England and Wales Care Standards Tribunal

YD v The General Social Care Council [2006] EWCST 739(SW-SUS) (20 December 2006)

YD

-v-

The General Social Care Council

[2006] 0739.SW-SUS

Before

Mr. Simon Oliver (Chairman)

Ms Margaret Halstead

Dr. Keith White

Sitting at: 18 Pocock Street, London on 1^st December 2006

DECISION

Application

YD ('the Applicant') appeals under Section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council to suspend her from the register for a period of two years.

Appearances

This was a paper hearing and so neither party attended nor was represented.

Legal Framework

1. The procedures to be followed by the General Social Care Council ('GSCC') are set out in the General Social Care Council (Conduct) Rules 2003 ('the Rules'). The GSCC has a Preliminary Proceedings Committee (PPC) which considers any complaint(s) against a Registrant that has been referred to it. It can decide (Rule 5(1)) whether to refer the complaint to the Conduct Committee; whether it is necessary "for the protection of members of the public or is otherwise in the public interest or in the interests of the Registrant concerned" to make an Interim Suspension Order or whether no further action should be taken in respect of the complaint.
2. By Rule 7, it is the duty of the Conduct Committee to consider any Formal Allegation of Misconduct against a Registrant referred to it and to decide whether the Registrant has committed misconduct such as to call into question the Registrant's suitability to remain on the Register and, where it has been decided that the Registrant has committed misconduct, what sanction should be imposed on the Registrant. The procedures to be followed by the Conduct Committee are set out in Schedule 2 of the Rules.
3. The Conduct Committee heard oral evidence, in private, between 5^th and 7^th April 2006 in Newcastle. It was the first hearing of the Conduct Committee of the GSCC. It announced its decision on 19^th June 2006. It is against the Notice of Decision of the Conduct Committee that YD appeals to this Tribunal.
4. We have read the Decision of the Conduct Committee together with the evidence provided for the hearing and a transcript of the evidence given on the three days in April in all, three lever arch files.
5. Although the Conduct Committee met on 19^th June 2006, YD was sent the decision under cover of a letter dated 23^rd June 2006 and she appealed to the Tribunal on 12^th July 2006. On 23^rd October 2006 the President, His Honour Judge David Pearl, gave directions which led to this hearing, including a direction under Regulation 27(3) that the Decision be redacted so as to safeguard the welfare and private life of the Applicant.
6. As required by the Directions, in addition to the papers before the Conduct Committee, we received a statement from Ms Anderson (exhibiting some supervision notes) dated 20^th October 2006 and a statement from YD dated 8^th November 2006. We also received a position statement by YD and the GSCC which we read and took into consideration when reaching our decision.

