DECISION

 

Appeal No [2009] 1615 .SW- SUS

 

IN THE FIRST-TIER TRIBUNAL (HEALTH, EDUCATION AND SOCIAL CARE)

 

ELAINE BRADSHAW

 

-v-

 

THE GENERAL SOCIAL CARE COUNCIL

 

-Before-

 

 

IAN ROBERTSON

(Nominated Tribunal Judge)

JIM LIM

(Specialist Member)

PAUL THOMPSON

(Specialist Member)

 

 

 

 

Decision

 

 

Heard on 15 December 2009

Care Standards Tribunal Service

18 Pocock Street

London SE1 0BW

 

Representation

 

Mrs L Robertson from BASW on behalf of the Appellant

 

Mr N Grant for the Respondent

 

APPEAL

 

1. This is an appeal brought by Ms Elaine Bradshaw against the decision of the Preliminary Proceedings Committee of the General Social Care Council (GSCC) on 12 August 2009 to impose an interim suspension Order for six months upon the Appellant.

 

THE BACKGROUND

 

2. On 20 January 2009 The Appellant was dismissed by her employers Hertfordshire County Council according to their dismissal letter of 20 January 2009 for

“Serious professional negligence, misconduct and wilful failure to carry out the normal duties of the post, including Failure to follow agreed management processes, including failure to follow CP procedures and reporting mechanisms to senior managers.”

 

3. This misconduct related to her supervision as Assistant Team manager in the Assessment Team of a case involving a child known as DB. The allegation found proved by the authority was that Ms Bradshaw over a period of months had failed to follow Child Protection procedures in respect of this case involving amongst other things; failure to recognise the seriousness of the case and not progressing a S47 enquiry, signing off an inadequate core assessment, failure to supervise the social worker allocated to the case, inadequate transfer information and general failure to apply an analytical approach to the case thereby leaving the child at serious risk. This case came against a background of concerns about her general performance and remedial action taken with her in this regard.

 

4. The GSCC were informed by the authority of their action on 20 January and by Ms Bradshaw herself on 21 January. They acknowledged receipt on 23 January. Despite receiving this information in a timely fashions the GSCC  did nothing with it until 12 June when they informed the Appellant that they were reviewing the information. On 15 July Application was made to the Preliminary Proceedings Committee for an interim suspension order in respect the appellant. At a hearing on 12 August the Committee decided to impose an interim suspension order. The committees reasons were as follows;

“The allegation of misconduct upon which the application is based relates to the Registrant's employment by Hertfordshire County Council (HCC) as an assistant team manager in the Children Schools and Families, Children's East 2 Assessment Team. The Registrant was dismissed for gross misconduct on 20 January 2009. The reasons cited for dismissal were 'serious professional negligence, misconduct and wilful failure to carry out the normal duties of the post'.

The Committee considered the bundle of documentary evidence obtained from HCC, in particular, the evidence surrounding the Registrant's involvement in the case of baby B. The Committee was satisfied that there appeared to be evidence of basic failings indicative of a pattern of poor practice and in particular a failure to follow child protection procedures, therefore placing baby B at a risk of significant harm.

The Registrant's representative submitted that the imposition of an ISO would be disproportionate in all of the circumstances of the case. He submitted that the Registrant has 22 years experience in social care, that the Registrant is appealing against her dismissal from HCC, that the hearing of that appeal is due on 2 September 2009 and that the Registrant's current employment at the London Borough of Redbridge (LBR) was not in a managerial role. Furthermore, the Registrant gave a written undertaking to the Committee not to work in a managerial capacity or to supervise other staff or students, if an ISO was not imposed.

The Committee noted the submissions made on behalf of the Registrant. However, the Committee's view was that the nature of the alleged failings was fundamental to any social work role and not limited to her role as a manager.

The Committee was satisfied that given the seriousness of the allegation and the evidence to support it, an ISO was necessary for the protection of the public as service users could be placed at risk if the Registrant continues to practise as a social worker.

In reaching its decision the Committee had regard to the likely effect an ISO would have on the Registrant but felt it was proportionate in the circumstances in this case.

 

The Committee decided that the ISO should be for a period of six months and ordered that it be reviewed before the date of its expiry. It is open to both parties to seek an earlier review under paragraph 5 of Schedule 1 of the Rules”

 

5. The Appellant appealed to this Tribunal on or around 9 September 2009.  On 19 October Hertfordshire County Council allowed an appeal against dismissal. On 26 November the Appellant was offered the post of “Professional Assistant in Independent Support Services” pending any determination by the GSCC or this Tribunal regarding her status as social worker.

