Allanson v GSCC 1142 [2011] UKFTT 159 (HESC)

FTT-HESC
Allanson v GSCC 1142
[2011] UKFTT 159 (HESC) · 2011-03-24
[1]Mr Allanson appeals against the decision of the Registration Committee of the General Social Care Council ("GSCC") of 12 August 2010 to refuse his application for registration on the social work part of the GSCC’s register. The Law[2]By virtue of section 56 of the Care Standards Act 2000 (the Act), the GSCC maintains a register of social workers. The registration committee is required to decide applications for registration pursuant to s 57 (1) which provides: "in the case of an application under section 57(1) if the Council is satisfied that the Applicant:- a) is of good character; it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it. ”[3]The committee's overriding duty is set out in Section 54(2):
"54(2) – It shall be the duty of the English Council to promote in relation to England – a) high standards of conduct and practice among social care workers."
[4]The General Social Care Council (Registration) Rules 2008 (“the Rules”) provide as follows: "the Council shall grant an application for registration if – a) it is satisfied as to the Applicant's good character and conduct. (Rule 4(10) The committee may refuse the application under Rule 20(16) but it must act “ in accordance with the principle of proportionality” under Rule 20(19):[5]An appeal against the committee’s decision lies to the First Tier Tribunal pursuant to section 68. On an appeal against a decision, the Tribunal may confirm the decision or direct that it shall not have effect. Background[6]The Appellant was registered with the Care Council for Wales ("CCW") as a Social Worker on 21 March 2005. He had worked in the social care field for many years.[7]Records demonstrate that he was cautioned for assaulting a partner in 1994 or thereabouts. He was later married to another person but that relationship ended in divorce in 2000/2001.[8]The Appellant worked for Merthyr Tydfil Borough Council from November 2000. He became attracted to a female colleague, B, and on 11 March 2002 he told her that he was “ besotted “with her. She made it clear that she did not reciprocate his feelings. On a night out on 27 September 2002 with other colleagues, B locked the taxi door to prevent the Applicant sitting with her. He challenged her about this a few days later. In July 2003 the Appellant presented B with a bunch of flowers. She reported his conduct to managers and he was invited to an informal meeting where it was made clear that his behaviour was inappropriate.[9]In May 2005 the Appellant was allocated the case of service user L. In February 2006 he visited L at home. Her husband was present. At the end of the visit they showed him to the door, where he kissed L on her lips. A formal complaint was made about the behaviour on March 7 2006 which resulted in Merthyr Tydfil Borough Council holding a disciplinary hearing and issuing the Appellant with a written warning for inappropriate conduct on 30 March. The matter was referred to the CCW who closed the case in August 2006 as they were satisfied with the action taken by Merthyr Tydfil Borough Council.[10]The Appellant was allocated the case of service user A in late 2006. By February / March 2007 he had become attracted to her and between that time and October 2007 he pursued a relationship with her. This included kissing her on the forehead, telling her he had feelings for her, presenting her with a relatively expensive scarf on her birthday, asking her out for lunch and offering to cook her a meal. He also prepared an astrological chart for her. He left his employment later in July but kept telephoning her and sent her an email on 30 October declaring feelings for her. In December 2007 A made a complaint about the email following a referral by a health care worker.[11]On 15 January 2008 the CCW received information from Merthyr Tydfil Borough Council about the allegations made against the Appellant. The Appellant had been working as a locum but that employment ended in approximately September. On 2 October he was suspended by an Interim Suspension Order. Charges were formed and following a hearing the CCW Conduct Committee found that the Appellant had made persistent and unwarranted advances to a colleague and had failed to maintain appropriate professional boundaries with a service-user. The CCW imposed a Disciplinary Order of admonishment for five years.[12]The Appellant applied for registration with the GSCC in the following year. His application was examined by Kevin Tiplady, Interim Conduct Manager of the GSCC who recommended that his application be refused " due to the fact that we are not satisfied that the applicant is of good character and good conduct as required by Section 58(1)(a) and (3) of the Care Standards Act 2000 ."[13]On 15 April 2010, the GSCC committee considered the matter, but adjourned in order to obtain a copy of the CCW decision. They met again on 17 June adjourned the hearing again to ensure that the Appellant had a copy of the decision and to give him the opportunity to comment on it. A copy was sent to him on 18 June.[14]The Appellant replied to the GSCC on 20 June 2010. He stated:
" I have no further comment to make in relation to the document forwarded to me, namely the Conduct Committee Decision from the CCW. This document was already in my possession, and I have already commented on it in my document headed 'Application for Registration' dated March 24 2010 to which I draw your attention as this document represents my reflections on the charges made against me in Cardiff in 2008."
