McNicholas v General Social Care Council  [2007] EWCST 1179(SW) (18 April 2008)

James McNicholas
                                                                                               Appellant
v
General Social Care Council
[2007] 1179.SW
                                                                                              Respondent

Before:
Mr Stewart Hunter (Nominated Chairman)
Ms Linda Redford
Ms Wendy Stafford

Heard at the Care Standards Tribunal at 18 Pocock Street London SE1 0BW on Monday 17th March 2008.  

Representation 

For the Appellant: -Mr Martin Weinbren (British Association of Social Workers)

For the Respondent: -Mr Neil Grant (solicitor)

Appeal 

1.	The Appellant appeals pursuant to Section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council (“GSCC”) dated the 24th October 2007 to remove him from the social care register, following a finding of misconduct against him.  

Preliminary Issues 

2.	The Tribunal made a restricted reporting order under Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matters likely to lead members of the public to identify the service user (who will be known as “Y” in this Decision) and his mother (who will be described as “Z”) or the Appellant’s sponsor from Alcoholics Anonymous.  

Facts 

3.	The Appellant was born on the 16th January 1959.  He has worked in the health, social and voluntary sector since leaving university in 1981.  He was awarded a Diploma in Social Work in 1996; his name was placed on the GSCC register on the 6th of September 2005.  The Appellant practiced as a social worker and then an approved social worker, from 1997 to 2005 when he was employed by the London Borough of Waltham Forest.  

4.	On the 18th of October 2004, Y was referred by his GP to the duty psychiatrist for expert assessment and advice as Y had presented with depressive symptoms which had come to a head in recent months.  It was noted that Y had been actively suicidal.  

5.	On the 19th of October 2004, Y was assessed by the Appellant as the duty social worker within the community mental health team.  After the assessment the Appellant met with his line manager, Mr Inderjeet Sandhu.  They discussed Y’s assessment and agreed that there were no mental health issues or a risk of suicide in relation to Y and that it was a low risk case.  However, it was considered that it would assist Y if he was referred to discreet counselling services to deal with his alcohol and drug problems.  It was agreed that the Appellant would write to Y with referral recommendations to counselling services.  

6.	On the 20th of October 2004 the Appellant did not go into work as he had a dental appointment where he was due to have teeth extractions and would be given anaesthesia. After his dental appointment the Appellant made telephone calls from his home to Y’s home.  

7.	On the 21st of October 2004 Y complained to his GP that the Appellant had engaged in a lengthy out of hour’s telephone call with him, where sexually inappropriate comments had been made by the Appellant. The complaint was passed to Mr Sandhu who advised the Appellant of the matter later on the 21st of October 2004.  The Appellant was said by Mr Sandhu to have expressed disbelief and denied the allegations completely.  A decision was taken that the complaint should be investigated, but as the Appellant was leaving for an extended period of leave; matters were put on hold until his return on the 25th of January 2005.  

8.	On the 29th of October 2004 Y put his complaint into writing, in which he included the following: -

“On Wednesday the 19th of October I finished work at 4.50 pm (approx) and arrived home about 30 minutes later, as soon as I walked through the door my mum gave me the home telephone and to my surprise Jim was on the other end.  I spoke to him for about 3 hours.  During this conversation Jim kept repeating himself and telling me how attractive he thought I was and that I had a lot going for me.”

Later in the same complaint Y stated that: -

“Jim then invited me to his place and to sleep with him.  I told him I would not be comfortable with this and as far as it goes that he was there to help me and nothing more.  I ended the conversation shortly after this as I felt uncomfortable.”  

Y concluded his complaint by stating that: -

“I now feel worse then when I went to see Jim and I don’t feel as though I can trust anyone with my emotions and problems again.”

9.	As part of the investigation of Y’s complaint the Appellant submitted two written statements to Mr Sandhu.  In the first of those statements, referring to the 20th of October 2004, the Appellant stated as follows: -

“In the afternoon I made two phone calls from home, one to the uncle of a homeless client, and the other to the mother of the above mentioned client (Y) in order to ascertain whether there was any substance to the idea that the attacks were racially motivated.  With hindsight it was a mistake to have done this but I had a busy day the next day and was not sure whether the mother was contactable during the day.  

His mother cried when I spoke to her, and asked us to get her son help.  During the conversation the client returned home and I spoke to him about the plan to refer to H and F.  I asked him to come to SF Centre the following day to collect information about the two projects I was referring him to; having satisfied myself that there was no racist component to the attacks.  I also advised him to make use in the interim of the support networks i.e. friends which he had, until he accessed the help that he needed.  