 

THE LAW

 

6. This has been very succinctly and accurately set out by our colleagues in the case of Sonia West v GSCC [2009] 1614.SW-SUS and we repeat it here;

 

2. The Respondent's power to impose an ISO is provided by Rule 5, (Function of committees) of the General Social Care Council (Conduct) Rules 2008.

           

3.  These provide that before any order is made, the committee must be satisfied that such an 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 herself.

           

4. The committee should bear in mind the effects of any sanction on the registrant and whether it would be proportionate. The need for the protection of the public, particularly service users, and the maintenance of the public's confidence in social care provision must be balanced against the consequences of an ISO for the registrant.

           

5. The committee should consider the seriousness of the allegations, and any evidence relating to the likelihood of any further incidents of harm, particularly to service users, occurring in the period before the final disposal of the complaint. An ISO is an interim measure and lasts in the first instance for six months.

           

6. The appeal against the ISO is brought to the tribunal under section 68 of the Care Standards Act 2000. The powers of the tribunal at an appeal against an ISO are the same as the Preliminary 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 any findings of fact.

 

ANALYSIS

 

7. The power to impose interim suspension orders is draconian. It has the effect of denying the Registrant the ability to work. No findings are made at this stage and whilst the applicant does have the right to a hearing the efficacy of this is seriously affected by the limited nature of the decision making process at this stage.

 

8. There is no doubt that there is a need to have an interim suspension power. One can envisage numerous circumstances where there is need to impose a suspension to protect the public. Cases of violence, serious breach of trust, mental health issues spring to mind but the categories of such cases are not confined in this way, indeed any case where there is urgent necessity to prevent further or future harm. What all such cases have in common however is the need for speedy and urgent action to protect the public. This is an emergency procedure not an administrative one.

 

9. In this case the GSCC did not begin to action matters for 5 months. They received information on 21 January but did not begin the process of investigation until 12 June. This is wholly inadequate. If the public were at risk from the Appellant the GSCC’s failure to act upon the information it received for 5 months is totally unacceptable. The irony of this case is that the GSCC are guilty of the very failures that the Appellant has been suspended for, failure to act upon and apply appropriate procedures.

 

10. We set out the reasoning of the Committee at length above as we are unhappy at what it said.  The core of its decision is in the following 2 paragraphs;

 

“The Committee was satisfied that given the seriousness of the allegation and the evidence to support it, an ISO was necessary for the protection of the public as service users could be placed at risk if the Registrant continues to practise as a social worker.

In reaching its decision the Committee had regard to the likely effect an ISO would have on the Registrant but felt it was proportionate in the circumstances in this case”.

 

 

11. It does not appear to us that the committee took into account the delay in processing the matter, the fact that the failures were ones of capability in a supervisory capacity or the inherent unlikelihood of the Appellant getting another job in child protection in a supervisory capacity following her dismissal and the pending a GSCC hearing. They also failed to take into account her own offer to undertake not to seek a post in child protection.  The advice of the legal adviser regarding this is set out below;

The GSCC Conduct Rules 2008 contain no provisions by which the Preliminary Proceedings Committee can require or receive a legally binding undertaking from a Registrant, nor do the Rules provide for the 'policing' or enforcement of any such undertaking. However, if the Registrant voluntarily gives an undertaking to the Committee then the Committee should take it into account as evidence of the Registrant's intent and give it such weight as appropriate having regard to the submissions of the parties.

12. This appears to us to be an eminently sensible and accurate piece of advice. Yet the Committee did not weigh this in their decision making. They did not analyse the Appellants bona fides. This is a serious failing. It directly impacts upon the necessity of imposing the suspension.
13. It is incumbent upon regulators to act in a timely fashion both in terms of suspension and ultimate disposal of hearings.  We have had cause in previous decisions to note with regret the administrative failings of the GSCC in suspension cases (see McCarthy v GSCC  [2008] 1391.SW). Suspension should not be used as a means of papering over administrative failings. It seems to us that by August 2009 the GSCC should have been in a position to proceed with a full hearing. They had had seven months to investigate the allegation they had received all the information that they needed from Hertfordshire CC  (we saw a large volume of paperwork). We were told at the hearing that the GSCC were still not ready to proceed to hearing 11 months after receipt of the information.
14.  The case does not revolve around issues that directly impact upon public safety but are at one removed, they relate to issues of capability in a supervisory capacity. It may be that lack of capability hits at the heart of social work competences and may render the Appellant unsuitable to be a social worker. That is the GSCC to determine following a thorough investigation and full fact finding hearing

DECISION

15. For the reasons set out above we do not consider that interim suspension was appropriate in this case and therefore allow the Appeal.

 

IAN ROBERTSON (Nominated Tribunal Judge)

JIM LIM (Specialist Member)

PAUL THOMPSON (Specialist Member)