[15]On 12 August 2010 the GSCC Committee met again. The application was refused and the Committee gave the following reasons:
"a) The Committee carefully considered the documents provided by the Council and the Applicant. b) The Applicant is a Social Worker registered with the Care Council for Wales. He has applied, by way of a form dated 17 June 2009, for registration with the GSCC in England. On that form he declared that he had been admonished by the Care Council for Wales in relation to an "inappropriate relationship". c) On 4 December 2008, the Applicant was found guilty of misconduct by the Conduct Committee of the Care Council for Wales and made subject to an admonishment to remain on his record of registration for five years. d) The finding of misconduct related to charges that between March 2006 and October 2007, he failed to maintain appropriate professional boundaries with a service-user ("
Client A"), in that he kissed the service-user on a home visit, told her on the telephone that he had feelings for her, presented her with a scarf on her birthday, telephone her when he was on holiday, telephoned her and offered to cook her a meal, asked her to have lunch with him, inappropriately prepared an astrological birth chart, maintained contact with her after his professional involvement with her had ceased and sent an inappropriate email to her. The applicant had admitted the facts of these charges and that those facts amounted to misconduct. e) In addition, the Care Council for Wales found the facts proved in relation to charges of persistent and unwarranted advances to a female colleague, in that in March 2002 he had told his colleague that he was "totally besotted" with her, in September 2002 he had accused her of deliberately locking the back door of a taxi allegedly to avoid him sitting next to her and in July 2003 he had bought her flowers. Again, the Applicant had admitted the underlying facts, but had denied that they amounted to misconduct. The Care Council for Wales had not found that this behaviour amounted to misconduct. f) Further, on 31 March 2006, the Applicant had been given a written warning (for six months) by his employer in relation to inappropriate behaviour towards a female service user, namely kissing her during a home visit. g) The Committee was extremely concerned by the fact that the Applicant was an experienced Social Worker, who had engaged in inappropriate behaviour with both a colleague and service-users. The Committee was particularly concerned that this behaviour was not a single, isolated incident, but had involved more than one woman and had taken place over the course of a number of years. h) The Committee noted and agreed with the comments of the Conduct Committee of the Care Council for Wales to the effect that:
"the seriousness of the Registrant's conduct carried with it the very real potential for Client A to suffer significant emotional harm and in the context of Client A being a vulnerable person with mental health problems, the registrant's misconduct must be seen as serious." i) The Committee noted that some time had elapsed since the incidents concerned, the last of which had taken place in 2007. The Committee was of the view, however, that none of the documents provided to them in their view demonstrated genuine insight or remorse. j) The Committee noted that the Welsh Conduct Committee had been of the view that the Applicant could remain registered in Wales, subject to an admonishment. The Committee noted the advice of its Legal Adviser, namely that the Welsh decision was not binding on them (namely that it was not obliged to register the Applicant) but that the Welsh decision might be of persuasive value; that the Committee should bear in mind that the Welsh Conduct Committee had had the benefit of a full hearing, including oral evidence from the Applicant; and that the Committee might also consider it relevant to take into account the fact that the Welsh Committee were dealing with these matters as conduct issues and that the current Committee was considering them in light of the requirements of registration. k) The Committee was on the opinion that the Applicant was an experienced social worker who had breached professional boundaries with three women on numerous occasions over a lengthy period of time; in relation to at least one of those women there had been potential for the vulnerable service-user to suffer emotional harm and the Applicant had not demonstrated insight into his behaviour. In these circumstances, the Committee was of the view that the Applicant had not satisfied the Committee that he was of sufficiently good character and conduct so as to be registered. l) The Committee paid careful regard to the decision of the Welsh Conduct Committee when reaching its own conclusion, but considered that, in applying the criteria for registration with the GSCC, and taking into account the fact that the burden was on the Applicant to demonstrate that he was of good character and conduct, the Committee was of the view that the Applicant had not done so in this case."