I can only speculate as to why these hurtful allegations have been made, but deny any inappropriate behaviour categorically.”

Accompanying his second statement was an itemised phone bill.  In the second statement the Appellant included the following: -

“I should add that that morning I had three teeth extracted and received an injection of cocaine derivative as a tranquilliser.  This may have contributed to my ability to listen, and a sense of loss of time.  I did struggle to end the conversation.  I should also add that following this telephone conversation as a result of the sedative I slept very deeply.  

I categorically deny again that I have done anything untoward as alleged, and would welcome a speedy resolution to this stressful situation.”  

10.	During Mr Sandhu’s investigation he interviewed Y and Z.  Mr Sandhu then reported the findings of his investigation to Mr Ali Davies, Borough Manager of the Mental Health Services at NELMHT.  Mr Davies considered that the matter should move to a further phase of investigation led by Waltham Forest Council.

11.      Mr John Flood a Group Manager with Waltham Forest Hospital Social Work service was asked to carry out an external investigation into Y’s complaint.  During the course of his investigation he interviewed Mr Sandhu, Y and Z as well as the Appellant on two occasions namely the 28th of April and the 11th of May 2005.  

12.	During the course of the interview on the 28th of April 2005 one of the questions Mr Flood asked the Appellant was: -

“The other general question before we get into any detail is did you say anything to Y that was a sexual question or could be construed in any way as such.”

to which the Appellant replied “No”.  

The Appellant said during the course of the interview that he was about to go on 3 months extended leave and was “working flat out to close cases…”  He was asked by Mr Flood why he had chosen to telephone Y at home on the evening of the 20th of October 2004 and he replied: -

“On the Wednesday, the day after, it was the Roding Team Away Day and I also had a dental appointment in the morning where I had three extractions and so I did not go to the Roding Team Away Day.  I have said that I was working flat out closing cases and I made phone calls from home that afternoon which with hindsight is probably a mistake.”

Mr Flood asked the Appellant why he had not kept any records of the telephone calls that he had made on the 20th of October 2004 to which the Appellant replied: -

“…………..I did not write up the notes, I accept that there is no written account of our conversation. What there is, is the assessment that I completed on the Tuesday, but there is no record of that and shortly after that I went away for three months which doesn’t look good because it wasn’t until I came back that I was asked to write anything in response.” 

It was also put by Mr Flood to the Appellant that Y had said in his original complaint that he thought the Appellant had been drinking when he had made the telephone call on the 19th of October.  Mr Flood asked the Appellant whether in fact he had been drinking at that time to which the Appellant replied: -

“No I’d been to the dentist.  I had 3 extractions and a sedative, that would explain my voice, but I haven’t been drinking.”

13.	At the interview on the 11th of May 2005 Mr Flood again asked the Appellant about Y’s complaint regarding the Appellant making sexual approaches to him.  Mr Flood said: -

”…….did you say to Y something along the lines of staying with me or sleeping with me in my bed?”

 to which the Appellant replied “Absolutely not”

At the end of the interview on the 11th of May 2005 the Appellant was asked whether he had anything to add to his account of what had occurred on the 20th October to which the Appellant responded: -

“What did occur at that last meeting, was during the very lengthy conversation, and I admit it was a mistake to make the call from home and a mistake not to record it, but during that conversation and I don’t know why and I don’t know how this person knows me but there were threats made.  One was to find out where I live, to lose my job and I don’t know why – that was the reason that I spoke to him again to explain to him.  I have known about this complaint since then I knew that this was going to happen.”

Later in the same interview the Appellant was asked whether he had spoken to his manager about the threats, when he had gone in to work, the Appellant stated that he had not mentioned them.  The Appellant also stated in his interview with Mr Flood that he believed that he had recognised Y possibly from seeing him locally, possibly some previous mental health contacts or possibly from an incident when he had been mugged and that the Appellant did not know whether Y knew him or not and that was his fear.  

14.	At the end of his investigation Mr Flood prepared a report dated the 25th of May 2005.  A decision was then taken by the London Borough of Waltham Forest to start an investigation under their conduct and discipline procedures.  Mr Bert McAlpin, Integrated Manager for Mental Health Services at the London Borough of Waltham Forest was asked to carry out the investigation.  After considering the evidence presented by Mr Flood and meeting with the Appellant on the 18th of September 2005, Mr McAlpin came to the conclusion that he agreed with Mr Flood’s recommendations that Y’s complaint should be upheld and that there was a case of gross misconduct for the Appellant to answer.  Mr McAlpin further recommended that the Appellant should be dismissed from his position as an approved social worker and that the GSCC should be advised of the Appellant’s conduct.  

