Mrs Michele Gerard

Profession: Social worker

Registration Number: SW51909

Interim Order: Imposed on 08 Aug 2019

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/08/2019 End: 17:00 21/08/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered with the Health and Care Professions Council as a Social Worker:

1. On 09 January 2019, at Stafford Crown Court, you were convicted of causing
death by careless or inconsiderate driving.

2. By reason of your conviction, your fitness to practise as a Social Worker is
impaired.

Finding

Preliminary matters:

Service

1. The Hearing Officer provided the Panel with details of service of the Notice of Hearing dated 12 June 2019 and bundle to the Registrant.

2. The Panel received advice from the Legal Assessor. It was satisfied that the Registrant was notified of the date and time of the hearing which was sent to her registered address. Accordingly the Panel found that the HCPC had discharged its duty to serve documentation on the Registrant in accordance with the Health and Social Work Professions Order 2001 (the Order).

Proceeding in absence

3. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant. She outlined the chronology of the matter, noting particularly that the Registrant had, via email dated 21 July 2019, confirmed that she was aware of today’s hearing date, did not intend to attend nor would she be represented. The Presenting Officer invited the Panel to exercise its discretion to proceed with the case in the absence of the Registrant, stating that the Panel had already found good service and the Registrant was clearly aware of the proceedings.

4. The Panel noted the provisions of the HCPTS practice note in respect of Proceeding in the Absence of the Registrant, and took account of the advice provided by the Legal Assessor. Included in the Notice of Hearing was confirmation that the hearing could proceed in the absence of the Registrant.

5. The Panel noted the responses of the Registrant in the pro forma document and the email dated 21 July 2019 that she was not going to attend the hearing, nor was she requesting an adjournment. The Registrant had chosen not to be represented or provide any submissions to the Panel other than that she had retired from the profession and would not be seeking employment as a registered Social Worker. The Panel concluded that the Registrant had voluntarily absented herself from the proceedings. Although proceeding in absence may disadvantage the Registrant, the Panel considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant. It was satisfied that it was appropriate for it to exercise its discretion to hear the matter in the absence of the Registrant.

Background:

6. The Registrant is registered with the HCPC as a Social Worker. At the time of the offence, she was employed by Cafcass as a Social Worker.

7. The Registrant was the driver of a vehicle involved in an accident on 24 November 2017 which resulted in the death of a pedestrian. She was charged with causing death by dangerous driving in May 2018 and pleaded guilty to the offence of causing death by careless or inconsiderate driving. She was sentenced on 9 January 2019 to eight months imprisonment (suspended for twelve months) and ordered to carry out 150 hours of unpaid work by January 2020 and pay costs of £535.

8. The Registrant retired from her permanent employment with Cafcass in March 2018 but continued to work with them on a sessional basis, notifying them that she had been charged with an offence in June 2018. She notified the HCPC of the charge in July 2018.

Decision on Facts and Grounds

9. The Panel heard submissions from the Presenting Officer and received advice from the Legal Assessor. It had regard to the bundle of documents provided to it including the certified Certificate of Conviction and the practice notes on ‘Finding Impairment’ and ‘Conviction and Caution Allegations’.

10. The Panel noted that it was obliged to approach the consideration of an allegation sequentially, determining firstly whether the facts set out in the allegation are proved, then whether those facts amount to the statutory ground set out in the allegation.

11. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide firstly whether the HCPC, which has the burden of proving the allegation, has discharged that burden. It was aware that it could not go behind the conviction.

12. The Panel was satisfied that the Certificate of Conviction provided to it by the HCPC, together with the Registrant’s confirmation that she had been convicted of the offence, was sufficient to establish Particular 1 as proved on the balance of probability.

13. The Panel was satisfied that the facts proved in relation to the Registrant (i.e. the conviction) amounted to a statutory ground under the Order, namely a conviction.

