 years ago since when there had been no evidence of any steps taken by the Registrant to remedy his lack of competence. There was no evidence of any continuing professional development (“CPD”) or training courses to remedy the concerns. Dr Danti submitted that, as a consequence, the concerns raised in the supported improvement plans would now be more pronounced. Dr Danti submitted that the lack of any evidence of remediation might be because the Registrant had taken a different career path and was now working in a very different role in which he appeared to be thriving.
165. Dr Danti submitted that the lack of insight and remediation indicated there was a real risk of repetition and so there was a risk of serious harm to patients as the Registrant was not able to practise safely and effectively as a Band 5 OT.
166. With regard to the public component, Dr Danti submitted the public was entitled to expect registrants to be professionally competent. She submitted that a member of the public would be shocked if there was no finding of impairment in a case where a registrant had been found to be lacking in competence in relation to the core skills expected of them. Dr Danti also submitted that if there was no finding of impairment in this case, members of the public would lose trust in the Occupational Therapy profession and in the HCPC as its regulator. They might not seek assistance from, or feel safe when being treated by, OTs. Dr Danti submitted that the Registrant had brought the Occupational Therapy profession into disrepute as his lack of competence in the core skills of an OT had breached fundamental tenets of the profession.
167. Ms Wishart submitted that the Registrant’s current fitness to practise was not impaired. She submitted that although the Registrant had not worked as an OT since early 2021, he had been working in a regulated-type role with the Scottish Social Services Council (SSSC), working with young people at the Aberlour Continuing Care Service. Ms Wishart submitted that the Registrant was unable to take up a regulated SSSC position while these proceedings were ongoing but submitted that he had been subject to the same checks as if he had been registered in this role and there had been no regulatory concerns raised regarding his practice. Ms Wishart referred the Panel to the two references provided by people who have worked with the Registrant in his current role.
168. Ms Wishart explained to the Panel that the Registrant loves his current role and that a finding of impairment could impact on any application for registration with the SSSC. Ms Wishart also informed the Panel that until the Registrant had seen the Panel’s decisions regarding his lack of competence, the Registrant had not considered that he might be able to return to practise as an OT but that now he could see there might be a way back to the profession.
169. Ms Wishart submitted that the Registrant had insight into his lack of competence which was shown by his admissions and having accepted full accountability. She submitted that the Registrant had been very open with the Panel in his evidence, he had apologised to Mr Shanks and to patients, and he knew that he had let himself and others down. Ms Wishart submitted that a reasonable member of the public aware (i) that the Registrant could have been in a regulated role since 2021 had he been able to apply for registration with SSSC, (ii) that he was no longer a danger to patients, (iii) of the challenges faced by the Registrant during his time with the Trust, would not have any further concerns regarding the Registrant’s fitness to practise. Ms Wishart submitted that the non-completion of the improvement plan and the incident with Patient C were relatively isolated incidents and there had been no repetition in the period since then.
170. Ms Wishart explained that the Registrant had not completed any CPD in OT but that if he were to return to practise as an OT he would have go through a return to practise process as he had not practised as an OT for over two years. Ms Wishart submitted that the Registrant had not had the best of starts to his career as an OT with the Trust and that his fitness to practise was not currently impaired.
Decision
171. In relation to impairment, the Panel received in evidence two references provided by work colleagues of the Registrant in relation to positions he had held since he had left the Trust. The Panel was referred to the guidance set out in the HCPTS Practice Note on “Fitness to Practise Impairment”, and it took account of the submissions of both parties. It received and accepted legal advice.
172. The Panel reminded itself that fitness to practise was “generally accepted to mean that a registrant has the skills, knowledge, health and character to practise safely and effectively” (paragraph 3 of the Practice Note), and that impairment of fitness to practise means “a concern about [a registrant’s]…, competence… which is serious enough to suggest that the registrant is unfit to practise without restriction, or at all” (paragraph 4 of the Practice Note).
