England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> VL v General Social Care Council [2008] EWCST 1302(SW) (07 October 2008)
URL: http://www.bailii.org/ew/cases/EWCST/2008/1302(SW).html
Cite as: [2008] EWCST 1302(SW)

[New search] [Printable RTF version] [Help]

VL v General Social Care Council [2008] EWCST 1302(SW) (07 October 2008)

V L

-v-

The General Social Care Council

[2008] 1302.SW

Before:

Mr John Reddish (Chairman)

Ms Margaret Halstead

Ms Caroline Joffe

DECISION

Hearing dates: 11 and 12 September 2008

Appeal

On 1 May 2008 the Applicant appealed, under section 68 of the Care Standards Act 2000, against the decision of the General Social Care Council, made on 8 April 2008, to order her removal from the register of social workers maintained by the Council under section 56 of the 2000 Act.

Representation

At the hearing the Applicant was represented by Miss Christine Cooper of counsel and the Respondent was represented by Mr Roderick Clarkson, solicitor to the Respondent Council.

Evidence

The Tribunal heard oral evidence on behalf of the Applicant from the Applicant herself and from Ms Sheelagh Prendergast, a Practice Manager for the Children and Young People Services of the London Borough of Bexley.

The Respondent did not adduce any oral evidence but relied upon the documents comprised in the agreed bundle.

The Tribunal read the contents of the agreed bundle which included the appeal application and the response thereto; the witness statements; all of the documents placed before the Conduct Committee of the Council; the notice of the decision of the Committee and a full transcript of the hearing before the Committee held on 26 and 27 March and 7 April 2008.

Preliminary matters

On 30 June 2008 the President made an order, pursuant to regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to the identify the Applicant. That order applied until the conclusion of the hearing. The Tribunal decided to extend the order indefinitely. The Tribunal was satisfied that such an order would be appropriate to protect the Applicant's private life.

Also on 30 June 2008 the President made an order, at the request of the Applicant and pursuant to regulation 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, that members of the press and members of the public be excluded from all of the hearing. The Tribunal confirmed that order and the hearing was held in private.

Facts

The material facts found by the Tribunal were as follows:

The Applicant was born in June 1961 and is therefore 47 years old.

The Applicant was educated at schools and a College in Kent and then at the University of Bradford where she obtained an honours degree in social analysis and social policy in 1984.

The Applicant worked as an unqualified social worker from 1985 until September 1988 when she undertook studies at Goldsmiths College, University of London, leading to the award of a Certificate of Qualification in Social Work in August 1989.

In 1989 and 1990 the Applicant filled a number of locum positions with various London Boroughs. She worked with vulnerable adults and with children and families.

From 1990 until 1994 the Applicant undertook social work in the London Borough of Hammersmith and Fulham. In 1994-5 she was engaged by the NSPCC to undertake child protection assessments in the London Borough of Camden. During 1996-7 the Applicant worked with children and families in the London Borough of Islington and, in 1997-8 she did similar work in the London Borough of Newham.

In all of these posts the Applicant was well regarded and she received excellent references when she left.

In July 1998 the Applicant began working, via an agency, in the London Borough of Hounslow and she was allocated to act as the social worker for a child ("S") who was on the Child Protection Register and was the subject of care proceedings. In October 1998 the father of the child ("Mr D") removed his son from his temporary foster parents and endeavoured to care for him, as a "lone parent", in his own home. The local authority took the view that the best interests of the child might be served by his being cared for by his father but that close supervision of Mr D and careful assessment of his parenting skills would be required. The Applicant was instructed to undertake that supervision and to make that assessment.

The Applicant visited Mr D and S very frequently in the course of her duties and in accordance with her professional obligations. The Applicant then became aware that Mr D was responding to her "in a manner that indicated a confusion of professional boundaries". The Applicant mentioned this to her manager, Ms Lucy Norman and was advised by her to arrange some contacts with the family in her office to "maintain clarity over boundaries".

