First-tier Tribunal (Health Education and Social Care Chamber)

In the First-tier Tribunal 

Between:                           

Mark Richard Wheeler

Applicant

V

General Social Care Council

Respondent

[2009]1696.SW-SUS

Before: Mrs Meleri Tudur, Tribunal Judge

Mr Brian Cairns, Specialist Member

Mr Andrew Wilson, Specialist Member

DECISION

Hearing held at The Empress Hotel, Douglas, Isle of Man on the 24^th May 2010.

Mr Mark Wheeler attended the hearing and was unrepresented.

Ms N Tahta, counsel, represented the Respondent.

Appeal

1.            Mr Wheeler (“the Applicant”) appeals under section 68 of the Care Standards Act 2000 against the decision of the Preliminary Proceedings Committee of the General Social Care Council (“the Respondent”) made on the 4^th December 2009, to impose an Interim Suspension Order upon the Applicant for a period of six months.

The Law

2.            By virtue of section 56 of the Care Standards Act 2000 the Respondent maintains a register of social workers and section 59 allows the Respondent to determine the circumstances by which an individual can be sanctioned and removed from the Register.  The relevant rules for the purposes of this case are the General Social Care Council (Conduct) Rules 2008.

3.            Rule 5 of the General Social Care Council (Conduct) Rules 2008 provides that it shall be the duty of the Preliminary Proceedings Committee to consider an application by the Council for an interim Suspension Order and decide whether the making of such an order is (a) necessary for the protection of members of the public; (b) otherwise in the public interest; (c) in the interests of the Registrant concerned.

4.            Where the decision is made to impose an Interim Suspension Order (ISO), Rule 5(2) provides that the initial duration shall not exceed six months.

5.            Section 68 of the Care Standards Act 2000 provides that an appeal against a decision in respect of registration shall lie to the Tribunal.

6.            On appeal, section 68(2) provides that the Tribunal may confirm the decision or direct that it shall not have effect and the Tribunal shall also have power under section 68(3) to vary any condition in force, direct that any such condition shall cease to have effect or to direct that any such condition as it thinks fit shall have effect in respect of that person. 

7.        When the original application is considered by the committee, the committee should bear in mind the effects of any sanction on the Registrant and whether it is proportionate.  The need for public protection and the maintenance of the public’s confidence in social care provision must be balanced against the consequences of an ISO upon the Registrant.

8.            The Committee must take into consideration the seriousness of the allegations and any evidence relating to the likelihood of any further incidents of harm, particularly to service users.

9.            The powers of the Tribunal on appeal against an ISO is the same as the Preliminiary Proceedings Committee in that it considers the gravity of the allegations and the nature of the evidence, the risk of harm to members of the public, the wider public interest and the prejudice to the Applicant if the order was continued.  It can consider any additional information received by either party after the Preliminary Proceedings Committee.  It does not make findings of fact.

Background

10.         In November 2003, the Applicant was appointed as a Probation Officer to the Isle of Man Probation Service.

11.         On the 10^th February 2006 he became registered with the Respondent.

12.         In December 2006, the complainant, EQ, was referred to the Applicant by the court for the preparation of a Pre-Sentence Report, in order that they could consider the appropriate sentence to impose upon her following her conviction for a criminal offence.  EQ attended the first appointment before the end of December 2006 with her sister.

13.         On the 16^th January 2007, EQ attended for her first probation appointment having been sentenced to two years’ probation for the offence.

14.         EQ was to attend at the probation service office every week and as part of her plan was to engage with the Drug and Alcohol Team because of her difficulties in controlling her alcohol consumption.  EQ objected to the condition on the basis that the worker to whom she had been allocated within the Drug and Alcohol Team was familiar to her as a binge drinker.  The Senior Practitioner, Patricia Ingram agreed that EQ would not be required to engage with that service any further.

15.         Mr Wheeler arranged and carried out approximately ten appointments between 17^th January 2007 and the end of March.  A further appointment was arranged for the 4^th April 2007, but Mr Wheeler was unwell and as a result, EQ was seen by another Probation Officer, Mr John Robertson.

16.         At that meeting, EQ made allegation against Mr Wheeler that he had been sending her sexually explicit text messages and that she wanted them to stop.

17.         Mr Robertson recorded the allegation and that evening notified Mr Wheeler of the allegations that had been made.

18.         Both men agreed that they would meet the next day and go together to notify Pat Ingram of the allegation and decide on what further action was required.

19.         EQ alleged that on the evening of the 4^th April 2007, she received a telephone call from Mr Wheeler, when he asked her to contact the office to tell the management that she was “off her face” when she made the allegations, had been on a three day binge and that her medication had kicked in so that she could not recall any of the allegations that she had made.

20.         Mr Wheeler submitted that he had made contact with EQ on the morning of the 5^th April 2007 from his office, when he was waiting for John Richardson to return from a prison visit, to clarify with her the nature of the allegations that she had made.  His evidence was that she had told him that she was “off her face” and that she could not recall what she had said and that she had lied.

