Nichola Jane Evans

Profession: Social worker

Registration Number: SW05653

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 02/08/2018 End: 16:00 03/08/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

 

During the course of your employment with Manchester City Council, you;

1. Were employed as a Social Worker whilst not registered with the Health and Care Professions Council between 07 May 2014 and 23 May 2016.

2. Provided incorrect information in relation to the date on which you last practiced as a Social Worker on your application to re-join the Health and Care Professions Council Register.

3. The matter set out at paragraph 2 was dishonest.

4. The matters described in paragraphs 1 - 3 above constitutes misconduct.

5. By reason of your misconduct, your fitness to practice is impaired.

 

Finding

Preliminary matters:


Service

1. The Panel had sight of information that Notice of today’s hearing dated 17 May 2018 was sent on that date by first class post to the Registrant’s registered address. It was also sent to her by email on that date.

2. The Panel accepted the advice of the Legal Assessor and determined that good service had been effected in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.
Proceeding in absence

3. Miss Thompson applied for the hearing to take place in the Registrant’s absence. She highlighted that following the service of the Notice of hearing, the Registrant called the case manager, and a note of that conversation dated 25 May 2018 was placed before the Panel. The Registrant is reported to have made some admissions about the Allegation, stating that she had received the bundle, and that while she could not attend the hearing in person, she would attend by telephone. Miss Thompson informed the Panel that subsequent attempts to contact the Registrant were unsuccessful. Ms Thompson submitted that in light of the Registrant’s knowledge of the hearing and the lack of an application for an adjournment, the Registrant had voluntarily waived her right to attend and the hearing should be proceeded expeditiously.

4. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor.

5. The Panel considered the information before it, and was satisfied that the Registrant was aware of today’s hearing. She had not applied for an adjournment and therefore if this matter was adjourned there was no guarantee she would attend in the future, it was not likely she would attend in the future. The Panel took into account that the Registrant is facing a serious allegation of dishonesty and that there is a potential disadvantage to the Registrant if the hearing were to proceed. However, the Panel also took into account the public interest in expeditiously hearing this case. In light of the position taken by the Registrant, the Panel was satisfied that it is fair to proceed.

6. The Panel therefore decided to proceed today.


Background:

7. The Registrant is a registered social worker who at the relevant time was employed by Manchester City Council (“the Council”). It is alleged that she worked whilst not registered with the HCPC and that she was dishonest when completing her HCPC renewal form.


Decision on Facts

8. The Panel heard live evidence from Witness 1, Business Manager in Children’s Social Care at the Council. The Panel read a witness statement from Witness 2, an employee in the HCPC’s registration department. The Panel also considered the final hearing bundle, including an updated witness statement from Witness 2 which the Panel was informed had been sent to the Registrant.

9. The Panel was of the view that the Witness 1 was a credible witness. She conducted the investigation into the Registrant. She gave her evidence in a clear and balanced manner and there was no suggestion that she had any animosity towards the Registrant.

10. The Panel considered what weight to give the hearsay evidence of Witness 2. The Panel took into account the seriousness of the Allegation, which includes dishonesty, as a relevant factor to consider. However, Witness 2’s evidence primarily exhibits relevant documents and records held on the HCPC’s systems, which are formal records. He is not the sole witness to fact, nor could the Panel find any indication that he has any animosity towards the Registrant or a reason to misrepresent matters. The Panel was therefore satisfied that his evidence can be given weight.

11. The Registrant has not submitted a statement or written submissions for the purpose of these proceedings.

12. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests entirely on the HCPC and that the standard is the civil standard, on the balance of probabilities. The Panel drew no adverse inference from the Registrant’s absence when coming to its decision on facts. The Legal Assessor reminded the Panel that the Registrant is of good character, and that this should be considered by the Panel when considering her credibility and her propensity to act as alleged.

13. The Panel’s attention was drawn to the telephone note dated 25 May 2018 which states that during the conversation with the case manager, the Registrant made certain admissions as to the facts. The Panel was of the view that no weight should be placed on this when coming to its decision on facts, as the Registrant has not provided formal, written admissions.

 

The Stem

14. The Panel was satisfied from Witness 1’s witness statement and oral evidence that the Registrant was clearly employed by the Council.

