Mrs Elaine Marie Fowler

Profession: Social worker

Registration Number: SW47344

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 05/12/2018 End: 17:00 12/12/2018

Location: CCT Venues, Aldersgate House, 135-137 Aldersgate Street, City Of London, Greater London, EC1A 4JA

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst employed as a Social Worker by Knowsley Council:

1. On or about 24 June 2015 you sent an inappropriate and/or offensive text message to Person A;

2. You did not adequately safeguard Child C and Child D in that you:

a) allowed contact with the mother and father which exceeded care plan stipulations on or around the following occasions:

i. 27 February 2016 supervised contact at Child C and Child D's dad's home between approximately 10:30am and 7:00pm

ii. 05 March 2016 unsupervised contact with Child C and Child D's mum between approximately 1 :30pm and 4:00pm

iii. 1 April 2016 unsupervised contact with Child C and Child D’s mum between approximately 11:00am and 4:00pm

iv. 09 April 2016 supervised contact at Child C and Child D's
dad's home between approximately 11:00am and 7:00pm

v. 07 May 2016 unsupervised contact with Child C and Child D's mum between approximately 11:00am and 6:00pm

vi. 21 May 2016 supervised contact at Child C and Child D's
dad's home between approximately 10:00am and 5:00pm

vii. 18 June 2016 unsupervised contact with Child C and Child D's mum between approximately 11:00am and 4:00pm

viii. 02 July 2016 supervised contact at Child C and Child D's
dad's home between approximately 10:00am and 7:00pm

ix. 30 July 2016 unsupervised contact with Child C and Child D's mum between approximately 11:00am and 5:00pm

x. 06 August 2016 supervised contact with Child C and Child
D's dad's home between approximately 10:00am and 6:30pm

b) allowed unsupervised contact at a family christening between 1:00pm and 5:00pm

c) Did not consult and/or record consulting with the Independent Reviewing Officer before deviating from the care planning regulations;

d) Did not complete and/or record a risk assessment prior to deviating from the care planning regulations.

3. While suspended from your employment, you breached professional boundaries and/or acted inappropriately in that you:

a) Sent a message to Person B on or around 1 September 2016 stating words to the effect of 'Hi [Person B] just to let ya know spoken to mum and she's fine with the supervision of contacts xx love to all xx '

b) Sent messages to Person B on or around 2 September 2016 stating words to the effect of:

i. 'Can you not tell then I've been in touch please x'

ii. 'As on sick thanks x'

iii. 'Is that okay? X'

c) Contacted carer A between around 30 August 2016 and 19 September 2016;

4. In regards to Child E and Child F:

a) Did not adequately safeguard Child E and Child F in that you did not ensure contact with the mother was supervised;

b) Did not consult and/or record consulting with the Independent Reviewing Officer before deviating from the care planning regulations;

c) Did not complete and/or record a risk assessment prior to deviating from the, care planning regulations;

d) Claimed that you were supervising Child E and Child F on or around 24 August 2016, which was not the case;

5. Did not make sufficient and/or timely records of the following events in ICS:

a) Visit with H family on 1 August 2016 in a timely manner

b) Visit with O family on 1 August 2016

c) Visit with H family on 2 August 2016

d) Statutory visit with service user P on 2 August 2016

e) Housing Priority Panel for C Family on 2 August 2016

f) Family Changing Lives Meeting for H family 5 August 2016

g) Statutory visit with H family on 8 August 2016

h) Planning meeting with service user R on 9 August 2016

i) Planning meeting with service user Z on 9 August 2016

j) Meeting with Service User S on 9 August 2016

k) Statutory visit with Service User Y on 9 August 2016

l) Home visit to Service Users V on 10 August 2016

m) Visit with Mother G on 11 August 2016

n) Visit with Child C and D on 12 August 2016

o) Visit with H family on 12 August 2016

p) Visit with service user Z on 16 August 2016

q) visit with Mother G on 16 August 2016

r) Visit with Service User V on 16 August 2016

s) Planning meeting with Changing Lives Family Project Worker on 17 August 2016

t) Planning meeting with Youth Offending Service on 18 August 2016

u) Visit with Person H on 18 August 2016

v) visit with H family on 18 August 2016

w) Visit with I family on 18 August 2016

x) Visit with H family on 22 August 2016

y) Visit with O family on 25 August 2016

aa) Housing Appointment with Service User S on 26 August 2016

6. Your actions described at particulars 3b) and 4d) were dishonest;

7. Your actions described at particulars 1, 2, 3, 4, and 5 constitute misconduct and/or lack of competence;

8. Your actions described at particular 6 constitute misconduct;

9. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary matters:

