Ms Doreen Munsanda Mudenda

Profession: Social worker

Registration Number: SW77490

Interim Order: Imposed on 13 Jun 2018

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 14/06/2018 End: 16:00 14/06/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. On 17 July 2017 at Lewes Crown Court you were convicted of two offences of ‘Dishonestly fail to notify change of circumstances affecting entitlement to social security benefit’;

 

2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary matters

Application for the hearing to take place in private


1. Ms Fitzgerald, who appeared on behalf of the Registrant, made an application for submissions and evidence which necessitated discussion of the Registrant’s health to be heard in private.  Ms Manning-Rees for the HCPC made no objection. 

2. The Panel received advice from the Legal Assessor and was reminded of the provisions of Rule 10(1)(a) of the Conduct and Competence Committee Rules 2003.  The Panel was satisfied that discussion of health issues should be considered in private and accepted the application, but on the basis that as much as was appropriate of the hearing should take place in public, in accordance with the important principle of open justice. 

Response to the charge

3. Ms Coral Fitzgerald stated that the Registrant admitted the fact of the conviction and the statutory ground of conviction under Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001. The Registrant denied her fitness to practice is impaired

Documents

4. The Panel received a bundle of documents from the HCPC.  This included a copy of the Certificate of Conviction from Lewes Crown Court dated 12 October 2017 and a transcript from the sentencing hearing before His Honour Judge Kemp on 14 August 2017.

5.  On the Registrant’s behalf, the Panel received a medico-legal report from Dr A F F Ghaly, dated 21 June 2017, and two character references.  

Background
 
6. The Registrant is a registered social worker.  On 17 July 2017, she appeared at Lewes Crown Court and was convicted, upon her own confession, of two counts of “Dishonestly fail to notify change of circumstances affecting entitlement to social security benefit”.  On 14 August 2017, she was sentenced to 10 months imprisonment suspended for 12 months and 100 hours of unpaid work.

7. The documents presented by the HCPC indicated that the Registrant had suffered from health conditions of a serious nature which affected her mobility, as a result of which she had received Disability Living Allowance which she had initially claimed in 1999. However, between approximately May 2003 and February 2015, the Registrant’s physical health condition improved, but she failed to notify the authorities of the change in her circumstances and continued to obtain Disability Living Allowance.  The Registrant had admitted that during this 12 year period, she continued to receive payment from public funds without notifying the authorities that she was in fact able to work as a social worker and did work during that period.   The sum referred to as fraudulently obtained by the Registrant from public funds was, as stated in the sentencing transcript, £58,963.50. 

8. A number of mitigating circumstances were referred to in the sentencing transcript.

9. The information before the Panel about the Registrant’s circumstances indicated that in the period prior to her conviction she had been employed as a social worker by East Sussex and Surrey County Council (“the Council”).  Information from the Council’s HR department indicated that during the period whilst the criminal case against the Registrant was under consideration, she was working as a social worker, but under close supervision and did not have direct access to clients. Further information in June 2016 indicated the Registrant had by then resigned from her employment with the Council. 

10. The Registrant contacted the HCPC in March 2015 and informed them of her arrest.

Decision on facts

11. The Panel received and accepted the advice of the Legal Assessor.  The Panel was aware that the burden of proof of the facts was upon the HCPC and the standard of proof is the civil standard, the balance of probabilities.

12. The Panel accepted the Registrant’s admission to the facts.

13. The Panel also had sight of the Certificate of Conviction from Lewes Crown Court dated 12 October 2017 and the transcript from the sentencing hearing before His Honour Judge Kemp on 14 August 2017.

14. The Panel accepted the Certificate of Conviction as proof of the conviction and of the findings of fact upon which it was based in accordance with Rule 10(1)(d) of the Conduct and Competence Committee Procedure Rules 2003. The Panel was therefore satisfied that the facts of particular 1 had been proved.

Decision on Ground

15. The Panel was aware that whether the ground alleged was made out was a matter for its professional judgement. The Panel referred to the HCPTS Practice Note on Convictions and Cautions.

16. It followed from the proof of the conviction in this case that the ground under Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001, a conviction in the United Kingdom for a criminal offence, was established. 

17. The Panel also noted the Registrant’s admission and was satisfied that the ground of conviction was proved. 

Current Impairment - submissions of the parties

18. Ms Manning-Rees on behalf of the HCPC submitted that the conviction involved an offence of dishonesty over a substantial time period of 12 years. The public purse had been deprived of a significant sum of money, £58,963.50, by the Registrant’s actions.  There was little evidence of insight or remorse and the Registrant had continued to deny her guilt until changing her plea a few days before her trial. Ms Manning-Rees submitted that the Registrant’s fitness to practise was currently impaired in respect of both the personal and public components.

19. Ms Fitzgerald submitted that the Registrant denied that her fitness to practise is currently impaired.  Whilst she accepted the conviction, she submitted there was a unique context in the Registrant’s background circumstances. 

20. The Registrant, despite her health condition, obtained a social work degree in 2005 and subsequently employment as a social worker.  She had worked almost continuously, which Ms Fitzgerald submitted was to her credit given her health difficulties.  She told the Panel that the Registrant had a vocation and was committed to her profession. 

21. In March 2015, whilst she was employed at East Sussex and Surrey County Council, the Registrant was arrested in respect of these matters. She informed the HCPC.  In relation to her plea in the criminal proceedings, Ms Fitzgerald submitted that it was only latterly that the Registrant began to understand that she should have declared the improvement in her condition some time previously and she then entered a plea of guilty two days before her criminal trial. 

22. Ms Fitzgerald referred to the medico-legal report of Dr Ghaly dated 21 June 2016, which she said had been submitted in the criminal proceedings and  which to some extent supported the Registrant’s understanding of the position.

23. In questions from the Panel, it was clarified that the Registrant is currently working as a locum social worker through an agency.  She had informed the agency that she was subject to HCPC proceedings, but not Southwark County Council where she currently worked of the existence of her criminal conviction. 

Decision on Impairment

24. In reaching its decision, the Panel considered the submissions of Ms Manning-Rees on behalf of the HCPTS and those of Ms Fitzgerald on behalf of the Registrant. The Panel also had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

25. The Panel was mindful that the question of current impairment is a matter for its own professional judegment.  In reaching its decision, the Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the offence and the need to maintain confidence in the profession, as well as declaring and upholding proper standards of conduct and behaviour which the public expect.

26. The Panel considered that the conviction was a very serious matter, involving a pattern of dishonesty over an extended period of time, some 12 years.  The Registrant’s actions had deprived public funds of a substantial amount of money £58,963.50.  The conviction called into question the Registrant’s honesty and integrity which are fundamental requirements for a registered social worker. 

27. The Panel considered the personal component of the Registrant’s conduct. The Panel was concerned that there was a lack of understanding on the part of the Registrant as to the gravity of the conviction and its relevance to her professional status as a registered social worker.  There had been no expression from the Registrant of any remorse or apology, or indication that she had reflected upon her offences.  Whilst dishonest conduct is difficult to remediate, the Registrant had not presented any efforts at remediation of her past actions.  Her continuing lack of insight was further demonstrated by her admission that she had not made her current place of work aware of her criminal conviction. 

28. The Panel concluded that there was a risk of repetition. Taking this into account and taking account of the very serious nature and gravity of the offences, the Panel is satisfied that there were concerns in relation to the personal component of the Registrant’s actions. In the Panel’s view, there was a risk to the public from a social work professional who has been convicted of such a serious offence.

29. In respect of the public component, the Registrant’s actions, as well as the fact of her criminal conviction, clearly brought the profession into disrepute and undermined public confidence in the profession. As a social worker the Registrant works with vulnerable service users and is in a position of trust. She had informed the Panel that she works in adult social care.  As such, she is likely to deal with adult service users who are themselves in receipt of welfare benefits.  The Panel concluded that the confidence of such service users, in addition to that of the wider public, in the social work profession and in its proper regulation, would be undermined were a finding of impairment of current fitness to practise not made. 

30. The Panel has concluded that given the nature and circumstances of the Registrant’s conviction, the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. The Panel has therefore concluded that the Registrant’s fitness to practise is currently impaired on both the personal and public components and the allegation is therefore well founded.

Submissions on Sanction

31. The Panel first heard submissions from Ms Manning-Rees. She referred the Panel to the HCPTS Indicative Sanctions Policy. She reminded the Panel that this provides that where in a serious conviction case a registrant is still subject to the criminal court’s sentence, it would usually be inappropriate to allow the Registrant to continue, or return to, unrestricted practice until the sentence is concluded. 

32. Ms Manning-Rees reminded the Panel to consider the aggravating and mitigating factors in reaching its decision, and to take account of the public interest.

33. Ms Fitzgerald addressed the Panel on the issue of sanction on behalf of the Registrant. She told the Panel that the Registrant accepted that she had made a huge error.  However, in her submission it was possible to make such an error in one area of life, but to conduct every other area of one’s life with integrity. 

34. Ms Fitzgerald said she was instructed that the Registrant had submitted a letter to the HCPC at an earlier stage in which she expressed remorse, though no copy appeared to be available or was provided by the Registrant.

35. Ms Fitzgerald impressed upon the Panel that although a sanction was not intended to be punitive, if the Panel were to prevent the Registrant from practising, there would be a very punitive effect upon her. The Registrant had recently had her contract at her present place of work extended for a further three months.  She had already experienced the salutary effect of the criminal proceedings and the sentence imposed upon her. She had had to give up her previous employment due to the alienation she experienced whilst the criminal proceedings were pending. 

36. Ms Fitzgerald asked the Panel to take account of the mitigation evidence.  She submitted that there was a very low risk of repetition of similar conduct in the future.  She submitted that the Panel should consider a lesser sanction than a striking off order, either a conditions of practice order or a period of suspension. 

