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

IN THE FIRST TIER TRIBUNAL

Case Ref: [2010] 1784.SW

 

Between:

 

 

MARK LAURENCE FRANCIS Appellant

 

and

 

GENERAL SOCIAL CARE COUNCIL Respondent

 

 

 

Before:  Mr Andrew Lindqvist, (Nominated Tribunal Judge),

Ms Linda Redford,

Mr Tim Greenacre

 

 

Heard on the 21^st  September 2010

 

 

 

The Appellant appeared in person.

 

Mr J Lynch of Counsel (instructed by the Treasury Solicitor) appeared for the respondent.

 

 

 

1.  The appellant appeals under section 68 of the Care Standards Act 2000 against the decision of the Registration Committee of the General Social Care Council (‘GSCC’)  made on the 22^nd March 2010 to refuse his application for registration as a social worker under section 58 of the Act.

 

2.  The appellant appealed by notice dated the 11^th June 2010.  On the 13^th August 2010 a telephone Case Management Conference was held and directions were given for the appellant to file witness statements by 5 p.m. on the 27^th August, for the respondent to prepare a bundle by 5 p.m. on the 10^th September and for the appeal to be heard at Pocock Street on the 21^st September.

 

3.  The appellant complied with the directions, sending in a witness statement by his wife to the Tribunal by e-mail on the 26^th August.  For some reason, that statement did not find its way into the bundle.  The appellant did not have a copy with him at the hearing but the Tribunal secretariat was able to retrieve his e-mail and forward it to Pocock Street so that, after a short adjournment, the Tribunal was provided with copies of the statement.

 

4.  At the hearing Mr Lynch briefly outlined the history of the appeal and the appellant then addressed the Tribunal.  Neither side formally adduced oral evidence, though inevitably in the case of an appellant in these circumstances, the line between evidence and submission becomes a little blurred.

 

The law

 

5.  The relevant provisions are to be found in Part IV of the Care Standards Act 2000.  Section 56 requires the GSCC to maintain a register of social workers.  Section 57 relates to applications for registration.  Section 58 requires the GSCC to grant the application if it is satisfied that the appellant a) is of good character, b) is physically and mentally fit and c) satisfies certain conditions relating to training, conduct and competence.

 

6.  The regulations about conduct and competence are contained in the General Social Care Council (Registration) Rules 2008. Rule 4(3) provides that in connection with his application for registration, a social worker must provide evidence of (i) good character (including endorsement from his employer), (ii) good conduct, (iii) physical and mental fitness and (iv) competence.

 

7.  Further guidance about applicable standards of character and conduct is given by the GSCC Code of Practice for Social Care Workers. It relates primarily to the relationship between social worker and service user but includes being honest and trustworthy (clause 2.1), not behaving in a way which would call into question suitability to work in social care services (clause 5.8), meeting the relevant standards of practice and working in a lawful, safe and efficient way (clause 6.1) and informing the employer or appropriate authority about personal difficulties which might affect ability to work competently and safely (clause 6.3).

 

 

 

The background to the appeal

 

8.  Mr Francis studied social work at the University of Exeter and was awarded a degree and a Certificate of Qualification in Social Work in July 1984. He had previously been awarded a degree in Law at Sheffield University; it was during his studies there that he was convicted of assaulting a policeman during a demonstration against the National Front.

 

9.  Having qualified, Mr Francis worked consistently as a social worker, joining the London Borough of Haringey's community mental health team early in 2002.

 

10.  Mr Francis was by that time an approved mental health professional (' AMHP ')  under the Mental Health Act 1983 and rules now contained in the Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008.

 

11.  It is the practice for each AMHP to be ' warranted ' by his employer.  The warranty lasts for a limited period and so is subject to periodic renewal. Such re- warranty is, of course, a process entirely separate from registration as a social worker with the GSCC.

 

12.  The requirement for social workers to be registered with the GSCC was introduced in 2005.  In late 2004 the London Borough of Haringey (like, no doubt, other employers up and down the land) sent ' registration packs ' to its social worker employees.

 

13.  Mr Francis says that he did not receive a pack, possibly because he was moving between teams at the time, but he accepted before the Tribunal that he knew that packs had been given out and accepted in a statement made for a disciplinary hearing on the 4^th October 2006, though not signed, that he became aware of the requirement for registration in about October 2004.

 

14.  Mr Francis accepted that he did not apply for registration, but continued to work as a social worker and AMHP. Early in 2006 it became necessary for him to be re- warranted as an AMHP and it was discovered that he could not be re-warranted because he was not registered as a social worker with the GSCC.