Service

1. The Panel has seen evidence that written notice of these proceedings was posted by first class post to the Registrant at her registered address on 29 October 2018. The Panel was shown documents which established the fact of the service and the identity of the Registrant’s registered address. The information within the notice letter was correct in relation to the date, time and venue of this hearing and the nature of it.

2. The Panel heard and accepted the advice of the Legal Assessor regarding the rules on service.

3. In the circumstances, the Panel has accepted that service of the notice had been properly effected.

Proceeding in the absence of the Registrant

4. Ms Thompson on behalf of the HCPC submitted that the hearing should proceed in the absence of the Registrant. The Panel heard that there had been some engagement by the Registrant at the start of the process but no engagement from her since. Ms Thompson submitted that it would appear that the Registrant had made a decision not to attend or engage and there was no indication that she wished to adjourn this matter or that she would attend at a future date. It was submitted that there was a public interest in this matter being heard without unnecessary delay and witnesses were scheduled to give evidence over the course of the hearing.
 
5. The Panel heard and accepted the advice of the Legal Assessor.

6. The Panel was aware of the need to consider the application to proceed in the absence of the Registrant with care and caution. However, after giving the application very careful thought, the Panel has determined to allow it. Its reasons are as follows:

• Notice of this hearing has been properly served on the Registrant in accordance with the rules;

• The Registrant has not applied for an adjournment or given any indication that she wishes this hearing to take place on another date;

• There is no reason to suppose that if an adjournment was granted the Registrant would be more likely to attend;

• In all the circumstances, the Registrant can be regarded as having waived her right to attend.

Telephone Evidence

7. Ms Thompson made an application for the evidence of Ms Cody to be heard via telephone. Ms Thompson explained that this witness had originally been coming to give evidence in person but had become unwell and unable to travel. Ms Thompson submitted that Ms Cody’s evidence could be given over the telephone and the Panel would have an opportunity to ask questions. She submitted that although the rules did not specifically provide for telephone evidence there was a discretion to allow the evidence to be given in this way subject to fairness to the Registrant.

8. The Panel heard and accepted the advice of the Legal Assessor.

9. The Panel determined to allow the application. It considered that subject to fairness it had an overall discretion to allow Ms Cody’s evidence to be given by telephone, given the difficulties with her travelling. The Panel determined that there would be no injustice to the Registrant if Ms Cody gave her evidence over the telephone. The Panel would be able to ask questions and assess Ms Cody’s credibility and decide what weight to attach to her evidence. The Panel considered that to disallow the application would be unfair to the HCPC and cause unnecessary delay and prejudice its ability to prove some of its case.

Background:

10. Elaine Marie Fowler (‘the Registrant’) was employed as a Social Worker at Knowsley Council (‘the Council’) between 2008 and April 2017; specifically, at the time of the allegations, she was employed within the ‘Children Looked After Team’ where she was the allocated Social Worker for children who were the subjects of full or interim care orders.

11. It is alleged that the Registrant failed to adequately safeguard the welfare of four service users through arranging unsupervised meetings between them and their parents in contravention of pre-established care plans, whilst also overlooking the need to record or consult with the Independent Reviewing Officer or complete risk assessments prior to deviating from the plans. It is further alleged that the Registrant exceeded professional boundaries by virtue of transmitting an offensive and inappropriately worded text message to the parent of a service user and by contacting Carer A and Person B whilst suspended from duty. It is also alleged that the Registrant failed to record sufficient and/or timely records of a number of events into the electronic Integrated Care Service system (ICS).
 
