Eric W Foggitt

Preliminary Matters
Service of Notice
1. The notice of this hearing was sent to the Registrant’s email address as it appeared on the register on 3 March 2022. The notice contained the date, time and modus of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor, and was satisfied that notice of today’s hearing had been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules (the “Rules”).

Proceeding in the absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Mitchell-Dunn on behalf of the HCPC.

4. Ms Mitchell-Dunn submitted that the HCPTS had taken all reasonable steps to serve the notice on the Registrant. She pointed to email correspondence from the Registrant that came from the email address to which the Notice of Hearing had been sent. Ms Mitchell-Dunn reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant. He cautioned the Panel that its discretion was to be exercised with care and caution as set out in the case of R v Jones [2002] UKHL 5.

6. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised the Panel that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

7. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPTS to notify the Registrant of the hearing. The email address to which the Notice of Hearing was sent is one that was provided by the Registrant and from which he has corresponded with the HCPC in the past. It was also satisfied that the Registrant would have been aware of the hearing.

9. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS Practice Note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

10. In reaching its decision the Panel took into account the following:
• The Registrant had not made an application to adjourn today’s hearing;
• In a response to the HCPC in 2020 the Registrant indicated that he did not intend to be present when the allegations were addressed by the HCPC Investigating Committee;
• The Registrant has not engaged in the process since the matter had been referred to the Conduct and Competence Committee by the Investigating Committee;
• All the HCPC witnesses who had been warned to give evidence on the first day of the hearing were waiting to do so;
• There was no indication that if these matters were adjourned that the Registrant would re-engage with these proceedings and attend.

11. The Panel was satisfied that the Registrant was absent voluntarily. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance on any re-scheduled date, in the light of the non-engagement of the Registrant. Having weighed the public interest for expedition in cases, against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

First application to amend the Allegation
12. Ms Mitchell-Dunn, on behalf of the HCPC, applied to amend the Allegation. She submitted that the amendments sought were consistent with the evidence before the Investigating Committee, and that they served to clarify the Allegation.

13. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided the Panel was satisfied that no injustice would be caused by the amendments. The Panel considered that the amendments sought did not change the substance of the Allegation. The amendments did clarify the Allegation and would not cause injustice, as it is always preferable that allegations are as clear as possible so that registrants are clear what is alleged against them for them to respond. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above and the original Allegation is appended to this decision.

Second application to amend the Allegation
14. At the end of the oral evidence of Colleague 1, who was the second witness to give evidence, the HCPC applied to further amend the Allegation.

15. Ms Mitchell-Dunn applied for an amendment to the stem of Particular 2 in regard to the date when it was alleged that the Registrant was given a direction to stop using the ‘Enneagram of Personality’ by Colleague 1. The amendment sought was to delete the words “2012 and/or 2013” and replace them with the words “April 2017”.

16. Ms Mitchell-Dunn also indicated that, in any event, the HCPC would be offering no evidence in relation to the following Particulars:
(a) 2(a)(i)(4);
(b) 2(a)(i)(5)
(c) 2(a)(ii);
(d) 2(a)(iii); and
(e) 2(a)(iv)

17. Ms Mitchell-Dunn submitted that the amendment would better reflect the oral evidence that Colleague 1 had given and would not prejudice the Registrant. She submitted that had the Registrant engaged with the process, he would have been able to review the oral evidence of Colleague 1 and that the substantial amendment is to change the year from 2013 to 2017. She submitted that with the offering of no evidence on the above-mentioned factual Particulars and the fact that the remaining factual Particulars remain the same in that they occur after 2017, there can be no prejudice to the Registrant even in circumstances where he has not attended.

18. The Panel accepted the advice of the Legal Assessor, who again advised that it was open to the Panel to amend the Allegation, provided the Panel was satisfied that no injustice would be caused by the amendments.

19. The Legal Assessor also drew the Panel’s attention to two cases:
(a) PSA v Jozi and NMC [2015] EWHC 764 (Admin); and
(b) PSA v Doree and HCPC [2015] EWHC 822 (Admin)

20. The Panel first considered whether to allow the application to amend today.
(a) The amendment was a fundamental change in what the Registrant was being asked to respond to. The entirety of Particular 2 is on the basis that the Registrant had been directed not to use the Enneagram of Personality by 2013. The amendment extended that time by four years and the Registrant’s attention would not have been focussed on the relevant date when it is now said that he was so instructed.
(b) Whilst the Panel was not making a finding at this stage with regard to the Particular in question, the Panel noted that the change in the date goes to the heart of the Allegation and must affect whether or not the HCPC is able to prove the stem of the Allegation in the light of Colleague 1’s evidence.
(c) The application has arisen ex improviso and the Registrant has not had notice of the application. If the Panel were to permit the amendment today, then it would be depriving the Registrant of an opportunity to respond. The fact that he has not engaged in the process since the Investigating Committee referred the Allegation to the Conduct and Competence Committee is a relevant factor to be taken into consideration but is not the determining factor. The Panel was aware from the correspondence used to prove service of the Notice of Hearing that the Registrant had engaged up to that point and that he strenuously denied that he had been given any such instruction in 2012 or 2013.

