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

Aaron Chihoyi

-v-

GSCC (now HCPC)
[2012] 1972.SW

Before 			Judge Liz Goldthorpe
				Ms Marilyn Adolphe
				Mr Jeff Cohen

Heard 	29 October 2012

DECISION

Representation

Mr Chihoyi was represented by Mr Allan Norman of Celtic Knot, Solicitors.

The Respondent was represented by Mr Caoimhe Daly of Counsel instructed by Bircham Dyson Bell, Solicitors.

This appeal was originally set down for an Oral Hearing on 10 September 2012. On the 30th August 2012 the Appellant’s Solicitors confirmed they had just been instructed by the Appellant and made a request to submit new evidence and a skeleton argument.  In his original Appeal the Appellant had stated he did not want an Oral Hearing and Celtic Knot confirmed this continued to be his preference. The Parties were in agreement that the Tribunal should be asked to reach its decision under Rule 23(1) on the written evidence.   

On 5 September 2012 Judge Goldthorpe vacated the hearing date and issued directions to the Parties regarding any further documentary evidence including witness statements and testimonials, and skeleton arguments.

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 8 May 2012 to suspend his name from the Register of Social Workers for a period of two years.

2.	Mr Chihoyi applied for a Restricted Reporting Order under Rule 14(1)(b) of the Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care) Chamber Rules 2008 (the Tribunal Rules).  We considered the submission and supporting evidence from Mr Norman very carefully, and the relevant case law including the human rights issues considered in Campbell v MGN Ltd [2004] UKHL 22 (involving a different health problem to that of Mr Chihoyi's).  Mr Norman confirmed Mr Chihoyi was claiming rights of privacy and Article 8 rights in respect of his health:  he was not seeking to argue that his appeal should be treated as a health procedure case.   We refused the application on the basis we were satisfied that Mr Chihoyi's right to confidentiality regarding his medical history could be safeguarded without the need for a Restricted Reporting Order.  

The Law

3.	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”)

4.	The relevant rules are the General Social Care Council (Conduct) Rules 2008.  In relation to allegations of misconduct this is described in Rule 2 as follows:-

“Misconduct” means conduct which calls into question the suitability of a registrant to remain on the register.”

And at Rule 23 (2) it is stated as follows:-

“In deciding upon the issue of misconduct, the Committee shall have regard to the Code of Practice issued by the Council under Section 62 of the Act.”

5.	The Rules provide at Schedule 2 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.”

6.	Section 68 of the Care Standards Act 2000 provides that an Appeal shall lie to this Tribunal against a decision of the Council and that on Appeal the Tribunal may confirm the decision or direct that it shall not have effect.

Burden and Standard of Proof

7.	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.  As stated in S C-W GSCC [2010] UKFTT 600(HESC), we are a Tribunal of specialist jurisdiction and able to form our own view on the question of what sanction is appropriate.  We are entitled to consider matters that were not before the Committee and to consider what sanction we believe to be appropriate in all the circumstances of the case.

8.	We had the benefit of submissions and skeleton arguments from both Representatives.   

Background

9.	Mr Chihoyi was born on 15 October 1970 in Harare, Zimbabwe and qualified as a Social Worker in 1998.   He has a wife and two children.   He was recruited to the UK in 2002 and began practising in the UK from November 2002, generally in the field of child protection. His career included a permanent appointment at Kent Social Services in Medway as a Senior Practitioner.  In 2010 Mr Chihoyi was working for the London Borough of Redbridge as an agency Locum Social Care Worker.  He has not been employed as a social worker since 25 June 2010.

10.	As shown on his enhanced CRB check dated 14 October 2011, Mr Chihoyi was found guilty by Medway Magistrates Court on 27 May 2004 of driving a motor vehicle with excess alcohol on 23 August 2003.  He was disqualified from driving for 12 months to be reduced by 3 months if he completed a rehabilitation course by 27 December 2004.

11.	On 9 November 2005 Mr Chihoyi obtained a Post Qualifying Award in Social Work Part 1 and worked as a  Senior Social Worker from 2006 to 2009. 
 
12.	Mr Chihoyi has had periods of ill health and has been under the care of a Consultant Physician since 2007. In January 2010 Mr Chihoyi was prescribed medication to prevent a further deterioration in his health.
   
13.	On 9 June 2010 he was involved in two consecutive road traffic accidents on the A2 in Kent.  He crashed into one car but failed to stop or to report that accident.  Later the same night, he crashed into another vehicle and thereafter was found to be intoxicated, very vocal and initially uncooperative. He was taken to hospital and on being medically released provided a specimen for a breath test. The reading was 86 micrograms to 100 milli-litres of breath, the legal limit being 35 micrograms to 100 millilitres.
  
14.	Mr Chihoyi was arrested for being under the influence of alcohol and subsequently charged with offences under the Road Traffic Act, including dangerous driving and failing to stop at the scene of a collision. 
 
15.	As the registered keeper of the vehicle involved in the accidents, Mr Chihoyi was also charged with driving without insurance. He was granted unconditional bail and remanded to appear before Bexley Magistrates Court.

