Swan v Care Council for Wales [2012] UKFTT 271 (HESC)

FTT-HESC
Swan v Care Council for Wales
[2012] UKFTT 271 (HESC) · 2012-04-20
[1]The Appellant appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the Care Council for Wales (the Respondent) made on the 7 July 2011 to remove his name from the Register of Social Care Workers on the basis of his misconduct. Preliminary Applications[2]Both parties made preliminary applications. The Appellant’s representative made an application for permission to call the Appellant to give oral evidence. The Respondent’s representative opposed the request on the basis that the Appellant had previously indicated that it was not his intention to call oral evidence at the hearing and all of the Respondent’s witnesses had been stood down.[3]The application was made on the basis that Mr Swan had not had an opportunity to give evidence on his own behalf about the issues of insight, remorse and learning since the decision of the Conduct Committee in July 2011.[4]The Tribunal had the benefit of the full transcript of evidence from the three day hearing before the Conduct Committee and both representatives, who had been present during the first hearing, confirmed that the issues of remorse, insight and learning had not been addressed in direct evidence at the hearing and the Tribunal concluded that as the issues in the appeal were now narrowed to the appropriateness of the sanction imposed, then it would be in the interests of justice for the Tribunal to hear direct evidence from the Appellant on those matters, on the understanding that he would then be open to cross examination by Mr Miles on any issues relating to contrary evidence arising from the original hearing.[5]Mr Miles made a request for submission of late documentary evidence, specifically the Code of Practice for Social Workers and a legal authority from the High Court. Mr Allen opposed the request on the basis that he had not had time to consider the documents and that he was not legally qualified and could not be expected to address the Tribunal on documentary evidence presented on the morning of the hearing.[6]The Tribunal considered the requests and concluded that the Code of Conduct for Social Care Workers was a document with which the Appellant and his representative should be familiar and which would assist the Tribunal in their consideration of the appeal. In relation to the authority, it was concluded that it did not add to the information already available to the Tribunal and because it had not been disclosed to the Appellant’s representative prior to the day of the hearing and because he is not legally qualified, he could not be expected to deal with it at such short notice. THE LAW[7]Section 56 of the Care Standards Act 2000 provides that the Respondent shall maintain a register of social workers.[8]Section 59 of the Act provides that the Respondent shall by rules determine circumstances in which, inter alia, a person may be sanctioned or removed from a part of the register.[9]The relevant rules are the Care Council for Wales (Conduct) Rules 2005.[10]Section 68 of the Care Standards Act 2000 provides that an appeal against a decision of the Respondent is to the Tribunal and on appeal, the Tribunal may confirm the decision or direct that it shall not have effect. The Tribunal shall also have power on an appeal to vary any condition, to direct that any such condition shall cease to have effect or to direct that any such condition as it thinks fit shall have effect in respect of that person. Background[11]The appellant qualified as a social worker in 2000 and for two years worked as an agency worker with the Vale of Glamorgan social services department.[12]In 2002, he was appointed to a four day a week post as a qualified social worker working within the newly created Leaving Care Team. The team was a small one and throughout the period of the Appellant’s employment, had one administrative support post frozen because of financial constraints. The Appellant was one of two qualified social workers in the team.[13]In August 2007, the Appellant was allocated the case of B, an 18 year old young man with learning difficulties. The file was transferred to the Appellant when he was on annual leave and by the time of his return to work, there were several paper files stacked behind his desk.[14]In November 2008, B was placed on an adult residential placement with a family in Cardiff.[15]In December 2008, the two young children of the carers disclosed that they had been the subjects of sexual abuse by B.[16]In January 2009, B pleaded guilty to rape of a child under 13 and sexual assault of a child under 13 and was detained indefinitely.[17]At the end of January 2009, the Appellant was suspended from his post and in June 2009 was the subject of disciplinary proceedings leading to his dismissal for gross misconduct.[18]The case was the subject of a serious case review which uncovered major systemic flaws and a culture of unsatisfactory standards of work and work practices across the Children’s Services department in the Vale of Glamorgan local authority. The Department had been without a chief officer for about two years, following the dismissal of all the senior officers within the authority on grounds of financial constraints.