15.	A Conduct and Disciplinary hearing was held on the 7th of November 2005, the Appellant having been suspended by Waltham Forest from the 27th of May 2005.  The Appellant was present at the hearing and gave evidence.  During the course of his evidence the Appellant was asked whether he had propositioned Y to which the Appellant replied: -

“No I did not proposition him.”

The Appellant was then asked why he had thought Y had made a complaint to which he replied: -

“The relationship with his mother – she knew about the drug dealing, but not the violence.  I approached the mother.  He may not have been happy about this.  He gave his consent for the information to be disclosed.  He was not happy for me to talk about the drugs.  He was not comfortable with me informing his mother about the drug dealing and violence.  I only disclosed to his mother matters for which he gave me permission…………….”

The Appellant was asked why he had not recorded the telephone conversation with Y on the 20th October.  The Appellant stated: -

“The threats made had an impact on me.  I am fearful of walking on the street.  Inderjeet Sandhu said that I should not have done anything until the complaint had been made.  I was not told fully about the allegations, but I knew the gist of the allegations were about sexually impropriety.”

16.	The chair of the Conduct and Disciplinary hearing was Mr Nick McNulty, Director of Mental Health Modernisation at Waltham Forest PCT.  On the 7th of November 2005 the Head of Human Resources Ms Louise Frayne wrote to the Appellant to inform him of the outcome of the Conduct and Disciplinary hearing.  In her letter she stated as follows: -

“Nick McNulty deliberated carefully on all of the evidence presented to him by both yourself and management and was persuaded that there was not a case of gross misconduct to answer.  

Nick McNulty concluded that there were a number of mitigating circumstances including irregular supervision with your immediate line manager, lack of written protocols and procedures and an exceptionally heavy case load which was not known to management.  He did however find that you had acted inappropriately when phoning a service user under the influence of medication from your private home telephone and that this had served to place you in a position of potential risk.  He further considered your inability to end the telephone call of 2 hours and twenty minutes and decided that despite your experience as an approved social worker you should not work in a position which grants such autonomy.  Nick McNulty also considered the failure by you to maintain adequate records including obtaining the service users consent to speak with his mother and recording the threats made by the service user towards you during the telephone conversation to be an important consideration when reflecting on the subsequent event.  

On the basis of this evidence Nick McNulty considers that a sanction under the Conduct and Discipline Procedure is appropriate and has decided that you should receive a written warning which will remain on your personnel file for a period of 18 months and that you should be demoted to the position of a social worker.”

Later in her letter Ms Frayne stated: -

“The Council is obliged to inform the General Social Care Council of the disciplinary investigation and the decision reached by Nick McNulty.  The GSCC do reserve the right to conduct their own independent investigation and will contact you directly if they deem this to be necessary.”

17.	The matter was reported to the GSCC by Waltham Forest on the 9th of November 2005 and was acknowledged by the GSCC on the 8th of December 2005.  On the 14th of November 2006 the GSCC’s Preliminary Proceedings Committee met and decided, based on the evidence and representations placed before it, that there was a real risk of finding misconduct against the Appellant and referred the matter to its Conduct Committee to decide whether misconduct has been committed and if so what sanction should be imposed.  

The Conduct Committee met to hear the allegations on the 22nd and 24th of October 2007.  The Appellant attended the hearing and was represented by Mr Martin Weinbren.  The Appellant prior to the hearing made various admissions of fact; namely that on the 20th of October 2004 he had made several telephone calls to the home of Y between 16.56 and 20.21, these calls being outside of his working hours and made from the Appellant’s home.  Further, that he had failed to make any record of the conversation and that he had not notified the GSCC of the disciplinary action taken by Waltham Forest.  Whilst admitting these facts the Appellant denied that they amounted to misconduct.  He specifically denied that during a telephone conversation on the 20th of October 2004 with Y that he had invited Y to his flat to sleep with him.  A number of witnesses signed witness statements in relation to the proceedings and also gave live evidence including Y, Z, Mr Sandhu, Mr Flood, Mr McAlpin and Ms Frayne.  

18.	Y in giving his evidence to the Conduct Committee stated: -

“After what happened it really changed my life.  I cannot seem to trust anybody anymore, because I thought I could trust Jim, who I thought, was a professional, but obviously I couldn’t trust him, as he took advantage of my state of mind.  Because of this I have not been able to hold down a job and my friendship with my friends has changed, because I do not trust anyone anymore, because of what Jim said to me.  I am also upset that this has taken so long and I still have not to this day seen a counsellor since this happened in October 2004.”  

