England and Wales Care Standards Tribunal

CG v General Social Care Counsel [2007] EWCST 1282(SWSUS) (2 September 2008)

CG
-v- General Social Care Counsel [2008] 1282.SW.SUS -Before- Ms. Melanie Lewis (Nominated Chairman) Mr Paul Thompson Ms. L Redford Decision

Hearing took place on 22^nd August 2008 at the Care Standards Tribunal, 18 Pocock Street, London SE1 0BW.

Introduction

1. This is an appeal by the Appellant (CG) against the decision dated 10 March 2008 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 Regulations 18, 19 and 27 Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, we have not identified the Appellant or the vulnerable adults who are part of the allegations currently under investigation.
2. Pursuant the direction of the President dated 25 June 2008 and with the parties' agreement we decide this case on the basis of the papers filed and the skeleton arguments filed by each party.
3. Section 68 of the Care Standards Act of 2000 enables the Registrant made the subject of an Interim Suspension Order of the right to appeal to the Care Standards Tribunal. The Care Standards Tribunal may confirm the order, direct it has no effect or it may impose conditions. Whilst the Appellant's representative refers to this being an appeal on a question of law, in fact this is a full appeal decided by us afresh, albeit giving due weight to the deliberations and decisions of the PPC, who heard oral evidence from the Appellant.
4. On the 4 March 2008 the General Social Care Council (Registration) Rules 2008 and the General Social Care Council (Conduct) Rules 2008 came into force but under the transitional arrangements the old rules continue to apply in respect of any application referred to a regulation Committee prior to that date.
5. The General Social Care Council (Conduct) Rules 2003 state in Rule 5 (i) (b) that it is the duty of the PPC to consider any complaint(s) against a Registrant referred to it and decide whether it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interest of the Registrant concerned, for the Committee to make an Interim Suspension Order.
6. Under Rule 9(3) the Registration Committee shall not consider any application by a registrant for voluntary removal from the register, where the registrant is the subject of current or pending disciplinary proceedings under the Council's Conduct rules.
7. 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 the protection of members of the public or is otherwise in the public interest, or is in the interests of the Registrant concerned.
8. By Rule 5 (5) where the PPC decides it is necessary to impose an Interim Suspension Order on a Registrant's registration the initial duration of such Order shall not exceed 6 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 2 years including the period specified in the original Order.
9. Schedule 1 paragraphs 11 and 12 of the Conduct Rules set out the procedures that govern the PPC. Paragraph 12 of Section 1 sets out a procedure for Review of an Interim Suspension Order, which save in exceptional circumstances, the Committee is not obliged to do until 3 months after the date on which the Order was made. Schedule 2 sets out the procedure if the case is referred to the Conduct Committee. The sanctions upon a finding of mis-conduct are set out in Rule 25.
10. It was not contended that, in the present proceedings, an Interim Suspension Order is in the interests of the Appellant. Both the original Order imposed on 11 September 2007 when the Appellant did not attend and the renewal of the Order on 10 March 2008 was on the grounds of the protection of the public and not on public interest grounds. Before us, the Respondent contended that an Order should have been made both for the protection of the public and in the public interest.

The Background facts:

11. We set out sufficient facts to identify the key facts in this case but to preserve the anonymity of the Appellant and witnesses. The Appellant commenced working as a Community Drugs Worker in 1986. In 1994 he qualified as a Social Worker but in 2000 he returned to community drug work. Although he was not working as a Social Worker, he nevertheless applied to be admitted to the Register of the Respondent on 22 November 2004 which became effective on 31 March 2005. Following the commencement of an investigation the Appellant resigned in July 2006.
12. The Appellant was alleged to have had a sexual relationship with CN, a vulnerable service user with alcohol problems. She made a statement. He later admitted that she had been to his house but denied buying her an alcoholic drink or a consensual sexual relationship on one occasion. He accepted that, in order to encourage her future career ambitions, he had passed off JW as a student social worker, such that she had access to confidential information. She had also made a statement. The Appellant denied that he had suggested that their relationship could be a more intimate. The other allegations relate to a former patient with whom the Appellant is also said to have had a sexual relationship. The Appellant, in his additional skeleton argument, stresses that these allegations come from a third party and not the woman directly.
13. It is a key part of the Appellant's case that he no longer wishes to be a registered social worker or to work in the social care field, but instead wishes to earn his living as a plumber. On 20 February 2007 the Respondent invited the Appellant to discontinue his registration, which he needed to confirm in writing. The Appellant replied on 5 March 2007 that he wished to discontinue his registration. However, on 25 March 2007 the Appellant's former employer made contact with the Respondent about a possible referral of complaint, which was formally made on 31 May 2007. The Registration Committee could therefore not consider his application pursuant to rule 9(3). On 6 August 2007 the Appellant wrote to the Respondent stating that he hadn't practised as a Social Worker for more than 7 years, had not renewed his subscription for 2007 and didn't wish to practise as a Social Worker. He repeated that position in a further letter dated 7 September 2007.
14. On 11 September 2007 the PPC Committee imposed an Interim Suspension Order with reasons, including that the Committee was unable to test the Appellant's resolve not to return to social work practice but to work instead as a plumber as he hadn't attended the hearing and the issue had only been raised briefly by him in his letter dated 7 September 2007. By letter dated 3 October 2007 the Appellant re-asserted his intention not to practise as a Social Worker in the future. In a further letter dated 25 October 2007 the Appellant highlighted his wish to de-register and questioned why his registration had been extended from November 2007 to March 2008. By then the Appellant was represented and his solicitor sought a postponement of the Interim Suspension Order. On 5 March 2008 the PPC commenced to hear the application for renewal of the Interim Suspension Order which was adjourned.

The Parties' Submissions:

15. The Appellant appeals on the basis that:-

(i) The Appellant had repeatedly asserted that he had no intention of ever working again within Social Care. He had returned his qualification certificate and had actively sought to de-register himself before the GSCC's involvement in the matter.

(ii) He had rigorously pursued another career as a plumber.

(iii) He had never actually invoked his registration as a Social Worker. He had sought to comply with the new registration procedure but it was not relevant to the employment he was actually doing.

(iv) The Appellant had given oral evidence that he was 'not cut out' for social work.

(v) Because he was training to be a plumber and had no intention to pursue a career in social work, the risk to the public was diminished or even removed. It appeared that the Council's decision was based on the fact that his intentions might change. The Respondent placed weight upon the fact that the Appellant's livelihood would not be affected, a basis for distinguishing the Appellant's case and that of the Appellant in XY -v- General Social Care Council [2006] 855 SW-SUS, [2007] EWCST 855(SW). There the Appellant could show a financial detriment because an ISO order was imposed, albeit he intended to leave social work and had taken up a course in mental health nursing. The Appellant pointed out that his new career intention would not bring him into contact with vulnerable users whereas it was arguable that a new career in mental health would.

(vi) An Interim Suspension Order could only be made for the protection of the public if it was necessary. The alternative here was that the Appellant could be removed from the Register in accordance with his wishes or indeed his registration would lapse on 31 March 2008 and he would be prevented from re-joining the Register on the grounds that his admitted misconduct made him illegible within the meaning of Section 58 (i) (a) of the Care Standards Act 2000.

16. In a response the Respondent submitted that the approach to be taken when considering an ISO required the decision maker not to decide whether the allegations were true or false but whether they justified interim suspension; struck a fair and proportionate balance between the interests of the practitioner, including his interests in working and in a fair hearing, 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. The Appellant's integrity could not be relied upon. Whilst the Appellant was on the Register there was always a risk that he would work as a Social Worker despite an indication to the contrary. Even if he was currently very determined to pursue a career as a plumber he might change his mind and invoke his registration. There was no prejudice to the Appellant who had admitted when he had given oral evidence in front of the PPC committee because he was pursuing a career elsewhere.