[19]The Appellant appealed to the Employment Tribunal against his dismissal and was further the subject of an investigation by the Respondent and a referral to the Conduct Committee on four charges of misconduct.[20]On the 7 July 2011, the Conduct Committee found the four charges proved and directed that the Appellant’s name be removed from the Register of social workers.[21]The Appellant appealed on the 5 August 2011, initially making his appeal against two of the findings of fact against him and several other aspects of the Conduct Committee’s decision.[22]In the course of the appeal, the grounds of appeal were clarified and amended to reflect the decision by the Appellant that the appeal should proceed against the sanction imposed by the Respondent rather than against the findings and decision of the Conduct Committee.[23]The appeal proceeded on the basis that it was not a full rehearing of the original evidence but a reconsideration of the appropriateness of the sanction imposed as a result of the Conduct Committee’s findings. THE ALLEGATIONS[24]In order to set the context for the amended grounds of appeal it is relevant to set out the charges and findings of the conduct committee. The Appellant was the subject of four charges, each of them in two parts: Charge 1(a): The applicant failed to adequately read the case file relating to B and/or prepare an appropriate chronology, and Charge 1(b): that having so failed to adequately read the case file and/or prepare an appropriate chronology, you are guilty of misconduct. Charge 2(a): In or about November 2008, failed to conduct an adequate assessment or investigation following an allegation that B had inappropriately touched a female resident in hostel accommodation and Charge 2(b): that, having so failed to conduct an adequate assessment or investigation you are guilty of misconduct. Charge 3(a): In or about November 2008, failed to undertake an appropriate risk assessment in relation to the placement of B and Charge 3(b): that, having so failed, to undertake an appropriate risk assessment you are guilty of misconduct. Charge 4(a): In or about November 2008, failed to advise the carers appropriately of the risks from B in relation to the placement, and Charge 4(b): that, having so failed to advise the carers appropriately you are guilty of misconduct SUBMISSIONS TO THE TRIBUNAL[25]The Tribunal had before it the full bundle of documents prepared for the Respondent’s Conduct Committee hearing, a full transcript of the three day hearing and the decisions, a copy of the decision in the disciplinary hearing and the decision in the conduct hearing against the Appellant’s line manager, who was similarly removed from the Register, as well as a bundle of documents prepared in the appeal.[26]The Respondent’s representative went through each of the charges and drew attention to the relevant considerations for the Conduct Committee in reaching their conclusions. He submitted that the Conduct Committee had taken into consideration the chaotic environment, rife with bad practice and under resourced, within the Appellant’s employing authority, where he had worked for seven years prior to the incident leading to the charges.[27]Mr Allen submitted that the Appellant had shown remorse and insight following the Conduct Committee decision and had learnt lessons from the experience. He submitted that the Appellant had already suffered significantly as a result of the situation and the media interest in the story and had been out of work since his dismissal, having been unable to secure work as a social worker.[28]Mr Swan in oral evidence stated that he had never sought to diminish his responsibility and had previously apologised to the family on several occasions, offering his apologies to the carers involved and to the perpetrator of the offences. He gave evidence that he had learnt much over the last three and a half years, that he had come to realise the extent of the chaos and dysfunction within the department, and confirmed that he had relied extensively upon the SWIFT software system because he had been told when trained in the use of the system that paper files were no longer relevant.[29]Mr Swan gave evidence that he had continued to meet with social work colleagues to discuss social work issues and indicated that he had read much around the subjects of adults with learning difficulties and offences against children. He regularly reads social work literature to keep up with developments and worked as an unqualified support worker for six months. He described his experience in the case of B as “..a very salutary experience” and acknowledged that he had made several critical errors. If he had the opportunity to deal with the file differently, he stated that he would insist on a proper minuted handover of the file and a meeting with management to establish that what he thought was the case to be correct.