England and Wales Care Standards Tribunal

Bradford v The General Social Care Council [2007] EWCST 792(SW-SUS) (19 January 2007)

CHRISTOPHER BRADFORD

Appellant

-v- GENERAL SOCIAL CARE COUNCIL

Respondent

[2006] 792.SW-SUS Before: Mr Mark Rowland Ms Margaret Halstead Dr Keith White
DECISION
1. This is an appeal against the decision of the Preliminary Proceedings Committee of the General Social Care Council to impose an interim suspension order on the Appellant on 19 September 2006. At the request of both parties, we have dealt with the appeal without an oral hearing. Although we have been favoured with a twenty-two-page submission on behalf of the Respondent, supported by a thousand pages of documents, the case is really very straightforward.
2. The facts can be stated shortly. The Appellant was employed by a county council as a senior practitioner and approved social worker in adult mental health services. On 25 October 2004 he assessed the complainant who had been referred to the mental health team by her general practitioner and he decided to keep her case as her care co-ordinator. It is not now in dispute that on three occasions in May and June 2005 he had sexual intercourse with her, twice in a residential respite centre and once in her marital home. On 15 June 2005, the day after the last occasion on which they had sexual intercourse, she confessed to her husband and, on the following day, she and her husband informed the appellant's line manager in the mental health team. The police were involved and a formal complaint was also made to the mental health team. At first, the Appellant denied that he had had a sexual relationship with the complainant and he maintained this position when interviewed by the police even after he had been told that they had obtained forensic evidence in respect of the last occasion when sexual intercourse had taken place. He was charged with three offences under section 38 of the Sexual Offences Act 2003 alleging that he had had sexual intercourse with the complainant when she had had a mental disorder and he had been involved with her care. On 1 June 2006, he pleaded guilty at Bournemouth Crown Court to one count, that relating to the last incident of sexual intercourse, and was sentenced to seventeen months' imprisonment, the judge saying that "[w]hat you did to that lady was devastating to her". The other two counts were ordered to lie on the file. On 20 October 2006, the Court of Appeal (Criminal Division) dismissed his appeal against sentence (Regina v. Bradford [2006] EWCA Crim 2629). Meanwhile his employment had been terminated. It is unnecessary for us to consider when and by what legal mechanism this occurred. The Appellant is still in prison. His expected release date is 14 February 2007.
3. The Appellant had, of course, been registered as a social worker by the Respondent when Part IV of the Care Standards Act 2000 came partially into force so as to require social workers to be registered. On 29 March 2006, the complainant made a complaint to the Respondent. This was duly referred to the Preliminary Proceedings Committee under the General Social Care Council (Conduct) Rules 2003. On initial consideration on 24 May 2006 under paragraph 3 of Schedule 1 to the Rules, the Committee was satisfied that the complaint was one that "calls into question the suitability of the Registrant to remain on the Register" and so it adjourned the case to a second meeting. The Committee next met on 27 June 2006 but decided to adjourn because the Appellant had not seen all the material before the Committee and by then he was in prison and so had been unable to attend the hearing. The case came back before the Committee on 19 September 2006, when it decided to impose an interim suspension order for a period of six months, to be reviewed at a review hearing on or before its expiry. It is against that decision of the Committee that the Appellant now appeals. We understand that the review hearing is expected to take place on 14 February 2007. (As that is the very day when the Appellant is due to be released, the Committee may wish to reconsider its suitability as the date for the hearing.)
4. Paragraph 6 of Schedule 1 to the Rules provides –

"(1) At the second or subsequent hearing of the Registrant's case, the Committee may –

(a) refer the case to the Conduct Committee;

(b) impose an Interim Suspension Order on the Registrant's registration if satisfied that such action is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the Registrant;

(c) direct that further investigations should be undertaken and adjourn the matter;

(d) take no further action and conclude the case.

(2) The Committee shall not refer a complaint to the Conduct Committee unless it is satisfied that there is a real prospect of a finding of Misconduct in relation to the complaint.

(3) …"

Although paragraph 6(1) says nothing about adjourning in the interests of justice and neither does any other relevant provision in the Rules, a power to adjourn in the interests of justice is plainly to be implied.