Thereafter the Applicant visited Mr D's home less frequently but, during one of her visits, Mr D told the Applicant that he had fallen in love with her and wanted to have a sexual relationship with her. The Applicant protested that this would not be possible. The Applicant then decided to discuss this "escalation of events" with Ms Norman but in the event she did not do so.

On an occasion in November 1998 Mr D invited the Applicant to come to his home in the evening to "discuss important matters" and then persuaded her to share a meal with him. Mr D then further persuaded the Applicant to stay and to have sexual intercourse with him. The Applicant expressed her reluctance to become involved with Mr D in this way but found herself unable to resist his advances.

Thereafter, the Applicant failed to notify her superiors that she had formed an intimate relationship with Mr D. The Applicant accepts that this was "a gross error of judgment" and that she should immediately have asked to be removed from the case. She knew that she could no longer remain as the social worker for the family but feared that another social worker might not be allocated immediately. She persuaded herself that she would still be able to carry out her professional duties and to provide an objective assessment for the court despite the change in her relationship with Mr D. She was reluctant to "destabilise the situation" and anxious to achieve a good outcome for S. Accordingly, the Applicant continued to visit Mr D's home and to have sexual relations with him and also continued to act as social worker to S.

In February 1999 S's guardian ad litem spoke to the Applicant. She said that Mr D had revealed to her that he wanted to have a relationship with the Applicant. At about the same time Mr D told the Applicant that he wanted her to be part of his family more than he wanted her to be S's social worker. The Applicant still resolved "not to change the situation" even though she was well aware that she "should no longer be the social worker for the family given the transgression of boundaries".

On 12^th March 1999 the Applicant finally decided that she could "not allow the situation to continue any longer" and she notified Ms Norman of the true position. Ms Norman said that the Applicant must stop working with the family immediately and, after consultation with a more senior officer of the Social Services Department, she required the Applicant to leave her post with the Borough forthwith.

The Applicant immediately notified her agency as to what had happened. The agency "carried out a full investigation" and consulted the London Borough of Hounslow. They then, on 20 April 1999, informed the Applicant, with regret, that they felt obliged to "de-register" her and to cease finding employment for her.

In April 1999 the Applicant approached another agency who indicated a preparedness to take her on but who changed their stance after consulting the previous agency and the London Borough of Hounslow.

The Applicant remained out of work for several months. She did not cohabit with Mr D but she continued her relationship with him and worked with a new social worker to the advantage of S.

On an occasion in June 1999 the Applicant reported to the local authority that Mr D had chastised S improperly. S was then removed from Mr D's care temporarily. However, after he had undergone a residential assessment, Mr D was granted a residence order in respect of S. The Applicant and Mr D continued their relationship for a further two years until they terminated it amicably in September 2001.

In August 1999 the Applicant applied to another agency. She neglected to reveal that she had been working in the London Borough of Hounslow from July 1998 until March 1999 and said that she had, during that time, been travelling abroad. She also said that she had never been dismissed or suspended from any position. The agency registered her and, between 1999 and 2005, obtained various temporary posts for her (as a manager; deputy manager; senior practitioner or independent reviewing officer) in the London Boroughs of Sutton, Croydon, Lambeth, Haringey, Barking and Dagenham, Tower Hamlets and Wandsworth.

On 22 April 2005 the Applicant applied to the Respondent Council for registration as a social worker. She provided a curriculum vitae from which she omitted her period of employment with Hounslow in 1998-9. She recorded, as before, that from July 1998 until August 1999 she was "travelling". The Applicant completed the section of the application headed "Disciplinary record". She correctly answered "No" to the questions "Is there a current employment disciplinary finding against you?" and "Are you currently the subject of an employer's disciplinary investigation?". She also revealed a conviction for "riding a moped on the hard shoulder" in 1987. The Applicant's application for registration was approved and her name was placed on the register of social workers in June 2005.

In July 2005 the Applicant was interviewed for a managerial position in the Residential Family Assessment Centre operated by the London Borough of Wandsworth. The officers who interviewed the Applicant found her to be "very impressive" and they offered her the post.