16.	On 14 June 2010 Mr Chihoyi emailed his superior at Redbridge to confirm that he wished to continue working there despite having previously threatened to resign.  He referred to previous problems in being paid on time by his agency that were now resolved.  This email made no reference to the charges, but referred to the contents of previous emails not included in the Tribunal bundle.
   
17.	On 6 December 2010 Mr Chihoyi informed the GSCC that he had been charged with road traffic offences.  On 4 January 2011 the GSCC confirmed that it was treating the matter as a formal complaint as defined in the GSCC Conduct Rules 2008. It commenced a conduct investigation.

18.	In the criminal proceedings Mr Chihoyi pleaded not guilty and challenged the accuracy of some parts of the police statement.  He asserted his cousin had been driving his car and had run off after the accident for his own personal reasons.  The magistrates told Mr Chihoyi to produce a letter and supporting photograph from his aunt to confirm that she was his cousin's mother.  He failed to provide this evidence. 
 
19.	On 12 May 2011 at Bexley Magistrates Court, Mr Chihoyi was found guilty of using a vehicle while uninsured, driving a vehicle with excess alcohol and without reasonable consideration and failing to stop after an accident that had caused personal injury to another.  His driving licence was endorsed and he was disqualified from driving for 3 years.  He was also given a community order with an unpaid work requirement of 80 hours and was ordered to pay compensation of £300 and costs of £50.

20.	In her pre-sentence report dated 12 May 2011, Mrs Pat Martini, Probation Officer, speculated that Mr Chihoyi's strenuous denials of guilt and his explanations for the circumstances of the offences were due to his shame at the position he had found himself in and his involvement in the criminal justice system. Having considered the circumstances, including his previous conviction, the unacceptable standard of driving and his lack of initial empathy with the victim following the first crash, she recommended a Community Order with an unpaid work requirement as a punishment commensurate with the seriousness of the offending.   Using the Offender Group Reconviction Scale ('OGRS'), she assessed the likelihood of his re-offending within the next 2 years as being 'as low as 16%'.

21.	Mrs Martini said that to the degree Mr Chihoyi had accepted responsibility for any of the offences, he had acknowledged his guilt with regard to the lack of insurance, stating that he had been experiencing financial difficulties and did not have the funds to pay for the insurance at the time. 

22.	However, he had continued to strenuously deny the remaining offences. He disclosed debts in the region of £50,000 partly incurred as the result of a failed property development scheme.  He told Mrs Martini he had been driving home from work in Redbridge to Medway on the day in question and had stopped off in Woolwich to meet a friend who had agreed to loan him some money.  He had waited in a restaurant for an hour and had only consumed soft drinks as he had started a new course of medication that day and did not want to mix this with alcohol.  His only explanation for the presence of alcohol in his system was that someone must have spiked his drink.  His cousin had driven him home as he was not feeling well, but had run off when the accident occurred “for his own personal reasons”. Mr Chihoyi had been unable to contact his cousin since then.

23.	Mrs Martini said Mr Chihoyi had expressed remorse for the collisions and had expressed good understanding of the impact on the victims.  He was also able to recognise the overall consequences to potential victims of drink drive offences. He was aware of the concerns caused in the wider community by the offences with which he had been charged. 

24.	Mr Chihoyi's explanation for his 2004 conviction was his ignorance of UK drink driving laws because he had only recently arrived in the UK from Zimbabwe. The conviction had been a wake up call and thereafter he had stopped drinking.  Mrs Martini also noted that his wife was working and despite his debts their home was secure. He said his health had been poor in 2008/09 due to difficulties at work, but he had received appropriate help and treatment and had had no further involvement with relevant health services since then.
 
25.	The GSCC conduct investigation having been concluded, a Conduct Hearing before the GSCC Conduct Committee ('the Committee') was fixed for 8 May 2012.  Notice of the hearing was sent to Mr Chihoyi at his registered address but the letter was returned on 4 April 2012 as uncollected.   A reminder letter sent on 23 April 2012 was also returned as addressee gone away.
  
26.	In a letter dated 29 April 2012 and an email dated 30 April 2012 Mr Chihoyi confirmed he was unable to attend the hearing but did not give any specific reasons for this decision.  He did not respond to a request to confirm his current address and did not complete or return a Notice to Admit Facts.  He was not represented at the hearing.

27.	In these circumstances the Committee decided it was appropriate to proceed in Mr Chihoyi's absence. The documentation available to it on 8 May 2012 included a statement from Mr Chihoyi and Mrs Martini's pre-sentence report.  In his statement Mr Chihoyi continued to challenge the basis of his convictions.  He expressed dissatisfaction with the police investigation, alleging the evidence was flawed and police officers did not know the “exact circumstances of the incident”.  He had been breathalysed and charged with serious offences he had not committed on the basis of an inaccurate account from a single male police officer.  This was the officer who had arrested him some 3 hours after the incident, rather than the female officer said to have accompanied him to hospital.
 