21. In the circumstances, the Panel determined that it was not fair to permit the amendment sought today.

22. The Panel then went on to consider whether the unfairness could be remedied by adjourning this matter part-heard for notice of the application to be served upon the Registrant and for him to provide his views on the matter.

23. The Panel determined that it was not in the interest of justice for this matter to be adjourned because of the length of time that has elapsed since the matters are alleged to have occurred. Furthermore, the second application to amend the Allegation appears to have arisen from the evidence given by Colleague 1 not being in accordance with what was expected by the HCPC. The question of the date upon which the instruction was said to have been given by Colleague 1 to the Registrant was so fundamental to the factual Particular that it would have been reasonable to expect the date to be specifically clarified when taking the witness statement.

24. In the circumstances, the Panel refused the application to amend Particular 2 of the Allegation.

Background
25. The Registrant is a Speech and Language Therapist (SLT) who was employed by Southend University Hospital NHS Foundation Trust (the “Trust”) between 5 November 2012 and 7 January 2019 as a Band 8 Team Manager of the SLT Team. In June 2018, concerns were raised by Colleague 2 to Colleague 12 under the Trust’s Whistle-blowing Policy.

26. Colleague 2 made a number of allegations with reference to the Registrant breaching professional boundaries, such as him inviting her back to his flat, disclosing confidential information to her about the sexual orientation of another team member and referring inappropriately to her sexual subtype. In addition, Colleague 2 also referenced the Registrant’s prolific use of the Enneagram of Personality, which is defined as a system of classifying personality types that is based on a nine-pointed star like figure inscribed within a circle in which each of the nine points represents a personality type and its psychological motivations (such as the need to be right or helpful) influencing a person's emotions, attitudes and behaviour. It was alleged that the Registrant’s use of the Enneagram of Personality had a detrimental effect on team members.

27. As a consequence of Colleague 2’s complaint, in August 2018 the Trust commissioned the Human Resources Advisory Team of Capsticks LLP to conduct an independent investigation. As part of the Capsticks LLP investigation, several other team members were interviewed and spoke about the effect of the Registrant’s use of the Enneagram of Personality on them individually and as team. In addition, concerns were also raised about other instances where the Registrant was deemed to have been inappropriate in his interactions with fellow colleagues. In September 2019, pending conclusion of the Capsticks LLP investigation, a referral was made to the HCPC about the Registrant’s conduct.

28. At its meeting on the 17 January 2020, the Investigating Committee (IC) of the HCPC determined that there was a case to answer in relation to an allegation of impairment of the Registrant’s fitness to practise.

Decision on Facts
29. At the start of the proceedings, Ms Mitchell-Dunn offered no evidence on the following factual Particulars:
(a) 1(a),
(b) 2(a)(i)(1),
(c) 3(a)(ii), and
(d) 3(b).

30. Accordingly, the Panel found those not proved.

31. The Panel then considered all the evidence before it in relation to the remaining Particulars. It received a bundle of evidence which included witness statements and other associated documents.

32. The Panel also heard oral evidence from Colleagues 1, 2, 12 and 14 who adopted their statements as their oral evidence and were asked further questions by Ms Mitchell-Dunn and the Panel. Their roles respectively at the time were:
(a) Colleague 1 – Head of Rehabilitation.
(b) Colleague 2 – newly qualified Band 5 Speech and Language Therapist.
(c) Colleague 12 – Band 8 Registered Nurse.
(d) Colleague 14 – newly qualified Band 5 Speech and Language Therapist.

33. The Panel took into account the submissions of Ms Mitchell-Dunn and the advice of the Legal Assessor. The Legal Assessor reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

Particular 1 - proved in relation to 1(b)
1. On an unknown date, in regards to Service User who had Multiple Sclerosis and was presenting as suicidal, you:
a) NO EVIDENCE OFFERED
b) said to Colleague 2 and/or other team members ‘just give her the pills’, or words to that effect;
34. The Panel considered the evidence of Colleague 2 in relation to this matter. She was clear in her evidence that she recalled speaking to the Registrant when the Service User in question was referred.

35. Colleague 2 said that the team was discussing the Service User and the fact that MS was a horrible disease. She said that at that point, the Registrant then said “just give her the pills”. She said he did not say it in a malevolent way but rather in a compassionate way as MS was a degenerative disease whereby the person afflicted often develops depression and anxiety.

36. The Panel asked Colleague 2 further questions about the incident and she provided cogent answers as to the context and the situation surrounding the Service Users personal circumstances.

37. The Registrant had denied, in his written response to the Investigating Committee, that he had said the words alleged.

38. The Panel found Colleague 2’s evidence to be consistent and cogent in regard to this factual Particular and finds this Particular proved in relation to 1(b) on the evidence before it.

