England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2016

The Hon. Mr Justice Wyn Williams :

1. In these proceedings the Appellant appeals against the decision of a panel of the Respondent's Conduct and Competence Committee (hereinafter referred to as "the Panel") whereby the Panel found that the Appellant's fitness to practise was impaired by virtue of misconduct and that she should be struck from the Respondent's Register. The appeal is brought pursuant to Article 38 Health and Social Work Professions Order 2002/254. I can allow the appeal only if I conclude that the Panel's decision was wrong or unjust by virtue of a serious procedural irregularity.
2. The decision of the Panel is contained within a Notice of Decision ("the Decision Letter") which it issued following a hearing which took place between 4 and 6 November 2015. Essentially, there are two issues for my determination. First, was the Panel's decision to proceed with the hearing in the absence of the Appellant wrong or unjust by reason of a serious procedural irregularity? Second, did the Panel fall into error or act unjustly in finding that the Appellant's fitness to practise was impaired on account of misconduct and that, in consequence, she should be struck from the Register? Before discussing those two issues I propose to set out the circumstances which led to the Appellant's referral to the Respondent and the procedural history which preceded the hearing before the Panel.
3. At the material time, the Appellant was registered as a social worker. On 11 March 2013 she commenced employment with Southampton City Council as a locum social worker. She was allocated to a team of social workers known as the Prevention and Court Work Team. Her work brought her into contact with vulnerable children. On 22 March 2013 the Appellant was introduced to the mother of a child who was considered to be vulnerable because it was thought that the child was at risk from a family friend. In the remainder of this judgment I shall refer to the child as "Child A" and her mother as "Child A's mother".
4. There is no dispute but that on 29 April 2013 the Appellant made a record in the Council's electronic case record system (known as "PARIS") to the effect that she had visited Child A at school at 11am that day. Further, there is no dispute that at about 4.40pm on the same day the Appellant visited the school and spoke to the Head Teacher.
5. On 2 May 2013 an education welfare officer employed by the Council (Witness 1) reviewed the electronic notes in PARIS relating to Child A. She noted that the record appeared to show that the Appellant had visited Child A at school as I have described. Witness 1 was surprised by the notes which the Appellant had made about Child A's welfare and appearance. She decided to speak to Child A's mother and, thereafter, someone at the school. In consequence she began to doubt whether the Appellant had visited Child A as she had recorded.
6. On 3 May 2013, Witness 1 discussed her concerns with the Appellant's Team Manager (Witness 2). Witness 2 decided to interview the Appellant. The interview took place on 7 May 2013, at 2.30pm. At the conclusion of the interview Witness 2 suspended the Appellant.
7. Some hours later the Appellant went to the home of Child A and her mother, notwithstanding her suspension. A conversation took place between the Appellant and Child A's mother. The next day Child A's mother reported the visit to Witness 1 and complained that the Appellant had spoken to her inappropriately. In due course Witness 1 notified Witness 2 of the visit and the conversation which allegedly took place.
8. On 22 May 2013 Witness 2 referred the Appellant to the Respondent. She did so by completing a "Fitness to Practise Referral Form". The form specified that the Appellant had committed an act amounting to misconduct in that she:

"… falsified a child's record on the case records system - claiming to have visited the child in school on 29/04/2013 and spoken to her about a child protection concern when, in fact, this visit did not take place."

9. The Form also referred to the Appellant's visit to Child A's home on 7 May. A complaint was made that despite being suspended the Appellant visited the family home on the very day that her suspension had been imposed.
10. On or about 8 October 2013 the Respondent notified the Appellant of the complaints which had been made against her. She was given the opportunity to make representations about it. On 12 November 2013, the Appellant sent a detailed response to the Respondent. She denied the accusation that she had falsified the record. She maintained that she had visited Child A at the school as the record showed. She suggested that the complaint against her had been initiated by Witness 1 maliciously. She claimed that Witness 1 had been overtly hostile towards her since the commencement of her employment. The Appellant admitted that she had visited Child A's home. She explained how that had come about and she set out in some detail her conversation with Child A's mother.
11. Notwithstanding the Appellant's representations one of the Respondent's investigative panels concluded that the Appellant should answer the following allegation :-

"During the course of your employment as an agency Social Worker at Southampton City Council, you:

1. On 29 April 2013 recorded on Child A's case notes on the PARIS recording system, that you had visited Child A, when you had not.