21.         Pat Ingram was notified of the allegations and she directed Mr Wheeler to record in an email to her the conversation that he had had with EQ.  He did so, but claimed that Mrs Ingram was dissatisfied with the content of the email and she stood over him while he typed a second version.

22.         On the 6^th April 2007, the Applicant reported to the police that he had been the victim of an attempted blackmail by EQ and her sister.

23.         On the 13^th April 2007, an attempt was made by Pat Ingram, Director of Operations to interview EQ but EQ refused to speak to her.  She eventually agreed to speak to Dawn Cubbon, Director of Monitoring and Financial Services (a role described by the Appellant as administrative rather than professional) and showed her the mobile phone which contained the text messages.  Ms Cubbon took possession of the mobile phone so that the messages could be recorded and transcribed and Mr Wheeler was suspended from his duties.

24.         On the 19^th April 2007, the Applicant was interviewed by the police to clarify the content of text messages allegedly found in EQ’s phone.  His advocate, Mr Stanley, handed to the police a written statement prepared in advance of the interview by way of clarification.

25.         On the 4^th August 2007, the Applicant was charged with an offence of wasting police time in connection with the allegation of blackmail.  The proceedings were subsequently withdrawn on 21^st May 2008, and the prosecution was reported to have been publicly criticised in court by the High Bailiff.

26.         The Applicant became the subject of disciplinary proceedings by the Isle of Man Civil Service Commission and on the 9^th April 2009 was dismissed from the service for gross misconduct.  Mr Wheeler appealed against the decision and is currently pursuing a claim of unfair dismissal in the Employment Tribunal.

27.         On the 15^th July 2009, the Respondent made an application for an ISO which was considered by the PPC on the 24^th July 2009.  The application was refused.

28.         Following receipt of a copy of the Independent Investigating Officer’s report into the allegations and a transcript of the text messages alleged to have been sent by the Appellant, dated November 2008, the Respondent made a further application for an ISO on the 16^th November 2009.  The PPC held a hearing on the 3^rd December 2009, at which the Applicant did not attend, but submitted extensive written submissions.  The PPC made the ISO on the 4^th December 2009, on the basis that it was necessary for the protection of members of the public and the general public interest.

29.         The Applicant has made an application to the High Court in Douglas for a judicial review of the police investigation and alleged breaches of the Data Protection legislation by both the Isle of Man Constabulary and Manx Telecom.

Evidence

30.         At the hearing, the Respondent produced in evidence the full file in support of the application as presented to the PPC.  The Tribunal Bundle also included Mr Wheeler’s written submissions to the PPC, his full file from the police investigation and other statements submitted by the Applicant.

31.         Ms Tahta submitted as late evidence a statement from Detective Constable Kathryn Ann Giles, who exhibited to her statement two sets of transcripts of printouts allegedly obtained from EQ’s mobile phone in 2007 and which were purported to be from the Applicant.  The Applicant challenged the factual correctness of the statement, as it referred to the mobile phone being received by Pat Ingram, whereas the documentation from the Probation Service referred to the mobile phone being received from EQ by Dawn Cubbon.

32.         Ms Tahta referred to the allegations of misconduct upon which the application for an ISO were based as being:

That the Applicant, whilst being employed as a Probation Officer for the Isle of Man Probation Service:

a)      Failed to notify his line manager/head of division that a female offender EQ had made serious allegations of a sexual nature against him;

b)      Asked EQ to tell lies for him in light of the behaviour coming to light;

c)      Had inappropriate contact with EQ who was under his supervision;

d)      Falsified departmental records by failing to record events that took place with EQ;

e)      Made indecent suggestions of a sexual nature by way of phone/text messages to EQ and

f)       Suggested that EQ carry out acts of a sexual nature for his gratification.

33.         In reaching their decision, the PPC concluded that it was satisfied on a balance of probabilities that if the allegations were proved, the content of the text messages was wholly inappropriate and incompatible with the expectations of a professionally qualified and registered social care worker and had been sent to a service user who would be particularly vulnerable to such abuse of power and the conduct was protracted.

34.         The PPC noted that the Applicant had a history of employment as a social worker and in the social work field and as such the PPC was unable to accept the Applicant’s submission that he did not present a risk to service users.

35.         The Applicant challenged the decision on the basis that the evidence obtained by the police from the mobile phone was inadmissible in evidence and should not be relied upon in the proceedings.  He challenged the evidence on the basis that it had not been independently verified and when his expert had tested the sim card obtained in 2008 from EQ, he had been unable to retrieve any information at all from it, to such an extent that he questioned whether it even belonged to EQ.

36.         In the course of the proceedings, the Applicant had challenged the validity of the Police investigation, on the basis that throughout the police investigation into his allegation of blackmail against EQ, there had been meetings between the Police and the Probation Service, which both form part of the Home Department in the Isle of Man, and that the Probation Service had been instrumental in directing the police inquiry.

37.         The Applicant further challenged the veracity of the Civil Service disciplinary proceedings on the basis that the Prison Governor, part of the Isle of Man Department of Home Affairs and therefore not independent of the department who were his employers, had conducted the hearing.

