Opening a new frontier… worker permit scheme
Ilda de Sousa
Professional Standards Authority v Health and Care Professions Council and Gemma Williamson  EWHC 2420 (Admin)
Judgement date: 10 July 2015
Fitness to practise allegations
A Panel (the Panel) of the Conduct and Competence Committee of the Health and Care Professions Council (HCPC) heard the disciplinary hearing against Ms Williamson (W) on 1 and 2 December 2014.
W faced allegations of misconduct as follows:
"Whilst registered as a Social Worker you:
(a) provided misleading information to an employment agency who prepared and submitted a curriculum vitae on your behalf which stated that you were on a career break between August and October 2013 when you in fact were working at South Tyneside Council from approximately 30 August to 7 October 2013;
(b) Misled Sunderland Social Services as to the fact of your employment with South Tyneside Council.
The background to the charges were that W had been a social worker since 2002. W had been employed by South Tyneside Council between 30 August and 7 October 2013. During that period, there had been an incident at work with W’s former partner and the Police had been called. The Police recorded that W was a social worker and that this was a notifiable occupation. W informed South Tyneside Council of the incident, and South Tyneside Council subsequently terminated W’s employment after they had spoken to the Police.
On 10 October W received a text message from a recruitment agent about a job at Sunderland Council for a child protection role. W telephoned the agency and spoke to Mr Ozturk, a recruitment advisor about her CV. W had registered with the agency previously and they had a copy of her old CV on file. W explained that her laptop was broken, and Mr Ozturk offered to update her CV for her, with information provided by W. The updated CV was sent to W to check, and she made amendments and sent it back to the recruiter. The CV did not mention her previous employment at South Tyneside Council, and referred to W being on a career break during that period. Her last employment was detailed as with Durham Council, which was her employer before the incident at South Tyneside.
On 16 October W attended an interview with Sunderland Council at which Rosemary Pickering was present. W was subsequently offered the job, subject to references. However, the true position in relation to her last employment came to light when Mr Ozturk began chasing references, and it was discovered that W’s last employment was in fact South Tyneside Council, which had not been mentioned on her CV.
Mr Ozturk’s witness statement confirmed that W did not mention the period of employment with South Tyneside Council, and Ms Pickering attended before the Committee and gave oral evidence to the effect that during the interview there was no mention of the registrant's employment with South Tyneside Council but there was mention of her being on a career break during that period. Therefore a reference was sought from what was thought to be her last employer, which was on W’s CV as Durham County Council.
W did not attend the disciplinary hearing, however she made written representations that she did give the information about her current employment to Mr Ozturk but he had failed to record it in the amended CV that he had forwarded. She also asserted that she informed Sunderland Council during her interview about the fact that she had worked for South Tyneside. W’s assertions were not corroborated by Mr Ozturk’s witness statement or Rosemary Pickering’s evidence.
The Panel found the allegations proved, and that W’s conduct amounted to misconduct. The Panel found that W was currently impaired and found that this was an isolated incident and therefore a 2 year caution order was the appropriate sanction.
The PSA raised the following grounds of appeal:
1. A caution was unduly lenient and was not one that a committee, properly directing itself on the evidence, could have reached,
2. A caution was outside the range of responses appropriate to those findings having regard to the purpose of these proceedings,
3. The importance of the protection of the public interest and the guidance given in the indicative sanctions policy, meant that the sanction was inappropriate.
The High Court concluded that a 2 year caution order was unduly lenient in the circumstances of this case. The Panel had made an exceptional decision, which was not in line with the guidance but they had not set out within their reasons why they had gone outside of the usual guidance.
Blake, J summarises when special circumstances can be taken into account:
“Of course, there are always special circumstances that will enable the Committee to reach its own conclusion, properly applying the proportionality principle and the difficult balance that it has to make in any individual appeal. In my judgment, apart from the reflection of the fact that the registrant had now put in the details into her current CV that she had omitted deliberately in October 2013, there was no material before the Committee that could amount to any special circumstance. On analysis, the fact that she was not going to repeat the same misconduct that she had been guilty of in October is hardly evidence of insight or awareness or learning: it is simply an avoidance of committing yet further disciplinary measures by misleading future employers as to her employment history.”
The Panel had incorrectly identified that this was an isolated incident of dishonesty involving omission on W’s CV; however the Panel had not taken into account that W had denied the dishonesty. W had also tried to shift the blame onto the recruitment agency and stated that she had in fact told the interview panel about her most recent employment which was not corroborated by oral evidence.
The Court held that there was a need for consistency of approach with fitness to practise proceedings, and although they were not bound by the guidance within the indicative sanctions guidance, the Panel’s response lacked consistency and the primary need to uphold the reputation of the profession.
The Panel did not go on to consider the last sentence of paragraph 20 of the indicative sanction guidance, which in this case was the most relevant guidance, given W’s continued denial of any dishonest behaviour.
The guidance at paragraph 20 of the HCPC’s Indicative Sanction Guidance is set out below:
"A caution order is unlikely to be appropriate in cases where the registrant lacks insight and, in that event, conditions of practice or suspension should be considered."
At paragraph 28, Blake J confirms the panel were not bound by the guidance, however in cases such as this he emphasised the need to uphold the reputation of the profession and the need to protect the public “however in my judgment, the policy guidance accurately reflects the general principles repeated in many cases for many years as to the primary need to uphold the reputation of the profession as well as the protection of the public from dishonest and incompetent practitioners. The seriousness of the conduct here is not merely dishonesty but dishonesty in the context of important system of checks on social workers when seeking further employment with children.”
Blake J, confirms the approach adopted in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo  EWCA Civ 1356 [paragraph 78], that the Panel did not give due consideration to all the material circumstances it was a decision which was at odds with previous decisions.
Blake J, also offers useful guidance on the criteria to be applied when deciding whether a decision by a professional panel was unduly lenient at paragraph 73: "The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession."
This decision is a reminder to panels in relation to their primary function of protecting the public and upholding the reputation of the profession. It reconfirms the guidance in the case of Ruscillo and emphasises the need for care to be taken when considering the relevant and material facts of a case, particularly in relation to cases involving dishonesty.
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