Forbes v General Social Care Council, Court of Appeal - Social workers/social care workers, October 03, 2008, [2008] EWCST 1267(SW)

Resolution Date:October 03, 2008
Issuing Organization:Social workers/social care workers
Actores:Forbes v General Social Care Council

Forbes v General Social Care Council [2008] EWCST 1267(SW) (03 October 2008)Tricia ForbesvGeneral Social Care Council[2008] 1267.SWBefore Miss Maureen Roberts, Chairman Mr Jim Lim, Specialist Member Mr Paul Thompson, Specialist MemberDECISIONHeard on 24th and 25th September 2008 at the Care Standards Tribunal, Pocock Street, London.Representation: The Applicant was represented by Mr. Martin Weinbren of the British Association of Social Workers (BASW).The Respondent was represented by Mr. David Christie of CounselAPPEAL 1. The Appellant appeals against a decision made by the Respondent on 14 February 2008 to remove her name from the Register of Social Workers. The Appeal is made under S68 of the Care Standards Act 2002. It is for the Care Standards Tribunal ("the CST") to endorse that decision or to direct that it shall not have effect: see section 68(2) of the Care Standards Act 2000.THE LAW2. The decision of the GSCC's Conduct Committee was made under S59 of the Care Standards Act 2000 (CSA) coupled with the General Social Care Council (Conduct) Rules 2003.3. Section 59, Removal etc from register of the CSA provides: (1) Each Council shall by rules determine circumstances in which, and the means by which – (a) a person may be removed from a part of the register, whether or not for a specified period; (b) a person who has been removed from a part of the register may be restored to that part; (c) a person's registration in a part of the register may be suspended for a specified period; (d) the suspension of a person's registration in a part of the register may be terminated; (e) an entry in a part of the register may be removed, altered or restored. (2) The rules shall make provision as to the procedure to be followed, and the rules of evidence to be observed, in proceedings brought for the purposes of the rules, whether before the Council or any committee of the Council. (3) The rules shall provide for such proceedings to be in public except in such cases (if any) as the rules may specify. 4) Where a person's registration in a part of the register is suspended under subsection |(1)(c), he shall be treated as not being registered in that part notwithstanding that his name still appears in it.PROCEDURE OF THE CONDUCT COMMITTEE OF THE GSCC4. The Conduct Committee operates under the GSCC (Conduct) Rules 2003. This provides that formal allegations are put to the Appellant and after hearing evidence the Appellant is asked if she admits those allegations.5. The formal allegations were as follows: While employed by the London Borough of Waltham Forest in respect of Service User A; 1) On 5 May 2005 in relation to Child A's disclosure of physical abuse by her father on 4 May 2005 you: a) Did not treat the matter as a child protection referral in that you did not: i) Initiate a child protection inquiry, ii) Inform the police, child protection response unit or partner agencies of the disclosure, iii) Arrange for Child A to be accommodated overnight in a place of safety, iv) Arrange for Child A's siblings, Child B and Child C, to be accommodated overnight in a place of safety; b) Dropped Child A off at the road side on C Road without undertaking a proper risk assessment; c) In relation to accompanying Theresa Joseph, to see Child A's parents: i) Were directed by your manager, Cheryl Sandiford, to accompany Theresa Joseph to see Child A's parents; ii) Did not accompany Theresa Joseph to see Child A's parents; d) Did not report back to Cheryl Sandiford; i) Adequately, or ii) At all. 2) On 10 May 2005 at a Strategy meeting which you attended in your role as Deputy Team Manager you: a) Chaired the said Strategy meeting, b) Did not inform the Interim Team Manager or other attendees of your involvement with Child A on 5 May 2005. 3) Between 5 May and 10 May 2005 you did not record your actions on 5 May 2005 in Child A's file: b) At all. And in the circumstances you are guilty of misconduct. All these allegations except 1(d) (i) and (ii) were admitted by the Appellant.6. Once the facts have been admitted or established the Committee, guided by the Indicative Sanctions Guidance (ISG), consider mitigation and the appropriate sanctions if any.PRELIMINARY LEGAL POINT 7. The Appellant submitted that as the Head of Conduct for the Respondent was the co-author of the Indicative Sanctions Guide (ISG) for the GSCC that this had undermined the Appellant’s right to a fair trial. His department made the preliminary screening of the case. He then signed a recommendation for the following Preliminary Committee (PPC2) as to the actions of that Committee in the Appellant’s case. His department had responsibility for the prosecution of the Respondent's case. Finally, and of most concern in the Appellant’s submission, he was the co-author of the Indicative Sanctions Guide which was followed by the Conduct Committee. 