Decision

17. There are 2 relevant grounds for making an Interim Suspension Order: in this case, namely for the protection of members of the public, or otherwise in the public interest. In making our decision we have focussed, as have the 2 previous PPC committees who have considered this matter, on protection of members of the public.
18. We are clear that allegations of sexual mis-conduct with vulnerable service users are at the top end of the scale. These are very serious allegations representing a total breach of trust if proved. The Appellant does not dissent from that position and in his skeleton argument accepts that removal from the Register would be the right course if that allegation were proved.
19. There is direct evidence from CN in the form of a statement that sexual intercourse took place, albeit on one occasion and by consent. She later came to realise how harmful it had been to her, which is why she spoke out. The allegation is denied. The Appellant admits passing off JW as a Social Worker. He does not admit that he has behaved in an otherwise over familiar way. The third set of allegations emerged via a third party. Until those issues are resolved, we are clear that the public should be protected from the Appellant and that he should not be able to work as a registered social worker. As canvassed at the PPC hearing, if he is not removed from the Register temporarily, then there is nothing to stop him applying for work as a registered social worker and when any potential employer checks the Register nothing would be shown that an investigation was in the course of taking place with a conduct hearing to follow.
20. We have directed ourselves as to whether it is necessary for the protection of the public to continue the Interim Suspension Order. It is our unanimous view that it is. The Appellant has submitted evidence that he has been on 3 training courses to be a plumber, and evidence of one payment for plumbing work. He also submitted evidence that he had been invited to an interview. There was oral evidence that he had worked on a building site in October 2007 to gain experience. We balance that evidence against the 15 years that the Appellant has worked in the social care arena. Given the Appellant's admitted misconduct, namely passing off a service user as a social worker on more than one occasion, he must reasonably expect his integrity and judgement to be questioned. More neutrally, it simply may not be possible for the Appellant at this point in his life to support his family by working as a plumber. We are therefore satisfied that there is still a risk that he may return to work in the social care arena. We have balanced against that any harm to the Appellant. Unlike the Appellant in XY, there is no detriment put forward.
21. In this case the Appellant seeks to remove himself from the social care sphere of work. It is stated at paragraph 33 of the Appellant's skeleton argument that it would be correct to infer that he would prefer that there is no a conduct hearing. It states "Had he wished to continue in social care he would have wanted a conduct hearing because the most serious allegations against him are denied, and in the absence of a conduct hearing he has no forum in which to vindicate himself. However he neither opposes a finding of misconduct nor opposes the sanction of removal from the Register, he sees no useful purpose being served in putting potentially vulnerable witnesses through that process". The Appellant cannot avoid the process in that way as he is caught by Rule 9(3).
22. Further, we do not read the case of Sheikh v General Dental Council [2007] EWHC 2972 (Admin) as totally excluding public interest considerations at this stage. The facts of that case were different. Having served a sentence of imprisonment for admitted financial breaches, completely unrelated to his clinical competence, the dentist wished to return to practice pending a hearing of the Conduct Committee. Davis J held that on the facts, there being no case of ongoing or future risk, issues such as public perception and public interest were matters for a final hearing. There must be a proper investigation of and resolution of these allegations. The Appellant's submissions revolve around the evidence he put forward to confirm his intention that he did not wish to return to work in the social care field rather than resolve these outstanding allegations. We hope that the matter may now proceed in a timely manner.

Accordingly, our Unanimous decision for the reasons set out above is that is that the decision of the Respondent dated 12 March 2008 imposing a further Interim Suspension Order for a period of 9 months on the Appellant shall stand.

THE APPEAL IS DISMISSED

Ms Melanie Lewis
Mr Paul Thompson
Miss L Redford

Date: 2^nd September 2008