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

IN THE FIRST TIER TRIBUNAL CASE NO: [2010] 1752.SW – SUS

 

BETWEEN:

KATHLEEN FRANCES HONOUR

Applicant

and

 

 

GENERAL SOCIAL CARE COUNCIL

Respondent

 

 

Tribunal

John Burrow – Judge

Christa Wiggin

Marilyn Adolphe

 

1.      Introduction

1.1 The appeal was heard at Northampton Magistrates Court on 8 September  2010.  The GSCC was represented by Natasha Tahta and Ms Honour was represented by Faith Ryan of Celtic Knot Solicitors.  At the request of the parties the matter was heard on the papers, and no witnesses were called. 

1.2 Ms Honour is a registered Social Worker, with some 26 years pre and post registration social work and senior management experience.  On 31 March 2010 the Appellant was found by the GSCC Conduct Committee (CC) to have committed misconduct and a suspension order for a period of two years was imposed.

 

 

 

2.      The Allegations

2.1 There were two allegations against her

a)     On 4^th September 2009 at Northampton Crown Court you were convicted of doing an act tending or intended to pervert the course of public  justice and on 5 October 2009 you received 20 weeks imprisonment suspended for 24 months on suspended sentence, 120 hours unpaid work and ordered to pay £400;

b)     You failed to inform the GSCC of the police investigation and subsequent conviction.

She admitted these allegations and admitted misconduct.

 

3.      The Law

3.1            On 23 April 2010 she appealed against the order under Section 68 of the Care Standards Act 2000.  Under that section the Tribunal may confirm the decision or direct that it shall not have effect.  The appeal constitutes a rehearing and the tribunal steps into the shoes of the Conduct Committee.

 

4.      The Hearing Bundle

4.1            The bundle consisted of the Appeal Application, the CC decision, Ms Honour’s witness statement, some 15 character witnesses, the Appeal Response by the GSCC, the documentation relied on by the GSCC at the CC hearing on 31 March 2010, the transcript of the CC hearing of 31 March 2010, the GSCC rules, the Indicative Sanction Guidance for Conduct Committees 2008 and the decision in VL v GSCC [2008] 1302. SW.  We read all of this evidence and took it all into account, along with the submissions made in the appeal hearing, in reaching our decision.

 

5.      The Grounds of Appeal

5.1            Ms Honour’s grounds of appeal are set out in the Appeal Application Form dated 16 April 2010.  In summary the grounds are:-

1.      The sanction was disproportionate

2.     The sanctions were not considered in order of severity and the least severe sanction commensurate with the objectives of sanctioning was not imposed.  There should be no element of punishment.

3.     The Article 8 rights of the ECHR were engaged and these should be infringed only to the extent necessary to protect the public interest.  The sanction went beyond this principle.

4.     The principles set out in the Indicative Sanction Guidance were not followed

5.     The case of VL v GSCC [2008] EWCST 1302 (SW) 07 October 2008 was analogous to her case and the two year suspension order was disproportionate.

6.     There was no general propensity to deceive, notwithstanding she had failed to take opportunities to correct the original lie.  She had failed to correct the lie because of her desire to continue in the social care profession, and that she believed she had much to offer the profession.  On other occasions she has been open and honest.

7.     There is a principle , enunciated in VL, that an otherwise competent and useful member of a profession who presents no danger to the public, should not be removed from the register in order to satisfy public demand for blame and punishment.

8.     The Conduct Committee failed to properly balance mitigating circumstances, including her otherwise good record, against the seriousness of the misconduct.

5.2 At the appeal hearing Ms Honour accepted that a suspension of some length was appropriate but said 2 years was too long and was punitive.  She submitted that a 6 month suspension was the appropriate and correct sanction. 

 

6.      The evidence

6.1 In her statement she set out her work experience.  Ms Honour began her social work career by studying psychology, and she achieved the professional social work qualification the CQSW.  She worked initially as an unqualified social worker.  After becoming a qualified social worker she obtained a teaching certificate, a BTEC level 4 in management Studies and became an AMPH ( an approved social worker) and a principle social worker.  She has worked with a Community Mental Health Team, which she subsequently managed.  She had supervisory and senior management responsibilities, and came to have managerial responsibility for some 21 team members.  She has some 26 years experience in social work and has never been previously disciplined by the GSCC.

6.2 She described being under pressure at work  as  tight targets were set, the team were understaffed with a high sickness rate, and as she was required to work long hours.  She started a new relationship in 2000 which by 2007 was itself under pressure as her partner’s business was struggling.

6.3 On 27 November 2007 Ms Honour’s partner was involved in a car accident close to home.  He had been drinking and believed he was over the blood alcohol limit.  He called home and Ms Honour picked him up.  They went home where he said the police would be arriving soon and he asked Ms Honour to tell the police she had been driving the vehicle.  She stated she felt under pressure from loyalty to her partner.  She also said she believed that if he lost his licence their relationship would be under further pressure.  She said she did not have much time to consider the matter.  She agreed and when the police arrived at the house she said she was the driver.  After some further questioning the officer said he did not believe her, but she maintained the lie.  In her witness statement she said at this time there did not appear to be any evidence to the contrayr.  She was cautioned and breathalysed, which produced a zero reading, and she was issued with a HORT 1 requesting her to produce her documents at the local police station. 

 

6.4 The following day, 28 November 2007, she took her documents to the police station where she continued to maintain her account she was the driver.  She said she experienced stress and worry about what she had done.  The next day at work she told a colleague, who became upset at what she had done.  Ms Honour said she was terrified the colleague would report her, as she was an ex police officer and had herself been involved in an accident with a drink driver.  Never the less Ms Honour still did not retract her account or inform the authorities of what she had done. 

 

6.5 The police later investigated her account.  A witness to the accident described a male as being the driver of the vehicle, who had actually given her his card at the scene of the accident.  Also by May 2008 the work colleague informed Ms Honour’s employers of what she had done and a compromise agreement was reached which allowed Ms Honour to leave work without being disciplined or reported to the GSCC. She has not worked as a social worker since this time.

 

6.6 The Appellant was registered as a social worker with the GSCC on 3 February 2005.  Her registration was renewed on 3 February 2008 by an application dated 2 January 2008.  The application contained a personal declaration stating “ I agree to tell the  GSCC as soon as reasonably practical about any events that call into question my good character, such as criminal convictions, criminal proceedings or cautions that I receive”.

 

6.7 The work colleague reported her to the police, who began an inquiry.  On 4th February 2009 Ms Honour agreed voluntarily to be interviewed about the matter, but on legal advice made no reply to questions.  On 5 August 2009 she was charged with perverting the course of justice and on 4 September 2009 she pleaded guilty at Northampton Crown Court. A probation pre sentence report described her as a low risk to the public and a low risk of reoffending.  On 5^th October 2009 she was sentenced to 20 weeks imprisonment suspended for 24 months with 120 hours of unpaid work and ordered to pay £400 costs. 

 

6.8  In his sentencing remarks the judge said “This is a serious offence because it strikes at the heart of the administration of justice.  There has to be a custodial sentence for such an offence.” The learned judge said that because of her good character and the valuable work she had done in the community as well as her exceptional references, “this enables me just to suspend the sentence upon you for a period of two years”.

 

6.9 The Applicant failed to inform the GSCC of the police investigation or the subsequent conviction on 5 October 2009.  A colleague of the Appellant informed the GSCC of the Appellant’s conviction on 15 October 2009.  In correspondence with the GSCC Ms Honour denied trying to hide the conviction from the Council.  She said she had received legal advice not to discuss the matter with third parties and thought this applied to the Council.  She was preoccupied with a possible prison sentence, and the Council was informed independently just a few days after the sentence was imposed.  She said she accepted that the conviction was relevant to her practise as a social worker.

6.10 In her evidence to the CC hearing she said she thought the public would think they could trust her if they knew all the circumstances.  She said she regretted her actions.  She said she lacked the courage to retract what she had said about driving the car.  She was concerned about losing her profession.  When she signed the 2008 renewal she was thinking about her training and that nothing had actually happened in respect of the investigation, and that she would tell them later.  She was sorry she had wasted police time.  Although convicted on 5 October 2009 she was not working as a social worker at the time and she felt there was no urgency in reporting the matter, and she was still in turmoil over the threat of prison.  She would be devastated at being removed from the register.

6.11 The Conduct Committee considered the case on 31 March2010.  They found the allegations of fact and misconduct proved.  They had regard to the criteria in Rule 25(2) of Schedule 2 of the 2008 Rules and the Indicative Sanctions Guide (ISG) , and that they should consider the least serious sanction first.  They suspended Ms Honour for the maximum period of 2 years.  In their reasons they said they considered each possible sanction in turn, deciding no sanction and admonishment were inappropriate because the misconduct was too serious. 