In early August 2005 the Applicant attended a meeting at the Council's main offices with Ms Jane Royle, the Service Head for Looked After Children. Another manager saw her there and recognised her as someone who had worked in Hounslow in 1998-9. Ms Royle then made enquiries of Hounslow and discovered that the Applicant had "had a sexual relationship with the father of a child who was on the Child Protection Register and who was a service user of Hounslow" and that the Applicant was "asked to leave Hounslow forthwith".

At a meeting at the Residential Family Assessment Centre on 5 August 2005 Ms Royle and Ms Burt, the manager of the Centre, confronted the Applicant with the information they had obtained from Hounslow. The Applicant readily admitted that she had been dismissed by Hounslow. She "cried and gave a full account of the events".

Ms Royle and Ms Burt gave the Applicant "two to three days to complete work on a case" and then required her to leave. They were "disappointed about this situation because [the Applicant] was a very competent and skilled Social Worker" and they had "no concerns about her behaviour before this".

On 8 August 2005 the Applicant notified her agency that she had been asked to leave Wandsworth because "information had come to light that she was working in Hounslow …[and] had a relationship with the father of a child … that she was directly dealing with". The Applicant explained that "she waited 4 months before actually telling her manager and then was asked to leave on the same day". The agency manager immediately informed the Respondent Council and explained to the Applicant that the agency would have to disclose this information to all potential employers.

Also on 8 August 2005 the Applicant wrote to the Respondent Council to advise them "of a significant change" in her application for registration. She explained that "events took place from December 1998 until April 1999 which led to termination of my employment and for a period of four to five months I was not working. There was no disciplinary action as I was a locum and not a permanent employee". The Applicant also explained that she "was keen to resume working in the field of Social Work" and so registered with an agency but "failed to inform them of the situation" because she was concerned that the agency might not have employed her if she had made them aware of what had happened in Hounslow.

In a further letter to the Respondent Council dated 10 August 2005, the Applicant added that she had informed her agency when she was dismissed from Hounslow and that they had terminated her contract. Another agency had also, she said, declined to employ her following receipt of the relevant information and their own enquiries.

On 17 August 2005 Mr Lake, the Enquiries Manager of the Respondent Council, informed the Applicant's agency that they could look for work for her as long as they informed clients of the true position. Mr Lake also said that the Applicant could use her registration certificate and present it as valid until the Council informed her otherwise. No Interim Suspension Order was made and the Applicant's registration certificate remained valid until April 2008.

On 21 August 2005 the Applicant prepared a "Personal Statement" in which she set out a full account of her dealings with S and his father during the period from July 1998 to March 1999. She presented this document to another agency to enable them to make full disclosure of her position to any potential employer.

In October 2005 Ms Royle completed an "Applicant Referencing Form" in which she described the Applicant's attendance and quality of work in Wandsworth as "excellent", her adaptability, time-keeping and enthusiasm as "good" and her relationships with colleagues and service users as "very good". She said she had "no concerns about her work" but that an "issue of dishonesty about her work record came to light". The Applicant was, she said "candid when challenged about her dishonesty".

In October 2005 the Applicant commenced a locum contract as a deputy team manager with the London Borough of Ealing. She gave her employers full details of her position and she was employed subject to the condition that she should not see clients alone. The Applicant remained in that post until November 2006. Her team manager assessed her attendance, honesty and integrity and knowledge of care standards as "excellent" and her relationship with service users as "very good". He said that the Applicant was a "very committed worker" who was "very supportive of colleagues and staff". He assessed her time-keeping as "poor" but explained that this was because she was sometimes exhausted by working too hard. She needed to "pace herself" more effectively.

In April 2006 the Applicant received a formal caution for the offence of common assault following an altercation with a railway employee. The Applicant notified the Respondent Council of this offence and they took no action. The matter was drawn to the attention of the Tribunal in order to correct a submission made to the Conduct Committee on behalf of the Applicant that she had been of "extremely good character" since 2005. The Respondent did not invite the Tribunal to give any weight to this admitted offence.