On 10 November Mr Allanson appealed this decision to the First tier Tribunal . The evidence[16]The panel considered the written evidence contained in the bundle of 376 pages and heard the oral evidence of Mr Allanson.[17]Mr Allanson told the panel that he had been unemployed since September 2008. He made a number of job applications following the imposition of the admonishment, but when details of the allegations were explained he was unsuccessful or offers were withdrawn. He said that his application for registration with the GSCC was made because he is English rather than the problems he was experiencing in obtaining employment. Working in England would expand the amount of available work he could apply for in the mental health field. He needs to complete a further 50 hours therapeutic work in order to finish his MSc in Systemic Psychotherapy at the School of Care Sciences and the Family Institute at the University of Glamorgan.[18]Mr Allanson explained that he had been working in the social care field for nearly 30 years and he feels that it is his vocation. He feels that his difficulties were limited to a particular time between 2002 and 2007 when he was suffering from anxiety and the after effects of his divorce. He told the panel that he had worked through his issues and there would be no repetition of the behaviour because those issues are now resolved. He expressed remorse for the effect his behaviour had had on clients who he had had to leave without saying goodbye. He said that the whole situation had been very difficult for him personally and had had a great effect on his family. He described his misconduct as “ completely unacceptable ”. “ I made a complete error ” and described his behaviour as “ rash and unfortunate ”.[19]Looking to the future Mr Allanson said that if he found himself in a difficult situation he would take the matter to supervision or a colleague, something which he had not done in the past. He feels that he is a much calmer person and has benefitted particularly from working with a small group of fellow students on the masters degree.[20]In relation to colleague B he said he was extremely attracted to her and admitted that he had been persistent, but said that his conduct was not out of order until he bought her the flowers, “ which was excessive ”. He agreed that this conduct was impulsive, foolish and said that he knew he had made a mistake. Such behaviour was out of character.[21]Following the 2006 disciplinary meeting in respect of L he had modified his behaviour and had made a rule of no physical contact. He described then working with A and knowing that he would have to be particularly alert. He said that on one occasion her behaviour was inappropriate and suggested to him that she had difficulties with boundaries. At that time he did not have any feelings for her. These developed in February/March 2007. He said “ Yes, alarm bells did ring. I talked myself into believing what I was doing was ok. I gave myself reasons that made it ok : she wanted to see me, I was closing the case, I was no longer going to be her social worker. I was anxious because I was breaking the rules. My resolution failed .”[22]Mr Allanson assured the panel that such conduct would not happen again. He no longer gets confused. His anxiety had made him impetuous but that has now gone and he is a fit and proper person to be a social worker.[23]In his statement Mr Allanson explains why he feels it is unfair that he remains registered in Wales but the GSCC are refusing to register him. He states:
“I absolutely accept that I blemished my professional record between 2002 and early 2007 and that the incidents with BC amounted to serious misconduct. However, the CCW did not consider that my misconduct rendered me unfit to practice as a social care worker otherwise it would have struck me off the register. It had the same overriding duty under the Care Standards Act 2000 S54(3)(a) to “promote high standards of conduct and practice among social care workers” as the GSCC. Additionally in considering what sanction to impose the CCW had public interest duties to consider – the duty to protect the public and to remove people who are a danger to members of the public, and the duty to remove registrants where leaving them on the Register would undermine confidence in the profession and the regulator. Therefore, I do feel that the GSCC failed to act in accordance with the principle of proportionality in refusing my application for additional registration outright.”