2. The matter set out at paragraph 1 constitutes dishonesty.

3. On 7 May 2013, you paid a visit to Child A's home, after having been suspended, and you discussed confidential matters with her mother in a public place.

4. The matters described at paragraphs 1-3 constitute misconduct.

5. By reason of your misconduct your fitness to practise is impaired …".

The Appellant was notified of the allegation in a letter of 28 November 2013. The letter described how the allegation would be heard by a panel of the Conduct and Competence Committee; it also set out the procedure to be adopted in advance of the hearing. A telephone number was provided to the Appellant so that she could seek further information if she thought it necessary. The letter of 28 November 2013 was sent by first class post to the Appellant at the address which she had provided to the Respondent which was then her home address.

12. By letter dated 21 January 2015 the Respondent notified the Appellant that it proposed to amend the allegation as it related to the events which occurred on 7 May 2013. Further, the Appellant was informed that the Application to amend would be made at the commencement of the hearing.
13. By letter dated 10 June 2015, the Respondent informed the Appellant that the hearing of the allegation would take place between 4 November and 6 November 2015. The letter was sent by first class post on 10 June 2015 to the Appellant's home, which was still the address which was held on file for the Appellant.
14. The probability is that by this time the Appellant was in Nigeria. In a document which the Appellant attached to her Notice of Appeal to this court she says that she travelled to Nigeria in June 2014 to work with Non-Governmental Organisations who were seeking the return of the "Chibok Girls" who had been kidnapped in Northern Nigeria. She told me and I accept that she was in Nigeria in the summer of 2015 and that she did not return to the UK until after the hearing before the Panel had taken place.
15. That said when the Appellant addressed me during the course of the appeal she acknowledged that she was in email contact with the Respondent following her departure to Nigeria at least for a period of time. Before the Panel and before me the Respondent's case was that there was email contact in the summer of 2015 about the scheduling of the hearing although the Respondent did not go so far as to suggest that there were communications between the Appellant and the Respondent which showed that the Appellant knew of the hearing date which was fixed in June 2015 for November 2015.

The Committee's decision to proceed in the Appellant's absence

16. Rule 11 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, provides:-

"Where the Registrant is neither present nor represented at a hearing, the Committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6(1) on the Registrant".

17. In August 2015 the Respondent issued a Practice Note with a view to providing guidance to their panels as to when, if at all, it would be appropriate to proceed with a fitness to practise allegation in the absence of a Registrant. The Note identified a two stage approach. First, the Committee should establish whether proper notice of the hearing had been provided to the Registrant. If the Committee was satisfied that notice had been given it should, second, consider a number of factors which were set out in the Practice Note and which were derived from the decision in R v Jones [2002] UKHL 5 – a case which concerned the factors to be taken into account when the judge in a criminal trial is confronted with the non-appearance of a defendant and an application is made by the prosecution to proceed in his absence. The factors identified in the Practice Note are these:-

"• The nature and circumstances of the Registrant's absence and, in particular, whether the behaviour may be deliberate and voluntary and thus a waiver of the right to appear;

Whether an adjournment might result in the Registrant attending the proceedings at a later date;

The likely length of any such adjournment;

Whether the Registrant, despite being absent, wished to be represented at the hearing or has waived that right;

The extent to which any representative would be able to receive instructions from, and present the case on behalf of, the absent Registrant;

The extent of the disadvantage to the Registrant in not being able to give evidence having regard to the nature of the case;

The general public interest and, in particular, the interest of any victims or witnesses that a hearing should take place within a reasonable time of the events to which it relates;

The effect of delay on the memories of witnesses;

Where allegations against more than one Registrant are joined and not all of them have failed to attend, the prospects of a fair hearing for those who are present."