Decision on Impairment

14. Having found the facts and grounds proved, the Panel then considered whether the fact of the conviction amounted to impairment, noting this was entirely a matter for it to determine.

15. The Registrant had not made any submissions to the Panel in relation to impairment, other than to state that she had no intention or desire to continue practicing as a registered Social Worker.

16. The Presenting Officer submitted that the Registrant was impaired on both the public and private components. She invited the Panel to consider the sentencing remarks of the Judge in relation to the offence, as well as the Registrant’s admission of the offence.

17. The Panel reminded itself that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, but this cannot be achieved without taking account of the way a person has acted or failed to act in the past.

18. The Panel was mindful that a conviction does not automatically lead to a finding of impairment. The Panel was referred to the case of Cohen v General Medical Council [2008] which stated that it must be highly relevant when determining impairment that the conduct leading to the allegation is easily remediable, has been remedied and is highly unlikely to be repeated.

19. In regard to the personal component, the Panel considered that the offence was an isolated incident. Although the Registrant appeared to have provided extensive testimonials to the Court in relation to the criminal proceedings, no such information had been provided to the Panel. Accordingly, the only information available to the Panel by way of context to the offence were the remarks of the judge in sentencing the Registrant. Whilst these remarks did reflect that the Registrant had expressed “genuine, deep-seated remorse” and “always acknowledged culpability” for the offence, there was no evidence provided to the Panel by the Registrant in respect of insight or remediation. As a consequence of the Registrant’s failure to provide any information to the Panel other than her desire not to return to her profession and the fact of her early guilty plea, the Panel considered she had not meaningfully engaged with her regulator. The Panel also had regard to the fact that the Registrant had supplied no information as to the unpaid work she was required to undertake as part of her sentence, and that she remained subject to a suspended prison sentence. It was satisfied that the Registrant is impaired on the personal aspect of the test for impairment.

20. In considering the public component of impairment, the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession, protect the public and declare and uphold proper standards of conduct and behaviour.

21. The Panel concluded that, given the isolated nature of the conviction, the Registrant was unlikely to pose a risk to service users.

22. The Panel considered that the Registrant had breached standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics which states “you must make sure that your conduct justifies the public’s trust and confidence in you and your profession”. The Registrant has not demonstrated any understanding of the impact of her conduct on her social work colleagues and public confidence in the profession. Further, the Registrant had not complied with standard 9.5 as she had not reported that she had been charged with an offence at the earliest opportunity (May 2018), but rather was prompted to self-refer by her employer, notifying the HCPC of the charge in July 2018.

23. The Panel concluded that members of the public and members of the profession would be concerned to learn that a Social Worker had been convicted of causing death by careless or inconsiderate driving and remained subject to a suspended prison sentence and the obligation to undertake unpaid work. Further, it determined that public and professional trust and confidence in the profession, professional standards, and the regulator would be undermined if a finding of impairment was not made in these circumstances. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of both the personal and public component for the reasons set out above.

Decision on Sanction

24. The Presenting Officer addressed the Panel in relation to sanction, confirming that all sanctions are available to the Panel. She referred to the Sanctions Policy issued by the HCPC and encouraged the Panel to determine the least restrictive sanction that would afford an appropriate level of protection to the public. She reminded the Panel that it must be proportionate and it would not be usual for a Registrant to be allowed to return to unrestricted practice while servicing a sentence, as set out in the case of CRHP v GDC and Fleischmann [2005] EWHC 87 Admin.

25. The Panel accepted the advice of the Legal Assessor. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

26. The Panel had regard to the HCPC’s Sanctions Policy. It considered the serious nature of the conviction which led to the death of a pedestrian and the absence of insight in respect of the Registrant’s obligations as a registered professional, to be aggravating features of this case. The mitigating factors were the Registrant’s early guilty plea, significant remorse as expressed to the court and no other adverse findings in a career spanning forty years have been recorded against her.

