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Cite as: [2007] EWCST 1098(SW)

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DSH v General Social Care Council [2007] EWCST 1098(SW) (18 March 2008)

DSH

-v-

GENERAL SOCIAL CARE COUNCIL

[2007] 1098.SW

Before

Miss Maureen Roberts (Nominated Chairman)

Miss Margaret Halstead

Dr Keith White

Heard at the Care Standards Tribunal London

27, 28 and 29 February 2008

DECISION

Representation

1. DSH was represented by Mr Eddie Jaggers from UNISON. The Appellant gave evidence to the Tribunal.

2. The General Social Care Council was represented by Miss Eleanor Grey of Counsel instructed by Ms Lorraine Reed of Bevan Brittan Solicitors.

Evidence

We heard evidence from GS a manager of a MIND facility in the area where the Appellant worked, Ms Kathryn Hollinrake and Ms Gail Gibson, both employed by the Respondent.

Appeal

By a Notice of Decision dated 6 June 2007 the Appellant was informed that the Registration Committee had decided to refuse his application for registration. The reasons given for refusing the application related to:

a. The relationship which the Appellant had embarked upon with 'J' a user of mental health services; and

b. The Appellant's failure to make an application for registration before 1 April 2005, when the title "social worker" became a protected title. (His application was made on the 6 October 2006).

DSH (the Appellant) appeals under Section 68 of the Care Standards Act 2000 (the Act) against the refusal of the General Social Care Council (the Respondent) to register him as a social worker on the Register maintained under section 56(1) of the Act.

A Restricted Reporting Order was made under Regulation 18(1) at a directions hearing on 22nd November 2007, and this Order was continued at the conclusion of the hearing. The decision is published under Regulation 27 in an anonymised form to protect the private lives of the Appellant and the other person involved in the case. Two members of the public attended the hearing on the second day and one person on the third day. They were informed of the confidentiality of the hearing and the reporting restrictions.

Facts

The Appellant who is now aged 50 qualified as a social worker in 1998. Prior to that he had worked as a carer for six years for a local authority. During his training in University he had completed a placement in a private mental health hospital (B Clinic). When he qualified the facility said that they would like to employ him and after the post had been advertised he obtained the job as the social worker at the unit. He was the first social worker to be employed by them and worked as the sole social worker on the unit. The hospital had a secure unit, an open ward and a rehabilitation unit. The Appellant was involved on all these units.

In 2004 the GSCC ran a number of campaigns to advertise the commencement of the new social worker register. They started by encouraging social workers to register voluntarily in the knowledge that registration would in due course become compulsory. The Appellant obtained an application form in October 2004 and began to complete it however he did not get the necessary validation or second endorsement and the form was never sent to the GSCC. Subsequently another form was obtained and completed in October 2006. This was sent to the Respondent.

During March 2006 the appellant escorted two of his male patients from the rehabilitation unit to an exercise class at a local MIND facility. The classes were held once a week and started on the 24th January 2006. After the third session the Appellant received a call from the centre manager to say that there had been a complaint that one of his patients had wandered into the female changing room. He said that he would ensure that this did not happen again.

After the fourth session of the exercise class J approached the Appellant and said that she wished to talk to him about the incident involving his client. She did not want to talk at the centre and the Appellant agreed to go to a café after the session to discuss the matter. At this first meeting J told the Appellant that she was a manic depressive, a single parent with a daughter. She said that she had suffered from family abuse when she was young and had been raped while at work at a police station.

She said that she was O.K. now and acted as a volunteer for MIND and for the local hospice; she was on medication and saw her consultant for this reason. She drove a car. The Appellant was very impressed with her coping skills and thought that she was very positive and coping with her situation very well. He told her some of his family history including that he was separated and that he had a daughter.

After an hour as he was leaving J became upset and said that she had a brain tumour and possibly only a year to live. She was worried and did not know how to tell her daughter. The Appellant said that he would try and get some information to help J. A week later he telephoned her and they met in a café. He gave her the information about organisations that might help.

They continued to meet and at the second meeting there was a discussion about their relationship, boundaries and the fact that the Appellant was a social worker. J was adamant that she was not his patient or client and that their relationship was a private matter between them. After the fourth or fifth meeting the relationship became a sexual one. The Appellant had asked J to tell her support worker and doctor about their relationship and J assured him that she had done so. He said that he would like to go with her to hospital appointments to support her in her physical health needs. J always refused this.

