Mr Brian Gerard Magee

Profession: Social worker

Registration Number: SW29538

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 29/05/2018 End: 12:00 29/05/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

 

During the course of your employment as a Social Worker with the Children in Care Team at Telford and Wrekin Council between 01 March 2010 and 24  June 2013, you:

 

1. Did not consistently complete Statutory Visits within the expected time scale in relation to service users;

 

a) Service User 1;

 

b) Service User 3;

 

c) Service User 10;

 

d) Service User 11;

 

e) Service User 12;

 

f) Service User 13;

 

g) Service User 14;

 

h) Service User 15;

 

i) Service User 16;

 

j) Service User 19;

 

k) Service User 18;

 

l) Service User 20;

 

m) Service User 21; and

 

n) Service User 24.

 

2. Did not consistently complete Statutory Visits reports within the expected time scale in relation to service users;

 

a) Service User 5;

 

b) Service User 7;

 

c) Service User 10;

 

d) Service User 13;

 

e) Service User 14;

 

f) Service User 16;

 

g) Service User 17;

 

h) Service User 19;

 

i) Service User 20; and

 

j) Service User 24.

 

3. Did not consistently update and maintain care plans of cases you were responsible for within the expected time scale in relation to service users;

 

a) Service User 7;

 

b) Service User 10;

 

c) Service User 11;

 

d) Service User 14

 

e) Service User 15;

 

f) Service User 17;

 

g) Service User 16;

 

h) Service User 19 and

 

 

I) Service User 18.

 

4. Did not consistently conduct return from missing interviews within the expected time frame (72 hours) in relation to service users;

 

a) Service User 1;

 

b) Service User 2; and

 

c) Service User 3.

 

5. Did not consistently record missing persons episodes and or return from missing interviews within the expected time frame of three working days for service users;

 

a) Service User 1;

 

b) Service User 2; and

 

c) Service User 3.

 

6. Did not consistently contact service users and/or their carers of newly allocated cases within the expected time frame of 5 working days in relation to service users;

 

a) Service User 5;

 

b) Service User 6a;

 

c) Service User 7;

 

d) Service User 12;

 

e) Service User 13;

 

f) Service User 14;

 

g) Service User 15;

 

h) Service User 16; and

 

i) Service User 19.

 

7. Were unable to practice autonomously without constant supervision and support from managers and colleagues.

 

8. The matters described in paragraphs 1 - 7 constitute misconduct and/or lack of competence.

 

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

Finding

Preliminary Matters


Proof of Service


1. The Registrant did not attend the hearing. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent on 27 April 2018 by first class post, to the address shown for the Registrant on the HCPC register.  The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct and Competence Committee Rules 2003 (as amended).

Proceeding in Absence


2. The HCPC made an application for the hearing to proceed in the Registrant’s absence. The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

3. The Panel, having determined that the Registrant had been properly served with the Notice of Hearing, concluded that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Panel noted that in a letter to the HCPC, dated 20 May 2018, the Registrant stated, ‘Unfortunately, I will be unable to attend the hearing as I will be on holiday out of the United Kingdom.’ After setting out a number of matters for the Panel’s attention, he concluded ‘although I will not be present at the hearing on 29th May 2018 I hope that this information will assist you in making your decision.’  In these circumstances, the Panel was satisfied that it was reasonable to conclude that the Registrant has chosen not to attend the hearing. Therefore, the Panel was satisfied that the Registrant’s absence demonstrated a voluntary waiver of his right to be present.

b) There has been no application to adjourn and no indication from the Registrant that he would attend on an alternative date in the future. Therefore, re-listing this review hearing would not serve any useful purpose.

c) As this is a mandatory review hearing there is a strong public interest in ensuring that it is considered expeditiously. It is also in the Registrant’s interest that this review is dealt with as soon as possible.

Background


4. The Registrant qualified as a social worker in 1981 and became a Senior Social Worker in 2008. From 2010 he worked in the Children in Care Team at Telford and Wrekin Council.


5. Concerns were raised about the Registrant’s practice and this led to the commencement of a formal capability process with additional supervision and monitoring. The concerns continued and in June 2013, the Registrant’s contract of employment was terminated. The matter was referred to the HCPC. 


6. Following investigation by the HCPC into the matters alleged, the Allegation was drafted and the Registrant’s case was referred to a Final Hearing panel.


