DM
v
General Social Care Council
[2010] 1766.SW

Before

Miss Maureen Roberts, Tribunal Judge
Mrs Jenny Lowcock, Specialist Member
Mr Michael Jobbins, Specialist Member

DECISION

Heard on 4 5 and 18 May 2011 at the Liverpool Civil and Family Court 35 Vernon Street Liverpool.

Representation:  The Applicant represented himself and gave evidence.

The Respondent was represented by Ms K Bex of Counsel.
The tribunal heard evidence from Ms Jodie Godden Team manager at the GSCC, Ms Doherty External Investigating Officer for the GSCC, Ms G McManus Team Manager at Salford City Council Social Services department, Police Sergeant Maloney and Police Constable Bruffell of the Merseyside Police.

APPEAL

1.	The Applicant appeals against a decision made by the Respondent on 20 April 2010 to remove him from the Register of Social Workers.  The Appeal is made under S68 of the Care Standards Act 2002.  It is for the Care Standards Tribunal ("the CST") to confirm that decision or to direct that it shall not have effect:  see section 68(2) of the Care Standards Act 2000. 
2.	The Tribunal has decided to continue the  restricted reporting order, originally made in the preliminary directions, under Rule 14 (1) (b) of the  Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, 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 the Applicant.   

THE BACKGROUND

3.	The Applicant qualified as a social worker in 1995. He has worked in child protection since qualifying, thus working directly with children and families. He has had permanent full-time work but more recently, since 2002, he has worked through employment agencies. In March 2008 the Applicant started work on an agency basis for Salford Social Services Department.
4.	It was alleged that the Applicant had, at approximately 2:55 AM on Thursday, 10 April 2008 approached members of the public in Argyle Street Birkenhead, and made sexually suggestive advances to them. It was said that he had shown his social work identity card to members of the public and had made lewd suggestions to them.
5.	The police responded to a 999 call made by a man who complained of the Applicant's behaviour. The lead officer was PC Carey supported by PC Bruffell and with Police Sergeant Maloney present. When the police attended the Applicant was in the vicinity. They spoke to him and the police recorded that he was co-operative with them and admitted that he had taken cocaine and had asked young women if he could ‘piss in their mouths '. He produced to the police officers his social worker ID card.
6.	At this stage the original complainants, who were said to be young women were not present. The police officers warned the Applicant about his behaviour and issued him with a stop and search notice at the scene which the Applicant signed. The Applicant was not arrested and no further police action was taken by them against him.
7.	The next day the police sent a fax to the Family and Crime Investigation Unit notifying them that the Applicant, who was a registered social worker, had been behaving in the manner outlined above. In due course this information was passed to Wirral Social Services and then Salford Social Services.
8.	When Salford Social Services received the information, the Applicant's line manager Ms McManus, team manager of the Children and Family Court team for the City Council, interviewed the Applicant on 14 April 2008. She recorded her notes of the conversation and these were available to the Respondents Conduct Committee and the tribunal. In that meeting the Applicant accepted he had been stopped and spoken to by police officers in Birkenhead however he said that the incident occurred at about 11 PM at night when he had been approached by two young women who alleged he had had professional involvement with a member of their family.
9.	The Applicant said that he had been stopped by the police who had told him that an allegation had been made that he had been involved with young women in some sort of sexual orgy. The Applicant told Ms McManus that he had explained to the police what had occurred and shown them his ID card. He said that they were satisfied with this and no further action been taken. 
10.	The Applicant's account of what happened to his line manager was at odds with the account given by the police. Subsequently Ms McManus informed the Applicant that his placement with the City Council, through the employment agency, would be terminated.
11.	There was a multi agency meeting about the incident and the employment agency notified the Respondent of the allegations.
12.	The Applicant was notified of the investigation by the Respondent in a letter dated 6 May 2008. In a letter dated 5 March 2009 he was informed that no further action was going to be taken. However in a letter dated September 2009 he was informed that the matter had been reopened and was to be investigated. This resulted in an ISO in January 2010 and the Conduct Committee hearing in April 2010.
13.	On 20 April 2010 the Respondent’s Conduct Committee met. The Applicant did not attend and made no representations to the Committee. The Committee heard live evidence from PC Carey and Ms McManus and had the relevant documents which will be referred to later in this decision. The Committee concluded that the allegations were proved against the Applicant and that they amounted to misconduct. In considering the sanction the Committee decided to remove the Applicant from the Social Care Register.
14.	It is against this order that the Applicant appeals.

