QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
On appeal from the decision of a panel of the Health and Care Professions Council's
Conduct and Competence Committee dated 3 July 2019
7 Rolls Buildings, Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
____________________
Miss Bianka Antonia GRANT |
Appellant |
|
- and - |
||
HEALTH AND CARE PROFESSIONS COUNCIL |
Respondent |
____________________
Mr Peter Mant (instructed by BDB Pitmans LLP) appeared for the respondent
Hearing date: 7 March 2019
____________________
Crown Copyright ©
Mr Justice Walker:
A. Introduction | 1 |
B. Relevant legal principles | 5 |
C. Background and the panel hearings & decisions | 8 |
C1 Background events in 2013 | 8 |
C2 The first panel | 11 |
C3 The second panel | 23 |
C4 The 25 May 2018 letter and the third panel | 28 |
D. Analysis of Miss Grant's grounds and reasons | 36 |
D1 Reason 1 | 37 |
D2 Reason 2 | 41 |
D3 Reason 3 | 43 |
D4 Reason 4 | 45 |
D5 Reason 5 | 47 |
D6 Reason 6 | 51 |
D7 Reason 7 | 53 |
D8 Reason 8: | 55 |
D9 Reason 9 | 57 |
D10 Reason 10 | 59 |
E. Conclusion | 61 |
A. Introduction
B. Relevant legal principles
38. —
(1) An appeal from —
(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; …
(2) In any appeal under this article the Council shall be the respondent.
(3) The court … may -
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against;
(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or
(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff and may make such order as to costs as it, or he, as the case may be, thinks fit.
(4) In this article, the "appropriate court" means:
…
(c) in any other case, the High Court of Justice in England and Wales.
(3) The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
C. Background and the panel hearings & decisions
C1 Background events in 2013
C2 The first panel
the Panel was persuaded by this evidence that [Miss Grant] had been "naïve" rather than dishonest.
i. That the dishonesty occurred on a number of separate occasions.
ii. The cost of the personal use of ZipCar by the Registrant amounted to £751 of public money.
iii. In respect of the use of the vehicle on 28 June 2013, the dishonesty continued after the Registrant was made aware that her personal use of ZipCar was under investigation.
… necessary to maintain proper standards and uphold public confidence in the profession of Social Work and also to protect the reputation of the regulatory process.
i. The Registrant has shown little insight in relation to her actions and … the potential consequences for the standing of the profession of Social Work.
ii. Whilst the Registrant's failings are, in theory, capable of remediation, there is no evidence before the Panel that they have been remediated.
iii. There is a lack of remorse on the part of the Registrant [:] although the Registrant has made some limited admissions, she has also attributed the blame elsewhere.
48. Mitigating factors included the following:
- The Registrant has accepted that she acted in the manner set out in particulars 1.a-f, 2, and 3 of the allegations.
- In June 2013 the Registrant was a newly qualified Social Worker.
- There was no direct harm caused to any service user.
49. However the Panel also considered the following aggravating factors:
- The Registrant has shown little insight or remorse.
- There is no evidence that the Registrant has reflected on her dishonesty or has addressed it.
- The Registrant has not taken responsibility for her actions and has sought to put the blame elsewhere.
- The dishonesty did not occur on an isolated occasion but occurred over a period of a month.
- The Registrant's personal use of the account on 28 June 2013 occurred after the Registrant was made aware that her personal use of the ZipCar account was under investigation.
- There is a risk that the Registrant will act dishonestly in the future.
Suspension Order
55. The Panel concluded that having regard to the Registrant's dishonesty, a Suspension Order was the only appropriate and proportionate sanction. Such an order would provide proper and sufficient protection to the public and would help to sustain public confidence in the profession. The Suspension Order will be for a period of 12 months. This will provide sufficient time for the Registrant to reflect on and acknowledge her dishonesty and to seek ways to demonstrate that she has addressed it.
Striking off Order
56. The Panel did not consider a Striking Off Order. It was aware that such an order is a sanction of "last resort". The Panel did not consider that at this stage such an order was either necessary or proportionate. In coming to this conclusion the Panel noted in particular the absence of any direct harm to service users.
57. This order will be reviewed prior to its expiration. A reviewing panel may be assisted by:
- The attendance of the Registrant.
- A reflective piece from the Registrant indicating a recognition of her dishonesty, what she has learnt from these events and her understanding of the impact that her dishonesty has had, or could of have had, on the reputation of her profession.
- The Registrant's career plans for the future.
- Evidence of the steps that she has taken to maintain her professional skills.