18. The principles upon which a regulatory tribunal or panel should act when considering an allegation relating to fitness to practise and when the registrant does not appear at the hearing were recently considered by the Court of Appeal in Adeogba v The General Medical Council [2016] EWCA Civ 162. The case concerned hearings before committees of the General Medical Council but it is clear that the principles elucidated by the Court apply with equal force to all regulatory tribunals.
19. These principles are conveniently and accurately summarised in Ms Grogan's Skeleton Argument on behalf of the Respondent and I gratefully adopt what she has written. First, the principles which apply to proceedings in the absence of a defendant in a criminal trial are a useful starting point. However, it should be borne in mind that there are important differences between a criminal trial and fitness to practise proceedings. The decision of a panel must be guided by the main statutory objective of the regulator; the protection, promotion and maintenance of health and safety of the public. Second, fair economical, expeditious and efficient disposal of allegations made against a registrant is of very real importance. Third, fairness includes fairness to the practitioner and also fairness to the regulator. Importantly, unlike a criminal court, a panel does not have the power to compel the attendance of the registrant. Fourth, the regulator represents the public interest. Accordingly it would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. Fifth, there is a burden on registrants to engage with the regulator in relation to the investigation and resolution of allegations against them. Sixth, in many regulatory cases the rules make it mandatory for a registrant to provide a current registered address. Failure to comply with this mandatory obligation may give rise to disciplinary sanctions. In such circumstances it is for the registrant to ensure that notices sent by the regulator to that address come to his attention.
20. In the light of these principles Sir Brian Leveson P with whom Gross LJ and Sir Stanley Burton agreed summed up the position as follows:-

"23. Thus, the first question which must be addressed in any case such as these is whether all reasonable efforts have been taken to serve the practitioner with notice. That must be considered against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration along with the methods used by the practitioner to communicate with the GMC and the relevant Tribunal during the investigative and interlocutory phases of the case. Assuming that the Panel is satisfied about notice, discretion whether or not to proceed must then be exercised having regard to all the circumstances of which the Panel is aware with fairness to the practitioner being a prime consideration but fairness to the GMC and the interests of the public also taken into account; the criteria for criminal cases must be considered in the context of the different circumstances and different responsibilities of both the GMC and the practitioner."

21. The Committee's justification for proceeding in the absence of the Appellant is contained in paragraphs 5 to 8 of the Decision Letter. At paragraph 5 the Committee expresses itself satisfied that service of the Notice of Hearing was effective in accordance with the rules governing such service. Paragraph 5 also records that Ms Thompson, the solicitor acting for the Respondent at the hearing, informed the Panel that there had been attempts by email to establish whether the Appellant wished to attend the hearing and that the Appellant had not responded to email communication since the summer of 2015. At paragraphs 6 and 7, the Panel refer to the Practice Note summarised above, the case of Jones and the principles to be derived therefrom.
22. Paragraph 8 of the Decision Letter reads as follows:-

"8. The Registrant has given no reason for her non-attendance. There were HCPC witnesses scheduled to appear and one witness was already in attendance. There was no indication that if the hearing were to be adjourned that the Registrant would attend on any future occasion. In the circumstances the Panel was satisfied that the Registrant's absence was voluntary and that she has waived her right to attend. It is clear from earlier contact the Registrant had with the HCPC that she was aware of these proceedings generally. There was a clear public interest in progressing cases such as this as expeditiously as possible. The incidents to which the allegations relate occurred over 2½ years ago. The Registrant had submitted representations to the HCPC at an earlier stage of this process and the Panel will fully consider these when testing the HCPC's case. In all the circumstances the Panel decided to proceed in the absence of the Registrant."

23. I have scrutinised the reasoning of the Panel with care on this issue. It seems to me to be utterly unimpeachable. On the basis of the information provided to the Panel it was clearly entitled to proceed in the absence of the Appellant.
24. I should record that there is no real dispute about the facts which were provided to the Panel as they related to the procedural history and the absence of the Appellant. The Notice of Hearing was sent to the Appellant's last known address in accordance with the rules governing service. The Appellant knew that a hearing was to be convened and she knew that letters would be sent to her home and/or emails would be sent to the last email address which she had provided. There was no email communication by the Appellant from about the summer of 2015, even though she knew that it was at least possible that a hearing would be fixed for later in 2015. In my judgment it is impossible to conclude that the Panel was wrong to proceed in the absence of the Appellant and/or that its decision to proceed was unjust on the basis that its willingness to proceed in the absence of the Appellant constituted a serious procedural irregularity.

