The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

Julie Duckworth

-v-

GSCC (now HCPC)
[2012] 1948.SW

Before 			Judge Nancy Hillier
				Ms Bridget Graham
				Mr James Churchill

Heard 	24 September 2012 Manchester Magistrates Court

DECISION

Representation

Ms Duckworth was represented by Mr David Allen

The Respondent was represented by Ms Faure Walker of Counsel

Appeal

1.	The Appellant appeals under s 68 of the Care Standards Act 2000 (CSA) against the decision of the Conduct Committee of the General Social Care Council (‘GSCC’) of 16 February 2012 to suspend her name from the register for a period of two years.

The Law

2.	Under section 56 of the CSA 2000 the GSCC maintained a register of Social Workers and section 59 allowed the GSCC to determine the circumstances by which an individual can be sanctioned and removed from the Register.  The relevant rules for the purposes of this case are the General Social Care Council (Conduct) Rules 2008 (“the Rules”)

3.	The Rules provide at Schedule Rule 25:

 “25.	(1)	Upon a finding of Misconduct, the Committee may:
(a)	admonish the Registrant and make a direction that a record of the admonishment shall be placed on the Registrant’s Entry in the Register for a period of up to 5 years; and that the Registrant be informed that details of such admonition shall remain in the Council’s records and may be taken into account in future Council proceedings or
(b)	make an order suspending the Registrant’s registration for a period not exceeding two years (‘ a Suspension Order’); or
(c)	make an order for removal of the Registrant’s registration from the register (‘ a Removal Order’).
(d)	revoke any Interim Suspension Order imposed by the Preliminary Proceedings Committee.
(2)	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
the issue of proportionality.”

Burden and Standard of Proof

4.	It is for the Appellant to demonstrate that the decision of the Committee in respect of sanction was wrong. The Tribunal does not approach an appeal completely afresh; we must still pay careful attention to the reasons given for the decision of the Committee at first instance. 

5.	We heard submissions from both Representatives who had both provided us with detailed and useful skeleton arguments.

Background

6.	Ms Duckworth was employed as a Senior Practitioner in the Fostering Service at St Helens Council.  In April 2008 as part of her duties she was assigned a private fostering arrangement in respect of two children aged six and two. St Helens Council policy required a private fostering assessment to be completed and signed off by the Team Manager within 35 days of referral and that enhanced CRB checks be undertaken.  

7.	On 22 July 2008, the school attended by the six year old foster child made a Child Protection referral. It became apparent that Ms Duckworth had not completed a fostering assessment of the family nor had she completed CRB checks.  She purported to sign off an assessment on 25 July 2008, after the Child Protection referral had been made and did not carry out checks with the children’s school until 18 June 2008.  Despite never having met the male Carer she indicated in section 16 of the unsent CRB form dated 29 May 2008 that she had seen and checked his driving licence.  Ms Duckworth also misled a colleague into believing the assessment had been allocated to a Social Worker. 

8.	When these matters came to light, the case was referred to the GSCC. She was suspended under an interim supervision order in September 2009 which was subsequently extended for the maximum 2 year period without any hearing taking place.

9.	On 28 July 2008 Ms Duckworth was signed off work on ill health grounds. She was suspended from her position in February 2009 and was dismissed in May 2009.

10.	Between October 2011 and the decision in February 2012 Ms Duckworth was not suspended. She admitted some of the allegations but contested others at a 5 day misconduct hearing. Ms Duckworth faced seven allegations, six of which were sub divided. She admitted allegation 2 and denied the others. The committee found allegations 1 and 3 not proved, 4 and 6 proved and parts of 3 and 5 proved.

11.	A sanction of 2 years suspension was imposed and she appealed to this Tribunal on 15 March 2012	
	
Issues

12.	Ms Duckworth does not appeal against the Conduct Committee findings but appeals as to sanction alone. Mr Allen submitted that the sanction was disproportionate. Ms Faure Walker submitted that the circumstances meant that the appropriate sanction should reflect a serious failing and that a 2 year suspension was entirely proportionate.

The Sanction

13.	The Committee decided to suspend the Appellant for a period of two years. The Committee considered admonishment to be inappropriate given …”the risk of similar incidents occurring in the future and the fact that public protection would not be served by such a sanction. The behaviour was not isolated and the Registrant has shown little professional insight.” They also took into account the fact that the Medical Adviser had confirmed that “…the Generalised Anxiety Disorder and low self-esteem would always be a feature of the registrant and that she would be subject to relapse if exposed to stressors in the future, whether personal or work related.”
	 
Tribunal’s Conclusion with Reasons.

14.	We carefully took into account the written and oral submissions, and the written evidence including the transcript of the Conduct Committee hearing. 

