Mr Reymund Enteria

Background

1. The Registrant was employed, on a 12-month contract, as a Senior Occupational Therapist in the Wheelchair Service provided by Millbrook Healthcare (now known as “Rosscare”) from 5 May 2021. The Registrant was based at the Ashford Wheelchair Service Centre.

2. The Registrant’s role included undertaking face to face assessments and prescribing and issuing equipment, covering triage when needed, and he had a caseload of more specialist/complex service users.

3. The Registrant’s contract of employment was amended on 27 October 2021 and this contract covers the period 3 November 2021 to 3 May 2022. Paragraph 6.1 of that contract confirms the Registrant’s normal working hours were 08:30 to 16:30, Monday to Friday, and those working hours were not variable according to his contract. It also confirms the Registrant was entitled to 25 days annual leave.

4. The Registrant was permitted to work from home to complete administrative tasks, on days when he was not required to attend face to face assessments. These administrative days would typically be on a Friday. On working from home days, a form would need to be completed by the Registrant to indicate what work had been done.

5. On Monday 21 March 2022 the Clinical Lead (who was also the Registrant’s line manager) spoke to the Registrant on the phone, the Registrant told them he was not at home and not working because he had completed all his work on Saturday 19 March 2022 and needed to attend to an urgent personal matter relating to his passport. The Clinical Lead made it clear to the Registrant that if he was on a working from home day, he should be at home and working or available for work during his working hours. The Registrant had not requested time off work that day.

6. On Friday 8 April 2022 the Registrant was expected to be working from home on an admin day. The Clinical Lead made attempts to contact the Registrant and was successful in contacting him via WhatsApp and the Registrant said he had been asleep as he had been working late. The Clinical Lead then spoke to the Registrant, at which point he said he was in Croatia, he was not at home and not working. He had not booked annual leave.

7. An investigation was undertaken. The Registrant left this employment. (He had submitted his resignation prior to the investigation occurring, but was dismissed.)

The Hearing

8. The Registrant admitted Particulars 1 and 2 of the Allegation.

9. Ms Bass of Counsel opened the case on behalf of the HCPC.

10. The HCPC called one witness [TH], a Clinical Lead to give live evidence under affirmation.

11. TH adopted her written evidence. This in essence was that she had not approved leave for the Registrant. She supplemented this by adding some further clarification. This involved her indicating that the policy not to offer flexible working actually meant that a person who wanted flexible working, had to submit a formal request before this could be granted. She said that working from home (“WFH”) became standard during covid, but that there was an understanding that even where WFH occurs, staff would be expected to come into the office to cover for absent staff. She said that this understanding should have been a verbal agreement with the Registrant, but she could not recall if she had this conversation with the Registrant before the events that led to Particular 1 of the Allegation. She said that a variation of this conversation would have occurred between her and him at this time though; she considered that he understood the position because he was scared of asking her for leave on the second occasion.

12. TH said that ad hoc requests for time-off, could be made. This could be granted subject to operational needs. She said that she only recalled one occasion when the Registrant had asked for this when the Registrant had unexpectedly had to extend a period of planned leave for personal reasons. She could not recall if she had agreed this or whether it was between her and another operational manager.

13. TH said that if the Registrant had completed his administrative tasks, on a WFH day, he could still be required to provide further support for the organisation, such as dealing with triage and customer service. This would have required being able to access the organisation’s database from his laptop, not just his mobile. She said that the Registrant should have requested leave to sort out his passport during working hours, which she would have granted.

14. On the second occasion when she contacted him and could not get hold of him, she had wanted to extend his contract because she was happy with his clinical work. She had spoken to her superiors at Millbrook to arrange this. She was shocked that he was travelling without telling her.

15. TH said that she described the Registrant’s behaviour as ‘dishonest’, because he had said that he was sleeping rather than travelling. The word ‘dishonest’ was hers rather than his. She said that he had admitted to her, that he had been worried when at the airport because his employers thought he was WFH.

16. In cross-examination, TH was taken to her statement by Mr Short. In that she said that in relation to the first event, she had spoken to the Registrant on that day. In respect of an informal meeting which she had said took place the following day with the Registrant, she said that she did not write notes but believed it had taken place; in any event she had spoken to him during that week informally. When asked during the investigation “What actions were taken as an outcome of the first occurrence?” documentation records that she responded “None”. Mr Short asked why the informal discussion was not mentioned. TH had no response for this, save for its informality.

17. TH was asked about bullet point notes that she was said to have made, and asked when these were created. TH said these were contemporaneous. However, she also said that she made these notes after her statement in which she has acknowledged the word ‘dishonest’ was hers rather than his. She said she could not provide a response as to whether the word ‘dishonest’ was her ‘inference’ and could not remember all her thought processes at the time, but was certain that the Registrant was not WFH where he should have been.