Decision on Sanction

37. The Panel took account of the parties’ submissions and accepted the advice of the Legal Assessor.  It had regard to the HCPC Indicative Sanctions Policy.

38. The Panel was mindful that the purpose of a sanction is not to be punitive, although it may have a punitive effect.  The Panel must consider the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

39. The Panel took account of the guidance in the Indicative Sanctions Policy that in a conviction case, the Panel’s role is not to punish the Registrant twice for the same offence, but is to protect the public and to maintain high standards among registrants and public confidence in the profession. It further noted the guidance that where a registrant who has been convicted of a serious criminal offence is still serving a sentence when the matter comes before a Panel, normally the Panel should not permit the registrant to resume unrestricted practice until that sentence has been satisfactorily completed. In this case, the Registrant will be serving the sentence of the criminal court until August 2018.  

40. The Panel carefully considered the aggravating and mitigating factors present in this case. 

41. The Panel took account of the following mitigating factors:

• the Registrant had informed the HCPC of the matter at the time of her arrest;
• the Registrant’s difficult personal circumstances, including her health and financial circumstances;
• there was no information before the Panel suggesting any criticism of the Registrant’s practice as a social worker;
• her guilty plea in the criminal proceedings, albeit at a late stage;
• the two testimonial letters submitted referring to the Registrant’s caring character, albeit these did not indicate that the authors had knowledge of the criminal conviction or the HCPC proceedings.

42. The Panel considered the following aggravating factors:

• that the Registrant’s behaviour, as described by the Judge in the sentencing transcript, was both illegal, anti-social and an offence against the public;
• the conduct found proved in the criminal proceedings involved repeated dishonesty over an extended period of time;
• the significant sum of money obtained by the Registrant was derived from public funds;
• the Registrant’s lack of insight into the gravity of the criminal conviction and its relevance to her responsibilities as a registered social worker.

43. The Panel noted the submission on behalf of the Registrant that she had sent a letter expressing remorse for her actions to the HCPC and it gave her some credit for this.  This however did not alleviate the Panel’s overall concerns at this hearing about the Registrant’s lack of insight or any attempts to remediate or reflect upon her misconduct. The Panel considered the Registrant’s failure to be open and frank about her conviction to her current place of employment was a further indication that she lacked insight into the gravity of the matter.  Given all these factors, the Panel could not be satisfied that there was a low risk of repetition of similar conduct in the future

44. The Panel was mindful that it must adopt a proportionate approach to the question of sanction.  It considered the sanctions available to it in ascending order of gravity.

45. The Panel considered that to take no action or to impose a caution would not be appropriate given the very serious nature of the conviction and the criminal court’s finding of dishonesty. The Panel also considered that it was not possible to formulate conditions of practice which would address the Registrant’s lack of insight or the requirements of the public interest.   Nor would conditions be appropriate given the nature of the offence that the conduct took place outside of a professional setting.

46. The Panel next considered a suspension order. In terms of the Indicative Sanctions Policy, a Suspension Order is appropriate where the Panel considers that a Caution Order or Conditions of Practice Order would provide insufficient public protection and where the allegation is of a serious nature but there is a realistic prospect that repetition will not occur. Primarily, the Panel considered this matter to be too serious for a suspension to be appropriate.  It would not adequately address the wider public interest or have a sufficient deterrent effect.  Further, in the absence of any satisfactory demonstration of insight or remediation, and limited remorse, there is in the Panel’s view, a real risk of repetition.

47. The Panel next considered a Striking Off Order. The Panel is of the view that given the nature of the Registrant’s conviction, it is incompatible with ongoing registration, in that members of the public would have serious concerns if a registered social work professional who is in a position of trust were able to return to practise with a conviction of this nature.  The Panel was also mindful of the impact of the Registrant’s conviction upon service users with whom she may come into contact and how their confidence and trust in the social work profession would be undermined. 

48. The Panel therefore concluded that given the nature and gravity of the conviction, a Striking Off Order is the only sanction which would adequately address the wider public interest considerations in terms of maintaining public confidence in the profession and declaring and upholding proper standards of conduct.

 

Order

That the Registrar is directed to strike the name of Ms Doreen Munsanda Mudenda from the Register on the date this order comes into effect.

Notes

Application for immediate interim order

Ms Manning-Rees made an application that the Panel should impose an interim order under Article 31(1)(c) of the Health and Social Work Professions Order 2001. 

She submitted that an order for a period of 18 months was necessary in the light of the Panel’s decision to impose a Striking Off Order, on the grounds of public protection, in the public interest and in the Registrant’s own interests, to cover the appeal period or the duration of any appeal proceedings.

Ms Fitzgerald did not oppose the application.  

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.  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.

Hearing History

History of Hearings for Ms Doreen Munsanda Mudenda

Date Panel Hearing type Outcomes / Status
14/06/2018 Conduct and Competence Committee Final Hearing Struck off