27. The Panel first considered taking no action but concluded that in view of the serious nature of the offence, and the lack of insight expressed to the Panel about the impact of the conviction particularly upon the public and the profession, to take no action would be inappropriate.

28. The Panel then considered a Caution Order and concluded that the Registrant’s actions were not minor, she had demonstrated no insight into her conviction and is still serving her sentence. It found that a Caution Order is therefore inappropriate and insufficient to meet the public interest.

29. The Panel went on to consider a Conditions of Practice Order but was conscious that the Sanction Policy is clear that “conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.” The Registrant has indicated that she considers herself retired from the profession. It would be difficult in the circumstances of this case to formulate workable conditions, particularly given that the offence did not relate to her professional practice. The Panel concluded that a Conditions of Practice Order would not adequately address the serious nature of the Registrant’s offence and so would undermine public confidence in the profession and undermine the need to uphold proper standards of conduct and behaviour.

30. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Social Worker, particularly while she completes her sentence. However, the Panel noted that the Registrant has not demonstrated to the Panel any insight into her behaviour and its impact, nor has she set out what remediation she has undertaken. The Panel concluded that whilst it may be possible for the Registrant to provide evidence of remediation, she had not done so and it was therefore not satisfied that a Suspension Order was appropriate in the circumstances.

31. Having determined that a Suspension Order does not meet the wider public interest the Panel considered whether the Registrant should be struck off. A Striking Off Order is a sanction of last resort and should be reserved for cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category. The conviction was serious and the Registrant has failed to take the opportunity to demonstrate the degree of insight necessary to justify a lesser sanction. Any sanction short of a Striking Off Order would fail to declare and uphold proper standards and would fail to maintain public confidence in the profession and the HCPC as its regulator. The Panel had regard to the impact a Striking Off Order would have on the Registrant but concluded that her interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

32. Therefore, the Panel concluded that the appropriate and proportionate order is a Striking Off Order.

Order

Order: The Registrar is directed to strike the name of Mrs Michele Gerard from the Register on the date this order comes into effect.

Notes

Interim Order

1. Upon the Panel determining the appropriate sanction to be a Striking Off Order, the Presenting Officer requested that the Panel exercise its discretionary power to impose an interim suspension for the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress. The Panel was required to firstly determine whether to hear the application for an Interim Order in the absence of the Registrant.

2. The Panel was satisfied that the Registrant was aware of the hearing and had been informed by the Notice of Hearing dated 12 June 2019 that if an order was made restricting her practice, an application may be made for an Interim Order. Given that the Panel had identified this matter to be serious and warranting the most severe sanction, the Panel was satisfied that it was appropriate to determine the application for an Interim Order in the absence of the Registrant.

3. The Presenting Officer submitted that an Interim Suspension Order was applied for in the public interest. She reminded the Panel that the substantive Striking Off Order it had imposed would not take effect until the time for lodging an appeal had elapsed, or when any such appeal is determined, whichever is the later.

4. The Panel carefully considered the submissions of the Presenting Officer and the advice provided by the Legal Assessor. It also noted the provisions of the guidance note issued by the HCPTS in respect of Interim Orders. It reminded itself that an interim order may be appropriate where the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the registrant was allowed to remain in practice on an unrestricted basis.

5. The Panel was mindful that, in imposing a Striking Off Order, it had found that the offence was serious. Given that the Panel earlier today considered the Registrant’s conduct to be such that striking off was warranted on the public component, it believed that public confidence in the regulatory process would be seriously harmed if the Registrant was allowed to remain in unrestricted practice pending the substantive Striking Off Order coming into effect. Therefore, the Panel determined that it was appropriate and proportionate to impose an Interim Order of Suspension pursuant to Article 31(2) of the Health and Social Work Profession Order 2001 for a period of 18 months to cover the appeal period.

 

Hearing History

History of Hearings for Mrs Michele Gerard

Date Panel Hearing type Outcomes / Status
21/08/2019 Conduct and Competence Committee Final Hearing Struck off