18. Mr Short showed TH a statement by a previous member of staff who had left Millbrook and mentioned a “toxic work culture” that existed where TH was the clinical lead and a lack of clarity provided; TH said this was a perception and the person was not a clinician. Mr Short showed TH another statement from a person who worked at Millbrook and who was a clinician, who unsolicited, described their interaction with TH as “demoralising”; TH said this was irrelevant to the current matter. Mr Short asked if this was relevant to the Registrant being scared of her. TH said that these perceptions came from people who had left Millbrook, and that there were current staff who were content with her management style and had worked at Millbrook for years, albeit there are no statements from them.

19. In response to Panel questions, TH said she had not made any attempt to speak to colleagues whom the Registrant had told her he had informed he was planning to travel. She had only spoken to her line manager about this incident. She said that she had no formal request for leave to go to Croatia made to her. She did know that the Registrant had spoken to someone else in the office about travelling to Croatia before he went.

20. TH said that as she had understood it, the Registrant had spoken to a manager and to a colleague, (naming both of them), but that this was akin to a joke, not a request for ad hoc leave, or a request for her to be told; she acknowledged that she could have been wrong, as she was not present, but was relying on what the Registrant said to her at the time and the impression she had gained back then. When it was pointed out this appeared to contradict her earlier response that she had not followed this up, she said she did raise it at a senior line managers meeting when she believed that at least one person whom the Registrant had spoken to was present, but no further conversation occurred between that person and her on this topic, and that whether the Registrant’s remarks were neither confirmed nor denied.

21. Mr Short called the Registrant to give evidence under affirmation. The Registrant gave evidence, adopting his written statement. His evidence was in essence that while there was no specific authorisation for leave, that his intention had been to complete all the work that was required from him by his employer. Given that the work had been completed and that he was making up the time that he owed his employer, he did not consider that his conduct was dishonest.

22. The Registrant supplemented his written statement with some clarification. He said that he is an employed locum at Lincolnshire Wheelchair Service. He made a full declaration of the circumstances in which he left his previous employer before he started his current post. He has been working there since August 2024. He said he recognised and apologised for not seeking leave from TH officially. He said he did tell the following people when he went to the Embassy. He said the Band 6 OD, and Band 7 next in line to TH, the Warehouse Manager, Rehab Engineer, and the Secretary were present when he said he was going to take time for this. That was the entire team, minus TH who was not present.

23. The Registrant said that when he called her having seen a missed call from TH when he was on the tube travelling to deal with his passport, he explained where he was and what he was doing. When she told him she was disappointed that he was not WFH and had not asked permission for leave, he informed her that the whole team was aware of his movements but she was not present on Friday. He asked what she wanted him to do, and she said she had checked that his work had been done on Saturday and he should go home and enjoy the rest of his day. He said that there was no expectation that he should do anything else. His view was that he had done his 7.5 hours in advance which was the time he owed his employer. TH did not speak to him when he returned to work, as he had expected after his telephone call. He said she was not at work the following week and a conversation that TH describes did not take place.

24. The Registrant said that he had done triage, but had never been asked to come in to cover for colleagues who were absent in the three contracts he had worked for Millbrook.

25. With regard to his Croatia trip, he said that there was a tension between TH and him following the Embassy incident. He said that he had ‘authority anxiety’ following her indicating that she was disappointed in him. He had previously thought that she was pleased with his work and this change in relationship was upsetting. He said that he thought that his remote administrative work was flexible and that WFH did not mean he had to be at his home address. This was only clarified post the Croatia incident, not after the Embassy incident.

26. The Registrant said that he had informed people of his plans for flexible working rather than formally requesting leave. He said that once TH clarified her expectation and heard about the extension to his contract, he was content that she was pleased with his work and had made the requirement of WFH as meaning his home address. He said he was surprised when he was dismissed. He said that he had intended to work the hours he was required to for his employer, and had in fact worked these.

27. With respect to the Croatia trip, the Registrant clarified that there was a missed call from TH and that he contacted her via WhatsApp to explain that he had been asleep. He telephoned her to tell her that he was in Croatia and the time difference meant that he had been working through the night but had fallen asleep when TH called. He spoke to TH when he was at work on Monday after he returned from Croatia. He did not consider it an unauthorised absence because he had completed his hours, but now knew that he should have spoken to TH to get authorisation in advance. He said that there was no verbal or written warning, regarding his flexibility over working hours, and he was surprised that there was to be a disciplinary investigation. He had handed in his resignation before he was dismissed.