 

6.12 They noted there was dishonesty arising from deliberate deception which was repeated over some 15 months, wasting police resources, and that misconduct based on dishonesty would normally necessitate removal. They felt there was a lack of insight regarding public confidence in the profession.  They also had regard to the breaches of the code and the aggravating effect of her managerial status.  They also took into account her good character and the character witnesses, and they considered repetition was unlikely.

6.13 Ms Honour produced some 15 character references, including from friends, work colleagues, fellow social workers,  and a consultant psychiatrist, most  of whom had known her for a number of years. Some character witnesses were called to give evidence at the CC hearing.  A number of the character witnesses referred to the stress at home and in her job.  She is referred to as genuine and sincere, hard working, reliable, honest, helpful and thoroughly professional.  Her actions were said to be out of character. She is described as committed, conscientious, reliable, with sound judgement and as being intelligent, caring , friendly, trustworthy and dedicated.  She is said to be loyal, capable and a person of integrity.  Despite the error of judgement in this case, it was said she is professional and capable and that there is no risk to the public from the practice of her profession. 

 

7.      Submissions on behalf of the Appellant

7.1 The Appellant called no oral evidence but made submissions on the evidence contained in the bundle.  The findings of the Conduct Committee as to the allegations of fact and in respect of misconduct were not challenged. Her submission was limited to sanction and was that the 2 year suspension was unnecessarily punitive.  It was not challenged that a suspension of some length was appropriate but 2 years was too long.  The sanction should have been a suspension order for 6 months. 

7.2 It was argued that the CC was wrong when it said there was a lack of insight of the part of the appellant.  Far from having no insight, Ms Honour had showed full insight.  She appreciated that what she had done was wrong and had shown remorse for it. She had shown understanding of the affect her actions might have on the public confidence in social workers, she had pleaded guilty to the criminal allegations and had admitted all matters in the disciplinary hearing.

7.3 On the authority of VL the Tribunal should balance the seriousness of the misconduct against the mitigating factors.  As in VL although Ms Honour had committed a dishonest act there was no general propensity to deceive.  Although she failed to set right the lie she had told, she lacked the courage to do so.  She was terrified of losing her profession.  There was a distinction between telling a lie and maintaining an earlier lie and failing to reveal it.

7.4  There was no risk to the public in what Mr Honour had done and it was accepted by all parties that there was no risk of repetition or future risk.  Her numerous testimonials, from friends and colleagues, some of whom had attended the CC hearing, covered all aspects of her professional life,  and showed she was a competent social worker and an asset to her profession.  As was said in VL, a regulatory body should not remove an otherwise competent professional who presents no danger to the public. The testimonials also showed that what she did was out of character for her.  She was an otherwise honest person.

7.5 Although the registrant in VL had reported herself to the authorities she had delayed by some 5 months in doing so.  She had only self reported after she had been confronted by a past colleague in circumstances which made it likely she would be reported in any event. Ms Honour had failed to report herself but she had been advised by her solicitor not to speak about the matter to any third party.

7.6 She said the tribunal should consider the Indicative Sanction Guidance (ISG), and should weigh the nature and gravity of the case.  It was accepted the misconduct relating to the perverting the course of justice was serious and it was accepted the failure to report was a further act of misconduct.  One reason she had failed to report the conviction after the 5 October 2009 was that she had been afraid she would be going to prison and she was still adjusting to that course having been avoided.

7.7 There had been considerable delay – the matter had occurred in November 2007 and the conviction had occurred in October 2009. The GSCC hearing was in March 2010 and this appeal was in September 2010 – almost 3 years after the event.

7.8 In considering the seriousness of the matter regard should be had to the “Criteria for the Consideration of Cases”  in the ISG, as it related to matters of dishonesty.  Many of the aggravating features were not present.  There was no physical or psychological harm or abuse of trust.  The dishonesty was not directly concerned with work and was a single event even though maintained for some time. There were no threats or violence and the original event was not initiated by her or planned in any way.  There has been remorse, there was no vulnerable person involved and no intent to steal.