Y was specifically asked whether during his telephone conversation with the Appellant he had threatened him.  Y replied “I certainly most never.”

19.	When giving his evidence the Appellant was asked by Mr Weinbren why he had not admitted having invited Y to sleep with him at his flat, during the telephone conversation on the 20th of October 2004, to which the Appellant had replied: -

“I haven’t admitted to that as fact simply because I have no recollection of that occurring.”  

20.	When cross examined at the conduct hearing the Appellant was asked about his allegation that Y had threatened him, to which the Appellant replied: -

“Again, the memories are limited but there is a recollection, as I said to my representative, of the client saying to me “As a social worker you’ve just lost your job” and that is the gist of it……….”

It was pointed out to the Appellant that he had also said to Mr Flood that Y had said to him: -

“…You could lose your job you know for talking to me for so long” “I can find out where you live locally” “I really don’t know how I know you.” 

The Appellant was asked whether these were statements that he had fabricated to which the Appellant replied: -

“They were fabricated – not the statement about me losing my job.”

21.	When it was put to the Appellant in cross examination that he should have kept a record of his conversation with Y he responded by saying: -

“Professionally I should have written a record, although it is hard to write a record of something that I didn’t have much recollection of.”

The Appellant was also asked how common it was for social workers to progress cases where it had been previously been determined that the case should be closed, without the authority of a line manager, to which the Appellant replied: -

“…Working as ASW it wasn’t unusual to phone people from home in the evening if it was the nearest relative and you needed to obtain consent, and I’ve done that.  I can’t speak for my colleagues, but that was the way I worked.  I have fallen foul of that but that was the way that I worked.”

Later the Appellant stated that he had obtained verbal consent from Y for the Appellant to speak to Y’s mother.  

The Appellant was again asked about the allegation that he had invited Y to sleep with him at the Appellant’s flat.  The Appellant stated that: -

“I genuinely have no recollection of that allegation.”

In relation to the alleged threat by Y the Appellant admitted that there were certain threats that he had said were made to him that were not true.  

22.	The Appellant gave evidence to the Conduct Committee that since April 2002 for a period of 2½ years he had lost control of his drinking and the consequence had been the incident at work on the 20th of October 2004.  He had had a previous encounter as a result of alcohol with the authorities in November 1999 which had led to a drink driving conviction, a 3 year suspension and community service, because he has been unable to pay the fine.  In referring to the incident on the 20th of October 2004 the Appellant stated: -

“On the day of the incident the drinking was evident.  I’d also been to the dentist and had intravenous sedation.  What I feel I have to say is that the inconsistencies and the whole process I’ve been through over the last three has resulted from one I can only describe as an alcoholic blackout………...”

He went on –

“I’d been to the dentist.  I’m a nervous patient, I’d had three extractions.  I’d had intravenous sedation.  I wasn’t expected to go back to work.  I went home.  I started doing work from home.  My judgement was impaired and I drank white wine as well, and the consequences of that I genuinely have no recollection.” 

The Appellant was specifically asked as to whether he knew whether or not he had propositioned service user Y which he replied: -

“I don’t know.  I don’t know whether I propositioned him or not, but given that I can’t remember I can’t prove it or disprove it.  I don’t know.”

He was then asked whether he might have, to which he responded: -

“It sounds…I might have.  I might have.  Anything could have happened.”

23.	The Appellant told the Conduct Committee that it had not been until the 15th of August 2006 that he stopped drinking, that he accepted that he had a problem and that he had sought help for that problem from a range of sources.

When asked whether he was under the influence of alcohol when interviewed by Mr Flood the Appellant stated that: -

“Not under the influence but I continued drinking after the incident and I guess alcohol was in my body most days.”

24.	The Conduct Committee also had before it a copy of the Appellant’s dental records, a letter from the Appellant’s dental practice and a leaflet regarding sedation.  The letter was from the practice manager Ms S Mott dated the 13th of May 2005 and contained the following: -

“This serves to confirm that Mr James McNicholas was seen at this practice on Wednesday 20th October 2004.  Mr McNicholas had an intravenous sedation and three teeth extracted whilst under sedation, he was also given local anaesthesia for the extractions.  

Mr McNicholas was advised that as a result of the sedation his reflexes and judgement may have been affected also that the effects of the local anaesthetic would linger and may have affected his speech for some hours post operatively………………..”

The intravenous sedation leaflet included the following: -

“Following your sedation you will be required to stay at the practice until the dental surgeon is satisfied that you are safe to be accompanied home by a responsible adult.  This is because your judgement may be affected for anything up to the next 24 hours.”