 

15.  It is clear that in the spring of 2006 Mr Francis was beset by personal problems and was suffering from stress.  His GP gave him two medical certificates (Med 3) for two periods of a fortnight each, 1^st to 14^th June and 14^th to 28^th June.

 

16.  When it came to presenting these to his employer, Mr Francis was unable to find the second certificate, so to confirm the four-week period, he altered the ‘2 weeks’ on the first certificate to ‘4 weeks’.

 

17.  On the 11^th April 2006,, Dr Andrew Dickson, an occupational health physician, had seen Mr Francis and found ' some stress-related symptoms but not such as to constitute a clinically significant illness '.  Dr Dickson thought Mr Francis to be ' fit for all of his duties, full time without the need to (sic) formal adjustments '.

 

18.  On the 2^nd August 2006, Mr Francis was suspended, on full pay, during investigation into his failure to register. Dr Dickson saw him again on the 10^th August, he had suggested on the 11^th April that Mr Francis see his general practitioner for a blood sugar test and it was found that he was diabetic.  In Dr Dickson's opinion that condition would not prevent him from carrying out his duties and his psychological health was very much as previously assessed, perhaps a little better.  It was, said Dr Dickson, extremely unlikely that diabetes would have led to inability to register as a social worker.

 

19.  A disciplinary hearing was held on the 4^th October 2006.  Mr Francis sought to have it adjourned because, having been seriously assaulted the previous weekend, he suffered panic attacks on leaving his home.  Mr Francis's general practitioner saw him on the 3^rd October and wrote saying that he was suffering from symptoms of acute stress.

 

20.  It so happened that Haringey Council also sought an adjournment, apparently wishing to add a further matter to the case against Mr Francis.

 

21.  Both adjournment applications were refused.  The findings at the hearing were (i) that Mr Francis had failed to register and that that amounted to gross misconduct, for which, in the circumstances, a final written warning was appropriate, (ii) that Mr Francis continued to act as an AMHP without registration and that that also amounted to gross misconduct meriting a final written warning and (iii) that Mr Francis fraudulently amended a medical certificate to show ' 4 weeks ' instead of ' 2 weeks ', that was gross misconduct for which he should be dismissed.

 

22.  Mr Francis appealed against the dismissal. His appeal was considered on the 29^th January 2007, the dismissal was rescinded and Mr Francis was reinstated.  The appeal panel found that his alteration of the medical certificate was not fraudulent, because Mr Francis was in fact covered by medical certificates for the four-week period.

 

23.  The reinstatement did not, of course, mean that Mr Francis could return to work as a social worker because he was still not registered, but he did go to work as a support worker in a mental health day care centre.

 

24.  Mr Francis applied for registration in April 2008.  Not surprisingly, it took the GSCC some time to investigate the background; e-mails suggest that the London Borough of Haringey could have been a little quicker in providing information.

 

25.  On the 26^th November 2009 the GSCC informed Mr Francis that it was minded to refuse his application for registration and had accordingly referred it to the Registration Committee under rule 14 of the 2008 Registration Rules.

 

26.  The Registration Committee met on the 13^th January 2010 and decided to adjourn to allow Mr Francis to make oral submissions, as he had requested. The Committee heard Mr Francis's oral submissions on the 22^nd March 2010 and decided to refuse his application for registration. The basis of the Committee's refusal was i) Mr Francis's failure to register as a social worker, ii) his working as an AMHP while unregistered,

iii) his failure to inform his employer about personal difficulties and iv) the lack of any adequate endorsement of his application. The Committee discounted as matters barring registration, the 1979 conviction for assault, the alteration of the medical certificate and some admitted deficiencies in Mr Francis’s paperwork.

 

The issues before the Tribunal

 

27.  Mr Francis's case before the Tribunal was substantially the case he had put forward at the disciplinary hearing and appeal and to the Registration Committee.

 

28.  Mr Francis's wife, who was from Pakistan, survived an assassination attempt and an assault by the police (including being deliberately run over by a truck) in her country before coming to the United Kingdom.  She suffers from arthritis, ankylosing spondylitis and hepatitis C., which was treated with protracted chemotherapy.  Her constant pain was relieved by Copraxamol until it was withdrawn.

 

29.  Mrs Francis became irritable and depressed and the marriage suffered.  There were incidents of domestic violence.  Mr Francis broke down in tears at work and was referred to a psychiatrist but felt unable to keep appointments because of pressure of work.  In December 2004 Mr Francis's mother died, and in July 2005 he contracted a viral illness.  It is also now apparent that he was suffering from then undiagnosed diabetes.

 

30. With specific reference to the registration provisions, Mr Francis says that he had lost his original birth certificate in a fire in 1992 and a copy was not acceptable to the GSCC.  He found it very hard to assemble the seven utility bills, apparently acceptable as an alternative.  The London Borough of Haringey was of little help with the registration process.

