Andrea Joanne Trubshaw

Profession: Social worker

Registration Number: SW69108

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 25/06/2018 End: 16:00 28/06/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Whilst registered as a Social Worker and employed by Staffordshire and Stoke-On-Trent Partnership Trust:

1. On or around 7 January 2016, you made a calendar entry which indicated that you were visiting a service user, when you did not make such a visit.

2. You informed the Administrative Team that you had completed the visit outlined at particular 1 above, when that was not true.

3. In relation to Service User A, between approximately 7 October 2015 and 6 January 2016, you:

a) Did not attend and/or did not record your attendance at a home visit to Service User A;

b) Recorded a Statutory Assessment and/or completed a Care and Support Plan without having recently seen Service User A;

c) Did not complete a risk assessment;

d) Did not ensure that a smoke alarm was fitted in Service User A’s house and/or refer the matter to the fire service;

e) Did not raise and/or discuss Service User A’s self-neglect and/or non-engagement with management;

f) Did not raise a safeguarding referral;

g) Did not take follow up action in relation to an allegation that Service User A’s care provider was not providing the agreed level of care to Service User A;

h) Did not contact and/or record attempts to contact Service User A’s daughter and/or his neighbour;

i) Did not make and/or record efforts to assess Service User A’s daughter and/or his neighbour as potential carers.

4. Your actions described at particular 1 and 2 were dishonest.

5. Your actions described at particulars 1 to 4 constitute misconduct and/or lack of competence.

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

Finding

Preliminary Matters

Notice and Proceeding in Absence

1. The Panel considered the notice of hearing sent to the Registrant on 23 February 2018.  It correctly gives notice of the date, time and venue of this hearing to the Registrant and is addressed to her at her address registered  with the HCPC. The Panel was satisfied that proper notice had been given to the Registrant.

2. Ms Ryan made an application to proceed in absence. On 20 March 2017, the Registrant  contacted the HCPC. The Registrant mentioned health conditions and stated that she was not continuing to work as a Social Worker. She also stated in her response pro-forma received by the HCPC on 20 April 2017 that she would not be attending the hearing. Ms Ryan submitted that the Registrant had effectively waived her right to attend.  She submitted that the Panel has the discretion to proceed in the absence of the Registrant. The Registrant has not sought an adjournment and she submitted that the Panel can be satisfied that the Registrant’s absence today is voluntary. She submitted that an adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously. Two witnesses were present for the hearing.

3. The Panel heard and accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel has the discretion to proceed in the absence of the Registrant. He reminded the Panel that it should exercise that discretion with care. The Legal Assessor referred the Panel to the HCPTS Guidance Note on Proceeding in the Absence of the Registrant and to case of GMC v Adeogba [2016] EWCA Civ 162.  This case makes clear that the first question the Panel should ask is whether all reasonable efforts have been made to serve the Registrant with notice.  Thereafter, if the Panel is satisfied that proper notice has been given, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware with fairness to the Registrant being a prime consideration. Fairness to the HCPC and the interests of the public were also taken into account.

4. The Panel agreed to proceed in the Registrant’s absence.  It is satisfied that it is both in the public interest and in the Registrant’s interest to do so. In reaching this decision, the Panel has noted there has been no request for an adjournment and the Registrant has said she is not attending and has not engaged with the HCPC since August 2017.  It balanced fairness to the Registrant with fairness to the HCPC and the public interest. It is of the view that the Registrant has voluntarily absented herself and waived her right to attend. No useful purpose would be served by adjourning the hearing. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to be present at the hearing. In these circumstances, the Panel is satisfied that it is appropriate to proceed in her absence.

Background

5. At the time of the Allegation, the Registrant was employed as a Social Worker with Staffordshire and Stoke-on-Trent Partnership Trust  (”the Trust”).  The Registrant had joined the Adult Social Care (Community) Team in September 2015.  On 7 October 2015 the Registrant was allocated the case of Service User A, a vulnerable Service User with multiple and complex health needs.  Parts of the allegation relate to aspects of the Registrant’s assessment and care of Service User A.