Tribunal's conclusions

7. As with the Conduct Committee, we decided that we needed to determine as the first issue whether or not YD had committed misconduct and then, if we were satisfied that she had, whether the sanction imposed by the GSCC was appropriate. We are aware that in reaching our conclusions on the evidence we need to apply the civil standard of proof – the balance of probabilities and that, because of the nature of the allegations, we need to follow the guidance set down by the House of Lords in the case of Re H (minors) (Sexual abuse: Standard of Proof) [1996] AC 563, namely: the more serious the allegation, the more cogent the evidence has to be to fulfil the civil standard of proof. We remind ourselves that there is not a 'sliding scale' civil standard of proof as a result of the decision in Re H.
8. In her 'Reasons for Appeal' dated 10^th July 2006, YD stated that the GSCC was wrong to make as a finding of fact that she advertised herself as an escort with Prestige Escort Agency; that the Committee was wrong to conclude that she was the same person as that in the images of "BJ"; that the Committee was wrong to conclude that the e-mails between Malcolm Simpson and Helen of Prestige proved that YD was acting as an escort; that the Committee was wrong to conclude that YD's intention of gathering information on child prostitution was implausible; and that the Committee was wrong in not taking into consideration the fact that Mrs. Anderson failed to disclose comprehensive supervision records pertaining to YD for the months of June, July and August 2004.
9. In the reasons for opposing the appeal, the GSCC stated that the Conduct Committee was not wrong in making a finding of fact that the Applicant had advertised herself as an escort with the Prestige Escort Agency and explained in detail the basis upon which it had reached its conclusions.
10. Whilst the first test must be to determine whether the Appellant had committed misconduct, we need to determine what is meant by misconduct. There is no express definition in any document produced by the GSCC. However we note that the Codes of Practice for Social Care Workers and Employers issued by the GSCC contains the requirement, at Paragraph 5, for a social care worker to "uphold public trust and confidence in social care services." In particular, Paragraph 5.8 states that a social care worker must not "behave in a way, in work or outside work, which would call into question your suitability to work in social care services."
11. So, is there certain behaviour that would automatically call into question someone's suitability to work in social care services (a sort of moral absolute) or is it dependent upon the circumstances of the individual and environment? Likewise, does the dynamic of publicity (as in it being public knowledge) make someone guilty of misconduct when they would not be if it remained private?
12. We remind ourselves that YD was not dismissed by Ms Anderson because the latter had discovered that the former had been advertising as a prostitute. YD was sacked after a meeting when she was told that her work was "not up to scratch." The letter from Ms Anderson dated 10^th September 2004 gave no reason for the sacking. It was only subsequent to the termination of YD's employment that the e-mails came to light. That does not mean that YD could not be guilty of misconduct. What it does mean is that she was not sacked for those matters the Conduct Committee considered.
13. We have come to the conclusion that misconduct is about lack of integrity and how an individual is perceived by others: if someone cannot be trusted in this part of their lives, where else are they not to be trusted? The answer might be that they are utterly trustworthy elsewhere, of course, but that does not matter because we believe that once doubt has been cast on how they are seen by others, the damage is done. It may be said by outsiders that if one person has done this and been allowed to get away with it, maybe others have done the same. It calls into question the whole credibility of the system.
14. Looking again at Paragraph 5.8 of the Code of Conduct, we can imagine circumstances in which behaviour outside work would not call into question an individual's suitability to work in social care services. Clear examples of this would be membership of a political party, campaigning for or against a government's particular policy, sexual orientation and everyday life choices. Clear examples of behaviour that would call into question suitability to work would be committing murder, arson, rape or a serious criminal act.
15. There may be a grey area in between the clear circumstances identified in the preceding paragraph where a reasonable dividing line between acceptable and unacceptable is more difficult to draw. What to some people would be considered normal, everyday behaviour, could be regarded as morally reprehensible by other.
