Mr Kenneth K Nyoka

Profession: Social worker

Registration Number: SW96466

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 22/11/2018 End: 17:00 23/11/2018

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

Whilst registered as a Social Worker and working at Luton Borough Council:

 1. On 9 July 2015 you accessed Service User A’s records without a professional reason to do so;

 2. Your actions described at particular 1 constitute misconduct;

 3. By reason of your misconduct your fitness to practise is impaired

 

 

 

Finding

Preliminary Matters

Service

1. The Panel found that there had been good service of the notice of hearing dated 10 September 2018 sent to the Registrant’s address by post as it appears on the HCPC register.

Hearing in Private

2. Mr Millin made an application for the hearing to be conducted partly in private to protect the Registrant’s confidential health matters. The Panel granted the application and the hearing was held partly in private in relation to the Registrant’s health.

Proceeding in absence of the Registrant

3. The Registrant has not attended the hearing today. The Panel considered whether to proceed with the hearing in the absence of the Registrant under Rule 11 of the Procedure Rules 2003. The Panel was advised by the Legal Assessor to consider the guidance in the HCPTS Practice Note entitled Proceeding in the Absence of the Registrant, and followed that advice. The Panel was reminded of the principles stated in the cases of R v Jones and R v Hayward, namely: to exercise utmost care and caution in considering the HCPC’s application inviting the Panel to proceed with this hearing in the absence of the Registrant. Also in the case of GMC v Adeogba it was stated that a health professional has a responsibility to engage with his regulatory body.

4. The Panel considered the email correspondence received from the Registrant. His email of 31 October 2018 stated that he has a health problem and will not be able to attend the hearing. He also stated that he does not contest the allegation and provided a detailed written statement. He provided further written submissions on 11 November, and stated that he would confirm by 12 November whether he wished to participate in the hearing by telephone but he failed to do so. On 20 November he sent an email stating that he would not be able to participate in the hearing but that he was able to be “instantly” available by email for clarification of matters on 22 and 23 November.

5. The Panel requested that an attempt be made to contact the Registrant by telephone, on the morning of the hearing, to clarify if he wished to engage with the Panel by email. However the Registrant could not be contacted. The Panel then heard submissions from Mr Millin, in respect of the possibility of sending an email to the Registrant in a further attempt to clarify his position. Mr Millin submitted that this would be inappropriate in the circumstances. He drew the Panel’s attention to the guidance in the HCPTS Practice Note entitled Proceeding in the Absence of the Registrant which states: “A registrant who has decided, for whatever reason, not to attend a hearing is unlikely to be willing to provide a full and frank response when put on the spot in this manner”.

6. The Panel decided that it was in the interests of justice to proceed with the hearing, in the absence of the Registrant, taking into account that he has voluntarily absented himself. He has not requested an adjournment and it is not likely that he would attend in the future, if this hearing was adjourned. The witness who has attended today would be inconvenienced if the case did not proceed. There is a public interest in dealing with this case expeditiously and it is in the public interest to proceed with the hearing today, not least because the relevant event occurred in July 2015. Also the Registrant has expressed his concern about the delay in concluding this matter.


Background

7. The Registrant began work at Luton Borough Council (LBC) as an agency Social Worker in the Adult Social Care Department, from 23 March 2013. He received induction training in relation to the LBC data protection and IT usage policies at that time. He was not authorised to obtain personal information from the LBC systems in relation to service users he was not working with directly. A referral was made to the HCPC by the agency employing the Registrant, in September 2016.

Decision on Facts


8. The Panel carefully considered the evidence in the case, the submissions of Mr Millin and the available information from the Registrant. The Panel accepted the advice of the Legal Assessor that the burden of proving the factual particular is upon the HCPC and the standard of proof is the balance of probabilities.

9. On behalf of the HCPC, the Panel heard oral evidence from BR, the former interim service manager at LBC. The Panel received a bundle of documentation from the HCPC including the witness statement of BR and 80 pages of HCPC exhibits. The Panel also received documents from the Registrant consisting of three emails dated 31 October and 11 November 2018 (with attachments) and an email dated 20 November 2018.

Credibility of the Witness and Assessment of the Evidence

10. The Panel first made an assessment of the credibility of the witness BR and the reliability of all of the evidence presented to it. BR was a credible and honest witness who was knowledgeable in relation to the background but made clear that he suspended the Registrant for safeguarding reasons in September 2016 and not due to the data protection breach in July 2015 which did not come to light until later.

The Registrant’s written evidence

11. The Registrant stated that he had met Service User A before he became a Social Worker and had a relationship with her at that time but did not take advantage of his position as a Social Worker. He states that he was not aware that she was in receipt of LBC Services and he now accepts it was wrong to access her data on the LBC system. He has expressed profound regret and admits the allegation which he accepts is serious. He states that at the time the data breach occurred he was dealing with difficult personal circumstances. Following his suspension by LBC he has been unable to practise as a Social Worker and has suffered ill health. He has never been subject to previous fitness to practise concerns and states he has always worked impeccably prior to this incident (although there are no references or testimonials before the Panel.) The Registrant deeply regrets the incident and has expressed an apology. He states that he has also studied data protection confidentiality laws (but did not provide any confirmation of this.)