28. In cross-examination the Registrant acknowledged that his administrative day had on occasion changed from Friday to Monday. The contract he was given in October 2021, was provided six months after he commenced work there in May 2021. He only checked his annual leave entitlement and salary because it was given to him in the middle of a clinic day. He said that the 8.30-4.30 clinical hours are not flexible but the administrative day of writing up reports cannot take place within the hours provided, and on occasion the reports are required to be written up more quickly because memories cannot always be relied upon, meaning that some flexibility is the norm. He said that he picked the times 8.30-4.30 which are his usual clinic hours, for his administrative day task-template document because this covered the necessary number of hours he was required to work. He said that he thought TH was pleased with his work because his contract had been renewed three times by Millbrook.

29. The Registrant agreed that TH expected him to be working 8.30-4.30 when she called him and he was dealing with his passport. He agreed that he had booked his Croatia trip in February but did not ask TH for permission, because there was limited communication between them, because he suffered from anxiety following the conflict in respect of the Embassy trip, and she did not speak to him. He said that he was scared of TH. He said that he had told the Warehouse Manager and Rehab Manager as part of the management team, that he would be working 7pm-3am before he went to Croatia, and would be taking his laptop and his work mobile. He agreed that he had not considered the trip hidden because he had spoken to other managers about work about it, albeit not TH.

30. The Registrant said that he had told TH that he was asleep in a WhatsApp communication because it was true. He said that he had intended to nap having worked late at night but had fallen asleep. He said that he told TH when he telephoned her, that he was in Croatia. When taken to the investigation notes, he said that he did not use the word ‘dishonest’. He said that by the time of the disciplinary investigation, he did know that TH would be angry with him for not being at home on a WFH day for a second time.

31. The Registrant said that while in Croatia on the Friday, his work mobile was not receiving the VPN to enable him to access Microsoft Teams which he could have done via his email, but that he only learnt this on his return from Croatia. However, he said that he had done the necessary hours to do his administrative notes between 7pm – 3am before he flew so was not concerned that there was work he should have been doing.

32. In re-examination, the Registrant confirmed that the investigation notes had not been sent to him to specifically agree. However, he also confirmed that they were contained within a large bundle of papers that were sent to him by Human Resources.

33. In response to the Panel questions, the Registrant said that the Rehab Engineer and the Warehouse Manager had been informed of his intentions regarding travelling to Croatia, but he had anxiety of talking to TH following the Embassy incident. He had a good conversation with TH post Croatia, but he had experienced fear after the way she spoke to him post the Embassy incident. He said his understanding was that he did not require formal leave because there was flexibility over writing up administrative notes, and that he had completed this work. He said that while usually a conversation about modifying usual hours would be normal, his relationship with TH was not normal. He said he was wrong to be so fearful that he did not speak to TH in advance, but that he did not seek to hide that he was in Croatia from her.

34. The Registrant said that he had no induction, and no handbook provided to him, just a contract in October 2021. He said that he has reflected and shared with colleagues and wants to do some official learning and write this up a case study for students, that best practice should be documenting any modification to normal practice via email. He said that he thought writing up his notes early was positive and in his patients’ best interests. He said that the contract had errors, which he pointed out regarding hours, and pay for leave.

35. The Registrant said that there was nothing unprofessional in his work. His relationship with TH had been good previously. TH had asked him to work one Friday every month which he’s been happy to do, unlike other staff.

36. Mr Short canvassed the ‘authority anxiety’ the Registrant spoke of and how he would deal with this in future. The Registrant said he had learnt a lot and that such feelings should not interfere with his professional judgement and his work as a registered healthcare professional. He undertakes learning and has identified resources on how to deal with stress. He said that coming from the Philippines, his culture respects authority and it was a shock to him, to be held up as an example of how to behave by other staff, to have his manager disappointed in him.

HCPC Submissions

37. Ms Bass submitted that the evidence from TH is credible. There have been admissions from the Registrant in respect of Particular 1 and 2, and supporting evidence has been provided from TH provides a context. There is evidence from TH that flexible working was not offered unless in response to a specific request. TH said that anyone WFH should be prepared to substitute for missing staff. There is also documentary evidence by way of an employment contract, email from the Registrant to TH confirming that administrative tasks were completed. The Registrant did not request time off work, and in his WhatsApp message to her did not mention that he was in Croatia.

38. In respect of Particular 3, it is submitted that the HCPC’s case is that the Registrant did not ask for leave, and the Registrant’s fear of TH, provides a motive for not asking TH for leave. There is no evidence that the Registrant sought permission for his trip. She submitted it was convenient that he had not read the part of the contract that said his hours were fixed, and that this was further evidence of dishonesty.