5. By rule 5(5), the initial duration of an interim suspension order shall not exceed six months. Paragraph 12 of Schedule 1 permits an interim suspension order to be reviewed and provides that, on a review, the order may be extended or revoked or added to by a further order commencing on the expiry of the existing order. Rule 5(6) imposes a maximum aggregate period of two years. Rule 13 provides that, if a case is referred to the Conduct Committee and a finding of misconduct is made, the registrant may be removed or suspended from the register. Presumably, the Conduct Committee can have regard to the length of time for which an interim suspension order has been in force when considering whether and for what period to impose a suspension order following a finding of misconduct. The Conduct Committee, however, has no power to impose or review an interim suspension order and so it appears that the Preliminary Proceedings Committee retains jurisdiction to impose or review such an order notwithstanding that "the case" in question has been referred to the Conduct Committee.
6. The Appellant asserts, in his grounds of appeal, that he had a "6-week consensual relationship" with the complainant at a time when he himself was under some pressure. In his comments on the Respondent's schedule of allegations, he admits that he did have sexual intercourse with the complainant on three occasions, as she has always alleged. He says she was only mildly depressed, had hidden the fact that she was harming herself, had full mental capacity, and had made the advances. He does accept that he should have refused the advances. However, he says he has a good record as a social worker and that he wishes to return to practice as a social worker in the future. Meanwhile, he says, it is not "necessary for the protection of members of the public" to impose an interim suspension order. He points to a prison service assessment suggesting that there is a very low risk of him re-offending and says that, anyway, he will be in prison until 14 February 2007. Thereafter, he says, he will not attempt to practise as a social worker until he has "met with the GSCC Committee members" and he "will fully abide by their authority and decisions".
7. The Respondent asserts that the Appellant's conduct was manifestly wrong, as evidenced by his plea of guilty to a criminal offence and the sentence imposed on him. He was professionally responsible for a woman whom he knew to be depressed and abused his professional relationship to pursue a sexual relationship with her. It is submitted that he fostered a dependency in her on him and when he was not available she caused herself harm by cutting herself as she had not done for many years and she took overdoses of medication. The Respondent also argues that the Appellant's initial denial of a sexual relationship raises questions about his integrity and that his grounds of appeal show a lack of insight. In all those circumstances, the Respondent says that an interim suspension order is necessary both for "the protection of members of the public" and in the general "public interest", which terms it is submitted are interchangeable.
8. We do not accept that "the protection of members of the public" is a term interchangeable with "the public interest". Council for the Regulation of Healthcare Professionals v. General Dental Council and another [2005] EWHC 87 (Admin), upon which the Respondent relies, was decided in a different statutory context. Here, the language of paragraph 6(1)(b) of Schedule 1 to the Rules makes it clear that "the protection of members of the public" is a narrower concept than "the public interest". Although drawing the distinction between the concepts is of limited practical significance in that it should not make any difference to the outcome of a case, it is helpful when one comes to analyse what it is that makes an interim suspension order necessary in a particular case. The concept of "the public interest" includes the concept of "the protection of members of the public", which is no doubt mentioned only to stress its importance. That "the public interest" also includes the maintenance of public confidence in the profession is clear not only from the General Dental Council case but also from Council for the Regulation of Healthcare Professionals v. General Medical Council and another [2004] EWHC 1850 (Admin) and Wentzel v. General Medical Council [2004] EWHC 381 (Admin), to which the Respondent has also referred us, and from the terms of paragraph 25(2) of Schedule 2 to the Rules to which we were not referred. The issues are often related because, for instance, public confidence in the profession will not be maintained if the profession, as represented by the General Social Care Council, does not adequately protect members of the public. On the other hand a social worker may be suspended or removed from the register even though he or she poses no risk to the public because only a person who "is of good character" may be registered in the first place (see section 58(1)(a) of the Care Standards Act 2000). If a person ceases to be of good character, it is logical that his or her name should be removed from the register on that ground alone, at least until his of her good character can be said to have been regained.
