England and Wales Care Standards Tribunal

XY v GSCC [2007] EWCST 855(SW) (25 July 2007)

XY -v- General Social Care Council [2006] 855 SW-SUS
-Before-
His Honour Judge David Pearl (President) Mrs L Gladwin Ms C Joffe
DECISION

Introduction

1. This is an appeal by the Appellant (XY) against the decision of the Preliminary Proceedings Committee (PPC) of the General Social Care Council to impose an interim suspension order on the Appellant. In accordance with a Decision taken by the Tribunal under Regs 18, 19 and 27, no further identification of the ISO is made in this decision.
2. At the hearing before us, Ms N Miszczanyn appeared on behalf of the Appellant and the Respondent was represented by Ms F Morris of Counsel. We have been very helpfully provided with outline submissions on behalf of both the Appellant and the Respondent.
3. The General Social Care Council (Conduct) Rules 2003 states in Rule 5(1)(b) that it shall be the duty of the PPC to consider any complaint(s) against a registrant referred to it and decide – (b) whether it 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 concerned, for the Committee to make an Interim Suspension Order. Regulation 5(4) states that the PPC shall also consider applications made by the Council, at any time, that an Interim Suspension Order should be imposed on the Registrant's Registration, on the grounds that such Order is necessary for protection of members of the public or is otherwise in the public interest, or is in the interest of the Registrant concerned.
4. By Rule 5(5) where the PPC decides that it is necessary to impose an Interim Suspension Order on a Registrant's registration, the initial duration of such an Order shall not exceed six months. By Rule 5(6), where the PPC decide to impose a further Interim Suspension Order in accordance with the provisions set out in Paragraph 12 of Schedule 1, the total period of suspension shall not exceed a period of two years including the period specified in the original Order.
5. Schedule 1 paragraphs 11 and 12 of the Conduct Rules set out the procedures that govern the PPC. Paragraph 12 of Schedule 1 sets out a procedure for Review of an Interim Suspension Order.
6. Section 68 of the Care Standards Act 2000 enables a Registrant made the subject of an Interim Suspension Order the right to appeal to the Care Standards Tribunal. The Care Standards Tribunal may confirm the Order, direct that it has no effect, or it may impose conditions.
7. In her outline submissions, Ms Morris sets out the approach that is to be taken when considering whether to impose an Interim Suspension Order. She submits that the decision-maker (whether the PPC or on appeal the CST) does not decide whether the allegations are true or false but rather whether they justify interim suspension. She submits also that the decision-maker must strike a "fair and proportionate balance between the interests of the practitioner, including his interest in working and the interests of the public, including their interest in protection from unsuitable social workers, and in the maintenance of confidence in the registrant's profession".
8. In this case, the Appellant had written a letter to the GSCC's registration manager in March 2005. In this letter, the Appellant stated that following a six month career break on the basis of the death of his mother and the impact of this on him and on his son, he had decided to leave social work and seek an alternative occupation. He requested that his name be removed from the Register.
9. There was a substantial period of time before the Appellant was written to by the GSCC. In a letter to him dated 28^th September 2005, the GSCC stated that an application for removal had to be considered by the Registration Committee and it asked him therefore to provide evidence that he had left social work and that he had no intention of working in social care in the future.
10. On 4^th November 2005, Local Authority A wrote to the GSCC. Local Authority A stated that XY had been the subject of a disciplinary investigation at the time of his resignation, and that the conclusion of the investigation was that he would have been dismissed if he had not already resigned.

The Respondent's Case

11. In summary form, the necessity for the imposition of the initial ISO and its extension was for the protection of members of the public and further, or alternatively, in the public interest (particularly the interest in maintaining the reputation of the social work profession). Some of the particulars are as follows:

a) The Committee has a duty to protect the public and to act in the public interest. The public has an interest in maintaining the reputation of the social work profession. The reputation may be damaged where a registered social worker misconducts him or herself by acting in breach of the standards of conduct imposed by the Code of Conduct.

b) In the instant case, a number of very serious allegations have been made against the registrant.

c) The failure to notify the Council that Local Authority A had commenced disciplinary proceedings against him amounted to a clear breach of the express duties set out in the application for registration form which the Registrant signed in July 2004.

d) The Registrant has not identified any particular detriment which he would suffer if he were subject to an ISO.

e) The documentary evidence indicates that there is, at the very least, a real and substantial risk that the Registrant had an inappropriate relationship with a service user who was at the time a child subject to a care order; had an inappropriate relationship with a foster carer which itself resulted in the foster carer apparently assaulting the service user; failed to declare these relationships to his employers at the time or to his new employers; met the service user in 2004 with a view to putting pressure on her not to pursue the allegations she had made against him; attempted to contact the service user in 2004 at her place of work; misled his then current employer as to whether he had met with the service user in 2004.