Particular 2 – found not proved
2. Following being given a direction to stop using ‘The Enneagram of Personality’ by your Employer’s Head of Rehabilitation on or around 2012 and/or 2013, you:
a) continued to use The Enneagram of Personality in a professional setting in that you:
i) ‘typed’ colleagues, including:
(1) NO EVIDENCE OFFERED
(2) Colleague 2 on one or more occasions;
(3) On an unknown date Colleague 6;
(4) On an unknown date Colleague 7;
(5) Colleague 5 on one or more occasions
ii) On 26 April 2017, when discussing Colleague 17 with Colleague 1, you said “What do you expect, she’s a four”, or words to that effect;
iii) On unknown dates, allowed Colleagues 5 and/or 11 to teach ‘The Enneagram of Personality’ to their students;
iv) On multiple unknown dates, allowed the following Colleagues to use the Enneagram of Personality within a professional setting:
(1) Colleague 4
(2) Colleague 5
(3) Colleague 11
b) On an unknown date Between 1 August - 6 September 2017, prior to Colleague 2’s start date, you contacted Colleague 2 to direct her to research ‘The Enneagram of Personality’;
c) On an unknown date, in regards to Service User 1, you provided directions to Colleague 2 to treat Service User 1 rather than a colleague based on their respective Enneagram types;
d) On an unknown date, you led a Continuing Professional Development course on the use of The Enneagram of Personality;

39. The Panel considered the evidence of Colleague 1. She was unequivocal when she stated that she did not tell the Registrant to cease using the Enneagram of Personality in 2012 and or 2013. She said that it was only in 2017 that she explained informally that it did not have a place in the organisation and that he should stop using it.

40. Upon the Panel refusing the second application to amend Particular 2, Ms Mitchell-Dunn offered no further evidence in relation to Particular 2.

41. Accordingly, the Panel finds that the entirety of Particular 2 is not proved.

Particular 3 – found proved apart from 3(a)(ii), 3(b) and 3(d)
3. You broke professional boundaries and/or made inappropriate comments when you:
a) In regards to Colleague 2:
i) On an unknown date you said to Colleague 2 that Colleague 10 ‘fancied’ them or words to that effect;
ii) NO EVIDENCE OFFERED
iii) On an unknown date, you talked to Colleague 2 about her “sexual sub type”;
iv) On an unknown date, you revealed to Colleague 2 sensitive information from your childhood;
v) On an unknown date, you said to colleague 2 in respect of another therapist that “there are ways to get people out the door”;
vi) On or around 6 September 2017, prior to Colleague 2’s start date, but after she had been appointed to her role:
(1) you invited her to your flat,
(2) Said to her that Colleague 5 ‘Could not be a true friend’, or words to that effect;
(3) Said to her Colleague 9 “Had nothing under the surface”, or words to that effect;
(b) NO EVIDENCE OFFERED
(c) in regards to Colleague 14, who you knew was homosexual, you:
i) On an unknown date, when watching a ‘Youtube’ video:
(1) asked Colleague 14 if the subject of the video was ‘gay’, or words to that effect;
(2) asked Colleague 14 if they ‘fancied’ the subject of the video, or words to that effect;
(3) You requested Colleague 14 to ask their partner whether they thought the subject of the video was ‘gay’, or words to that effect;
d) On or around 22 February 2018, following Colleague 14 being involved in a car accident, you said to Colleague 14 “so you survived” or words to that effect;
e) On an unknown date, when you were going to attend a meeting with Colleague 12, you said to colleagues you were going next door to give [Colleague 12] a kiss, or words to that effect;

42. The Panel felt that this particular could have been drafted in a more helpful manner. It could have been drafted in a manner such that each particular arising from a single event was linked together - for example, 3(a)(i), 3(a)(iv) and 3(a)(vi) all relate to the incident in the Registrant’s flat.

Sub-particulars 3(a)(i), 3(a)(iv), 3(a)(vi) – found proved
43. Dealing with the incident in the Registrant’s flat, Colleague 2’s evidence was clear and cogent. She told the Panel that she had met the Registrant in the office as she was waiting to be called in for her interview. Then after she had been successful in her application for the job, she had been invited to the team dinner even though she had not yet officially started her employment with the Trust. This dinner was to enable her and other new members to meet the existing members prior to starting their roles.

44. Colleague 2 told the Panel that prior to the dinner taking place, the Registrant telephoned her and encouraged her to research the Enneagram of Personality, saying that he wanted to introduce it into the department and wanted to know her thoughts on it after she had completed her research.

45. At the dinner, the Registrant invited her to his flat to discuss her research after the event saying that he did not feel comfortable discussing the Enneagram of Personality in the social setting.

46. Colleague 2 said that she found his invitation odd and she felt nervous about going to his flat because it would take her out of a social setting with many people into a one to one setting. She texted a message to her family to say where she was going. She said that her nervousness became heightened at the flat because the Registrant had deviated from discussing the Enneagram of Personality to asking her personal questions. He also told her things about her colleagues that she found inappropriate and she said that he appeared to be testing her reactions and seemed to be using her answers to analyse her.

47. Colleague 2 told the Panel that one of the things the Registrant told her was that Colleague 10 “fancied” her. She said that this made her feel uncomfortable but she did not want to show it. She said that all she wanted to do was make an excuse and leave but did not feel able to because the Registrant was a Band 8 and she was a newly qualified Band 5 who had not even started her role in his team.

48. Colleague 2 said that the Registrant also told her that he had been abused as a child. She said that it was a flippant comment and seemed to be designed to gauge her reaction so that he could apply the Enneagram of Personality to her.

49. Colleague 2 also recalled the Registrant saying that Colleague 9 “had nothing under the surface” or words to that effect, which Colleague 2 found very odd as she had only met Colleague 9 once.

