IN THE FIRST TIER TRIBUNAL 			CASE NO: [2010] 1756.SW
HEALTH EDUCATION AND SOCIAL CARE 

BETWEEN:-

NGOZI AGBEZE
										Appellant

And

GENERAL SOCIAL CARE COUNCIL
										Respondent

Tribunal 
John Burrow – Judge
Margaret Diamond
David Braybrook

Hearing – 9 August 2010
Venue -    Mowden Hall, Darlington

1.	   Introduction
1.1    The case was heard on the papers at the request of the appellant.

1.2    The appellant is a registered member of the General Social Care Council (GSCC) registration no 1023728.

1.3    The Tribunal makes a restricted reporting order under Rule 14(1)(b) prohibiting the publication (including by electronic means) in a written publication  available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public  to identify any child relevant to these proceedings.

1.4    Ms Agbeze appeared before the Conduct Committee of the GSCC between 7 – 9 April 2010.  She faced a number of allegations:-
1.	While employed by NCH, now “Action for Children” (AFC) you
a)	 On the night of 27 November 2006 and the morning of the 28 November 2006, failed appropriately to safeguard Baby S in that you:
i)	 Did not, adequately or at all, ensure that Baby S had been appropriately fed;
ii)	Did not adequately or at all, ensure that baby S had been appropriately settled in  her cot;
iii)	Did not adequately or at all check personally on Baby S;
b)	 Between July 2004 and April 2006 you:
i)	 Failed adequately or at all to record relevant events in the project log book
ii)	Failed adequately or at all to record relevant tasks completed during the night shift
iii)	Filed adequately or at all to read the log so as appropriately to inform yourself of relevant events and relevant messages left for you.
iv)	Failed adequately or at all to record relevant events in family files;
v)	 Failed adequately or at all to maintain accurate medication records.
c)	 Failed to adequately or at all inform AFC that whilst employed for 30 hours per week by AFC between June 2004 and September 2007 you were also employed full time by Coventry Social Services.
And in relation to the above facts you have committed misconduct.

1.5    The Appellant denied all the allegations save Allegation 1(c), and denied misconduct.  The Conduct Committee found all the allegations proved on the balance of probabilities.  They then considered misconduct and found, as a matter of judgement, misconduct proved in relation to the allegations in Part 1(a), having regard to Code of Practice paragraphs 4.1, 4.2, 4.3, 5.7, 5.8, 6.1 and  6.4.  They also found misconduct proved in respect of allegation 1 (c), having regard to Code of Practice paragraphs 2.2, 2.6 and 6.1.  Misconduct was not found in respect of allegation 1(b).

1.6    After considering mitigation the Conduct Committee imposed an admonishment, to be placed on the Registrant’s entry on the register for the maximum period of 5 years.

1.7    Ms Agbeze now appeals against the decision under Section 68 of the Care Standards Act 2000, which states
“On appeal against a decision the Tribunal may confirm the decision or direct that it shall not have effect”.
Thus the Tribunal steps into the shoes of the Conduct Committee and redetermines the decision, which may be confirmed or overturned.

1.8    In her notice of appeal, Ms Agbeze stated as her grounds of appeal:- 
“The finding of misconduct in relation to allegation 1(a) and 1(c) was incorrect.  There was no independent evidence to support the GSCC’s allegation that Child A was put at significant risk on the night of 27 November 2006.
In relation to 1(c) the registrant was working for NCH Action for Children in a position of waking night staff and not a social work role.  There is no evidence that the registrant deliberately deceived both employers.  The issue of working time for two employers we maintain is an employment matter and is subject to disciplinary procedures under an employer’s HR policies and not subject to a misconduct hearing through a professional body.”

1.9    The decision on the allegations is on the balance of probabilities, with the burden of proving the allegations being on the GSCC (see Paragraph 12(1) and (2) of Schedule 2 of the GSCC (Conduct) Rules 2008).