39. In respect of misconduct and impairment, Ms Bass reminded the Panel that this is a two-step process, referring to the case-law. Roylance v GMC (no.2) [2000] 1 A.C. 311 and Nandi v GMC [2004] EWHC 2317 (Admin). She also referenced a breach of the standards that she submitted were relevant in this case:

40. It was submitted that the Registrant has breached the following standards set out in the HCPC’s Standards of Conduct, Performance, and Ethics [2016]:

Work with colleagues
2.5 You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers

9. Be honest and trustworthy
Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

41. Furthermore, the following standards of Proficiency for Occupational Therapists [pre-2023]:

2. be able to practise within the legal and ethical boundaries of their profession

2.2 understand what is required of them by the Health and Care Professions Council

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others

42. It was submitted that there are two periods of unauthorised absence, with one instance of dishonesty. The Registrant tried to hide what he had done from his line-manager. A finding of dishonesty is serious enough to satisfy the grounds of misconduct.
Submissions on behalf of the Registrant

43. It was submitted, on behalf of the Registrant, that the main HCPC witness has indicated that she “believes” and has been vague in relation to her recollections. Where the Registrant and TH do not agree, you should consider both what you have been told but the documentary evidence that you have been given and that memory is unreliable. The documentary evidence from the investigation at the time records that TH spoke to him on the phone on the day in question but not that she had followed it up back in the workplace. While she has said that an in-person conversation took place, she reported that no further action was taken in relation to question 5 on the form; “None” is recorded there. TH claimed multiple times to have had a conversation with the Registrant in the aftermath of the Embassy incident, but in response to a question asked during the investigation what follow-up had been done post the incident, indicated “none”. Accordingly, the Panel should consider TH as unreliable.

44. Mr Short submitted that the Registrant had been the person to telephone TH and to tell her that he was in Croatia, rather than her discovering this information from another source. There was a three-minute gap between the Registrant’s text to TH and his follow-up to her to find a good signal, and this gap is not sufficient to prove dishonesty given the threshold required by the burden and standard of proof.

45. Mr Short submitted that the Registrant had lost sight of his professional obligations, and these errors were due to a situation he had not previously encountered. He reminded the Panel of the issues of concern that have been referenced in testimonials.

46. Mr Short submitted that the Registrant has been honest. He was avoiding TH because he was scared of her, not to deceive her. He has made two misjudgements but not avoided work or responsibility. He worked in the best interests of his clients, and you can be reassured that he is not liable to repeat these incidents in the future. He uses his experience as a teaching tool to those he mentors as a cautionary tale for the proper way to behave.

47. Mr Short submitted that the Registrant has commenced work with a new employer with full knowledge of this matter. His current employer supports him and has no qualms over his conduct. Further, that many people have supported the Registrant’s character and performance, attesting to his trustworthiness.

Decision on Facts

48. The Panel accepted the advice of the Legal Assessor as to the law, process and procedure in this case. It considered a staged approach, addressing facts, grounds and impairment in turn. It considered the inconsistencies in memory and prioritised the documentary evidence available in this case and was assisted by the HCPTS Practice Notes which were commended to it.

Particular 1: As a registered Occupational Therapist (OT47055) your fitness to practise is impaired by reason of misconduct. In that: 1. On 21 March 2022, you took unauthorised leave from Millbrook Healthcare.

While the Panel accepted that the HCPC brings this case and it is for the HCPC to prove it on the balance of probabilities, the Panel was mindful that in addition to having heard the evidence of TH, seen the Registrant’s contract of employment, and the guidance available to him, that the represented Registrant had made admissions to this Particular.

Particular 1 admitted and found proved.

Particular 2: As a registered Occupational Therapist (OT47055) your fitness to practise is impaired by reason of misconduct. In that: 2. On 8 April 2022, you took unauthorised leave from Millbrook Healthcare.

50. While the Panel accepted that the HCPC brings this case and it is for the HCPC to prove it on the balance of probabilities, the Panel was mindful that in addition to having heard the evidence of TH, seen the Registrant’s contract of employment and the guidance available to him, that the represented Registrant had made admissions to this Particular.

Particular 2 admitted and found proved.

Particular 3: As a registered Occupational Therapist (OT47055) your fitness to practise is impaired by reason of misconduct. In that: 3. Your conduct in relation to Particular 2 above was dishonest.

51. The Panel considered the legal test as confirmed in the cases of Barton and Booth v R [2020] EWCA Crim 575 has held that the correct test for dishonesty is that as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. Accordingly, the Panel considered both:

• What did the registrant know or believe as to the facts and circumstances in which the alleged dishonesty arose?
• Given the registrant’s knowledge and belief of the circumstances they were in, was the registrant’s conduct dishonest by the standards of an “ordinary decent person”?

