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

 

 

 

 

 

 

 

In the First-tier Tribunal

 

Between:

DEBORAH HELEN BORLEY

Applicant

V

 

Care Council for Wales

Respondent

 

[2010] 1731.SW

 

 

DECISION

 

Before: Tribunal Judge Meleri Tudur

Mr Graham Harper (Specialist member)

Mrs Christa Wiggin (Specialist member)

 

Hearing held at Cardiff Magistrates Court Cardiff on 11 August 2010

Mrs Borley attended the hearing and was not represented.

Mr David Mortimer of Morgan Cole LLP, solicitors, represented the Respondent.

APPEAL

 

1. Mrs Borley, (the Applicant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the Care Council for Wales (“the Respondent”) made on the 10^th February 2010 to impose an Admonishment upon the Applicant’s registration for a period of three years from the date of the decision.

 

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 Care Council for Wales (Conduct) Rules 2005.

 

3. The Conduct Rules provide at Rule 25 that the Conduct Committee must, upon making a finding of misconduct decide upon the appropriate sanction.  In this case, the committee concluded that it would be inappropriate not to sanction the Applicant, but that she should be the subject of an Admonishmnet which should remain recorded on her registration for three years.  Rule 25 provides:  “25. (1) Upon a finding of Misconduct, the Committee may:

(a) admonish the Registrant and make a direction that a record of the admonishment shall be placed on the Registrant’s Entry in the Register for a period of up to 5 years; and that the Registrant be informed that details of such admonition shall remain in the Council’s records and may be taken into account in future Council proceedings 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’).

(d) revoke any Interim Suspension Order imposed by the Preliminary Proceedings Committee.

(2) In deciding what sanction is to be imposed, the 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.

4. Section 68 provides that an appeal under that section against any decision of the Respondent lies to the Tribunal.

 

5. On appeal, the Tribunal has power to uphold the decision of the Respondent or to dismiss it.  It also has power to vary, remove or impose any condition upon the Applicant’s registration as it sees fit.

 

The Issues

6. The charges brought against the Applicant were as follows:: “that you whilst employed as a Registered Social Worker by Caerphilly County Borough Council, gave evidence which was inaccurate and /or misleading in the Cardiff County Court in case number CF04C05083 in December 2006 in that you:

1 (a) On 13 December 2006 under questioning from Barrister Colin Douglas, stated or implied that your notebooks would confirm to the Court that you carried out 8 visits to parents of children in the care of the said Council when no such evidence was contained in the said notebooks, and

(b) that, having so given evidence which was inaccurate and/or misleading, you are guilty of misconduct.

2 (a) On 15 December 2006 under questioning from barrister Colin Douglas, stated that you were relying on an entry in you diary to prove a home visit to parents of children in the care of the said Council on 8 June 2006 when no such entry existed in the said diary, and

(b) that, having so given evidence which was inaccurate and/or misleading, you are guilty of misconduct.

3 (a) In giving evidence that was inaccurate and/or misleading as specified in particulars 1(a) and/or 2(a) you have acted dishonestly, and

(b) that having so acted dishonestly, you are guilty of misconduct.”

 

7. The Applicant in the statement of agreed facts admitted the facts of charges 1(a) and 2(a) but denied misconduct.

 

 BACKGROUND

 

8. The Respondent’s representative and the Applicant’s former legal representative had produced an agreed list of issues and summary of the arguments to present to the panel. 

 

9. The Applicant had qualified as a Social Worker in about November 2005, but her Diploma award had been delayed to about March 2006 because her son had been involved in a serious accident.  She had worked for an agency, initially, and had been placed as an agency social worker with Caerphilly County Council.  Soon after she started working there in April 2006, she had been allocated the X case which was a complex child protection case, involving two families and allegations relating to a Schedule 1 offender.  The case had already been the subject of a five day threshold hearing in December 2005 (in which the Applicant was not involved) and was in the process of proceeding to a fully contested final hearing to decide whether the children should be the subject of full care orders.

 

10. On the 24 August 2006, the Applicant was the subject of an assessment by a Chartered Psychologist to assess for literacy difficulties.  In his report, Mr Tuthill, the psychologist concluded that the Applicant had specific learning difficulties of a dyslexic nature which would particularly affect her literacy skills such as recording work. He also identified an underlying cognitive deficit in respect of information processing capabilities, in that she has an inefficient working memory.  Recommendations were made to assist her in dealing with her difficulties and the Applicant confirmed that she had since the report developed strategies to assist her in compensating for her processing difficulties.

 

11. In about October 2006, the Applicant had become a permanent member of staff as a qualified social worker and made her first appearance as a witness in court in the final hearing of the X case in December 2006.  She gave her evidence over the first three days of the case on the 4^th, 5^th and 6^th December 2006 and was vigorously cross-examined by the experienced barristers representing the other six parties.

