Miss Mari Mar Serrano

Profession: Social worker

Registration Number: SW21032

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 05/04/2018 End: 16:00 06/04/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

During the course of your employment as a Social Worker at OwnLife Fostering Ltd:

 

1)    Between on or around 16 October 2015 and on or around 29 July 2016:

 

a)    You sent approximately 51 emails, as referenced in Schedule 1, containing confidential information about service users to the following individuals, who were unknown to OwnLife Fostering Ltd:

 

i)      Person A

ii)     Person B

iii)    Person C

 

2)    You, on or around 06 November 2015 provided a link to OwnLife Fostering Ltd’s electronic filing system to Person C.

 

3)    You, on an unknown date, created a document purporting to be a reference on the company’s letterhead and written by the Practice Manager, Person D.

 

4)    You, on or around 21 to 25 January 2016 provided a professional reference for Person A using your OwnLife Fostering email account.

 

5)    The actions described in paragraphs 3-4 were dishonest.

 

6)    The matters set out in paragraphs 1 –5 constitute misconduct.

 

7)     By reason of your misconduct your fitness to practise is impaired.

Finding

Background

 

1.      The Registrant commenced employment with Ownlife Fostering (“Ownlife”) on 6 July 2015, as a Senior Supervising Social Worker.


2.      On or around 27 July 2016 while the Registrant was off sick, Ownlife’s Office Manager looked at the Registrant’s emails to assist an Independent Social Worker covering in her absence to find a particular document. The Office Manager discovered a number of emails sent to a third party containing confidential information. This was reported to the Registered Manager, Person D, and subsequently a full search of the Registrant’s laptop, desktop and email account was undertaken.

 

3.      Further emails to third parties, a letter and a reference were discovered. The information shared in the emails and the content of the documents found raised concerns about the Registrant’s compliance with Ownlife’s policies, in particular its confidentiality policy. An investigation was carried out and the HCPC was informed.

 

Amendment of the Allegation

 

4.      Mr Millin, on behalf of the HCPC, applied to amend the Allegation. Notice of the intention to apply for the amendment had been sent to the Registrant by letter dated 25 September 2017. Mr Millin submitted that the amendments sought were merely to clarify the particulars in accordance with the evidence and caused no prejudice or unfairness to the Registrant.

 

5.      Ms Hurd, on behalf of the Registrant, did not oppose the application.

 

6.      The Panel accepted the advice of the Legal Assessor.

 

7.      The Panel decided to allow the application to amend the Allegation on the basis that the Registrant had been afforded sufficient notice of the allegation, she did not object, and that the amendments do not, in the Panel’s view, lead to any prejudice to her in presenting her case, simply having the effect of clarifying the allegations in line with the evidence.

 

 

Decision on Facts

 

8.      The Panel was aware that the burden of proof lies entirely on the HCPC and that it must prove the Particulars of the Allegation to the civil standard, namely the balance of probabilities.

 

9.      The Panel took into account the submissions of Mr Millin and Ms Hurd and accepted the advice of the Legal Assessor who referred to the cases of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, Lavis v NMC [2014] EWHC 4083 and Fabiyi v NMC [2012] EWHC


1441. The Legal Assessor gave a “good character” direction in respect of the Registrant.

 

10.  The Panel read documentary evidence put forward by both the HCPC and heard live evidence from Person D, Registered Manager at  Ownlife Fostering Ltd. The Panel heard live evidence from the Registrant and read her statement submitted to the HCPC in advance of the hearing. The Panel also heard live evidence from three witnesses on behalf of the Registrant, namely CP, an independent registered Social Worker and the Registrant’s previous line manager; KH, the Registrant’s friend; and MAS, the Registrant’s sister and a lawyer practising in Spain.

 

11.  The Panel was of the view that Person D was a credible, balanced and knowledgeable witness. The Panel considered CP had a good knowledge of the Registrant’s work and personality, having worked with her for some 13-14 years, as well as having been her previous line manager. He was a balanced witness, giving evidence of both the Registrant’s strengths and weaknesses. KH and MAS gave clear evidence, although because they are the Registrant’s friend and sister respectively, they are not independent.