52. The Panel considered that the evidence before them is nuanced. There is evidence of a telephone conversation between the Registrant and TH when the Registrant was away from home, and both parties agree this. However, there is an absence of evidence that an in-person conversation took place about TH’s expectations of the Registrant, post the Embassy session. This is supported by the investigation form record:

“Question 4:
What actions were taken as an outcome of the first occurrence?
A: I told him that I was disappointed as I would have expected him to communicate with me as I had no knowledge of this change. RE informed TH that he would be finishing up and heading home and TH
expected him to go straight home and work that afternoon.
Question 5:
What actions were taken as an outcome of the first occurrence?
A: None”

53. The Panel took this into account but noted that there is a written contract which references WFH rather than remote working from any location.

54. Further, the Registrant has provided two explanations which are potentially contradictory in explaining his state of mind. The Registrant’s first explanation is that he did not believe that he was doing anything wrong or needed any authorisation because his work had been completed. However, the Registrant has also explained that he had ‘authority anxiety’ and this is why he did not pro-actively speak with TH following their interaction regarding his unauthorised Embassy visit. The latter potentially provides a motive for avoiding telling TH about another trip away from home, seeking authorisation.

55. The Panel considered whether there is a space between requiring authorisation, and informing TH of his plans, given that the Registrant had explained his ‘authority anxiety’ which falls short of dishonesty. However, the Panel concluded that the Registrant while affected significantly by the Embassy incident and TH’s response to him, must have appreciated that her ‘disappointment’ in him stemmed from him not being transparent and seeking authorisation. While TH accepted that she had not been at work the Friday before to ask in an unexpected situation, that other staff knew of the Registrant’s whereabouts and that his work had been completed, meaning no further action would be taken, her displeasure was clear, and it was this that impacted the Registrant leading to his ‘authority anxiety’. The Panel found it to be more likely than not that the Registrant deliberately decided not to request a variation to his usual hours given the Embassy incident two weeks before.

56. The Panel did consider whether the Registrant addressed his mind to requesting a variation in his hours to travel to Croatia, given that TH’s evidence appeared to be that if a request was made to her she would have granted it. The Panel considered TH’s evidence that the Registrant had obtained authorisation for a variation of his planned leave on another occasion but could not remember whether she had granted this or another manager. However, the Panel took into account the hearsay evidence of TH’s management style from the two testimonials and the Registrant’s own admission that he was scared of her. It found that his fear prevented him from requesting authorisation from her, or informing her of his plans to travel to Croatia, in circumstances where he did not believe that authorisation was in fact required at the time. The Panel acknowledged the irony that the Embassy situation became a problem because the Registrant had not notified TH of his plans in advance, and had he done so in relation to Croatia that these proceedings would not be necessary. It is reasonable to expect that the Registrant would have exercised more care and transparency over his working hours post the Embassy incident rather than in effect repeat an action that had caused his line-management displeasure. The Panel accepted that the Registrant was paralysed by his fear, and took account of how other staff had described their interactions with TH, where both latitude was not exercised and where matters were unclear.

57. The Panel concluded that the Registrant knew that what he had done in going to Croatia in circumstances where he had neither sought permission from TH, nor told her that he planned to be out of the country and was varying his usual hours and completing that work in advance, was wrong. This appeared to align with the anxiety he acknowledged he had felt with TH since the Embassy incident. The Panel was mindful that the Registrant was a person of good character not just in the sense he has no convictions recorded against him, but there are testimonials which reflect his positive qualities. It recognised that while, good character cannot by itself mean that the facts are unproved, when deciding whether the facts have been proved by the HCPC, on the balance of probabilities, the Panel will take it into account in his favour in two ways, as advised by the Legal Assessor:

- In the first place, the Registrant has given evidence, and as with any person of good character it supports his credibility. This means that it is a factor which will be take into account when deciding whether his evidence is believed.
- In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit the matters alleged.

58. The Panel concluded that the Registrant did know that he should have sought permission from TH or at least informed her of his varying his normal hours and that this would have been obvious post the Embassy incident. He was both misleading and dishonest in not being transparent about his actions. He appeared to have considered what he should have done and TH’s reaction if she found out from another source. He was less able to articulate why he had not simply requested permission or informed her of this variation to his conditioned hours, in circumstances where these might be granted, save for indicating that he was scared of her.