THE LAW

15.	The decision of the GSCC's Conduct Committee was made under S59 of the Care Standards Act 2000 (CSA) coupled with the General Social Care Council (Conduct) Rules 2008 (the Rules).
16.	Section 59, Removal etc from register of the CSA provides:

	(1)	Each Council shall by rules determine circumstances in which, and the means by which –
		(a)	a person may be removed from a part of the register, whether or not for a specified period;
		(b)	a person who has been removed from a part of the register may be restored to that part;
		(c)	a person's registration in a part of the register may be suspended for a specified period;
		(d)	the suspension of a person's registration in a part of the register may be terminated;
		(e)	an entry in a part of the register may be removed, altered or restored.

	(2)	The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in proceedings brought for the purposes of the rules, whether before the Council or any committee of the Council.

	(3)	The rules shall provide for such proceedings to be in public except in such cases (if any) as the rules may specify.

(4)	Where a person's registration in a part of the register is suspended under subsection |(1)(c), he shall be treated as not being registered in that part notwithstanding that his name still appears in It.

PROCEDURE OF THE CONDUCT COMMITTEE OF THE GSCC

17.	The Conduct Committee operates under the GSCC (Conduct) Rules 2008. These provide that formal allegations are put before the Committee.
18.	The allegations before the committee in this case were as follows:
It is alleged that:-

1.	 On the 21st July 2005 you were registered as a social worker with the General Social Care Council.
2.	In March 2008 you commenced a placement or assignment through Liquid Personnel as a social worker with Salford City Council.

Part 1
3.	On 10 April 2008 at approximately 2:55 AM you were stopped by police near Argyle Street Birkenhead further to a report from a member of the public that:-
(a)	you had approached males and females in Argyle Street, Birkenhead and invited them to engage in sexual behaviour with you
(b)	you had displayed your social worker identity card in order to solicit such behaviour
4.	On 10 April 2008 you were approached by PC Robert Carey and admitted to him that:-
(a)	you had taken class a drugs, namely cocaine
(b)	you had asked some young women to allow you to urinate in their mouths
(c)	you had exhibited your social services identity card to those young women
5.	Your conduct at paragraphs 3(a) and (b),and 4(a),(b), and (c) amounts to unprofessional and inappropriate behaviour.

Part2
6.	On the 14th  April 2008, you informed Gwyneth McManus, your line manager at Salford City Council, that on 10 April 2008:-
(a)	you are approached by two young women in Birkenhead at approximately 11 PM who said they had been involved in care proceedings that you had initiated
(b)	you were later approached by police who stated these women alleged you had involved them in a sexual orgy 
(c)	you explained yourself to the police who were satisfied with your explanation
7.	Your actions as set out in paragraphs 6(a) (b) and (c) were 
(a)	Misleading
(b)	Dishonest 

Part 3
8.	In your application for renewal of your registration as a social worker with the General Social Care Council on 11 July 2008 you did not notify the General Social Care Council that your placement or assignment with Salford City Council was terminated on 15 April 2008 as a result of the incident on 10 April 2008.
9.	In relation to the above facts you have committed misconduct.

After hearing the evidence the Respondent's Conduct Committee found allegations 1,2,3(a), 39b), 4(a), 4(b), 5,6(a) 6(b), 6(c), 7(a), 7(b) and 8 proved. Further the Committee found misconduct proved. 

