Long v GSCC [2010] UKFTT 491 (HESC) (20 October 2010)

In the First-tier Tribunal

Between:

CLARICE LONG

Appellant

GENERAL SOCIAL CARE COUNCIL

Respondent

[2010] 1767.SW

DECISION

Before: Tribunal Judge Meleri Tudur

Ms Margaret Diamond (Specialist member)

Ms Denise Rabbetts (Specialist member)

Hearing held on the papers at Mowden Hall, Darlington on the 24^th September and 6^th October 2010

APPEAL

1. Mrs Long, (the Appellant) appeals under section 68 of the Care Standards Act 2000 against the decision of the Conduct Committee of the General Social Care Council (“the Respondent”) issued on the 21^st April 2010 to Admonish the Appellant and to direct that a record of the admonishment be placed on her entry on the Register for a period of 18 months from that date.

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 General Social Care Council (Conduct) Rules 2008.

3. The Conduct Rules provide at Rule 25 of Schedule 2 that the Respondent’s Conduct Committee must, upon making a finding of misconduct decide upon the appropriate sanction. In this case the Conduct Committee concluded that it would be inappropriate not to sanction the Applicant, but that she should be the subject of an Admonishment which should remain recorded on her registration for a period of 18 months from the date of the decision. 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

(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;

(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 Appellant’s registration as it sees fit.

The Issues

6. The charges brought against the Appellant were as follows:

(a) Part 1: Whilst registered as a social worker and whilst working as a social worker for the Lewisham Borough Council (LBC) carried out an assessment of a service user but did not seek the authorisation of a manager to sign off the care plan and did not ensure that the electronic case recording system contained the up to date details of his level of need, the current services being provided, his contact details and those of his next of kin;

(b) Part 2: Did not respond appropriately to the information that there had been no reply from the service user’s home on the 20^th and 21^st December 2006;

(c) Part 3: Did not respond appropriately to the information that there had been no reply from the service user’s home on the 22^nd December 2006.

(d) Part 4: On the afternoon of the 22 December 2006, left the office without providing a handover note to the manager or colleagues and was on leave from the 23 December 2006, thus placing a vulnerable service user at risk of significant harm.

7. The Appellant admitted some of the allegations and the Conduct Committee found some of the paragraphs in all four parts of the allegations proved.

BACKGROUND

8. The Appellant was awarded a Certificate of Qualification in Social Work awarded by CCETSW in 1990.

9. She started work as a hospital social worker (Senior Practitioner) in April 1991 at the University Hospital in Lewisham.

10. On the 16 October 2004, the Appellant successfully applied to be registered as a Social Worker and her name included in the Social Care Register.

11. In 2006, the Appellant was employed by Lewisham Borough Council as a Care Manager at Lewisham Hospital within the hospital Adult Services Team under the supervision of Mrs Janet Green.

12. In December 2006, a service user, GT, was an inpatient at the hospital and received treatment for a broken arm. Prior to his discharge from hospital on the 20 December 2006, GT was assessed by the Appellant who prepared for him an Intensive Care Plan.

13. The Care Plan required that GT should receive home visits three times a day, once in the morning, once at lunchtime and another during the evening to assist him with his personal hygiene and cooking. There also had to be an additional visit each week. The visits were to be conducted by an outside agency.

14. All the information relating to the service user’s care plan should be recorded on the internal recording system called SWIFT. The records should have contained the details of the care plan as well as the service user’s personal details such as his deafness and the contact details of his next of kin.

15. The Appellant failed to record the relevant information into the system and failed to obtain management approval for the care plan that she had devised.

16. Between the 20 December 2006, the date on which the service user was discharged home from hospital, and 22 December 2006, the agency workers attending his home were unable to gain entry. They contacted Lewisham Borough Council to inform them of this and the Appellant was made aware of the service user’s failure to open the door. She advised them to keep trying to gain access to his property. She did not inform her managers or take any other steps to ascertain whether the service user was safe and well.

17. On the 22 December 2006, the Appellant went on annual leave and wasn’t scheduled to return to work until the 3 January 2007. Despite being alerted that the agency had made five unsuccessful attempts to visit the service user, the Appellant failed to alert anybody else to the problem and failed to handover the case to somebody else for cover whist she was away.