38.         Finally, the Applicant had successfully requested the Employment Tribunal to stay the proceedings pending conclusion of his application to the High Court on the basis that he could not have a fair hearing if the appeal proceeded before the High Court adjudication on the Data Protection matters.

39.         At the hearing, the Applicant relied on the inadmissibility of the text message evidence, but confirmed that a written statement presented by his advocate to the police on the 19^th April 2007 had been prepared on the basis of his instructions to the advocate at the time.  The statement, presented as part of the police file, confirmed that the Applicant, in March 2007 when he was home and had been drinking, had sent text messages of a sexual nature believing that he was sending them to his wife.  He had, at some point, realised that they had been sent to EQ’s mobile phone number and he apologised to her and she confirmed to him the next time he saw her that they had been deleted.  The statement confirmed that the Applicant had offered to refer the matter to a manager and that EQ could have a new officer.  She had stated that it wasn’t a problem and that she didn’t want a new officer.  The statement then went on to explain that the same thing had happened again at a later date and the Applicant had responded to texts believing that they were from his wife.  He claimed to have mentioned at every meeting that he would need to tell a manager but that EQ had maintained that it was not a problem and that she was enjoying the text messages. 

40.         The statement confirmed the Applicant’s account of the telephone call on the 5^th April to EQ and that she had told him that she had been on a three day bender and her medication was kicking in so that she could not recall what she had said to the other officer, but apologised.  The Applicant then passed on the information to his managers.

41.         The Applicant explained to the Tribunal that he had offered to give the Respondent  an undertaking that he would not apply for work within the social care sector.  The offer had been refused on the basis that it was impossible to police.  He again renewed this offer to the Tribunal, explaining that he would not be able to apply for any posts on the Isle of Man without the knowledge of the senior managers of his employers anyway.

Tribunal’s conclusions with reasons

42.         It was not submitted by the Respondent that the ISO had been made in order to protect the Applicant himself.  The issues for consideration by the panel were therefore, whether the ISO were required for the protection of members of the public and generally in the public interest, to maintain public confidence in the social welfare system.

43.         For the first time at the hearing, we had the benefit of the full police investigation file into the Applicant’s allegation of blackmail against EQ which included a copy of the statement presented to the Police on behalf of the Applicant.  This included an explanation by the Applicant of how he came to send text messages that were “sexual in content” to EQ, believing that he was sending them to his wife.

44.         We noted that by the Applicant’s own admission within the statement, this had happened, not just on one occasion but more than once.

45.         The Applicant confirmed at the hearing that the statement had been prepared by his advocate on the basis of his own instructions as given to the advocate at the time.  He did not seek to deny or withdraw the explanations provided within the statement.

46.         The Applicant has challenged throughout the validity of the text message evidence and continues to do so, indicating that he does not consider that any reliance should be placed upon them.  His challenges to that evidence are currently, as we understand the subject of an application to the High Court in the Isle of Man.

47.         We do not propose to rely in any way upon the disputed text message evidence in making our decision.

48.         We had concerns about the steps taken to investigate the allegations and the difficulties which have been caused by the failures of the internal investigations.  Given the seriousness of the allegations made against the Applicant and the potential serious consequences of the allegations if upheld, we would have expected that no stone would have been left unturned to ensure that a full and detailed investigation was conducted, which would have included scrutiny of the supervision minutes, minutes of meetings with the Applicant and the complainant and CCTV evidence to ensure that the quality of the investigation could not be called into question.  We were concerned about the lack of clear boundaries between the various departments and their responsibilities and functions and were pleased to note that an independent investigator has now been appointed to conclude the investigation into the matter.

49.         We took into consideration the police investigation file and the admissions made in the Applicant’s own statement s presented to the Police.  We have concluded that it is understandable for a professional to make a mistake as described by the Applicant in relation to one text message.  We would, however, expect a professional person within the social care field, to have been sufficiently shocked by the error, and awake to the potential harm of such an error, to ensure that no text message containing sexual content was sent by him again, to ensure that there was no risk of such a message being received by the wrong recipient.  Such a reaction would be a natural response to ensuring that professional boundaries are maintained. 

49.         By his own admission within the statement, the Applicant did not maintain the expected professional boundaries: after the first alleged error, he then sent a further series of texts with very explicit sexual content to EQ.  Furthermore, he did nothing to alert his employer of the error, or the potential damage of sending such texts.  The issue should have been raised during supervision meetings and recorded within the minutes, so that the service was aware of the situation.

50.         We consider that there is sufficient evidence within the Applicant’s own statement without making any reference to the other evidence, to justify making an ISO for the protection of members of the public and otherwise in the public interest, specifically in order to preserve the faith of the public in the social care system.  Although we could understand the Applicant’s submission that he would be most unlikely to be able to apply for a social care post in the Isle of Man without the knowledge of representatives of his former employer, the same is not true about applications outside of the Isle of Man, and for this reason we consider that the decision of the Respondent should stand.

 This is the unanimous decision of us all.

Appeal dismissed.

Meleri Tudur

Brian Cairns

Andrew Wilson