Appellant’s submissions[24]Ms Clements told the panel that the Appellant acknowledges that the burden of proof is on him to prove that he is suitable for registration.[25]She submitted that the tribunal should only consider matters “ in the context of registration ” relating to the charges where misconduct was admitted (and found proven) relating to A. She urged the panel to ignore the conduct relating to B because there was no finding of misconduct made against the Appellant by the CSW in relation to that behaviour. The Appellant had no current disciplinary record against him on that issue and so had nothing to declare in his application. Further, the CCW closed the case relating to L at the preliminary investigation stage with no further action. Ms Clements continued that by widening its remit to take into account matters which Mr Allanson was not required to disclose on his application form the Committee did not act reasonably or proportionately.[26]It was further submitted on the Appellant’s behalf that there are no health considerations in this case (although Mr Allanson does refer to some in his statement). She stated that there are no “ issues about the appellant’s general good character. His caution in about 1994 was declared with his original application for registration and caused no difficulties. The appellant has had no criminal charges, convictions or cautions since. Therefore, his fitness to practice as a social worker has not been called into question by any criminal behaviour. In essence the focus of this case is the appellant’s conduct and competence in the work arena.” The Tribunal should therefore consider the matters relating to A alone into account in relation to the appellant’s conduct and competence.[27]Ms Clements stated that if the Tribunal concludes that it is entitled to take into account the matters relating to B and L those matters should be put into context and she urged the panel to give significant weight to the CCW decision to admonish Mr Allanson which she submitted indicated a view of the Appellant’s broad suitability to be a social worker.[28]The Appellant relied heavily on submissions that it is unreasonable and disproportionate for the GSCC to refuse to register a person who is registered by the CCW, namely to refuse an “additional” registration rather than an initial registration. Ms Clements submitted “ The respondent’s decision to refuse additional registration places the appellant in the position that although the over arching principles, criteria and codes of practice are identical he has been treated differently based on the same facts. In addition, notwithstanding the fact that the respondent had the power to impose conditions on the appellant’s registration [S58(1) Care Standards Act 2000 ] it gave this no consideration in its decision. In the circumstances the appellant contends that the respondent acted disproportionately.”[29]Ms Clements stressed to the panel that it was better placed to form an assessment of the Appellant’s suitability from reading the hearing transcript, his witness statement and hearing his oral evidence. She urged the panel to conclude that the appellant does not lack insight or remorse and to bear in mind the references from Claire Morgan (his last employer) and Janet Coutts, a colleague from the MSc course with a longstanding professional background as a registered nurse and as a family therapist. Ms Clements submitted that these references also go to the issue of competence, recognised by the service manager for mental health services in Merthyr Tydfil who gave evidence at the CCW hearing that the Appellant had been able to manage a case load of 20 –30 clients.[30]The appellant does not argue that he has an unblemished record. Ms Clements suggested that an admonishment “is a serious matter” but she stressed that it is at the lowest end of sanctions. Taken with the evidence that the CCW did not feel Mr Allanson’s misconduct warranted removal from the register she submitted that the character references and expressed remorse are sufficient to prove on the balance of probabilities that the requirements of s58(1) of the Care Standards Act 2000 are met. Ms Clements concluded by stating that the Appellant does not expect an unfettered registration and suggests that since there will be 3 years 9 months left to run on the admonishment imposed by the CCW the GSCC could consider the same condition of registration. Respondent’s submissions[31]Mr Alder submitted that the Appellant's behaviour was in contravention of the GSCC Code of Practice. Code 5 of the Code of Practice which states " as a social worker you must uphold public trust and confidence in social care services. In particular you must not: 5.2 - exploit service-users, carers or colleagues in any way; 5.4 – form inappropriate relationships with service-users; 5.8 – behave in a way, in work or outside work, which would call into question your suitability to work in social care services.[32]Applying these principles, Mr Alder submitted that the committee decision was reasonable and proportionate and they were entitled to find that the Appellant was not of sufficient good character and conduct to allow registration..[33]Mr Alder stressed that the CCW had the opportunity to impose no sanction but that it had decided to impose an admonishment for a period of five years. He said “ An admonishment is a serious disciplinary order following a finding of misconduct. The Committee is not restricted in making it's decision by reference to any sanction imposed by the CCW.