6. It  is also alleged that on 7 January 2016 the Registrant made a fictitious calendar entry which indicated that she was visiting a Service User.  That afternoon a referral was received in relation to Service User A, to whom the Registrant had been allocated. The Registrant advised her colleagues that she could not assist as she needed to make the visit detailed in her calendar and that the case had been closed. 

Oral Evidence

7. The Panel heard from two live witnesses, SE and AB. SE is a Team Leader at the Trust and has worked there for 17 years. She is a registered Social Worker. In March 2016, SE was appointed as the Investigating Officer to look into concerns regarding the Registrant and the care of Service User A.  In evidence, SE supplemented her witness statement and gave evidence about the allegation and her investigation.  This included a detailed interview with the Registrant regarding the events that gave rise to the allegation.

8. The Panel also heard from AB.  She is presently a Band 7 Social Worker at the Trust, working in the community.  She was the Registrant's Line Manager and took over supervision of the Registrant in December 2015. AB supplemented her witness statement in evidence. She gave evidence about the allegation including her supervision of the Registrant, the Registrant’s Supervision and Training Records and the case records for Service User A.

Closing Submissions for the HCPC

9. Ms Ryan summarised the evidence in respect of each particular and the HCPC’s position in her closing submissions.  She reminded the Panel of the case law on dishonesty and that the Registrant is alleged to have admitted the diary entry was fictitious and she had intended to deceive her colleagues. She submitted the Registrant had been dishonest. She submitted that the HCPC accepted that this was a misconduct case and not one of lack of competence given the Registrant’s experience.

10. On the HCPC Standards of conduct, performance and ethics, Ms Ryan submitted that the Registrant was in breach of the 2016 HCPC standards of conduct, performance, ethics and 1 and 9 as to dishonesty.  She submitted that, given the failures in Service User A’s care, which resulted in crisis, the further standards breached by the Registrant were standards 1, 3 and 13 of the 2015 HCPC Standards of conduct, performance and ethics. She submitted these were serious failures amounting to misconduct. Ms Ryan reminded the Panel as to law on impairment.  The Registrant has provided no evidence of insight or remediation and is at risk of repeating her behaviour. The Registrant has, if the particulars are found proved, including dishonesty, breached the trust of the public and undermined public confidence in the profession.

Legal Advice

11. The Panel heard and accepted the advice of the Legal Assessor.  He advised the Panel on the approach to facts and that the applicable civil burden of proof is the “balance of probabilities” which rested on the HCPC. The Registrant need prove nothing.  The Panel must assess the witnesses and all the evidence and make individual findings on each particular of the allegation as to facts.

12. On lack of competence and misconduct, the Legal Assessor referred the Panel to the guidance in Holton v General Medical Council [2006] EWHC 2960, Roylance v GMC (No 2) [2001] 1 AC 311 and GMC v Meadow [2006] EWCA Civ 1319.  On dishonesty, the Legal Assessor advised the Panel to consider the guidance in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 where the court stated:-

“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".

13. The Legal Assessor referred the Panel to the HCPTS Practice Note on Finding that Fitness to Practise is Impaired and to the guidance on assessing impairment in Council for Healthcare Regulatory Excellence v Grant  [2011] EWHC 927 (Admin). He reminded the Panel of the central importance of the public interest and the need to declare and uphold proper standards of, and confidence in, the profession and the Regulator.

Decision on Facts

The witnesses

14. The Panel carefully considered the live evidence, the witness statements and all the documents before it together with the submissions of Ms Ryan. The Panel heard, and assessed, the live evidence of two witnesses, SE and AB.

15. The Panel found SE to be honest, fair and balanced.  SE did not seek to embellish and was open and consistent and she sought to help the Panel.  As regards AB, the Panel found her to be clear and consistent in her evidence. She was open, honest and helpful.  The Panel found both witnesses credible and reliable. 

Particular 1 - Proved

16. This particular is admitted by the Registrant in her response pro-forma to the HCPC.  In her statement to SE in May 2015, the Registrant also admitted that this was a fictitious diary entry.  The Panel found this particular proved.