12. The Panel took account of that fact that the Registrant was unrepresented and did not draw any adverse inferences from the Registrant’s decision not to attend the hearing.

Particular 1-Proved

13. On 19 September 2016 BR was shown an anonymous letter which had been received by LBC. The letter alleged that the Registrant had been visiting Service User A, a vulnerable service user, not in a professional capacity and enclosed with the letter were photographs of the Registrant with Service User A. BR requested that an enquiry be carried out into Service User A and the Registrant attended a meeting with BR on the same day.  The Registrant stated that he knew Service User A before becoming a Social Worker and was unaware that she was a service user. He stated he had last seen her in March 2016. At the conclusion of the meeting the Registrant was suspended from his duties with LBC, pending an investigation. An IT report was obtained showing that the Registrant had gained unauthorised access to the LBC system in order to view records relating to Service User A, on 9 July 2015. The Registrant had no professional reason to access these records and did so in breach of the LBC data protection policies. Service User A was contacted as part of the investigation and stated that she knew the Registrant and had met him in a pub. She was a person with care and support needs and therefore was considered a vulnerable adult under the Care Act 2014. The Registrant has admitted this particular and the Panel has seen the relevant IT records to prove the data access. Therefore particular 1 is proved.
Decision on Grounds

14. The Panel next considered whether the Registrant’s behaviour in respect of the proved factual particular amounts to misconduct.

15. Misconduct is a matter for the Panel’s judgment and has been defined as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed in the particular circumstances and the conduct complained of must be serious.

16. The HCPC submits that the behaviour outlined in the factual particular does amount to misconduct, in that it constitutes a serious falling short of what would be proper and expected of a Registered Social Worker.


17. The standards ordinarily required to be followed by the Registrant would have been those that were in force at the relevant time. The Standards of Conduct, performance and ethics (2012) state: Standard 2) You must respect the confidentiality of service users and Standard 13): You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession. The Standards of proficiency for social workers in England (2012) state Registrant social workers must: Standard 2) Be able to practise within the legal and ethical boundaries of their profession and Standard 7): Be able to maintain confidentiality. By reason of particular 1 the Panel finds the Registrant is in breach of each of the above standards.

18. The Panel is satisfied that particular 1 is sufficiently serious to amount to misconduct. The Registrant demonstrated a wilful disregard of the Data Protection Act 1998 and the LBC applicable policies and procedures and the proved particular does amount to misconduct. Service User A was vulnerable and entitled to have her confidentiality protected. The Registrant misused his position of power through a breach of trust, to access her data.


Decision on Impairment

19. The Panel next considered whether the Registrant’s fitness to practise is currently impaired.  The Panel accepted the advice of the Legal Assessor to consider The HCPTS Practice Note on Finding that Fitness to practise is “Impaired” which states there are two components: The personal component which includes looking at the current competence, behaviour etc. of the individual registrant. The public component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession. The test of impairment is expressed in the present tense, so that fitness to practise must be impaired at today’s date. The Panel has taken into account the lapse of time since this matter occurred and has also looked at the Registrant’s past actions in order to assess his likely future conduct. The Panel has considered the need to uphold the HCPC Standards of conduct and public confidence in the profession, when deciding whether a finding of impairment should be made. Whether a Registrant’s fitness to practise is impaired is a matter for the Panel’s judgment. There is no burden of proof on the HCPC or the Registrant at this stage.

20. The Registrant has not attended this hearing but he has engaged with the HCPC regulatory process. The Panel has considered what degree of insight he has shown and whether there is a risk of repetition. The Registrant has demonstrated a lack of insight as to the seriousness and potential consequences of his misconduct.

21. The Panel finds his misconduct is capable of remediation but has not yet been remediated. He has not put forward any specific evidence of remediation in respect of his misconduct. He has expressed regret and apologised. He has also reflected and studied confidentiality laws, but has not supplied evidence of a relevant training course having been completed.

22. The Registrant has not allayed the Panel’s concerns that there is a risk of repetition and the Panel finds he is currently impaired under the personal component. He demonstrated a disregard for the Data Protection Act and initially denied the data breach.

23. In considering the public component and the need to declare and uphold proper standards of conduct and behaviour, so as to maintain public confidence in the profession. The Registrant’s behaviour fell short of what is to be expected and it is necessary to maintain public confidence in the profession and the regulatory process by finding that there is a current impairment of his fitness to practise. He breached fundamental standards to maintain confidentiality and a reasonable member of the public would be rightfully concerned at the abuse of his position.

24. Accordingly due to the risk of repetition and the need to uphold proper professional standards and public confidence in the profession, the Panel finds that the Registrant’s fitness to practise is currently impaired, under both the personal and public components.

Decision on Sanction

25. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the circumstances of this case and to its findings of fact, the statutory ground of misconduct and current impairment.

26. The Panel has considered the submissions made on behalf of the HCPC and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had regard to the HCPC Indicative Sanctions Policy which states that any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

27. The Panel first identified the aggravating and mitigating factors that it should take into account.

The aggravating factors are:

• The Registrant misused his position of power through a breach of trust.
• The Registrant has demonstrated a lack of insight as to the seriousness and potential consequences of his misconduct.
• His misconduct has not yet been remediated.
• There is a risk of repetition and he is impaired under both the personal and public components.
• The Registrant initially denied the data breach when questioned.
• There was a potential risk of harm to a vulnerable service user.

The mitigating factors are:

• The Registrant has admitted the factual particular and apologised.
• He has engaged with the HCPC regulatory process.
• His misconduct is capable of remediation.
• There had been no previous fitness to practice concerns and the Registrant states he had an unblemished career hitherto.
• This was a one-off isolated incident arising from a particular set of circumstances.

28. The Panel has considered sanctions in ascending order of gravity. All sanctions are available in this case. Taking no action and mediation would not be appropriate in this case. The Panel has decided that a Caution Order is not an appropriate sanction in this case. The Registrant’s misconduct was not minor and the Panel has identified a risk of repetition and a lack of insight and remediation.

29. The Panel considered imposing a Conditions of Practice Order because the Registrant’s failings are capable of correction, there is no persistent or general failure but the Registrant has not practised as a Social Worker since September 2016 and appropriate conditions of practise would not be workable or verifiable. The Registrant’s misconduct has not been remediated. The Panel concludes that conditions of practice are not an appropriate sanction in this case, because workable and appropriate conditions cannot be formulated. The conditions required would be too onerous to be complied with and would effectively amount to suspension because it is unlikely the Registrant would be employed subject to such conditions. There is currently a risk of repetition and verifiable conditions which the Registrant would be trusted to comply with are not currently appropriate.

30. The Panel concludes that a Suspension Order for 9 months is appropriate to enable the Registrant to resolve or remedy his misconduct, due to the risk of repetition. Suspension is appropriate, in view of the seriousness of the misconduct and the Registrant’s current impairment under the personal and public components. The Registrant will be able to provide information to the reviewing Panel to demonstrate that he has remedied his failings and reduced the risk of repetition. The Panel takes into account that this is a one-off case specific incident and there are mitigating circumstances but it is necessary to deter other registrants and protect service users and the public in view of the risk of repetition which has been identified by the Panel.

31. The Panel considered whether to impose a striking off order. Striking off is appropriate for serious, deliberate and reckless acts involving abuse of trust where there is no other way to protect the public and when continuing problems are unlikely to be resolved. However striking off would be a disproportionate sanction and overly punitive. A striking off order is not appropriate and would deprive the public of a potentially valuable member of the profession.

32. The suspension order will be reviewed before it expires and the reviewing panel is likely to be assisted by:

• The Registrant’s attendance at the review hearing.
• Evidence he has successfully undertaken a relevant data protection training course and a professional boundaries course.
• An extensive written reflective piece of key learning points building upon the training courses undertaken and in relation to the failings identified by the Panel including the impact on service users and the reputation of the profession.
• References and testimonials from his current or former employers and work colleagues.

Order

The Panel imposed a Suspension Order for a period of 9 months.

Notes

To cover the 28 day appeal period, the Panel also imposed an Interim Suspension Order, as below:

Proceeding in the absence of the Registrant:

1. Following the announcement of the sanction and the Registrant’s right of appeal, the Presenting Officer applied to the Panel to proceed in the absence of the Registrant and consider an interim suspension order. The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed by the notice of hearing dated 10 September 2018 that such an application might be made, and he has not responded with regard to that warning. If the Panel identifies clear public interest concerns that is a factor in favour of proceeding in the Registrant’s absence. The Panel finds it is unlikely that an adjournment would secure the Registrant’s attendance and therefore the Panel decided to proceed in the Registrant’s absence to determine the interim order application.

Reasons for the making of an interim suspension order:

2. Mr Millin proceeded to make an interim order application on the grounds of the protection of the public and the public interest. The Panel accepted the advice of the Legal Assessor to consider whether an interim order was necessary to protect the public and in the public interest because of the nature and seriousness of the allegation.

3. The Panel is satisfied that it is appropriate to direct that the Registrant’s registration should be suspended on an interim basis. This order is required for the protection of the public, and in the public interest. A reasonable member of the public would be rightly concerned by the absence of such a restriction.

4. The Panel has concluded that the appropriate length of the interim suspension order is 18 months, as an interim order will continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal with the 28 day period. 

5. 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. 

6. 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 Mr Kenneth K Nyoka

Date Panel Hearing type Outcomes / Status
22/11/2018 Conduct and Competence Committee Final Hearing Suspended