Personal component
173. In respect of the personal component, the Panel was satisfied that the lack of competence was remediable. However, it had received no evidence that the Registrant had taken any steps to remedy it. The Panel was concerned that while the Registrant acknowledged that things had gone wrong whilst he was working at the Trust, it did not appear that he had understood why this had happened. Although the Registrant had referred to the level of scrutiny he had been under and how this had impacted on his confidence at the time and on his ability to perform in the role, he has had four years in which to reflect, and he does not appear to have done so. The Panel noted that the Registrant had had time since the decision on the facts in this case was handed down in November 2024 to reflect and it was concerned that there was no evidence to suggest that he had.
174. The Panel noted that the Registrant had been subject to different supervisors in different clinical settings, some slower paced some faster paced. Despite this, the Registrant had floundered and had been unable to practise consistently at the level of competency expected of a newly qualified OT. The Panel did not receive any evidence that the Registrant had understood why he had not been able to maintain with any consistency even the most basic core skills of OT practise.
175. In considering the Registrant’s insight, the Panel had in mind paragraph 28 of the Practice Note which set out that an important factor in considering insight will be the extent to which a registrant accepts:
“a) their behaviour fell below professional standards, understands how and why it occurred and its consequences for those affected;
b) can demonstrate they have taken action to address that failure in a manner which remedies any past harm (where that is possible) and avoids any future repetition”.
176. The Panel did not consider that the Registrant had developed any meaningful insight into the issues in his practice or the impact that his lack of competence in core skills of a Band 5 OT could have on patients (particularly Patient C), his colleagues, his profession or the wider community. The Panel was concerned that the Registrant had not taken the opportunity to complete CPD or other relevant training which might have assisted him in developing insight into his lack of competence.
177. The Panel accepted evidence from the two references provided by the Registrant that he is doing well in his current role. However, the Panel did not consider that these references were of assistance in considering the Registrant’s insight into his lack of competence or in relation to remediation.
178. In the absence of any evidence to reassure the Panel that the Registrant had reflected, developed proper insight and taken steps to remedy his lack of competence in the core skills and knowledge of a Band 5 OT, it was unable to conclude anything other than that there was a risk of repetition in this case. The Panel had no hesitation in deciding that there was an ongoing risk of harm to patients. Accordingly, the Panel was satisfied that the Registrant’s fitness to practise is impaired on the personal component.
Public component
179. In respect of the public component, the Panel was mindful of its responsibility to protect patients from risk of harm and to uphold professional standards of proficiency in the Occupational Therapy profession. The Panel was of the view that public confidence in the reputation of the profession would be undermined if no finding of impairment were made in respect of the Registrant whose professional performance did not reach the level of competency required for a Band 5 OT despite significant support and reasonable adjustments to assist him. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component. The Panel also took the view that a finding of impairment was required in order to uphold the standards of the profession.
180. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired on both the personal and the public component and the Allegation is well founded.
Order
Notes
Right of Appeal
You may appeal to the Court of Sessions in Scotland against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn
Interim Order
- The Panel decided to make an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001. It was satisfied that an Interim Order was necessary to protect members of the public because of the risk that the competency concerns identified might be repeated if the Registrant was permitted to be in unrestricted practice during the period before the Order comes into effect, or the outcome of any appeal. The Panel was also satisfied that an Interim Order was otherwise in the public interest to maintain confidence in the Occupational Therapy profession and to uphold its standards of conduct and behaviour. The Panel therefore decided that an Interim Conditions of Practice Order for 18 months with the same conditions of practice as the substantive sanction, to cover the period of any appeal, was the appropriate and proportionate Order.
- This Interim Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Randall Egger
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
08/01/2025 | Conduct and Competence Committee | Final Hearing | Conditions of Practice |
14/10/2024 | Conduct and Competence Committee | Final Hearing | Adjourned part heard |