Miss Tracy A Oakley

Profession: Social worker

Registration Number: SW94169

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 15/07/2019 End: 17:00 18/07/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended at the final hearing commencing 15 July 2019).

Whilst registered as a Social Worker and during the course of your employment as a Community Care Officer at Tameside Adult Services, you:

1) In relation to Service User 1:

a) Between around 11 March 2016 and 15 March 2016 you:

i) retained approximately £300.00 of Service User 1’s money;

ii) retained Service User 1’s key.

b) On or around 15 March 2016, borrowed approximately £20.00 of Service User 1’s money;

c) Did not record that you had withdrawn and / or retained Service User 1’s money;

d) Did not record the meeting with Service User 1 when they changed their mind about entering into cleaning services.

2) In relation to Service User 2:

a) On an unknown date, stored confidential information about Service User 2 in the boot of your car;

b) On an unknown date, you took approximately £2500 of Service User 2’s money to deposit in the bank when you were not accompanied by a second person;

c) On an unknown date, did not record that you had taken approximately £2500 of Service User 2’s money to deposit in the bank;

d) On an unknown date, retained Service User 2’s key for an inappropriate length of time.

3) In relation to Service User 3:

a) On or around 22 July 2015, informed the cleaning company that £150 belonging to Service User 3 had been stolen from your bag, which was not the case;

b) On or around 22 July 2015, requested that the cleaning company did not report that £150 of Service User 3’s money was missing to your manager.

4) In around November 2016, stored confidential documents relating to Service User 4 and / or Service User 5 at your home.

5) In or around June and July 2015, in relation to Service User 6:

a) Retained Service User 6’s key for an inappropriate length of time and / or while you were on annual leave;

b) Retained Service User 6’s bank cards and / or books for an inappropriate length of time and / or while you were on annual leave;

c) Did not record that you had Service User 6’s bank cards and / or books in your possession.

6) On an unknown date, in relation to Service User 7:

a) Did not record:

i) the circumstances of how you had found Service User 7;

ii) the state of the property;

iii) that an ambulance had to be called for Service User 7.

b) Removed an unknown quantity of loose change and notes without Service User 7's permission.

7) On an unknown date, in relation to Service User 12, retained approximately £30.00 belonging to Service User 12 for use as a deposit on her accommodation, and you:

a) Did not inform your line manager of this

b) Did not take the money to your office for safekeeping;

c) Did not record the payment.

8) In or around April 2016, you borrowed in excess of approximately £1000.00 from Service User 13

9) The actions set out in paragraphs 3(a), 3(b), and / or 6(b) were dishonest.

10) The matters set out in paragraphs 1 – 9 constitute misconduct.

11) By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel had sight of a service bundle which included a copy of the notice of hearing for this case dated 8 March 2019, which identified the dates, time and location of the hearing. The Panel also had sight of a proof of service document and a document dated 8 March 2019, certifying the address held on the Register for the Registrant. The Panel satisfied itself that the notice of hearing had been sent to the Registrant’s registered address by first class post on 8 March 2019. In these circumstances, the Panel was satisfied that good service of the notice of hearing had been effected. 

Proceeding in the Absence of the Registrant

2. On behalf of the HCPC, Mr Chalmers invited the Panel to proceed in the absence of the Registrant. He drew the Panel’s attention to an email from the Registrant dated 12 March 2019, written in response to receiving an email copy of the notice of hearing in which the Registrant re-stated her position, namely, that she would not be attending the hearing or providing any representations. Mr Chalmers also told the Panel that in an undated Pro-Forma and Pre-Hearing Information form the Registrant had stated that she did not plan to attend the hearing.

3. Mr Chalmers submitted that it was appropriate for the Panel to exercise its discretion to proceed in the absence of the Registrant because the Registrant knew where and when the hearing was taking place; understood the purpose of the hearing and had confirmed her intention not to be present or represented.

4. Before reaching its decision, the Panel accepted the advice of the Legal Assessor. The Panel determined that, by her communications with the HCPC, the Registrant had voluntarily waived her right to be present or represented at the hearing. She had not sought an adjournment of the hearing and an adjournment would not make it more likely that the Registrant would attend a subsequent hearing. The Panel was also satisfied that it was in the public interest to proceed in the absence of the Registrant so that the allegations could be determined expeditiously.

Application to Amend the Allegation

5. Mr Chalmers applied to amend the Allegation. He explained that the Registrant had been given notice of the HCPC’s proposed amendments by letter dated 15 November 2018. The Registrant had not responded to the proposed amendments. Mr Chalmers characterised the purpose of the proposed amendments as being to clarify and particularise the case against the Registrant.

6. The Panel considered the advice of the Legal Assessor before exercising its discretion to amend the Allegation as requested. The Panel accepted that the proposed amendments did not essentially alter the HCPC’s case against the Registrant. They clarified and particularised the behaviour alleged by the HCPC and why it was said to be inappropriate. 