15. The Panel therefore found the stem proved.


Particular 1

16. The witness statement of Witness 1 states that the Registrant was employed by the Council as a registered social worker between 28 May 2007 until September 2016.  Witness 2 exhibits a screenshot of the Registrant’s registration history which shows that her name was removed from the HCPC register on 7 May 2014 due to a failed payment. The Registrant was then re-admitted to the register on 23 May 2016 following an application made dated 24 February 2016 and which is date stamped as received by the HCPC on 18 March 2016.

17. The Panel was satisfied that on the basis of the evidence that the Registrant was employed as a Social Worker by the Council whilst not registered with the HCPC between 7 May 2014 and 23 May 2016.

18. The Panel therefore found this Particular proved


Particular 2

19. On her application to re-join the HCPC register, dated 24 February 2016, the Registrant declared that the last date which on which she practised as a Social Worker was 22 October 2014.

20. Witness 1 in her witness statement and her oral evidence confirmed that, as shown by the Council’s records of the Registrant’s employment, she practiced as a social worker (albeit with some absences from work) up until 17 November 2014 when she was suspended by the Council. The Panel saw a computer screenshot from the Council confirming the date of the suspension as well as the fact that she had continued to practice up to this date. The electronic records exhibited by Witness 1 show that the Registrant worked in the period between 11 October and 30 October 2014 and also worked between 3 and 9 November 2014. The Panel accepted the veracity of these records as they are formal information about the Registrant’s employment held in the Council’s electronic system.

21. The Panel was therefore satisfied that the date of 22 October 2014 as inserted by the Registrant on the application form was incorrect.

22. The Panel therefore found this Particular proved.


Particular 3

23. The Panel considered whether the Registrant’s action as set out in Particular 2 was dishonest.

24. The Panel took into account all the evidence before it, including the Registrant’s answers in her investigatory interview with Witness 1 of 10 May 2016 as well as her personal statement attached to her application to re-join the HCPC Register dated 24 February 2016. The Panel also took into account that the Registrant is a person of good character and that this is relevant to her credibility and propensity to act dishonestly.

25. The Panel first considered the actual state of the Registrant’s knowledge and belief as to the facts. The Panel was of the view that the date of the Registrant’s suspension, 17 November 2014, was more likely than not to have been a memorable date for her, being a significant event in her employment which would have made it clear to her that she was practising until then. The Panel is fortified in its conclusion that it was a memorable day because the Registrant mentioned this date as the date of her suspension in her investigatory interview on 10 May 2016 and also stated that she “has not been working as a Social Worker since November 2014”. She therefore knew she had worked in November 2014. In addition, the electronic  records exhibited by Witness 1 show that the Registrant worked in the period between 11 October and 30 October 2014 and also from 3-9 November 2014 before being absent between 10 and 17 November 2014, the latter date being her date of suspension.

26. The Panel also took into account that the incorrect statement was given on an application to re-join the HCPC Register which was made on 24 February 2016. Despite the lack of any guidance note in the HCPC application for re-registration regarding the definition of “practise”, the Panel have interpreted this broadly to include being eligible to practise by virtue of her valid registration On the balance of probabilities, in making the incorrect statement, the Registrant sought to minimise the time during which she had practised unregistered.

27. The Panel carefully considered whether the Registrant had been merely careless or slapdash in her approach and did not know that the date she inserted in the form was incorrect. However, on the basis of the evidence before it as set out in the previous paragraphs, the Panel was satisfied that she knew that she had practised after 22 October 2014 and that her representation was incorrect. 

28. The Panel then considered whether ordinary decent people would consider that the Registrant’s conduct was honest or dishonest. The Panel was satisfied that, applying the objective standard of ordinary decent people, knowingly inserted the incorrect date in the application to join the Register, which is a formal and important document, would be considered dishonest.

29. The Panel therefore found this Particular proved. 


Decision on Grounds

28. The Panel then considered whether the facts found proved constitute misconduct. It was aware that misconduct is a matter for its own professional judgment. The Panel was aware that a breach of professional standards such as those contained in the HCPC Standards of conduct, performance and ethics (“the Standards”) was not necessarily in itself determinative of whether there was misconduct.

29. In considering misconduct, the Panel had regard to the submissions of Ms Thompson that the Panel should find misconduct in the circumstances of the case. The Panel accepted the advice of the Legal Assessor who referred to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 and Shaw v General Osteopathic Council [2015] EWHC 2721. Misconduct for the purposes of these proceedings must be serious according to the case of Roylance which makes it clear that not just any professional misconduct will fall into this category.