 

12. On the 12 December 2006, she decided that she should update the information contained in the social services department’s electronic records system in relation to visits that she had made to the families concerned in the case.  She had gone into the office to do so.

 

13. On the 13 December 2006, she was again called to the stand in the Cardiff County Court, to deal with the new evidence presented in the form of a second bundle of documents, consisting of the amended electronic record printouts.  She was asked by the barrister, Colin Douglas, in cross examination, what information she had used to compile the entries.  Her response was recorded in the transcript as “My notebooks and diaries.”  In response to this, she was requested to bring the notebooks and diaries to court on the following day in order to support her evidence.

 

14. The notebooks were duly produced, but no entries were found supporting the electronic entries.

 

15. On the 15 December 2006, the Applicant was again called to the witness stand and brought with her her diary to support the evidence in relation to the added recordings.  She was questioned specifically about an entry she made, attributed to the 8^th June 2006.  The Applicant flipped through the pages of her diary and was asked by Mr Douglas whether she was relying on her diary to support her evidence.  She stated that she was.  Mr Douglas asked for sight of the diary, and noted that there was no entry in the diary for the 8^th June and that the page was blank.  The Judge was shown the diary, he explained to her that if he could not rely on recordings made by the social worker then that undermined the whole process and His Honour Judge Philip Price indicated that he would come back to the issue at the end of the hearing. His Honour Judge Price was taken ill before the conclusion of the case and the case was reheard and finally concluded by another judge.  She did not hear evidence from the Applicant and made no reference to her in the judgement. 

 

16. On the 22 May 2008, 18 months later, a formal letter of complaint was received by the Care Council for Wales, from Mr Douglas, the barrister, making allegations against the Applicant concerning the evidence she gave at the proceedings in Cardiff County Court in December 2006.

 

17. The allegations were investigated and the three charges made against the Applicant.

 

18. The charges were considered by the Conduct Committee on the 3 February 2010.  The Applicant did not give any evidence to the committee and they relied on the transcript of the hearing and submissions made on her behalf by her solicitor.  The Applicant admitted the factual evidence in that she did not dispute what she had said in evidence.  She did, however, submit that the evidence did not amount to misconduct and was not dishonest.

 

19. It was submitted on her behalf in the conduct committee hearing that the evidence that she had given had not misled the court at all and that there had been no miscarriage of justice.

 

20. The Conduct Committee concluded that the Applicant’s actions in respect of charges 1(a), 2(a) and 3 (a) all constituted misconduct because they amounted to a breach of the Code of Practice of Social Care Workers, thereby calling into question the Applicant’s suitability to remain on the Social Care Register.

 

21. It was the Committee’s preliminary view that the conduct was such as to warrant suspension or removal from the register and representations on the sanction were invited by the representatives.  Having taken into consideration the representations made, the seriousness of the misconduct, the mitigating issues raised and the admissions made, the Committee concluded that an Admonishment with a record of the admonishment remaining on the Applicant’s registration for a period of three years was an appropriate sanction for the misconduct.

 

Evidence

22. The Tribunal considered the written evidence contained in the bundle, which included the documentation prepared and submitted to the original Conduct Committee, the full transcript of the Applicant’s evidence to the Cardiff County Court in the case of X in December 2006, a transcript of the hearing and decision of the Conduct Committee, the Tribunal appeal paperwork and a preliminary statement from the Applicant. The Tribunal had in evidence before it the transcripts of both the County Court proceedings and the Conduct Committee hearing, as well as the evidence presented in the Conduct Committee to support the Respondent’s case.  There were also numerous character references to support the Appellant’s appeal and a preliminary statement by the Appellant which she supplemented at the hearing by giving oral evidence.

 

23. The evidence contained witness statements from three of the barristers involved in the hearing in December 2006.  The barrister representing the local authority stated that she did not believe that the Applicant was dishonest and that her flustering and inability to answer was nothing more than confusion.  She acknowledged that this was in breach of practice and procedures but did not consider that the conduct was dishonest.  Mr Douglas, who had made the complaint against the Applicant stated that he could not say whether the Applicant was intentionally trying to mislead the court.  Only Mr McKay a barrister representing one of the mothers concluded in his statement that the Applicant was attempting to deceive the court rather than being incompetent.

 

24. The Applicant’s oral evidence was that the manager of the child protection team had considered her previous experience working with children sufficient to enable her to take the case and it was the subject of a full and detailed handover by the outgoing social worker.  Although the Applicant was aware of her own inexperience as a qualified social worker at the time, she described the supervision that she received as good and the team as very supportive of her work.  She made no criticism of her line manager or of the supervision that she had received from Caerphilly County Council.