Particular 2 -  Proved

17. The Registrant admits this particular in her response pro-forma to the HCPC. The Panel considered the statement taken by SE from a colleague, JD regarding the telephone call made by the Registrant at 4.40pm on 7 January 2016. JD reported in her statement to SE that the Registrant “had gone home following the alleged visit”.  This was also reported to AB and SE, who confirmed this in their evidence.  The Panel was aware that this is hearsay evidence as it has not heard directly from the person who took the telephone call from the Registrant.  The Panel was also mindful of its finding on particular 1. On balance, the Panel determined that the reported telephone call did take place as set out in the statement taken by SE from JD. It found that it is a reasonable inference, and that it is more likely than not, that the Registrant did telephone and inform the Administrative Team that she had completed the visit in particular 1, when that was not true.

Particular 3  a) - Not Proved

18. The Panel considered the case records. These report that the Registrant telephoned Service User A on 13 October 2015 and indicated that she would attend Service User A on 14 October 2015.  The Registrant asserted when she was interviewed by SE that she had attended Service User A.  The records show that on 16 October 2015, the Registrant  did commence a written assessment of Service User A. Although there was some suggestion by the witnesses and others that the Registrant had not attended Service User A on 14 October 2015, the Panel found that, on balance, the standard of proof in respect of this particular was not met. The Panel found this particular not proved. 

Particular 3  b) - Not Proved

19. The Panel considered the evidence of SE and AB.  AB states only that “it is possible” that the information in  the assessment was based on the Registrant’s previous knowledge. The Panel considered that it appears to be speculation by both SE and AB, as they appear to make inferences that are not based on any evidence before this Panel.  The case records referred to show activity with Service User A with a visit being planned by the Registrant on 14 October 2015. Further, on 16 October 2015 a written assessment of care appears to have been started. The Panel found this particular not proved on the balance of probability.

Particular 3  c) - Proved

20. The Panel carefully considered the “Safety and risk” notes in the Care and Support Plan. The notes indicate that some risks were assessed.  SE in her evidence in her witness statement states clearly that there was not a risk assessment carried out given the Service User’s very complex needs.  AB also states that a risk assessment was not carried out and that a separate risk assessment document would have been done had a proper risk assessment been completed.  The Panel determined that whilst some risk was assessed by the Registrant, that does not amount to a proper risk assessment that was pertinent to the complex needs that gave rise to the referral in the first place. The Panel found this particular proved.

Particular 3  d) - Proved

21. There was no evidence that any functioning smoke alarm was fitted or that there was a referral to the fire service. Service User A was bed-ridden and was a heavy smoker. SE states in her witness statement that the issue of a smoke alarm was an issue that the Registrant should have assessed and either ensured a smoke alarm was fitted or that a referral was made to the fire service.  AB also states this issue was a matter for the Registrant.  There was no evidence that the Registrant made any referral of the matter to the fire service. The Panel determined this should have formed part of the risk assessment of the Service User due to him being bed-ridden and a smoker. There is no evidence that she did so. The Panel found this particular proved.

Particular 3  e) - Proved

22. AB was clear that the Registrant did not make her aware of the risks.   The Panel accepted the evidence of AB.  She said the Registrant did not raise or discuss with her as her Line Manager at supervision meetings, or otherwise, the issues that she would have expected to be raised in respect of a service user with such complex needs. The Panel consider that a Social Worker requires to be pro-active in the presenting circumstances. The Registrant was not pro-active and there was no evidence that she raised these issues with any member of management. The panel found this particular proved.

Particular 3  f) - Proved

23. AB clearly states that the Registrant did not raise a safeguarding referral.  There was no evidence that the Registrant did so.  In fact, the safeguarding referral of 7 January 2016 was made by a District Nurse. The Panel found the particular proved.

Particular 3  g) – Proved

24. The Panel considered the Care and Support Plan. On 16 October 2015 there is evidence from the Support Plan that the Registrant planned to take follow up action in respect of providing male carers and a referral to occupational therapy. However, AB states in her witness statement that the agreed level of care was not being met when the Registrant took over responsibility for Service User A. AB states that the Registrant ought to have followed up the issues raised about the level of care but failed to do so. There is no evidence that the Registrant took follow up action in relation to the concerns that had been reported about the level of care being provided by the care agency. The Panel found that this particular is proved.

