Nahashon Ngugi Ngugi
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Whilst registered as an Occupational Therapist and employed by Sandwell and West Birmingham Hospitals NHS Trust, you:
1. On or around 10 January 2014, in relation to Service User A, did not:
a) Speak to a member of the multi-disciplinary team ('MDT') about Service User A before making a decision about seeing the service user;
b) Assess whether he was fit for therapy by undertaking appropriate assessments, In that you did not:
i) Speak to him to see how alert or orientated he was;
ii) Speak to him to establish whether he wanted to participate in therapy;
iii) Review blood results to establish whether he was fit for therapy;
c) Record clinical reasoning in relation to his lack of treatment:
2. On or around 14 January 2014, in relation to Service User B, did not take note of the entry made by the Physiotherapist before assessing him.
3. On or around 25 June 2013, in relation to Service User C, you did not:
a) Did not carry out and/or record an assessment of Service User C;
b) Recorded an inappropriate discharge plan in that Service User C required further medical intervention;
4. On or around 19 August 2013, in relation to Service User D, did not identify areas of cognitive deficit and how these may be treated further and/or managed.
5. On or around 21 October 2013. in relation to Service User E you:
a) Discussed and/or attempted to discuss discharge plans with his
family without obtaining and/or recording his consent;
b) Inappropriately arranged a discharge plan;
6. Between 2 and 8 July 2013. In relation to Service User F:
a) Arranged an inappropriate discharge plan;
b) Demonstrated poor clinical reasoning, in that you:
(i) did not reference and/or take into account Service User F's cognitive and/or mental health issues
(ii) did not assess and/or record Service User F's capacity to live at home
(iii) did not take into account the opinions and/or assessments of the rest of the multidisciplinary team ('MDT')
7. Your actions described in paragraphs 1 - 6 constitute misconduct and/or lack of competence.
8. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired
Service of Notice:
1. The notice of today’s hearing was sent to the Registrant at his address as it appeared in the register on 20 April 2016. The notice contained the date, time and venue of today’s hearing.
2. Accordingly the Panel is satisfied that notice of today’s hearing has been served in accordance with the rules.
Proceeding in the absence of the Registrant:
4. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submissions made on behalf of the HCPC.
5. It was submitted that the HCPC has taken all reasonable steps to locate where the
Registrant now resides and how contact can be made. Information obtained from the Registrant’s wife, suggests that the Registrant is not living at his registered address, and last resided there in June 2014. His whereabouts are currently unknown but his wife reported that he is believed to reside somewhere in Kenya without any intention to return to England. A search agency was used and the only address found for him was his UK address, where service was effected. An email was also sent to the address that the Registrant did use to communicate with the HCPC in July 2014.
6. The HCPC indicated that the Registrant, whilst not believed to be in the UK, has not engaged with the HCPC since 2014, and any adjournment was unlikely to secure his attendance at a future date. It was in the general public interest that a hearing should be held close to the events to which it relates and it is now two and half years since alleged events occurred. These events raised serious questions of competence.
7. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that its discretion to proceed in the absence of the Registrant is one that it should exercise with utmost care and caution. It took into account the submission made, the documentary evidence before it, the principles in the cases of R v Jones  UKHL 5, GMC v Adeogba and GMC v Visvardis  EWCA Civ 162, as well as the HCPC Practice Note entitled Proceeding in the Absence of a Registrant.
8. The Panel noted that the Registrant has not requested an adjournment of today’s hearing and there has been no engagement with the HCPC since July 2014. No representative has been engaged by the Registrant on his behalf and the only correspondence received from the Registrant is an email dated July 2014. The Panel considers that the Registrant has chosen to voluntarily absent himself from today’s hearing.
9. The Panel weighed the public interest in the expeditious disposal of this case, with the Registrant’s own interest, and the HCPC’s purpose of regulating occupational therapists and upholding proper standards of conduct for these healthcare professionals. The Panel decided to proceed in the Registrant’s absence.
Amend particulars of the allegation.
10. The HCPC applied to amend the allegation. It was submitted that the amendments suggested were to clarify matters, and to take into account of some instances where the Registrant may have completed some tasks, but not recorded them. No prejudice would be caused to the Registrant by allowing these.
