McCarthy v General Social Care Council [2009] UKFTT 29 (HESC) (02 April 2009)

DECISION

Appeal No [2008] 1391.SW

IN THE FIRST-TIER TRIBUNAL (HEALTH, EDUCATION AND SOCIAL CARE)

RAWLE McCARTHY

-v-

THE GENERAL SOCIAL CARE COUNCIL

-Before-

IAN ROBERTSON
(Nominated Tribunal Judge)
CAROL CAPORN
(Specialist Member)
LINDA REDFORD
(Specialist Member)

Decision

Heard on 24 March 2009
Care Standards Tribunal Service
18 Pocock Street
London SE1 0BW

Representation

Mr D Dadds for the Appellant

Mr Clarkson for the Respondent

BACKGROUND

1.	Mr McCarthy is a registered Social Worker. On 6 December 2006 the General Social Care Council wrote informing him that complaints had been received via his employer from two service users suggesting that he had formed inappropriate sexual relationships with them. A meeting of the GSCC preliminary proceedings committee was set for 8 January 2007 with a view to considering the imposition of an Interim Suspension Order (ISO). The effect of which would be to suspend his registration. The meeting took place. Mr McCarthy attended but was not represented. We have seen the minutes of that meeting and it is clear that Mr McCarthy made submissions against the making of the Order. Nonetheless the Committee decided to impose an ISO for 6 months to be reviewed in July 2007. We are told, although we have not seen those minutes, that at a review hearing in July 2007 when Mr McCarthy was represented by Mr Dadds, a further ISO was made for 12 months. On 24 July 2008 The Conduct Committee of the GSCC met to determine the allegations and made findings that the sexual component of the allegations were not proved but that Mr McCarthy was guilty of forming inappropriate personal relationships in breach of Rules 5.4 and 5.8 of the Social Work Codes of Practice. He was punished by way of an admonishment to remain on his record for three years. The ISO was revoked.
 
2.	 This is not, however, the matter before the Tribunal. 

3.	 At the time of the imposition of the ISO on 8 January 2007 Mr McCarthy was working as a locum/agency social worker for the London Borough of Haringey. Despite the ISO he continued to work as a social worker until 13 February 2007 at which point his suspension came to the notice of his employer and he was removed from post. He was reported to the police and on 4 June 2007 received a formal caution under S61 Care Standards Act 2000. We are unclear as to the exact date that the GSCC became aware of the existence of the Caution but are told that at the meeting in July 2007 reference was made to it and the decision made not to deal with this until after the issue of misconduct above was determined. In the event the Conduct Committee heard the case in respect of the misuse of title during suspension on 25 September 2008, two months after the previous Conduct Committee hearing in July. During these two months Mr McCarthy had been allowed to practice as a Social Worker by virtue of the revocation of the ISO. After a full hearing on 25 September 2008 at which Mr McCarthy was again represented by Mr Dadds, the Conduct Committee decided, the case having been effectively accepted by Mr McCarthy, to impose a suspension of Registration for 18 months. It is against that decision that Mr McCarthy appeals.
 
4.	 This case is in many ways unique as Mr McCarthy accepts that the case against him is well founded and that the punishment of suspension is appropriate. The only issue before us was the length of the suspension.

THE LAW

5.	The title of social worker is protected by virtue of S61 Care Standards Act 2000 which creates a criminal offence. S61 states as follows;

61.—(1) If a person who is not registered as a social worker in any 
relevant register with intent to deceive another (our emphasis)—

(a) takes or uses the title of social worker;
(b) takes or uses any title or description implying that he is so registered, or in any way holds himself out as so registered, he is guilty of an offence.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

6.	The power to impose Interim Suspension Orders comes from Rule 12(16) General Social Care Council (Conduct) Rules 2008;

(16) The Council may. At any time, make an application to the Preliminary Proceedings Committee (in accordance with the provisions of SCHEDULE 1) that an Interim Suspension Order should be imposed on a Registrant’s registration, on the grounds that such an order is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the Registrant concerned.

7.	Under Schedule 1 an Interim Suspension Order does not appear to be time limited although the Council or the Registrant may request a review hearing which the Committee is not obliged to consider until 3 months has passed. Upon review the Committee can continue or revoke the Order or impose a further Order. Again their appears to be no time limit imposed under Schedule 1

JURISDICTION OF THE TRIBUNAL

8.	The right to Appeal to the Tribunal is created by S68 which states as follows;

68.—(1) An appeal against a decision of a Council under this Part in. respect of registration shall lie to the Tribunal.