Background

7. The Registrant has been a registered Social Worker since 6 September 2013.

8. The concerns raised about the Registrant in this case arise from her employment with Tameside Metropolitan Borough Council (“the Council”) as a Community Care Officer in Adult Social Care between 1 October 2000 and 15 March 2017.

9. A colleague, FM, who worked for a company providing cleaning services to the Council’s service users, raised concerns about the Registrant with another Community Care Officer, MW. On 25 October 2016, MW raised FM’s concerns about the Registrant’s conduct and her own concerns in a back to work interview with their line manager, SC. The concerns related to the Registrant’s dealings with the finances and belongings of service users.

10. SC met with FM to gather further information. In November 2016, JH and VG were appointed as Investigating Officers by the Council. They reported their findings in March 2017. The Council referred the Registrant to the HCPC on 19 April 2017. Subsequently, further information relating to another service user was provided to the HCPC on 25 October 2017 and 1 November 2017.


Decision on Facts

11. The Panel heard evidence from four witnesses called on behalf of the HCPC. They were: JH, who was asked to investigate concerns in relation to the Registrant’s conduct; SC, the Registrant’s line manager; FM, who worked for a cleaning company providing cleaning services to the Council’s service users; and MW, a Community Care Officer who worked with the Registrant from time to time. The Panel found all four witnesses to be honest and credible.

12. The Panel was satisfied that JH did his best to assist it. However, he was hindered by some significant deficiencies in the investigative process, the most notable of which was a decision not to interview any of the service users involved. Overall, the Panel was not impressed by the investigation carried out by JH. It lacked rigour and coherence. JH’s evidence to the Panel was characterised by extensive opinion evidence. As a result, the Panel were unable to place any significant weight on his evidence so that JH’s evidence to the Panel was of relatively limited value.

13. The Panel found SC to be a straightforward witness for the most part. When questioned by the Panel she confirmed that in many instances there were no appropriate policies or procedures in place for managing service users’ personal possessions. She also accepted that the training record produced for the Registrant was not accurate or complete.

14. The Panel considered FM to be a witness who was trying to be helpful. FM acknowledged that her recollection of events had deteriorated due the passage of time and that she could not now remember all of the details of events which she had raised in 2016.

15. The Panel found MW to be a straightforward witness who did not seek to over-state her evidence or exaggerate her ability to recall events.

16. The Registrant did not attend the hearing and was not represented. The Panel considered the limited written comments it had seen from the Registrant. These consisted of her response to the Allegation on the undated Response Pro-Forma and Pre-Hearing Information form and an email from the Registrant to the HCPTS dated 12 March 2019.

17. The Panel carefully considered all the documents provided in this case. The documents included extracts from the records of service users affected which were held on the Council’s electronic case recording system known as the “Integrated Adult Services” (“IAS”) system.

18. In relation to each particular of the Allegation, the Panel has carefully reviewed the relevant supporting documentation. It has also assessed the written and oral evidence it has received.

19. The Panel reminded itself that it is for the HCPC to prove the facts which it alleges and that the standard of proof is proof on the balance of probabilities.

Particular 1(a) – (d)

In relation to Service User 1:

a) between around 11 March 2016 and 15 March 2016 you:

i)  retained approximately £300.00 of Service User 1’s money;

ii)  retained Service User 1’s key.

b) on or around 15 March 2016, borrowed approximately £20.00 of Service User 1’s money;

c) did not record that you had withdrawn and / or retained Service User 1’s money;

d) did not record the meeting with Service User 1 when they changed their mind about entering into cleaning services.

20. Service User 1 had been recuperating in a residential care home. In March 2016 he was preparing to move back into his own home. The Council was tasked with arranging for Service User 1’s property to be cleaned before he returned home. The Registrant obtained a quote from FM’s cleaning company and Service User 1 agreed to pay for the cleaning.

Particular 1(a)(i) – Found Proved

21. The Registrant had taken Service User 1 to withdraw a cash sum to pay for the cleaning and he had given the money to her to pay for the cleaning service on a Friday. The Registrant had then passed the money to FM. It was intended that the service user’s property would be cleaned on the Monday. However, on Monday the Registrant was informed that Service User 1 had changed his mind about paying for the property to be cleaned and wished to have his money returned to him.

22. The Panel accept the oral and written evidence from FM and MW that the Registrant told them that Service User 1 had given her the money to pay for cleaning his property. The Panel accept the evidence of FM and MW that the Registrant told them she had retained Service User 1’s money over the weekend. The Panel consider that this particular is further supported by the evidence of FM that she subsequently met the Registrant to return Service User 1’s money to her and by the evidence of MW that she was a passenger in the Registrant’s car when FM returned Service User 1’s money to the Registrant. Finally, the Panel accept MW’s evidence that she was also present when the Registrant returned the money to the service user.