Particular 3  h) & i) - Proved

25. There was no evidence that the Registrant contacted or attempted to contact the Service User’s daughter and/or neighbour.  The evidence of AB and SE was that, according to enquiries made with the Service User’s daughter, no contact had been made, albeit that was hearsay evidence.  There is no evidence, and no record of any efforts to make or conduct carer’s assessments in respect of Service User A’s daughter or his neighbour, which would have been expected in the circumstances. The Panel finds these particulars proved.

Particular 4

26. The Registrant admitted particulars 1, 2 and 3 in her response to the allegation.  She also admitted the false calendar entry in her interview with SE.  The Panel has found particular 1 and 2 proved. It was mindful of the test for dishonesty. 

27. The Panel determined in these circumstances that particulars 1 and 2 were dishonest. Objectively the fictitious calendar entry about the visit to Service User B, and the call to the Administrative Team about that fictitious visit,  were dishonest.  The Registrant also knew that what she did was dishonest as she had used the fictious diary entry to enable her to leave work early without having to give any reasons for doing so. 

Decision on Grounds

28. The Panel does not find that this is a case of lack of competence. There is no evidence of a fair sample of the Registrant’s work.  She was a Social Worker of five years of experience.  

29. The Panel considered the guidance in Roylance as to misconduct. It exercised its own professional skill and judgment on the facts and circumstances.  The facts found proved show that the Registrant  consistently failed to appropriately and professionally assess a very vulnerable service user with complex and serious health issues.  The Registrant sought to close his case file. Her actions and omissions placed Service User A at serious risk of harm.

30. Although the Panel recognised that other agency professionals were involved in providing care to the Service User A, the facts found proved show a serious and systematic failure by the Registrant in her professional responsibilities to Service User A. In addition,  the Panel has found the Registrant was dishonest.

31. The Panel determined that the allegation found proved is serious and amounts to misconduct.  The Registrant’s practice fell far below the proper standards to be expected of a registered Social Worker.  Fellow professionals would find the Registrant’s conduct both in respect of her care of Service User A, and her dishonesty, to be deplorable.

32. The Panel also found the conduct found proved breached the HCPC Standards of conduct, performance and ethics (2016) 1 and 9; and the HCPC Standards of conduct, performance and ethics (2015) 1, 3 and 13.

Decision on Impairment

33. The Panel considered the guidance in the case of Grant and the HCPTS Practice Note on Impairment.

34. The Panel has no evidence before it about the Registrant’s insight or any remediation.  There is no evidence or her current position or any steps she had taken to develop insight or to remediate her practice. The Panel determined that given its findings, the Registrant continues to present a risk of repetition of the behaviour amounting to misconduct.

35. The Panel has looked at the Registrant’s behaviour and its finding of misconduct.  It looked forward in order to form a view of whether, as of today, the Registrant’s  fitness to practise is impaired. It determined that in light of its findings that the Registrant:-

a) Has in the past acted, and is liable in the future, to act so as to put Service Users at unwarranted risk of harm;

b) Has in the past brought, and is liable in the future, to bring the Social Work profession into disrepute;

c) Has in the past breached, and is liable in the future, to breach fundamental tenets of the profession, namely honesty and integrity; and

d) Has in the past, and is liable in the future, to act dishonestly.

36. On the public aspect of impairment, the Panel’s was mindful of it findings, which include a finding of dishonesty.  The Panel determined that in these circumstances the public interest would not be served, and that public confidence in the profession and in the regulator would be undermined, were it not to make a finding of impairment.  Further, the Registrant’s misconduct is such that a finding of impairment is required to declare and uphold proper standards in the profession.