 

The Tribunal’s findings

 

31.  In its assessment of the severity and impact of the matters relied on by Mr Francis, the Tribunal observed that at no stage did Mr Francis discuss his problems, domestic or medical, with his employers as is suggested by the Code of Practice. He faces the difficulty that either the matters he puts forward were not very grave in which case, while he may be justified in not informing his employer, they provide scant excuse for failure, or they were serious enough to excuse failings, in which case the situation certainly should have been reported.

 

32.  There is no doubt that Mrs Francis had suffered grievously in her country of origin, no doubt that for that and other reasons, Mr Francis’s domestic circumstances could be difficult and no doubt that he was suffering from undiagnosed diabetes.  There is, however, considerable doubt about the impact of those problems on Mr Francis.  Not only did he fail to report any problem, but when he did see Dr Dickson (twice) the doctor on each occasion reported that there was evidence only of minor stress-related symptoms, which should have no substantial effect on Mr Francis’s ability to carry out daily activities including professional duties.

 

33.  Equally unconvincing in the Tribunal's view, was Mr Francis's case about bureaucratic problems.  His original birth certificate is the entry on the register.  What is commonly referred to as a birth certificate is a certified copy of that entry.  For a small fee, one can usually obtain further certified copies if the first one has been lost or destroyed.  Mr Francis appears to have struggled on since 1992 with no ' birth certificate ' without ever seeking to obtain another certified copy.

 

34.  The point was fairly and well made in Mr Francis’s favour that, in his dealings with service users, he was an excellent social worker, always ready to ' go the extra mile ' for those he was committed to help.  In his recent capacity as a support worker, Mr Francis had achieved a WOW award for outstanding customer service, an award based on the opinions of service users.

 

35.  The Tribunal, however, was very aware that a social worker's duties extend beyond good service to customers.  Unless accurate records are made and available, it may be impossible for others to act appropriately in relation to a customer. However, good Mr Francis's service to his customers might have been, its benefit would have been limited if their needs were not recorded so that others’ help could be equally effective.

 

36.  That appeared to be the suggestion behind the allegations of poor practice, considered by the Registration Committee.  The Tribunal had far too little evidence to make any finding in that respect, but did discern in Mr Francis a somewhat cavalier disinclination to attend to paperwork, which in the Tribunal's view was substantially the reason for his prolonged failure to register, and probably also contributed to his fraudulent alteration of the medical certificate -- a misdeed of which the Tribunal was inclined to take a more serious view than had the Registration Committee.

 

37.  The Tribunal therefore found that Mr Francis's failure for many months to apply for registration was serious misconduct for which the matters advanced in mitigation provided little by way of excuse.  In the Tribunal's view, the alteration of the medical certificate was also a serious matter, notwithstanding the doctor's certification on another document.  Like its predecessor, the Tribunal discounted entirely the 1979 conviction.

 

38.  In the Tribunal’s view Mr Francis’s working as a social worker and AMHP while unregistered was also a breach of clauses 2.1 and 6.1 of the Code of Practice for Social Workers.

 

39.  The Tribunal noted the exiguous nature of Mr Thomas Brown's endorsement of Mr Francis's application.  He signed the certificate that he was not aware of any reason why the applicant should not be registered, but added, ' There are organisational concerns about Mr Francis's ability to practise competently '.

 

40.  The Registration Committee had therefore asked Mr Francis to obtain from his employer some improvement on that rather equivocal endorsement, but he did not do so.  Neither did his case before the Tribunal contain anything of that sort beyond his wife's statement (which the Tribunal accepted despite the lack of a statement of truth) that he was an unusually gifted and effective social worker, and a similar and more expansive character reference from a Mr Charles Tyack.

 

41.  Having carefully considered all the evidence, the Tribunal was unable to find that Mr Francis (upon whom, as appellant, the burden of proof lay) had provided evidence as to his good conduct so as to comply with rule 4(3)(a)(ii).

 

42.  While Mr Francis's character as regards service to customers was apparently very good, there were evidently organisational failings which had hindered the provision of an endorsement from his employer. In the Tribunal's view, bearing in mind the paucity of any other support, Mr Thomas Brown’s properly cautious benediction was not an endorsement sufficient to satisfy rule 4(3)(a)(i).

 

43.  For those reasons, the Tribunal unanimously dismisses his appeal.  Under section 68(2) of the Care Standards Act 2000, the Tribunal unanimously therefore confirms the decision of the Registration Committee to refuse Mr Francis's application for registration under section 57.

 

 

 

Andrew Lindqvist (Nominated Tribunal Judge)

Linda Redford

Tim Greenacre

 

27^th September 2009