The leaflet also contained the following: -

“DO NOT drive any vehicle, operate machinery, use cookers, kettles or irons or make any business decisions on the same day as your treatment. Your reflexes and judgement may have been affected.

DO NOT drink any form of alcohol until the following day.”

The leaflet was signed by the Appellant under a statement which read as follows: -

“I understand and have followed the written instructions given to me.  I will abide by the post operative instructions which I have received and any further instructions which may be given to my escort.”

The form was dated the 20th of October 2004.  

25.	In their decision the Conduct Committee recorded the admissions made by the Appellant, relating to the making of the telephone call to Y and the failure to inform the GSCC of disciplinary proceedings.  In respect of the one allegation which not been admitted by the Appellant, namely that he had invited Y to his flat to sleep with him, the Committee found this allegation to be proven.  The Appellant admitted misconduct on the basis of the facts he had admitted and the one found proven.  The Committee found that the Appellant had breached a number of the provisions of the GSCC’s Code of Practice for Social Care Workers.  The Committee then considered the sanctions open to it and heard evidence and submissions in mitigation on behalf of the Appellant.  The Appellant stated that he was deeply sorry about what had happened he had sought counselling and help from Alcoholics Anonymous, (“AA”).  The Committee also heard from the Appellant’s sponsor at AA and received testimonials on behalf of the Appellant.  The Committee decided to make an order for the removal of the Appellant’s registration from the register and set out the reasons for their decision.  

26.	The Appellant in his appeal to this Tribunal indicated that the Conduct Committee should have dealt with the matter under its “health procedure” rather than the procedure that it adopted.  It was also said that the Committee had not given weight to the Appellant’s continuing sobriety and that it was disproportionate to have removed the Appellant from the register.  The Respondent disputed both of these submissions.

27.	The Appellant signed a witness statement in these proceedings dated the 6th of February 2008 in which he stated that prior to the incident in October 2004 he had had an excellent reputation and was committed to his work and the clients that he dealt with.  He had a heavy case load and there was an absence of supervision, he was inordinately stressed, between April 2002 and November 2004 he had resorted increasingly to alcohol.  He was working under a great deal of pressure and on the day of the incident he had been to the dentist and received intravenous sedation.  His behaviour had occurred as a result of dental sedation and alcohol consumption.  In paragraph 11 of his witness statement he stated as follows: -

“I believe that I have been suffering from a compulsion towards the consumption of alcohol and an impaired ability as a consequence to recognise the negative effects and excessive alcohol consumption, leading to a lowering of inhibition and doing things that overlook social, moral or legal considerations.”

 At paragraph 13: -

“However I have no recollection of the event.  I experienced an alcoholic blackout.”

The Appellant stated that he had joined a programme in Alcoholics Anonymous in August 2006 and had remained sober since then.  He spent at least 7 hours a week in AA meetings and spoke to his sponsor everyday.  He had experienced a great deal of loss as a consequence of his actions and his alcoholism.  There was no likelihood of his behaviour ever recurring as it was alcohol related and he was now free from alcohol and in recovery.  He had continued to work for his employer since removal from the register.  

28.	In addition to his own witness statement the Appellant also relied on evidence given by his AA sponsor to the Conduct Committee and the testimonials submitted to the Committee from Mr Philip Greenstone, Dr Leonard Fagin (consultant psychiatrist) and Dr David Vaughan Williams (consultant psychiatrist).  

Hearing

29.      It was clarified with the Appellant and his representative at the outset of the hearing that the Appellant accepted the findings of fact made by the Respondent at its Conduct Committee and that these findings of fact amounted to misconduct.  

30.	The Appellant gave oral evidence and said that he had no recollection of what had happened on the 20th of October 2004, he had not known what he was responding to, until such time that he had seen his itemised telephone bill.  He had an excellent reputation as a social worker and had taken on a lot of responsibility; his condition had deteriorated when he moved away from working in teams with joint visits, to a position without supervision. He had had an issue with alcohol for many years, but had lost control of the situation between April 2002 and November 2004 when he was drinking 2 or 3 bottles of wine an evening.  He had learnt a great deal and had stopped drinking as a result of following the AA programme.  Since January 2002 he had been working for adult and mental health services doing financial mapping.  