11. The Panel accepted the legal advice of the Legal Assessor. It considered the nature and type of the changes suggested and the purpose they would serve. The Panel had evidence that the Registrant had been provided with advance notice that an application to amend the notice of allegation would be made but had not chosen to make any representation in regard to this. The Panel found that the suggested amendments sought to clarify what was being alleged and that it would not be unjust to permit the amendments, given that they do not change the substance of the allegations. The amendments permitted are reflected in the particulars of the allegation as set out above:
Hearing in Private
12. The HCPC applied for parts of the hearing to be heard in private, where these related to the private life of the Registrant. This is permitted at the discretion of the Panel. A person supporting the live witness was a colleague and was already aware of the Registrant’s health concerns. Accordingly, a request was made that she be treated in a similar manner to the live witness and remain present, even when the Panel went into private session.
13. The Panel accepted the advice of the Legal Assessor and was assisted by their HCPC Practice Note on Proceeding in Public. The Panel found that the personal information regarding the health of the Registrant were matters relating to his private life. It was not necessary that these matters be heard in public, as the remainder of the hearing could proceed in public, given that the allegations were not drafted so as to be inextricably linked with health issues. The Panel further accepted that given that the witness supporter already knew about these issues, it was not necessary to exclude her from the private parts of the hearing.
14. This concluded preliminary matters.
15. The Registrant worked as a Band 6 Occupational Therapist (“OT”) at Sandwell and West Birmingham NHS Trust (“the Trust”) between 5 January 2009 and February 2014. He was responsible for assessing and treating elderly in-patients on the wards.
16. Issues with the Registrant’s performance were first raised at the beginning of 2012. An action plan was implemented with set objectives. By August 2012, the Registrant was deemed to have met the objectives and the matter was signed off, with the understanding that the capability process would be initiated if further concerns were raised. No further concerns were raised again in 2012.
17. In March 2013, the Registrant’s colleagues began to raise concerns about his practice and communication. The Registrant’s work then began to be monitored, including the case notes that he took. The Registrant met with other more senior members of staff to review his case notes. It was noted that the Registrant’s clinical reasoning was not clear and that in some cases, he had been working to different plans to those being used by other professionals.
18. In July 2012, the Registrant was asked to participate in a new “counselling process” on the recommendation of Human Resources, rather than a capability process being initiated. New objectives for the Registrant were agreed and the Registrant had regular meetings with staff who were senior to him, during July to September 2013, to review his case notes and discuss patients. During this time, several concerns were raised with the Registrant’s case notes and plans.
19. In October 2013, the capability process was initiated for the Registrant who was not considered to be making significant progress.
20. The Registrant had a number of periods of sick leave throughout the process.
Capability meetings were held from October to February 2014, during which
further concerns with the Registrant’s patients were identified. On 27 February
2014, the Registrant went on sick leave. He did not return to work after this date. The capability process was never finalised.
21. Given the periods of sick leave that the Registrant took, he was referred to Occupational Health. Occupational Health deemed him fit to undergo the capability process but the Registrant’s health remained a concern to some of his colleagues. Matters were never resolved before the Registrant left the Trust.
Decision on Facts
22. The Panel applied the principles that the burden of proving the facts is on the Health and Care Professions Council, that the Registrant does not have to prove anything and that the case is only to be decided on the evidence before it on the balance of probabilities.
23. The Panel heard live evidence from Mrs AB, Principal Occupational Therapist at
Sandwell and West Birmingham NHS Test. She had previously provided a signed statement dated 16 May 2016. This statement stood as her evidence in chief. The Panel found her to be a credible and balanced witness in that she indicated when she could not remember specific details.
24. The Panel was also provided with documentary exhibits, including the Trust Capability Process, the Registrant Performance Management Objectives, Records of Supervision and Capability Meeting Notes, Counselling Review Meetings relating to the Registrant and copies of the relevant service user’s clinical notes.
Particular 1(a) is not proved.
25. It is the HCPC’s case that on or around 10 January 2014, when the Registrant was an Occupational Therapist with responsibility for Service User A, he failed to carry out his duties competently. In particular, it was alleged that the Registrant did not speak to a member of the multi-disciplinary team (“MDT”) about Service User A, before making a decision about seeing the service user.
26. The Panel heard live evidence from Mrs Hall that the Registrant said he had spoken to nurses within the MDT. She said that he had told her this a few days after the incident. This is recorded in her notes of a meeting on 13/15 January
2014. While she went onto say that he really should have spoken to physiotherapists or doctors within the MDT, she gave no indication that she did not believe he had spoken to nurses. While this meeting is not recorded in the Registrant’s own records, it is referenced in Mrs Hall notes, “He stated that the nurses had reported that [Service User A] had been hallucinating in the night and [the Registrant] decided that the patient was not fit for therapy.”