1.10    Misconduct is defined as conduct which calls into question the suitability of a registrant to remain on the register – see Rule 2(1) of the 2008 Rules.  The decision on misconduct is a matter for judgement of the Conduct Committee and, on appeal, the Tribunal.

1.11    The Conduct committee is required to have regard to the GSCC Codes of Practice for Social Care Workers in deciding misconduct – see Paragraph 23(3) of Schedule 2 of the 2008 Rules.

1.12    We were provided with a copy of Ms Agbeze’s appeal application form, dated 6 May 2010, the notice of decision of the Conduct Committee dated 8 April 2010, the GSCC response, and the bundle which was before the Conduct Committee at their hearing on 7-9 April 2010.  We had regard to all the documents in the bundle

2.	   Allegations 1(a) (i), (ii) and (iii)

2.1    Ms Agbeze had been employed on an agency basis at The Bonner House Project for NCH as a member of the night shift “waking staff” since 2004.  Bonner House was an assessment centre for families whose parenting had become a matter of significant concern.  It consisted of a number of flats where families resided and where the parenting could be monitored and supervised, and the waking staff were employed to observe parenting skills at night and deal with incidents or emergencies.  The responsibilities of the waking staff were set out in the job description.  

2.2    It was apparent that Ms Agbeze  had had an appreciable amount of training for her duties.  She had access to an Induction Log and information on Waking Night staff duties.  Between April 2006 and 15 November 2006 she was offered 10 supervision sessions and attended 6 of them.    According to Mr Over the manager of Bonner House, at these sessions working with resistant parents was an issue that was covered regularly. She also attended 2 days in house training on safeguarding children.  In 2005 performance targets were established and agreed with her that included that she must be more assertive with families.

2.3    In 2006 she was employed as a full time member of staff but was put on a probationary period because of sickness, and concerns as to her standard of work.  These concerns were  set out in various employment records and included failing to challenge a parent. She had been given warnings about her performance, and there was assistance in improving performance.   She was initially on monthly supervision sessions which were reduced in November 2006 to fortnightly sessions, to meet the problems with her work.   One of the concerns addressed was that Ms Agbeze ought not to simply take the word of the parent about what had been done for the baby, but to be proactive.

2.4    In March 2006 the manager of the unit, Adrian  Over, wrote to Ms Agbeze reminding her that parents at the unit “cannot be relied upon to respond to their needs appropriately and that they are sometimes less than honest with staff about what is happening  to their children.  In short we cannot take what parents tell us on trust and our practise is professionally dangerous if we do”.  This letter was discussed between Mr Over and Ms Agbeze on 24 March 2006.

2,5    On 9 March 2006 during a supervision meeting for Ms Agbeze, it was noted that she must adopt a more proactive approach to issues, and she should visit to check a child’s well being

2.6    The log book on the mother kept at Bonner House, (which Ms Agbeze has access to and was expected to read)  referred to the mother needing prompting to do parenting tasks, including feeding the baby and being warned not to keep the baby in the bouncy chair all the time.  This was just two or three days before the incident on the 27 November 2006.

Events on 27/28  November 2006
2.7    On the 27 November 2006 mother SC and Baby S (4 weeks old) were resident in one of the flats as part of an assessment of the ability of the mother to care for the baby.  Significant concerns had already been raised about the standard of care.  It appears Ms Agbeze knew of the mother’s shortcomings, accepting in an investigation after the event that the mother was not competent to look after the child.  

2.8    Baby S was suffering from a rash, had diarrhoea, possibly a temperature and was unsettled.  Ms Agbeze came on duty at 22.00 hrs on 27 November 2010 as waking night staff, when it seems the baby was given a small amount of milk, possibly 2-3 ounces.  The baby was on a 4 hour feed cycle.  Ms Agbeze was present at about 23.30 when mother and baby were taken by ambulance to hospital.  