12. The allegations were investigated by the Council and referred to the HCPC.

Decision on Facts:

13. The allegation was not read out. In the absence of the Registrant, the Panel appreciated that it would have to decide each Particular. The Panel bore in mind the burden and standard of proof and considered each Particular separately.

14. The Panel first considered the witnesses who had given evidence. The HCPC called 7 witnesses,

• Wandzia Cody - Investigating Officer – Allegation 1 (WC)
• Dionne Atkinson - Investigating Officer – Allegations 2-5 (DA)
• Steven Smith - Registrant’s Line Manager (SS)
• Julie Sayers - Family Support Manager (JS)
• Person B - Foster Carer Child C and Child D
• Jennifer Brady - Independent Reviewing Officer Child E and Child F (JB)
• Kathleen Orrett - Independent Reviewing Officer Child C and Child D (KO) 

15. The Panel examined all the evidence, carefully taking account of the responses given by the Registrant during her employer’s investigation. The Panel considered that all the witnesses called for the HCPC were consistent and credible. They gave evidence to the best of their ability, making allowances for the passage of time. They recognised when they were unable to remember specific details. The Panel considered all the witnesses were fair to the Registrant and did not embellish or exaggerate. The Panel found their evidence to be persuasive and consistent with the documentary evidence including their written statements.

16. The Panel also relied upon a large amount of written material put before it. This included computer records from the Council and copies of the investigation reports, text messages and contemporaneous emails.

17. There was no evidence from the Registrant but there was some response to the allegations in the interviews she gave as part of the internal investigations carried out by the Council.

18. The Panel then considered the individual Particulars. 

Particular 1 (Found Proved)

19. This Particular alleges that the Registrant sent the following text message to Person A on or around the 24 June 2015.

“Morning (Person A) things are getting serious babe just wanted ya to know coz all involved saying the place is a mess and not a good place for kids. I’m being as straight as I can because the IRO said, Your either a good enough parent or ya not..So as a parent I work full time and have always sone it on my own so over these two day I’m washing all my windows weeding my garden and cleaning up after and taking care of household of 7..i’m telling ya..ya house and ya ability to get up off ya arse and gonna clean it is gonna loose them.. I’ve tried all sorts and from reading through past papers so has everyone…SO I WILL CALL AT BEGINNING OF WEEK I WANT THAT HOUSE IMMACULATE..WINDOW SILLS CLEARED PULL OUTCOUCHES AND BRUSH AND MOP ALL FLOORS ALL TOYS UPSTAIRS SORTED WASH DIRTY TOYS BEDS CLEAN BEDDING (Child A) IN THE LITTLE ROOM (Child B) IN HIS ROOM YOUR ROOM CLEAN AND TIDY NO FOOD CONTAINERS AND BOTTLE ON FLOOR & BIN EMPTY CALL YA MUM AND ASK HER HELP BATHROOM SCRUBBED AN NO BOOKS. I want every worker to tell me your trying coz you make excuse after excuse but we remove kids from home cleaner than your and every worker feels your not enough for both of these kids DON’T RESPOND CALL YA MUM AND GET IT DONE.” (Sic)

20. WC gave evidence that the message had been sent to Person A during a weekend and that Person A was so concerned and afraid that the children would be taken from her care that she raised it at a support group she was attending. The support group worker escalated the message to the Head of Service at the Council and it was investigated by WC under formal disciplinary proceedings. WC said that during her interview the Registrant agreed that she had sent the text that the text was inappropriate, and she regretted sending it.

21. SS gave evidence that on 23 June 2015, the Head of Service made him aware of the text message sent to Person A. He said that he went to visit Person A to support her and to explain that the text message was inappropriate. He confirmed in his statement that he saw the text message on Person A’s phone and was able to confirm it had been sent by the Registrant. He arranged for the message to be forwarded to his work phone and confirmed the contents. SS explained that the message was inappropriate because of the language used and its tone and that it could have been considered as threatening. SS said it was especially concerning that this message had been sent during a weekend when Person A would have been unable to call the office. He said that it was the Registrant’s job to work constructively with service users and this message undermined the relationship.

22. The Panel accepted the evidence of WC and SS and took into account the admissions made by the Registrant during the Council’s investigation. It concluded that the message was inappropriate and unprofessional in both style and tone, using overfamiliar language. The Panel considered that the message was designed to shock Person A and could be considered threatening, offensive and upsetting. 