27. In the Registrant’s clinical notes there is an entry on 10 January 2014 10.35pm that “hallucinations noted”. Bearing in mind the burden and standard of proof, the Panel finds this consistent with being given information by those in the MDT. Accordingly, the Panel finds it more likely than not that the Registrant did speak with a member of the MDT on 10th January 2014.
28. The Panel therefore finds this particular is not proven.
Particular 1(b) is Proved in its Entirety.
29. The HCPC case is that the Registrant did not properly assess whether Service User A was fit for therapy by undertaking appropriate assessments. The clinical notes do not reveal that there had been any conversation to assess how alert or orientated Service User A was, or to enquire whether he wanted to participate in therapy. Further, there is no suggestion that the blood results were reviewed to establish whether Service User A was fit for therapy. Mrs Hall gave live evidence that this was the expected behaviour of occupational therapists. The Registrant’s entries in Service User A’s clinical notes reflect that he made a decision not to see Service User A, and that his notes were prepared without any face to face meeting or examination taking place.
30. The Panel therefore finds this particular proven in its entirety.
Particular 1(c) is Proved.
31. The Registrant’s own recording does not include any clinical reasoning. Mrs Hall indicated that the Registrant had been invited to add any clinical reasoning he had undertaken but simply not written down, but that he was unable to do so. This was included both in her witness statement and she reiterated this in giving oral evidence.
32. The Panel therefore finds this particular proven.
Particular 2 is Proved.
33. The Physiotherapist who saw Service User B on 8th January 2014, indicated in their notes that Service User B, was “not medically fit for discharge,” twice within a single page of clinical notes. The Registrant made no reference to this, and in fact, on the 14th January 2014, was planning for his discharge, and a suitable care package for him. Mrs Hall said that the Registrant did not appear to have read the previous notes that existed for Service User B. Mrs Hall said that the evidence that clearly demonstrated that the Registrant had not taken into account what the physiotherapist had written, was the inserted comment with an asterisk: “*Poc [Package of care] already been discussed with physiotherapist.” Had he taken proper note of the view of the physiotherapist, there would have been no need for the addition, by way of asterisk.
34. The Panel therefore finds this particular proved.
Particular 3 is Proved in its Entirety.
35. HCPC alleged that the Registrant did not carry out and/or record an assessment of Service User C. Instead, he recorded an inappropriate discharge plan, in that Service User C required further medical intervention. The Registrant’s clinical notes do not evidence that any assessment of Service User C was carried out, and there is no other evidence before the Panel upon which it could concluded that it was. While the Registrant does set out some relevant history, this is distinct from, and does not amount to, an assessment. Had an assessment been done, there is an expectation this would be set out within the clinical notes.
Accordingly, any discharge plan would need to be properly assessed prior to Service User C’s release from hospital, rather than prior to his transfer to another hospital. In the circumstances, the Panel finds that the Registrant recorded an inappropriate discharge plan.
36. The Panel therefore finds this particular proven in its entirety.
Particular 4 is Proved.
37. The HCPC case is that on or around 19 August 2013, the Registrant did not identify areas of cognitive deficit for Service User D, meaning that these could not then be treated further and/or managed. The Panel considered the evidence of the clinical notes that the Registrant recorded on 19 August 2013. His assessment of cognition addresses concentration and sequencing, but misses out the following considerations: memory, reasoning, decision making, and judgement. By not identifying all areas of cognitive deficit, the Panel considers that the Registrant could not assess this appropriately. By not identifying all areas of cognitive deficit, it follows that the Registrant did not address how those areas may be treated further and/or managed.
38 The Panel therefore finds this particular proved.
Particular 5(a) is Not Proved.
39. The HCPC case is that in relation to Service User E, the Registrant discussed, or attempted to discuss, discharge plans with Service User E’s family, without obtaining and/or recording his consent.
40. The Panel considered the Registrant’s clinical notes. While these record that the family were present on 21 October 2013 at 15.47, that an attempted telephone call to “Luke” was made but that there was “no answer” and “will also need POC x 4 on discharge”, the Panel did not find any evidence that the Registrant discussed or attempted to discharge plans with Luke or his family.
41. In any event, there is no evidence before the Panel as to what the Registrant discussed or intended to discuss. The Panel therefore did not go on to consider the issue of consent.
42. The Panel therefore finds particular not proven.
Particular 5(b) is Proved.
considered the detail of the clinical notes recorded in relation to Service User E. It is clear from the Physiotherapist notes recorded at 16.30 on 21 October 2013, that “x2 chest drains in situ”. In the circumstance, the Panel finds that it would not be appropriate to arrange a discharge plan for a service user in this medical condition.