In October 2006 the Respondent Council belatedly wrote to the Applicant and asked her to provide more information about the events leading to the cancellation of her locum contract with the London Borough of Hounslow in 1999. The Applicant replied on 1 November 2006. She provided a detailed account of her relationship with Mr D. She said that she became "concerned that the father may have been confused over the Social Worker and client relationship" and explained how Mr D persistently invited her to visit his home and how she endeavoured to resist his invitations and to maintain the boundaries of their professional relationship. The Applicant then set out the circumstances in which she tried "to walk out of the front door" on one evening but was prevented from doing so by Mr D. This, she said, led to her "staying in the household until the following morning" and to "a personal relationship". There were "further occasions" when she "stayed in the household overnight". The Applicant expressed her regret "that this situation took place" and said that she "should never have allowed such a relationship to develop". She recognised that her "role as a Social Worker was compromised" but insisted that she "endeavoured to also act professionally … and continued to be accountable" to her manager and the department.

From December 2006 until February 2008 the Applicant was employed by the London Borough of Bexley as an Independent Reviewing Officer. She informed her employers of her circumstances and gave them details. She was "open and honest both in relaying details of the incident itself and also about the fact that she had failed to disclose these facts to a previous employer".

Ms Prendergast supervised the Applicant during her period of employment by Bexley. She found the Applicant to be "bright, conscientious, thoughtful and knowledgeable" and a "child-centred professional". She would employ her again, confident that there would be "no issue of her forming inappropriate relationships".

On 26 and 27 March and 7 April 2008 the Respondent Council's Conduct Committee held a hearing in accordance with the provisions of the General Social Care Council (Conduct) Rules 2003. The Applicant gave oral evidence, during the first phase of the hearing, about her employment by Wandsworth and her curriculum vitae, with particular reference to the omission in relation in 1998-9. During the second phase of the hearing the Committee heard oral evidence from Ms Sarah Redgrave, the Business Manager of the Respondent Council and from the Applicant again. In the course of her lengthy evidence, the Applicant said that she had decided to speak to her manager "immediately after the incident" (i.e. when she first had sexual intercourse with Mr D) and "made appointments with her". Because they were both so busy, "no meeting took place for a number of weeks". Under cross examination the Applicant said that "at the time … there were conflicting emotions and feelings going on". She was, she said, concerned whether the case would be allocated if she were no longer the social worker. She knew that the personal relationship was "not right" and that her "professional situation" was compromised but it was "a confusing time" and "a very difficult time to think clearly". The Applicant accepted that she had never left a message for her manager saying 'I am in an intimate personal relationship with a client. I must see you immediately' or words to a like effect and that, if she had done that, there would have been a meeting immediately.

The Conduct Committee noted that the Applicant "acknowledged that the intimate relationship was very wrong"; that she had "continued to practise as a social worker in the time that had elapsed since she left Hounslow in 1999" and that, "neither since 1999 nor before, had there been any other complaints as to her competence or otherwise". However, the Committee noted the "serious nature of the misconduct" This included factors such as "the protracted nature of the intimate relationship" and the fact that, whilst involved in that relationship, the Applicant prepared a number of reports in respect of the child. The Committee commented adversely upon the Applicant's failure to "acknowledge the depth of the conflict of interest that she had when preparing those reports". The Committee took the view that the Applicant's dishonesty in relation to her application for registration, "being for the purpose of obtaining registration on a false basis, had the effect of undermining the General Social Care Council's ability to carry out its function as a regulatory body". The Committee was also concerned that the Applicant's candour "was the result of the fact that she had been recognised in Wandsworth in August 2005 … not the result of her own initiative".

The Committee concluded that, given the serious nature of the misconduct, to take no action would not be appropriate. They also considered that "an admonishment could not be appropriate in circumstances as serious as these".

