Thompson v GSCC [2011] UKFTT 567 (HESC)

FTT-HESC
Thompson v GSCC
[2011] UKFTT 567 (HESC) · 2011-09-08
[1]The Appellant appeals pursuant to Section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council (“GSCC”) dated the 30 March 2011 to impose an Admonishment on her for a period of eighteen months (incorrectly recorded on the notice of decision as an Admonishment for 1 year). The Law[2]Section 56 of the Care Standards Act 2000 requires the Respondent to maintain 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.[3]The relevant rules are the General Social Care Council (Conduct) Rules 2008. Misconduct is described in Rule 2 as follows:- ““Misconduct” means conduct which calls into question the suitability of a registrant to remain on the register.” Rule 23 (2) provides:- “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.”[4]Rule 25 sets out the GSCC’s Conduct Committee’s powers as follows:- “25(1) Upon a finding of misconduct, the Committee may – (a) admonish the registrant and direct that a record of the admonishment be placed on the register as an entry on the register, for a period of up to 5 years; or (b) make an order suspending the registrants registration for a period not exceeding 2 years (“a Suspension Order”); or (c) make an order for the removal of the registrants 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”[5]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.[6]The hearing was conducted by consent of both parties as a paper hearing with oral submissions. The Tribunal considered the bundle of evidence, evidence submitted by Ms Thompson including character references and information about her disabilities, and oral submissions. 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. Background[8]The Appellant was registered as a Social Worker in July 2004 and worked initially for Oldham Metropolitan Borough Council and later as an Intervention Keyworker for Rathbone between March 2009 and September 2009.[9]On 7 th February 2008 the Appellant intended to telephone a service user but misdialled the number and spoke to a child ("Child A") at school, causing her to be upset. When the child's mother ("Mrs A") telephoned the Appellant to complain the Appellant told Mrs A the telephone number that she meant to dial, allegedly breaching the service user's confidentiality. Mrs A complained. The Appellant denied that she breached the service user's confidentiality. She was suspended from work.[10]On 27 August 2009, whilst working at Rathbone, the Appellant and her manager attended a strategy meeting regarding Ms B. During this meeting, it was alleged that the Appellant said that she had driven Ms B to pay a drug debt in Moss Side, in breach of Rathbone's Safeguarding Policy.[11]The Appellant later denied having taken Ms B to pay a drug debt, saying that she had initially believed that she was giving Ms B a lift to a friend’s home. On 9 September 2009 the Appellant was dismissed.[12]On 14 th to 18 th February and 29 th to 30 th March 2011 the GSCC Conduct Committee heard several allegations of misconduct made against the Appellant. They found some of the allegations to be proven, and that the conduct in respect of the above allegations above amounted to misconduct. Ms Thompson was found to have breached paragraphs 2.3, 3.6, 4.2, 4.4 and 5.7 of the Code of Practice for Social Care Workers by failing to respect confidential information, failing to carry out a risk assessment in relation to the allegation concerning Ms B and putting Ms B at unnecessary risk. The Committee imposed an Admonishment for a period of 18 months .[13]Ms Thompson originally appealed against the findings of fact and of misconduct, but later changed the appeal as to sanction only. Parties’ positions[14]Mr Hepworth submitted that the Appellants behaviour called into question her suitability to remain on the register. The conduct included placing a service user at risk and, on another occasion, failing to respect confidential information. In his submission the Committee was therefore concerned that Ms Thompson’s judgement was flawed because safeguarding vulnerable service users and protecting confidential information are both of central importance to the role and responsibilities of social care practitioners.[15]Mr Hepworth submitted that the misconduct was significant and serious, going to the heart of social care practice with the potential to undermine the reputation of the profession and the maintenance of public confidence in the standards expected of the profession. In his view, although the GSCC recommended an Admonishment to the Committee they would have been justified in imposing a more severe order than admonishment. .[16]Further, he stated:
“ The decision of the Committee to impose an admonishment, for a period which is less than the potential maximum of five years, is a clear indication to support the assertion that the Committee considered the issue of the appropriate Disciplinary Order very carefully .”
[17]Mr Hepworth also submitted that the Admonishment for 18 months is at the lowest end of the range of sanctions available[18]Ms Thompson did not accept the findings of fact but felt that she would have acted differently in relation to Ms B with the benefit of hindsight. She pointed out that she had provoked the strategy meeting to highlight Ms B’s problems and that she had been open and honest as to her actions. If the situation had happened again, once Ms B had started to disclose the purpose of the visit to Moss Side she would have taken her to the childrens home. In fact, she was concerned about whether she would give a young person a lift at all in future. In respect of the telephone call she explained how her dyslexia affected her ability to dial the number accurately. She still denied giving a service user’s number to Mrs A. She felt unsupported when racially abused by Mrs A.[19]She said that she did not feel that the committee should have imposed any sanction in respect of the misconduct findings, but that if an Admonishment was appropriate it should only have been for three months because of the length of the conduct proceedings, and the fact that she could not get a job, which was causing her financial hardship. Conclusions[20]In setting out some general principles regarding sanctions the Indicative Sanctions provide:
“In deciding what sanction to impose, the Conduct Committee should apply the principal of proportionality, weighing the interests of user of services and public with those of the registrant. The Committee should consider the options available starting with the least severe and moving to the next, only if satisfied that the sanction is not sufficient to protect users of services and the wider public interest. The General Social Care Council exists to protect the public and to promote the public and to promote high standards of practice. The Conduct Committee should use its powers where necessary to protect the public: 1. By protecting people who use services and colleagues from the risk of harm 2. By safeguarding public trust and confidence in social care services generally 3. By upholding high standards of conduct among social care workers.”
