Eric W Foggitt

Preliminary Matters

Proof of Service

1. On 8 March 2023, the HCPC sent the Notice of this review by email to the Registrant’s registered email address as it appears in the Register. The Notice contained the required particulars, including the time, date, and venue (by way of electronic videoconference). The Notice was sent at least 28 days before the hearing was scheduled to take place.

2. The Panel heard and accepted the advice of the Legal Assessor. It was satisfied that the Notice of Hearing had been served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Application to Proceed in Absence

3. Ms Snookes, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised of the factors to be taken into account in accordance with the cases of R v Jones [2002] UKHL 5 and GMC v Adeogba; GMC v Visvardis [2016] EWCA Civ 162.

4. The Panel had regard to the HCPTS Practice Note “Proceeding in the Absence of the Registrant” and decided that it was appropriate and fair to proceed with this review in the Registrant’s absence. The Panel had regard to the Registrant’s email to the HCPTS, dated 04 April 2023, in which he stated that he would neither be attending nor represented at the review. From this, the Panel was satisfied that the Registrant was aware of the review and had decided not to participate and so had waived his right to attend, either in person or by telephone.

5. The Panel also considered that it was in the public interest for the hearing to take place, as this was a statutory review of a Substantive Order due to expire on 10 May 2023. The consequences of not proceeding with the review would mean that the Order would necessarily lapse, raising issues of risk to public protection and undermining public confidence. In all the circumstances, the Panel was satisfied that it was fair and appropriate to proceed in the Registrant’s absence.

Background

6. 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. At the material time, he was employed 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.

7. 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.

8. 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 a 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.

9. Between 4 and 12 April 2022, a substantive hearing was held in respect of the Allegation of impaired fitness to practise by reason of misconduct. The original substantive panel found a number of the factual allegations proved (as set out above). It concluded that those facts found proved amounted to misconduct. In relation to impairment, the original substantive panel found that the Registrant’s fitness to practise was impaired on both the personal and public components.

10. In reaching its decision on the personal component, the original substantive panel 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 has 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.”

11. In relation to its decision on the public component, the original substantive panel 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.”

12. In considering sanction, the original substantive panel was of the view that the Registrant’s misconduct was aggravated by the following:

(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 the 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.”

13. The original substantive panel also concluded that there was no evidence of insight on the part of the Registrant and, on the evidence available, his behaviour suggested deep-seated and problematic attitudes. Whilst it took into account the Registrant’s previous good character, the original substantive panel considered it to be a limited mitigating factor.

14. The original substantive panel decided to impose a Suspension Order for a period of 12 months, to permit the Registrant an opportunity to put in place the actions necessary to demonstrate rehabilitation. It also observed, for the benefit of the Registrant, that a future reviewing panel may be assisted by:

(a) “engagement of the Registrant with this 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.”

Decision

15. Ms Snookes, on behalf of the HCPC, took the Panel through the history of the case. She identified that no material had been provided regarding the recommendations made by the original substantive panel. She submitted that the Registrant still lacked insight and had failed to engage in the process. She pointed out that the Registrant had been given one year to demonstrate a development of insight but had failed to do the bare minimum to demonstrate any professional rehabilitation. She submitted that consequently, he remained impaired on both the personal and public components. She invited the Panel to extend the Suspension Order by a short period to give the Registrant one last chance to demonstrate the necessary insight, remorse, and professional remediation.

16. The Panel heard and accepted the advice of the Legal Assessor. It exercised its independent judgement in determining whether the Registrant’s fitness to practise remains impaired. It had regard to the HCPTS Practise Note on “Fitness to Practise Impairment”, as well as the HCPC Sanctions Policy.

17. The Panel bore in mind that the original substantive panel had been concerned at the lack of engagement by the Registrant and had signposted for the Registrant suggestions as to how he may seek to demonstrate insight and remediation to a future reviewing panel. The Panel was aware that the persuasive burden is on a registrant to satisfy a panel that their fitness to practise is no longer impaired.

18. The Panel considered that there was little engagement from him at this review, apart from an email which he had sent to the HCPTS, dated 04 April 2023, which read as follows:

“…You asked me to express something about my engagement with your process. As I wrote previously, during the lengthy period prior to your decision last year, I chose not to engage further with the process for the simple reason that I thought that it was wasting your time and mine, as well as the people you asked to appear at the hearing. I certainly meant no disrespect to you, the HCPC or others. As I said then, I have no intention of living in the UK, still less of working in the NHS as a Speech and Language Therapist or anything else.