37. In all these circumstances, the Panel determined that the Registrant is currently impaired.

Decision on Sanction

HCPC Submissions on Sanction

38. Ms Ryan submitted that it was for the Panel to consider and decide upon sanction. All sanctions were available to the Panel and she referred the Panel to the HCPC Indicative Sanctions Policy.  She reminded the Panel as to the need for proportionality and to protect the public. She submitted trust was fundamental to the role of the Social Worker and the finding of dishonesty was a serious matter. The Registrant’s conduct had contributed to the deterioration and crisis suffered by Service User A.

Legal Advice

39. The Panel accepted the advice of the Legal Assessor who referred it to the HCPC Indicative Sanctions Policy. He reminded the Panel it should consider sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public. It should consider any aggravating and mitigating factors and must be mindful of proportionality and the public interest. He reminded the Panel that the primary purpose of sanction was protection of the public and that there was a need to balance that with the interests of the Registrant.

40. The Panel considered all the evidence before it.  It first considered the mitigating and aggravating factors. The Panel found that in mitigation, the Registrant appeared to be experiencing some personal difficulties at the time, although there was no evidence of that beyond the Registrant’s assertions. The Panel also noted that the Registrant did admit to SE in May 2015, that she had lied about the calendar entry.

41. The Panel considered that the aggravating factors were the risk of serious harm to a very vulnerable Service User, and the deliberate and calculated nature of the Registrant’s dishonesty in the course of her employment.  Further, the Registrant’s misconduct contributed to a crisis which involved many other agencies involved in the care of Service User A, including the fire and amusable service, and likely contributed to his hospitalisation.

42. The Panel approached the ladder of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the nature and gravity of the misconduct and the finding of impairment. These sanctions would not be adequate given the wider public interest in maintaining confidence in both the profession and the regulatory process. Neither order was appropriate or proportionate given the misconduct found in this case.

43. The Panel next considered a Conditions of Practice Order. The allegation found proved is very serious involving dishonesty, a breach of trust and a breach of a fundamental tenet of the profession, which is to be honest and trustworthy. The Panel has no evidence before it of insight or any remediation. In these circumstances, the Panel does not consider that a Conditions of Practice Order would be an adequate or proportionate sanction and would not satisfy the public interest.  The Panel was not able to devise realistic, workable, proportionate or appropriate conditions that would address the conduct that led to the finding of misconduct and the risk represented by the Registrant. Further, the Registrant has not engaged with the HCPC for some time and the Panel knows nothing of her current circumstances.

44. The Panel next considered the sanction of suspension. The Panel has found that the Registrant has shown no insight and there is no evidence of any remediation. The Panel is mindful of paragraph 41 of the Indicative Sanctions Policy; “If the evidence suggests that the Registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option”.

45. The Panel having found no evidence of insight or remediation, determined that in light of those findings there is little, if anything, to suggest that the Registrant is able to resolve or remedy her failings. She has not engaged with the HCPC since August 2017 and she has provided no evidence of her professional or personal circumstances.

46. The Panel was mindful that sanction is primarily about public safety and that the public interest is important. Suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight. Given the nature and gravity of the misconduct found, coupled with the lack of insight and remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate.  A Suspension Order would not adequately address the wider public interest in upholding and declaring proper standards and in maintaining confidence in the profession and the regulator.

47. The Panel carefully considered paragraphs 47 – 49 of the HCPC Indicative Sanctions policy. The Panel has found that the Registrant’s actions were serious and deliberate and involved an abuse of trust. It has also found that the Registrant has provided no evidence of insight or remediation.  There is no evidence that the Registrant is willing or able to resolve or remedy her fitness to practise.

48. The Panel considered the Registrant’s interests. In light of its findings, the Panel considered that the need to protect the public and the public interest by sending a clear message upholding and declaring proper standards outweighs the Registrant's interests.

49. The Panel determined that any lesser sanction than a Striking Off Order would fail to reflect the nature and gravity of the misconduct, would lack the necessary deterrent effect on the profession and would not provide the necessary protection for the public.

50. The Panel accordingly determined to impose a striking off order.

Order

That the Registrar is directed to strike the name of Mrs Andrea Joanne Trubshaw from the Register on the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Andrea Joanne Trubshaw

Date Panel Hearing type Outcomes / Status
25/06/2018 Conduct and Competence Committee Final Hearing Struck off