In relation to suspension, the Committee took the view that, had they only been considering the continuation of the inappropriate personal relationship; the failure to inform Hounslow Social Services and the dishonesty in failing to make proper disclosure to the agency in July or August 1999, suspension might have been an appropriate response. However, they felt that the seriousness of the misconduct in relation to the Applicant's application for registration meant that removal was the only option. The false application for registration was "a deliberate act to hide the events" that the Applicant "acknowledged were very wrong and which may have prevented registration had they been disclosed". "The purpose of the lie … was to cover up" the earlier misconduct. The Committee declared finally that "such dishonesty on the part of applicants for registration undermines the regulatory process".

On 8 April 2008 the Respondent Council gave the Applicant notice of the decision of the Conduct Committee. They informed the Applicant that the Conduct Committee had found her guilty of misconduct and had decided to remove her from the register. The seriousness of the misconduct, in particular the dishonesty in May 2005 when she applied for registration, was such that "removal could be the only response".

The law

Section 59 of the Care Standards Act 2000 provides that the Respondent Council shall by rules determine the circumstances in which, and the means by which, a person may be removed from a part of the register, whether or not for a specified period.

Rule 5(7) of the General Social Care Council (Conduct) Rules 2003 provides that it shall be the duty of the Conduct Committee of the Council to consider (i) whether a registrant has committed misconduct, such as to call into question the registrant's suitability to remain on the register and (ii) where it has decided that a registrant has committed misconduct, what sanction should be imposed on the registrant.

Rule 13 of the General Social Care Council (Conduct) Rules 2003 provides that a registrant may be removed or suspended from the register if the Conduct Committee has made a finding of misconduct against the registrant.

Paragraph 25(1) of Schedule 2 to the General Social Care Council (Conduct) Rules 2003 provides that, upon a finding of misconduct, the Conduct Committee may (a) admonish the registrant and direct that a record of the admonishment be placed on the registrant's entry in the register, for a period of up to five years; or (b) make an Order suspending the registrant's registration for a period not exceeding two years ('a Suspension Order'); or (c) make an Order for removal of the registrant's registration from the register ('a Removal Order').

Paragraph 25(2) of Schedule 2 to the General Social Care Council (Conduct) Rules 2003 provides that in deciding what sanction is to be imposed the Conduct Committee shall take into account (a) the seriousness of the registrant's misconduct; (b) the protection of the public; (c) the public interest in maintaining confidence in social care services; and (d) the issue of proportionality.

Section 68 of the Care Standards Act 2000 provides that an appeal against a decision of the Council under the Act in respect of registration shall lie to the Tribunal and that, on an appeal against a decision, the Tribunal may confirm the decision or direct that it shall not have effect.

Issues

It was argued on behalf of the Applicant that:

(a) there was no challenge to the Conduct Committee's finding that the Applicant's misconduct did call into question her suitability to remain on the register;

(b) the sole issue for the Tribunal was whether the circumstances of the Applicant's misconduct were such that the only possible sanction was to remove her name from the register of social workers;

(c) the appeal was brought solely on the basis that the sanction imposed was punitive and was not necessary either for the protection of the public or to maintain public confidence in social work;

(d) when considering the seriousness of the Applicant's misconduct, there were a number of mitigating features: in particular that:

the inappropriate relationship took place almost ten years ago;

the relationship which began in November or December 1998 was voluntarily disclosed by the Applicant on 12 March 1999;

the Applicant had shown genuine regret and insight into her failings;

the dishonesty in her application to her employment agency was committed nine years ago;

the Applicant had been in near continuous employment since that time without there being any question as to her competence or professional conduct; and,

since events came to light in 2005, the Applicant had been completely candid about all of these matters and had co-operated fully with the investigation: she had voluntarily given a great deal of information without which the proceedings might not even have been brought.

