Mr Leo W Kirk

Profession: Social worker

Registration Number: SW27774

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 08/04/2019 End: 12:30 08/04/2019

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

1.Whilst registered as a Social Worker you breached professional boundaries in that:

a.On or around 4 November 2016 you accepted around £450.00 from Service User A;

b.On or around 18 November 2016 you sent a text message to Service User A to the effect ‘I won’t forget and here is my personal number’;

c.Between around 4 November 2016 and 9 December 2016 you did not repay Service User A the full amount of money referred to in particular 1a.

2.Your actions described at particulars 1a, 1b and 1c constitute misconduct.

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

 

Finding

Preliminary matters

1.The Panel was provided with details of a subsequent referral to the HCPC in which it is alleged that the Registrant had failed to disclose to his then employer, Holywell Care Services, that he had been suspended from working as a Social Worker by a Panel of the HCPC Conduct and Competence Committee and had continued to work as a Social Worker between the time of his suspension on 10 April 2018 until his employer discovered he had been suspended on or about 10 May 2018. It is also alleged that the Registrant failed to disclose at the time of his recruitment by Holywell that he had previously been suspended by two earlier employers.

2.The Panel listened to legal advice from the Legal Assessor on how it should approach this referral. It was advised as follows:

It is important to emphasise that the panel is considering the matters that resulted in the original sanction in April last year. You have been provided with information that there is an ongoing investigation into an allegation that the Registrant continued to practise after he had been suspended and failed to disclose previous suspensions when being recruited by Holywell Care Services. In an email dated 28 March 2019, the Registrant denies that he practised whilst suspended and says that in fact he has not practised as a Social Worker since December 2016. He says that his job title at Holywell was Regional Manager and that his role was to develop and deliver a children’s service. He said he didn’t carry any caseload or have any responsibility for any clients.

“When considering current impairment a Panel is entitled to look at the period since the original order was made to see whether the Registrant has been adhering to principles of good practice. However, the Panel must approach the current investigation with care because it is not here to adjudicate upon it. Since the matter is still under investigation it would be wrong to ask the Registrant questions about it, since the only purpose of such questions would be in order to form a view about the validity or otherwise of the allegations and that is not the role of this Panel today. You may thus conclude that there is little if any weight that can rightly be attached to this material, but that remains a matter for the Panel to determine. It should be remembered that the HCPC has mechanisms to deal with subsequent referrals such as applying for an interim order if it considers the public to be at risk.”

3.In light of this advice the Panel decided not to ask the Registrant any questions about the matter and clearly would make no findings of fact in relation to it. The Panel would decide what weight, if any, to attach to this referral when deciding the question of current impairment after hearing from the parties.


Background

4.The Registrant worked for Warrington Borough Council (WBC) as an agency Social Worker from 1 March 2014 to 18 November 2016. Service User A had suffered a severe bereavement and was diagnosed with Post Traumatic Stress Disorder, anxiety and depression. The Registrant was allocated the case of Service User A on 13 March 2016 when he was working within the Mental Health team and he assisted her with a benefits claim, which included attending a tribunal hearing at which she was awarded £4,800. Subsequently the Registrant stated to Service User A that he had been a victim of fraud and about £3,000 had been taken from his bank account; as a result he was unsure whether he could make his next mortgage payment of £450 and Service User A then gave him a loan of £450, on about 4 November 2016. The Registrant left his post at WBC on 8 November 2016.

5.On 1 December 2016 Service User A was allocated a new Social Worker CN. On 9 December 2016 concerns were raised by CN with SL, Principal Manager in the WBC South/West Managed Care Team concerning money received by the Registrant from Service User A. The Registrant had repaid £100 to her but Service User A was worried about the return of the outstanding £350. She also showed CN text messages, sent by the Registrant to her on 18 November 2016, stating “I won’t forget and here is my personal number” or words to that effect.

6.The matter was treated as a safeguarding concern by WBC and reported to Wisemove Consulting (the Agency) who also carried out an investigation. On 12 December 2016 SL telephoned the Registrant and asked whether he had borrowed money from Service User A. The Registrant denied this and stated that he was with a client and would phone back the following day. He did telephone SL the next day, admitted he had received the money and expressed regret that he had let down Service User A and WBC. He stated that he had been suspended from his new post with Salford City Council (SCC) pending an investigation.

7.The matter was then referred to the police but they advised that a criminal offence had not been committed by the Registrant.

8.The outstanding £350 was repaid to Service User A by WBC on 21 December 2016 in cash. WBC then received a cheque for £450 made payable to Service User A, with a note from the Registrant stating “for [Service User A] with sincere regret for the stress I have caused her”. This cheque was returned to the Registrant. WBC was reimbursed by the Agency, for the cash payment of £350.