[34]Mr Alder refuted the contention that the committee decision is inconsistent with the Decision of CCW because he stated that the two decisions relate to different jurisdictional frameworks to which different criteria apply. He submitted that the CCW considered different factors in respect of the appropriate sanction to impose on a Registrant following a finding of misconduct to those factors applied by a Registration Committee when considering an application for registration.[35]It was submitted on behalf of the Respondent that it is an applicant's responsibility to satisfy the GSCC Registration Committee of suitability for registration in terms of the requirements set out in the Care Standards Act and that it is the applicant’s responsibility to provide all relevant evidence and information in support.[36]Mr Alder also submitted that the evidence available to the Committee was detailed, consistent and provided more than sufficient information to allow it to reach a reasonable decision as to whether the applicant's character and conduct was good. The decision to refuse registration was, he said, reasonable, proportionate and justifiable in the public interest and is consistent with the committee's duty to promote high standards of conduct and practice among social care workers.[37]As to the facts Mr Alder stressed that the Appellant was an experienced social worker who had engaged in inappropriate behaviour involving more than one woman which had taken place over the course of a number of years. He submitted that the disciplinary sanction imposed is significant and serious and said that it would be inconsistent for the GSCC to conclude in the light of all the evidence that Mr Allanson is of sufficiently good character and conduct to allow his registration application. He continued: “ The decision to refuse registration was and remains appropriate and proportionate. It was also, given the findings of the CCW, proportionate in the public interest .[38]In respect of the evidence which it is appropriate to consider Mr Alder suggested that the Registration Committee is able to take into account aspects of the Appellant's previous conduct, character and competence which go beyond the remit of evidence which can be considered by a conduct committee. The latter cannot take into account aspects of a registrant's behaviour and potentially his wider history which goes beyond the scope of the allegation before it, whereas a Registration Committee can consider all aspects of conduct prior to registration. Mr Alder submitted that the registration committee, and now the Tribunal, was entitled to consider: the six month written warning given to him by his employer for inappropriate behaviour towards a client on 31 March 2006 and that he was reminded of his responsibilities as a social worker; the previous caution for assault relating to a domestic incident. The proven misconduct. Tribunal’s conclusions with reasons[39]The panel considered all the evidence, both written and oral, and the relevant law and the conduct standards required of Social Workers on registration and additional registration. The submission made on behalf of Mr Allanson that the panel should only consider matters relating to ‘A’ was rejected because the panel decided that to limit itself in this way would mean ignoring very relevant material as to character and conduct and would be entirely artificial. It is right, of course, that a committee considering allegations of misconduct should properly direct itself to consider only those issues however the decision appealed here is one of registration. The panel concluded that any consideration of suitability must involve consideration of all matters raised against the Appellant’s character put into context. Without doing so it would be impossible to consider the Appellant’s assertion that these incidents occurred during a specific part of his life for specific reasons, and to examine his assertion that even taken together they do not compromise his good character.[40]The panel paid particular attention to the submission made on behalf of Mr Allanson that the CCW had imposed an admonishment and had allowed him to continue to practise. Mr Allanson clearly did not understand the difference in legal tests and the differing burdens of proof in cases involving registration, whether new or additional, and cases involving misconduct proceedings and possible cancellation of registration. In the former the burden is on the applicant to show that he is of good character. If he can do this then he must be registered. If he cannot, then his application will fail. In misconduct cases the burden is on the registering body to prove misconduct and to show that a particular sanction is necessary and proportionate. In this case the CCW could only consider the misconduct allegations admitted or proved and quite appropriately they imposed the appropriate sanction for that conduct. The panel concluded that the CCW decision is of limited relevance because it was on a different basis to the question of registration. It is right that an admonishment is at the lower end of the scale of sanctions, however that admonishment is not the sole factor for consideration in the assessment of the Appellant’s case. Further, it does not show that he is of good character, indeed it weighs against his contention that he is of good character.[41]The panel also considered the decision of the Registration Committee. Again, this was of limited relevance because it was made without the benefit of Mr Allanson’s statement and his oral evidence. The parties had agreed at a telephone case management hearing that the matter would be dealt with as a rehearing rather than a review of the registration committee decision, and the case was conducted on that basis. The panel therefore placed very limited weight on that decision, but took it into account as part of the overall circumstances.