 

25. The Applicant, both in her statement and in oral evidence at the hearing, maintained that the content of the evidence that she gave was true and that the dates of issue of the travel warrants would have substantiated her evidence relating to the number of visits she had made to the family. 

 

26. In oral evidence at the hearing of the appeal, she explained that she had relied on her own recollections and the dates of the contact visits arranged by the department for the families to compile the information in the electronic system.  She was at pains to underline the fact that she had not fabricated the evidence about the visits and expected her recollections to be supported by her notebook and diary.  She explained that she had later attempted, in support of her defence of the complaint to the Respondent, sought to obtain information from the Council about the dates of issue of the travel warrants for the families, but they had refused to provide her with that information.  She insisted that she had made more visits to the families than was alleged.

 

27. The Applicant explained that having given the main body of her evidence over the first three days of the hearing in December 2006, she considered that she had done well, considering her previous lack of experience in court.  She explained that she had never attended or taken part in court proceedings before.  At the appeal hearing, she explained that until that time she had never even prepared a witness statement for court proceedings and received no support from the County Council legal department in its preparation.  She was therefore proud of her achievements on the first three days.

 

28. The Applicant confirmed in oral evidence that she had made the responses that she had at the trial because she panicked.  She said in her witness statement that she found the whole experience to be incredibly stressful and oppressive. She could offer no other explanation as to the reason for her answers.  She confirmed that she had made the entries without reference to her diaries and notebook and had expected when she handed them to the legal representatives for the other parties the next day that the entries would be there.  She insisted that her evidence was true, and that if she had been given access to the information which she needed regarding the dates of issue of the travel warrants, she would have been able to support her evidence.

 

29. The Applicant did not consider that her evidence amounted to misconduct and submitted that it was not dishonest because she insisted that everything that she had said was true and that she had relied on her recollections in order to compile the electronic records.

 

SUBMISSIONS

30. Mr Mortimer submitted on behalf of the Respondent that the Applicant’s behaviour in giving evidence at the hearing amounted to misconduct, because her responses had been inaccurate.  Mr Mortimer submitted that the response had been clearly inaccurate and misled the court either deliberately or inadvertently, and as such amounted to misconduct which was dishonest.

 

31. Similarly, in relation to the second charge that she had misled the court in giving evidence about the entry in the diary on the 8 June 2006, Mr Mortimer drew to the Tribunal’s attention the evidence from the transcript that the Applicant had been asked whether she was using her diary to support her evidence.  She replied that she was, but on inspection, the diary did not bear any entry for the 8 June.  Again he submitted that the response had been inaccurate, had misled the court either deliberately or inadvertently and was misconduct that was dishonest.

 

32. The final charge was that in giving evidence that was inaccurate and/or misleading as specified in the first two charges she had acted dishonestly and having so acted dishonestly was guilty of misconduct.

 

33. The Applicant submitted that she had not acted dishonestly and was adamant in her oral evidence that what she had said was the truth and that she had visited the families involved in the case on more occasions than they alleged.

 

TRIBUNAL’S CONCLUSIONS WITH REASONS

 

34. We considered the submissions made in support of the Applicant’s appeal and noted that it was initially alleged that the conduct of the committee was unfair.  This issue was not pursued in the appeal before the Tribunal because it is clear that the Conduct Regulations set out the procedure by which the panel must conduct themselves and that the committee in the case applied the regulations correctly.

 

35. We then considered each of the charges brought against the Applicant individually.  The first charge was that she had given inaccurate evidence on the 13 December 2006.  We heard direct evidence, which had not been available to the original committee, where the Applicant confirmed that she had updated the electronic records in the office on the evening of the 12 December 2006 and that she had relied on her own recollections of events and the contact notes in order to update the system.  However, the transcript records that she told the court the following day that she had used her diary and notebook.  By her own oral admission to the Tribunal, that evidence was at best inaccurate and at worst intentionally misleading.  Consequently, the first charge is proved by the Applicant’s own admission.

 

36. During the hearing, the Applicant maintained that the evidence she had entered into the records was accurate.  On questioning by the panel, she did not appear to understand that it was not the truth or otherwise about the number of visits that she had made to the families involved in the case that was being called into question by the charges, but rather her responses to the questions about the corroboration that existed for her evidence:  she was asked upon what documents she had relied in order to make the belated entries into the electronic system. She replied her diary and notebook, although she was perfectly clear that she had relied on her own recollections and the notes already in the system about the contact visits to build up the records.  That is the misconduct on her part: misleading the court as to the sources for her information not the content of the information she recorded. We concluded that the information that she gave the court in response to Mr Douglas’s question was inaccurate, whether deliberately or inadvertently, and therefore constituted misconduct.