9.An audit of the Registrant’s caseload by WBC did not disclose any further concerns, indeed he was praised by almost all of the Service Users contacted. Also Service User A stated that she did not want to get the Registrant into trouble.

10.The Registrant did not attend the Final Hearing, which went ahead in his absence. The Panel at that Hearing found all the facts proved, but that only 1(a) amounted to misconduct.

11.In reaching its decision on impairment, the Final Hearing Panel stated:

“In respect of the public component the finding of misconduct in respect of particular 1a arose from an abuse of a position of power by the Registrant with regard to his professional relationship with a vulnerable Service User. Accordingly, there is a current impairment of fitness to practise under the public component, because this is necessary to maintain public confidence and uphold the HCPC standards of conduct in the context of this particular case.”

“The Panel finds that the Registrant has demonstrated a lack of integrity and abused his position of power in respect of a vulnerable Service User by reason of the misconduct arising from particular 1a. He has not engaged in this hearing and the Panel cannot be satisfied that there is no significant risk of repetition of his misconduct. There has been no insight or remediation of this serious misconduct demonstrated. The Panel therefore determined that there is current impairment of his fitness to practise under the personal component.”

12.When deciding the appropriate sanction, the Final Hearing Panel considered that taking no action, or making a caution order, would not adequately reflect the seriousness of the case.  That Panel decided that:

“The Registrant’s misconduct might be capable of being remedied but there is no indication of a willingness on his part to comply with conditions of practice. The Panel concludes that conditions of practice are not an appropriate sanction in this case because practicable and workable conditions cannot be formulated.”

13.That Panel therefore decided to impose a Suspension Order for a period of 12 months. In reaching this decision the Final Hearing Panel said:

“The Panel concludes that a suspension order for 12 months is the appropriate sanction. Suspension is required, in view of the seriousness of the misconduct, in order to protect the public and the reputation of the profession and to act as a deterrent to other Registrants.”

Decision

14.This Panel has taken into account all the documentation placed before it, together with the evidence provided by the Registrant and the submissions made by both parties. The Panel accepted the advice of the Legal Assessor and in reaching its decisions referred to the HCPTS’s Practice Notes on ‘Finding Fitness to Practise is Impaired’ and ‘Article 30 Reviews’, which states that the Panel can take into account:

•whether any other fitness to practise issue have arisen;

•whether the registrant has complied with the existing order.

15.The Panel first considered the issue of current impairment. The Panel took account of the principle set out in Abrahaem v GMC [2008] EWHC 183 (Admin) that there is a persuasive burden at a review hearing for the Registrant to demonstrate that he has “fully acknowledged why past performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”

16.The Panel at the Final Hearing found the Registrant’s fitness to practise impaired on both public protection and public interest grounds for the reasons stated above. That Panel indicated that a reviewing Panel would be assisted by the Registrant’s attendance at the review hearing so that he can demonstrate the extent of his remorse, insight and remediation. The Registrant had heeded that advice and also provided a reflective piece in which he stated:

“From the outset I have acknowledged and accepted that my behaviour was unprofessional and out of character. I also accept that I had caused one of my clients to be upset and distressed which I apologised unreservedly. Since I qualified as a Social Worker in 1998, I have devoted myself entirely to my profession and as a consequence built an exemplary reputation with the Local Authorities I was employed by, but more importantly the clients I was fortunate to work with.

I have used the time from my suspension to reflect and revaluate my future in terms of what I wanted to do going forward. I have used this time for personal study and develop services for the independent sector. I wish to stress that the roles I have undertaken have been of a non-social work nature in that I written policies and procedures and help to prepare tenders. This has afforded me the opportunity to keep up to date with current social care legislation and practice.

I hope it demonstrates that the time since my suspension has been used constructively for self-reflection and help me with look at the unfortunate incident in terms of my practice and how I allowed the professional boundaries to became blurred and subsequently crossed [sic].”

17.The Registrant gave evidence on affirmation and the Panel found him to be open and forthcoming. He said that his practice had been ‘poor and bad’, that it was ‘embarrassing’ for him and the profession and that he had let his client down. He described his misconduct as an ‘unfortunate incident’.  He said that he had had a very good working relationship with Service User A, but could see on reflection where the boundaries with the Service User had become ‘blurred’ and it was up to him to have raised that with his Line Manager. He referred to an occasion when he took Service User A out to lunch on her birthday and how he later raised this with his Manager because he was concerned about boundaries. On reflection he feels he should have been more assertive with his Manager at this point and emphasised that he was becoming too familiar with the Service User. He said that if he were to find himself in a similar situation he would now know to raise it very quickly with his Line Manager and to be more assertive if his Line Manager took no action.

18.The Registrant said he deeply regretted taking the money and if he could turn back the clock he would. He was embarrassed and ashamed of himself and the distress caused to Service User A and the shame and embarrassment he had caused the profession. He recognised that it showed the Social Work profession in a poor light. He said that since being suspended he had not worked in any role that required registration, but rather had been in managerial or consultancy roles providing residential services for young people by training and updating polices and procedures. When asked by the Panel if he had attended any training courses, for example on professional boundaries, the Registrant said that he had not. He said that he would like to think that at this stage of his career and age he understood where he had gone wrong. When asked how he could demonstrate that to the Panel, he said that the only way he could do that would be by returning to practice. He said he was not being flippant by saying he did not need further training, but he was not a newly qualified Social Worker.

19.Having heard from the Registrant, the Panel was satisfied that he had demonstrated remorse, but was of the view that his insight and remediation were lacking. He acknowledged and accepted that his behaviour was unprofessional and caused distress to a client. He recognised that ‘lines got blurred’ with that particular client, and he was becoming ‘too familiar’. He had apologised and said he had reflected upon his conduct, but he did not feel the need to attend any training on professional boundaries and appeared to minimise what had happened. The Panel was also concerned that the Registrant’s only response when asked how he would deal with a similar situation now was to say that he would raise it with his Line Management. In the Panel’s view that demonstrated a lack of understanding by the Registrant of his own need to take personal responsibility for setting and maintain appropriate personal boundaries when working as a Social Worker. 

20.The Panel was also concerned about the subsequent referral for fitness to practise issues and the question mark over whether the Registrant had complied with the Suspension Order imposed in April 2018.

21.In all the circumstances, the Panel concluded that the Registrant had not discharged the persuasive burden upon him to demonstrate that he had acknowledged why his past professional performance was deficient and there remained a risk that he could repeat the behaviour. The Panel concluded, therefore, that his fitness to practise remained impaired on public protection grounds.

22.The Panel went on to consider whether a continued finding of impairment on public interest grounds was needed in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made, given the nature and seriousness of the Registrant’s misconduct in accepting a significant sum of money from a Service User and his subsequent lack of sufficient insight and remediation which meant that he still represented a risk to the public.

23.Accordingly, the Panel found the Registrant’s fitness to practise remained impaired on public interest grounds also.

24.The Panel then considered what sanction was both appropriate and proportionate in all the circumstances and in doing so considered the sanctions guidance. The Panel noted that the Registrant had now been suspended for almost a year, but had not taken sufficient steps to remediate his failings or to demonstrate insight into them. In such circumstances to take no action or make a Caution Order would not be appropriate because neither would provide the necessary degree of protection for the public from the risks identified.

25.In light of the limited insight and remediation, and the Registrant’s view that he does not need any further training the Panel did not consider a Conditions of Practice Order would be appropriate or workable. The Guidance states that Conditions of Practice will rarely be effective where the Registrant lacks insight.

26.The Panel therefore considered whether to further suspend the Registrant or to remove him from the Register. The Panel considered that it would be wrong to make a Striking-off Order in circumstances where the Registrant was now engaging with the HCPC, the conduct was remediable and where it would be wrong to deprive the profession of an otherwise competent Social Worker. The Panel therefore decided that the appropriate and proportionate sanction was to extend the Suspension Order for a period of six months to allow the Registrant sufficient time to properly reflect upon his conduct and to be able to demonstrate before the next reviewing Panel that he had developed his insight and remediated his misconduct.

27.The decision of the Panel, therefore, is that, on the expiry of the existing Order, a further Suspension Order be made for a period of six months. In reaching this conclusion the Panel took into account the effect this would have on the Registrant, but was of the view that the need to protect the public and the public interest outweighed his interests in this regard.

28.This Order will be reviewed before its expiry. The Panel considered that the next reviewing Panel would be assisted by:

•The Registrant’s continued engagement and attendance at the next review hearing;

•A comprehensive reflective piece which in particular addresses the impact of his actions on Service User A;

•Evidence to demonstrate that the Registrant fully understands professional boundaries in a Social Work context and how to maintain them by, for example, attending an appropriate training course;

•Evidence of how the Registrant is keeping his Social Work skills up to date;

•Relevant testimonials.

Order

The Registrar is directed to, on the expiry of the current Suspension Order, make a further Suspension Order for a period of six months, in accordance with Article 30(1) of the HCPC 2001 Order.

Notes

No notes available

Hearing History

History of Hearings for Mr Leo W Kirk

Date Panel Hearing type Outcomes / Status
08/04/2019 Conduct and Competence Committee Review Hearing Suspended
09/04/2018 Conduct and Competence Committee Final Hearing Suspended