[30]On cross-examination, he confirmed that he did not agree with the findings of the Conduct Committee on the facts of charges one and three, maintaining his view that Carer Y had “constructed a narrative” to justify allowing her children to be sexually abused by B. He also suggested that the evidence of Mr Simon Newman was “confused” when he told the Conduct Committee that in his view the Appellant had not known about the “Hereford incidents” until January 2009. The “Hereford incidents” were previous allegations of incidents of inappropriate sexualised behaviour made against B by other children within his placement at a residential children’s home in Hereford. The Appellant gave evidence that he still believed that he had told the carers about the “Hereford incidents” and that the Committee had been influenced by Mr Miles’ successful application for Carer Y to give evidence by videolink rather than in person and that the committee’s perception of the evidence would have been different had they been able to read the witness’s body language. He insisted that he had read the last file but had realised over time that he should have gone back to look at the file and that he should have read the full file.[31]Mr Allen submitted on behalf of the Appellant that his view had “evolved” over the three years since the incidents in the case of B and that his opinion of the sequence of events was his honestly held belief about the facts of the case.[32]The submission on behalf of the Appellant was that the sanction was punitive, that he had been made a scapegoat by the Vale of Glamorgan Council and punished for the department’s systemic failures, in response to intense media interest in the case. He submitted that the best form of public protection was the circumstances leading to the appeal because the Appellant would never allow the same sequence of events to happen again. It was submitted that the Appellant’s removal from the Register was not a proportionate response to his actions.[33]Mr Miles submitted on behalf of the Respondent that full consideration had been given to the circumstances presenting at the Vale of Glamorgan Council at the time of the misconduct and that full allowance had been given to the Appellant on that count. He confirmed that any sanction must be proportionate to the misconduct and the least serious required to ensure the safety of the public. The sanction imposed reflects the Conduct Committee’s conclusion that it was required for public protection and to maintain the public’s trust and confidence in the social care provision. The allegation of misconduct was not a one-off incident, but the failure in Charge 1, a compound failure over a period of 15 months, when the file was in the Appellant’s case load, leading to the conclusion that the only proportionate sanction was removal. Further, he submitted that the Appellant had on several occasions indicated that he was accepting responsibility for his actions but that this was not borne out by his approach at the Conduct Committee hearing or by his oral evidence in the appeal hearing. It was put to the Appellant that he did not fully accept the factual decisions and denied misconduct in all four charges. In oral evidence, the Appellant did not state that he would wish to offer an unreserved apology to the carers but rather that he would offer a qualified apology, stating that he did tell the carers about the “Hereford incidents” and referring to his unprofessional colleagues, dysfunctional department and incomplete handover of files, indicating in Mr Miles’ submission, the Appellant’s continuing lack of insight into the situation. CONCLUSIONS AND DECISION[34]The Appellant is a social worker who has been qualified since 2002. We are satisfied on the evidence that his employment within the social services department at Vale of Glamorgan Council was in an environment of poor work practice. We are satisfied from the evidence presented that the Leaving Care Team and the Children with Disabilities Team had a culture of no chronologies on files and that we saw no evidence that the Social Services Department had a risk assessment policy or procedure or that the Appellant had been trained in the preparation of appropriate risk assessment within the department. In the Leaving Care Team, there was also a culture of not reading paper case files and, on a balance of probability, the other representatives of the department who worked with B had also failed to familiarise themselves with the content of the paper files for a significant period prior to the transfer of the file to the Appellant.[35]In order to reach a view on the appropriateness of the sanction imposed upon the Appellant, we first of all considered the evidence that formed the basis of the decision on each of the charges and the Conduct Committee’s conclusions as set out in its decision.[36]Essentially, the case stems from the fact that the Appellant did not adequately read the case file relating to B. In relation to each of the four factual charges, the failures can each be attributed to that fundamental failure.[37]We agree that the conduct should be viewed in the context of the prevailing culture within the department and that such a culture can be viewed as a significant mitigating factor. We considered the extent to which the fact that there was prevailing bad practice, as acknowledged by Gareth Jenkins in his investigation, with no formal risk assessment procedure and an absence of case chronologies, can mitigate the Appellant’s failures when he is an experienced and qualified social worker.