31.	The Appellant was cross examined by Mr Grant.  The Appellant confirmed that he had made a telephone call to Y on the 20th of October from home.  The Appellant had originally denied making the call because he knew something untoward had happened. On the 20th of October the Appellant said that he had gone to the dentist for an appointment at 11am and had had three extractions under sedation.  He had driven home after the appointment, although he knew he was not meant to drive, arriving home at about 1pm.  He had bought two bottles of wine and had gone to sleep for two hours.  He had then started making work related telephone calls, calling Y’s household at about 5pm having had two glasses of wine. At some point he had blacked out and become unconscious, before coming to at about 8.30pm.  All he could remember of the telephone call was Y saying towards the end “social worker lost job.”

32.	The Appellant said that he recognised that his misconduct was extremely serious and in breach of a social worker’s duty to his client.  It was hurtful for the client and a breach of everything.  He stated that before the incident had happened he was a very good social worker, always working from the client’s point of view.  He was not a risk in the future as he had taken steps to deal with his alcoholism.

The Appellant said that he had come to social work quite late, he was seen by others as a valued colleague and respected by clients.  After April 2002 he had gone from team working to working unsupervised, there should have been supervision but that was not in place.  He took more and more work on, including taking work home, he considered that he could not refuse nor could he ask for help.  He had met with a work counsellor in 2003, but had not felt able to raise the issue of his drinking.

33.	Mr Grant relied on his skeleton argument and also made oral submissions.  He submitted that the sanction imposed by the Conduct Committee was both justified and proportionate in light of the seriousness of the Appellant’s misconduct and the need to protect the public and maintain confidence in social care services.  Mr Grant relied on the case of Bolton v Law Society [1994] 2 All ER 486, in relation to the question of appropriate disciplinary sanctions, and also of the case of CRHP v GDC(1) Fleischmann (2) (2005) EWHC 87 (admin). Mr Grant submitted that this was a most serious case, there had been numerous breaches by the Appellant of the GSCC’s Code of Practice. The Appellant had telephoned Y, a vulnerable adult out of hours for no compelling reason.  He had not made a note of those telephone calls.  He also claimed during Waltham Forest’s investigation that he had been threatened by Y during the telephone conversation of the 20th October 2004, later admitting that aspects of this allegation had been fabricated.  The Appellant had made an inappropriate sexual advance to the service user, causing that service user to become distressed.  The Appellant had also failed to advise the GSCC of Waltham Forest’s disciplinary investigation.

Mr Grant also referred to the need for the protection of the public and the public interest in maintaining confidence in social care services.  The Conduct Committee had had regard to all of these matters, namely the seriousness of the Appellant’s misconduct, the protection of the public, the public interest in maintaining confidence in social care services and the issue of proportionality, as well as the mitigation evidence put forward, before deciding on the question of an appropriate sanction.  The decision to remove the Appellant from the register was appropriate and the appeal should be dismissed.  

34.	Mr Weinbren submitted that the Appellant had been a qualified social worker for 11 years and had an excellent reputation until the event in question.  He had been an alcoholic for some time and had committed a serious misdemeanour.  However, the Appellant could not be rehabilitated if he remained off the register.  He was a completely honest person and had turned his life around and was now sober.  It was necessary to look to the future and take a view that the Appellant was safe to be registered.  The event was a one off occurrence and the alcoholic basis for the Appellant’s behaviour had been removed. He should have been admonished by the Conduct Committee with conditions, but not removed from the register.  The Appellant was now a changed man, the likelihood of him being an excellent social worker in the future was very high.  This was not a high profile case and there would therefore be no impact on the public’s confidence in social care services because they were not aware of the Appellant.  The Appellant regretted what had happened and had now changed his life and his appeal should be allowed.  

The law

35.	Section 56 of the Care Standards Act 2000 requires the GSCC to maintain a register of social workers and social care workers.  Section 59 of the same Act states that the GSCC shall by rules determine circumstances in which, and the means by which; a person may be removed from a part of the register whether or not for a specified period.  The relevant rules in this case are the General Social Care Council (Conduct) Rules 2003 (“The Rules”).  Paragraph 25(1) of Schedule 2 to the Rules provides: -

“Upon a finding of Misconduct, the Committee may: -

(a)	admonish the Registrant and direct that a record of the admonishment to be placed on the Registrant’s Entry in the Register, for a period of up to five years; or 

(b)	make an order suspending the Registrant’s registration for a period not exceeding 2 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.” 

In deciding what sanction is to be imposed the Committee is required under paragraph 25 (2) of Schedule 2 of the Rules to take into account: -

“(a)	the seriousness of the Registrant’s Misconduct;

(b)	the protection of the public;

(c)	he public interest in maintaining confidence in social care services; and

(d)	the issue of proportionality.”