16. Prostitution involves deceit. The use of a false name by the woman, for example. It is, of course, still a criminal offence. If a social worker had been found guilty of stealing money from her employer, or shoplifting, most people would say that a conviction would call into question an individual's suitability to work in social care services. Likewise, most people would reach the same conclusion if an individual was caught in the act of theft but, for whatever reason, not prosecuted. We see no reason why prostitution does not fall into the same category.
17. If there is no moral absolute and people have differing moral values, from whose perception need we to judge the behaviour? Clearly not our own. We feel that it should be from the perception of colleagues, fellow professionals, clients and the public.
18. Working in social care, an individual is working with vulnerable clients. Many people will have had difficult backgrounds and experiences. They need a role model. They need to trust the professional working with them. Any action which undermines that trust must call into question the suitability of an individual to work in social care services. This places on an individual a responsibility. A responsibility to behave appropriately and to be above reproach, "whiter than white", to be that role model and not to let people down is a reasonable expectation of a professional.
19. Weighing all these points together, we have come to the conclusion that to advertise oneself as a prostitute does come within the requirement of Paragraph 5.8. It falls on the wrong side of where any line of appropriate behaviour is to be drawn, whether that be through the eyes of colleagues, fellow-professionals, clients or the public. Whilst we do not go so far as to say that prostitution involving either client or prostitute will always be something that calls into question an individual's suitability to work in the social care services, we find it very difficult to envisage any circumstances in which it might be seen to be acceptable.
20. We bear in mind in reaching our conclusion on this that at the Conduct Committee hearing, YD's lawyer said (Page D3/30 of the transcript) " … YD has no hesitation in accepting that in the event of the findings of the committee being that the allegation was proved that that would clearly constitute misconduct under the Rules…"
21. We are aware, of course, that YD is a female. We need to consider whether we have reached this conclusion because she is a woman. Of course, we need to contrast her both with a man who employs the services of a prostitute and with a man who advertises himself through an agency. We are satisfied, in both situations, that if YD had been male, we would have come to the same conclusion.
22. So having decided that advertising oneself as a prostitute is in breach of the Code of Conduct, we now need to determine whether or not YD was BJ. We believe that we should start our analysis with the e-mails but note that although YD says that she is not BJ she has never put forward an individual who is BJ – even though she has provided evidence from Malcolm and Helen. What would have been easier than to say to the Conduct Committee, "I'm not BJ, this person is"?
23. We see no reason to suppose that the e-mails are other than accurate and reflect the contents that were sent originally. These e-mails were printed on 10^th September 2004 and were more than a month old at that time. They were printed from YD's work computer and were in her personal "Hotmail" account. There is no doubt that the account name belongs to YD as it can be seen from an e-mail timed at 8.00 on 17^th August 2004 (at Page 1 of the bundle) that the address was in the name of YD.
24. The first e-mail in the chain appears to have been sent by Malcolm Simpson on 16^th August 2004. He refers to YD as "B" and states "tonight was THE best". It is clear that YD and Malcolm Simpson spent the evening of 16^th August 2004 together. It is also clear from the e-mail of 2^nd September 2004 that arrangements for meeting were made directly between the two but in consultation with Helen. Helen is the owner of Prestige Escorts. She wrote an e-mail to YD at her Hotmail address on 8^th September 2004 and refers to "B" choosing the right attire in relation to an event. Whilst Helen may have been unaware of the details, the e-mails between 2^nd and 7^th September 2004 show that Malcolm and YD were arranging to travel to a party in Birmingham together and that they needed to keep up appearances with Helen.
25. It is also apparent that the two of them met on 1^st September 2004 and had a meal. It is difficult to draw a definitive conclusion but it seems to us likely that on that night they had sexual intercourse. We reach that conclusion because of the way the message is phrased: "Thanks for a lovely meal and superb dessert!!!!" The innuendo is clear – that dessert was of a physical rather than gastronomic nature.
26. We are satisfied that the e-mails enable us to conclude, on the balance of probability (and applying the Re H test), that:

(a) YD is known as B, by Malcolm Simpson;

(b) Helen of Prestige calls her B;

(c) YD and Malcolm spent at least two evenings together and were planning a third;

(d) At least one of the meetings between Malcolm Simpson and YD involved sexual intercourse.

27. But that is not conclusive proof that YD is BJ. We have seen a photograph of YD and photographs of BJ that appear on the Prestige website. YD also provided a photograph of a tattoo she has. We are not persuaded one way or the other by the photographic evidence in this case. It is unclear and inconclusive and we do not rely on it in reaching our decision. What we do not know, for example, is the date on which the photograph of the tattoo was taken.
28. In her position statement, dated 22^nd November 2006, YD states that it is Helen who chooses the names. We regard that as significant since it seems to us that it does confirm the link between YD and BJ since it was Helen who chose BJ for YD. Part of the evidence in our bundle is a page of "feedback" on BJ. This is for customers to record comments about an individual. The first dated review is 27^th February 2004. There are a total of 7 reviews, the most recent being dated 14^th August 2004. The contents of the messages suggest that there were other meetings that had occurred and that BJ was also referred to by at least one person as B. We are not able to conclude that the individual "M" who provided the feedback dated 11^th August 2004 is the same person who was e-mailing YD in August and September 2004 (Malcolm Simpson). It is clear, however, that BJ had received feedback over a period of six months indicating that the e-mails were not evidence of the only occasions when YD acted as BJ.
29. We deliberately considered the objective evidence of the e-mails first since we were concerned about the credibility of some witnesses and we felt that we could not rely on what they had said. For example, we are completely unimpressed with Mr. D's and YD's conflicting and highly improbable account of their meetings with Helen.
30. Having done that, we need to consider what YD said in relation to the e-mails. It may be trite to say it but, of course, YD knew she had a great deal to lose if her activities became public. To avoid the obvious conclusion being reached, YD needed to come up with an explanation that might just be plausible. Her solution was to say that she was doing research into childhood prostitution. In this way, she hoped to cast doubt on the evidence and perhaps create a smoke screen to hide the truth.
31. We considered whether or not YD had been conducting "research" (that is, collecting information systematically for the purposes of testing an hypothesis) but were not convinced that this was the case. If she had been undertaking research we would have expected to see evidence of an outline research proposal made to an educational institution; to have seen some evidence of the research so far undertaken (for example, notes of meetings, letters sent to Helen confirming that she was undertaking research and assistance in the task) but it does not appear anywhere in the documentation. To undertake this type of research without it being for some award or diploma is surprising and unlikely. Why did she need to become actively involved if she was simply undertaking research, for example? Why limit her enquiries to only one agency in the north east? If she was seriously undertaking research she did not approach it in a more logical or methodical manner to elicit the information she was seeking. Even if it had been true that she was undertaking research, from what we see it would have been ill thought out and improperly set up.
32. We are concerned to note that in her statements, whilst YD states that she was doing it for research, there is a clear feeling that she did not see what she was doing was inappropriate and seemed to see no difference between right and wrong in it. If YD is subjectively unable to separate right and wrong behaviour, how can her professional judgments be regarded as sound?
33. In her 133 paragraph position statement, YD makes a number of points. We have considered each of the paragraphs in turn but will comment upon only some of them. We placed no reliance on the evidence of any witnesses as to who the photographs on the Prestige web site depict and we did not rely on the photographs themselves to reach our conclusion.
34. As indicated above, we started with a completely open mind and ignored a considerable amount of the evidence as we found it was unreliable or in direct conflict. Whilst we note what YD says in Paragraph 35 about having to prove her innocence, that was not the approach we took. We started on the basis that we had to be satisfied on a balance of probabilities, bearing in mind the Re H test.
35. YD makes considerable criticism of Ms Anderson. We have not relied on her evidence at all to reach our conclusion. However, we cannot agree with YD's belief that Ms Anderson continued the complaint in order to damage her (YD's) reputation. Having found the e-mails on the computer, Ms Anderson was entirely right to inform the GSCC of what she had found. It was the GSCC and not Ms Anderson who prosecuted this case.
36. In Paragraph 130 of her Statement of 22^nd November 2006, YD makes 21 points. We considered each and every one of them. They are complaints against the Conduct Committee. We did not take into account their decision in reaching our decision nor did we rely on much of the evidence they relied upon. We placed our own weight on the e-mails and reached what we see to be the only possible logical conclusion from the contents of the e-mails. There is nothing wrong (as YD suggests) in the Conduct Committee relying on the evidence of the e-mails to reach its conclusion. That the Committee did is not evidence the burden was shifted to YD as she claims. The e-mails speak for themselves and there can be no rational or logical or credible interpretation placed on them other than the one we reached.
37. We have come to the conclusion that the Conduct Committee was right to reach the conclusion it did in relation to the first limb of the allegation, namely that YD did advertise herself as an escort with Prestige Escort Agency, an internet agency, with links to web sites associated with prostitution. On the second limb we are also satisfied, independently of the Conduct Committee, that in so advertising herself, YD is guilty of misconduct.
38. This means that we now need to consider the penalty imposed on YD by the Conduct Committee. In looking at that, it is important to reiterate that it was not this misbehaviour that led to YD losing her job. Indeed, in considering the evidence, we can find no evidence that she was not doing her job properly. Although it is not part of our remit, we do not fully understand the basis or reasons upon which Ms Anderson decided to terminate YD's employment when she did.
39. The penalty imposed was a two year suspension. We regard that as entirely proportionate in the circumstances as it seems to us it balances the nature of the misconduct against the professional expertise of YD. In the circumstances, we do not regard the penalty imposed as excessive.

ORDER

We dismiss this appeal. Our decision is unanimous.

Mr. Simon Oliver (Chairman)

Ms Margaret Halstead

Dr. Keith White

20^th December 2006