Particular 2 a) i-x and b) Found Proved

23. These Particular’s allege that the Registrant did not adequately safeguard Child C and Child D by allowing contact with the mother and father to exceed care plan stipulations on eleven occasions.

24. Person B was the foster carer for Child C and Child D and she explained to the Panel that she kept a diary of every visit and contact relating to the children in her care. She explained that she would record when the children were dropped off and picked up and that she was told of the arrangements for contact by the Registrant and did not question them.

25. The Panel had sight of the formal contact arrangements for Child C and Child D which set out that the mother was to have supervised contact every six weeks for 2 hours and that the father was to have unsupervised contact every six weeks for 2.5 hours.

26. The Panel accepted the evidence of Person B that the timing and arrangements for the contacts she had recorded in her diary were accurate. The Panel also noted the Registrant accepted in the disciplinary interview on 14 November 2016 that the contacts had exceeded the time stipulated in the care plan and had not been properly supervised.

27. The Panel considered that not properly supervising the contacts and allowing them to exceed the stipulated time placed Child C and Child D at risk. The Panel accepted the evidence of SS that the children could have been exposed to inappropriate comments about returning to live with their parents, which had the potential to destabilise the children’s current placement and they could potentially be exposed to abusive situations. The Panel accepted the evidence of KO that it was not safe for mother to have unsupervised contact at a time when she was still in a rehabilitation unit and had not been tested living independently in the community. The Panel also noted Person B’s evidence that the children were upset and confused when the prolonged contact arrangements were ended following the departure of the Registrant. The Panel concluded that the Registrant’s actions in allowing extended and unsupervised contact had not adequately safeguarded Child C and Child D.

Particular 2 c) Found Proved

28. The Panel heard that the Independent Reviewing Officer (IRO) for Child C and Child D was KO. She gave evidence to the Panel that her role was to safeguard the children by monitoring contact arrangements and she was required to agree any changes either at a review meeting or, in exceptional cases, by agreement to be ratified at the next meeting. KO said that she had not been consulted about the changes to the contact arrangements and only became aware of the extended contact arrangements when contacted by SS after the suspension of the Registrant. She said that unsupervised contact with mother was something that everyone was working towards but it had not been agreed, as mother was still untested in the community. KO confirmed she had not agreed to the change in contact arrangements with father either and was concerned about the extended contact with him. KO said that the children were very unsettled when the contact arrangements were reduced; and the foster carers were also concerned and felt they had failed to protect the children. 

29. The Panel accepted the evidence of KO and Person B and found that the Registrant had failed to consult the IRO.

Particular 2 d) Found Proved

30. The Panel heard evidence from SS and DA and had sight of the policies that detail the procedures to be followed when contact arrangements are to be changed. Both witnesses explained that a risk assessment based on the new proposals should be carried out to keep the children safe in accordance with the Care Planning Regulations. There is no evidence before the Panel that the Registrant carried out such a risk assessment as required and this Particular is found proved.

Particular 3 a) and b) Found Proved

31. The Panel accepted the evidence from DA that the Registrant was suspended following a meeting on 30 August 2016. DA said that the Registrant was told at the meeting not to have any contact with anyone in relation to her duties as a social worker and this was confirmed in a letter sent to the Registrant on the same day. The Registrant also confirmed in her disciplinary interviews that she was aware of the terms of her suspension.

32. Person B, during her oral evidence was unable to recall the messages that were sent to her, but in her witness statement she confirmed that she had shown the messages to her support worker as she was concerned.

33. In a disciplinary meeting on 14 November 2016 the Registrant denied sending the messages to Person B. In a subsequent meeting on 13 January 2017 the Registrant confirmed to DA that she had sent the messages to Person B and showed DA her phone with the complete list of messages. During that meeting the Registrant had agreed that sending the messages was not appropriate and she had not told the truth before because she was “panicking”.

34. The Panel was satisfied that the Registrant had sent the messages to Person B on 1 and 2 September 2016 whilst suspended which was inappropriate.