28.	Mr Chihoyi reiterated that his cousin had been driving the car and had disappeared after the accident.  He alleged there were 9 other potential witnesses, but there had been no attempt to interview a key witness.   He said this witness could have confirmed that someone else had made off from the crash scene and that no police officer was present until Mr Chihoyi and the other driver had been taken to hospital.   

29.	He had not been legally represented at court because he could not afford a lawyer. He had pleaded not guilty to the offences because he had not used alcohol for a long time and therefore did not drink and drive.  He had stressed to the magistrates that he was prepared to undergo an independent alcohol test. He denied he had an alcohol dependence difficulty and told the GSCC he was prepared to undergo any tests to prove he did not use alcohol.

30.	Mr Chihoyi did not seek to deny that he had no insurance for the car involved in the accidents. He said repeated that he had failed to insure the vehicle on time for financial reasons, citing a period of unemployment and poor health prior to his placement at Redbridge as well as difficulties in being paid by his agency. 

31.	During the period leading up to the convictions no Interim Suspension Order was imposed by the GSCC on Mr Chihoyi.   Nevertheless, he said that as a result of his declaration of the convictions and the GSCC Conduct investigation his attempts to find another job had proved difficult, if not impossible.  He wanted to meet with GSCC Conduct Officers but could not afford the train fare. These events had brought his career to a standstill and he felt there had been a miscarriage of justice. 
 
32.	The Committee made it clear that it had no discretion regarding the four convictions on 12 May 2011. Therefore it was bound to find the alleged facts mirrored in those convictions proved. 

33.	The Committee found there had been misconduct on the basis that the offences were serious and had put other people unnecessarily at risk in breach of paragraph 5.7 of the Code of Practice for Social Workers ('the Code').  It found Mr Chihoyi's actions had amounted to behaviour outside work which called into question his suitability to work in social care services.  This included his deliberate choice to drive without insurance, together with a recklessness and lack of responsibility that directly affected his professional position. It found there had been a clear breach of paragraph 5.8 of the Code for which there were no exceptional circumstances.
  
34.	The Committee's decision recorded that, having regard to the Indicative Sanctions Guidance 2008, it considered whether the misconduct required sanction or removal from the register, taking into account the seriousness of the misconduct, the protection of the public, the public interest in maintaining confidence in social care provision and the issue of proportionality. It took into account a number of factors including what it saw as deliberate behaviour in choosing to drive under the influence of alcohol and without insurance, and the lack of a good previous history given his previous conviction.  It concluded there had been a number of deliberate and/or reckless acts rather than a single isolated incident. It noted there was no evidence of a deep-seated personality problem, but expressed concern about Mr Chihoyi's attitudes as shown by his offending history and his repeated denials of the offences. The Committee found very limited evidence of Mr Chihoyi's insight into his failings, stating that much of his representations suggested self-justification rather than remorse and that he had shown little understanding of the seriousness of the incidents.  It concluded that the sanction of admonishment was too lenient in the circumstances.
       
35.	The Committee regarded Mr Chihoyi's conduct as “a serious departure from the relevant professional standards outlined in the Code of Practice...”  However, “when balancing the proportionality of the public interest and that of the Registrant in deciding between removal and suspension,” it “was just persuaded that a suspension order, albeit of the maximum length, met the justice of the case.” Therefore, noting that suspension itself was a serious sanction “which sends out an important message to both the public and the professions as to the unacceptability of the Registrant's conduct”, it decided to impose a sanction of 2 years suspension expiring on 7 May 2014. 

36.	As confirmed in Mrs Martini's pre-sentence report Mr Chihoyi had pleaded not guilty. The incorrect record of a guilty plea in the he Memorandum of Entry in the Bexley Magistrates Court Register was subsequently corrected when Mr Chihoyi sought, unsuccessfully, to challenge his convictions through the Criminal Cases Review Commission ('the CCRC').    The Conduct Committee had made it clear in its decision that it had disregarded any assertion that he had pleaded guilty.

37.	Mr Chihoyi appealed to this Tribunal on 2 June 2012. He was not legally represented at this stage.
  
38.	In his grounds of appeal and in his first statement dated 4 August 2012 Mr Chihoyi objected to some factual aspects of the Conduct Committee's decision as incorrect. He insisted he had not pleaded guilty and had not failed to answer bail.  He continued to maintain that his cousin had been the driver and that the GSCC had relied upon the unreliable version of events provided in the police officer's statement.

39.	Mr Chihoyi did not seek to deny the offence of driving whilst uninsured.  He explained that the lack of car insurance was due to difficulties in getting his salary paid on time. He said this had also led to him attempting to resign from his job on two occasions.
 
40.	In this statement Mr Chihoyi contended that the GSCC had failed to take account of a number of material factors including a period of good behaviour from 2004 to 2010 and the fact that there had been no further allegations since then.  He had been unemployed since 9 June 2010 and had complied in full with the court orders. 