THE DECISION OF THE GSCC CONDUCT COMMITTEE

19.	In coming to a decision on the sanction the Committee is guided by its own rules and the Indicative Sanctions Guide. 
20.	Upon a finding of misconduct the Conduct Committee may admonish the registrant for a period of up to 5 years, make an order suspending the registrant's registration for a period not exceeding two years or make an order for the removal of the registrant.
21.	The rules provide:
		In accordance with Rule 25(2) of Schedule 2 of the Rules, "In deciding what sanction is to be imposed, the Committee shall take into account:
		a.  the seriousness of the Registrant's Misconduct;
		b.   the protection of the public;
		c.  the public interest in maintaining confidence in social care services;and
		 d.  the issue of proportionality."
22.	The committee decided to remove the Registrant from the Register. It said “ the Registrant's behaviour was, in the committee's view, fundamentally incompatible with his continuing to be a registered social care worker. In the absence of any evidence from the Registrant himself, (emphasis added), the committee was not satisfied that he had any insight into the inappropriateness of his behaviour. The committee could not be satisfied that suspension would prevent recurrence...... The behaviour here was of such a nature and degree as to cause dismay to members of the public and by virtue of its serious departure from the relevant standards in the Code would bring the social work profession into disrepute. The Registrant compounded the seriousness of the matter by his dishonest and misleading responses to both Salfordd City Council as they enquired into this matter and the GSCC in respect of his application for renewal of his registration. The Committee considered that confidence in the social care services would be undermined if the Registrant were to remain on the register.”	

PRELIMINARY ISSUES

23.	Abuse of process. On the 5 March 2009 the Respondent wrote to the Applicant informing him that further to their letter of 6 May 2008 they had “decided to take no further action with regard to the matter as whilst, there is a Complaint the GSCC considers there to be a lack of evidence to take the case forward through the conduct process.” The letter advised the Applicant to consider the “implications of your future behaviour on your status as a registered social worker.” It concluded that “the information would be held on file and clearly marked ‘no further action’ but will be reviewed should the GSCC receive a referral in the future regarding your conduct.”
24.	In September 2009 the Respondent wrote to the Applicant to inform him that the case was being reopened. This in due course led to an interim suspension order imposed in January 2010 and the Conduct Committee hearing in April 2010 and the Applicant’s removal from the register.
25.	The Applicant submitted that the GSCC had acted outside its powers in reopening the case having told him that no further action would be taken. The Respondent has treated this as an abuse of process claim against them and made submissions in respect of this argument. 
26.	The tribunal considered this as a preliminary point and was directed to the case of R v Abu Hamza [2007] 1 Cr App R 27,CA which sets out the preconditions for a finding of abuse of process. In that case it was stated that there would have to be both an unequivocal representation by those with conduct of the investigation or prosecution of the case that the defendant would not be prosecuted (or here face disciplinary proceedings) and that the Applicant has acted on that representation to his detriment.
27.	It was argued that whilst there might have been a representation not to proceed, the Applicant had not acted to his detriment. In addition Counsel for the Respondent argued that in disciplinary matters the protection of the public was paramount and that was further reason for a mistake, i.e. a decision not to proceed, to be corrected and reviewed. 
28.	After the hearing from both sides the tribunal accepted that the Applicant had not acted to his detriment. There was therefore no abuse of process in reopening the matter and instituting the proceedings before the Conduct Committee. However as a matter of justice and fairness the Applicant had been prejudiced by the actions of the GSCC and this is an issue that we address in our conclusions.
29.	The evidence of PC Carey. PC Carey's evidence was central to the Conduct Committee's decision and the Applicant was plainly expecting PC Carey to attend the tribunal hearing. On the first day of the hearing Counsel for the Respondent told the tribunal that PC Carey had left the police force and was uncontactable. She acknowledged that the Applicant had not been informed of PC Carey's unavailability. 
30.	Further the tribunal were told by the Applicant that he had only received the police statements, in April 2011, after a directions hearing in March 2011. It appears that the statements had been sent to the Applicant’s old address in September 2010. Counsel for the Respondent accepted that a mistake had been made and that that the Respondent was aware that the Applicant had moved and had his current address at the time the statements were sent. 
31.	The tribunal accepted that PC Carey was out of the country and no longer contactable by phone or in any other way. We accepted the Applicant’s submission that this was a blow to his case as he had prepared considerable cross examination for PC Carey. He alleged that the officer was hostile towards him and impatient with his replies to questions. 
32.	The Tribunal heard from Sgt Maloney and PC Bruffell who were present at the incident although neither of them had spoken directly to the Applicant. The tribunal had read the oral evidence of PC Carey to the Conduct Committee and accepted this as hearsay evidence to the tribunal.