35. The Panel also considered that the content of the message sent to Person B on or around 1 September 2016 was overfamiliar and in breach of the Registrant’s professional boundaries compounded by being sent whilst the Registrant was suspended.

Particular 3 c) Found Proved

36. The Panel heard evidence from SS and DA. SS said that he had spoken to Carer A to explain that the Registrant would not be available. Both witnesses confirmed that the Social Worker allocated following the suspension of the Registrant told them that Carer A had reported that she had been telephoned by the Registrant after the call from SS and therefore whilst she was suspended. The Panel had sight of an email dated 21 September 2016 written by the Social Worker that confirmed these details. The Panel also had sight of the Registrant’s responses in the disciplinary interview on 14 November 2016 where she confirmed she had let Carer A know she would be away from work for a while.

37. The Panel was satisfied that the Registrant had called Carer A whilst she was suspended in breach of the terms of her suspension which was both inappropriate and in breach of her professional boundaries.

Particular 4 a) Found Proved

38. The Panel heard evidence from SS that on 24 August 2016 he became aware that contact with mother was unsupervised when he was provided with the Care Planning documents for authorisation. He said he was concerned because he had not had any input into this and sent an email to the Registrant JB, the IRO. The Registrant confirmed on 26 August 2016 in a meeting with SS that she had allowed one unsupervised contact with mother.

39. JB confirmed that she had not agreed to the change in contact arrangements and although unsupervised contact was something that everyone was working towards it should not have been changed by the Registrant without the input of others. She explained that the procedures are there to make sure that the decisions that are taken keep the children safe, and in failing to consult with others before allowing unsupervised contact, the Registrant put the children at risk. The Panel accepts this evidence and finds this Particular proved.

Particular 4 b) Found Proved

40. JB gave evidence that she became aware of the changes in contact arrangements following a visit to the family. JB confirmed that she had not discussed them with the Registrant and her approval had not been given. JB’s account is supported by an email she sent at the time which confirmed that she was not aware of the change and in principle she would agree provided further steps were taken and “strict boundaries are in place”.

41. The Registrant said in a meeting on 26 August 2016 that she had discussed matters with the IRO but there is no record of this discussion or what boundaries were in place for the unsupervised contact. On balance the Panel preferred the evidence of JB and found that the Registrant did not consult with the IRO before changing the arrangements and finds this Particular proved.

Particular 4 c) Found Proved

42. JB, SS and DA gave evidence that the Registrant was required to complete a risk assessment. The witnesses explained that a risk assessment based on the new proposals which should have been carried out to keep the children safe in accordance with the Care Planning Regulations.

43. JB in her email of 24 August 2016 asked whether a risk assessment had been done in relation to mother and partner. The Registrant, in a meeting on 26 August 2016, stated she did carry out a risk assessment and took copies of driving documents. These were not produced during the disciplinary investigation and the Registrant confirmed that there was no risk assessment on file. There is no evidence before the Panel that the Registrant carried out such a risk assessment as required and this Particular is found proved.

Particular 4 d) Found Proved

44. The Panel heard evidence from JS who stated that on 26 August 2016 she spoke with the support worker who was supervising contact with Child E and Child F. The support worker confirmed to JS that the Registrant dropped off the children on time at 11am on 24 August 2016 and the support worker supervised contact alone until 3pm. The foster carer collected the children and returned them home. The support worker said that the Registrant had telephoned her on the morning of 25 August to see how contact had gone. JS gave evidence that the children were dropped off at the support worker’s place of work and there were no issues reported about the children being late. The Panel also had sight of an email written by JS on 26 August 2016 which confirmed her account.

45. The Panel noted the Registrant’s explanation that there was a misunderstanding and she thought she was supervising the contact when she arrived as the support worker was ill. The Panel noted the text messages sent to SS at 11.38 and 11.42 on 24 August 2016. The Panel did not accept that these were a genuine account of the situation and preferred the evidence of JS that the Registrant did not supervise the contact and it finds this Particular proved.            

Particular 5 a) – aa) (all proved except for 5 i. and x.)