In late July/early August 2006 J became unwell and presented to the Appellant as manic. She sent text messages and threatened him 'to take him to the F… cleaners'. She found out where his ex partner and daughter lived and called there and sent texts to his ex partner. The Appellant tried to talk to J and help her but by 8th August 2006, J had been to his work place and made unspecified allegations to a receptionist who told the hospital director of her visit. As a result the Appellant spoke to the hospital director and wrote a handwritten report for the director at the clinic to explain what had happened. The Tribunal saw this report and later accounts by the Appellant of what had happened.

The Appellant was suspended from work and the matter was investigated by the local PoVA committee and the Police. No action was taken against the Appellant by those authorities. PoVA took the view that the Appellant had not been responsible for intimate care of J and the police concluded that the relationship was consensual. On 5th January 2007 after an internal disciplinary investigation the Appellant was dismissed. However on appeal to the regional director he was re-instated to work as a social carer on 19th January 2007 on the understanding that he would be restored to his social work job should he be registered with the Respondent.

Meanwhile the Appellant had obtained a second application form for his registration with the GSCC. He completed it and dated it 6th October 2006. At that time he was suspended and the then hospital director did not endorse the form but put in an explanatory letter. After the reinstatement of the Appellant to his post by his employer, this information was passed to the GSCC.

The Respondent's registration section passed the application to the conduct section who after investigation and receipt of references notified the Appellant that they were recommending that he was not registered. The Notice of recommendation noted that social workers had to be of good character and conduct both within and outside the work place. It also found that the Appellant did not accept that the relationship had been inappropriate and did not accept responsibility for the relationship. He responded to this notice and some further references were obtained and submitted. We saw these documents.

The registration committee met on the 5th June 2007 and concluded that the Appellant was not of good character because of his relationship with J and that he should not be registered. We set out their grounds and our findings in full in the appendix to the decision. We note that the hearing was a paper hearing. There had been an indication that the Appellant was going to ask for an oral hearing but in the event neither the Appellant nor his union representative applied to make oral submissions.

The Law

The GSCC was formed by virtue of Section 54 of the Care Standards Act 2000 ("the Act") with the responsibility for promoting in England high standards of conduct and practice and training among social workers.

ii. By section 56 of the Act the GSCC became responsible for making and maintaining a register of social workers. Section 57 of the Act provides that applications for registration shall be made to the GSCC.

iii. Section 58 of the Act sets out the grounds upon which applications shall be granted.

(1) If the [Respondent] is satisfied that the Applicant -

(a) Is of good character;

(b) Is physically and mentally fit to perform the whole or part of the work of persons registered and any part of the register to which his application relates;

(c) Satisfies [the conditions as to qualifications, training, conduct and competence set out in sub-sections (2) and (3)],

it shall grant the Application, either on unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it.

Section 60 empowers the Respondent by rules to make provisions about the registration of persons under Part IV: see the General Social Care Council (Registration Rules) 2005. Rule IV (Application for Registration) states (so far as material) as follows:

1. An Application for Registration should be made in writing and shall specify each part of the register in which registration is sought and -

(a) Shall provide the following information - ….

(ii) Details of any criminal convictions including 'spent' convictions, formal cautions issued by the police and any pending criminal proceedings. … …

(iii) The Applicant shall provide in connection with the Application –

(a) Where the Applicant is a social worker, evidence as to the Applicant's -

(i) Good character as it relates to the Applicant's fitness to practice the work expected of a social worker (including endorsements from an employer …);

(x) The Respondent [shall grant an Application for Registration]

(a) It is satisfied as to the Applicant's good character and conduct;

Section 68 of the Act provides the right of appeal against a decision to refuse an application for registration to the Care Standards Tribunal.

The onus is on the Appellant or the Applicant before the Registration Committee and the Tribunal to demonstrate that he is a person who meets the requirement of section 56: Jones -v- Commission for Social Care Inspection [2004] EWCA Civ 1783 at [13-15] and CR -v- General Social Care Council [2006] 0626. SW 23.

Preliminary Point

The Code of Practice which the Respondent must take into account when making decisions on what social workers must comply with, sets out the conduct expected of social care workers by reference to a number of principles.