44. The Panel therefore finds this particular proven.
Particular 6 (a) is not Proved.
45. This concerns the Registrant’s failings in respect of Service User F. It is the Panel’s finding that the Registrant demonstrated poor clinical reasoning for the reasons set out in relation to particular 6(b) below. However, it does not follow from the poor clinical reasoning, either was, or was not inappropriate because the rationale behind that plan was unclear. In the circumstances, the Panel is not satisfied on the balance of probabilities that the Registrant arranged an inappropriate discharge plan.
46. The Panel therefore finds this particular not proven.
Particular 6(b) is Proved
47. The Registrant demonstrated poor clinical reasoning, as alleged at (b) in that he arranged a discharge plan, without evidencing any proper assessment of cognitive capability, enabling appropriate strategies to be put in place. The Registrant’s clinical notes do not reference, and therefore could not have taken into account, Service F’s cognitive and/or mental health issues. To not do so, demonstrates poor clinical reasoning.
48. The Registrant’s clinical notes also do not record Service User F’s capacity to live at home, other than to the limited extent of washing and dressing. In the absence of any further evidence that the Registrant did assess Service User F’s capacity to live at home, the Panel finds that he did not. In the circumstances, the Panel finds that the Registrant demonstrated poor clinical reasoning.
49. The Panel also finds that the Registrant did not take into account the opinions or assessment of the rest of the MDT. This is because there is no evidence that he took into account the Consultant Psychiatrist review on 2 July 2013, which stated that, “[Service User F] was low in mood’ and found him to be depressed, and with cognitive deficit. In addition, an entry from a foundation doctor on 2 July 2013, said that the Service User F was ‘confused’ and suffered from dementia. There was no evidence before the Panel that these matters had been taken into account clinical reasoning.
50. The Panel therefore finds particular 6(b) proven in its entirety..
Decision on Grounds and Impairment.
51. The Panel heard submissions on behalf of the HCPC and accepted advice from the Legal Assessor. In considering statutory grounds, the Panel considered whether the behaviour of the Registrant was deliberate. HCPC submitted that there was no suggestion that the Registrant’s failures were deliberate or malicious. Rather the cumulative effect of multiple failings indicates that the Registrant lacks competence, or crosses the threshold of misconduct. While these were pleaded in the alternative, it was not apparent whether the poor health of the Registrant, had been a cause or result of his failures. Any insight the Registrant had had was limited and he had not remediated his failings, making any continued occupational therapy work he did, potentially unsafe.
52. The Panel found that the Registrant’s failings included poor record keeping, inadequate collaborative working, insufficient clinical reasoning, although there are areas of overlap between these categories. The Panel did not find these failings to be deliberate or malicious and had not been given evidence as to whether the issue of health was a cause or result of his failings.
53. The Panel finds that the competence of the Registrant’s work was substantially below a competent occupational therapist. The Panel considers that the failings over a period of ten months represent a fair sample of work for a Band 6
Occupational Therapist. Mrs Hall gave evidence that although the Registrant did not appear to have insight into his failings, and ultimately left the Trust before matters could be resolved, she indicated that his attitude was one where he showed a willingness to learn. Her primary concern remained the Registrant’s health and in light of evidence about the Registrant’s attitude and attempts to improve.
54. The Panel finds that the Registrant has breached the Standards of Conduct, Performance and Ethics, particularly:
1. You must act in the best interest of service users.
10. You must keep accurate records.
55. Further, the Panel finds that the Registrant has breached the standards of proficiency for Occupational Therapists, particularly:
1. Registrant occupational therapists must be able to practise safely and effectively within their scope of practice;
4. Registrant occupational therapists must be able to practise as an autonomous professional, exercising their own professional judgement;
9.4 Registrant occupational therapists must be able to contribute effectively to work undertaken as part of a multi-disciplinary team;
10. Registrant occupational therapists must be able to maintain records appropriately;
14.3 Registrant occupational therapists must be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment;
14.10 Registrant occupational therapists must be able to use observation to gather information about the functional abilities of service users.
56. The Panel therefore finds that the matters found proved amount to a lack of competence.
57. In considering impairment, the Panel has taken into account that the purpose of these procedures is not to punish the Registrant for past misdoing but to protect the public against the acts and omissions of those who are not fit to practise. The Panel is of the view that the Registrant repeatedly failed to act competently in working with Service Users within the Trust.
58. The Panel considers that the matters found proved are remediable but is not evidence on the evidence before it, that his failings have been remediated. Given that no programme to improve performance has been completed, the Panel is satisfied that there is a real risk of repetition of his lack of competence. In these circumstances the Panel finds that there are current concerns relating to the Registrant’s conduct.