 

 

The Stem of the Allegation

 

12.  The Registrant admitted that she was employed as a Social Worker at Ownlife Fostering Ltd as confirmed by the evidence of Person D.

 

13.  The Panel therefore found the stem proved.

 

Particular 1

 

14.  The Registrant admitted this Particular and gave evidence that Persons A, B and C were persons she had engaged to help her proof read and correct the reports and documents which she was responsible for producing while employed at Ownlife.

 

 

15.  Person D gave evidence that the emails were sent to the three people as set out in the Particular.

 

 

16.  The Panel therefore found this Particular proved.


 

Particular 2

 

17.  The Registrant admitted this Particular.

 

18.  Person D gave evidence that a link to Ownlife Fostering Ltd’s electronic filing system was provided to Person C by an email dated 6 November 2015.

 

19.  The Panel therefore found this Particular proved.

 

Particular 3

 

20.  The Registrant admitted this Particular.

 

21.  Person D gave evidence that a document was discovered on the Registrant’s desktop computer at work which was on Ownlife headed paper and purported to be written by Person D.

 

22.  The Panel therefore found this Particular proved.

 

Particular 4

 

23.  The Registrant admitted this Particular.

 

24.  Person D gave evidence that the Registrant wrote a reference for Person A, signed it as a “Senior Practitioner” at a “Fostering Agency” and sent it from her OwnLife email account on 21 January 2016 and 25 January 2016.

 

25.  The Panel therefore found this Particular proved.

 

Particular 5

 

26.  The Registrant denied this Particular.

 

27.  The Panel considered dishonesty in respect of Particulars 3 and 4 separately as advised by the Legal Assessor. In so doing, it also took account of the character evidence of both CP and KH attesting to the Registrant’s honesty and integrity, as well as the “good character” direction.


Dishonesty in respect of Particular 3

 

28.  At the start of the hearing, Mr Millin made clear in his skeleton argument that this allegation of dishonesty is brought on the basis that the Registrant acted in such a way so as to “lead a reader to believe the letter was in fact authorized by or at least acquiesced or was written/ signed” by Person D.

 

29.  The Panel took into account Person D’s evidence which was that it “was very odd…I did not understand the nature of it at all” and that it looked like it had been written by her, with her name (albeit misspelt) at the end of it. The Panel also took into account the Registrant’s evidence and the evidence of MAS.

 

30.  The Panel heard from both the Registrant and MAS that the document was sent by the Registrant to MAS on the latter’s request as a fictitious template to assist her with a professional learning course which was aimed at exposing MAS’ solicitors’ firm to aspects of international adoption law and adoption in jurisdictions outside Spain. The Registrant’s evidence was that her sister asked for her help in sending her an example of a letter dealing with an adoption matter, and that she did so by creating a fictitious letter on a document containing Ownlife’s header and footer to create a “realistic” example.

 

31.  The document itself, as drafted by the Registrant, is addressed to “whom it may concern”, and contains 3 paragraphs referring to a “full meeting review on the 19th of February/ 2016 at 11.30am at the Social Services office”, purportedly asking MAS to attend the meeting to finalise “legal procidings” (sic) for the adoption of a child, and the name given for that child in the letter is the Registrant’s own daughter, as confirmed by the Registrant and MAS. The Panel accepted the evidence of the Registrant and MAS that the document refers to a fictional scenario, referring to the names of members of the Registrant’s family. While the Registrant has an adopted daughter, the Panel accepted her evidence that she was adopted by the Registrant some years prior to the date of this document, and that this document did not refer to her adoption process in any way. There is no evidence that the letter was sent to anyone other than MAS. The Panel also took into account that this document was found on the Registrant’s desktop computer at work, and there was no attempt to hide it.