The main breach alleged was of the GSCC's code of practice rule 5 which states that 'As a social worker, you must uphold public trust and confidence in social care services. In particular you must not, 5 .4 'Form inappropriate personal relationships with service users'. The Appellant had argued strenuously in his internal disciplinary hearing and before the Registration Committee of the GSCC that J had not been a service user in that she had never been a patient or client of his or of the clinic where he worked and that therefore he had not breached the code.

The Respondent accepted that J was not a client of DSH and he had no direct professional responsibility for her wellbeing or direct access to confidential information about her. Nevertheless she was a service user in the sense that she was in receipt of mental health services from both MIND and her local NHS Mental Health Services.

In the end the Appellant accepted that J had been a service user and the definition was not critical to the decision of the Tribunal. We made a finding at the beginning of the hearing which we now record.

We note that there is no one definition of service user. For example there are different definitions in the Care Home regulations and the Nurses Agencies regulations. We also noted the comments about service users in the Respondent's Code of Practice.

In this context J was a service user. She received mental health services from the local health authority; she was under the care of a consultant psychiatrist and had a support worker. It was as a service user that she attended the MIND facility where she met the Appellant who was present in a professional capacity.

The evidence

The Tribunal had read prior to the hearing all the background material, references and witness statements.

We heard from GS a senior worker at the MIND facility who described the activities of the centre and her assessment of J whom she described as emotionally fragile. She said J was very anxious, hurried and got more worried about things than would be expected. She said J was a regular but intermittent attender of the centre. When she had seen J on 24th July 2006 she had been very distressed.

Ms Hollinrake is presently the Conduct Manager of the Respondent's Suitability Assessment Service. Her predecessor in post had handled the case. She had read the file and took the view that as J was a service user of mental health services in the area where the Appellant worked she was 'off limits'. She was reluctant to look at hypothetical cases and said that each case was looked at on its merits and in its own context. She said that if she had been supervising the Appellant she would have told him to stop the relationship with J and would have viewed the matter as a disciplinary issue.

Ms Gibson is Head of Registration at the GSCC. Her section deals with the processing of all applications for registration to the GSCC. There are over 85000 social workers registered .She described the campaign organised by the respondent to advertise the new register in social work magazines and at conferences. She stated that all local authority and NHS bodies were circulated with the information, but that private hospitals had not been circulated. Finally she confirmed that late application was not fatal to the applicant provided there was an explanation for the late submission.

We also heard from the Appellant. He repeated his involvement with J: the fact that she presented to him as very able and articulate; coping with her life in a very admirable way. He clearly admired her and said he had made a decision to support her and help her through what she had said was a terminal illness; she had said that she might have only a year to live.

He felt that as she had never been his patient or client there was no breach of ethical codes by befriending her. He also considered that letting her tell professionals about their relationship and not making contact himself, was abiding within boundaries of confidentiality.

The Appellant referred to the Council for Healthcare Regulatory Excellence guidelines (CHRE guidance) which are the reference for health care workers and said that he had not breached these rules. He acknowledged that the rules of conduct for social workers is contained in the GSCC code and that this is the code he should have complied with.

The Appellant found it hard to focus his answers succinctly on the questions put to him, but we accept that this was due to his own anxiety and his need to try and explain the situation as it appeared to him. He was not trying to deceive.

Initially we noted that in his report to his hospital director he was angry and blaming J. He said that this was because he felt misled by her and her treatment of his family. He also felt he was never informed of the allegations being put to the PoVA meetings or given a chance to put his side of events.

With respect to the issue of late registration he had initially blamed his employers for not ensuring that this was done, however he accepted that it was his responsibility to ensure that he was registered.

In his submissions to the Respondent he concluded "I have spent 15 years of my working life in social care and social work. I have worked effectively with service users throughout this period. I am committed to social justice and improving the lives of service users. I recognise that my conduct in this instance, has seriously fallen short of professional expectations and I feel a great deal of remorse about this. I have learnt from this and would understand if conditions were attached to my registration. I would hope that some consideration be given to the references submitted by colleagues in support of my suitability to be accepted on the GSCC register." The references were very supportive of the Appellant and without reservation as to his exemplary work as a social worker.