46. These Particulars allege that the Registrant did not complete a number of case note recordings of visits or meetings for a variety of Service Users, either sufficiently or within required timescales. DA gave evidence to the Panel about what was expected in respect of the timely recording of visits/meetings and the Panel had sight of the Council’s policy which confirmed that entries should be made onto ICS within 5 working days. DA explained the painstaking investigation she had undertaken which involved comparing the Registrant’s Outlook calendar for the month of August, which showed entries for the visits or meetings, with the corresponding case notes. The Panel had sight of the relevant Outlook calendar and case notes.

Particular 5 a) Found Proved

47. In relation to Family H the Panel finds that the Registrant did not complete the ICS recording of the visit on 1 August 2016 in a timely way as it was not entered on to the system until 30 August 2016.

Particular 5 b) Found Proved

48. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in the O Family ICS record.

Particular 5 c) Found Proved

49. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in the H Family ICS record.

Particular 5 d) Found Proved

50. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User P’s ICS record.

Particular 5 e) Found Proved

51. The Panel finds that the Registrant did not update her records in relation to this visit as she stated she had been told not to attend but there is no entry in ICS to confirm this.

Particular 5 f) Found Proved

52. In relation to Family H the Panel finds that the Registrant did not complete the case note recording of the visit on 5 August 2016 in a timely way as it was not entered on to the system until 30 August 2016.

Particular 5 g) Found Proved

53. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in the H Family ICS record.

Particular 5 h) Found Proved

54. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User R’s ICS record.

Particular 5 i) not proved

55. The Panel finds that a statutory visit took place on 9 August 2016 and was recorded on 11 August 2016 in Service User Z’s ICS record within the expected 5 day period.

Particular 5 j) Found Proved

56. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User S’s ICS record.

Particular 5 k) Found Proved

57. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User Y’s ICS record.

Particular 5 l) Found Proved

58. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User V’s ICS record.

Particular 5 m) Found Proved

59. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Mother G’s ICS record.

Pararaph 5 n) Found Proved

60. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Child C and Child D’s ICS record.

Particular 5 o) Found Proved

61. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in H family’s ICS record.

Particular 5 p) Found Proved

62. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User Z’s ICS record.

Particular 5 q) Found Proved

63. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Mother G’s ICS record.

Particular 5 r) Found Proved

64. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User V’s ICS record.

Particular 5 s) Found Proved

65. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entries or records of the meeting on ICS.

Particular 5 t) Found Proved

66. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entries or records of the meeting on ICS.

Particular 5 u) Found Proved

67. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Person H’s ICS record.

Particular 5 v) Found Proved

68. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in H family’s ICS record.

Particular 5 w) Found Proved

69. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in I family’s ICS record.

Particular 5 x) HCPC Offered No Evidence

70. No evidence was offered by the HCPC in relation to this Particular.

Particular 5 (y) Found Proved

71. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in H family’s ICS record.

Particular 5 (z) Found Proved

72. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in O family’s ICS record.

Particular 5 aa) Found Proved

73. The Panel finds that the Registrant did not complete a record of this visit as there is an entry in her Outlook calendar but no corresponding entry in Service User S’s ICS record.

Particular 6 Found Proved

74. The Panel considered this Particular and the question of dishonesty in the light of the recent decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. It noted the following part of the judgment of Lord Hughes:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
 
75. The Panel considered each Particular and looked first at Particular 3 (b). In the facts for this Particular, the Registrant had sent a series of text messages to Person B on 1 and 2 September 2016. The later messages asked Person B not to tell anyone that she had been in touch previously as she was “on sick”.

76. The Panel noted that the Registrant had been suspended on 30 August 2016 and at the time of her suspension it was made clear to her at a meeting and in writing that she should not contact anyone in relation to her duties as a social worker. The Panel considered that the purpose of sending the messages on 2 September 2016 was an attempt to cover up her contract on 1 September 2016 as she was aware that the terms of her suspension meant she should not have been in contact with Person B at all.

77. The Panel considered that her asking Person B not to mention that she had been in contact was a deliberate attempt to conceal her actions and this would be considered by ordinary, decent people as dishonest.