32.  On the balance of probabilities, the Panel accepted that the purpose of the letter was to assist the Registrant’s sister in her training and not to mislead anyone into thinking that the document was written or authorised by Person D. The Panel was satisfied that, taking into account the Registrant’s state of mind in this regard, the Registrant’s action in creating this document would not, on the balance of probabilities, be regarded as dishonest according to ordinary standards of reasonable and honest people who were aware of all of the circumstances.

 

33.  The Panel therefore found Particular 5 in respect of Particular 3 not proved.

 

 

Dishonesty in respect of Particular 4

 

34.  At the start of the hearing, Mr Millin made clear in his skeleton argument that this allegation of dishonesty is brought on the basis that “any reader of the reference would assume it had been authorized by Ownlife, or at the very least that Ownlife were aware of and either concurred or acquiesced with the contents of the letter, and that the Registrant was duly authorized to sign such a letter on behalf of Ownlife, none of which were true.”

 

35.  The Panel considered the reference very carefully and noted Person D’s evidence that the reference was provided in breach of Ownlife’s informal practice on references, which is that references are only to be written by Person D for Ownlife employees and would only refer to the dates of employment and any sickness record. Person D’s evidence was that even though the Registrant was not aware of this informal practice, she should have known that she was not entitled to write this reference.

 

36.  The reference was sent from the Registrant’s Ownlife email account. An instruction on the face of the reference is that the referee should send it from his or her “professional email address”. The Registrant’s evidence was that this was an “impulsive” act to assist Person A whom she knew because she had entered into a contract with Person A to help her proof read and correct her work while at Ownlife. It was on this basis that she wrote the reference. Under cross-examination, the Registrant accepted that a reader of the reference would assume that she was authorised to send the reference on behalf of Ownlife, but stated that at the time she did not intend to mislead.


37.  The Panel observed that while the reference was sent from the Registrant’s Ownlife email account, when she signed the reference, she referred to herself as a “Senior Practitioner” at a “Fostering Agency”. She did not refer to herself as a Senior Supervising Social Worker at Ownlife. The Panel considered that this was an important indication of the Registrant’s state of mind, because she was not representing herself as Person A’s line manager, and was referring to her level of seniority rather than her job title. As such, on the balance of probabilities, the Panel found that she was not consciously seeking to mislead the reader of the reference that she was writing it on behalf of Ownlife. While the Registrant ticked a box that she would “re-employ or re-admit” the applicant, the Panel took into account she had in fact engaged Person A in a personal capacity to assist with helping her by correction of her reports in the English language while at Ownlife. Therefore, in the Panel’s judgment, the reference was not designed by the Registrant to give the impression that Ownlife had employed Person A, and she was not consciously seeking to give the impression that the reference was written on behalf of Ownlife.

 

 

38.  The Panel also took into account that there was no written policy on references at Ownlife, and that the Registrant had not been made aware of the informal practice. The Panel accepted the Registrant’s evidence that she was careless in the manner in which she wrote and sent this reference but that she was not consciously seeking to mislead the reader that it was written on behalf of Ownlife or that Ownlife had authorised it in any way. In light of the Registrant’s state of mind as found by the Panel, it concluded that the Registrant’s action in providing this reference, would not, on the balance of probabilities, be regarded as dishonest according to ordinary standards of reasonable and honest people who were aware of all the circumstances.

 

39.  The Panel therefore found Particular 5 in respect of Particular 4 not proved.

 

 

Decision on Grounds

 

40.  The Panel then considered whether or not the facts found proved constitute misconduct. Mr Millin submitted that all matters which have been found proved constitute misconduct. Ms Hurd on behalf of the Registrant accepted that they constitute misconduct. The Panel accepted the advice of the Legal Assessor who referred to the cases of Roylance v GMC [2000] 1 AC 311, PC and Shaw v General


Osteopathic Council [2015] EWHC 2721. The Panel was aware that whether or not misconduct is found is a matter for the Panel’s own independent judgment and that there is no burden of proof on either party.