[38]The answer is not in our view a simple one – the Appellant had worked as a social worker within that one department and is likely to have regarded the poor practice as acceptable. He received no supervision whatsoever for the 18 month period leading up to the tragic events of December 2008, despite the fact that the returned from a period of prolonged stress-related mental ill-health in September 2008, without a phased or managed return to work.[39]The Appellant was not a newly qualified social worker and should have had sufficient experience by 2007 to approach the management to manage his workload and to seek advice training and supervision, but did not do so.[40]Whilst the Appellant confirmed both in the papers and in oral evidence his acceptance of his own personal responsibility for his part in the events of November 2008, there remain in the Tribunal’s conclusion, issues about his acceptance of his role in the events and his insight and understanding of what would constitute good practice in social work in the circumstances of the particular case.[41]In considering the seriousness of the Appellant’s misconduct, we have concluded that the impact of the Appellant’s personal failures was significant because of his input into the decisions about the placement of B with carers: he was not, however, solely responsible for that decision and the systemic failures and the failures of his professional colleagues contributed to the disastrous outcomes, for the children, the carers and B. When considering the relevant sanction, the considerations are public protection, the public interest and proportionality and we address each of those in turn.[42]The Social Care Wales (Conduct) Rules 2005 Rules provide:
“ 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.”
[43]The submission on behalf of Mr Swan was that an admonishment should be the appropriate sanction in this case. At the time of consideration of the matter by the Conduct Committee, the indicative sanctions guidance had only very recently been implemented by the Care Council for Wales and was not applied by the committee in this case.[44]We have considered an admonishment and conclude that it is not an appropriate sanction. The failure to inform himself of the full circumstances of B’s case was a long term failure which took place over at least 15 months and whilst the Appellant indicated that it was common practice not to read paper files about clients, as a registered social worker he had an obligation to gather as much information as was necessary for him to be able to deal adequately with B’s case from the sources available to him and whilst he continued to refer to the appearance of seven further paper files in the case after the events of December 2009, it has been clear throughout that the information that he required was contained within the files which were transferred into his possession in August 2007. He must bear personal responsibility for his own failure to make sure that he had acquired relevant information from the files regardless of the failures of others around him to do the same.[45]We then considered the question of suspension from the register: this should only be considered if the time could be put to good use and there was a purpose to the suspension. Our concern about the Appellant’s work practices is that the evidence suggested that he had not undertaken an appropriate probationary period in terms of the experience gained and had certainly not received appropriate training on basic social work matters such as child protection and risk assessment. In our view, however, there were other fundamental flaws in the Appellant’s own conduct: all four charges relate to omissions in the Appellant’s practice which are symptomatic of the failure in his duty of care towards B, in not ensuring that he knew as much as was available to know about B’s areas of social, intellectual and self-regulatory difficulty. Understanding of these would have been necessary in order for the Appellant to carry out his fundamental role as B’s caseworker and his duty to assist B in moving towards independence. Even a cursory reading of the most recent Looked After Child (LAC) Reviews should have alerted him to their having been some issues around sexuality and inappropriate sexual behaviour which should then have led him to further investigation of the records to finding the Dr Durham report and leading on from that, the Taith report. If he had started from the other end of the story and the circumstances of B’s reception into care, he should have been alerted by the sexual elements of that to check out whether there had been ongoing issues around expression of developing sexuality. Having failed to carry out this investigation of past history, the Appellant ignored what should have been prompts to do so, raised by the events of November 2008 and the queries raised by various colleagues. The Appellant’s oral evidence at the final hearing did not betray any understanding of this.[46]We consider that the factual conclusions of the Conduct Committee have a sound basis in that they are firmly supported by the evidence presented. We also confirm the conclusions that the Appellant’s conduct may call into question his suitability to remain on the Register, and thus amounted to misconduct.