59. Ultimately, the Panel was faced with two positions, whether the Registrant believed that he needed permission to vary his usual hours, or should notify TH of this but was scared of doing so following the Embassy incident, or had justified to himself as he had done so on another occasion, that as his expected work was completed, he could travel and be available for work remotely. The Panel concluded that the Registrant was aware of the expectations upon him following the Embassy incident to inform TH of his actions in advance as she had made clear that she wanted to know of his whereabouts when he was meant to be working, and had deliberately not told TH of his plans to travel to Croatia in advance to avoid any interaction and therefore, had been dishonest. Accordingly, he had made the decision not to report to TH any change to flexibility in his working hours, while acknowledging that the degree of formality in any authorisation varied in connection with whether this was an ad hoc matter or an ongoing situation. While the Panel considered that the Registrant had been misleading in not telling TH of his plans to travel to Croatia in advance, it took into account that other staff have not contradicted the Registrant’s contention that they were aware of his whereabouts. The Panel found that there was wrongdoing on the Registrant’s part and considered the legal test for dishonesty. It found that

- The Registrant did know that he was required to tell TH of any variation to his working hours and his whereabouts during his conditioned hours when he was meant to be working, and had deliberately chosen not to do so;
- Given the Registrant’s knowledge and belief of the circumstances they were in, the Registrant’s conduct was dishonest by the standards of an “ordinary decent person”.

60. Accordingly, the Panel finds that there was wrongdoing, and that this does meet the test for dishonesty.

Particular 3 of the Allegation is found proved.

Decision on Grounds

61. The Panel considered whether the proven facts amount to the statutory ground of misconduct. The HCPC presented no separate evidence on this point.

62. However, the HCPC submitted that if the conduct alleged in any or all of the particulars are found proved, this established that the Registrant acted in such a way which fell far short of what would be proper in the circumstances and what the public would expect.

63. The Registrant acknowledged wrongdoing and made admissions regarding the taking of unauthorised leave.

64. The Panel considered the particulars of the Allegation in turn. While both particular 1 and 2 of the Allegation concern unauthorised leave, it considered that these can be distinguished. In a post-covid world where many people work from home, being absent for several hours once work has been completed, while not proper, has become not unusual. In circumstances where other managers were informed of this variation to work plans in advance, and this is accepted, this does not appear to cross the threshold for misconduct. Particular 1 does not cross the threshold of misconduct.

65. The Panel considered that doing this a second time, once the Registrant was aware of TH’s disapproval in not being informed in advance makes the matter more serious. Whatever custom and practices were in taking ad hoc unofficial leave at Millbrook, this potentially would leave a gap in which the Registrant’s services were required and he was not available to supply them. While the Registrant gave evidence that he has never had to provide cover for a colleague, he did set out that he had been asked to swap the day on which he completed his administrative duties in the past and to work on a Friday. Further having found dishonesty is respect of Particular 2 of the Allegation, this is a serious matter and the Panel finds that it satisfied the statutory ground of misconduct.

Misconduct found proved.

Decision on impairment

66. The Panel had to consider whether the proven facts amount to current impairment of fitness to practise. It took into account the submissions, guidance and legal advice.

67. The Panel also requested advice on retiring as to whether historic dishonesty must always lead to a finding of current impairment. The Legal Adviser provided the Panel with legal advice which was repeated in open session. This drew upon the principles set out in the case of PSA v (1) GMC (2) Uppal [2015] EWHC 1304. The Legal Assessor explained that this was an appeal brought by the PSA to challenge a GMC Panel's decision not to impose any sanction upon a trainee GP who had admitted dishonesty and was found to be guilty of misconduct. The High Court upheld the appeal in part, agreeing that in view of the nature of the misconduct it was unduly lenient not to have imposed a warning, but it rejected an argument that a finding of dishonesty necessarily required a finding of impairment. The Legal Assessor did distinguish this case from that, where dishonesty was admitted, but indicated that this case is also helpful in highlighting that whilst a finding of dishonesty will be a strong argument in support of impairment, it cannot be assumed that impairment will follow and full consideration should be given to whether practice is impaired, as it would in cases without any dishonesty element.

Considerations of HCPC submissions

68. The Panel was aware that the HCPC did not present any separate evidence on this point but had argued that the Registrant from the evidence before the Panel is in breach of the standards and behaviour expected of a registered healthcare professional. The Panel took into account that the HCPC submissions are that the Registrant is currently impaired on both the personal and public components. It was acknowledged that while there are no clinical issues highlighted, the Registrant made a deliberate decision to keep information from his line-manager that he knew he should have given her. While the Registrant said that his admitted conduct will not be repeated, the Panel was reminded that dishonesty is not admitted, and this is difficult to remediate.

Consideration of submissions on behalf of the Registrant

69. The Panel also considered what had been said on behalf of the Registrant. It acknowledged that Mr Short had said that the Registrant had made straightforward admissions, and that the WhatsApp message was not an attempt to deceive. Mr Short had reminded the Panel of the passage of time between the Registrant making two communications to TH: at 11.54 and at 11.57, three minutes later, first indicating he had been asleep but thereafter messaging to indicate he was trying to get a better signal and called back, saying where he was. Within three minutes he had made further contact and told TH where he was, which has not been denied by her.