78. In relation to Particular 4(d) the facts found proved for this Particular are that on the 24 August 2016 the Registrant sent a text message to SS saying that the support worker who was due to supervise the contact was unwell and so she would be supervising the contact instead. The Panel found that the Registrant did not supervise the contact which was supervised by the support worker.

79. The Registrant stated in the disciplinary proceedings that because of a communication issue with the family she was mistaken about the fact that the support worker was ill. But she did not inform SS, which she knew was required, or ask permission to do other work instead given that there was mandatory training scheduled for that afternoon. The explanations that the Registrant gave for her whereabouts that day did not, in the Panel’s view, seem likely in the light of the evidence given by other witnesses about the time those tasks would take. The Panel considered that it was more likely that, as stated by JS, the contact was supervised by the support worker from 11:00 am and the Registrant sent the text to SS at 11:38 am, after her contact had already began with the support worker, to hide her absence from the office. The Panel concluded this was dishonest by the standards of ordinary, decent people.


Decision on Grounds:

80. Having found the facts as set out above proved, the Panel went on to consider whether they amounted to misconduct and/or lack of competence.

81. The Panel first considered whether the facts found proved amounted to lack of competence. The Panel accepted the definition given by Mr Justice Jackson in the case of R v Calhaem v GMC [2007] EWHC 2606 (Admin) para 39 for deficient professional performance and accepted that the definition was applicable to lack of competence.

“‘Deficient professional performance’ within the meaning of 35C (2) (b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.”

82. The Panel considered that there was no evidence that the Registrant was unable to complete her work to the required standard. In her disciplinary interviews the Registrant raised no concerns about her working pattern or the requirements of her role. All the witnesses who knew the Registrant well in a professional capacity described her as competent and experienced. The Panel did not consider that any of the Particulars amounted to a lack of competence.

83. The Panel then considered whether the facts found proved amounted to misconduct. Misconduct must be serious. The Panel has made findings of dishonesty in relation to the Registrant misleading SS about her whereabouts and asking Person B to conceal that she had been in contact during her suspension. These are serious matters. The Panel notes the HCPC Standards of Conduct, Performance and Ethics and in particular standard 9.1 ‘You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.’

84. The Panel has made findings that the Registrant put vulnerable service users at significant risk of harm, breached professional boundaries and failed to uphold the standards expected. The Panel considered that the Registrant breached Standard 7 of the HCPC Standards of Conduct, Performance and Ethics applicable from 2012 in respect of Particular 1. Further the Panel considered that the Registrant breached Standards 1.7, 2.6, 6.1, 6.2, 7.4, 9.1, 10.1 and 10.2 of the HCPC Standards of Conduct, Performance and Ethics applicable from 2016 and Standards 1.1, 1.3, 2.2, 2.3, 2.8, 3.4, 8.1, 9.7, 10.1 and 15.1 of the Standards of Proficiency for Social Workers applicable from August 2012. The Panel considered that these failings would be considered deplorable by fellow practitioners and individually and cumulatively amounted to misconduct.


Decision on impairment:

85. Having found that the matters found proved amounted to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. It bore in mind the evidence given in this hearing, the submissions made by Ms Thompson, the advice of the Legal Assessor and the HCPTS practice note ‘Finding that Fitness to Practise is “Impaired”’.

86. The Panel considered the two component parts relating to impairment, the personal component and the public component. It first considered the personal component, whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

87. The misconduct of the Registrant was wide-ranging. It covered a large number of service users over an extended period of time and it was serious. The Registrant was the allocated Social Worker for the children on her caseload and as such her primary role was to ensure their safety and wellbeing. Her conduct placed vulnerable children and their families at risk of serious harm.

88. There has been no information from the Registrant as to whether she has remedied any of her failings or that she appreciates the seriousness of her misconduct. Whilst the Panel considered that the conduct was potentially remediable there has been nothing from the Registrant to demonstrate any insight or remediation. In these circumstances, the Panel considered that the conduct would be highly likely to recur. The Panel therefore determined that the Registrant’s fitness to practise is impaired on the basis of the personal component.

89. The Panel then looked to the public component of impairment. It notes the passage in the practice note of ‘Finding that Fitness to Practise is “Impaired”’.