41.	He also asserted that GSCC had failed to take into account exceptional circumstances regarding his poor health, without which the incidents would not have happened.  He pointed to evidence of a significant deterioration in his health in January 2010 and the adverse consequences of surgical intervention on 6 February 2012. He cited his health problems as the reason for not attending the Conduct Hearing.
 
42.	Confirming that he was not practising as a social worker, Mr Chihoyi said he had advised the GSCC in emails dated 30 December 2011 and 18 February 2012 that he no longer required registration as social worker and would not be renewing it on expiry in June 2012.  He also confirmed he was no longer residing at his original address as he could not afford the mortgage.

43.	He pointed to his expression of remorse recorded in the Pre-Sentence Report.  Therefore his view was that “any assertion I had limited understanding, insight and that I was not remorseful will be inaccurate.”

44.	Mr Chihoyi contended that he had received a harsher sanction from the GSCC than the punishment imposed by the court.  He cited at least one previous case, stating that a social worker sentenced to a term of imprisonment was still on the register and allowed to continue practicing.

45.	Thereafter, having obtained legal advice, Mr Chihoyi submitted a second statement dated 10 September 2012.  He withdrew all his previous grounds of appeal apart from the proportionality of the sanction, explaining that he now realised he had acted inappropriately in seeking to go behind the fact of his conviction in his appeal and now grasped the significance of paragraph 11(5) of Schedule 2 to the GSCC Conduct Rules 2008.
   
46.	To explain the circumstances of his conviction, Mr Chihoyi sought to emphasise his state of health.  His Consultant's letter of 25 July 2012 had confirmed Mr Chihoyi had largely regained his health, but had not given a great deal of detail about his medical history.   Mr Chihoyi said the letter had been expressed somewhat circumspectly in order to protect his privacy. He gave further details of his condition and its consequences stressing that he had been cautioned not to take alcohol because of the risks it presented to his health.  

47.	Therefore Mr Chihoyi said he had found the events of the 9 June 2010 “totally perplexing”.  He asserted they were wholly outside of his usual character, wholly contrary to his long held resolve not to drink and to his personal health interests.  This was relevant to the issue of any continuing risk he posed.  There was no risk of any repetition since he held drink driving laws in high respect and appreciated the effect upon victims, a position consistent with the contents of Mrs Martini's report.

48.	With regard to the lack of car insurance, Mr Chihoyi denied any impression that he saw himself as a victim of circumstances. He said the choice to break the law by driving without insurance was his choice alone and one that had had devastating consequences for other drivers that he bitterly regretted. 

49.	He noted that the criminal justice system offered little opportunity to make reparation to the drivers who had suffered injury and loss as a result. But he had fully paid the compensation ordered. He had also completed his Community Payback Hours as confirmed by Kent Probation in a letter dated 5 September 2012.  This letter thanked him for his hard work, stating that it had been reported he had worked consistently to a high standard.

50.	Mr Chihoyi said that, following the collisions in June 2010, he had informed his employer at the first available opportunity.  However, owing to his lack of a car the agency had been unable to find him suitable alternative employment work.  Therefore he had not worked as a social worker since.  He had been unemployed for over 2 years apart from intermittent factory work. From 9 January 2012 he had obtained temporary work through a personnel agency: in a testimonial the agency stated he had proved to be very reliable. He had also pursued further educational skills and provided the certificates in IT User Skills and Adult Numeracy that he had obtained.
 
51.	Mr Chihoyi stressed that between 2002 and 2010 there were no disciplinary investigation, complaint or proceedings against him either in the UK or Zimbabwe. Furthermore, he had given up drinking after his 2004 conviction, had never worked whilst under the influence of alcohol, nor had he driven whilst drinking.  He pointed to the gap of 7 years between his convictions for drink driving.
52.	On Mr Chihoyi's behalf, Mr Norman argued the four criminal convictions were a chain of events on 9 June 2010 that had taken place outside work and had not been directed at service users.  It was incorrect to characterise a chain of events whilst subject to the same intake of alcohol as representing a continuing problem or a failure on the part of Mr Chihoyi to address himself to change.

53.	There were relevant characteristics in all the GSCC cases for the last 6 years in which alcohol and driving offences had been raised as a misconduct issue.  An analysis of Tribunal decisions on appeals involving similar offences showed that the usual sanction was an admonishment where there were no aggravated factors such as dishonesty or a failure to report the commission of offences. In the absence of a finding of dishonesty, the usual sanction was admonishment. In one case where there had been dishonesty, a shorter period of suspension had been imposed.  Therefore a finding of dishonesty was a prerequisite for the imposition of a sanction other than admonishment.  In the absence of either of these features or any other aggravating feature such as the failure to report the offences, Mr Chihoyi's sanction was excessive by comparison.
   
54.	Mr Norman contended that treating the consequences of Mr Chihoyi's intoxication as an aggravating factor did not enhance effective protection of the public and public confidence in social work.   He cited Kakeeto v GSCC [2011] UKFTT 476, a case in which the GSCC's decision to remove from the register was overturned by the Tribunal on appeal, with a two year admonishment substituted.  Dishonesty relating to a failure to disclose convictions had been an aggravating feature, but Ms Kakeeto's previous good character had weighed heavily with the tribunal.  This factor was an important feature of Mr Chihoyi's appeal given his exemplary disciplinary record over a decade of practice.
  