[42]The panel also considered the question of Mr Allanson’s remorse and insight. The panel was satisfied that the sentiments expressed by him were genuine and are honestly held and that the remorse expressed towards the clients who he had had to leave without the opportunity to say goodbye to, and to his family, was deeply felt. This, taken with his excellent references was good evidence of mitigation and indications of positive character traits.[43]On the issue of insight the panel found that the Appellant showed very limited understanding of his clear and repeated problem with overstepping boundaries and his justification of unacceptable conduct. He also showed very little remorse towards A, L or B or concern about the impact that his behaviour might have on them.[44]The caution in 1994 for assault on his partner was described as a one-off occasion hitting a partner who had assaulted him over a period of time. The Appellant told the panel that although he was working in the social care sphere and was undergoing counselling at the time “ I didn’t know what to do. I couldn’t find anything to stop it, she assaulted me in front of the baby and on one occasion I hit her back ”. The picture painted was therefore one of self defence rather than an unacceptable loss of control. The Appellant described the police imposing a caution rather than him actively accepting wrongdoing, and told the panel that the only positive action he had taken was to end the relationship. The panel found that the Appellant minimised his involvement in this conduct and failed to show any insight into the fact that he needed help with boundaries and personal conduct, despite the fact that he was undergoing counselling. Further, although the Appellant claimed that his difficulties were specific to the time period 2002 – 2007 this demonstrated that he had had difficulties at an earlier stage. The panel noted that the caution was properly declared on the registration application to CCW.[45]In respect of B the Appellant agreed that his behaviour was excessive only in respect of the giving of flowers when it was clear that his feelings were unreciprocated. He described his conduct as excessive, impulsive and foolish, but out of character. The panel accepted that he thereby demonstrated some insight into his behaviour but were surprised that he did not try to modify his behaviour as a result The appellant stated that following the incident with L in 2006, involving rash and impulsive behaviour, he took steps to modify his behaviour by taking the matter to supervision, talking it through with a colleague and discussing it in therapy. He made a firm rule following this of no physical contact with service users. The panel accepted that the Appellant had thereby shown further, albeit belated, insight into his difficulties and had taken appropriate steps to address them.[46]The incidents with A namely the accepted and proven misconduct with a vulnerable service user started only a few months later. The Appellant accepted that “ alarm bells started to ring ” but that he did not raise this with anyone because he thought he had the situation under control. He accepted that his resolution failed and that he justified his conduct to himself on the basis that A wanted to see him and that he would soon no longer be her social worker. Mr Allanson told the panel that such a situation would not occur again because since that time he feels he is a different person, having worked through his issues, got over his divorce and reduced his anxiety levels. He said “ I no longer get confused ”. He pointed out to the panel that A had initially not complained about his behaviour and that the pressure and anxiety which had made him anxious and impetuous and stopped him making proper judgements had gone away.[47]The panel found that a return to uncontrolled, rash and impetuous behaviour with A so soon after the incident with L and against a background of the conduct with B and the historic caution for assault was very concerning. The contention that the cause of these incidents was connected with his divorce in about 2000 and the issues raised by his Masters Course in 2007 simply did not account for the historic problems of behaviour control and boundaries which the Appellant had accepted. Equally, the panel were not satisfied that the issues had been addressed by the support of colleagues on the course and by the assurances that the Appellant is now a different person, and found that they could have no confidence that the Appellant would not overstep boundaries with vulnerable service users if registered by the GSCC. In addition, the Appellant’s failure to refer the matter of A and the alarm bells which were ringing to his supervisor means that a condition such as supervision or an admonishment imposed on registration would not safeguard service users because the panel concluded that the Appellant may very well fail to refer boundary issues to his supervisor.[48]In the light of these findings and weighing all the evidence the panel concluded that the Appellant had failed to demonstrate that he is of good character within the meaning of CSA 2000 s.57 (1)(a) and therefore that the panel confirms the decision of the GSCC Registration Committee of 12 August 2010 to refuse his application for registration on the social work part of the GSCC’s register. Order The appeal dated 10 November 2010 is dismissed. There be a Restricted Reporting Order under Rule 14(1)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008 prohibiting publication (including be 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 indentify any person referred to anonymously in these proceedings. Tribunal Judge Nancy Hillier 21 March 2011