7.9 With regard to the list of mitigating factors as set out in the ISG, there had been admission of facts in both the criminal case and the disciplinary hearing. It was an isolated incident, and was not deliberate or premeditated.  There had been genuine expressions of remorse, and Ms Honour had been acting under emotional duress at the time of the deception. She had a long and excellent previous history of some 26 years unblemished record with the GSCC.  Rehabilitative steps had been taken.  There were many excellent testimonials.  There was no specific victim and the matter was outside work. There had been no abuse of trust.  There had been a period when she had failed to report the matter.  There had been no previous warnings and no previous convictions.

 

8.      Submissions on behalf of the Respondent.

8.1 The Respondent’s submission were that the appeal involved a balancing exercise between seriousness and mitigating factors and in that balancing exercise the CC had got it right – they used the same approach as the Judge in the criminal proceedings, where the most serious sanction was justified – i.e. removal - but the mitigation factors ( 26 year work record and the character references) enabled the Judge and panel to draw back from the most serious sanction.  It was right in those circumstances to impose the maximum period of suspension.

8.2 The panel should use the ISG as guidance.  Social workers must be above reproach – they must be able to work closely with the police and it is a very serious matter for her to lie to the police and prevent due process of the sanction imposed by society on her partner, who should have been prosecuted. 

8.3 It was not necessarily a momentary lapse – the officer took 45 minutes to arrive at the house, which was time enough to consider what she was doing – she should as a professional have refused to lie to the police.  Stress at work was not an excuse – many social workers have stressful jobs.

8.4 The police officer had said at the scene that he did not believe her - that should have been used by Ms Honour as an opportunity to retract the lie – but she persisted with it.  The next day she took the documents into the police station and this too was an opportunity to retract – but she didn’t – and it is a significant act for a social worker to take documents into a police station falsely.  When she told her colleague about what she had done and the colleague was upset and she apologised – this too was an opportunity to retract, which had not been acted on by her.  On the contrary Ms Honour said she was terrified her colleague would tell the police - this was self regarding and showed a lack of insight – she should have been thinking of her responsibilities to society and to her regulatory body, not of herself.

8.5 She has shown remorse and regret but this is not insight.  There was no suggestion of her taking steps to prevent her partner from repeating his actions – on the contrary she had prevented his prosecution and had allowed him to carry on driving on the road.  She also showed lack of insight in that, although she realised that what she was doing was wrong, it didn’t cause her to retract the lie.

8.6 Also her remark in her witness statement that the police did not appear to have any evidence to suggest she was not driving showed she thought she could get away with it and that is why she persisted as long as she did.  By May 2008 she realised the County Council knew about the deception because her colleague had reported her and she left the Council by mutual consent under a compromise agreement – yet she persisted with the deception.

8.7 In January 2008 she signed the renewal form which said she would inform the GSCC as soon as reasonably practicable of any events which call into question her good character – which she failed to do.  She certainly knew by May 2008 when she left the Council that there was an event which bought her character into question because  she had lost her job because of it.

8.8 The judge in his sentencing remarks commented on the seriousness of the matter because it struck at the heart of the administration of justice. He imposed a 20 week period of custody and the matter substantially passed the custody threshold, albeit the sentence was suspended.

8.9 Substantial police resources were wasted as a result of her actions.  She lacked insight from the date of the accident until 4 September 2009 when she entered her guilty plea.  There was a clear breach of code 5.8 even though the matter was not directly related to her work.  She was a senior manager with 21 staff reporting to her.  She had 26 years experience and could not be said to have had only a short time in her regulated profession.

8.10 Most of the factors in the ISG which made suspension appropriate were present in this case.  There was an acknowledgement of fault and repetition was unlikely. It was serious, but was not fundamentally incompatible with being a social worker, and there were no personality problems.  There had been no repetition of the behaviour, she now has insight, and there was a breach of the Code of Practise.

8.11 Many of the factors mentioned in the ISG which make it appropriate to remove the registrant were also present – including in particular dishonesty – which had been subject to an attempt to cover it up.  There was a persistent lack of insight for at least a period, a serious departure from the Code, and an undermining of trust in social workers.