50. Colleague 2 described the Registrant’s actions as both “weird” and inappropriate as she had only met him briefly once and did not have the familiarity with him for such a discussion.

51. The Panel noted that, in his written response to the Investigating Committee, Mr Foggitt either denied the allegation or maintained that his comments had been misconstrued.

52. The Panel found sub-particulars 3(a)(i), 3(a)(iv), 3(a)(vi) proved.

53. The Panel also found the Registrant’s actions outlined in these sub-particulars to have clearly breached professional boundaries for the following reasons:
(a) It was highly irregular and inappropriate for a male Senior Band 8 in his late 50s to invite a newly qualified and young female Band 5 back to his flat alone. Whilst there was no suggestion of any sexual motivation, it put him in a compromising situation and put her at a significant disadvantage. It was a significant breach of trust and the power imbalance meant that Colleague 2 felt compelled to agree to his invitation;
(b) The discussion involved highly inappropriate comments, which appeared to be designed to enable the Registrant to pigeonhole Colleague 2 according to the Enneagram of Personality; and
(c) The inappropriate comments also undermined Colleagues 10 and 9, who were going to be senior colleagues of Colleague 2. This was highly inappropriate as the Registrant was their line manager and he was undermining them and their authority in relation to Colleague 2 who would be working under them.

Sub-particular 3(a)(iii) – found proved
54. Colleague 2 told the Panel that the Enneagram of Personality includes subtype personalities and one of these is a ‘sexual’ subtype. She said that shortly after she started working in the Registrant’s team, he made a comment to Colleague 2 about her sexual subtype, describing her as having this subtype because he had to break off eye contact with her when in a discussion. She would listen to the speaker and look at them very intensely when they spoke to her.

55. The Panel noted that, in his written response to the Investigating Committee, Mr Foggitt explained that the sexual subtype had nothing to do with sexuality and that he had been asked by Colleague 2 which subtype he thought was highest for her.

56. The Panel found Colleague 2’s evidence to be clear and cogent. It was clear from her evidence, and the evidence of Colleague 1, 12 and 14 that the Registrant was a dominating individual who micromanaged his team and would say shocking things to keep his staff off-guard or to provoke a reaction. It was entirely likely that he would comment upon Colleague 2’s sexual subtype and it would have been so inappropriate for a Band 8 to make such a comment to a newly-qualified Band 5 that it was good reason for Colleague 2 to recall such a comment. Quite aside from that, Colleague 2 also told the Panel of the profound impact that comment had on her and it is unlikely that she could have been mistaken about the comment.

57. Therefore, the Panel found sub-particular 3(a)(iii) proved and also that it breached professional boundaries.

sub-particular 3(a)(v) – found proved
58. Colleague 2 told the Panel about this incident in detail. It occurred after the Registrant and Colleague 2 had finished treating a patient who in the Registrant’s opinion had slurred speech. He had said to Colleague 2, “even you, someone in their first year would say that she had slurred speech.” He then talked about how another Speech Therapist had prescribed the wrong exercises and that “there are ways to get people out the door.” Colleague 2 said that she took these words to mean that if he did not like someone, the situation could be managed so that that person would feel compelled to leave even if they could not be sacked.

59. The Panel also considered the evidence of the other witnesses who gave evidence. Their evidence was consistent and gave a picture of the Registrant as a senior manager with an obsession with the Enneagram of Personality, and who would use it to stereotype his staff in order to manipulate and micromanage them. It was clear to the Panel that if he did not like one of his staff, there were occasions when he would make things difficult for them and would not follow the proper procedures to investigate and address any perceived capability issues on the part of any member of staff.

60. The Panel found that it was more likely than not that the Registrant did say to Colleague 2 that “there are ways to get people out the door” in relation to another speech therapist with whom he did not agree regarding the management they had prescribed for a patient.

61. Therefore, the Panel found sub-particular 3(a)(v) proved.

62. The Panel also found that the Registrant’s actions outlined in this sub-particular breached professional boundaries and at the very least were inappropriate for the following reasons:
(a) It was inappropriate for the Band 8 manager in the department to discuss management issues regarding another colleague with a Band 5 colleague who was the most junior band in the department. It was also inappropriate to suggest that this was a suitable way to address a disagreement regarding a clinical decision.
(b) The Registrant was voicing a threat to get rid of another speech therapist whom he managed by manipulating the system. This was a significant breach of trust between himself and that other speech therapist, and between himself and his employer. The fact that he voiced this to Colleague 2 who was a Band 5 aggravated his actions. As a Band 5, Colleague 2 would either have been on the same level as that other speech therapist or that other speech therapist would have been senior to her. Either way, the Registrant had undermined the other speech therapist and at the same time conveyed the message that he had the power to by-pass proper procedures in order to get rid of any of the staff on his team, which included Colleague 2. This was a significant breach of professional boundaries.

Sub-particular 3(c) – found proved
63. This factual Particular relates to the Registrant’s behaviour towards Colleague 14.

64. Colleague 14 told the Panel that this incident took place in the office and the Registrant had called her over to his desk and showed her a youtube video of a young girl speaking at a rally against gun violence in America. He then asked Colleague 14 if she thought that the girl in the video was gay.