(2) On an appeal against a decision, the Tribunal may confirm the decision or direct that it shall not have effect.

(3) The Tribunal shall also have power on an appeal against a decision—

(a) to vary any condition for the time being in force in respect of the person to whom the appeal relates;
(b) to direct that any such condition shall cease to have effect; or
(c) to direct that any such condition as it thinks fit shall have effect in respect of that person.

9.	It follows from S68 that we as a Tribunal do not have power to hear a case de novo and apply to the Appellant whatever sanction we consider appropriate. Our power is limited to simply confirming or setting aside the decision. We can however vary, remove or add any condition that we feel fit. Initially it appeared to us that the length of suspension amounts to a condition of registration. Our attention was drawn by Mr Clarkson to S58 

58.—(1) If the Council is satisfied that the applicant—

(a) is of good character;
(b) is physically and mentally fit to perform the whole or part of the work of persons registered in any part of the register to which his application relates; and
(c) satisfies the following conditions,

it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it.

(2) The first condition is that—

(a) in the case of an applicant for registration as a social worker—

(i)	he has successfully completed a course approved by the Council under section 63 for persons wishing to become social workers;
(ii)	he satisfies the requirements of section 64; or
(iii)	he satisfies any requirements as to training which the Council may by rules impose in relation to social workers;

(b) in the case of an applicant for registration as a social care worker of any other description, he satisfies any requirements as to training which the Council may by rules impose in relation to social care workers of that description.

(3) The second condition is that the applicant satisfies any requirements as to conduct and competence which the Council may by rules impose.

10.	 It appears to us that the power of the Tribunal to impose a condition under S68(3) must mirror the powers of the GSCC to impose conditions under S58. We therefore reluctantly accept that the length of a suspension does not amount to a condition within the meaning of S68(3).
 
11.	It follows therefore that our power in this case is limited to accepting the 18 month suspension or setting the suspension aside in its entirety. This appears to us to be a wholly unacceptable position and a strange lacuna in the legislation.

GUIDANCE UPON THE ISO

12.	Despite the limit upon our powers imposed above we nonetheless consider that it is helpful to provide some guidance upon the issues that have arisen during the course of this hearing. The Rules of the General Social Care Council were promulgated before the House of Lords decision of R (On the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3. That case considered the effect of provisional listing upon the Protection of Vulnerable Adults list under S82(7) Care Standards Act 2000. Under this section the Secretary of State has power to provisionally list if s/he believes that the provider who referred the issue in question reasonably considered the worker to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult and that the worker is unsuitable to work with vulnerable adults. The effect of provisional listing is to prevent the worker from working in the field. 
 
13.	 In the cases considered by the Court it took 8 to 9 months from the decision to provisionally list to decide to confirm listing. At this point there is a right of appeal to the Care Standards Tribunal. The right to appeal against provisional listing only arises once a period of 9 months elapses. 

14.	The issue before the House of Lords was whether the system of provisional listing breached the workers Article 6 and 8 rights under the European Convention of Human Rights as incorporated into English law by the Human Rights Act 2000. Baroness Hale dealt with the heart of the issue as follows;

26.	My Lords, the scheme appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal. That premise is, in my view, correct. The issue is what should be done on the way to that decision. How is a proper balance to be struck between the need to protect the vulnerable adults, who may be at risk from a care worker who has been referred to the Secretary of State, and the need to protect the care worker from suffering irreversible damage to her civil rights, as a result of allegations which later turn out to be unfounded, even frivolous or malicious, or at the very least blown up out of all proportion? We have seen one very clear example of that in the course of this case. 
27.	No-one can be in any doubt of the need for some scheme such as this to protect children and vulnerable adults from being harmed by the people who regularly come into contact with them in the course of work. The most practicable way of providing such a scheme may well be to have a list of banned individuals which is maintained administratively and where the initial decisions are made by officials. Stanley Burnton J was told that there are about 900,000 care workers within the scope of the scheme. Referrals run at the rate of 200 a month. There were then about 2000 provisional listings and about 500 confirmed listings but only 37 cases had gone to the tribunal. If the process is working as it should, many people will accept that they should indeed be on the list. 
28.	However, in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with article 6(1), for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment. 
15.	She went on to make a declaration of incompatibility
 