9. All three of the cases cited to us were concerned with the penalty to be imposed once misconduct has been found proved by a professional conduct committee. So too is paragraph 25(2) of Schedule 2 to the Rules. Where an interim suspension order under paragraph 6(1)(b) of Schedule 1 to the Rules is concerned, regard must usually be had to the fact that the question whether or not there has been misconduct has not been determined by the Conduct Committee. The element of uncertainty there is as to whether misconduct will be proved and whether, if it is, the registrant will be removed or suspended from the register has implications for the approach to be taken when considering paragraph 6(1)(b) of Schedule 1 both to the requirement to protect members of the public and to the question of what is in the public interest.
10. However, where a person has been convicted of an offence and there is no pending appeal against conviction, the position is rather different. Indeed, at first sight, rule 13(1)(c) suggests that the fact of a conviction is a circumstance permitting removal or suspension from the register independent of a finding of misconduct by the Conduct Committee, which is such a circumstance by virtue of rule 13(1)(a). That cannot be the true effect of rule 13(1)(c), because every other provision in the Rules expects or requires there to be a finding of misconduct before any sanction can be applied. Presumably, therefore, rule 13(1)(c) should be read as providing that a finding that there has been a conviction is to be taken as a finding of misconduct. In addition, paragraph 11(5) of Schedule 2 to the Rules provides that, before the Conduct Committee, "[t]he findings of fact and certification [sic] of conviction of any UK Criminal Court … shall be conclusive proof of the facts or conviction so found", which is presumably intended to have the effect that the Committee cannot go behind a conviction and must find the particulars of the offence proved.
11. It must follow that, where there is no dispute that the subject matter of a complaint has led to the conviction of the registrant, the Preliminary Proceedings Committee can be reasonably certain that the Conduct Committee will find there to have been misconduct.
12. However, not every finding of misconduct based on a conviction will lead to removal or suspension from the register because, by virtue of paragraph 25(2) of Schedule 2 to the Rules, the Conduct Committee must have regard to the seriousness of the misconduct and the principle of proportionality as well as the need to protect the public and the need to maintain public confidence in the profession. Criminal offences vary in seriousness and some have less relevance to a person's suitability to practise as a social worker than others.
13. There will be some cases, therefore, where the Preliminary Proceedings Committee considering whether or not to impose an interim suspension order will be very uncertain as to whether the registrant will be removed or suspended from the register by the Conduct Committee even where he or she has been convicted of an offence. That will be highly relevant to the question whether an interim suspension order should be imposed, at least in a case where such an order is not required for the protection of members of the public. It seems to us that, absent any requirement to protect members of the public, it will seldom be necessary to impose an interim suspension order in the public interest if the Preliminary Proceedings Committee does not consider it likely that a removal order or, possibly, a suspension order for a substantial period will be imposed by the Conduct Committee.
14. On the other hand, there are some cases where misconduct is so serious that the Conduct Committee would clearly be failing in its duty to take proper account of the public interest in maintaining confidence in the profession if, despite the lack of any continuing need to protect the public, it did not remove the registrant from the register or suspend him or her from the register for a substantial period in addition to any period served under an interim suspension order. Where, due to his or her having been convicted of an offence, there is no doubt that the registrant is guilty of such serious misconduct, it seems to us that the Preliminary Proceedings Committee should generally find that the public interest makes it necessary to impose an interim suspension order. The fact that the registrant may have no intention of practising as a social worker is irrelevant. Unless there are exceptional circumstances, the public interest will require an interim suspension order to show that the misconduct of which the registrant is indisputably guilty is regarded as intolerable in a member of the profession.
15. This is such a case. It is not in dispute that the Appellant has been convicted of an offence under section 38 of the Sexual Offences Act 2003 that arose out of his employment as a social worker and that he has been sentenced to seventeen months' imprisonment. That substantial period of imprisonment has been upheld by the Court of Appeal (Criminal Division) and must be taken to reflect the seriousness of the offence. We do not regard it as realistic to think that the Conduct Committee would not consider it necessary for the Appellant at the very least to be suspended for a period greater than the length of time likely to pass before his case is determined by the Conduct Committee. Serious consideration will no doubt be given to the imposition of a removal order.
16. That is a sufficient ground upon which to dismiss this appeal.