18. On the 27 December 2006, the Appellant’s line manager, Mrs Janet Green returned to work from annual leave and was informed that there were further unanswered calls to the service user’s home, and that he had not been seen since his discharge from hospital on the 20 December 2006.

19. The police attended the service user’s home and found him dead. He was later determined to have died from hypothermia although the date of death was not established.

20. The Appellant was the subject of an inquiry and a disciplinary hearing on the 15 May 2007. The Appellant admitted some of the allegations of misconduct but denied that she had failed to adequately respond appropriately to the information received by her from the care agency regarding their inability to gain access to the service user. The allegation was nevertheless found proved by the Disciplinary Panel and the Appellant was found to be guilty of gross misconduct.

21. The sanction imposed upon the Appellant was that she should be demoted to the unqualified post of Reviewing Officer and the subject of a written final warning for an indefinite period which would remain on her personnel file.

22. On the 5 June 2007, the Appellant appealed against the decision of the Disciplinary Panel.

23. On the 16 August 2007, the appeal was heard and by letter dated 7 September 2007, the Appellant was notified that Aileen Buckton, Executive Director for Community Services at Lewisham Borough Council had upheld the decision but changed the sanction. The revised sanction was that the Appellant should be demoted to the post of Reviewing Officer for a period of 1 year, after which her position would be reviewed and that a final written warning should remain on her file for the same period. The sanction was significantly less draconian than the usual sanction of summary dismissal because the Disciplinary Panel took into account the Appellant’s lengthy unblemished record of employment.

24. The Appellant did not return to work at Lewisham Borough Council following her suspension in January 2007 and resigned her position shortly after receiving notification of the appeal decision.

25. In October 2007, Lewisham Borough Council referred the complaint to the Respondent.

26. At about the same time, the Appellant gained employment as a social worker in Bexley Social Care. In December 2008, she informed them of the outstanding complaint against her and she was dismissed.

27. There is no record of the Respondent having taken any action in relation to the referral made by Lewisham Borough Council until August 2008. At that time, the complaint was referred to the Conduct Committee who commenced their investigations into the allegations.

28. An interim investigation report was prepared on the 6 August 2009 and the final investigation report sent to the Appellant on the 17 November 2009. The report concluded that there was a real prospect of proving misconduct in relation to the complaint.

29. The Appellant responded to the report, drawing attention to factual inaccuracies within it and subsequently submitted to the Respondent her detailed written responses to the allegations and the report as well as a significant number of character references supporting her position. The hearing of the Conduct Committee was eventually convened on the 26 March, 19 and 20 April 2010 and conducted in the Appellant’s absence.

30. By notice dated 20 April 2010, the Appellant was notified that the Conduct Committee had found her guilty of misconduct. The sanction for the misconduct was an Admonishment and it was directed that a record of the admonishment be placed on the Appellant’s entry on the Register for a period of 18 months.

31. On the 12 May 2010, the Appellant appealed against the decision on the basis that the period of recording of the admonishment on her entry on the Register was disproportionate taking into consideration the delay by the Respondent in bringing the matter to a hearing; the allegation that the record of admonishment would render her unemployable as a social care worker for 3 years; that the length of recording of the admonishment should be reduced because of errors in the Respondent’s paperwork and delays in dealing with the complaint; it was alleged that the documents used by the Respondent were unfair in that the Notice to Admit Facts sought Yes/No answers and did not provide an opportunity for explanations and finally that a witness/the Respondent’s investigator had access to the Appellant’s file without authority.

Evidence

32. 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 Appellant’s Disciplinary Hearing on the 15 May 2007 and paperwork submitted by the Appellant in support of her appeal.

SUBMISSIONS

33. The Appellant’s case was based on the submission that she had remained unemployable due to disclosure of the Respondent’s investigation to both prospective and existing employers. The Appellant had informed the investigating officer on the 17 November 2009 that she had been unemployed since 5 December 2008, probably by reason of disclosure of the investigation and that a further 18 months of the admonishment being recorded would render her unemployable for the further period. She considered that this would effectively mean the termination of her career as a social worker.