15.	In setting out some general principles regarding sanctions the Indicative Sanctions provide:

“In deciding what sanction to impose, the Conduct Committee should apply the principal of proportionality, weighing the interests of user of services and public with those of the registrant. The Committee should consider the options available starting with the least severe and moving to the next, only if satisfied that the sanction is not sufficient to protect users of services and the wider public interest.

The General Social Care Council exists to protect the public and to promote the public and to promote high standards of practice. The Conduct Committee should use its powers where necessary to protect the public:
1.	By protecting people who use services and colleagues from the risk of harm
2.	By safeguarding public trust and confidence in social care services generally
3.	By upholding high standards of conduct among social care workers.”

Later in the same section of the Indicative Sanctions document it is provided:

“The Committee will ensure that any sanction imposed is proportionate, in all the circumstances of the case. This will involve a consideration of:
1.	Any mitigating or aggravating features of the misconduct in question
2.	The personal circumstances of the registrant and any mitigation advanced
3.	Any testimonials and character references adduced in support of the registrant
4.	Whether there is any evidence of a pattern or trend in behaviour”

16.	We also paid due regard to the Conduct Committee decision. We however had the benefit of further medical evidence (not before the conduct committee) and are fully apprised of the extent of the delay in the case.

Remorse and Insight

17.	We are satisfied to the relevant standard that Ms Duckworth has shown consistent remorse for her behaviour and that the remorse is genuine.

18.	We were also satisfied that Ms Duckworth is now showing sufficient insight into her behaviour and its potential effect on others. 

Health

19.	We had the benefit of seeing a GP’s letter dated 25 April 2012 which recorded the success of medication and subsequent withdrawal and of self management techniques. The GP concludes “I cannot say she will not suffer from chronic anxiety again”, however the overall tone is optimistic.

Delay

20.	There has been significant delay in this case. We do not propose to examine the causes of that delay in detail, save to note that the case took over two and a half years to be completed, which is unacceptable. This was not a particularly complex case and we are surprised that it was not dealt with much earlier. Failure to hear the case soon after the initial suspension in September 2009 has inevitably meant that if the 2 year suspension were upheld Mrs Duckworth would effectively have been unable to work for 5 years, which is disproportionate for her misconduct.

21.	We have carefully considered the indicative sanctions guide and Paragraph 25(2) of Schedule 2 to the 2008 Rules which remind us that in deciding what sanction is to be imposed the Conduct Committee shall take into account:

The seriousness of the Registrant’s conduct

22.	This is a serious matter which could have had disastrous consequences for vulnerable service users. We have concluded that the circumstances would not warrant an admonishment. 

The protection of the public

23.	Other than the circumstances surrounding this fostering assessment there is no evidence to suggest that the public are at risk from Ms Duckworth. We are satisfied that the risk of recurrence is minimised by the fact that Ms Duckworth has addressed her stress issues via her GP, Counselling and through alternative health remedies for four years and has thereby demonstrated a recognition of her problems and the ability to address them. She has lost her home and her professional reputation in misconduct proceedings but has managed to maintain equilibrium and good health through a programme of self management and through appropriate therapy. We therefore conclude that the risk of reoccurrence is low. 

The public interest in maintaining confidence in social care services

24.	Whilst in our view the public would expect Ms Duckworth to be unable to work in her profession for a period of time in order to acknowledge the effect on public perception of her conduct and on the reputation of social workers there are other considerations to be borne in mind. There is substantial mitigation in this case, especially since the misconduct must be balanced against a very long career otherwise without incident. Ms Duckworth has been unable to work as a social worker for three and a half years and we do not believe that the public would expect that situation to be extended for a further 18 months.

Proportionality

25.	Having weighed into the balance the remorse and insight demonstrated by Ms Duckworth, the fact that her demeanour can be affected by stress which she has worked hard to address and the fact that in her lengthy career no other issue of misconduct has been alleged we have decided that a suspension of 2 years is disproportionate.  We took into account the fact that Ms Duckworth has been unable to work in her profession for over three and a half years and that there was significant delay in the matter being resolved which meant that she was suspended for 2 years under interim suspension orders followed by further delays in bringing the matter to a hearing. We are not satisfied that the extent of the delay was necessarily clear to the committee which may explain the sanction they imposed. We also had medical evidence which was not available to them and means that we have given less weight to their findings than if their reasoning had balanced those factors.

26.	We have concluded in the light of our findings and the evidence and submissions as a whole that Ms Duckworth should now be able to work as a Social Worker again and that the sanction was disproportionate. We therefore allow the appeal.

Order: The Appeal is allowed.
The decision to sanction the Appellant by way of 2 years suspension is not upheld. The Respondent is directed to restore the Appellant to the Register with immediate effect.

Tribunal Judge Nancy Hillier
Lead Judge Care Standards and Primary Health Lists

Date Issued:	8 October 2012