EVIDENCE AND SUBMISSIONS

33.	The tribunal had the benefit of reading the bundle which had been prepared for the Respondent's Conduct Committee including the police statements, note books, stop notice and 999 log. We also had a transcript of the conduct hearing and the notice of the decision and reasons of the Conduct Committee.
34.	The Applicant in his grounds of appeal and subsequent statement denied that he had admitted taking cocaine to the police, he also denied making lewd or indecent suggestions to members the public and showing them his ID card. He said one officer PC Carey had been hostile and confrontational with him and had misunderstood flippant or sarcastic comments made by him.
35.	 He denied failing to inform the GSCC of any matters on his application for renewal of registration and that he was unaware of the referral to the Conduct Committee. 
36.	As noted above he complained that having been told, a year after the referral, that the matter would not be taken any further, six months later he was then told that it was a complaint warranting investigation. The Applicant considered that the allegations were made maliciously by someone who had recognised him as a social worker and that as the complainants had left the scene it was difficult to check what had been said.
37.	 Finally he pointed out that he had a 12 year record of social work without previous incidents and he provided a number of testimonials for the tribunal. 
38.	The Respondent's witnesses gave evidence to the tribunal confirming their witness statements. Ms Godden described the procedure for investigating cases and confirmed that she had been involved in the letter sent to the Applicant informing him that no further action would be taken. Ms Doherty described her role as an independent investigator who looked at the case when the matter was reopened.
39.	 Ms McManus confirmed her involvement with the Applicant as his line manager in Salford City Council. She confirmed the contents of the note she had made of the meeting that she had had with the Applicant.
40.	 The tribunal heard from Sgt Maloney who was the sergeant on duty and present at the incident on 10 April 2008. He produced a storm Log of the 999 call and explained how the officers would have responded to a radio message and how notes would be made after they had attended.
41.	The 999 call (storm log) to the police recorded ‘”a male outside the above location. He is purporting to be a Salford child protection officer and is asking ladies to carry out lewd acts such as urinate in his mouth.” The record then goes on “He states the male showed him (the caller) his badge and then started to make lewd suggestions to nearby females. They were offended by this. “
42.	The tribunal saw the wording of the stop notice given to and signed by the Applicant. It read, “Male described reported to be claiming to be a social worker and asking males and females to engage in inappropriate behaviour.”  
43.	The police notebook of PC Carey completed at the time states “Admitted taking cocaine, asking young women to let him ‘piss in their mouths’. Exhibited social services ID card. Report to FCIU. Advised regarding behaviour. Sgt Maloney aware.” That information was recorded in the fax to the FCIU.
44.	 Sgt Maloney had not spoken directly with the Applicant but he had been approached by a man called Grant Smith who said he had made the 999 call. He confirmed what he had said in the 999 call and gave Sgt Maloney his mobile phone number and address. He was not prepared to make a formal complaint. This man was in his late 30s or early 40s and did not appear intoxicated but appeared concerned and disgusted by what he had seen. 
45.	PC Bruffell had been the support police officer at the scene and had stood alongside PC Carey when PC Carey had been talking to the Applicant. PC Carey had taken the lead in the conversation and PC Bruffell said he confirmed the gist of what had been said and recorded in PC Carey’s note book. He could not remember whether the Applicant had admitted taking cocaine or, that he was asking people to let him piss in their mouths. 
46.	Both officers stated that PC Carey was a reliable and honest police officer who in their view would not have behaved inappropriately or in a hostile manner to the Applicant. 
47.	The Applicant confirmed his evidence and submissions as noted above to the tribunal. On his own admission he had gone to a pub after work and stayed there till approximately 12 -30 am. He had consumed some six or seven pints of beer. He had been delayed getting to the Wirral because he had missed the last train and therefore had to wait for a bus. 
48.	When he arrived in Birkenhead he said that there was an exchange between him and some young women. As noted above he thought that they had recognised him from his work. He had moved away from them to avoid trouble. He had co-operated with the Police.
49.	 The Applicant said that he had not admitted taking drugs. No drugs were found on him when he was searched. In respect to the allegation of inappropriate behaviour he said he made regrettably flippant comments in a sarcastic way. He considered that the complaint had been malicious but he saw no point in trying to explain this to PC Carey who he said was antagonistic and not listening to him.
50.	 The tribunal were concerned that he had not participated in the Conduct Committee proceedings and asked him about this. He explained that he had lost his work after he had been placed on an Interim Suspension Order in January 2010. He had had to change accommodation as he could not afford the rent on his flat, and had been suffering from depression. He acknowledged that he had buried his head in the sand and said that he just did not have enough money to get to London for what he was told would be a two-day hearing.

