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

 

 

 

Care Standards Tribunal

 

 

The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

 

Jennifer Brownbill

-v-

GSCC

[2012] 1963.SW

 

 

 

Before Judge Nancy Hillier

Mrs Carol Caporn

Mr James Churchill

 

 

Heard 18 July 2012 Wellingborough Magistrates Court

 

 

DECISION

 

 

 

Representation

 

Ms Brownbill was represented by Mr Philip McLeish

of Counsel, acting Pro Bono.

The Respondent was represented by Ms Caoimhe Daly of Counsel

 

Appeal

 

1.     The Applicant appeals under s 68 of the Care Standards Act 2000 (CSA) against the decision of the Conduct Committee of the General Social Care Council (‘GSCC’) of 30 March 2012 to suspend her name from the register for a period of two years.

 

The Law

 

2.     Under section 56 of the CSA 2000 the GSCC maintains a register of social workers and section 59 allows the GSCC 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 (“the Rules”)

 

3.     The Rules provide at Schedule Rule 25:

 

 

 “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

the issue of proportionality.”

 

Burden and Standard of Proof

 

4.     It is for the Appellant to demonstrate that the decision of the Committee in respect of sanction was wrong. The Tribunal does not approach an appeal completely afresh; we must still pay careful attention to the reasons given for the decision of the Committee at first instance.

 

5.     We heard short evidence from Ms Brownbill who was cross examined by Ms Daly and heard the submissions of both Counsel, who had both provided detailed and useful skeleton arguments.

 

 

Background

 

6.     In October 2010 Ms Brownbill’s neighbours complained to the police about a strong smell of cannabis coming from her home. Sergeant Bowden visited her home and she refused him entry. Ms Brownbill was arrested later in the day at a council tip where she was trying to dispose of bin bags containing cannabis plants. A search of her home revealed equipment used to cultivate cannabis. Ms Brownbill was interviewed and admitted growing the drug for her own use. She was cautioned after CPS review.

7.     The allegation of misconduct against Ms Brownbill was as follows:

 

“whilst registered as a Social Worker, you:

 

were issued with an Adult Simple Caution on 1 December 2010 by West Yorkshire Police for being concerned in the Production of Cannabis”

 

8.     Ms Brownbill attended and was represented at the GSCC conduct hearing on 29 and 30 March 2012. There were factual issues concerning her understanding of the legal caution she had accepted, whether the caution was for “simple” possession of cannabis and whether she had been honest in her police interview when she had stated that she had grown the drug for her own use or in her subsequent statement that she had lied to cover for a family member.

9.     The Committee heard her evidence and that of Sergeant Bowden, the arresting officer. They were satisfied to the relevant standard that the factual matters were proved and that the conduct amounted to misconduct. The Committee recognised that Ms Brownbill had accepted that her behaviour called into question her suitability to remain upon the register and that this admission was made in respect of paragraph 5.8 of the Code of Practice for Social Care Workers:

 

5.8 Behave in a way, in work or outside work, which would call into question your suitability to work in social care services.

 

 

Issues

 

10. Ms Brownbill does not appeal against the Conduct Committee findings but appeals as to sanction alone, a matter which was carefully clarified by the panel at the start of the hearing. Mr McLeish accepted that he could not go behind the caution and that whichever version of events was true his client had lied. He submitted that the sanction was disproportionate, whilst accepting that an admonishment would not have been appropriate. Ms Daly submitted that the seriousness of the circumstances meant that the appropriate sanction bordered on removal, and that a 2 year suspension was entirely proportionate.

 

The sanction

 

11. After hearing from the GSCC’s case presenter, Mr McLeish and the Legal Adviser, the Committee decided to suspend the Applicant for a period of two years. They gave the following reasons for their decision:

 

“The Committee considered that the facts of this case were not exceptional and were too serious for there to be no sanction.

 

12. The Committee took into account that Ms Brownbill had engaged in a course of conduct rather than an isolated incident, that there was no element of duress and that she had displayed limited insight and remorse for her behaviour. The Committee was also concerned about Ms Brownbill’s demeanour when giving her evidence, that she had challenged police evidence and that she had made critical comments in respect of legal advice provided to her at the time she accepted the caution. They concluded that her behaviour “indicates some deep seated attitudinal problems”. 

13. Mr McLeish referred the committee to VL v The General Social Care Council [2008] 1032SW. In respect of an otherwise unblemished record the Committee took into account paragraph 62 “…her dedication and her commitment and her high level of performance at all other times was just sufficient to counterbalance her serious but uncharacteristic misconduct at that time”.  and Ms Brownbill’s work record as presented in evidence and testimonials. 

 

Tribunal’s conclusion with reasons.

 

14. We carefully took into account the evidence of Ms Brownbill, the written submissions, the oral submissions and the written evidence, including the transcript of the Conduct Committee hearing. We did not have the testimonial evidence which had been before the Conduct Committee however it was agreed that Ms Brownbill had significant support.

15. In setting out some general principles regarding sanctions the Indicative Sanctions provide:

 

“In deciding what sanction to impose, the Conduct Committee should apply the principal of proportionality, weighing the interests of user of services and public with those of the registrant. The Committee should consider the options available starting with the least severe and moving to the next, only if satisfied that the sanction is not sufficient to protect users of services and the wider public interest.