30. The Panel was of the view that by her actions, as found proved, the Registrant breached the following provisions in the Standards. However, the Panel was aware that breaches of such Standards in themselves do not necessarily mean that the Registrant’s actions constitute misconduct.
       
 HCPC Standards of Conduct, Performance and Ethics – 2012
       
 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.


HCPC Standards of Conduct, Performance and Ethics – 2016

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


31. The Panel took into account the document published by the Council setting out the Registrant’s “Role Profile” which makes clear the high level of responsibility of the Registrant, handling complex cases, including child protection cases, supervising new staff and students and leading in the development of policies, procedures and training. The Panel was of the view that as a senior Social Worker, who had practised for some 10 years, the Registrant should have been acutely aware of the importance of maintaining her registration.  By being employed as a social worker for some two years whilst unregistered, despite periods of sickness or suspension, the Panel was satisfied that the Registrant fell seriously short of the standards expected of her. From the period of 7 May 2014 until 17 November 2014 when she was suspended and therefore stopped practising, service users, as well as her colleagues and employer, were entitled to expect that she was on the Register.

32. The Panel took into account the Registrant’s statement in her investigatory interview of 10 May 2016 in which she stated that she first discovered that she was not registered on 21 October 2014, although she changed this to 15 November during the interview. The Registrant had the opportunity to rectify the situation, which she did not take for a significant and protracted period.

33. In addition, the Registrant knowingly provided inaccurate information to her regulator in a form which contains a signed and dated declaration. This fell far below the standards expected of her, and the fact that she did this dishonestly meant that she fell seriously short of the fundamental professional obligation of a social worker to be open and honest at all times.

34. The Panel was therefore satisfied that all matters found proved were so serious so as to constitute misconduct.
Decision on Impairment

35. The Panel then considered whether the Registrant’s fitness to practise is currently impaired. It was aware that impairment is a matter for its own professional judgment.

36. The Panel heard the submissions of Ms Thompson who submitted that the Registrant’s fitness to practise is impaired. The Panel also had regard to the HCPTS Practice Note entitled “Finding that Fitness to Practise is ‘Impaired’”. The Panel accepted the advice of the Legal Assessor.

37. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:

i. the personal component which includes insight, the risk of repetition, whether the matters raised are remediable and whether there has been remediation by the Registrant.

ii. the public component which includes the need to protect service users, maintain confidence in the profession, declare and uphold proper standards of conduct and behaviour.

38. The Panel considered the private component. The Panel took into account that the Registrant has made some admissions as to the facts which in itself is indicative of a degree of insight. The Panel also considered the Registrant’s personal statement which accompanied her application to the re-join the register as well as the references attached to her application which attest to her good practice and good qualities as a social worker. The personal statement shows a certain level of insight into the impact of failing to maintain her registration on service users she worked with, her employer and the profession. However, this was only expressed in a few sentences, and the Panel was of the view that deeper and more meaningful insight was needed. The statement also makes clear that she understands that she is personally accountable for her failure and refers to a number of extremely difficult personal circumstances which the Panel has taken into account by way of background. 

39. However, the Panel was of the view that the personal statement did not contain any real reflection on steps she would take to prevent the same failure occurring in the future. Nor does the document contain any reference to dishonesty and any insight and reflection upon that dishonesty. There is no up to date information from the Registrant about insight and remediation, which are relevant to an assessment of the risk of repetition.

40. The Panel considered the questions formulated by Dame Janet Smith in the Fifth Shipman Report as set out in the case of CHRE v NMC and Grant [2011] EWHC 927.

41. Taking this into account, the Panel concluded that there is no evidence that in the past the Registrant put service users at unwarranted risk of harm as a result of the matters found proved, nor is there any evidence that she would be liable to do so in the future. However, the Panel was of the view that she has brought the profession into disrepute and breached fundamental tenets, in acting dishonestly. In the absence of any up to date information about remediation, or any sufficient evidence of insight, the Panel was of the view that there is a real risk of repetition in the future.

42. The Panel took into account the wider public interest. The Panel was satisfied that the Registrant’s significant period of employment while unregistered, as well as her dishonesty, was in clear contravention of what a member of the public, in possession of all the facts and information about this case, would expect. As such, the Panel was satisfied that the need to uphold proper professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in the circumstances of the case.