 

41.  The Panel was satisfied that, in acting in the ways found proved in the decision on facts, the Registrant breached the following parts of the Code and Standards:

 

 

Standards of proficiency. Social Workers in England (2012)

 

2. 3 understand the need to protect, safeguard and promote the wellbeing of children, young people and vulnerable adults

 

2. 7 understand the need to respect and uphold the rights, dignity, values and autonomy of every service user and carer

 

7              be able to maintain confidentiality

 

10. 2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines

 

Standards of conduct, performance and ethics (2016)

 

1               Promote and protect the interests of service users and carers

 

5              Respect confidentiality

 

Manage your health

 

6.3     You must make changes to how you practise, or stop practising, if your physical or mental health may affect your performance or judgement, or put others at risk for any other reason.

 

42.  The Panel reminded itself that a breach of any Rules or Standards does not necessarily mean that misconduct exists.

 

 

43.  The Panel was of the view that the breaches of confidentiality in Particular 1 were very serious and that confidential and sensitive information about families and children were disclosed to three people outside Ownlife, who were not authorised to receive it. This had the potential to breach the trust placed by foster carers and their families in Ownlife to keep their information private. It also had the potential to put


at risk the trust placed in Ownlife by local authorities who hold responsibility for Looked After Children (LAC). The Panel found that these actions fell seriously short of what was expected of the Registrant as a registered Social Worker of longstanding experience, and decided that they constituted misconduct.

 

44.  The provision of the link to Ownlife’s electronic filing system to Person C, as set out in Particular 2, was a serious failing. The Registrant’s evidence was that she initially considered also giving Person C the password to access Ownlife’s confidential records and documents which could be viewed if the link was accessed. However, she saw sense and changed her mind, being aware that it would be wrong to do so. There is indeed no evidence that she provided Person C with the password. Regardless of the fact that she did not provide the password and therefore the documents could not actually be accessed by Person C, the Panel decided that the provision of the link in itself was serious enough to fall short of the standards of confidentiality expected of the Registrant. It was one step taken by the Registrant in potentially allowing an unauthorised third party to access the confidential information and therefore placed families and children at risk if their confidential information were to become compromised. The Panel was therefore satisfied that this action constituted misconduct.

 

45.  The Panel concluded that the action in Particular 3 did not constitute misconduct. This was a provision of a template by the Registrant to her sister on Ownlife headed paper intended to help her sister in her training in adoption law and procedures in the UK. It was intended for no other purpose, was read by no one else and did not mislead any party. The Panel was satisfied that this was not serious enough to constitute misconduct.

 

46.  With regard to Particular 4, the Panel was satisfied that this reference was not dishonest on the Registrant’s part. It was however misleading in that a reader could assume that the reference was provided on behalf of Ownlife because it was sent from the Registrant’s Ownlife email account. The Panel was satisfied that this action had the potential to compromise the reputation of Ownlife, and was an inappropriate use of Ownlife’s email account. The Panel found that this fell sufficiently short of what was expected of the Registrant as an experienced Social Worker working in an organisation which functions to protect the interests of children and foster families, with a need to uphold its reputation for trustworthiness and transparency. The Panel therefore found that this action constituted misconduct.

 

 

Impairment

 

47.  The Chair confirmed that at the hearing on 12 and 13 February 2018 the Panel had handed down its decision on both facts and grounds.  It had found that the facts found proved in particulars 1, 2 and 4 amounted to misconduct.

 

The Registrant’s Evidence

 

48.  The Registrant took the oath.  She explained she is presently working full time in an Academy where students take GCSEs.  This job did not require a Social Work qualification.  She explained that in the job she uses her experience and knowledge as a social worker in working with children with challenging behaviour. 

 

49.  The Registrant said she had reviewed her position when this referral occurred. She had decided not to work as a Social Worker whilst this present case was being conducted.  She had needed to provide for her family and so had obtained her current job.  She said she loved her profession and had over 20 years of experience. She told the Panel that she wanted to return to Social Work if she was permitted to do so. 

