Mr Leo W Kirk

Profession: Social worker

Registration Number: SW27774

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 09/04/2018 End: 16:00 10/04/2018

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

1. Whilst registered as a Social Worker you breached professional boundaries in that:

a. on or around 4 November 2016 you accepted around £450.00 from Service User A;

b. on or around 18 November 2016 you sent a text message to Service User A stating words to the effect ‘I won’t forget and here is my personal number’;

c. between around 4 November 2016 and 9 December 2016 you did not repay Service User A the full amount of money referred to in particular 1a.

2. Your actions described at particulars 1a, 1b and 1c constitute misconduct;

3. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters


Proof of Service


1. The Panel found that there had been good service of the notice of hearing dated 18 January 2018 because it was sent by post to the Registrant’s address as it appears on the HCPC register.


Proceeding in absence of the Registrant


2. The Registrant has not attended the hearing today. The Panel considered whether to proceed with the hearing in the absence of the Registrant under rule 11 of the Procedure Rules 2003. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled Proceeding in the Absence of the Registrant, and followed that advice. On 22 February 2018 the Registrant signed and returned a pro-forma to state that he did not intend to appear at this hearing or be represented. Also that he admits the facts and will not be calling any witnesses. The notice of hearing sent to the Registrant stated that if he did not attend the hearing today the Panel may proceed in his absence. The Panel was reminded of the principles stated in the cases of R v Jones and R v Heywood that the Panel should exercise utmost care and caution in considering the HCPC’s application that the hearing proceed in the absence of the Registrant. The Panel finds that the Registrant has waived his right to attend this hearing and that a fair hearing can take place in his absence. There is a public interest in dealing with this case expeditiously and there is no evidence that he would attend an adjourned hearing. There is no disadvantage to the Registrant, and it is in the public interest to proceed with the hearing today, in view of the nature and circumstances of this case and the attendance of a witness, today.

Background


3. The Registrant worked for Warrington Borough Council (WBC) as an agency Social Worker from 1 March 2014 to 18 November 2016. Service User A had suffered a severe bereavement and was diagnosed with Post Traumatic Stress Disorder, anxiety and depression. The Registrant was allocated the case of Service User A on 13 March 2016 when he was working within the Mental Health team. During which he assisted her with a benefits claim and attended a tribunal hearing at which she was awarded £4,800. Subsequently the Registrant stated to Service User A that he had been a victim of fraud and about £3,000 had been taken from his bank account; as a result he was unsure whether he could make his next mortgage payment of £450 and Service User A then gave him a loan of £450, on about 4 November 2016. The Registrant left his post at WBC on 8 November 2016.

4. On 1 December 2016 Service User A was allocated a new Social Worker CN. On 9 December 2016 concerns were raised by CN with SL, Principal Manager in the WBC South/West Managed Care Team concerning money received by the Registrant from Service User A. The Registrant had repaid £100 to her but Service User A was worried about the return of the outstanding £350. She also showed CN text messages, sent by the Registrant to her on 18 November 2016, stating I won’t forget and here is my personal number, or words to that effect.

5. The matter was treated as a safeguarding concern by WBC and reported to Wisemove Consulting (the Agency) who also carried out an investigation. On 12 December 2016 SL telephoned the Registrant and asked whether he had borrowed money from Service User A. The Registrant denied this and stated that he was with a client and would phone back the following day. He did telephone SL the next day, admitted he had received the money and expressed regret that he had let down Service User A and WBC. He stated that he had been suspended from his new post with Salford City Council (SCC) pending an investigation.

6. The matter was then referred to the police but they advised that a criminal offence had not been committed by the Registrant. 

7. The outstanding £350 was repaid to Service User A by WBC on 21 December 2016 in cash. WBC then received a cheque for £450 made payable to Service User A, with a note from the Registrant stating “for [Service User A] with sincere regret for the stress I have caused her”. This cheque was returned to the Registrant. WBC was reimbursed by the Agency, for the cash payment of £350.

8. An audit of the Registrant’s caseload by WBC did not disclose any further concerns, indeed he was praised by almost all of the Service Users contacted. Also Service User A stated that she did not want to get the Registrant into trouble.

9. The Panel heard submissions from the HCPC and accepted the advice of the Legal Assessor. The Panel considered sequentially:

1) Whether the factual particulars are proved;
2) If the proved facts amount to misconduct, and if so;
3) Is the Registrant’s fitness to practise currently impaired?