43. For the reasons set out above, the Panel decided that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction

44. The Panel heard the submissions of Ms Thompson, read the HCPC’s Indicative Sanctions Policy (ISP), and accepted the advice of the Legal Assessor. The Panel was aware that the aim of a sanction is not to be punitive. Rather, the aim is to protect the public interest. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction.

45. The Panel identified the following mitigating factors:

i. the Registrant has shown some insight;

ii. the Registrant had difficult personal and family circumstances at the time of the misconduct;

iii. the Registrant’s lengthy period of illness;

iv. no harm caused to service users;

v. previous good character of the Registrant and no previous regulatory findings against her;

vi. positive references attesting to the Registrant’s skills as a social worker.

46. The Panel identified the following aggravating factors

i. the Registrant was a senior social worker who was in a position of authority and supervision and was meant to lead as an example to others;

ii. her employment while unregistered continued for a protracted period of time.

47. The Panel was mindful of the lack of any representations or explanations from the Registrant before it which were submitted for the purpose of these proceedings. As already determined there is little evidence of insight from the Registrant into what she did wrong nor is there evidence of any attempt to address the wrongdoing.

48. The Panel was of the view that mediation is not appropriate in respect of dishonesty to the regulator and the failure to maintain professional registration, nor would such an option address the public interest concerns.  The Panel discounted taking no further action and a Caution Order because the misconduct is too serious for such sanctions and the Panel as already identified a risk of repetition. Such sanctions would not restrict the Registrant’s practise, nor would such sanctions satisfy the public interest in this case.

49. The Panel next considered a Conditions of Practice Order but given there was no suggestion that the Registrant’s practice was defective, and in any event, the misconduct was not related to the practice of the Registrant as a Social Worker, the Panel was of the view that Conditions were not workable and would not address the concerns and risks raised by the misconduct. 

50. The Panel next considered a Suspension Order. The Panel was of the view that the misconduct found proved was serious and the Panel has already identified a risk of repetition in the future. However, the Panel was of the view that there were significant mitigating factors in this case which it has taken into account, in particular the personal and family difficulties in existence at the time of the misconduct. In addition, the Panel took into account paragraph 41 of the ISP which states:

If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option.
However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.

51. The Panel was of the view that the misconduct is remediable in principle, and that there is nothing to suggest that there are psychological or other difficulties preventing the Registrant from understanding or seeking to remedy the misconduct. In this regard, the Panel took into account the Registrant’s clear acceptance of her personal responsibility to maintain her registration, as expressed in her investigatory interview on 10 May 2016 and in her personal statement when she applied to re-join the Register. Although the Registrant’s application contained a dishonest statement, the Panel was satisfied that a Suspension Order for 1 year was a sufficient and proportionate sanction which reflected the seriousness of the misconduct but also the mitigating factors. The Panel was of the view that the maximum period of 1 year was appropriate and sufficient to mark the seriousness of the misconduct and to satisfy the wider public interest, and would not undermine confidence in the profession or the regulator, taking into account all of the circumstances.

52. In applying the principle of proportionality, the Panel took into account the effect that a Suspension Order will have on the Registrant and her right to practise. However, the Panel was satisfied that the need to maintain public confidence in the profession outweighed the Registrant’s interests in this regard. The Panel is satisfied that a Suspension Order is the only proportionate sanction in the circumstances.

53. The Panel did consider whether or not to impose a Striking Off Order but was of the view that this would be disproportionate and punitive in the context of the circumstances before the Panel.

54. The Panel therefore decided to impose a Suspension Order for a period of 1 year. The Registrant could apply for an early review if she wished. In any event the Panel was of the view that a panel reviewing the Suspension Order in due course would be assisted by the following:

i. the Registrant’s attendance;

ii. a reflective written statement addressing the Panel’s findings, and referring to the steps which the Registrant will take to prevent repetition of the misconduct in the future;

iii. information about the Registrant’s intentions relating to returning to social work practice;

iv. evidence of any CPD undertaken since the substantive hearing;

v. testimonials or references from persons, obtained since the substantive hearing, able to attest to the Registrant’s honesty and integrity.

 

 

Order

ORDER: That the Registrar is directed to suspend the registration of Nichola Jane Evans for a period of 12 months from the date this order comes into effect.

Notes

 

 An Interim Suspension Order was imposed for a period of 18 months to cover the appeal period. 

Hearing History

History of Hearings for Nichola Jane Evans

Date Panel Hearing type Outcomes / Status
02/08/2018 Conduct and Competence Committee Final Hearing Suspended