59. Having regard to the critically important public policy issues, in the Panel’s assessment the Registrant’s current fitness to practice remains impaired. Confidence in the profession of Occupational Therapists has been undermined as members of the public will be concerned about the failure to behave in a competent way, when the safety and well-being of vulnerable people is at stake.
60. The need for public protection, especially the protection of service users who are vulnerable, and public confidence in the profession is central to the finding of impairment. The public is entitled to expect that Occupational Therapists will act competently. The public is entitled to expect practitioners to put safeguarding responsibilities before their own personal lives. There is a need to maintain confidence in the profession and to declare and uphold proper standards, send a clear message to other healthcare professionals and to maintain confidence in the regulatory process. The Panel considers that such confidence would be undermined if a finding of current impairment were not made.
61. Accordingly the Council’s case is well founded.
Decision on Sanction
62. In considering what sanction, if any, to impose, the Panel has taken account of the all the material before it, submissions made on behalf of the HCPC and the advice of the Legal Assessor.
63. The HCPC indicated that the aggravating feature in this case is the length of time in which the Registrant demonstrated a lack of competence, which is some 10 months. Mitigating features highlighted on behalf of the Registrant, were his good character, his 10 years in practice as an Occupational Therapist at the Trust before these events, some limited insight being demonstrated by the Registrant and the fact that his conduct had not been deliberate or malicious. A question mark remained over this Registrant’s health given that Mrs Hall gave evidence that it had never been established conclusively whether the lack of competence led to poor health or the poor health was the cause of his lack of competence.
64. The Panel took into account that while there has been no specific mitigation advanced from the Registrant, the issue of poor health is one that has repeatedly been brought to its attention of the Panel in this hearing. While some insight was demonstrated by the Registrant by admitting there were difficulties to his supervisors, this was neither permanent, nor helpful to him in addressing his failings.
65. The Panel has referred to the Indicative Sanctions Policy in arriving at a decision.
In considering the appropriate sanction in this matter the Panel has had regard to its earlier findings. The Panel has taken into account both aggravating and mitigating features, including the poor health of the Registrant and the fact that have received no current update as to the Registrant’s current status, in terms of a risk of performance that lacks competence in the future.
66. In view of the seriousness of the case, to take no further action, would not be appropriate as it fails to address the serious issues raised, in that service users did not receive the treatment and assessment they should have done was a fact found proved and the public interest in respect of this.
67. Imposition of a caution order was considered, given that this reflects the Registrant’s breach of professional standards and is more serious than matters which escape sanction. In order to test whether this was the appropriate sanction, the Panel considered whether a more serious sanction was necessary to protect the public, maintain confidence in the profession and maintain confidence in the regulatory process.
68. The Panel went on to consider the imposition of a Conditions of Practice Order and considered the same to be inappropriate as there are no verifiable, realistic or measurable conditions of practice which could address a lack of competence, which remains un-remediated, especially in the context of questionable health; this would make a Conditions of Practice Order unworkable. The Panel has no indication of the Registrant’s willingness or ability to comply with conditions.
69. The Panel next considered a Suspension Order taking account of the Registrant’s lack of competence which had the potential to place vulnerable people at risk. In light of the limited current information about the Registrant’s health and circumstances, the Panel considered this was the only suitable response to the lack of competence found. The Registrant has not completed remedial action to ensure that his lack of competence is addressed, nor provided any evidence which indicates how the risk to service users which he presents, has been addressed, so that similar failings do not reoccur.
70. Accordingly, the Panel has determined that no lesser sanction than a Suspension Order can adequately protect the public interest and potential service users. It is of the view that a Suspension Order would sufficiently address the public interest and public protection. In all the circumstance, the Panel believes an Order of Suspension to be the necessary and proportionate sanction.
71. There is also a need to emphasize the importance of having competent occupational therapists assessing service users.
That the Registrar is directed to suspend Mr Nahashon Ngugi Ngugi from the Register for period of 12 months from the date that this order comes into effect.
This order will be reviewed again before its expiry on 29 July 2017.
History of Hearings for Nahashon Ngugi Ngugi
|Date||Panel||Hearing type||Outcomes / Status|
|20/12/2018||Conduct and Competence Committee||Review Hearing||Struck off|
|29/06/2018||Conduct and Competence Committee||Review Hearing||Suspended|
|22/06/2017||Conduct and Competence Committee||Review Hearing||Suspended|
|30/06/2016||Conduct and Competence Committee||Final Hearing||Suspended|