Details of any work undertaken by the Registrant, whether paid or unpaid, since she left employment of [Kingston], together with relevant references and testimonials.
C3 The second panel
(a) with effect from the date on which the order [of the first panel] would [otherwise] have expired, extend or further extend the period for which the order [of the first panel] has effect; …
5. … This is a statutory review of a substantive order which must be reviewed before 1 February 2018. The Registrant in her email explains that she has difficulty taking time off to search for a legal representative "so close to the festive season" as she is self-employed. The Panel considered that she had a month's notice of this hearing and was aware … that it would be reviewed prior the expiry of the Order. … there has been no engagement from the Registrant until her email two days before this hearing. Further, she gives no explanation as to what, if any efforts, she has made to engage a legal representative. The Registrant does not explain why she cannot personally attend today. There has been no proposed time scale as to when she could attend a hearing. In all the circumstances the Panel determined to refuse the application to adjourn the hearing today.
6. The Panel concluded that the Registrant has voluntarily absented herself from this hearing. It considered that there is a public interest in proceeding with this case today.
18. The only new evidence before this Panel from the Registrant is her email requesting an adjournment. In that email she appears to reject the findings of dishonesty that the previous Panel found and she states that she views "this hearing as an actual harassment and victimisation…". The Panel therefore has no evidence before it today to enable it to come to any other conclusion than that the Registrant's fitness to practice remains impaired. There is no evidence of any insight or remediation and in those circumstances the Panel concluded that there was a risk of repetition of the misconduct found proved. The Panel remained concerned as to the Registrant's level of insight given her continued denial of facts found proved.
19. The Panel has taken into account the public interest which includes protection of service users, maintenance of public confidence in the profession and declaring and upholding public confidence in the profession. It concluded given the Registrant's level of engagement that the Registrant's fitness to practice remained impaired.
22. The Panel concluded that given the Registrant's continuing lack of insight to take no further action or to impose a Caution Order would be wholly inappropriate. The Panel considered the appropriateness of making a Conditions of Practice order. The Panel is aware that the conditions imposed by such an order must be relevant, workable, enforceable and proportionate. The Panel concluded that, in the circumstances of this case, appropriate conditions of practice cannot be formulated given the Registrant's limited engagement and her lack of insight and remorse.
23. The Panel therefore concluded that it would be appropriate and proportionate to impose a further period of suspension for a period of 6 months. This will allow the Registrant a further period of time to develop insight and demonstrate her continued commitment to her chosen profession…
24. … this panel wishes to make it clear to [Miss Grant] that this further period of suspension should enable [Miss Grant] to develop insight. If [Miss Grant] chooses not to fully engage with these proceedings the next reviewing Panel may consider that a striking off order is the appropriate order.
C4 The 25 May 2018 letter and the third panel
(1) her version of what had happened in relation to the use of the Zipcar account;(2) a conversation with her service manager at Kingston which she had difficulty understanding;
(3) advice from an agency when seeking a new placement that Kingston had said she was an unsuitable candidate;
(4) an assurance given to her by Kingston that management had not provided any poor reference;
(5) job offers from Enfield and Essex which were withdrawn as a result of a poor reference from Kingston;
(6) advice that a lawyer's letter should be sent to Kingston, and the sending of such a letter;
(7) a letter from the Council, within a month of the lawyer's letter to Kingston, saying that she was under investigation for fitness to practice in relation to her use of the ZipCar account;
(8) a question whether the timing of the letter from the Council was "merely a coincidence", followed by an observation that the Council had taken 2 years before investigating something that had been dealt with in 2013;
(9) a further investigation by the Council concerning a private matter, leading to the comment by Miss Grant that this was now harassment; and
(10) a list of matters which Miss Grant would like Mr Seale to investigate.
9. At the present review hearing, on behalf of HCPC, the presenting officer drew the Panel's attention to a letter of complaint from the Registrant written to the chief executive officer of the HCPC which the Registrant wanted to be available to the Panel. The letter was written two weeks prior to the date of the review hearing and expressed the Registrant's dissatisfaction with the proceedings. The presenting officer submitted that the Registrant's fitness to practise remained impaired and that a further sanction remained necessary. The presenting officer outlined the available sanctions to the Panel. She did not urge the Panel to apply any particular sanction, but she did suggest that the Panel should consider whether a further period of suspension would serve any useful purpose.