 

37. The second charge was again relating to her response to a question put to her on the 15 December 2006.  Once again the transcript confirms that she said in response to the query whether she was relying on her diary to support her evidence.  She said that she was.  Inspection of the diary revealed that there was no entry for the 8 June 2006.  She was therefore giving misleading information.  She was clear in her oral evidence at the appeal that she had not relied on her diary or her notebook when she made the various entries.  Thus we have concluded that her evidence was inaccurate and that she was guilty of misconduct.

 

38. The final charge brought was that in giving the evidence she had acted dishonestly.  Again the Applicant denied the charge, but if we apply the test for dishonesty as outlined in the case of Twinsectra Ltd v Yardley and Others, the test is a two stage test which combines an objective test and a subjective test.  In order to make a finding of dishonesty, it must be established that the Applicant’s conduct was dishonest by the ordinary standards of reasonable and honest people and that she herself realised that by those standards her conduct was dishonest.  Applying the first part of the test, the objective view, of what is reasonably expected by an ordinary member of the public, to say that she relied on the notebook and diary when she knew that she had not done so, both on the previous day and again four years later, was dishonest.  Applying the test for dishonesty when she was asked whether she had relied on her diary and notebook was blatantly untrue, even if the response was made in panic.  Stating that she was relying on her diary to support her evidence about the visit on the 8 June 2006 was blatantly untrue and defies any rational explanation, other than her stress and confusion. The Applicant did not respond to the question of whether she realised that what she was saying was untrue, responding every time in relation to the truth of the substance of the evidence that she was giving.  We have concluded that if she were to answer the question of whether her evidence as given was untrue, she would have to confirm that it was.

 

39. We have concluded that in relation to each of the charges she acted dishonestly.  There is no doubt that she was foolish and unprepared for the questions an experienced barrister might put to her in the face of fresh new evidence, but even so that does not get her away from the conclusion that the way in which she conducted herself was dishonest.

 

40. Having made a finding that the Appellant had acted dishonestly, it must amount to misconduct.

 

41. The final issue is whether the sanction was appropriate to the charges brought.  We have noted that following the conclusion of her evidence, the issues arising were taken up by Caerphilly County Council, no disciplinary charges were brought or discussed, and the Appellant underwent training regarding record keeping, and she confirmed that she benefitted from that training.  She was at the time a very new and inexperienced social worker and received little if any legal support or guidance in the preparation of the case and in preparing her for what she might expect by way of cross examination. 

 

42. We also noted that it was not apparent to all the experienced professionals in the court at the hearing that the Applicant was being deliberately misleading.  We heard evidence that shortly after the hearing, the Applicant had become an agency social worker because it was better paid and had been back to work for Caerphilly County Council on several occasions and during those periods, they had no problems with her work or with the events in court in December 2006.

 

 

43. For the first time, we had the benefit of her direct evidence, and we have taken into consideration that she was a newly qualified and inexperienced social worker; that she has undergone training since the incidents; that she has learnt from the experience, that she has now developed strategies for planning and thinking through not only the questions that she has been asked but also the responses that she is required to give; she has undertaken and continued a successful career in social work and had multiple supportive character references from colleagues including BASW (the British Association of Social Work).

 

44. Having taken all of these points into consideration, we have considered our powers under the legislation and note that section 68(3)(a) provides that the Tribunal shall have power on an appeal against a decision to vary any condition  for the time being in force in respect of the person to whom the appeal relates.  We consider that in the context of the type of sanction applied to the Applicant, the “condition” is that the Admonishment shall be recorded on her Entry in the register for a period of up to five years.  We consider that this subsection provides us with the power to change the length of time imposed in the condition of recording the Admonishment.

 

45. Having considered the seriousness of the Applicant’s misconduct, and the giving of inaccurate or misleading evidence under oath in court is a very serious act which can be a criminal offence in itself; the protection of the public, which, by her further training and successful subsequent career, the Applicant has shown not to be an ongoing issue in this case; the public interest in maintaining confidence in social care services, which is a particularly important issue in complex care proceedings and the issue of proportionality, we have concluded that the length of the recording of the Admonishment should be reduced to one year. 

 

DECISION

 

46. It is our unanimous decision that the appeal should be allowed in part.  Taking into consideration the Applicant’s unblemished work record since then and her efforts to reflect on her practice and improve the quality of her work, her inexperience as a qualified social worker and the recently identified difficulties from her specific learning difficulties for which she had not yet developed strategies to cope, the decision to sanction the Applicant is upheld, but the length of the record of Admonishment should be reduced to one year.

 

 

 

Meleri Tudur

Tribunal Judge

20 August 2010