FINDING ON MISCONDUCT
	
51.	There is clearly a conflict of evidence between the 999 call to the police their record of subsequent events and the Applicant’s account of events. We noted that the Applicant had consumed a considerable amount of alcohol. The contemporaneous records of the 999 call and the police records are convincing. There is nothing to suggest that the caller or PC Carey were acting maliciously.
52.	On the balance of probabilities we find that the Applicant did make lewd and improper suggestions to young women in Argyle Street Birkenhead in the early hours of 10 April 2008. He had been drinking and his judgement was impaired. We further accept that he had showed his social services ID to members of the public who were present there.
53.	The issue regarding an admission of taking cocaine that evening is less clear. We accept that the police officer asked him if he had taken drugs. The Applicant says he replied ‘No absolutely not’. The note books of PC Carey and PS Maloney refer to an admission of taking cocaine but only PC Carey had heard the admission. PS Maloney’s statement says that the 999 caller told him this when he attended the scene. The Applicant did not have the opportunity to put his account to PC Carey. The 999 caller did not give evidence to the respondent or the tribunal. The Applicant adamantly denied that he had admitted taking cocaine. On the balance of probabilities we do not consider the Applicant admitted taking cocaine.
54.	The tribunal’s findings are supported by the wording of the original 999 call record and the stop notice which was signed by the Applicant and which was the only document he had from the incident. Both record inappropriate behaviour and claiming to be a social worker with no reference to drugs.
55.	We accept that the Applicant was not honest when he discussed the incident with his line manager. The Applicant said that it was much earlier in the evening. He acknowledged at the tribunal that this might have been because he was conscious that the next day was a working day and he had to get up very early to get to Salford. Bearing in mind that at that stage he thought that the incident was closed by the police it is evident that he was endeavouring to give his manager an explanation for what happened that night.
56.	After reading and hearing all the evidence the tribunal finds that the Applicant’s actions in the early hours of 10 April 2008 amount to misconduct. 