Later in the same section of the Indicative Sanctions document it is provided:
“The Committee will ensure that any sanction imposed is proportionate, in all the circumstances of the case. This will involve a consideration of: 1. Any mitigating or aggravating features of the misconduct in question 2. The personal circumstances of the registrant and any mitigation advanced 3. Any testimonials and character references adduced in support of the registrant 4. Whether there is any evidence of a pattern or trend in behaviour”
[21]The Committee considered the relevant factors and weighed them in the balance. They started, as we do, with the least serious sanction, namely no sanction. They concluded that the circumstances were not such as could come within the exceptional circumstances where no sanction is imposed because the findings of misconduct were too serious, and because of the lack of insight shown by the Appellant. Whilst we found that Ms Thompson showed some limited insight, namely that she would in hindsight not have taken the service user to Moss Side, we concluded that the Committee were correct in deciding that an Admonishment was appropriate because the service user was potentially put at risk.[22]The Committee found that the incidents were isolated and there was a low risk of recurrence. They took the background into account, including the Appellant’s disability, the lack of adequate support from her employers, and the fact that there was no evidence that a service user had been harmed by her conduct. They were satisfied that an Admonishment provided adequate public protection in these circumstances, and commented that Ms Thompson’s motivation was well intentioned, that she had been frank about her actions, and that she had an otherwise good work record and strong testimonials. We concluded that these were all relevant matters and we agreed with the Committee’s decision that an Admonishment was therefore appropriate.[23]We were concerned that there was little explanation given by the Committee of the reasoning behind their imposition of an 18 month period. Mr Hepworth submitted that it was implied that they felt that the seriousness of the misconduct and the lack of insight meant that the 18 month admonishment was proportionate. Their actual wording was “ The committee considered that although the offence was at the lower end of the spectrum of misconduct, it wished to mark the fact that the Registrant’s behaviour was unacceptable and must not happen again. The Committee considered that a period of 18 months was proportionate, taking into account the fact that these were isolated incidents, and also taking into account the Registrant’s good record and her positive contribution to social care work ”[24]The guidance provides that we should consider: (i)Any mitigating or aggravating features of the misconduct in question. We have borne in mind the potentially serious consequences both of the breach of confidentiality and the risk to the service user of taking her to Moss Side. We have noted that no evidence of harm being caused to a service user was advanced at the misconduct hearing. (ii)The personal circumstances of the registrant and any mitigation advanced We have borne in mind the fact that Ms Thompson is in severe financial hardship. More relevant is the extensive mitigation which was accepted by the committee and by this panel (iii)Any testimonials and character references adduced in support of the registrant Ms Thompson provided excellent testimonial evidence which we have taken into account. (iv)Whether there is any evidence of a pattern or trend in behaviour” The GSCC case before us and the Conduct Committee recognised that these were isolated incidents. The Committee also considered, as we do, that an Admonishment is sufficient to protect people who use services and colleagues from the risk of harm, to safeguard public trust and confidence in social care services generally, and to recognise the need to uphold high standards of conduct among social care workers .[25]Bearing in mind the guidance and the evidence we have read, together with the submissions made by Mr Hepworth and Ms Thompson, we have determined that the decision to impose an Admonishment of 18 months was disproportionate, was therefore wrong and should be revoked. We are of the view that a period of 6 months admonishment would have been the appropriate and proportionate sanction because the misconduct was “at the lower end of the scale” of seriousness, and there was extensive mitigation. In our opinion the 18 month admonishment was appropriate to more serious misconduct or to this type of misconduct where there was little or no mitigation, but was not proportionate to less serious conduct with extensive mitigation.[26]In arriving at this decision we are alert to the limits of the Appellant’s insight in to her conduct, and the fact that her behaviour could have put a service user at risk. We are satisfied that the Admonishment has indicated to the Appellant that her behaviour was unacceptable. The Appellant has demonstrated some, if not complete, insight into her failings. With further training and support we agree with the conduct committee that it is unlikely that such behaviour will be repeated. The Appellant has already been subject to an Admonishment for a period of almost 6 months.[27]We have therefore concluded that the decision was wrong and cannot be upheld in all the circumstances of the case. ORDER The decision of the GSCC Conduct Committee dated the 30 March 2011 is set aside. Judge Nancy Hillier Lead Judge Care Standards 8 September 2011