10. The Registrant addressed the Panel. She demonstrated considerable anger, speaking in a raised voice. She advanced the case that she had been discriminated against both by Kingston and the HCPC, and repeated the contention that she had committed an "admin error". She expressed the view that she considered it insulting to be expected to express remorse for an "admin error", adding that she had suffered a lot for a naïve error. Her view was that the present hearing represented a "kangaroo court". The Registrant informed the panel she had complained to the chief executive of the HCPC but to date was still awaiting a response. She argued that the HCPC should be protecting her rather than advancing a fitness to practise case against her. Mr Wright's contributions, which interlaced those of the Registrant, were in a similar vain.
11. The Panel heard and accepted the advice of the legal assessor. The Panel has approached the decision to be taken in respect of this review applying the following principles:
[1] it is required to accept the findings made by the substantive hearing panel in relation to the allegation as settled. It is not appropriate to revisit the findings of fact made by that panel.
[2] taking the substantive hearing panel's finding as the starting point, and considering all that has and has not occurred in the period since that decision was made, the present Panel is required first to consider whether the Registrant's fitness to practise is still impaired.
[3] if there is no on-going impairment of fitness to practise, then there should be no further sanction imposed upon the expiry of the present order.
[4] if, however, the conclusion of the Panel is that there is on-going impairment of fitness to practise, then the Panel is required to consider whether a further sanction is required. If it is, then ordinary sanction considerations apply. In particular, a sanction must not be imposed with the intention of punishing the Registrant. Rather, a sanction must be the least restrictive outcome consistent with the need to protect the public, to maintain a proper degree of confidence in the registered profession and to declare and uphold proper professional standards. The sanctions available to the Panel will be dictated by the powers that were available to the panel that imposed the sanction being reviewed.
12. …. The reasons for this decision are as follows:
[1] the Registrant had actively chosen to disregard the clear expectations documented in the previous panel's determinations, in that she presented neither a reflective piece to demonstrate any insight nor any plans regarding her future career. In addition, no testimonials or evidence of professional updating were presented to the Panel and in her submissions she expressed a complete disregard for the findings of the substantive hearing panel.
[2] the Registrant has not demonstrated remorse and accepted no responsibility for her actions, choosing instead to view herself as the victim of discrimination.
[3] there is no evidence of any remediation, insight or remorse.
[4] the Registrant has demonstrated a flawed understanding of her role and responsibilities as a professional and the role of the HCPC as regulator.
[5] in all her written and verbal representations, the Registrant has continued to express anger at her treatment by her employer for being brought before the HCPC. She has failed to reflect on her professional responsibilities and the importance of honesty and integrity as a professional. The Registrant continually asserts her mistakes were naïve errors rather than dishonest acts. This perspective has prevented the Registrant from understanding her responsibility to address any deficits and to comply with the expectations of the reviewing panels.
[6] for these reasons the Panel has concluded that the Registrant's fitness to practise is impaired upon consideration of the personal component.
[7] further, the Panel is satisfied that a finding of impairment of fitness to practise is required in the wider public interest in order to maintain a proper degree of confidence in the Social Work profession and the regulation of it.
… consistently refused to comply with previous requirements and continues to deny her role and responsibilities in addressing her failings.
… a proportionate response in a case where there have been two periods of suspension ordered over a period of 18 months, and one in which [Miss Grant] has demonstrated a settled resistance to remedy her failings.
D. Analysis of Miss Grant's grounds and reasons
D1 Reason 1
1. The HCPC wrongfully accused me of dishonesty which has resulted in defamation of character.
D2 Reason 2
2. The HCPC are colluding with the Royal Borough of Kingston to systematically oppress me.
D3 Reason 3
3. The HCPC have breached my Human Rights to Private & Family Life under Article 8.
D4 Reason 4
4. The HCPC have continuously harassed and humiliated me publicly.
D5 Reason 5
5. The HCPC have not evidenced how I am a direct danger to the public.
D6 Reason 6
6. The HCPC are using their powers to punish me not to protect the public or my profession.
D7 Reason 7
7. Despite claiming I am a danger to the public due to an administrative error in 2013 whilst I was employed as a Safeguarding Practitioner for RBK the HCPC took 3 years to investigate an incident already resolved so they could deliberately use their processes to oppress me leading to deprivation and depression.
D8 Reason 8:
8. The HCPC have prevented me from obtaining suitable employment which has resulted in my career being sabotaged before it began.
D9 Reason 9
9. The HCPC have unlawfully struck me off the register to punish me for not showing remorse despite me evidencing reflection-on-action.
D10 Reason 10
10. The HCPC have destroyed my career and reputation due to an administrative error leading to defamation of character.
E. Conclusion