65. Colleague 14 told the Panel that this had come out of the blue and that there was no context at all. It did not take place during a meeting or any conversation she was having with the Registrant. She said it occurred early in the morning at the start of the day whilst she was checking her list of patients and preparing to carry out her duties.

66. The Registrant then asked her if she “fancied” the girl in the video. Colleague 14 said that it was known to the team that she was gay and that she was in a relationship at the time. She recalled being very taken aback by the Registrant’s initial question and his second question compounded her discomfort.

67. Colleague 14 said that she had replied that the girl in the video was not her type and the Registrant had then taken it further and requested that when she got home that night, she should ask her partner whether she thought the girl in the video was gay. Colleague 14 said that the Registrant’s request made her so shocked and uncomfortable that she had to walk away. She recalled that there were other people in the room at the time but because she was so dumbfounded she could not recall who they were or if they had overheard the conversation.

68. Colleague 14’s description of the layout of the room at that time was consistent with the layout described by Colleague 12. Colleague 12 described the room as a converted lounge with the staff seated against and facing the walls. The Registrant placed his desk at the end by the door facing the staff. Colleague 12 described it as being the Registrant’s domain and that when anyone wanted to speak to him, or if he addressed them, they would have to twist around to do so.

69. The Panel considered in the circumstances that the questions were extremely inappropriate and personal for a Band 8 to ask a Band 5 junior member of staff. The power disparity is as large as it could be within an operational department. Therefore, the Panel had to consider the unlikelihood that a competent manager would act in this manner. The Panel was aware that the more unlikely the event, the more cogent the evidence should be.

70. However, the other evidence before the Panel demonstrated that the Registrant was someone who was accustomed to using ‘shock tactics’ to extract a reaction from his staff and other people. This may be seen as a way to control them and predict their actions. The evidence also demonstrated that this provided him with information that allowed him to ‘type’ them, and to use that to decide what work to assign them to or that they would be capable of doing, irrespective of their knowledge and experience.

71. The Panel was satisfied that in the context of all the evidence before it, there was clear and cogent evidence that supported Colleague 14’s evidence of this incident.

72. The Panel noted that Mr Foggitt’s explanation of the incident, in his written response to the Investigating Committee, was imprecise and that he did not deny the incident.

73. The Panel was satisfied on the evidence that it was more likely than not the Registrant had acted and said what is alleged to have been said to Colleague 14.

74. Colleague 14 could only say that it was open knowledge within the team that she was gay and was unable to say specifically that the Registrant was aware that she was gay. Nevertheless, in the context of the Registrant being described as a “micromanager” who revelled in the use of the Enneagram of Personality which required the acquisition of personal information for its application, the Panel had little doubt that the Registrant was aware that Colleague 14 was gay.

75. As stated above, the questions and context were so inappropriate and the power disparity between the Registrant and Colleague 14 was so great that the Panel was satisfied that his actions breached professional boundaries.

76. Therefore, the Panel found sub-particular 3(c) proved.

Sub-particular 3(d) – found proved
77. This matter relates to Colleague 14 the day after she had an accident on the way home. Colleague 14 told the Panel that on her way home the day before, her car had been hit twice by a lorry on the M25 motorway and that she had been extremely shaken. Her car had also sustained significant damage. She said that she had been driving really slowly at the time and as a result was able to regain control of her car.

78. Colleague 14 told the Panel that she had sent a text message to the Registrant that evening informing him of her accident, that she was quite shaken up and that she was not sure she could actually make the drive to work next day. He had replied that she should try to come in.

79. Colleague 14 said that the Registrant had not made any enquiry as to her well-being or whether she was able or capable of getting to work the next day. She told the Panel that she had driven her car, with all the damage to it from the accident, to the office the next day and that it was a terrifying drive.

80. Colleague 14 said that when she entered the office, all the Registrant said to her was “so you survived then”. She said that was all he said to her and that he made no attempt to say anything else or to enquire as to her well being.

81. Colleague 14 described the manner in which the Registrant managed the team and how there was a systemic failure to provide proper supervision and support and that there was no structure to enable professional development. Her description was of poor management practices being applied by the Registrant in a controlling and manipulative manner. This description was endorsed by Colleague 12.

82. Colleague 14 said that as she was a newly qualified Band 5 at the time, she did not know any better and thought the way the Registrant controlled his staff was normal. She said that it was only after she left the Trust and started working at another organisation did she realise how badly the Registrant had been mis-managing his team. When giving her evidence Colleague 12 also confirmed that the Registrant had bad management practices but that she was unaware of them until the Registrant had asked her to sack Colleague 14 on spurious grounds.

83. Colleague 14 told the Panel that the Registrant had extended her probation and later failed her without grounds. This was confirmed by Colleague 12 who said that the Registrant had asked her to sack Colleague 14 on grounds that were spurious. She said that in any case, she did not have the power to sack Colleague 14 and that the Registrant, if he had any valid concerns, should have involved the Human Resources Department. Colleague 12 said that she was so concerned that she arranged for Colleague 14 to be independently assessed as to her capabilities. The Trust actually paid another organisation for the independent assessment. Colleague 12 said that Colleague 14 passed that assessment with no problems.

84. Whilst the evidence demonstrated that this was likely to be an example of the Registrant trying to by-pass procedure to get rid of a member of staff, there was no evidence to link his attitude to Colleague 14 at the end of her probationary period to what he said to her the day after her accident.