CONCLUSION AND DECISION

57.	Having concluded that there was misconduct we turn to the issue of a appropriate and proportionate sanction. In all the circumstances of this case we conclude that the sanction applied was too severe. The Applicant is a mature man who has been working as a social worker since 1995 with no previous concerns about his professional work.
58.	We accept that the Applicant was less than honest with his employer at the time of the interview in April 2008. He has continued to maintain his innocence. He acknowledged that what had been alleged against him was serious. The tribunal have found one central matter of misconduct proved against him. The Applicant will need to consider our findings in this respect. He was unrepresented and while he presented his case well it was not an easy matter for him to put his case, cross examine witnesses and give evidence. 
59.	The way that the case has been handled by the Respondent has been less than fair to the Applicant. The matter was referred to the Respondent in April 2008. The Applicant was told that it was being examined and then some 10 months later (March 2009) he was informed unequivocally that no further action would be taken. Subsequently, in September 2009, six months later, he is told that it is being treated as a compliant and will be investigated. We accept as noted above that this is not legally an ’abuse of process’ but, the letter of no further action together with the length of time involved has not been fair or just to the Applicant.
60.	 In addition the vital police evidence was not received by the Applicant until April 2011 having been sent to the wrong address in September 2010 and he did not know until the morning of the first day of the hearing that PC Carey would not be available to give evidence. This was prejudicial to the Applicant particularly as he was acting in person.
61.	The tribunal did not have the documents regarding the ISO but we accept that this was imposed in January 2010.The Applicant did not appeal this decision. Finally in April 2010 the Conduct Committee deliberated. It was a grave mistake by the Applicant not to participate in these proceedings. It appears evident to the tribunal that the Applicant was unemployed, depressed and did not appreciate the importance of attending the hearing and the conclusions that might be made in his absence. During the twenty one months prior to the imposition of the ISO the Applicant had obtained further employment which he had carried out without any concern. 
62.	The tribunal has had regard to the guidance on sanctions especially the guidance regarding removal in the Respondents’ Indicative Guide and the check lists for sexual misconduct and dishonesty.
63.	The guidance on removal states in the first paragraph, “Removal is a sanction for serious, deliberate, grossly negligent or reckless acts to include those involving; abuse of trust such as sexual abuse, dishonesty or persistent failure. Removal should be used when there is no other way to protect the public, for example, where there is a lack of insight, continuing problems and a pattern of unacceptable behaviour or denial.” In the light of the Respondent’s own guidance and on the basis of the evidence that we have read and heard we cannot agree that removal from the register was an appropriate or proportionate sanction. 
64.	The incident was certainly of concern. It was clearly distressing to those who witnessed it. The Applicant had been drinking and his actions show lack of judgement. Showing his social work ID in a public place late at night was unprofessional. However it is the only matter that has been brought up against him in a relatively long career. It has not been repeated and did not directly involve service users. 
65.	With hindsight the Applicant’s failure to participate in the Conduct Committee proceedings clearly influenced the outcome of those proceedings adversely for the Applicant.
66.	In terms of protection of the public and the public interest we accept that the Applicant has been very distressed by the events of the past three years and that there is very little risk of his acting in such a way again. 
67.	 The tribunal does not have the power to impose an alternative sanction. However, we consider, in dealing with the matter fairly and justly under Rule 2, of the tribunal rules, we can take into account the overall length of time involved, the initial decision to take no action, the late service of police evidence and the failure to tell the Applicant before the hearing that the lead police officer PC Carey would not be available to give evidence. 
68.	We also take into account that the Applicant worked from April 2008 until the ISO in January 2010.The period of time that the Applicant has not been able to work as a social worker has been sufficient to mark the seriousness of what he did and to achieve the purpose of the sanction by preventing the Applicant from working in his profession and confirming the high standards of behaviour and honesty expected from the profession.
69.	In view of the overall length of time that the Applicant has had this matter hanging over him and the sanction of an ISO and then removal dating back to January 2010, we are allowing the appeal and directing that the sanction of the removal from the register by the Respondent shall not have effect.
70.	 We therefore allow the appeal.  

APPEAL ALLOWED.
Our decision is unanimous 

Maureen Roberts
Jenny Lowcock
Michael Jobbins
27 May 2011