7. The Registrant made full admissions at the Final Hearing in March 2015. The Final Hearing panel decided that the matters alleged and admitted in their entirety collectively amounted to misconduct. At that stage the Final Hearing panel considered that the Registrant lacked an understanding of the serious nature of the concerns. A Suspension Order was imposed on the Registrant for a period of nine months; a period, which it was considered, reflected the public interest in the maintenance of standards and sufficient time for the Registrant to reflect on his conduct.


8. The panel conducting the first review hearing on 30 November 2015 considered that although the Registrant’s fitness to practise remained impaired, he was a credible witness who had reflected on his previous behaviour and had attained a good level of insight. The first review panel had been impressed with his work ethic in maintaining employment in a variety of jobs whilst suspended. That panel considered that the Registrant’s positive statements had not been put to the test within a practical work setting and therefore whilst the remediation process had started it had not been completed. The first review panel came to the view that a Conditions of Practice Order was proportionate and appropriate in all the circumstances at that time and was a way for the Registrant to demonstrate his determination to return to practice.


9. The second review hearing took place on 21 December 2016. The second review panel determined that the Registrant’s fitness to practise remained impaired. That panel went on to conclude that the Conditions of Practice Order should be extended for a period of 18 months subject to a ‘small alteration.’ In determining the length of the Order, the second review panel stated:
In considering the period during which this order is to have effect, the Panel took into account how difficult it is to return to social work particularly for someone who has been out of practice for a continuous period of time. It gave consideration as to whether the availability of relevant courses may be on an academic cycle which may prohibit the Registrant completing his studies within a twelve month period. It also recognised that the Registrant would need time to find suitable employment in which to demonstrate remediation and compliance with the conditions of practice. The Panel has therefore concluded that it is reasonable to give the Registrant an extended period of eighteen months in which to bring his skills, knowledge and practice up-to-date and to secure appropriate supervision and possible employment.’


HCPC Submissions


10. Mr Waren, on behalf of the HCPC, outlined the procedural history of this case and the background circumstances. He reminded the Panel of the previous findings of the review panels and of its powers to make no order, replace the order, extend the current order to enable an application for a Voluntary Removal Order to be made, amend the existing order or a make a Striking Off Order. Mr Waren stated that the HCPC was neutral as to the outcome of the Panel’s review.


Registrant’s Submissions


11. The Registrant, in his letter to the HCPC, dated, 20 May 2018, stated that he is currently working full-time as a Warehouse Assistant. He confirmed that although it had initially been his intention to re-establish his career in social work, he is now content with his current circumstances. He went on to state, ‘On reflection my social work career of 32 years has had a negative…impact on me. There were three periods of sickness absence…which were primarily work related. I would not want to return to any activities that might have a detrimental effect on my health.’ He referred to his telephone discussion with the HCPC, which took place on 4 May 2018, in which he was informed about the possibility of entering into a Voluntary Removal Agreement with the HCPC. The Registrant stated, ‘Given that at this moment in time I have no intention of returning to social work this might be an appropriate way forward.’


Panel’s Approach


12. In undertaking this review, the Panel took into account the documentary evidence, including the letter from the Registrant, dated 20 May 2018, and the submissions from Mr Waren, on behalf of the HCPC.


13. The Panel accepted and applied the advice it received from the Legal Assessor as to the proper approach it should adopt. In particular that:


• The purpose of the review is to consider the issue of impairment based on the previous panel’s findings of fact, the extent to which the Registrant has engaged with the regulatory process, the scope and level of his insight and the risk of repetition.

• In terms of whether his previous misconduct has been sufficiently and appropriately remedied, relevant factors include whether the Registrant:

(i) fully appreciates the gravity of the previous panel’s finding of impairment;
(ii) has maintained his skills and knowledge;
(iii) is likely to place service users at risk if he were to return to unrestricted practice.

• The Panel should have regard to the HCPTS Practice Note: Finding that Fitness to Practise is impaired and must take account of a range of issues which, in essence, comprise two components:

(i) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

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

• It is only if the Panel determine that the Registrant’s fitness to practise remains impaired, that the Panel should go on to consider sanction by applying the guidance as set out in the HCPTS Indicative Sanctions Policy (ISP), and the principles of proportionality which require the Registrant’s interests to be balanced against the interests of the public.

Decision  


14. The Panel noted that the substantive hearing panel found that over a significant period of time the Registrant did not conduct statutory visits, did not complete statutory visit reports, did not complete return from missing interviews, did not record missing persons episodes and did not contact newly allocated service users and/or carers within the required timescales. However, the Panel also noted that the Registrant made full admissions at the Final Hearing and as confirmed by the previous panel’s findings has developed a good level of insight.