Decision on Facts


10. The burden of proof is upon the HCPC on the civil ‘balance of probabilities’, in relation to findings of fact. Whether any proved facts in this case amount to the statutory ground of misconduct and the issue of current impairment, are not matters which need to be ‘proved’. They are matters of judgement for the Panel.

11. The Panel found the HCPC witness SL to be honest, credible and reliable. She was clearly trying to assist the Panel and stated if she was unsure about any matters. The Registrant has not attended this hearing or provided a response to the allegation.

12. Particular 1(a): states that on or around 4 November 2016 the Registrant accepted £450 from Service User A. This particular was admitted by the Registrant when he returned the telephone call from SL. This was substantiated by the evidence of SL and the evidence of two repayments made to Service User A by or on behalf of the Registrant. The Panel finds it is proved.

13. Particular 1(b): states on or around 18 November 2016 the Registrant sent text messages to Service User A stating I won’t forget and here is my personal number, or words to that effect. This particular is also admitted and confirmed by the exhibit showing a copy of the text messages sent by the Registrant. Accordingly the Panel finds it is proved.

14. Particular 1(c): states between 4 November and 9 December 2016 the Registrant did not repay the full amount loaned to him by Service User A. This particular is also admitted. It was substantiated by the evidence of SL and the evidence of the dates of part repayments made to Service User A by the Registrant. The Panel finds it proved.


Decision on Grounds

15. Article 22(1) of the Health and Social Work Professions Order 2001 states:

This article applies where any allegation is made against a registrant to the effect that—
a) his fitness to practise is impaired by reason of—
i. misconduct

16. Misconduct is a word of general effect, involving some serious act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances. The conduct complained of must be serious to amount to misconduct.

17. The Registrant’s behaviour in respect of particular 1a was sufficiently serious to amount to misconduct, it would be regarded as deplorable by other members of the profession and it involved serious misconduct in the exercise of professional practice.

18. The Panel finds that the allegation of misconduct, arising from the proved factual particular is well founded, in respect of particular 1a.

19. The Panel finds that the Registrant’s behaviour was in breach of the following standards.

20. The HCPC standards of conduct, performance and ethics (2016):

1.7 - You must keep your relationships with service users and carers professional.

9.1 - You must make sure that your conduct justifies the public trust and confidence in you and your profession.

21. Also the HCPC standard of proficiency for social workers (2012):
 3.4 - be able to establish and maintain personal and professional  boundaries.

22. The Registrant’s behaviour in respect of particulars 1b and 1c was not sufficiently serious to amount to misconduct. The Panel finds that a part repayment of the money lent was made and there is evidence of the Registrant’s intention to make full repayment before Christmas 2016. The sending of the text message was likely to have been intended to reassure Service User A that she could still contact the Registrant after he had left the Council in relation to repayment of the money. Whilst sharing personal mobile contact numbers is not acceptable practice for a Social Worker, in the context of the circumstances of this case it does not, in the Panel’s view, reach the threshold of serious misconduct.


Decision on Impairment


23. The Panel considered the HCPC Practice Note on Finding that Fitness to Practice is Impaired. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:

1. The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

2. The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

24. In respect of the public interest, the following guidance was provided in the case of Grant: In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider…whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made. In respect of the public component the finding of misconduct in respect of particular 1a arose from an abuse of a position of power by the Registrant with regard to his professional relationship with a vulnerable Service User. Accordingly, there is a current impairment of fitness to practise under the public component, because this is necessary to maintain public confidence and uphold the HCPC standards of conduct in the context of this particular case.

25. In respect of the personal component in the case of Cheatle it was stated that in order to form a view of a Registrant’s fitness to practice, it was necessary to look at the way in which the person concerned has acted in the past. In the case of Wingate v SRA [2018] EWCA Civ 366 the Court of Appeal stated that integrity is a broader concept than honesty and connotes adherence to the ethical standards of one’s profession and the duty to act with integrity applies not only to what professional persons say, but also what they do.

26. The HCPC submits that although dishonesty is not alleged in this case the Registrant has demonstrated ‘a blatant lack of integrity’.