85. Taken in isolation, whilst the Panel were satisfied that the Registrant had said the words alleged to her and acted without empathy or even with the concern reasonably expected of a competent manager, it could not be said that the Registrant’s actions were a breach of professional boundaries.

86. Therefore, the Panel found that the fact alleged in sub-particular 3(d) was proved but that it was neither a breach of professional boundaries nor otherwise an inappropriate comment. On that basis 3(d) is not proved.

Sub-particular 3(e) – found proved
87. This incident involved Colleague 12 and occurred as a team meeting, with the Registrant and his team, ended.

88. Colleague 12 told the Panel that she was senior to the Registrant when he joined the Trust as an agency staff member but after that the Registrant was employed by the Trust on an enhanced package when she was his line manager. The Registrant was then promoted to Band 8a, which was the same grade as her and that she worked with the Registrant to set up the Speech and Language Therapy Service within the Trust. She said that once the service had been set up, she stepped back and the Registrant took over the management of that service.

89. Colleague 12 said that the Registrant’s team was located in a bungalow separate from the rest of the Trust because of insufficient space. She said that she attended the Registrant’s team meetings about once a month to maintain contact so that the team did not become isolated from the rest of the Rehabilitation Department.

90. Colleague 12 recalled that this incident occurred at when she attended one of those team meetings. She said that sometimes after the team meetings, there would be another meeting between herself, the Registrant and the Band 7 of the team to discuss operational matters. On this occasion, there was to be such a meeting and when she announced why she and the Registrant were going next door he added “and to give [Colleague 12] a kiss” or words to that effect.

91. Colleague 12 said that this was highly inappropriate and that she had “shut it down” by saying that was not true and that they were going next door to discuss business. She said that in her 30 years of working within the health service, she had never come across this kind of comment.

92. Colleague 12 described the office in which the Registrant’s team was located as the Registrant’s domain. She said he placed his table separate from the team and by the door where everyone would have to pass upon entering and exiting the room.

93. The Panel noted the Registrant’s response to the Investigating Committee in which he said that he did not recall the incident well but believed that what he had said was “what, do you think we’re going next door to kiss, then?”

94. The Panel was satisfied on the evidence that the Registrant did say the words alleged. Other evidence before the Panel demonstrated a pattern of behaviour on the part of the Registrant that was consistent with Colleague 12’s account. The Panel also found no reason for Colleague 12 to fabricate this account.

95. The Panel was also satisfied that the remark by the Registrant breached professional boundaries. It was made during a team meeting, directed at the team, and undermined Colleague 12, a senior manager. The fact that Colleague 12 was of the same grade as the Registrant and was experienced enough and senior enough to deal with the Registrant does not mean it did not breach professional boundaries.

96. Therefore, the Panel found Particular 3(e) proved.

Decision on Grounds
97. The Panel then went on to consider whether the factual Particulars found proved amounted to misconduct and/or lack of competence. The Panel heard the submissions of Ms Mitchell-Dunn on behalf of the HCPC.

98. The Panel also considered the Registrant’s previous written submissions on misconduct to the panel of the Investigating Committee.

99. Ms Mitchell-Dunn submitted that the Registrant’s actions breached paragraphs 1.5, 2 and 9 of the HCPC’s Standards of Conduct, Performance and Ethics.

100. Ms Mitchell-Dunn further submitted that the Registrant had also breached paragraphs 5, 8 and 9 of the HCPC’s Standards of Proficiency for Speech and Language Therapists.

101. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:
a) Roylance v GMC (2000) 1 AC 311
b) Hindmarsh v NMC [2016] EWHC 2233 (Admin)

102. The Legal Assessor also advised that as this was a case alleging only misconduct, the HCPC’s Standards of Proficiency for Speech and Language Therapists was not relevant as the proficiency of the Registrant as a Speech Therapist was not in dispute.

103. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that misconduct should be qualified by the word “serious”. It is not just any professional misconduct, which will qualify.

104. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual Particulars in the light of the following circumstances demonstrated by the evidence:
(a) the Registrant was Band 8 Speech and Language Therapist which is typically the highest managerial position that combines management and clinical practice;
(b) the Registrant’s use of the Enneagram of Personality to stereotype his staff members was unauthorised even if it was not prohibited. He used it extensively to determine what work his staff members should be allocated. There was no evidence that the Registrant took into account their knowledge and experience;
(c) the Registrant’s use of the Enneagram of Personality was so embedded that even members of staff would refer to themselves and patients by whatever type they thought was indicated by the Enneagram of Personality.

105. The Panel considered each of the factual Particulars found proved in turn and determined that, in the circumstances of each incident, they amounted to serious misconduct. Despite their differences and variations in facts and detail, they all share the following significant concerns:
(a) they involved significant breaches of professional boundaries;
(b) they undermined staff and their confidence;
(c) they involved actions that represented an abuse by the Registrant of a position of trust;
(d) they involved the Registrant using inappropriate behaviour to provoke responses that he then used to ‘type’ people using the Enneagram of Personality, which he appeared to regard as a valid instrument on which to base some clinical and administrative decisions;
(e) they involved the Registrant using personal information gained by him for his personal ends by using that information to stereotype his staff according to the Enneagram of Personality;
(f) in the context of the Registrant’s zeal in using the Enneagram of Personality in that manner, it created a significant conflict of interest between the Registrant’s managerial position and his use of information gleaned by that position for use with the Enneagram.