15. The Panel first considered whether the Registrant’s fitness to practise remains impaired based on his previous misconduct. Although the Registrant’s letter, dated 20 May 2018, indicates that he has continued to develop insight, the Panel has not been provided with any evidence upon which it could conclude that the deficiencies in the Registrant’s practice have been remediated. The Panel took the view that it is essential, if the Registrant is to return to the Register unrestricted, that he takes appropriate steps to demonstrate that he has developed his social work skills and knowledge and as a consequence would not place service users at risk of harm.


16. The Panel took the view that in the absence of any evidence of remediation, there remains an ongoing risk to public safety. A reasonable well-informed member of the public would also be concerned at the prospect of a registrant, who has been out of practice for approximately 5 years, returning to the Register unrestricted without addressing the underlying deficiencies, which had been identified. Therefore, the Registrant’s fitness to practise remains impaired on grounds of public protection and the wider public interest.


17. Having determined that the Registrant’s fitness to practise is impaired, the Panel went on to consider what, if any, sanction it should impose.  The Panel first considered whether to terminate the order and impose no further order but concluded that this would not be sufficient to mark the seriousness of the Registrant’s conduct and would therefore be wholly inappropriate.  Similarly, the Panel was of the view that a caution would not be appropriate as the misconduct was not minor in nature and there was no evidence that the Registrant had remediated his failings.  Accordingly, there remained a significant risk of repetition.


18. The Panel next considered the current Conditions of Practice Order. The Panel noted that the Conditions of Practice Order was imposed to facilitate the Registrant’s return to practice. However, the Registrant has stated on two separate occasions that he has no intention of returning to practise as a social worker and would welcome the opportunity to be allowed to be voluntarily removed from the Register. The Panel noted that the possibility of a Voluntary Removal Agreement was raised by the HCPC and it appears to be willing to enter into such an agreement with the Registrant. Furthermore, as stated in paragraph 33 of the Indicative Sanctions Policy:
‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so.


19. The Panel concluded that the Registrant has made his intentions clear and as a return to practise is no longer a realistic possibility, it determined that a Conditions of Practice Order is no longer appropriate.


20. The Panel went on to consider a Suspension Order. In considering whether to impose a Suspension Order, the Panel took into account the indication that both parties were willing to enter into a Voluntary Removal Agreement. The Panel noted that the Registrant has been a social worker for 32 years and is actively considering retirement. The Panel took the view that, as a return to practice is no longer a viable option, it was fair and reasonable to give the Registrant the opportunity to enter into a Voluntary Removal Agreement. The Panel was satisfied that a short period of suspension would protect the public and provide both parties with the opportunity to make the necessary arrangements. The Panel was aware that, assuming the parties were in agreement, a consent order would have to be placed before a panel. In view of the practical and administrative arrangements that would have to take place, the Panel determined that the Suspension Order should be imposed for a period of four months.


21. The Panel took into account the potential adverse effects on the Registrant, but concluded that these were outweighed by the Panel’s duty to give priority to the protection of the public and the wider public interest.


22. The Panel cannot bind a future reviewing panel. However, the Panel noted that if the parties are unable to reach an agreement or if there is a lack of engagement and/or cooperation from the Registrant, to the extent that a consent order hearing cannot be listed, the Suspension Order will be reviewed shortly before expiry in the usual way. It is likely that a future review panel will take the view that a Striking Off Order is the appropriate action as paragraph 48 of the Indicative Sanctions Policy states:
‘A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.’


23. The Panel determined that at this time, whilst the possibility of an agreement being reached by the parties remains to be properly and fully considered, a Striking Off Order would be disproportionate.

Order

Order: The Registrar is directed to suspend the Registrant from the Register for a period of four months.
This Order will be reviewed again before its expiry on 29 September 2018.

Notes

A substantive review was held in London on 29 May 2018 in which a Suspension Order was imposed.

Hearing History

History of Hearings for Mr Brian Gerard Magee

Date Panel Hearing type Outcomes / Status
14/08/2018 Conduct and Competence Committee Final Hearing Voluntary Removal agreed
29/05/2018 Conduct and Competence Committee Review Hearing Suspended
21/12/2016 Conduct and Competence Committee Review Hearing Conditions of Practice
30/11/2015 Conduct and Competence Committee Review Hearing Conditions of Practice
09/03/2015 Conduct and Competence Committee Final Hearing Suspended