In his evidence the Appellant said " I am so, so sorry for what occurred, I am guilty of being naïve and breaching boundaries; it has brought home to me that I was stupid and I was not as pro-active about registration and supervision as I should have been. I was remiss, I wasn't as proactive as I should have been".

Previous decisions by the Respondent and the Tribunal

The Respondent submitted evidence of decisions of its own Conduct Committee, and drew attention to the case of Mr Atkins in particular. This decision by the Respondent in November 2007 was based on facts reasonably similar to this case. In Atkins the social worker had formed a personal relationship with a former patient of his with whom he had not had contact for some nine months. In that case Mr Atkins had asked himself similar questions to the ones raised in this case; was the woman a service user, was his relationship inappropriate. In Atkins the woman involved was also a work colleague. In the Atkins case the appellant was allowed on to the register with an admonishment on his record for nine months.

The other cases all involved cases where the social worker concerned had a direct professional responsibility for the care of the service user concerned (either because he was the allocated social worker for that person, or, in one case, for her children). These were not as relevant in these deliberations.

We also looked at the recent decision of the Tribunal in Ben Neil De Almeida v GSCC [2007] 1000.SW. This case involved an applicant with depression and a past history of alcohol dependence. There was also an issue as to whether he had fully disclosed the matters on his application form. After hearing the Appellant, and the Respondent, the tribunal held that he was of good character and ordered the Respondent to register him with conditions for the three year period.

It was put to us that the Tribunal did not have the power to order the Respondent to place an appellant on its list but can recommend such a step. We agree with this and this approach is reflected in the order we have made.

Tribunal's conclusions with reasons

There is no disagreement about the core issues in this case, namely that the Appellant entered into an inappropriate relationship with a service user and is therefore in breach of the GSCC Code 5.4. And that he registered outside of the GSCC deadline.

The purpose of the legislation is to introduce control and regulation of social workers in the interests of those requiring and using their services together with the interests of the community as a whole. We note that registration is not to do with determining disciplinary matters or punishment.

The Tribunal accepts that the Appellant had an inappropriate relationship with J who was a vulnerable person and a service user of the mental health services in her area. He had sufficient information about her after their first meeting to make him aware of her vulnerability. She was not a patient or client of his but he had met her in his professional capacity and he should have sought help or advice or supervision to discuss the situation.

The Appellant says that J appeared strong and confident and that he was respecting her rights to a private life and to make decisions. With hindsight he now agrees that he should have been more proactive in checking that she had told her team about their relationship.

We note that he was working as a sole social worker in a mental health setting. He had a busy work load which included supervising student social workers. He had no supervision. It had been promised when he started work but had not materialised. Possibly he should have insisted on this but he said that making such demands was seen as complaining and was frowned upon. He acknowledged that he should have got advice. We note in passing that the Notice of Recommendation says that the arrangements for the applicant's supervision 'appear to have been shambolic'

He challenged the GSCC in respect of the definition of the term "service user" and whether his relationship was inappropriate. Due to working in a health service environment, he was of the view that as long as the patient/client was not in the direct care of him or the organisation that employed him, such a relationship was not inappropriate. This is a narrow interpretation that does exist in areas covered by the CHRE. Furthermore the Appellant said that he was given this narrow interpretation by the University he studied at to gain his social worker qualification.

We accept that the Appellant sincerely believed, at the time, that he was not acting outside of Code 5.4, however, he has reflected and accepts fully that his actions crossed the boundaries. He also realises that J may have been affected, which he never intended or expected.

We accept that his late application for registration is not fatal to his application. We do not accept that he was unaware of the deadline and the requirement to apply but that through pressure of work and lack of peer support he failed to see the importance of applying in time. The register was a new requirement. We are not dismissing the appeal on this ground but would remind the Appellant of his personal responsibility to ensure that he complies with all professional requirements.

The tribunal consider that the Respondent's decision was understandable. They did not have an oral hearing, and focussed on the inappropriate relationship between the Appellant and J. We do believe that they failed to take sufficient account of the references that were overwhelmingly in favour of the Appellant and his expressions of remorse. They also appear to have discounted the fact that the Appellant was re-instated at work by his employer, albeit as a social care worker, pending his registration as a social worker. We have set out in an appendix to this decision the Respondent findings and those of the Tribunal.