70. Mr Short reminded the Panel that the Registrant had lost sight of his professional obligations, and these errors were due to a situation he had not previously encountered, with the issues of concern have been referenced in testimonials. He said that the Registrant had reflected, learnt from this incident and uses it as a practical learning example that he shares with others, to illustrate the importance of following procedure and not allowing fear to impact professional judgment.

Panel’s considerations

71. The Panel considered whether the facts it had found proved amounted to current impairment. It acknowledged that the Registrant’s fear of TH contributed to his wrongdoing but that this is not an excuse for it. His misjudgements did not illustrate an attempt to avoid work or responsibility, and it is clear from the evidence of all that he was a good practitioner who worked in the best interests of his service users.

72. The Panel considered whether the wrongdoing was remediable and had been remedied, along with the likelihood of repetition. In relation to the Registrant’s administrative performance and meeting the requirements of employment, the Panel noted that the Registrant had reflected on the importance of meeting these requirements. It considered that given his reflection and the testimonials that he has demonstrated this learning. His new employers have no concerns and there is evidence that he fully complies with his professional obligations within a clinical setting. As such, the Panel concluded that it was satisfied that the Registrant had, in practice, remediated his failing in regard of his wrongdoing but not on the basis of his dishonesty. While there has been no repetition of events in the last three years, it concluded that there did remain an ongoing risk of repetition of his misconduct where dishonesty had not been specifically acknowledged and admitted, meaning that full insight could not be demonstrated.

73. As such, in relation to the Registrant’s misconduct, the Panel determined that the Registrant’s fitness to practise is impaired on the personal component.

74. In relation to dishonesty, the Panel recognised that dishonesty is difficult to remediate. The Panel carefully considered the Registrant’s reflection within his statement and was satisfied that the Registrant had demonstrated some insight into his wrongdoing, it also took the view that he has not admitted dishonesty. Whilst recognising that he would be unlikely to be dishonest by omission in a similar situation, the Panel concluded that his insight has not fully developed. While the Registrant may use this instance as a case study for students to illustrate how something that may not seem major can impact both the individual and the reputation of the profession generally, his omission of dishonesty is an important absence. The Panel took into account that the matters found proved reflected only one instance of dishonesty, but the Registrant’s insight had not fully developed, given that such dishonesty had not been admitted.

75. As such, in relation to the Registrant’s misconduct, the Panel determined that the Registrant’s fitness to practise is impaired on the personal component.

76. The Panel also took into account the overarching objectives of the HCPC to protect, promote, and maintain the health, safety, and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the profession and upholding proper professional standards for members of the profession. The Panel noted that dishonesty is a serious matter having found misconduct, considered that the Registrant’s dishonesty had not been fully remediated.

Decision on Sanction

77. In considering the appropriate and proportionate sanction the Panel was referred to, and took account of, the guidance set out in the HCPC’s Sanctions Policy. The Panel received and accepted legal advice. The Panel was aware that the purpose of any sanction it imposed was not to punish the Registrant, although it might have that effect, but it was to protect the public, to maintain confidence in the Registrant’s healthcare profession and to uphold its standards of conduct and behaviour. The Panel also had in mind that any sanction it imposed must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.

HCPC Submissions

78. Ms Bass set out the relevant principles regarding the imposition of a sanction but, as is the HCPC’s usual approach at the sanction stage, did not advance any specific sanction. She submitted that aggravating features may include a lack of fully developed insight and remediation. She took the Panel through to the specific paragraphs on guidance for dishonesty indicating that there are different levels of dishonesty. She submitted that should the Panel deviate from the guidance an explanation should be provided for this.

Submissions on behalf of the Registrant

79. Mr Short said that in approaching case, the Registrant has chosen to be open and honest. Mr Short submitted that the Registrant had made full admissions to Particulars 1 and 2. In not admitting Particular 3, he was not contending that there was not dishonesty but exercising his right not to admit this. He has been unguarded in his responses and accepts that what he had done could look like dishonesty and recognises that in his training of more junior staff. Mr Short said that this is an isolated incident in a 20-year unblemished and exemplary career. In the last three years he has reflected and worked to remediate his failings. He champions total honesty in all dealings and his testimonials from others support this. The Registrant offers insight, apology and contrition. The risk of recurrence because of his open acceptance of his failings and the HCPC verdict is vanishingly low. The Registrant is a good practitioner. Many testimonials attest to this. He is described as “an exceptional” therapist and “diligent and hard working”. These remarks come from those who have worked closely with him and observed his work, know of the current case and can confirm that there are no other concerns about his behaviour.

80. Mr Short said that it was entirely appropriate to impose a caution order at the lower end of the scale. The Registrant accepts that dishonesty is a serious matter and recognises the unlikelihood of the Panel taking no action. He is a demonstrably contrite and an excellent practitioner who is a benefit to his profession and is able to contribute positively. He is an unmarried person but as such supports both his elderly parents who have no other income. Depriving him of his ability to practise would have severe consequences for others who are blameless.