2.9    At some point it appears that staff  at the hospital phoned Ms Agbeze to say the baby was ok and was returning with the mother to Bonner House.  They arrived at about 1.40 am where they were met by Ms Agbeze and taken to the flat.  At some point the mother made herself a drink and it appears thereafter the baby started crying.  Ms Agbeze , according to the entry she placed in the Bonner House  log, suggested to the mother that she thought the baby was hungry and she should be fed.  
The note read:-
01.40 SC returned from hospital with Baby S.  She stated no medication had been given to baby S.  Baby S was crying and appeared hungry.  I advised her (SC) to give her a feed but she stated that Baby S was alright and only that she was not well.  I did advise her to settle (Baby S) in a cot if not giving her a feed.  SC preferred to leave her in the bouncy chair.”

2.10    During investigations by Caroline Leahy, Assistant Director of Children’s Services for Action for Childen, and Adrian Over, manager of the unit, Ms Agbeze  was recorded as saying she had been told the baby was not ill by the baby’s mother and the hospital. She said the hospital had not given any advice as to how the baby should be treated.  She accepted that she had not asked for any advice.  Ms Agbeze said the baby had started to cry and she had suggested that the baby was hungry, pointing out that the baby had only had 2 – 3 ounces at 10.00 pm, so she might be hungry.  The mother said no – she’s not well.  

2.11    Ms Agbeze also said the mother had told her the baby had been fed at the hospital, although Ms Agbeze accepted she had not sought or obtained independent verification of this.  When it was suggested by her that the mother should settle the baby in the cot the mother said she would do it later. Ms Agbeze said in a log entry that she had suggested a second time that the mother settle the baby in the cot.   She said in the Oliver investigation that the mother said she would put the baby into her cot when she was asleep, and also that the mother said would put the baby in the cot after the mother had had her drink.  Ms Agbeze also states that she said to the mother not to keep the baby in the bouncy chair for too long.  Ms Agbeze said the mother wasn’t listening to her advice.
2.12    Ms Agbeze said she stood there for  a while and at about 2.00 pm the baby stopped crying.  At that time the baby was still in the bouncy chair.    Ms Agbeze said she didn’t prepare a drink for the baby because she had stopped crying.  The mother placed the baby in the rocking chair, and Ms Agbeze suggested that she should settle the baby in the cot.   The mother replied that she would do it once the baby had fallen asleep.  Ms Agbeze said she was still in the flat when the baby fell asleep. She subsequently left the flat at about 2.30.

2.13    She thereafter described walking along the corridor outside the flat and listening for any disturbances or crying.  There are entries in the Log suggesting she did this every half an hour or so.  She heard nothing and did not go into the flat or check personally or face to face to ensure that the baby was  alright.  She said she had not entered the flat to check the baby personally because she could hear from the outside the baby was not crying, and because there had been no calls from the mother.  She admitted that if she did it again she may have done things differently and made sure the baby had a drink and was put to bed.  

2.14    At about 7.30 am,  Ms Agbeze handed over to the next shift who became concerned the baby had not been fed since 22.00 hrs the previous night.   They tried unsuccessfully to rouse the mother, knocking on the door and phoning.  At about 8.55, they let themselves in by a pass key, and found the mother asleep and the baby still in the bouncy chair.  The mother was difficult to rouse.  Staff believed the baby had been in the bouncy chair all night.  The mother agreed to give up care of the baby temporarily and on 30 November 2006 she gave up care permanently and the baby was removed to foster care. 

2.15    During the evening of 27 November 2006, Ms Agbeze had access to a sleeping in member of staff and an on call manager.  It was expected of Ms Agbeze that she would ensure the baby was fed and placed in its cot and if she could not ensure this then she should contact the sleeping in member or the on call manger.

2.16    The NCH went through a formal disciplinary process but Ms Agbeze resigned from NCH on 2 September 2007 before it was completed.