Since leaving my post at Southend‐on‐Sea, I have been working in the church. In Sri Lanka, I helped set up a service providing food for very needy people in Colombo. In Malta, where I worked for two months, I served in a locum capacity and trained some new leaders in the church. In Brussels I have led the church here in its general work, helping with the training of three new senior leaders and heading up its work with refugees. This work has required me to be very sensitive to the varied and sometimes conflicting cultural and religious demands of individuals in difficult and stressed situations such as grief, loss and persecution.

I am happy to say that I have had only positive, supportive and appreciative feedback from colleagues and others alike.”

19. The Panel did not consider that the email provided evidence of any insight developed or remediation undertaken by the Registrant in the year in which he had been suspended following the substantive hearing. The Panel considered that the Registrant had not addressed any of the concerns identified by the original substantive panel, namely the deep-rooted attitudinal issues which persisted over a long period of time. Consequently, in the Panel’s judgement, there is an ongoing significant risk of repetition and consequent risk to the public as identified at the substantive hearing. In the Panel’s view, the Registrant’s lack of evidence is consistent with his plainly stated view that he does not wish to return to his profession as a SLT in the NHS.

20. In relation to the public component, given the ongoing risks identified, the Panel considered that public confidence in the profession would be undermined if no finding of continued impairment were made.

21. Accordingly, the Panel was of the view that the risks identified by the previous panel remain and that the Registrant’s fitness to practise consequently remains impaired on the grounds of both public protection and the wider public interest in maintaining public confidence in the profession and declaring and upholding proper standards of conduct and professionalism.

22. The Panel had regard to the HCPC Sanctions Policy. It was the Panel’s view that there was a need to impose a sanction which would provide public protection and would otherwise address the public interest of maintaining public confidence in the profession and declaring proper standards of conduct and behaviour. The Panel therefore concluded that taking no further action and allowing the Suspension Order to lapse would not achieve this.

23. The Panel was also of the view that a Caution Order would not restrict the Registrant’s practice and so would also fall short of protecting both the public and the wider public interest. As such, the Panel considered that a Caution Order would be neither appropriate nor proportionate in the circumstances of this case.

24. In respect of a Conditions of Practice Order, the Panel was mindful that the HCPC Sanctions Policy indicates that deep-seated attitudinal issues are difficult to address by way of conditions. In addition, given the absence of any evidence of insight or remediation, as well as his lack of engagement, the Panel was not reassured that the Registrant would be either willing or able to abide by conditions.

25. The Panel considered Ms Snookes’ request that the Suspension Order be extended by a further three months to give the Registrant one last chance to engage and demonstrate the necessary insight and remediation. The Panel noted that the Registrant had already been given a year in which to engage, but his email of 04 April 2023 indicated to the Panel that he had no intention of returning to practice as a SLT. In the Panel’s view he had clearly expressed his position, and it was evident to the Panel that he was not intending to resolve matters and had not taken any steps to do so.

26. The Panel had regard to the HCPC Sanctions Policy, and in particular paragraph 121 as follows:

“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

27. Whilst the Panel considered that the concerns represented a serious breach of the HCPC Standards of Conduct, Performance and Ethics, it found that the other elements which may indicate a Suspension Order is appropriate were not present. In particular, the Panel did not consider that there was any evidence to suggest that the Registrant would be likely to be able to resolve or remedy his misconduct.

28. The Panel went on to consider a Striking Off Order. It understood that this was a sanction of last resort and would potentially have a significant impact on a Registrant. It had regard to paragraph 131 which, in the Panel’s view, mirrored paragraph 121, as follows:

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

• lacks insight;

• [not relevant] or

• is unwilling to resolve matters.”

29. The Panel considered that the misconduct had represented a persistent breaching of professional boundaries and demonstrated deep-seated attitudinal issues on the Registrant’s part. In the year during which he had been suspended, he had taken no steps to address his misconduct and, in the Panel’s view, had been clear in his email that he had no intention of doing so in the future. In the circumstances of this case, the Panel concluded that a Striking Off Order was the only appropriate and sufficient Order to protect the public, maintain public confidence in the profession, and to uphold professional standards.

The Registrar is directed to strike the name of Mr Eric Foggitt from the Register on the expiry of the existing Suspension Order.

The Order imposed will apply from 10 May 2023.

History of Hearings for Eric W Foggitt