(e) the seriousness of the Applicant's conduct must be lessened to some degree by the facts that the other party to this relationship was a 37 year old man who, although he had some mental health issues, was not considered to be vulnerable; no actual harm was caused as a result of the relationship and the reports that the Applicant wrote for the court proceedings at the time were not found to have been biased, misleading or in any other way incorrect;

(f) the Applicant's dishonesty on her application for registration had no material effect on that registration;

(g) the Applicant does not present any risk to the public and this should be a positive factor that weighs against the ultimate sanction of removal;

(h) whilst the public at large might take the view that a deliberate lie on an application form for registration as a social worker is a serious matter, they would not agree that it would always be necessary to bar the applicant from future practice;

(i) the Applicant had been offered employment by three different London Boroughs in the full knowledge of the events in question: in one case conditions were imposed such that she should not see clients alone but in the other two it was not felt that any restrictions would be necessary;

(j) these Boroughs did not feel that the public confidence in their services would be harmed by the Applicant's continued practice as a social worker;

(k) the Applicant was regarded highly by her employers as a good senior practitioner;

(l) the Applicant had an otherwise unblemished professional record of service since 1989;

(m) taking all of these circumstances into account, the public interest did not require, and was not served by, the Applicant's removal from the register;

(n) the available sanctions should be considered in order of severity and the least severe sanction that meets the requirements is the one that should be imposed and that should not include any element of punishment;

(o) suspension or removal from the register of social workers affects personal and professional relationships so that Article 8 rights are engaged and these can be infringed only to the extent necessary to protect the public interest;

(p) arguably, it was not necessary to impose any sanction at all because experienced senior managers of at least two social services departments with full knowledge of the circumstances did not find restrictions to be necessary and a third felt that imposing a condition was sufficient;

(q) alternatively, an admonishment would be an appropriate sanction because, as the register is a public record, it would signal to the public and to other social workers that misconduct of this kind is not tolerated and the Applicant would be obliged to explain the circumstances to potential employers;

(r) further and alternatively, in this case, the public interest could be protected by a period of suspension;

(s) further and alternatively, the Tribunal could exercise the power given by section 68(3)(c) of the 2000 Act to impose any condition it thought fit upon the Applicant's registration and the public interest could be adequately protected by appropriate conditions; and

(t) since the Applicant has shown insight into, and remorse for, her misconduct and it is not suggested that it is likely to be repeated and given her long, good service to the profession, a lesser sanction than removal from it would be more appropriate.

It was argued on behalf of the Respondent Council that:

(a) the acknowledged mitigating features did not detract from the seriousness of the Applicant's misconduct;

(b) the age and vulnerability of the person with whom the Applicant had a relationship should not be regarded as a mitigating factor;

(c) the Applicant was responsible, at the time of the relationship, for the preparation of case reports for the court, giving rise to a clear conflict of interest;

(d) the Applicant acknowledged that the relationship had been "very wrong" but at no time did she acknowledge the depth of the conflict of interest that she had when preparing court reports;

(e) the harm which may or may not have resulted from the Applicant's actions should not be regarded as a mitigating factor in conduct proceedings before a regulatory body;

(f) the Applicant's dishonesty enabled her to obtain employment between July 1999 and August 2005 and she was admittedly dishonest with the Council in 2005 in the same material respects in which she had been dishonest in mid 1999;

(g) any mitigating effect of the Applicant's employment since 1999 was outweighed by the serious nature of the misconduct;

(h) any candour on the part of the Applicant was the result of the fact that she had been recognised as having worked in Hounslow by some of those working with her in Wandsworth in August 2005, who disclosed her past situation;

(i) cooperation with an investigation by a regulatory body is a proper expectation of any professional;

(j) the words used by the Applicant when giving evidence did not reflect an appreciation of the scale of the conflict of interest when viewed objectively;

(k) while only "live" disciplinary matters were required to be disclosed during the registration procedure, the Respondent was denied accurate information and therefore denied the opportunity to explore the Applicant's full work history;

(l) while the regard in which the Applicant was held by her employers may be a relevant factor in considering the maintenance of public confidence, the general shortage of good social workers is not a matter that should be taken into account in relation to the issue of public confidence in social care services;

(m) the sanction has to be "appropriate, proportionate and sufficient" and the Conduct Committee should only use its powers "where necessary" but a removal order was necessary in this case because of the seriousness of the misconduct.

Conclusions with reasons

Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions: