Mr John Davies

Profession: Social worker

Registration Number: SW24313

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 17/09/2018 End: 16:00 19/09/2018

Location: Health and Care Professions Council, 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 registered Social Worker with Bristol City Council you:

 

1. Used work prepared by a colleague, A, and presented it as your own work in your Stage 1 Approved Mental Health Professional portfolio.

 

2. The matter described in paragraph 1 was dishonest.

 

3. The matters set out in paragraphs 1 - 2 constitute misconduct.

 

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

 

Finding

 

Preliminary matters


Adjournments


1. The Panel agreed to a number of adjournments on the first day of the hearing. This was primarily to enable arrangements for the HCPC to appoint an independent advocate for the Registrant for the cross examination of Colleague A, a vulnerable witness who could not be questioned directly by the Registrant. The Panel also agreed to shorter adjournments on the second day of the hearing to assist the parties to address issues relating to the evidence of Colleague A.


Amendment of the Allegation


2. Ms Shameli made an application to amend Particular 1 of the Allegation. The Registrant was notified of the proposed amendment by a letter dated 17 November 2017. Ms Shameli submitted that the proposed amendment clarified and Particularised the Allegation and was not unfair to the Registrant.

3. The Registrant did not object to the proposed amendment.

4. The Panel accepted the advice of the Legal Assessor and considered whether the proposed amendment would prejudice the Registrant and whether it was appropriate.

5. The Panel decided to allow the proposed amendment because it added clarity, was not unfair to the Registrant, and was appropriate.

Hearing in private


6. Ms Shameli made an application for part of the hearing to be heard in private. Her application was limited to the parts of the evidence which concerned the Registrant’s health or details of his private life.

7. The Registrant agreed to this application.

8. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Conducting Hearings in Private”.

9. The Panel decided that it was appropriate for the parts of the hearing which concerned the Registrant’s health or details of his private life should be heard in private. The remainder of the case was heard in public.

Application relating to the evidence of Colleague A


10. Ms Deignan made an application to the Panel to exclude part of the evidence of Colleague A. She submitted that the Registrant disputes Colleague A’s statement in relation to the nature of the relationship between them and that the nature of the relationship was irrelevant to the Allegation. She therefore invited the Panel to disregard and treat as irrelevant parts of paragraph 4 from Colleague A’s statement, which described the relationship.

11.  Ms Shameli submitted that the nature of the relationship was relevant to the Registrant’s state of mind at the time of the relevant events and that none of the evidence should be excluded.

12. The Panel noted that there was a dispute between the Registrant and Colleague A about the nature of their relationship at the time of the events in 2015. The Panel decided that the relationship could have a bearing on the issues in the case and therefore it would not exclude any of Colleague A’s evidence. The Panel also indicated that it would be helpful if both parties could limit their questioning of witnesses to matters which were relevant to the Allegation.

13. Having reviewed all the evidence at the conclusion of the case the Panel was able to decide the facts of the Allegation without determining the disputed issue of the nature of the relationship between the Registrant and Colleague A.


Background


14. The Registrant is employed as a Social Worker at Bristol City Council (“the Council”).

15. In 2015 the Registrant was undertaking the two year Approved Mental Health Professional (AMHP) course run by the University of Birmingham. This is a specialist course designed for professionals which is required to enable them to act as an AMHP and includes powers to detain individuals under the Mental Health Act. As part of this course, the Registrant was required to complete a portfolio, which is a written assessment at the end of the first year of the course in order to progress to the second year.

16. Colleague A, another Social Worker who worked at the Council, had successfully passed the first year of the same AMHP course, having submitted her portfolio in September 2014.

17. On 5 May 2015, the Registrant emailed Colleague A and asked to look at her portfolio to give him an “idea of where to start”, undertaking not to copy it. Colleague A forwarded it to him on the same date.

18. The Registrant submitted his portfolio in September 2015. The portfolio was processed through specialist computer software used by the University of Birmingham that generated a report identifying that Mr Davies’ portfolio was a 29% match to the portfolio submitted by Colleague A.

19. The Registrant was interviewed by NW, the Plagiarism Officer at the University of Birmingham, on 7 July 2016. He admitted that he had read the work of someone else who had previously studied the same course, but did not think he had copied it so closely.

Decision on Facts

20. The Panel heard evidence from NW and from Colleague A.

21. The Panel found that Colleague A was a credible and reliable witness. Her oral evidence was clear and consistent with her written statement. The Panel found that the evidence of NH was reliable, and credible. She gave clear and detailed answers to questions and was clear on the limits of the evidence she was able to give. She was balanced in her approach.

22. The Registrant admitted the facts of the Allegation. The Panel found that he was open when describing his failings and frank in describing his reflective process and his self-criticism. The Registrant was unable to provide the Panel with any independent verification of his evidence.

23. The Panel found Particular 1 proved by the oral and documentary evidence of Colleague A, NW, the Registrant’s evidence and the Registrant’s admission.

24. The Registrant was required to submit a satisfactory portfolio in order to pass the first year of the AMHP course. If the Registrant had passed the course he would have held the role of being one of a group of professionals who have the power to detain individuals under the Mental Health Act. These decisions may include depriving people of their liberty against their will.

25. The computer software programme identified that approximately 29% of the Registrant’s portfolio matched Colleague A’s portfolio. NW explained that the 29% included matching of headings and appendices that would not indicate plagiarism. She estimated that once these standard elements were excluded there remained approximately a 20% match with Colleague A’s work. This included significant sections of text which were a direct copy. These sections included parts of the analysis which tests students’ ability to apply research and policy, and is therefore of particular importance in order to demonstrate their understanding and skills. 


26. In considering Particular 2 the Panel accepted the advice of the Legal Assessor. Applying the guidance from the Supreme Court decision in Ivey v Genting Casinos it first considered the Registrant’s state of mind. Having considered the Registrant’s understanding and beliefs, it applied an objective test, and considered whether the Registrant’s conduct was honest or dishonest by the standards of ordinary decent people.

27. The Panel found Particular 2 proved by the oral and documentary evidence of NH, the Registrant and the Registrant’s admission.

28. The Panel considered the Registrant’s state of mind. The Registrant confirmed to NH that he understood the code of practice on plagiarism at the relevant time. He knew at the events in May 2015 that it was wrong to pass off the work of another student as his own work and that this was a form of cheating. He knew that he was using Colleague A’s work to an extent which was entirely unacceptable.

29. The Panel decided that the Registrant’s plagiarism, as described in Particular 1, was dishonest applying the standards of ordinary reasonable people.


Decision on Grounds


30. The question of whether the facts constitute misconduct is for the judgment of the Panel and there is no burden or standard of proof.


31. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No 2) 1 AC 311: “Misconduct is 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 by a practitioner in the Particular circumstances…” The conduct must be serious in that it falls well below the standards.


32. The Panel considered the HCPC Standards of Conduct Performance and Ethics (2012). The Panel considered that the Registrant’s actions were a breach of 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 Panel also considered that the Registrant’s actions were a breach of the Standards of Proficiency for Social Workers (2012). In particular Standard 2 “be able to practise within the legal and ethical boundaries of their profession”, and Standard 3 “be able to maintain fitness to practise”.


33. The Registrant’s dishonest conduct was not a spur of the moment response to a situation in which the Registrant found himself. It required planning over a period of time and therefore an element of premeditation. It included the direct copying of substantial sections of a Colleague A’s work. The Registrant only acknowledged his actions when he was discovered and it has taken a period of reflection for him to accept the seriousness of his dishonesty.


34. The potential consequences of the Registrant’s plagiarism were serious. It prevented Birmingham University carrying out a fair and objective assessment of his portfolio. The plagiarism might have enabled the Registrant to improperly obtain a qualification for the important and responsible role of an AMHP when he may not have had the required knowledge and skill. This had the potential to put service users and the public at significant risk of harm.


35. The dishonesty was for the Registrant’s own personal gain. He might have progressed to gain a qualification which would have benefited his career. He placed his own interests above his professional responsibility to behave honestly. This conduct is entirely unacceptable and well below the standards for Social Workers. It is conduct which would be regarded as deplorable by Social Workers and by members of the public.


36. In the Panel’s judgment the Registrant’s conduct in Particulars 1 and 2 was sufficiently serious to constitute misconduct.


Decision on Impairment 


37. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.


38. The Panel first considered the personal component which is the Registrant’s current behaviour.


39. Although dishonesty is not easy to remedy, the Panel considered that the misconduct, an isolated dishonest incident of plagiarism, is capable of remedy.


40. The Registrant expressed to the Panel his remorse in relation to his dishonest conduct. He described his feelings of great shame and the impact which this has had on his confidence. He also described the long period of three years since the events as a time of reflection during which the events in 2015 have continued to have a very significant impact on him. He told the Panel that he has the support of his manager and stated that he continues to reflect on the past events.


41. The Registrant explained the background to the events in 2015. He sometimes struggles with academic work and this was the case with the completion of his portfolio.


42. He told the Panel that, having reflected on the past events, he was now open in relation to any difficulties he faced and would ask for help when required. He said that he was focussing on the building blocks of good Social Work practice and building his confidence in his current areas of responsibility through training and other activities.


43. During his evidence the Registrant was asked about the impact of his conduct. In his answers he acknowledged the seriousness of his conduct including the impact on confidence in himself as a Social Worker and the negative impact on his employer and the Profession. He agreed that there was the potential for harm if he had qualified as an AMHP through dishonest means. The Registrant was self-critical and did not seek to blame anyone else in relation to his dishonest conduct.


44. At several points in his evidence the Registrant stated that he had “over-used” the work of Colleague A. The Panel asked him about this description and he accepted that this was not an appropriate description of his conduct. Overall, however, the Registrant acknowledged the seriousness of his misconduct, describing it as “cheating”.


45. The Panel has reservations in relation to the Registrant’s current level of insight and the potential risk of repetition. It was provided with no independent corroboration of any of the Registrant’s oral evidence relating to his reflection, remediation, training, or any of his past/current circumstances. While the Panel recognises that the Registrant does not have the benefit of legal advice, the lack of such independent corroboration is a significant concern, particularly because the case involves proven dishonesty. The Panel would have expected to see some independent evidence in support of the Registrant’s oral evidence. This might have taken various forms, for example: confirmation of the ongoing support from his employer; evidence of further training; confirmation of the reflection that the Registrant undertakes with the support of his manager (such as a written reflective statement, or a reference from one of his managers); character testimonials.


46. The Registrant was asked by the Panel whether he could provide any supporting evidence and he advised that this was not practicable.


47. The Panel noted that the Registrant had planned to attend this hearing for some time. He had completed a pro-forma form in May 2018 relating to his attendance at the hearing. The Panel therefore concluded that he had had sufficient time to talk to his managers and to prepare. Furthermore, he was provided with the relevant practice note at the start of the hearing in order to assist him.


48. In the circumstances the Panel was not sufficiently reassured that it could confidently rely on the level of insight that the Registrant appeared to demonstrate in his oral evidence. For the same reasons the Panel was not sufficiently reassured that there was no risk of repetition of dishonesty. The Panel therefore decided that the Registrant’s fitness to practise is impaired on the basis of the Personal component.


49. The Panel next considered the wider public interest considerations including the need to uphold standards of conduct and behaviour and to maintain confidence in the Profession and the regulatory process.


50. The Registrant’s misconduct was a serious departure from the required standards of conduct and behaviour. The Panel considered that it was necessary to mark such a serious breach, and that this required a finding that the Registrant’s fitness to practise is impaired.


51. A finding of current impairment is also necessary to maintain confidence in the Profession and the regulatory process. An informed member of the public would be concerned by the Registrant’s past dishonest behaviour in relation to attempting to obtain a highly responsible professional qualification, and they would also be concerned that there is no independent evidence to corroborate the Registrant’s oral evidence to the Panel.


52. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on the basis of both the personal component and the public component.


Decision on Sanction


53. The Registrant made an application to adjourn the hearing to enable him to obtain documents to support his submissions on sanction. The Registrant said that he believed a four week adjournment would enable him to obtain the relevant documentation. Ms Shameli opposed the application for an adjournment on the ground that the Registrant had already had sufficient time to prepare for the hearing. She offered a suggestion that the Registrant might contact someone to provide a telephone reference in support of his submissions on sanction.

54. The Panel granted a short adjournment for the Registrant to make enquiries to contact a manager at his current employer. The Registrant made contact with SW, who was the Registrant’s team manager for the period 2005 to 2012.

55. SW gave evidence to the Panel by telephone. He was informed of the Allegation that the Panel were considering. SW gave a positive reference for the Registrant describing him as an excellent Social Worker and commenting favourably on his commitment and efficiency in his work. SW was not able to provide evidence relating to the Registrant’s current position or any remedial steps.

56. After the evidence of SW the Panel asked the Registrant whether he wished the hearing to be adjourned. He stated that he no longer wished the Panel to adjourn the hearing. The Panel then heard the submissions of Ms Shameli and the Registrant.


57. In considering which, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.

58. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.


59. The Panel decided that the aggravating features were:

• the dishonesty was pre-meditated;

• the dishonesty related to professional practice;

• dishonesty for personal gain;

• the Registrant only admitted his actions when he was confronted with the evidence

• the risk of serious harm to members of the public had the deception gone undetected.

60. The Panel decided that the mitigating features were:

• the Registrant’s full engagement in the process;

• full admissions and expressions of remorse;

• the Registrant’s acknowledgement of the seriousness of his misconduct and not blaming others;

• health reasons were part of the factual background leading to the dishonesty.

61. The Panel considered the option of taking no action, but decided that the misconduct was too serious and that this option would not address the risk of repetition the Panel has identified.

62. The Panel next considered a Caution Order. The Panel did not consider that the criteria in the ISP for Caution Orders applied. Although the misconduct was isolated, it was not relatively minor and the Panel has identified concerns in relation to the level of insight the Registrant has demonstrated and the risk of repetition. A Caution Order would also not be sufficient to address the wider public interest considerations because of the gravity of the misconduct, involving a breach of a fundamental tenet of the profession.

63. The Panel next considered a Conditions of Practice Order. The Panel noted the guidance in the ISP that conditions of practice may not be suitable in cases involving dishonesty. The risk of repetition the Panel has identified is a risk of repetition of dishonest conduct. The Panel was not able to formulate workable conditions to address this risk. The Panel also decided that conditions of practice would not be sufficient to maintain confidence in the profession and act as a deterrent to other Registrants. In reaching this decision the Panel took into account the seriousness of dishonesty, the nature of the dishonesty in this case, and the aggravating features.

64. In reaching its decision to reject the option of a Conditions of Practice Order the Panel was aware of the implications of this decision for the Registrant. Any more serious sanction would prevent the Registrant working as a Social Worker for a period of time and was likely to have a significant impact on the Registrant financially and professionally. The Panel took into account the Registrant’s interests, but decided that they were outweighed by the need to protect the public and by the wider public interest considerations.

65. The Panel next considered the option of a Suspension Order. A Suspension Order would prevent the Registrant working as a Social Worker while he was suspended and would guard against the risk of repetition of dishonesty in professional practice. The Panel considered that a Suspension Order was a sufficiently severe sanction to act as a deterrent effect to other Registrants and to maintain public confidence in the Profession and the regulator. A Suspension Order would mark the seriousness of the Registrant’s misconduct, while allowing the prospect of a future return to practice if the Registrant is able to provide evidence relating to his insight, remediation and the risk of repetition to persuade a reviewing Panel that he is fit to practise as a Social Worker.

66. The Panel considered the more restrictive sanction of a Striking Off Order, but decided that it would be disproportionate. It would be disproportionate because of the mitigating factors the Panel has identified and because of the evidence about the quality of the Registrant’s work as a Social Worker. Further if the matters set out in the Registrant’s evidence were fully corroborated there is a prospect of a return to safe practice of a skilled and experienced Social Worker which would be in the public interest. The Panel did not consider that the dishonesty in this case was at such a degree of seriousness that a Striking Off Order was required to maintain public confidence in the profession and the regulatory process.

67. The Panel decided that the appropriate length of time for the Suspension Order was six months. This period was sufficient to mark the seriousness of the Registrant’s misconduct. It was sufficient time to enable the Registrant to obtain corroborative evidence. The Suspension Order will be reviewed before it expires. The Registrant has the option of applying for an early review of the Suspension Order if appropriate if he considers that he has sufficient evidence to demonstrate to a Reviewing Panel that his fitness to practise is no longer impaired.

68. The Panel therefore decided that the appropriate and proportionate Order is a Suspension Order for a period of six months.

69. A future Reviewing Panel may be assisted by:

(a) the Occupational Health Report;
(b) evidence of the Registrant’s supervision meetings;
(c) evidence that the Registrant is undertaking counselling;
(d) a reference from one of the Registrant’s current managers;
(e) the Registrant’s training record;
(f) a short reflective piece by the Registrant based on the facts found proved reinforcing his oral evidence to the Panel.

Order

The Registrar is directed to suspend the name of John Davies from the Register for a period of six months.

Notes

 

Hearing History

History of Hearings for Mr John Davies

Date Panel Hearing type Outcomes / Status
17/09/2018 Conduct and Competence Committee Final Hearing Suspended