Consideration by the Panel - Allegations 1(i) and (ii)
2.17    We considered these allegations, bearing in mind the burden and standard of proof.  We took into account Ms Agbeze’s ground of appeal that “there was no independent evidence that Child A (presumably by this is meant Baby S)  was put at significant risk on the night of 27 November 2006”.  We also took into account the defence made at the hearing that Baby S had been checked on and that it was up to the mother to contact staff.

2.18    We reminded ourselves that the allegation was not of placing Baby S  at significant risk, but failing appropriately to safeguard Baby S.  We accepted that Ms Agbeze had a duty to act proactively to safe guard the baby, and not simply rely on the mother to notify staff.  This seemed to us to be a central function of the unit and the staff who worked there.

2.19    We noted that Ms Agbeze had suggested to the mother that the baby should be fed and settled in the cot and that the thrust of the allegation against her was that she had not been persistent enough in insisting that these actions be taken in the face of parental prevarication.  
However we did not accept that the actions taken by Ms Agbeze were sufficient to meet her duty to safeguard the baby.  She knew there were significant concerns about the mother’s parenting skills, including feeding and placing the baby in the bouncy chair for long periods.  She had been warned about the risks of taking parental assertions at face value.  She had been told that she must take proactive steps to ensure the baby was safeguarded, and she knew she could and should contact the sleep in staff or the manager if the parent was not cooperating and where the baby’s safety might be compromised.

2.20    Despite these warnings, and despite the fact she had formed the opinion (as expressed in the log) that the baby might need feeding, she apparently took the reassurances of the mother at face value and left the flat without ensuring the baby having been fed.   Similarly she accepted parental promises that the mother would settle the baby in the cot at some later time, and, again left the flat without ensuring it had been done.  This in our view was not appropriately safeguarding the baby and we agreed with the Conduct Committee that Allegation 1(a) (i) and (ii) were made out on the balance of probabilities.

Allegation 1(a) (iii)
2.21    We then considered Allegation 1 (a) (iii), bearing in mind the burden and standard of proof.  We considered it was not sufficient for Ms Agbeze to merely listen outside the door to hear if there was crying.  The absence of crying would not necessarily indicate the baby had either been fed or put in the cot.  Neither was it sufficient to rely on the absence of calls from the mother.  Given the circumstances, a face to face check was in our view necessary and this was not done.  We agreed with the Conduct Committee that the allegation was proved on the balance of probabilities.

Allegation 1(b)
2.22    We accepted theConduct Committee’s reasoning that allegation 1(b) was made out but we noted that they found that this did not constitute misconduct, and therefore could not be taken into account in determining the sanction.

Allegation 1(c) 
2.23    We then considered allegation 1(c) on the balance of probabilities.  We noted Ms Agbeze admitted she was working at both jobs at the stated time, and that she had not informed either of her employers of the fact.  We noted also the letters from the two employers confirming these facts.  We found the allegation proved on the balance of probabilities.

3.	  Misconduct
3.1    We then considered misconduct as “conduct which calls into question the suitability of a registrant to remain on the register.”

3.2    In respect of Allegation 1(a) (i) (ii) and (iii) we concluded that a failure to safeguard Baby S was a serious failure of professional responsibility, exacerbated by the warnings and training she had been given prior to the event.  In our view there was at least a potential for the baby not to have been looked after properly, and the seriousness of this failure was exacerbated because the baby had been ill and fretful, and had very recently been taken to hospital by ambulance.  The baby may have been underfed and as she had been suffering diarrhoea, it was important to ensure that she was adequately hydrated.  Similarly running the risk of the baby spending appreciable periods in the bouncy chair was a matter of concern given the warnings that had been expressed about it so recently.  Similarly a failure to adequately check on the condition of the baby, given all the circumstances set out above, was in our view a serious failure of professional responsibilities.  