“It is important for Panels to recognise that the need to address the “critically important public policy issues” identified in Cohen - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that they cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, the Registrant has corrected matters or ‘learned his or her lesson’.”

90. The misconduct is serious. There are two findings of dishonesty and the Registrant’s actions had the potential to cause serious harm to vulnerable children. The misconduct is so serious that it has the potential of undermining public confidence in the profession if no action were taken.

91. The public would expect the regulator to take action against a registrant where such misconduct is found and particularly where the allegation includes dishonesty by a registrant in the workplace.

92. The Panel took this into account in deciding whether the Registrant’s fitness to practise is currently impaired. It also took the view that because of the serious nature of the misconduct, public confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made in this case.

93. Taking all of these factors into account the Panel finds that the Registrant’s fitness to practise is also impaired on the basis of the public component in this case.


Decision on Sanction:

94. The Panel considered the “Indicative Sanctions Policy” of the HCPC and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.

95. The Panel identified the following aggravating factor:

• The Registrant failed to safeguard vulnerable service users leading to a risk of and actual harm;
• Two instances of dishonesty relating to the Registrant’s work;
• Wide ranging instances of misconduct relating to the Registrant’s practice;
• No evidence of insight or remediation throughout the investigation and these proceedings;
• Repetition of misconduct after a previous internal disciplinary finding of a similar nature.

96. The Panel identified the following mitigating factor:

• No previous regulatory findings.

97. The Panel determined that the nature of the misconduct in this case was too serious to make no Order.

98. The Panel considered whether to impose a Caution Order, but decided that it was inappropriate as this was not an isolated instance of misconduct and a Caution Order would not provide sufficient public protection.

99. The Panel considered that a Conditions of Practice Order was not appropriate because the Registrant has not engaged or shown any willingness to comply with any conditions. The Panel did not consider it would be able to formulate conditions to address the dishonesty found in this case.

100. The Panel went on to consider whether a Suspension Order would be a proportionate and appropriate measure and concluded that this would protect the public during the period that it was in force. The Panel considered whether the Registrant should be afforded an opportunity to demonstrate insight or remediation, but concluded, on the basis of her lack of engagement, that she was very unlikely to respond and that a Suspension Order would serve no purpose other than to prolong these proceedings unnecessarily. The Panel considered that the Registrant has demonstrated a persistent lack of insight.

101. The Panel noted paragraph 48 of the “Indicative Sanctions Policy”: “Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.” The Panel also noted there were two significant findings of dishonesty amounting to misconduct that is very serious.

102. In considering the sanction of Striking Off, the Panel had in mind that it was the sanction of last resort and that there was a public interest in retaining qualified practitioners. However, the absence of engagement or response on the part of the Registrant was such that the Panel concluded that it was the appropriate and proportionate sanction. There was no evidence of insight, engagement or remediation of any kind presented to this Panel. A Striking Off Order was therefore the necessary and proportionate measure, both to protect the public and to uphold the wider public interest.

Order

Order: That the Registrar is directed to strike the name of Mrs Elaine Marie Fowler from the Register on the date this order comes into effect.

Notes

Interim Order:

103. There has been an application by the HCPC for an Interim Order.

104. The Panel has taken into account that in the Notice of Hearing the Registrant was put on specific notice of such a possibility and therefore notice in that respect has been served. The Panel has considered whether it is fair to proceed in the absence of the Registrant and has taken into account the reasons the Panel relied upon when deciding to proceed in the absence of the Registrant for the main part of the hearing. On that basis the Panel has decided that it is fair and appropriate to consider this application in the absence of the Registrant.

105. The HCPC’s application is made on the 3 statutory grounds as follows:

• it is necessary for the protection of members of the public
• is otherwise in the public interest.

106. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the high risk of repetition of the misconduct. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months to cover the length of any appeal.

Hearing History

History of Hearings for Mrs Elaine Marie Fowler

Date Panel Hearing type Outcomes / Status
05/12/2018 Conduct and Competence Committee Final Hearing Struck off
10/10/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
10/07/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
12/04/2018 Investigating committee Interim Order Review Interim Suspension
17/01/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
19/07/2017 Investigating committee Interim Order Application Interim Suspension