 

50.  The Registrant said she has spoken to her professional mentors and previous line managers. She said they had been supportive. She realised she had made a big mistake and she understood that.  She had also discussed data protection issues and had looked at the basics of her social work practice.  She had done a self-critical examination of her behaviour. She said she had tried to keep up to date with Social Work generally by reading online updates.  She said she is undertaking a GCSE course in English to improve her written English.

 

51.  The Registrant confirmed she had left Ownlife Fostering Limited in 2016. She said that she hoped to return to the Social Work profession but would want to start part time. She knew it was a demanding job and realised she had not coped in what was a different social work environment and working sector.  She accepted she had put her interests above those of service users and agreed that she had done what she did in order to keep her job. She accepted she had to improve her written English.  She recognised that the public would consider her behaviour had been unprofessional and she had placed service users at risk.

 

52.  The Registrant said she would seek employment with a local authority as a Social Worker and would not seek to work again with a private foster care agency. She considered working with children and families in a public sector to be her strength and where her twenty years of experience lay. 

 

53.  The Registrant said that if she found herself again in a stressful work environment, she would seek informal supervision from colleagues and managers. Her experience was that local authorities had better support services and occupational health support. She said she would never repeat what she had done as she had had a horrible time since the events. She had reflected and would now tell her manager she was not coping, and if the situation persisted, considered looking for a new job. She recognised she had to get up to date with her profession and so she would seek part time social work employment initially as she wanted to do it well. The Registrant said these events had humbled her and she was financially able to cope with a part time social work role. The Registrant said she did not deal with confidential information in her current job at the Academy, but was conscious of the need to take care with emails and other information. She understood now that confidentiality must never be breached, and the importance of seeking support when necessary.

 

Submissions

 

54.  Ms Sheridan, for the HCPC, made submissions to the Panel regarding whether the Registrant’s fitness to practise is impaired. She referred the Panel to the HCPTS Practice Note on Impairment.  She referred to the personal and public components of impairment. She invited the Panel to find that the Registrant had put her own interests before those of service users. She referred the Panel to the transcripts of evidence that showed that the Registrant was aware she should not have breached data protection rules. The Registrant had not undertaken any data protection courses since leaving Ownlife Fostering Limited. She submitted that the Panel must consider the risk of repetition and referred the Panel to the relevant case law, including the guidance in CHRE v NMC & Grant [2011] EWHC927 (Admin).  Ms Sheridan submitted that a finding of impairment was required to satisfy the public interest. 

 

55.  Ms Hurd submitted that the Registrant had been frank and she knew what she had done was wrong.  She reminded the Panel that it did not find dishonesty. She submitted it was a matter for the Panel to decide upon the evidence if the Registrant’s fitness to practise was currently impaired.

 

Decision on Impairment

 

56.  In considering its decision on impairment, the Panel was mindful that the purpose of these proceedings is not to punish the Registrant but to protect the public.  The Panel accepted the Legal Assessor’s advice. He advised on the issue of a finding of current impairment and the need to consider both past behaviour and to look to the future and assess risk.  He referred the Panel to the HCPTS Practice Note on Finding that Fitness to Practise is Impaired. The Legal Assessor reminded the Panel of the important guidance in CHRE v NMC & Grant [2011] EWHC927 (Admin). He advised the Panel to exercise its own professional judgement on this issue, on which there was no evidential burden.  He stressed to the Panel the central importance of protecting the public and the wider public interest considerations, including public confidence in, and the reputation of, the profession and the regulator.

 

57.  The Panel considered the personal component of impairment and the need to protect the public. The Registrant displayed a high level of insight, She was clear and honest and had significantly reflected on her behaviour. She explained in her evidence to the Panel her thinking about her actions and what she would do differently in the future. The Registrant’s competence is not an issue. She explained that she knows what she needs to do to return to the social work profession and she is working on improving her written English.

 

58.  The Panel is satisfied that the Registrant understands where she went wrong and it has determined that she is not likely to repeat the behaviour.  The Panel does not find the Registrant is currently impaired on the personal component. Further, the Panel found that there is no need to make a finding of impairment in order to protect the public as the risk of the Registrant repeating the behaviour is low.