36.	The power of the Tribunal on an appeal is that it may confirm the decision of the GSCC or direct that it shall not have effect (section 68 (2) of the Care Standards Act).  The Tribunal also has the power to vary any condition for the time being in force, to direct that any such condition shall cease to have effect or to direct that any such condition as it thinks fit shall have effect in respect of the Appellant.  

Tribunal’s conclusions

37.	The hearing before this Tribunal is in effect a re-hearing of the allegations against the Appellant that were heard by the Respondent’s Conduct Committee.  It is not the prime function of the Tribunal to consider the procedure followed by the Conduct Committee although clearly there may be occasions where that may be relevant.  We are aware in this case that the Appellant had a number of misgivings about the way matters were dealt with by the Conduct Committee, in our view they followed the procedure laid down in the legislation, but in any event we have looked at the allegations afresh.  

38.	The Appellant accepted at the outset of the Tribunal hearing the findings of fact made by the GSCC in respect of the allegations against him and also accepted, as in our view he was bound to do, that these amounted to misconduct.   The decision for us was therefore to determine whether the sanction imposed by the Conduct Committee, namely to remove the Appellant from the register should be upheld.  

39.	The Rules in particular Rule 25 (2) sets out the matters which the Conduct Committee were required to take into account in determining the appropriate sanction.  It seems to us that these are factors that should also form the basis of our consideration.  

40.	The finding of fact made by the Conduct Committee was that the Appellant had sexually propositioned Y. The admissions made by the Appellant were that he had made telephone calls to Y and Z from his home, in the case of his telephone conversation with Z he did not have Y’s consent to discuss Y’s case with her, further that he had not kept records of the telephone conversations and that he had not informed the GSCC about the disciplinary action taken against him.  

41.	In looking first then at the seriousness of the Appellant’s misconduct we would be prepared to acknowledge that there may be circumstances where a social worker has a heavy case load so that telephone calls are made out of office hours and that records are not updated immediately, fully or at all. However these are all important issues in the context of properly managing a service which could have serious consequences and accordingly do amount to misconduct, but in themselves we would not see as being at the most serious type of misconduct.  

42.	It is clearly important and understandably a requirement that social workers notify the GSCC of any disciplinary investigation that is being undertaken in order that the GSCC can perform their regulatory role appropriately.  The Appellant failed to comply with the terms of his declaration to this effect as set out in his application for registration to the GSCC.  This could have serious implications in particular that serious matters could go undetected and it is important that the profession understands the significance of this reporting requirement.

43.	The sexual propositioning of Y by the Appellant in his telephone call on the 20th of October is undoubtedly serious and clearly in breach of the Code of Practice and is unacceptable.  Whilst in one sense it might be said that in terms of sexual conduct it is not at the most severe end of the spectrum, however there are in our view a number of factors regarding the Appellant’s behaviour which do impact on the seriousness.  The service user Y had approached the Appellant for help at a particularly vulnerable time in his life and in circumstances where the referral from his GP suggested that Y had become actively suicidal.  The Appellant was in a position of authority and trust and abused that position by propositioning Y.  The evidence from Y as presented to the Conduct Committee, which we have no reason to doubt, sets out the impact that the Appellant’s behaviour had on him and in particular his reluctance to seek further advice and treatment.  

The position has been made worse by the way in which the Appellant conducted himself after having made the telephone call on the 20th of October.  

He initially denied having made the telephone call, but then confronted with the evidence of his own telephone bill was forced to acknowledge that calls had been made by him, but continued to deny having propositioned Y and indeed went so far as to suggest  that Y had made threats towards him.  The Appellant then sought to maintain that he could not recollect what he had said in the telephone calls.  The overall effect of the Appellant’s conduct subsequent to October 2004 has been to create further distress for Y and his family, particularly by making it necessary for them to attend before the Conduct Committee, which can have only meant Y having to relive the events of the 20th of October which must have been a painful experience for him.  

We therefore take the view that it is important to look at the Appellant’s conduct as a whole and on that basis we do take the view that it does amount to serious misconduct.  

44.	The public have a right to expect social workers to operate to the highest professional standards and to have trust in their honesty and integrity.  In this case, as already identified the Appellant has breached important aspects of the Code of Practice.  He submits that having acknowledged his alcoholism; stopped drinking and obtained support from AA there is no longer a risk to the public, because his previous behaviour can be attributed to his drinking.  It is said he is now a changed man.  We have great difficulty in accepting this proposition because of the various fabrications and denials that he has made since October 2004. Even if it is accepted that his behaviour in October 2004 and in the period immediately thereafter was influenced by alcohol, we were told that the Appellant had stopped drinking on the 15th of August 2006 yet it was not until October 2007 before the Conduct Committee that he was able to acknowledge that he had not been truthful in his account of the events of the 20th of October when questioned about them.  A period of only just over 4 months has elapsed since that recognition by the Appellant that he has not always told the truth.  We therefore find it difficult in a situation where the Appellant has found it impossible to tell the truth to his employers and the regulatory authority to believe that if similar problems were to arise in the future he would not seek to try and cover up what had happened. 