27. The Panel finds that the Registrant has demonstrated a lack of integrity and abused his position of power in respect of a vulnerable Service User by reason of the misconduct arising from particular 1a. He has not engaged in this hearing and the Panel cannot be satisfied that there is no significant risk of repetition of his misconduct. There has been no insight or remediation of this serious misconduct demonstrated.

28. The Panel therefore determined that there is current impairment of his fitness to practise under the personal component.

Decision on Sanction


29. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the circumstances of this case and to its findings on the facts, the statutory grounds and current impairment.

30. The Panel has considered the submissions made on behalf of the HCPC and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had regard to the HCPC Indicative Sanctions Policy (ISP). This states that any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

31. The Panel first identified the aggravating and mitigating factors that it should take into account.

32. The aggravating factors are:

• The Registrant’s misconduct caused distress to a vulnerable Service User.
• There has been no insight or remediation demonstrated by the Registrant.
• The Registrant took advantage of his knowledge of the financial award made to Service User A by a Social Security Tribunal.
• His misconduct arose from the abuse of a position of power by the Registrant.
• The Registrant has demonstrated a lack of integrity with regard to his professional relationship with a vulnerable Service User.

33. The mitigating factors are:

• The Registrant made admissions at an early stage in respect of all the factual particulars.
• He promptly repaid some of the money borrowed, had a clear intention to repay the balance before Christmas 2016 and made attempts to do so.
• He has expressed his regret and remorse in writing to Service User A, in a note sent in December 2016 to WBC.
• The Registrant sent text messages to reassure Service User A that she could still contact him after he had left WBC and would be repaid.
• The facts proved relate to a single isolated incident in an otherwise unblemished career.
• An audit of Service Users did not disclose any further concerns, indeed the Registrant was praised by almost all of the Service Users contacted, including Service User A.

34. The Panel has considered sanctions in ascending order of gravity. All sanctions are available in this case. Taking no action would not reflect the seriousness of the misconduct and would not be appropriate in this case.
35. The Panel has decided that a caution order is not an appropriate sanction in this case. A caution order would not address the outstanding concerns, would not be in the public interest and would not safeguard the reputation of the profession. The misconduct was not relatively minor, remedial action has not been taken and there is therefore a risk of repetition.
36. The Registrant’s misconduct might be capable of being remedied but there is no indication of a willingness on his part to comply with conditions of practice. The Panel concludes that conditions of practice are not an appropriate sanction in this case because practicable and workable conditions cannot be formulated.
37. The Panel concludes that a suspension order for 12 months is the appropriate sanction. Suspension is required, in view of the seriousness of the misconduct, in order to protect the public and the reputation of the profession and act as a deterrent to other Registrants.
38. The Panel has considered imposing a striking off order but decided not to do so. Striking off is a punitive sanction of last resort for serious or deliberate acts where the matters raised are unlikely to be resolved. Striking off would be disproportionate at this stage.
39. The Suspension Order will be reviewed by another panel before it expires. The reviewing panel is likely to be assisted by the Registrant’s attendance at the review hearing. This should enable the Registrant to demonstrate the extent of his remorse, insight and remediation.

Order

ORDER: The Registrar is directed to suspend the registration of Mr Leo W Kirk for a period of 12 months from the date this Order comes into effect.

Notes

Interim Order


Following the announcement of the sanction and the Registrant’s right of appeal, the Presenting Officer applied for an interim suspension order. The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed by the notice of hearing dated 18 January 2018 that such an application might be made, and he has not responded with regard to that warning. The Panel accepted the advice of the Legal Assessor to consider whether an interim order was necessary to protect the public and in the public interest because of the nature and seriousness of the findings made. If the Panel identifies clear public interest concerns that is a factor in favour of proceeding in the Registrant’s absence. The Panel finds it is unlikely that an adjournment would secure the Registrant’s attendance and is satisfied that it is appropriate to direct that the Registrant’s registration should be suspended on an interim basis. This order is required for the protection of the public, and a fair minded member of the public would be dismayed by the absence of such a restriction. The Panel has concluded that the appropriate length of the interim suspension order is 18 months, as an interim order would continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal with the 28 day period. 

Hearing History

History of Hearings for Mr Leo W Kirk

Date Panel Hearing type Outcomes / Status
08/04/2019 Conduct and Competence Committee Review Hearing Suspended
09/04/2018 Conduct and Competence Committee Final Hearing Suspended