 

59.  The Panel considered the wider public interest; that of declaring and upholding proper standards and maintaining public confidence in the profession and the regulator.  The Panel determined that the finding of misconduct and the facts found proved represent a fundamental breach of a tenet of the profession; that of integrity. The actions of the Registrant were serious and repeated and breached confidentiality.  Her actions breached the confidentiality of not just service users but also the local authority and foster carers. 

 

60.  A member of the public must be able to have the utmost trust and confidence in a Social Worker. The Panel found that the public  component is fully engaged.  Accordingly, in order to uphold proper standards and to maintain confidence in the profession and the regulator, the Panel found that the Registrant’s fitness to practise is currently impaired.

 

 

 

Submissions on Sanction

 

61.  Ms Sheridan for the HCPC referred to the findings on impairment and referred the Panel to the HCPC Indicative Sanctions Policy. She submitted that to impose no order would be an exceptional outcome and was not appropriate in this case.  She highlighted that the Registrant is previously of good character and has not been subject to any previous HCPC proceedings.

 

62.  Ms Hurd reminded the Panel of the Registrant’s current circumstances and that she has not worked in a social work role while these proceedings were outstanding. She reminded the Panel that it had decided that the risk of repetition of the behaviour by the Registrant was low. She said the Registrant was seeking to improve her written English and was willing to do what it took to reassure the public that she can practise safely. Ms Hurd suggested that if conditions of practice were considered, the Registrant would be willing to undertake a course in data protection, in English as a second language and a professional skills writing course. Ms Hurd suggested a six or nine month period would be appropriate and she would not oppose a Conditions of Practice Order.

 

Decision on Sanction

 

63.  The Legal Assessor referred the Panel to the HCPC Indicative Sanctions Policy and reminded it to act proportionately. He advised the Panel to consider sanctions in ascending order and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind the public interest and that the primary purpose of sanction is protection of the public.  He reminded the Panel that the Registrant was previously of good character.

 

64.  The Panel identified the following mitigating factors:-

 

       the behaviour occurred over a short period of time.

       the Registrant has carefully reflected on her actions.

       the Registrant has shown a high level of insight.

       a low risk of repetition.

the evidence that her behaviour was out of character.

       the Registrant was of previous good character.

       an unblemished career as a Social Worker of over 20 years.

       the Registrant had fully engaged with the HCPC process and made full admission on the facts found proved from the outset of the proceedings.

 

65.  The Panel considered that the aggravating factors were :-

 

       There were some 30 emails involved which contained highly confidential information that had the potential to cause harm, although there was no evidence of actual harm.

       The data breach affected not only the Local Authority but also undermined confidence in, and the reputation of the employer, Ownlife Fostering Limited. 

 

66.  The Panel considered the HCPC Indicative Sanction Policy and approached sanctions in ascending order of severity. The Panel considered that taking no action or mediation would not be appropriate and would be inconsistent given its finding of misconduct and impairment.    The Panel next considered a Caution Order.

 

67.  In all the circumstances, the Panel determined that a Caution Order for a period of 2 years was the proportionate and appropriate sanction. No issue of public protection arose. 

 

68.  The Panel determined that a Caution Order will serve to mark the seriousness of the Registrants behaviour and demonstrate to the public that proper standards need to be upheld.  The findings are such that the Panel determined that the imposition of a Caution Order for two years would mark the seriousness of the matter.  

 

69.  The Panel considered that a Conditions of Practice Order would be disproportionate as it went further than was necessary to address the public interest. Such an order would not be realistic and serve little purpose given the Panel’s findings of no impairment on the personal component.

Order

Order:  That the Registrar is directed to annotate the register entry of Miss Mari Mar Serrano with a caution which is to remain on the register for a period of 2 years from the date this order comes into effect.

Notes

 

Hearing History

History of Hearings for Miss Mari Mar Serrano

Date Panel Hearing type Outcomes / Status
05/04/2018 Conduct and Competence Committee Final Hearing Caution