81. It was submitted that the Registrant had been an OT for 20 years. It was the only job he had known, and he loved it. Mr Short submitted that his misconduct had in effect related to one issue.

Panel’s decision

82. The Panel considered mitigating and aggravating factors.

83. The Panel first looked at the mitigating factors. The mitigating factors are:
- there are no previous regulatory findings against the Registrant;
- this is an isolated and limited incident of wrongdoing within 20 years of practice;
- the Registrant made some admissions as to the facts at the hearing;
- he fully engaged in the hearing and was open to cross-examination;
- the Registrant had developed some insight into his misconduct, and he had apologised and shown genuine remorse;
- he recognised the impact of his wrongdoing on the reputation of the profession;
- the Registrant recognised his wrongdoing at the earliest opportunity;
- there is evidence of significant reflection;

-the Registrant had admitted to his employer unprompted his whereabouts when he was in Croatia;
- the Registrant has used this matter as a training exercise for students in how not to behave.

84. The Panel considered whether there was any personal mitigation in relation to the Registrant. Whilst it accepted the Registrant’s “authority anxiety”, it concluded that this did not justify the Registrant’s dishonesty and so did not amount to personal mitigation.

85. In reaching its decision on sanction, the Panel considered and took account of many character witnesses all of whom had provided very positive and supportive testimonials for the Registrant.

86. The Panel considered the following to be aggravating factors:
- the Registrant did not have full insight into his behaviour in admitting dishonesty;
- the dishonesty was a breach of his employer’s trust, in interpreting WFH as working remotely from any location, without informing his line manager;
- he was not available for work during his conditioned hours, given I.T. issues;
- the Registrant’s role in the dishonesty was active in that once he had known his line-manager wanted to know if he would deviate from his normal conditioned hours, he did not do so when he visited Croatia, (the trip having been booked two months in advance);
- the potential harm to the Registrant’s employer, if the Registrant’s services were needed.

87. The Panel considered the available sanctions in ascending order of seriousness. This was not a case in which mediation was appropriate or proportionate. The Registrant was no longer employed by the same employer.

88. The Panel decided that to take no action in this case would not be appropriate or proportionate given that there are no exceptional factors in play that justified this outcome.

89. The Panel next considered a Caution Order. While this case does involve dishonesty, the Panel was conscious that the Registrant had not sought to evade the work he was contractually obliged to do and had taken the time to complete his work in advance of travelling, while his memory was fresh, and his patients would benefit from his notes being written up at the soonest moment. The Panel considered that the degree and nature of dishonesty was far from being at the highest end and was related to the work environment he was in at the time.

90. The Panel was conscious of the Registrant’s contrition and while the Panel had not ruled out the risk of repetition because the Registrant had yet to develop full insight into his misconduct, it was of the view that a single act of dishonesty is difficult for a person who is otherwise honest to accept his shortcomings. The Panel was mindful of the significant reflection that the Registrant has demonstrated in his written documentation and that he had recognised the unacceptability of his actions. The Panel took into account that the Registrant had fully accepted the findings of the Panel in characterising his behaviour in respect of his trip overseas as dishonest.

91. The Panel was satisfied that to ensure public confidence in the profession was not undermined, a sanction was required, but did not consider a more severe sanction was necessary. The Registrant’s wrongdoing could be seen at the lower end of dishonesty in a post-Covid world where WFH and working remotely have not been demarcated strictly. The Panel considered that the imposition of a Caution Order was commensurate with the level of his wrongdoing, given the elapse of three years without any further wrongdoing noted and such positive testimonials.

92. The Panel did consider whether a more severe sanction was appropriate. Accordingly, it looked at whether a Conditions of Practice Order was required. It noted that the guidance indicated that this is not a suitable sanction for dishonesty and that Suspension would be too severe a sanction in this case.

93. The Panel considered the length of a Caution Order and decided that one year was sufficient. It was of the view that the lack of any repetition or cause for concern from his employers during the last three years was significant. The Panel was guided by the official guidance which sets out that:

“103. The panel can impose a caution order for any period between one and five years…the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.”

94. The Panel considered that one year is appropriate and proportionate, this being a sufficient period to mark the Registrant’s record and indicate the unacceptability of the Registrant’s actions for his fellow practitioners and uphold the reputation of the profession.

ORDER: The Registrar is directed to annotate the register entry of Mr Reymund Enteria with a caution which is to remain on the register for a period of one year from the date this order comes into effect.

Facts Proved: 1, 2, 3
Grounds: Misconduct
Fitness to Practise Impaired: Yes
Sanction: Caution Order - 1 Year

History of Hearings for Mr Reymund Enteria