 

The General Social Care Council exists to protect the public and to promote the public and to promote high standards of practice. The Conduct Committee should use its powers where necessary to protect the public:

1. By protecting people who use services and colleagues from the risk of harm
2. By safeguarding public trust and confidence in social care services generally
3. By upholding high standards of conduct among social care workers.”

 

Later in the same section of the Indicative Sanctions document it is provided:

 

“The Committee will ensure that any sanction imposed is proportionate, in all the circumstances of the case. This will involve a consideration of:

1. Any mitigating or aggravating features of the misconduct in question
2. The personal circumstances of the registrant and any mitigation advanced
3. Any testimonials and character references adduced in support of the registrant
4. Whether there is any evidence of a pattern or trend in behaviour”

 

 

16.  We also paid due regard to the Conduct Committee decision. We however had the benefit of Ms Brownbill’s explanation about her conduct at that hearing, her mental illness and the benefit of hearing directly from Ms Brownbill with an understanding of how her mental health condition can affect her giving evidence. We were aware from her statement about the effect of stress upon her, and made careful allowance for this. Ms Brownbill was very emotional but was able to compose herself and we were able to assess her remorse, attitude to offending and the damage to the reputation of social work.

17. We are satisfied to the relevant standard that Ms Brownbill has shown consistent remorse for her behaviour. Throughout the written evidence there are references such as “Defendant has expressed extreme regret”...and “…also she expressed extreme regret”. In her statement to the Conduct Committee Ms Brownbill said “…if I bring my profession into disrespect then potentially all social workers credibility and collective reputations may suffer, I am extremely sad and concerned that such a valuable and altruistic profession may suffer due to my actions “

18. In her statement made for this hearing she reiterated “In reflecting upon the possible causal effects of my actions and the conduct committees criticism of me I do feel very genuinely remorseful that any public knowledge of my criminal actions may have brought my profession into disrepute and even made some individual social workers tasks more difficult by reducing their credibility, or their ability to confront service users whose parenting is poor due to drug use.I have a very genuine respect for my colleagues and am extremely regretful if an already difficult task has been made more difficult with some groups of service users. The public knowledge of my criminal actions may not affect younger children but I am very aware that adolescents and adults could use my actions to justify their own illegal drug use.”

19. We were satisfied that in her evidence before us Ms Brownbill continued to demonstrate genuine remorse.

20. We were also satisfied that Ms Brownbill is now showing significant insight into her behaviour and it’s potential effect on others. She accepts that she has lied and that her previously unquestioned professional honesty has thereby been tarnished. She stated that she believes in “fundamentally treating all individuals with respect and in being a trustworthy individual as lying is disrespectful of others. I apologise for being disrespectful to my regulator and as I expressed in my second (undated statement) “I am very ashamed of what I have done and I know that telling more lies to the GSCC will be viewed very seriously. With hindsight I think I have behaved quite arrogantly and defensively and made excuses for my behaviour when no excuse is in fact acceptable for this offence or my behaviour”  Ms Daly tested Ms Brownbill’s evidence and we were satisfied that the evidence was genuine and reflected a period of reflection which had enabled Ms Brownbill to understand the effect of her behaviour on public perception and on the work her social work colleagues undertake.

21. Having found that Ms Brownbill has and continues to show genuine remorse and that she has come to a position where she can demonstrate significant insight we cannot agree on the evidence before us that Ms Brownbill has “attitudinal problems”. It is unfortunate that the Conduct Committee were not made more explicitly aware of Ms Brownbill’s mental health condition as her apparent attitude clearly affected their reasoning.

22. We have carefully considered the indicative sanctions guide. This is a serious offence and there is accepted dishonesty. We note however that there was no suggestion of supplying cannabis to any other person and that the police and CPS believed that the matter was suitable for caution. We have concluded that the circumstances would not warrant an admonishment.

23. Having weighed into the balance the remorse and insight demonstrated by Ms Brownbill, the fact that her demeanour can be affected by her mental health and the fact that in a lengthy career no other issue of dishonesty or substance abuse has been suggested we have decided that a suspension of 2 years is disproportionate.  We took into account the fact that Ms Brownbill has been unable to work in her profession since November 2011 and has been suspended since March 2012. Whilst in our view the public would expect her to be unable to work in her profession for a period of time in order to acknowledge the effect on public perception of her conduct and on the reputation of social workers there are other considerations to be borne in mind. There is substantial mitigation in this case and we have concluded that Ms Brownbill should be able to work as a Social Worker again in a shorter timescale. Bearing in mind her suspension from work in November 2011 and her suspension from the Register effective from 30 March 2012 we have concluded that she should be able to return to work in November 2012. We therefore substitute the sanction imposed as follows:

 

Order: The Appeal is allowed.

 

The decision to sanction the Applicant by way of 2 years suspension is not upheld.

 

We substitute a decision that Jennifer Brownbill shall be suspended from the Register of Social Workers until 5pm on 31 October 2012.

 

Tribunal Judge Nancy Hillier

Lead Judge Care Standards and Primary Health Lists

 

Date Issued: 1 August 2012