45.	The question of the public interest in maintaining confidence in social care services is a wider consideration relating to the public’s trust in the reputation of the social work profession as a whole being harmed.  It was suggested to us that in this case the public had not become aware of the Appellant and his misconduct and to that extent the profession had not been damaged.  We do not accept that is a relevant consideration, we were referred by Mr Grant to comments of Sir Thomas Bingham in Bolton v The Law Society, which was a case concerning disciplinary action against a solicitor, Sir Thomas Bingham  stated: -

“…..The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.  To maintain the reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission……. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

We endorse those comments in the context of this case.

46.	Finally, on the issue of proportionality it is right that we should consider the mitigation put forward by the Appellant for his misconduct.  He gave evidence about the heavy case load that he was managing, his lack of supervision and general pressure that he was under.  As we have already indicated there may be circumstances where this would be mitigation for example telephone calls made out of office hours, records not being kept etc.  In terms of his failure to notify the GSCC of the disciplinary investigation then again the fact that it had been indicated by his employers that they were going to report matters, while not a defence to the lack of action by the Appellant nevertheless we acknowledge is some mitigation.  As regards the failure to obtain the consent of Y to discuss matters with Z, although the Appellant made admissions in relation to this, he did not appear to appreciate the serious consequences that could arise, particularly where someone has disclosed very personal information when that information is disclosed to a third party even a person’s close relative without consent.  

On the issue of propositioning Y, the Appellant suggested that this had been caused by an alcoholic blackout on the 20th of October as a result of sedation given to him by his dentist and the Appellant subsequently having consumed two glasses of wine.  Further that we should see this in the context of the Appellant being an alcoholic at the time.  In our view this has limited value as mitigation, whilst it is true that the information provided by his dentist does indicate that sedation can affect a person’s judgement and that alcohol should not be taken. It was all information that the Appellant acknowledged that he had been given prior to receiving the dental treatment and therefore he was or should have been fully aware of the possible consequences of the sedation and taking alcohol. This appears to be a risk that he was prepared to take. The guidance provided also suggested that he should be accompanied at the dentist by a friend, should not drive and as we have already said should not drink.  The Appellant did not abide by any of this advice and therefore so far as we accept that his conduct may have been affected by the sedation and the alcohol, it was a situation of the Appellant’s own making and provides little in the way of mitigation.  

47.	We have also considered the extent to which the Appellant understands the nature and affect of his conduct and the serious misconduct that has been found against him.  There is undoubtedly some understanding and the Appellant has taken a positive step in stopping drinking, but we are not convinced having heard the Appellant that he has a full acknowledgement of the aggravating factors which we have identified, such as his lies during the course of the investigation and the effect on Y. He does not seem to have addressed the reasons why in the past he took on too much work or was unable to communicate with anyone in management to alleviate the problems.  We are not clear that he would be able to disclose his alcoholism to any future employers given his difficulty in being open and frank with third parties.  

We have taken into account the stress that the Appellant stated that he was under at the time of the incident in October 2004 and the long hours that he was working, also his view that he was not being appropriately supervised or managed.  However, whilst that might lead to in some circumstances to telephone calls being made out of hours and records not being kept, we cannot see that this in itself led to the sexual propositioning made by the Appellant in his telephone call to Y.  We also acknowledge as we have done already that the Appellant is a recovering alcoholic, but that does not in our view provide an answer all of the Appellant’s problems, given his conduct since he stopped drinking, in particular the denials and fabrications that he has made.  

We take into account the Appellant’s social work history and the evidence from a number of sources that he was a good social worker and had many years of dedicated service, with no previous conduct resulting in disciplinary proceedings.  However, matters need to be considered as a whole and taking into account the Appellant’s behaviour in its totality and the various factors set out in Rule 25 (2), we come to the conclusion that the decision of the General Social Care Council to remove the Appellant’s registration from the register was appropriate.  

Our Decision is unanimous

Appeal dismissed. 

Mr Stewart Hunter (Nominated Chairman)
Ms Linda Redford
Ms Wendy Stafford
Dated: 18th April 2008