106. The above features of Particular 3 are sufficient for each of the three sub-particulars 3(a), 3(c) and 3(e) found to amount to misconduct. 1(b), when viewed in conjunction with Particular 3, did in the Panel’s view amount to misconduct.

107. As indicated above, the Panel did take into account the Registrant’s written representations to the Investigating Panel. The Panel found nothing in those representations that justified the Registrant’s behaviour or which mitigated the seriousness of the Registrant’s conduct. The Panel was aware that matters of personal mitigation were not relevant at this stage.

108. Accordingly, the Panel found that the facts found proved amounted to the statutory ground of misconduct.

Decision on Impairment
109. The Panel then went on to consider, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel heard the submissions of Ms Mitchell-Dunn and it accepted the advice of the Legal Assessor.

110. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

111. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Speech and Language Therapist profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?”

112. The Panel determined that the answers to all the above questions were in the affirmative in relation to past, and future possible conduct. In coming to its decision it took into account the following factors:
(a) The evidence before the Panel is of a significant attitudinal deficit on the part of the Registrant. Deep-seated attitudinal issues are more difficult to remedy and therefore cogent evidence of reflection and insight is required before a Panel can be satisfied that such issues have been addressed.
(b) The Registrant has failed to engage with the process and did not attend to tell the Panel what, if any, insight had been gained.
(c) There is no evidence of any insight on the part of the Registrant. This is a matter of misconduct, and there can only be very limited remediation without insight. There has been no evidence of any action taken by the Registrant to remedy his misconduct.
(d) The persistence and regularity with which the Registrant has used the Enneagram of Personality to type staff and patients means that there is a real and significant risk of a repetition of his behaviour.

113. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances.

114. Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired in terms of both personal and public interest considerations.

Decision on Sanction
115. The Panel heard the submission of Ms Mitchell-Dunn with regard to sanction.

116. The Panel accepted the advice of the Legal Assessor. The Panel had regard to all the evidence presented, and to the Council’s Sanctions Policy. The Panel reminded itself that the purpose of a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

117. The Panel also bore in mind that its over-arching duty is:
(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the Speech and Language Therapy profession; and
(c) to promote and maintain proper professional standards and conduct for members of the Speech and Language Therapy profession.

118. The Panel considered the aggravating factors in this case to be:
a) The Registrant was in a position of trust and his misconduct was a serious breach of trust. The disparity of power between a Band 8 and a Band 5 Speech Therapist is large;
b) The Registrant was the direct manager for Colleagues 2 and 14 and his actions had a significant adverse impact upon them, both in their personal and professional lives;
c) The Registrant’s misconduct was not isolated. It was a pattern of behaviour occurring over a significant period and against several members of staff;

119. The Panel took into account the Registrant’s good character but considered it to be a limited mitigating factor.

120. The Panel also took into account that there was no evidence of insight on the part of the Registrant. His written representations made to the Investigating Committee demonstrate that he did not demonstrate insight. The evidence also demonstrated that his behaviour suggested deep-seated and problematic attitudes.

121. In considering the matter of sanction, the Panel started with the least restrictive and moved upwards.

122. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct and his current lack of insight, this would be inappropriate in view of the risk of repetition.

123. The Panel then considered whether to make a Caution Order. The Panel was mindful of its finding that the Registrant was likely to repeat his misconduct. These matters are too serious for a Caution Order to be considered appropriate. Furthermore, these matters were part of a pattern of behaviour, no evidence of insight had been demonstrated and there remains a real risk of repetition of the misconduct by the Registrant.

124. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant has not demonstrated insight into his misconduct and that there is a real risk of repetition of the misconduct. The Registrant has not engaged in this process and therefore the Panel has no evidence that the Registrant would be willing to comply with any conditions imposed. The Registrant’s attitude to these proceedings was shown in his representations to the Investigating Committee where he described this process as “a waste of thousands of pounds of public money involved in the investigation and referral.” This was not a case where the Registrant’s clinical practice skills were in question. There are no identifiable areas of his clinical practice which might benefit from re-training. These are matters involving attitudinal problems which cannot adequately be addressed by the imposition of conditions of practice.

125. Taking into account all of the above, the Panel concluded that conditions could not be formulated which would adequately address the risk posed by the Registrant, and in doing so protect colleagues and the public during the period they are in force.

126. The Panel went on to consider whether a period of suspension would be appropriate in this case.

127. The Panel took into account that the Registrant has disengaged from the process, and has not provided any evidence of insight, remorse or apology. Furthermore, the Panel has determined that the Registrant’s actions represented a serious breach of HCPC’s Standards of Conduct, Performance and Ethics. It has concluded that there is a significant risk of repetition and that the Registrant’s misconduct arises from deep-seated attitudinal problems.

128. However, the Panel determined that it would be proportionate that a period of suspension should be imposed to permit the Registrant an opportunity to put in place the actions necessary to demonstrate rehabilitation.