55.	Mr Chihoyi's witness statement had revealed evidence of insight, regret, previous good history and corrective steps. The misconduct was an isolated event with no repetition since.  It was clear from paragraph 5.8 of the Code that the Regulator was entitled to express concern about the subject matter of a conviction falling within a Registrant's private rather than his professional life. But some nexus was required between the events and confidence in social care services: the greater the nexus, the greater the concern.   However, it was not apparent in this case that there was, or would be, “legitimate public concern about users of services’ and colleagues' personal safety in the professional context”.

56.	If the tribunal regarded suspension as appropriate, Mr Norman argued that, on the basis of Brownbill v GSCC [2012] UKFTT 466, the period should be reduced to take account of the fact that Mr Chihoyi had been unable to work for in excess of two years.

57.	Mr Norman argued admonishment was the appropriate sanction. The Committee's reasoning for refusing to use this sanction had incorrectly characterised Mr Chihoyi's conduct as a pattern of behaviour. The 2010 incident was plainly catastrophic, but was an aberration given the length of the intervening period since the 2004 conviction. In the face of his previous statements, the Committee's concerns about Mr Chihoyi's insight were understandable. However, it was clear from his second witness statement he understood the seriousness of breaches of drink driving laws and he had acknowledged it was his choice to drive uninsured.  He had affirmed there would be no repetition and the probation report in June 2010 was previous evidence of his insight and remorse.

Issues

58.	Mr Chihoyi does not appeal against the Conduct Committee findings but appeals as to sanction alone. On his behalf Mr Norman argued that the sanction was disproportionate and excessive and failed to take into account relevant factors and exceptional circumstances. 

59.	The Respondent 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

60.	The Committee decided to suspend the Appellant for a period of two years. The Committee considered admonishment to be too lenient and inappropriate for the level of seriousness of the misconduct.   It found Mr Chihoyi's conduct to be a serious departure from the relevant professional standards in the Code of Practice for Social Workers but when balancing the proportionality of the public interest and that of Mr Chihoyi in deciding between removal or suspension, it was just persuaded that a suspension order, albeit of maximum length, met the justice of the case.   

Tribunal’s Conclusion with Reasons.

61.	We carefully took into account the written submissions and evidence including the transcript of the Conduct Committee hearing, both statements made by Mr Chihoyi and the pre-sentence report by Mrs Martini. 

62.	In setting out some general principles regarding sanctions the Indicative Sanctions Guidance provides:

“In deciding what sanction to impose, the Conduct Committee should apply the principle 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:

a.	By protecting people who use services and colleagues from the risk of harm
b.	By safeguarding public trust and confidence in social care services generally
c.	By upholding high standards of conduct among social care workers.”

63.	Later in the same section 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:

a.	Any mitigating or aggravating features of the misconduct in question
b.	The personal circumstances of the registrant and any mitigation advanced
c.	Any testimonials and character references adduced in support of the registrant
d.	Whether there is any evidence of a pattern or trend in behaviour”

64.	In deciding whether an admonishment is the appropriate sanction, the Guidance sets out a number of factors to be considered:

a.	evidence that the behaviour would not have caused direct or indirect harm to service users
b.	evidence of insight into failings
c.	behaviour was an isolated incident, which was not deliberate
d.	genuine expression of regret/apologies
e.	acting under duress
f.	previous good history
g.	no repetition of behaviour since incident
h.	evidence that rehabilitative/corrective steps have been taken
i.	relevant and appropriate references and testimonials.

65.	The Guidance sets out factors relevant to a consideration of suspension as a sanction, which include:

a.	a serious incident of misconduct where a lesser sanction is not sufficient
b.	no evidence of harmful deep-seated personality or attitudinal problems
c.	no evidence of repetition of behaviour since incident
d.	the social worker has insight and does not pose a significant risk of repeating behaviour
e.	the interests of people who use services are sufficiently respected

66.	We also paid due regard to reasoning on which the Conduct Committee's decision was based. We did not have the opportunity of seeing or hearing from Mr Chihoyi in person but we did have the benefit of further medical evidence that was not before the Conduct Committee.  We were apprised of the extent of Mr Chihoyi's reasons for not attending the original Committee hearing and his explanations about the effects of his health problems.

Remorse and Insight

67.	We are satisfied to the relevant standard that Mr Chihoyi has shown consistent remorse for the incidents.  

68.	Nevertheless, we are not satisfied that he has shown remorse for his overall conduct or that he has taken sufficient responsibility for his actions. Nor are we satisfied that Mr Chihoyi has shown sufficient insight into his behaviour and its potential effect and risk to  others.

69.	Mr Chihoyi rightly acknowledged that it had been his choice to drive his car without insurance. But this choice displayed a particular lack of responsibility not only to the public, but also to service users. His car was a necessary part of his job, without which he states he could not continue his placement at Redbridge after the accident. Deliberately driving without insurance, places a service user in the vehicle at risk in the event of an accident since it deprives that individual of a claim against the driver's insurance company.  To some extent in his second statement Mr Chihoyi acknowledged the potentially devastating consequences, but he made no attempt to extend that argument to service users for whom he was responsible. 

70.	We are satisfied there was no breach of paragraph 3.4 of the Code in that Mr Chihoyi brought the matter of the offences to the attention of the appropriate authorities, albeit in the case of the GSCC some months afterwards.  It must be to his credit that he did not seek to conceal what had happened, and undoubtedly displayed a sense of responsibility in reporting the charges to the GSCC before his appearance in court. However, the explanations and mitigation provided by Mr Chihoyi at the time of the offences, and for a considerable time thereafter, displayed a failure to face up to the consequences of what had happened. His more recent explanations and mitigation are not entirely persuasive for the reasons set out below and have not sufficiently reduced the legitimate concerns about his conduct and relevant factors such as his insight.   

71.	We were not persuaded by Mr Chihoyi's contention that the 7 year gap between alcohol related offences was so long that it was not relevant to consider the 2004 conviction. In the particular circumstances of this case, that does not carry great weight. Firstly, although the 2004 conviction was for a single offence, it was committed in similar circumstances, namely that Mr Chihoyi had driven a vehicle with excess alcohol in his blood. Secondly, his assertion it was committed in ignorance of UK drink driving laws carries less weight when set in the context of the offence being committed in August 2003. This was nearly a year after his arrival in the UK in November 2002 and we find it difficult to believe he was not aware of the law by that time given that he was registered and practising as a social worker.   

72.	Thirdly, and most importantly, even if he did give up alcohol in the intervening period, this 2004 conviction was followed by a more serious set of convictions in 2010. The conclusion is inevitable that even if he had given up drinking in 2004 he had relapsed in 2010 with far more severe consequences.  Whilst taken collectively the 2004 and 2010 convictions do not constitute a chain of events, nevertheless the 2010 convictions cannot be characterised as an isolated incident in the context of this history.

73.	Mr Chihoyi maintained consistent denials of responsibility for the events of 9 June 2010 and the alcohol related offences and convictions until very recently. His assertions of innocence were sustained until well after the Conduct Hearing, but they lacked detail and we found the explanations contradictory, inconsistent and somewhat implausible. In particular, his apparent failure to produce the necessary evidence regarding his cousin to support his case in the Magistrates Court raises doubts about the reliability of Mr Chihoyi's explanations.  Furthermore, in focusing on this explanation he appeared to be trying to mitigate the central facts that he had been involved in two collisions whilst in his own car with nearly 2 ½ times the legal limit of alcohol in his blood.  This seemed to us to indicate a lack of insight into his behaviour.

74.	It was not until he took legal advice that Mr Chihoyi realised he had no choice but to abandon his chosen defence and to seek to provide a fuller, alternative explanation of the circumstances. But his attempts to mitigate the effects of his earlier stance lacked credibility. This in itself raised concerns about his insight and his ability to accept responsibility for what he had been involved in.

75.	Overall, and regardless of the reasons for his change of ground, Mr Chihoyi's own evidence was somewhat inconsistent throughout.  In a number of aspects it indicated an inability to grasp the importance of sticking to the salient facts and being transparent with the Regulator and with this tribunal.  This was notable in, for example, his explanations for the presence of alcohol in his blood which were contradictory and internally inconsistent, particularly in the context of the apparent risks to his health.  In another example unrelated to the central issue of his convictions he stated that he was no longer living at his home address and could no longer afford the mortgage. The implication was that this was a permanent state of affairs. Nevertheless, this remained his address throughout these proceedings and he confirmed that his wife was still working.   

76.	Overall, the way in which Mr Chihoyi chose to present his evidence was marked by a certain lack of integrity, which undermined the credibility and strength of his case in a number of respects.  He appeared to be unable to recognise the inherent conflicts in his explanations for his conduct or to understand what adverse impression was likely to be drawn from this.

Health

77.	We had the benefit of further clarification of the circumstances surrounding the letter from Mr Chihoyi's Consultant Physician.  We have considered carefully the relevant aspects of the evidence about Mr Chihoyi's health and concluded that we only need to deal with matters that do not involve any breaches of his privacy.  

78.	There were some contradictions between some aspects of the further details Mr Chihoyi gave to explain the contents of his Consultant Physician's letter and the exact dates of any ongoing involvement with medical professionals were not sufficiently clear. However, even if Mr Chihoyi was ill for a consistent period, we could not see how this detracted from the seriousness of the offences, nor how it contributed to an explanation of the circumstances leading to them. Nor did his state of health provide a persuasive explanation for his conduct after the offences, his denials of responsibility or his attitude towards the convictions. In contrast to the considerations in the Brownbill case, we were not persuaded that this evidence provided sufficient mitigation in the particular circumstances of this appeal.  

79.	This view was reinforced by Mr Chihoyi's belief that his health problems somehow lay at the root of the events.  Regardless of his state of mind at the time, we do not accept that anything in his medical history suggests sufficient justification for driving under the influence of alcohol at nearly 2½ times the legal limit. Indeed, based on his own assertions, the very nature of his medical condition and treatment would suggest the precise opposite. 

80.	Mr Chihoyi did not produce any medical evidence about the effects of his condition on his ability to drive, save to say that it was inherently unlikely that he could have been drinking given the medication he had been prescribed. We have no reason to doubt that the combination of Mr Chihoyi's particular medication and alcohol presented a high risk and that therefore he believes he agreed not to drink. But this was not supported by any evidence from his treating doctors.  

81.	The likelihood that Mr Chihoyi had attended an alcohol rehabilitation course in 2004 was increased by the fact that the course was undertaken in order to reduce the length of his sentence.  But the veracity of his statements about subsequent alcohol abstinence could not be tested in the absence of oral evidence. His assertion in his second statement that the advice not to drink with his medication was not a problem because he had given up drinking in 2004 contradicted the fact of his conviction. But this also served to undermine the veracity and reliability of his claim to have accepted he could not go behind the fact of his convictions.  We were left with the impression that Mr Chihoyi's explanations for the presence of alcohol in his system continued to be inherently implausible. Most importantly, we were left with serious concerns that he had not learnt from his experience in 2004, to the extent that, at best, he had chosen to drive without insurance when sober.

82.	We concluded that, in contrast to circumstances relevant in other appeals, there were aggravating features in this case that outweighed the mitigation put forward.

83.	It was an important part of Mr Chihoyi's mitigation that he had enjoyed a long and otherwise unblemished career in social work.  But he provided no specific details of his career history and did not produce any testimonials. 

84.	Of course Mr Chihoyi has the right not to divulge personal matters and the right to choose not to give oral evidence, but such choices do carry consequences.  In this case they have not added weight to his credibility or to the case he put forward of a professional fighting for a career he loved.  In choosing to have his appeal decided on the written evidence alone, Mr Chihoyi effectively denied the tribunal of an opportunity to ask him about his previous career history, or his family circumstances or his alcohol rehabilitation or to obtain any further information about him that might have assisted in our deliberations.

85.	The absence of any testimonials from him makes his appeal notably different from the circumstances in the Kakeeto appeal, which was also decided on the written evidence alone.   In that appeal the tribunal attached weight to the testimonials she produced as proof of her long career and standards of practice. Similarly in the Brownbill case the tribunal noted that the Committee had seen significant testimonial support.   

86.	Mr Chihoyi claimed his previous history was good, but the evidence about this was somewhat ambiguous: there was literally no information either way to support his contention that he had displayed good practice.  We noted the absence of relevant and appropriate references at the Conduct Hearing. However, despite ultimately being represented in these proceedings, and afforded the opportunity to produce further evidence such as testimonials, Mr Chihoyi submitted nothing from his former colleagues about his standard of work, his practice or his capabilities.  We find it difficult to understand the reasons for failing to produce such important evidence to support his case:  shame at the circumstances in which he found himself does not explain this since he would not have needed to go into the details of why he required these testimonials.

87.	Mr Chihoyi has not sought to renew the original assertion he made to the GSCC that he no longer wished to renew his registration as a social worker.   He did not provide any explanation for this at the time so we can only assume it was connected to his likely difficulties in finding another placement and, therefore, to obtain the necessary verification and endorsement of his application to renew registration.

88.	We have carefully considered the Indicative Sanctions Guidance 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

89.	This was a serious matter which could have had far worse consequences for members of public involved in both road accidents.  In addition, Mr Chihoyi chose to drive whilst uninsured, a choice that had direct consequences for the service users he might have had in his car and in his care. In addition, we regard his response to these matters as an inadequate way of dealing with the seriousness of the issues involved.  We have concluded that in these circumstances an admonishment would not be warranted. 

The protection of the public

90.	We do not accept that there is a lack of evidence to suggest that the public are at risk from Mr Chihoyi. Mrs Martini's assessment was based on a criminal scale, which is different from the assessment that has to be made by the GSCC in determining the risk a professional social worker may present to service users and to members of the public. We are not satisfied that the risk of recurrence is minimised or that it is a low risk.  

91.	Mr Chihoyi's assertion that there has been no repetition since June 2010 carries little weight given that he is banned from driving until 12 May 2014.  His attitude towards his convictions also gives us cause for concern since he has sought to minimise his responsibility for the events in 2004 and 2010 through a range of explanations, none of which were entirely credible, consistent, reliable or necessarily relevant. He failed to address the issue of the effect on service users of driving without insurance or to understand fully the way in which offering such explanations for the rest of the convictions did nothing to increase confidence in his ability to address the risks involved.  We cannot see how it is possible to conclude that, on the balance of probabilities, he does not present a continuing risk in these circumstances.

The public interest in maintaining confidence in social care services

92.	The Code of Practice requires social workers to protect the rights and promote the interests of service users and strive to establish and maintain the trust and confidence of service users and carers.  Mr Chihoyi asserted that the accidents had not directly harmed service users.  But Mr Chihoyi made a conscious decision to drive his car without insurance, a vehicle that he was using in his work.  This amounted to irresponsible behaviour that would contravene conditions of employment and could have put service users directly at risk. The fact that he must have concealed this from both his employers and clients also serves to undermine the trust and confidence they have a right to expect from him. The financial circumstances that led to this and Mr Chihoyi's own explanations also give rise to concern about his sense of responsibility and insight as a professional social worker. 

93.	In the Kakeeto case the tribunal gave careful weight to considerations of public interest and public confidence in concluding that the penalty of removal from the register was disproportionate.  Its reasons for so deciding, were based on Ms Kakeeto's period of good service and the fact that any dishonesty was limited to false declarations relating to a conviction and was not aimed at service users.  Ms Kakeeto's complete acceptance of the charges was a relevant factor and the tribunal did not consider removal was “the only way to protect the public or that the public would consider that these particular circumstances would lead to a lack of confidence such as to require removal of registration.”

94.	In this case the only conviction that Mr Chihoyi has wholly accepted responsibility for without reserve relates to the matter of driving without insurance.   None of the other factors he put forward either individually or collectively provided sufficiently substantial mitigation to outweigh the seriousness of his misconduct, particularly in the light of his overall conduct and attitude towards the events of June 2010.  The way in which he chose to deal with the charges he faced, the subsequent convictions and the allegations arising out of them does nothing to inspire confidence in Mr Chihoyi's professionalism.
 
Proportionality

95.	We considered each of the factors relevant to the lesser sanction of admonishment but could find no evidence to justify imposing this instead of suspension. None of the relevant factors were demonstrated.  The lack of vehicle insurance was a deliberate choice and one that had the potential to cause a high risk of harm to service users.  Whilst Mr Chihoyi regretted this offence, there is no evidence that he was under any duress, nor does he claim any such factor in relation to this or to the other convictions.  In the light of the 2004 conviction and the serious nature of the 2010 convictions, his behaviour was not an isolated incident. There was not one but two serious accidents, which caused personal injury and substantial damage and arose directly as a result of his drink driving. That distinguishes this case from other appeals involving excess alcohol and amounts to behaviour that presented a very serious risk.  The public would be entitled to have a legitimate concern about these events and Mr Chihoyi's response to them.

96.	Having weighed into the balance the degree of remorse and insight demonstrated by Mr Chihoyi and the similar issue of misconduct in 2004 we have decided that a suspension is proportionate.  We have taken into account the medical evidence which was not available to the Conduct Committee but have concluded that this does not provide sufficient mitigation to outweigh the findings made or the serious nature of the offences and Mr Chihoyi's chosen responses to them from the outset and throughout these proceedings. The degree of insight he has shown has been limited and is not adequate to meet the severity of the offences and the surrounding circumstances. His expressions of regret are genuine but there was no evidence of a convincing apology and whilst he has expressed remorse for the incidents, he has shown no sign of remorse for his behaviour.  

97.	He provided no references or testimonials or evidence to support his assertions about his previous good history and the rehabilitative steps he has taken were those ordered by the court.

98.	In our view the public would expect Mr Chihoyi to be unable to work in his profession for a period of time in order to acknowledge the effect on public perception of his conduct and on the reputation of social workers.  In reaching our decision about the appropriate sanction in all the circumstances, we have taken other considerations into account including Mr Chihoyi's health issues and his assertions about his record and conduct since these convictions.  We have also borne in mind the length of time Mr Chihoyi has been, and will be, unable to work as a social worker.  

Delay

99.	Mr Chihoyi has not worked as a social worker since the end of June 2010.  The consequences of his misconduct have therefore resulted in a sanction that will effectively keep him out of social work practice for a total of 4 years. Whilst the GSCC has dealt with his case rather more quickly than others, once Mr Chihoyi was convicted it should have been a relatively straightforward procedure to conclude the investigation in 6 months or less, taking into account the necessary documentation and notice periods. Mr Chihoyi must bear some responsibility for causing delay by failing to respond in a timely way to correspondence from the GSCC regarding the Conduct Hearing. Nevertheless it would have been reasonable to have concluded the process by November 2011 and we have no evidence to explain why it took 11 months to do so.

100.	We have concluded in the light of our findings and the evidence and submissions as a whole that the sanction was proportionate, but that Mr Chihoyi should be able to return to work 6 months earlier than the sanction imposed by the Committee would allow. 

Order: The Appeal is allowed.

The decision to sanction the Applicant by way of 2 years suspension is not upheld.

We substitute a decision that Aaron Chihoyi shall be suspended from the Register of Social Workers until 5pm on 31 October 2013

Tribunal Judge Liz Goldthorpe
Care Standards List, Health Education and Social Care Chamber

Date Issued:	 15 November 2012