16.	. It is accepted that the scheme under the General Social Care Council (Conduct) Rules 2008 is not directly comparable to the provisional listing scheme in that the procedure makes provision for initial representation and review. It should be noted however that this is limited to the issues raised by Rule 12(16) and does not allow the Registrant to tackle the substantive allegations. In this case it took the council 18 months to bring the substantive matter to hearing. At that hearing the most serious elements of the charges were not proven and the Appellant was admonished only and therefore allowed to maintain his registration and continue to act as a social worker.
 
17.	In our view this is an unconscionable delay. The word interim should be given its normal meaning and the onus is upon the Council in such cases to expedite their enquiries and hold a substantive hearing as quickly as possible. We can think of few cases that in reality would require more than 6 months to fully prepare and most should be dealt with quicker.

GUIDANCE UPON THE APPROPRIATE SANCTION FOR BREACH OF S61

18.	Having accepted that we do not have power to vary the length of suspension or substitute a different sanction we feel nonetheless that guidance in this case may be of assistance.
 
19.	In many ways S61 is critical to the whole scheme of Social work registration. It protects the title of social worker and creates a criminal offence for any person to use the title with intent to deceive another. In this case Mr McCarthy accepted that he had used the title in this way and received a formal caution for this. He knew that the effect of the ISO was to prevent him from working as a social worker yet chose to continue working in flagrant breach of the statute.

20.	We were referred to the case of R (on the application of Low) v General Osteopathic Council [2007] EWHC 2839. This case dealt with an appeal by an Osteopath from the decision of his professional body to remove him from the register. Sullivan J dealt with a number of issues regarding the issues raised, He cited a decision called Bolton v Law Society [1994] 1 WLR 512

19.	……....... often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. 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 this 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 re-admission .....
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentence imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."
20. Because of these considerations the seriousness of the criminal offence, as measured by the sentence imposed by the Crown Court, is not necessarily a reliable guide to its gravity in terms of maintaining public confidence in a particular profession. Thus a relatively minor offence of financial dishonesty may well be considered to be of the utmost gravity by the Law Society when dealing with a solicitor who has care of his clients' funds. While the offences to which the appellant pleaded guilty in this case would have been serious offences whatever the profession or occupation of the defendant, the committee were entitled to regard them as being of grave concern in terms of damaging public confidence in a profession where the professional inevitably has a one to one "hands-on" relationship with a partially undressed patient. 
27. For these reasons I am satisfied that the sanction imposed by the committee cannot fairly be described as disproportionate or excessive. No less a sanction would have sufficed to maintain public confidence in the profession. I acknowledge that this is a very sad case and I realise that the consequences for the appellant and his family will be very harsh. But, as the Master of the Rolls said in Bolton, membership of a profession brings many benefits but part of the price is the need to maintain the reputation of that profession.
21. We consider that the guidance contained herein is apposite and appropriate in this case. Mr McCarthy admitted his guilt to criminal standard. He deliberately flouted the suspension imposed upon him and continued working. There is no mitigation available to him. In our view in any case where a person is found guilty (or admits their guilt) of the criminal offence imposed under S61 removal from the Register should invariably follow. In any such case the onus should shift and it should be up to the Registrant to show good reason why the normal sanction should not be applied. Again in our view the Registrants case would have to be exceptional to escape removal.
22. We have been referred a document called the indicative sanctions guidance for conduct committees 2008. This 33 page document attempts to distil all aspects of cases to assist in sentencing. In our view the Conduct Committee placed too much reliance upon this document in determining the appropriate sanction in this case and failed to look at first principles. If a person deliberately works as a social worker in circumstances such as these it calls the whole registration system into doubt. No other sanction but removal, save in the most exceptional circumstances, can properly protect the scheme and thereby protect the public and the profession.

DECISION

23. For the reasons outlined in Paragraph 11 our powers are seriously limited. For the reasons we have enumerated it would be plainly wrong to set aside the suspension order and accordingly we confirm the Order for suspension to run for 18 months from 25 September 2008.

IAN ROBERTSON
(Nominated Tribunal Judge)
CAROL CAPORN
(Specialist Member)
LINDA REDFORD
(Specialist Member)