8.12 The suggestion in VL that if there was no risk to the public there could never be a removal could not be true in all cases and it would depend on the seriousness of the misconduct.  VL in any event is merely a decision of the same level of tribunal.  It is distinguishable in several major aspects – including the fact the registrant did what Ms Honour failed to do – report herself to her regulatory body, even if there was a delay in doing so.  Also she was removed from the register at first instance.  Furthermore there was nothing inherently scandalous with her actions in having an affair with the child’s father – unlike  the present case where there was a criminal conviction for a serious matter of  dishonesty.  Also the Tribunal in VL said that a suspension might have been appropriate if the matter had been decided earlier. It was submitted that VL actually supports and upholds the decision in the current case.onour failed to do to do

 

 

 

9.      Consideration by the Panel

9.1 We considered the sanction.  We had regard to Rule 25 (2) of Schedule 2 of the Rules, which required us to take into account the seriousness of the misconduct, the protection of the public, the public interest in maintaining confidence in social care services and the issue of proportionality.  We reminded ourselves that it is no function of  sanction  to punish or further punish the registrant.

 

9.2 We considered insight.  We concluded that in lying to the police and maintaining that lie from 27 November 2007 when the accident occurred, to 4 September 2009 when she finally entered her guilty plea ( a period of some 21 months) Ms Honour had shown a serious lack of insight.  She had failed to take several clear opportunities to retract her lie.  Some remarks in her statement, such as her belief that the police had no evidence to show she was not the driver, suggested that her decision to lie to the police was at least in part, a calculated act on her behalf.  Other remarks in her evidence suggested that at least part of her motive to first tell the lie and then perpetuate it arose from a desire to protect her own interests, including her relationship with her partner and her membership of the profession. VL was distinguishable in several significant aspects, including the fact that VL had done what Ms Honour had failed to do – namely to retract her lie and report herself to her regulatory body.

 

9.3 However we did accept that she now has full insight into her misconduct.  She pleaded guilty to the criminal allegation and fully admitted the disciplinary proceedings, and has tendered her apologies and shown contrition.  There is no risk of repetition, and there was no risk to the public or to service users. 

 

9.4 We considered the seriousness of the misconduct.  We noted the many authorities which state that dishonesty will lie at the top end of seriousness for any professional person and that it will usually require removal of the registrant.  We accepted that many of the aggravating features of dishonesty as set out in the ISG were not present, but we considered never the less that the dishonesty was serious.  There was a criminal conviction and a suspended sentence, which were aggravating factors in themselves.  As the sentencing judge had said, the misconduct struck at the administration of justice and passed the custody threshold.  It was a serious matter for a social worker, who is expected to work closely with the police in her professional life, and who can be expected to be fully open and frank with them, should lie to them to protect her own interests. A further aggravating feature  was the length of time the lie was sustained.  Most of the factors which were set out in the ISG which make a suspension appropriate were present in this case and many, but not all of the factors which could make a removal appropriate, were also present. 

 

9.5 The failure to report the matter was a further serious aspect of misconduct.  The regulatory body, in fulfilling its statutory duty to regulate its members in the public interest, have to rely on its members to declare any matters which bring into question their good character.  We accepted Ms Honours failure was not just a matter of a failure to report the conviction from 5 – 15 October 2009, but was a much longer failure to report the fact she had lied to the police on 27 November 2007, and been prosecuted for it.

 

9.6 We considered the mitigating factors as set out in the ISG.  We gave full weight to her lengthy record within the profession.  She is a good social worker and in the normal course of events was an asset to her profession.  We gave the fullest consideration to the many character references, which in our view not only supported her excellent work record but also established that this was conduct which was out of character for her.  We did not find she had a general propensity to deceive, although she had acted in a deceptive manner over a considerable period of time in this instance. We did not think it was correct to characterise her admitted misconduct as a single one off matter.  There was delay in the case but this had mostly been caused by Ms Honour herself.

9.7 We accepted that the lie to the police, although spoken  by her, was not initiated by her, but by the actions, words and pressure of her partner, and was given under pressure of time, and in circumstances where her loyalty to her partner was being manipulated.  Of course many of these factors have less weight the longer she maintained the lie.  We accepted the lie occurred outside her professional work, but we did conclude a criminal conviction of this nature and the facts which underlay it would cause legitimate public concern and be detrimental to public confidence in the profession.

9.8 In conclusion we unanimously agreed the sanction of 2 years suspension imposed by the conduct committee was proportionate, fair and necessary. It did not in our view infringe Article 8 rights more than was necessary.  We confirmed the decision of the Conduct Committee and did not allow the appeal.

 

 

John Burrow

 

Judge HESC/CST

 

15 September 2010