[47]The charges all stem from the basic failure to adequately read the client’s file and to gather relevant information to enable informed decisions to be made about appropriate support for the client. We have considered the extent to which his conduct makes it appropriate for his name to remain on the register and conclude that the failures identified in his standards of practice are very significant and his oral evidence at the hearing was a further cause for concern because of the reservations he indicated on his acceptance of his own responsibility and the shortcomings he presented at the time of the incidents.[48]The removal from the Register should be a sanction of last resort and should normally be implemented where the registrant has acted maliciously or with deliberate dishonesty or violence. The main issue in the present appeal is the protection of the public and maintaining public confidence in social workers. We have therefore considered whether there is action short of removal that might enable the Appellant to put right the deficits in his practice thus protecting the public and reinforcing public confidence in the profession.[49]Taking into consideration the fact that he had been in practice for six years prior to the events complained of and that he had not previously been subject to a complaint or charge; the poor practice across the department and the lack of supervision for a period of 18 months, we considered whether the Appellant should be given an opportunity to improve his training and practice in key areas and whether a suspension of his Registration would be sufficient time to undertake such training.[50]From the evidence in the papers and the Appellant’s own oral evidence, we were satisfied that he has shown some insight and some remorse for the events of 2007-08, but we were not satisfied that the Appellant had shown sufficient insight and learning from the experience. It is of concern that the Appellant maintained in his evidence at the hearing that he had read the first paper file relating to B. Reviewing his original evidence during interviews in April and June 2009, very soon after the incident, it was clear that he was openly and honestly admitting to not having read any of the paper files and to having relied on the electronic information on the SWIFT software. Similarly, he did not in the early days try to assert that he had informed the carers of the “Hereford incidents”, admitting to knowing only about two of them and having informed them of B having a “dark side”, which we assume from the documentary evidence was a reference to B being manipulative, attention seeking, unaware of personal boundaries and encroaching on personal space, particularly women’s.[52]It was only in the course of the current appeal that the Appellant’s perception changed and he became increasingly focused on the “injustice” of Carer Y being allowed to give evidence by videolink and her version of events being preferred over his own. His anger during oral evidence was palpable, and whilst he may be of the view that he has been made a scapegoat for the Vale of Glamorgan’s systemic failures, the anger directed at the Respondent’s representative was inappropriate and indicative of a failure to gain insight into the sequence of events.[53]We concluded, noting the inconsistencies between his current evidence and that given at the start of the investigations that the Appellant may have constructed his own narrative to enable him to live with the outcomes of his conduct in B’s case. His evidence confirmed that he has not accepted the decision of the Conduct Committee and his anger is reflected in his attack on the Respondent’s representative and his assertion that his basic rights were infringed by the videolink evidence being permitted. He was unable to accept the weight of the evidence against him and maintains that the other evidence is wrong but cannot see that he himself initially admitted not reading the paper file and not advising the carers appropriately about B. Thus he has shown limited insight and remorse and the protection of the public remains a real concern should the Appellant return to practice because we are not satisfied that he has shown an ability to learn from his experience as alleged.[54]We have concluded that the Appellant is a practitioner lacking in sufficient insight, in imagination and perhaps empathy, too willing to accept unquestioningly not just what his colleagues are telling him but also too willing to accept unquestioningly what he would like to believe without an adequate scrutiny of the facts. In those circumstances, we concluded that protection of the public demands that a removal from the register is the only appropriate sanction, because we are not satisfied on a balance of probability that a period of suspension would adequately enable the Appellant to address the issues that we have identified.[55]Finally, we would urge the Appellant to read the documentary evidence in the appeal, especially his own evidence to Gareth Jenkins at interview, the submissions made on his behalf in the original disciplinary hearing and to reflect on the weight of the evidence and his own perception about the situation in 2008, with the intention that he gains a deeper insight into the reasons for the conclusions and learns fully from his past experiences. DECISION The appeal is dismissed. Judge Meleri Tudur Mr B Cairns (Specialist member) Ms H Reid (Specialist member) 20 April 2012