8. The Appellant argued that because the Head of Conduct for the Respondent had been involved with the Indicative Sanctions Guidance which was used by the Conduct Committee once they had established the fact of misconduct in order to determine the sanction, the decision was biased and that the GSCC was unduly influenced in its decision making process.9. We were directed to the test in R v Gough which states "The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."10. In reply the Respondent noted that ISG documents are commonplace within professional regulatory schemes. The Tribunal had the advantage of seeing such schemes for the Nursing and Midwifery Council and the General Medical Council.11. The Respondent noted that ISG documents have been approved by the courts in dealing with appeals from Regulators. Collins J stated in R (on the application of Bevan) v General Medical Council ([2005] EWHC 174 Admin, para 40) that, in relation to the GMC's ISG: "they are indeed most helpful and I note that the legal assessor in this case specifically referred to them and relied upon them in the assistance that he gave to the Committee. It does not seem to me to matter who drafted them, provided their contents are sensible and helpful, and quite clearly their contents are indeed, in my judgement, sensible and helpful."12. The Tribunal decided that the Appellant was not prejudiced. We had a copy of the ISG for the Respondents. The ISG does not seek to fetter the Conduct Committee. The Tribunal noted that the Head of Conduct was the co-owner and possibly co-author of the ISG. Certainly he had approved the document. It was helpful to see the ISG for the other professions and to note the similarities in approach. There was no evidence that the Head of Conduct for the Respondent was personally involved with the case.13. Further we accepted the guidelines suggested in the case of Bevan above and agreed that the contents of the ISG in this case was sensible and helpful. The GSCC's Conduct Committee is an independent body, made up of three (or sometimes five) members. The committee has a majority of lay members and one person with relevant experience of the applicant's area of practice; the GSCC (Conduct) Rules 2003 see Rule 7. The ISG guidance is only referred to once the facts have been established.14. The Tribunal therefore concluded that there was no real possibility or danger that the independence and impartiality of the GSCC Conduct Committee was compromised by the Head of Conduct's involvement in the ISG or the process generally. We found against the Appellant on this point.THE EVIDENCE HEARD AND READ15. We heard from the Appellant. In addition we had five bundles of some 1100 pages. The documents included amongst other documents: (1) Conduct and Disciplinary Investigation by the London Borough of Waltham Forest (the Council) including interviews with all the staff involved. (2) Minutes of Disciplinary hearing by the Council 20, 23, 25 and 30 January 2006 for the Appellant. (3) Minutes of the Appeal hearing by the Council 8 May 2006 and the decision of the appeal in a letter dated 13th June 2006. (4) Full transcript of the proceedings before the GSCC Conduct Committee 11, 12, 13 and 14 February 2008 including the decision and reasons of the Committee. (5) Statements by the Appellant for internal disciplinary appeal, for the Respondent’s hearing and for this hearing. (6) Statements by witnesses to GSCC committee. (7) Contemporaneous notes by witnesses regarding the incident complained of. (8) Minutes of the meeting on 10 May 2005.EVENTS LEADING TO THE COMPLAINT16. The Appellant qualified as a Social Worker in 1999 and was employed by the London Borough of Waltham Forest. She worked in the Children Assessment Team. In June 2005 she was promoted to be a Deputy Team Manager (DTM) in the Family Support Team Number 1.17. The incident complained of related to Child A, aged 14 (date of birth 22 July 1991), in May 2005. By way of background the family were known to Social Services. The first referral came in on 2 June 2003, so at the time of the incident on 4 May 2005 Child A and the family had been known to Social Services for about two years. The initial...

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