17. However, it may be helpful if we make it clear that we take the view that an interim suspension order is also necessary in this case for the protection of members of the public, notwithstanding that the Appellant is still in prison. Even if we accept, for the purposes of this decision, the Appellant's version of events where it differs from those of the complainant and other witnesses, it remains a fact that he failed to protect her. He knew she was vulnerable (although there appears to be a certain amount of dispute as to how much he knew or ought to have known) and yet he allowed her to engage in an emotional relationship with him when they were both married to other people and had children and when, as far as we can see, he had no intention of committing himself to her. His grounds of appeal do not suggest to us that, even now, he realises the enormity of his wrongdoing. He says that he did not know that what he was doing was a criminal offence. He does not say whether he knew that it was contrary to paragraph 5.4 of the General Social Care Council's code of practice for social workers (issued in 2002) for a social worker to form an "inappropriate personal relationship" with a "service user". Although he acknowledges that he should not have formed the relationship with the complainant, he does not indicate whether that is because he accepts that it was professional misconduct. He mentions only his desire to repair his own marriage. There is no acknowledgement that he knew or should have known that the relationship would harm the complainant and there does not appear to be even an acknowledgement that his conduct did harm her. He stresses the point that she consented to the acts of sexual intercourse, but that is not the point raised by the allegation of misconduct. The complainant has never suggested that she was not a willing participant in the relationship and the judge expressly sentenced the Appellant on the basis that he had not persuaded her into it. The misconduct was in the Appellant giving his consent to the formation and continuation of the relationship. The Appellant's grounds of appeal also fail to address the point that he lied both to his line manager and to the police when he initially denied any sexual relationship. In his comments on the Respondent's schedule of allegations, he refers to advice from his solicitor that he should not make any admissions. However, such advice could not entitle him to lie.
18. Because there has been no oral hearing, we have not been able to ask the Appellant about these matters and it is conceivable that he would have been able to allay some of our concerns. However, on the material before us, we have considerable doubts as to the Appellant's appreciation of his duties towards those for whose welfare he might be responsible as a social worker and we also have considerable doubts as to his integrity and his preparedness to be open with his line managers when facing difficulties. Until such doubts are resolved, we are satisfied that there would be a risk to members of the public if the Appellant were to practise as a social worker.
19. There is obviously some force in the Appellant's submission that it is not necessary to protect members of the public by suspending him from the register while he is in prison. It seems to us that, while a person is in prison, an interim suspension order will generally be required, if it is required at all, only on the wider public interest ground we have already considered above. However, in this case, it has always been expected that the Appellant will be released while the current interim suspension order remains in force. When it was imposed in September 2006, the Appellant's appeal against sentence had not been heard and so the Preliminary Proceedings Committee could not have been sure that he would not be released rather earlier than 14 February 2007. Now, that expected date of release is imminent and the interim suspension order remains necessary for the protection of members of the public even though the Appellant is currently still in prison.
20. Finally, we wish to make one comment about the procedures before the Preliminary Proceedings Committee. It is obvious that an interim suspension order can be imposed only while a complaint alleging misconduct is under active consideration. It is also important that the imposition of an interim suspension order should not lead to the determination of a complaint being delayed. In this case, the Preliminary Proceedings Committee gave no consideration to the progress of proceedings relating to the complaint when imposing the interim suspension order, no doubt because it was not invited to do so by the solicitor presenting the Council's case. It may be that it was considered by the Council that the case was not ready for referral or it may be that it was thought that referral should not take place until the Appellant was released and would be able to attend a hearing. We suggest that the Committee should always be made aware of when it is expected that the question of referral will next be considered by the Committee, unless there has already been a referral. We also suggest that some thought should be given to whether the main proceedings on the complaint should always be the subject of formal adjournments until finally disposed of by the Committee by way of a referral or a decision to take no further action. The question of the need further to adjourn the case (which will not generally be in issue) would then usually arise at the same time as the question whether to impose or review an interim supervision order. In any event, in this particular case, we hope that the complaint will be referred to the Conduct Committee at the same time as the interim supervision order is reviewed or shortly thereafter.
21. We dismiss this appeal.

Mark Rowland

Margaret Halstead

Keith White

Signed by the Chairman on this 19th day of January 2007.