129. The Panel went on to consider the sanction of striking the Registrant off the register but determined that it would be disproportionate to impose the ultimate sanction. This case does not involve any of the following serious factors set out in paragraph 130 of the Sanctions Policy:
(a) dishonesty;
(b) failure to raise concerns;
(c) discrimination;
(d) abuse of his professional position;
(e) sexual misconduct;
(f) sexual abuse of children or indecent images of children;
(g) criminal convictions for serious offences; or
(h) violence.

130. Therefore, the Panel is satisfied that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a Suspension Order for a period of 12 months.

131. A future panel reviewing this order would be assisted by the following:
(a) engagement of the Registrant with the process;
(b) a reflective piece by the Registrant that addresses his lack of insight, and his reflections on the actions he has taken to remedy his misconduct.

Original Allegation
As a registered Speech and Language Therapist (SL12893) your
fitness to practise is impaired by reason of misconduct. In that:
1) On an unknown date, in regards to an unknown Service User who had Multiple Sclerosis and was presenting as suicidal, you:
a) directed Colleague 2 to treat the unknown Service User based on their respective Enneagram types;
b) you said to Colleague 2 ‘just give her the pills’, or words to that effect;

2) Following being given a direction to stop using ‘The Enneagram of Personality’ by your Employer’s Head of Rehabilitation in 2013, you:
a) continued to use The Enneagram of Personality in a professional setting in that you:
i) ‘typed’ colleagues, including:
(1) On an unknown date Colleague 15;
(2) On 6 September 2017 Colleague 2;
(3) On an unknown date Colleague 6;
(4) On an unknown date Colleague 7;
ii) On 26 April 2017, when discussing a former Colleague with Colleague 1, you said “What do you expect, she’s a four”, or words to that effect;
iii) On unknown dates, allowed Colleagues 5 and/or 11 to teach ‘The Enneagram of Personality’ to their students;
iv) On multiple unknown dates, allowed the following Colleagues to use the Enneagram of Personality within a professional setting:
(1) Colleague 4
(2) Colleague 5
(3) Colleague 11
b) On an unknown date Between 1 August - 6 September 2017, prior to Colleague 2’s start date, you contacted Colleague 2 to direct her to research ‘The Enneagram of Personality’;
c) On an unknown date, in regards to Service User 1, you provided directions to Colleague 2 and Colleague 3 based on their respective Enneagram types;
d) On an unknown date, you led a Continuing Professional Development course n the use of The Enneagram of Personality;

3) You broke professional boundaries when you:
a) In regards to Colleague 2,:
i) On an unknown date you said to Colleague 2 that Colleague 10 ‘fancied’ them or words to that effect;
ii) on an unknown date, revealed to Colleague 2 the sexual orientation of Colleague 10’;
iii) On an unknown date, you said to Colleague 2 that she had a “high sexual sub type” or words to that effect;
iv) On an unknown date, you revealed to Colleague 2 sensitive information from your childhood;
v) On an unknown date, you said to Colleague 2 that “there were ways and means of getting rid of people”, or words to that effect;
vi) On or around 6 September 2017, prior to Colleague 2’s start date, but after she had been appointed to her role, you invited her to your flat, and you:
(1) Said to her that Colleague 5 ‘Could not be a true friend’, or words to that effect;
(2) Said to her Colleague 9 “Had nothing under the surface”, or words to that effect;
b) On an unknown date, said to Colleague 9 during a probationary meeting “You deal with Colleague 16 better, because he fancies you” or words to that effect;
c) in regards to Colleague 14, who you knew was homosexual, you:
i) On an unknown date, when watching a ‘Youtube’ video:
(1) asked Colleague 14 if the subject of the video was ‘gay’, or words to that effect;
(2) asked Colleague 14 if they ‘fancied’ the subject of the video, or words to that effect;
(3) You requested Colleague 14 to ask their partner whether they thought the subject of the video was ‘gay’, or words to that effect;
ii) On 22 February 2018, following a life-threatening incident involving Colleague 14, you said to Colleague 14 “so you survived” or words to that effect;
d) On an unknown date, when you were going to attend a meeting with Colleague 12, you said “we are going next door to kiss” or words to that effect;
4) The matters set out in paragraph 1 - 3 above constitutes misconduct.

5) By reason of your misconduct your fitness to practise is impaired.

The Registrar is directed to suspend the registration of Mr Eric W Foggitt for a period of 12 months from the date this Order comes into effect.

Right of Appeal
You may appeal to the High Court in England and Wales against the decision of the Panel 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 Suspension Order
The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion the Panel took into account that the content of the Notice of hearing sent to the Registrant included the following words, under the heading ‘Interim Orders’: Please note that if the Panel finds the case against you is well founded and imposes an interim order on your (under Article 31 of the Health Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied that the Registrant is aware that an interim order application was a possible outcome at this hearing. The Panel remained satisfied that the Registrant had waived his right to be present at the hearing by his failure to engage. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to attend on a later date because there was not indication that he would attend on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant was allowed to practise without restriction and decided it was clearly in the public interest to consider the Interim Order application in the absence of the Registrant.

Having heard submissions from Ms Mitchell-Dunn on behalf of the HCPC and having taken advice from the Legal Assessor, the Panel makes an interim Suspension Order, for a period of 18 months under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This 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.

History of Hearings for Eric W Foggitt