23. While there were some inconsistencies between the accounts of the two witnesses they were not material. Accordingly, the Panel finds this particular proved.

Particular 1(a)(ii) – Found Proved

24. FM told the Panel that she received the key to Service User 1’s property from the Registrant at the same time as she received the money to clean the property. The Panel accept her evidence and therefore finds this particular proved.

Particular 1(b) – Found Proved

25. In her evidence FM said that the Registrant told her that she had borrowed £20 from Service User 1’s £300 because she had forgotten her purse. On the Monday, when FM met the Registrant by her car, she saw the Registrant place a £20 note with the money which FM had returned. MW gave evidence that she accompanied the Registrant to a cash machine because the Registrant told her that she needed to withdraw some money to return money that she had borrowed from the service user. MW did not see how much money the Registrant withdrew but the Panel considers this evidence is broadly consistent. The Panel finds this particular proved.

Particular 1(c) – Found Proved

26. The Panel has reviewed the electronic records that relate to Service User 1 on the IAS system. There is no reference to either accompanying Service User 1 to withdraw funds or retaining the funds over the weekend in Service user 1’s records. The Panel finds this particular proved.

Particular 1(d) – Found Proved

27. Service User 1’s records also contain no reference to the Service User changing his mind about paying for cleaning services or to the meeting between him, the Registrant and MW at the residential care home where his money was returned to him. The Panel finds this particular proved.

Particular 2(a) - (d)

In relation to Service User 2:

a) On an unknown date, stored confidential information about Service User 2 in the boot of your car;

b) On an unknown date, you took approximately £2500 of Service User 2’s money to deposit in the bank when you were not accompanied by a second person;

c) On an unknown date, did not record that you had taken approximately £2500 of Service User 2’s money to deposit in the bank;

d) On an unknown date, retained Service User 2’s key for an inappropriate length of time.

28. Service User 2 was unwell and regularly spent time in hospital. The Registrant was assigned to assist her with her finances.

Particular 2(a) – Found Proved

29. MW told the Panel that on at least two occasions over the course of a week she saw a large carrier bag full of paperwork in the boot of the Registrant’s car which contained personal information relating to Service User 2. MW reported that the Registrant had told her that she had removed the documents from Service User 2’s home and intended to work through them at home because she did not have time to do so in working hours. In her response to the Allegation the Registrant accepted that she stored confidential information about Service User 2 in the locked boot of her car. The Panel finds this particular proved.

Particular 2(b) – Found Not Proved

30. The Panel reviewed the electronic records relating to Service User 2. It noted that on 7 December 2015 the Registrant recorded that she had paid the sum of £3940 into Service User 2’s bank account. The Registrant also recorded that she had advised her manager that she had done this and provided copies of signed receipts from the service user and the bank to be scanned into the electronic records system. In the Council’s investigatory interview, the Registrant had suggested that MW had accompanied her to the bank. In her evidence to the Panel MW said she had no recollection of this but accepted that it might have happened

31. On the balance of probabilities, the Panel is satisfied that the Registrant deposited the sum of £3940 in Service User 2’s account and was accompanied by a colleague when she did so. Accordingly, the Panel does not find Particular 2(b) not proved.

Particular 2(c) – Found Not Proved

32. In the light of the entries in Service User 2’s electronic records seen by the Panel and referred to above, the Panel does not find this particular proved.

Particular 2(d) – Found Proved

33. The Panel heard evidence from MW that while Service User 2 was in hospital an Occupational Therapist had wanted to access her flat to ensure that it contained the equipment that she needed. However, when the Occupational Therapist visited Service User 2’s property she had not been able to gain access to it because the property’s keys were not in the key safe. MW was asked to assist and she contacted the Registrant who was on annual leave to see if she knew where the keys were. MW said the Registrant told her that she had Service User 2’s keys. MW arranged to meet the Registrant to collect the keys.

34. The Panel also heard evidence from FM of an occasion when she waited to meet the Registrant to collect keys to Service User 2’s property in order to clean it. The Registrant did not attend and informed FM that she had kept the keys over a weekend.

35. Both witnesses gave evidence that the keys of service users should be returned to the service user or to the key safe as soon as access to the property had been achieved. The Panel is satisfied that this evidence demonstrates that the Registrant retained Service User 2’s keys for an inappropriate length of time. The Panel finds this particular proved.

Particular 3(a) - (b)

In relation to Service User 3:

a) On or around 22 July 2015, informed the cleaning company that £150 belonging to Service User 3 had been stolen from your bag, which was not the case;

b) On or around 22 July 2015, requested that the cleaning company did not report that £150 of Service User 3’s money was missing to your manager.