In addition we weigh the fact that the Appellant while he had been in the caring professions for 18 years, only qualified as a social worker in 1998 and has worked at the same mental health independent establishment during his student training and since qualifying. He has had no social work supervision. He has been guided in ethical matters by the CHRE standards and medical convention of boundaries between health care workers and their own patients. He accepts that this is the wrong guideline for him in his profession as a social worker.

, He was initially dismissed by his employer but at appeal he was reinstated as the employer accepted arguments about J not being a patient at B clinic, the Appellant not having supervision and that the employer had not helped with registration. The employer has agreed to put in place proper supervision if DSH secures his registration.

We note that the Appellant's registration was refused on the grounds that he was not of good character. We find this is not made out and we find that the Appellant is of good character. By his own admission he acted foolishly, crossed boundaries and had an inappropriate relationship with J. However weak and foolish this may have been it was not done with ulterior or hidden motives. He had strong feelings for J, wanted to help her and was prepared to stand by her to the end. He has an exemplary work record, supportive references and this was an isolated incident.

In giving evidence the Appellant showed remorse for his actions and a willingness to attend training courses to fully understand the boundaries that a social worker must work within. He said that his life has and is about being a social worker. We see little risk that he will ever make such an error of judgement again.

We therefore find on the balance of probabilities that the Appellant has shown he is of good character.

Our decision is unanimous

Order

The Tribunal allows the appeal and recommend to the General Social Care Council that they register DSH as a social worker subject to such conditions that they may impose: we would suggest the following as the minimum requirement.

For the period of his three-year registration he must:

Undertake such training as may be directed with special reference to ethics and professional boundaries.

Not to supervise social work students

To ensure, and provide evidence, that he is receiving regular and appropriate supervision, if necessary by an independent social worker at his own expense.

Miss Maureen Roberts

Miss Margaret Halstead

Dr Keith White

Date: 18^th March 2008

Appendix

The Respondent's reasons and the Tribunals' findings

We set out the findings of the Respondent's Committee and our response to those findings in the light of the evidence that we heard. The Tribunal response is in italics.

The reasons for the Respondent's registration Committee decision were as follows:

a) The Committee was not satisfied that you are of good character for the purposes of registration under s58 of the Care Standards Act 2000 (the Act). For the reasons recorded in this decision we do not agree with this conclusion. We find the Appellant to be of good character. He has made mistakes, acted inappropriately and acknowledges those failings. He has excellent references in his support and an unblemished record at work.

b) You attended the MIND group in your professional capacity escorting two service users. The Committee, having considered the evidence carefully, has concluded that when J approached you for advice about one of these service users, she did so on the basis that you were a social worker. The Committee's view is that your first contact with J was in your capacity as a social worker (although you were not then registered). We agree with this finding.

c) In your early conversations with J she revealed extensive information about her mental health history, various distressing experiences and her current state of physical health, which should have led you, given your knowledge and expertise to the view that she was vulnerable and should have alerted you to the possible manifestations of her illness. Taking medication seeing a mental health professional on a monthly basis are indications of ongoing vulnerability. We agree with this finding.

d) You had an inappropriate sexual relationship with J for a number of months. The Committee does not accept that this was an equal relationship. Section 5.4 of the Codes of Practice for Social care Workers (the Codes) prohibits forming inappropriate personal relationships with service users. The Committee acknowledges that you had no direct professional responsibility for J's care but finds that she was a service user of mental health services and that your conduct breached this part of the code. We agree with this finding. We also find that the Appellant accepted that this was the case at the Tribunal hearing.

e) You discussed with J your role and position at AB Clinic and boundaries and you suggested informing the MIND facility organiser (although this did not happen). J agreed to inform her psychiatrist about your relationship. The Committee's view is that these conversations demonstrate that you knew or suspected that this relationship was inappropriate and was an abuse of your position. The tribunal accept that the Appellant discussed the issue of boundaries involved with J but we do not accept that at that time he believed or knew the relationship to be inappropriate or abusive.