34. The Respondent’s response to the appeal did not offer any explanation for the delay in processing the complaint or indicate a reason for the length of time taken in brining the investigation to a conduct hearing. In response to the Appellant’s submission regarding her employment status, it was suggested that she could have remained in her employment with Lewisham Borough Council, as she had not been dismissed by them, throughout the proceedings, suggesting that had she remained so employed then it would be likely that her status would have returned to that of a social worker.

35. It was further submitted on behalf of the Respondent that taking into account the significant failures in the case, the fact that the service user had died and that the maximum period for an admonishment to remain on the record is five years, the period of 18 months was not disproportionate.

TRIBUNAL’S CONCLUSIONS WITH REASONS

36. We considered the evidence presented and the requirements of the Codes of Practice for Social Care Workers and Employers as well as the relevant legislation.

37. There is no doubt that the period of two and a half years is a very long time for the Respondent to process a complaint arising out of a single set of circumstances and we are concerned that no explanation whatsoever has been offered, either to the Appellant or to the Tribunal, about the causes and reasons for such a significant delay.

38. However, the circumstances giving rise to the complaint were serious and in the usual run of events could well have led, on the Appellant’s own admissions, to her dismissal from her employment with Lewisham Borough Council by reason of gross misconduct.

39. The Appellant admitted to a large number of the allegations of misconduct made against her.

40. The burden of proof in relation to misconduct rests upon the Respondent in accordance with paragraph 12(1) of Schedule 2 of the General Social Care Council (Conduct) Rules 2008 but the issue of misconduct is usually a matter to be decided by an exercise of judgement or assessment on the basis of the facts found proven. On the basis of the admissions made by the Appellant in the course of the conduct proceedings, the issue of misconduct was not in dispute.

41. The only basis for the Appellant’s challenge to the Respondent’s decision was in relation to the length of the recording of the admonishment on her entry on the Register. It was therefore upon this aspect of the case that we focussed.

42. We considered the misconduct that the Appellant had admitted and concluded that it was not insignificant: it related directly to the treatment of a vulnerable service user and the Appellant was at the time a senior social worker with over 20 years of experience.

43. During those 20 years, however, the Appellant had an unblemished employment record; there was evidence before us that the work environment was disorganised and stressful and the Appellant had secured a large number of favourable character references from former colleagues and co-workers with whom she had worked over the years.

44. In considering the length of the recording of the admonishment, we took into consideration the fact that the Appellant had failed on more than one occasion to respond appropriately to the information from the care agency that they had been unable to gain access to the service user’s property, that she had left for ten days of annual leave without making suitable arrangements for a handover of the case thus placing the service user at risk of significant harm and that on the 27 December 2006, the service user had been found dead in his home, although the date of death had never been conclusively identified. We did not accept the Appellant’s submission that the incident was isolated because it took place over the course of at least two days, and as such shows a connected series of events rather than one.

45. We consider that such a serious lapse of judgement by the Appellant is not trivial and should not be treated or regarded as such. Having weighed all the positive aspects of her previous employment history against the negatives, we concluded that a recording of admonishment for 18 months from the 20 April 2010 was an accurate reflection of the seriousness of the situation giving rise to the complaint and that if the proceedings had not been significantly delayed by the Respondent, then it could have attracted a sanction of up to the maximum term of five years, rather than the shorter period imposed.

46. We did not accept the Appellant’s submission that she had been rendered unemployable by the length of time the Respondent had taken to complete the investigation. She was not obliged to surrender her employment at Lewisham Borough Council and could have remained working there until her demotion was reviewed 12 months after its imposition, and probably longer. She had notified Bexley of the ongoing investigation herself and it is unclear from the papers whether she was dismissed from there by reason of the investigation or that a short term contract was not renewed.

47. The final ground of appeal in relation to the investigator who accessed the file without authority is not an issue in respect of which this Tribunal has any jurisdiction and we draw no conclusion in relation to it.

48. We have therefore concluded that the length of time for which the admonishment is to remain recorded on the Appellant’s entry on the register is appropriate and that the appeal should be dismissed.

47. This is the unanimous decision of the panel.

DECISION

Appeal dismissed.

Meleri Tudur, Tribunal Judge

Margaret Diamond, Specialist Member

Denise Rabbetts, Specialist Member

20 October 2010

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