The substantive decision

25. The Panel heard oral evidence from Witness 1, the educational welfare officer and Witness 2, the Appellant's immediate line manager. I have been provided with a transcript of the evidence given by both those persons.
26. On one view, Witness 1 had been reluctant to give evidence. She did not appear, as she was scheduled to do, on the first day of the hearing and she was telephoned by a member of the Respondent's staff during the course of that day. The Panel heard evidence from that member of staff about those telephone communications. I should also record that after a short break the member of staff was recalled to give evidence about communications with Witness 1 which had pre-dated the first day of the hearing.
27. As well as the oral evidence the Panel received, as hearsay evidence, the witness statements of Child A, Child A's mother, the Head Teacher of Child A's school and the Assistant Site Manager of Child A's school. As is clear from paragraphs 11-16 of the Decision Letter the Panel gave careful and appropriate consideration to whether hearsay evidence should be admitted. It is also clear from those paragraphs that it considered with care how to approach the fact that Witness 1 did not appear on the first day of the hearing.
28. As I have said the committee found that the allegation made against the Appellant was proved. The evidence of which they took account and their reasoning is set out in paragraphs 22-28 of the Decision Letter. I can detect no flaw in reasoning and nothing to suggest the Panel's approach to the evidence was flawed. It is noteworthy that the Panel found that the part of the allegation relating to events on 7 May 2013 proved on the basis of what the Appellant, herself, had admitted in the response which she had provided to the allegation in November 2013. I have no doubt that the evidence available to the Panel from Child A, her mother, the Head Teacher, the Assistant Site Manager and Witnesses 1 and 2 justified the conclusion that the allegation, as a whole, was proved.
29. I am equally in no doubt that the Committee was entitled to conclude that the allegation proved against the Appellant constituted misconduct and that her fitness to practise was thereby impaired. Further, it is not open to serious argument that the Panel was not entitled to conclude that a proved allegation of dishonestly falsifying a written record relating to a vulnerable child did not justify the sanction imposed.
30. I appreciate, of course, that the Appellant strongly disputes that the record that she made on 29 April 2013 was, in any way, false. In the documentation which she has provided and in her oral submissions to me she made an impassioned plea to the effect that she was the victim of groundless accusations orchestrated, in particular, by Witness 1.
31. It is clear that the Panel was live to the possibility that the Appellant had been the victim of groundless accusations. The Panel paid proper attention to that possibility and it scrutinised with care the evidence of Witness 1 and her reasons for failing to attend on the first day of the hearing. However, as it seems to me, the sources of evidence available to the Panel provided a reliable basis for the factual conclusions which underpin its decision. The reality is that the falsity of the record was proved not by the evidence of Witness 1 but by the evidence of Child A, the mother and the evidence from the Head Teacher and the Assistant Site Manager. It is impossible to conclude that the Panel was not entitled to accept the evidence given by those persons. I am unable to find that the Panel's decision to find misconduct proved was wrong or that it was unjust by virtue of a serious procedural irregularity. Once misconduct was proved as alleged, the Panel was entitled to find the Appellant's fitness to practise was impaired and that her name should be removed from the register.
32. Despite the Appellant's eloquent plea that she has been a victim of injustice there is no proper evidential foundation for such a conclusion. That was so on the basis of the evidence available to the Panel. Notwithstanding the Appellant's submissions to me it remains the case. Accordingly, the appeal must be dismissed.
33. I propose to hand down this judgment on Tuesday 5 July at 3pm at the Cardiff Civil Justice Centre. There is no need for the parties to attend. If the Respondent wishes to pursue an application for costs it should file an up to date statement with my clerk and serve the Appellant with the same by 12 noon Tuesday 5 July 2016. If the Appellant wishes to oppose an order or the amount claimed she should file and serve written submissions at the Administrative Court Office by 12 noon 12 July 2016. I will then make a decision on the basis of the documents filed and served. Any appeal from me would be a second appeal and for the avoidance of doubt I direct that any application by the Appellant for permission to appeal against my decision should be made directly to the Court of Appeal.