f) The Committee cannot determine for certain whether this relationship caused harm to J, but it notes that on admission to hospital at the end of the relationship, J's psychiatrist indicated that she was the most ill that she had ever been. The Committee considers if you had exercised your duty of care, and acted in accordance with Section 4.3 of the Codes (to take steps to minimise the risks of service users from doing actual or potential harm to themselves or other people), J's mental health deterioration might have been addressed at an earlier stage. This further illustrates that the relationship confused personal boundaries. From the evidence that we had read J's consultant said that she was the most ill he had seen her. The Appellant had no professional duty of care to J. We accept that the Appellant had tried to get J help when he realised that she was becoming unwell. The Appellant said that the B clinic director had contacted the CMHT, and that the delay in her being seen was due to staff being on holiday.

g) It was your responsibility as a professional to establish and actively maintain clear boundaries especially sexual boundaries, with J. Vulnerable service users should be able to attend support groups and feel safe and protected from exploitation. The Committee has been concerned by your explanation provided after the disclosure of this relationship as professionals must not blame service users for their own behaviour. Whether you believed that J consented and/or encouraged your relationship, the Committee (as a regulatory body) does not accept this as a defence. In particular, you have attempted to convince both your employer and the Council that you were the victim of J's actions to 'set you up' and that she is 'a predator who uses convincing lies'. This demonstrates your inability to take responsibility for what took place between you. We accept that, initially, the Appellant was angry and wrote in these terms. However the Committee did not have the benefit of hearing from the Appellant and they do not appear to have placed any weight on the letter quoted in paragraph 37 above of the Appellant's acceptance of responsibility.

h) The Committee has accepted the advice of its legal Adviser that, whilst the Human Rights Act 1998 ensures an individual's right to a private life, professionals, who seek registration, bring their private life into contact with their public life and any 'right' to an unrestricted social life must give way to the wider public interest in ensuring that professionals do not present a risk to service users. We accept this finding.

i) The Committee was concerned that you failed to apply for registration with the GSCC prior to 01 April 2005. The Committee considered that you knew, or ought to have known, of the deadline for applications and on particular notes that you obtained and partially completed your first application form dated 29 November 2004. The title of social worker has been protected by law in England since 01 April 2005 and the committee was concerned to note that you appear to have used the title "Social Worker" after this date. His is potentially a criminal offence under section 61 of the Act and a matter which the Committee views as serious. We accept that this is the case.

j) The Committee noted your explanations but considers that securing your registration was a matter of personal responsibility and believes that, had you required further information or advice, you could have sought this from the Council. Again we accept this finding.

k) The Committee has read and noted the references provided by the referees whose names you supplied to the Council. It had regard to the favourable comments made but could, not be satisfied that your referees were fully informed of all the matters which may be relevant to the assessment of your good character. Having seen all the references we consider that the Committee was dismissive of the references. It is clear that a number of the references knew about the relationship with J and still supported him and spoke of the actions being out of character. Even those references which do not allude to the matter confirm that the Appellant had worked for 10 years as a social worker and spoke very highly of him and his work, character and dedication.

l) The Committee could not be satisfied as the precise details of your declared conviction/caution, since in your various application forms you declare matters in 1997 and 1985. Additionally, one of your referees (Dr Thomson) in 2007 refers to a conviction "12 years ago". The Committee had regard to the CRB check dated 17th October 2006 which only provided details of a conviction in 1985. Notwithstanding the lack of clarity about your previous criminal record, the Committee determined that you were unable to satisfy it as to your good character for the other reasons set out above. The issue of the conviction was not pursued before the Tribunal.

m) The Committee notes that your employer has, on appeal, reinstated you to a position at B Clinic. It also notes that no referral was made to the Protection of Vulnerable Adults list and that the police took no action in relation to your sexual relationship with J. However, the Committee considers its role to be the protection of the public and in particular vulnerable service users and you have not satisfied it of your good character for the purposes of registering with the Council. The Council is indeed entitled to take a different view and applies different criteria. As set out above we do not find the Appellant not to be of good character. The reinstatement of the Appellant by his employer, with the promise of supervision, was a clear indication of their view of his actions and value as a member of staff.

n) The Committee has noted the medical information you have supplied but has not considered this as relevant for their determination. It notes that this issue has not previously been raised, including on the application form you signed in March 2007. Although you raised this for the first time on 21 May 2007, the Committee considered that you have not provided sufficient medical evidence for the issues of conduct it has to consider. We were made aware of the Appellant's health situation and investigations that he had undergone. They had caused him considerable anxiety. They formed part of the background but were not relevant to the decision.