Carney v GSCC [2010] UKFTT 601 (HESC)

FTT-HESC
Carney v GSCC
[2010] UKFTT 601 (HESC) · 2010-12-06
[1]​Mr Carney, (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the General Social Care Council (the Respondent) issued on the 21st April 2010 to admonish the Appellant and to direct that a record of the admonishment be placed on his entry on the Register for a period of 5 years from that date. The Law[2]​By virtue of section 56 of the Care Standards Act 2000 the Respondent maintains a register of social workers and section 59 allows the Respondent 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 .[3]The Conduct Rules provide at Rule 25 of Schedule 2 that the Respondent’s Conduct Committee must, upon making a finding of misconduct decide upon the appropriate sanction. In this case the Conduct Committee concluded that he should be the subject of an admonishment which should remain recorded on her registration for a period of 5 years from the date of the decision. Rule 25 provides:
“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 (d)​the issue of proportionality.”
[4]On appeal, Section 68(2) of the Care Standards Act 2000 provides that the Tribunal has power to uphold the decision of the Respondent or to dismiss it. It also has power to vary, remove or impose any condition upon the Appellant’s registration as it sees fit. The Issues[5]The allegations brought against the Appellant were as follows:
"Between 2 May 2009 and 30 October 2009 you were employed as a social worker in the Family Support Team at the Family Support Centre, Civic Centre, Reading. Between around 2 May 2009 and 30 October 2009 at Padworth in the County of Berkshire you caused Ms A to fear that violence would be used against her by your course of conduct. 1. You knew or ought to have known that the course of conduct at (1) above would cause fear of violence to Ms A. 2. On 6th January 2010, at Reading Magistrates Court, you were convicted following a guilty plea of harassment contrary to Section 4(1) and (4) of the Protection from Harassment Act 1997. 3. You were sentenced to : a. A community Order; b. A restraining Order."
[6]The Appellant admitted the facts of the allegations and that they amounted to misconduct . The committee found that allegations proved as misconduct and referred in particular to paragraph 5.8 of the code for social workers:
" 5.8 Behave in a way, in work or outside work, which would call into question your suitability to work in social services."
[7]The Appellant raises three issues relevant to the sanction imposed:a. Proportionality : The Appellant argued that taken on its own the whole of the circumstances did not warrant such a lengthy period for the reprimand, which was the maximum. He had admitted matters before the court hearing, and never sought to contest what he had done. The maters occurred at a stressful period of his life and he had worked hard to show that this behaviour was entirely out of character including working with victims of domestic violence. He was in the process of taking a Domestic Violence Offenders course and had gained further insight from that. His actions had consisted of 21 abusive and threatening text messages and had been largely concentrated over a three week period in May when his wife had cleared out their former home in breach of an understanding between them, he had sent a further message in October when there was a difficulty getting his car taxed caused by his wife and in November had reacted angrily to Police involvement. He had never used nor contemplated using violence. He now accepted that this caused harm to his wife. He conceded that at most a 2 year period would be reasonable The Respondents argued that the GSCC was entitled to take as its starting point removal. A number of features were engaged, a serious departure from professional standards as mentioned within the Code of Practice. Whilst not in work it was domestic, there was serious harm to others deliberately, messages were composed and sent deliberately, repeatedly and over an extended period. It was harm to Ms A, she felt there was a capability they could be carried out. Bearing the mitigating features in mind one could see why this led to a lessening of the penalty to a reprimand but one to be on his record for the period of 5 years.b. Other Cases : The Appellant compared his case with those of other cases dealt with by the Committee, and argued that they demonstrated that his cases was dealt with more harshly than others which were of worse behaviour. In particular he relied upon: i. Rosemary Arnold who had driven her car at someone, injured them and been convicted of dangerous driving, she was admonished for 1 year. ii. Brian Morris who assaulted a female and was admonished for 1 year. iii. Theresa Guy who had formed an inappropriate relationship then written inappropriate and threatening letters, she was admonished for 2 years. iv. Christopher Havell , who was cautioned for battery including threats to kill and violence, he was admonished for 5 years v. Stephen Dent who assaulted and received a Police caution upon a 12 year old service user also admonished for 5 years The Respondents argued that such decisions were not binding, the comparison was necessarily flawed as it was based on the most brief summary, the website information, decision notice sets out formal legation and little background, nor is the mitigation present in full. It was not an appropriate comparison for those reasons.c. Full Insight : The Appellant claimed he did have full insight, had admitted what he had done was wrong and this was supported by his behaviour since the last of the incidents, it was simply wrong to say he did not have full insight into what he had done. The Respondents argued that this case, concerned repeated message sending, in the month of May and persisted over a number of days and at a variety of times. There was never any apology, just a reaffirming of the threats in October, the absence of messages was no indication between those times of insight, then mentioning threats again a month later when the Police are involved. He has some insight and some insight may mean he gained insight a little later in the process i.e. until conclusion of criminal process. He held an entrenched position in that interview, did not show he had an understanding of why it was wrong and the harm it had caused which is part of the insight, it was therefore a proper finding. Evidence[8]The Appellant gave evidence and made submissions before us and the Tribunal considered the written evidence contained in the bundle, which included the documentation prepared and submitted to the original Conduct Committee, the full transcript of the Appellant’s Disciplinary Hearing on the 20 th July 2010 and papers submitted by the Appellant in support of his appeal, there were reports on his recent work and cases from the conduct committee which were handed in to the Tribunal on the day of the hearing.[9]We also heard from Mr Kuye, who had worked with the Appellant at the time of these matters, and employed him since in a similar position. He had every confidence in him, saw this as an isolated and entirely out of character incident or series and the Appellant had demonstrated he had returned to his hitherto normal character as a very good social worker, with even keener insights into domestic violence. Conclusion[10]On the question of proportionality, we regard the behaviour of the Appellant as very serious, it is necessary to understand that whilst he was under great strain, and was very frustrated he did not act once in an isolated example of frustration (as so many of the case examples he has referred to did), he made threats over three weeks, then came somewhat to his senses and stopped, but he did not apologise, when he again became frustrated in October some 5 months later he again sent a threat, this time to kill. When the Police were involved far from calming down the Appellant reiterated those threats, and in a series of acts which demonstrated his lack of insight, despite claiming before us to have been involved in youth justice he went on to repeat and amplify them in interview. He told us his frustration at being left for a long period in a cell and remanded in custody, but his behaviour by then was to issue a threat and when the Police sought to speak to him he simply amplified the threats to such an extent that he caused to fear he might be serious and this led to his remand in custody for a period. He claims this was a symptom of a depressive illness, but we have seen no medical evidence.[11]These were serious matters, the Appellant repeatedly referred to these matters as “sending a few texts” when comparing them to an assault indicting they were not as serious, we consider that in itself demonstrates the partial lack of insight into how serious these matters were. We note that a threat to kill carries a maximum of 10 years imprisonment, and a bare assault or battery 6 months, the actual sentence is passed within the context of the offending and the offender, but a threat can in many cases be the more serious, depending upon how seriously they are taken. We note also in this context that the Appellant was prosecuted for harassment and that as well as a 2 year community Order was sentenced to a restraining order of indefinite time, it is plain in our view, that taking all of the facts into account including that penalty that a period of 5 years for the reprimand is appropriate.[12]We do not find the other cases helpful, they are almost all concerned with a single incident rather than a course of conduct, none is in sufficient detail to deal with the background which is important, such as in this case the aggravating matter of repeating the threats to the Police. However in the detail in which they are presented, they do not seem anomalous, two have the same penalty, and unless one accepts the Appellants point, which we reject, that any kind of assault is worse than any sustained threats, they generally accord with his penalty, whilst highlighting the infinite variety of matters which are to be taken into account.[13]We too find that the appellant has only partial insight, firstly into how damaging threats can be, and secondly his statement in mitigation dated July 2010 which still asserted only that the threats could have caused harm, despite his wife’s distress at his actions being put to him by the Police, and no doubt in court since we have her Police statements indicating how worried that these threats had made her. When asked about this before us he claimed that “of course” he fully accepted the harm she was caused, but later repeatedly mentioned that it amounted to sending a few texts again seeking to minimise the result. He is a sophisticated man well used to writing reports, we do not find that to be an accidental insertion in his statement, it demonstrates that almost a year after the final threat, he was minded to minimise his actions, despite his repeated claims that he was not.[14]We have taken into account Mr Kuye’s evidence and the letter of Ms Brown as well as the appellants submissions and evidence. The appellant is clearly a very dedicated social worker with great skill which he uses to help others, he had a “blind spot” when it came to seeking the same help for himself to cope during his marriage breakdown, and retains a little of that now, he is adamant that he now realises and so the punishment should end, however the matter is so serious that it is right that the period should be lengthy. His excellent character before this, and those who are able to speak well of him now undoubtedly prevented the committee from imposing a heavier sanction, but we consider that the penalty imposed by the committee was entirely appropriate. They have given proper consideration to the features both in the general circumstances and those which aggravate and mitigate this matter. DECISION Appeal dismissed. The decision of the Respondent is upheld. Deputy Chamber President Aitken