The Appellant's Case

12. The Appellant has responded to these specific matters in the following way:

a) as to (c) above, Ms Miszczanyn submits that it is a matter of interpretation as to whether XY breached his personal declaration. She submits that there was nothing for him to report and, if there were any omissions, this was due entirely to misunderstanding and not to any deliberate decision to withhold information. She draws a distinction between a disciplinary investigation and any disciplinary action resulting from it. She adds further that his subsequent failure to report the matter to the GSCC was due entirely to his mental state at that time.

b) As to (d) above, she stressed that XY has suffered considerable financial prejudice as a result of the Interim Suspension Order. This was confirmed by XY in his evidence before us. He enrolled on a Mental Health Nurse course at the University of Q. As a result of the ISO, he has been suspended from the course and his nursing course maintenance bursary has been withdrawn. His only income at the present time is Single Parent Tax Credits and Child Benefit. He said in evidence to us that he is using his savings which are in danger of being eroded.

c) As to (e) above, XY's representative says that XY denies any inappropriate relationship with a service user, and that visiting the service user in 2004 therefore "is actually neither here nor there". XY admits that he had a relationship with a foster carer but that this was known to his then employer at that time.

13. XY gave evidence to us. He said that his application to have his name removed from the GSCC register was a logical progression from tendering his resignation from the Local Authority, as he had ceased practising as a social worker. He told us that if the ISO were to be lifted, he would hope to be able to resume his Nursing studies. He denied any improper relationship with the service user.

Decision

14. There are two relevant grounds for making an Interim Supervision Order; namely for the protection of members of the public, or otherwise in the public interest. We have decided that the former is not applicable in this case, because we are satisfied that the Appellant does not wish to resume his career as a Social Worker.
15. He was questioned in some detail by the Tribunal, by Ms Morris in cross examination, and by his own representative about his views relating to why social relationships with service users are inappropriate. We have to say that we were disturbed by his answers to these questions, which seemed to indicate that he was not really aware of the reason for the Code of Practice in this area. The answers were troublesome and we have serious reservations about his resuming work as a Social Worker. Thus, if he were to have wished to resume in this career we would in all probability have dismissed his appeal on the basis that an Interim Supervision Order would have been necessary for the protection of members of the public.
16. However, given that XY does not wish to resume work as a social worker, the ground for making an Interim Supervision Order in this case is "in the public interest." We have to strike a fair and proportionate balance between the interests of the registrant and in the maintenance of confidence in the registrant's profession. In making a judgement on this issue, each case must be fact specific. We do not think that this is a case where the "public interest" would demand that there be an Interim Suspension Order. We believe that the imposition of such an Order in this case, with its resultant consequence on the Appellant, was a disproportionate response.
17. This is not to say that we agree with Ms Miszczanyn's analysis of the issues in this case. In particular, we believe that she has taken out of context the comments of the Tribunal in Hollingsworth v GSCC [2006] 788 SW in relation to the distinction between a disciplinary investigation and disciplinary action. It is not necessary for us to comment further on this issue, except to say that it is our view that professionals in the position of XY would be expected to inform the registration authority of disciplinary investigations of the kind that occurred in this case. The Tribunal in Hollingsworth considered that some clarification by the GSCC "would be helpful to all". We do not demur from this suggestion, but in this case, given the nature of the investigation, it was in our view incumbent on XY to inform the registration authority. Failure to do so is a ground of concern, but on the facts of this case the concern is not sufficient for the sanction of imposing an Interim Supervision Order.

Accordingly, and for the reasons that we have set out above it is our unanimous decision that the Interim Suspension Order cease to have effect.

APPEAL ALLOWED

His Honour Judge David Pearl

(President)

Mrs L Gladwin

Ms C Joffe

25 July 2007