3.3    We had regard to the Code of Practise and agreed that codes 4.2, 4.3, 6.1 and 6.4  had been breached.  We accepted that Allegations 1(a)(i), (ii) and (iii) did constitute misconduct.  

3.4    In respect of allegation 1 (c) we noted the concerns of employers where two jobs are taken.  We noted the letter from Coventry City Council where they set out some if the concerns:-
“If [the appellant] were working for NCH this would not be in line with the CCC conditions of employment and policies and procedures.  They require that employees get permission from management before undertaking any additional work.  Had permission been requested a decision would have been made by the management taking into account if there was any conflict of interest, or any other issues, eg potential impact on work, her well being, impact on service users and a number of hours she was asking to work elsewhere.  We would not agree for an employee to have two full time posts.  This could also have implications under the working time regulations”.    
We accepted that these concerns were matters which could be properly taken into account.  The jobs Ms Agbeze  had were one full time and the other very nearly full time at 30 hours a week.  

3.5    We considered her grounds of appeal that 
“In relation to 1(c) the registrant was working for NCH Action for Children in a position of waking night staff and not a social work role.  There is no evidence that the registrant deliberately deceived both employers.  The issue of working time for two employers we maintain is an employment matter and is subject to disciplinary procedures under an employer’s HR policies and not subject to a misconduct hearing through a professional body.”
We did not accept that the fact the employment with NCH was not directly in a social work role lessened in any way the wrongfulness of taking two jobs without notifying both employers, or that it was merely an employment matter.  The conflicts inherent in “dual jobbing” are in our view a proper subject for professional disciplinary regulation, if proved.  We noted the Conduct Committee made no finding that there was deliberate deception on the part of Ms Agbeze, terming her actions ones of omission.  The tribunal do not seek to overturn this finding.  We considered the Code of Practise and concluded Codes 2.2, 2.6  and 6.1 were breached.  We concluded that allegation 1(c) did constitute misconduct.

4.	   Mitigation and sanction
4.1    We then considered mitigation (Schedule 25 para 24)  and sanction, and reminded ourselves that we should take into account the matters set out in Schedule 2 paragraph 25 (2) of the 2008 Rules:-
		The seriousness of the Registrant’s Misconduct
		The protection of the public
		The public interest in maintaining confidence in social care services and 
		The issue of proportionality
We also had regard to the Indicative Sanctions Guide (ISG).

4.2    We considered mitigating circumstances including the fact that Ms Agbeze had attempted to persuade the mother to feed and settle the baby. It was not as if she had done nothing at all. Further we noted that there was no proof of actual harm to the baby.  Thirdly we noted that Ms Agbeze took some steps to check on the situation during her night shift, albeit we have found they were inadequate.  We noted there was no allegation of deliberate deception or dishonesty in respect of allegation 1(c), and we set that out of our minds in considering sanction.  We accepted that although the failure to inform respective employers had its serious aspects, since it could have jeopardised the safety of vulnerable users, no actual harm was proven to have occurred because of it.    We concluded that Ms Agbeze had been given appropriate training and warnings.

4.3    The tribunal’s consideration of the seriousness of the allegations has been set out above when misconduct was considered.  We regarded the failures by Ms Agbeze on the night of 27/28 November to be serious, given the warnings made, and potentially put the baby at risk of not being cared for properly, given her condition and the inadequate parenting which had been observed in the mother. 

4.4    We agreed that the facts were too serious for there to be no sanction.

4.5    We considered admonishment.  We noted the ISG suggested that it might be appropriate where the offence is at the lower end of the spectrum of misconduct, where the Committee wishes to mark the behaviour was unacceptable and must not happen again.  We concluded that although the misconduct was towards  the top end of what was appropriate for an admonishment, it was still within the band and we conclude that admonishment was the appropriate and necessary sanction.  We agree the entry should stay on the record for the maximum 5years.  The tribunal therefore confirmed the decision of the Conduct Committee.

John Burrow

Judge HESC

15  August 2010.