36. The Registrant was tasked with arranging for Service User 3’s home to be cleaned in July 2015. She obtained a quote from FM in the sum of £450. The Registrant told FM that Service User 3’s niece would meet her at the property and let her in. FM told the Panel that Service User 3’s niece handed her £300 when she attended the property and explained that she had already left a deposit of £150 at the property which the Registrant had collected.

37. FM told the Panel that later that day she received text messages from the Registrant in which the Registrant told FM that she thought someone had taken some money out of her bag and that an envelope containing £150 from Service User 3 had been taken. FM also gave evidence that the Registrant had asked her not to report the matter to her manager because she believed that she would be dismissed.

Particular 3(a) – Found Not Proved

38. The HCPC has not adduced any evidence to support this particular. Whilst the Panel accepts FM’s account of what happened, there is no evidence before the Panel as to what did or did not happen to Service User 3’s £150. The Panel cannot find this particular proved.

Particular 3(b) – Found Proved

39. The Panel has not seen the text messages sent by the Registrant to FM, however, as stated above, it accepts her account and finds this particular proved.

Particular 4 – Found Proved

In around November 2016, stored confidential documents relating to Service User 4 and / or Service User 5 at your home.

40. SC told the Panel that she visited the Registrant at home in November 2016 after concerns had been raised and she had been suspended from her employment. At that time the Registrant handed SC two carrier bags containing personal information relating to Service Users 4 and 5. SC compiled a list of the documents which were in the bags. This list was produced to the Panel.

41. The Panel finds this particular proved.

Particular 5(a) - (c)

In or around June and July 2015, in relation to Service User 6:

a) retained Service User 6’s key for an inappropriate length of time and / or while you were on annual leave;

b) retained Service User 6’s bank cards and / or books for an inappropriate length of time and / or while you were on annual leave;

c) did not record that you had Service User 6’s bank cards and / or books in your possession.

42. Service User 6 was in the process of being discharged from a care facility and returned to his home. The Registrant provided general assistance to Service User 6’s Social Worker and was tasked with supporting the service user in purchasing a fridge to store his medication.

Particular 5(a) – Found Not Proved

43. The Panel heard no evidence about Service User 6’s keys or their retention by the Registrant. There was no reference to this issue in the documents before it. The HCPC has failed to prove this particular.

Particular 5(b) – Found Proved

44. The Registrant was on annual leave when Service User 6 was discharged from care. Service User 6’s allocated social care assessor met with him at his home and noted that he urgently required a fridge in order to store his medication. The assessor contacted SC to inform her that she had been unable to locate the service user’s bank card and had therefore been unable to purchase a fridge. SC told the Panel that she contacted the Registrant and asked her if she knew where the service user’s bank card was. SC said that the Registrant told her she had taken the card home with her because she planned to purchase the fridge on her return from annual leave. The Registrant was unaware that Service User 6 had already been discharged from care.

45. SC explained to the Panel that the Registrant’s actions were inappropriate because they deprived Service User 6 of access to his bank account.

46. The Panel accepts SC’s evidence which was consistent with records of the Registrant’s supervision meeting at the material time. It finds this particular proved.

Particular 5(c) – Found Proved

47. The Panel has reviewed the records for Service User 6. The Registrant failed to record that she had taken Service User 6’s bank card. Accordingly, the Panel finds this particular proved.

Particular 6(a) - (b)

On an unknown date, in relation to Service User 7:

a) did not record:

i) the circumstances of how you had found Service User 7; 

ii) the state of the property;

iii) that an ambulance had to be called for Service User 7.

b) removed an unknown quantity of loose change and notes without Service User 7's permission.

Particular 6(a)(i) – (iii) – Found Proved

48. FM told the Panel that she had been asked to attend Service User 7’s home in order to provide a quote for cleaning it. With a colleague, LS, FM met the Registrant at the property. FM described how on entering the property she noticed two stacks of two-pound coins on the floor in the living room and large amounts of loose change all over the lounge and the bedroom.

49. FM gave evidence that Service User 7 was on the bed and unable to move. The Registrant determined that an ambulance should be called. Service User 7 asked the Registrant to go into the living room and get the keys to the property for when the ambulance arrived. FM commented that the Registrant took longer than she expected to retrieve the keys. She also commented that as she and her colleague left Service User 7’s property she noticed that the stacks of the coins that had been on the floor were no longer there.

50. The Panel has examined Service User 7’s records. None of the matters set out in Particulars 6(a)(i) – (iii) are captured in the service user’s records. Accordingly, the Panel finds this particular proved.

Particular 6(b) – Found Not Proved

51. There is no evidence before this Panel from which it could conclude that it is more likely than not that the Registrant removed an unknown quantity of loose change and notes without Service User 7’s permission. There is no evidence at all of any notes in the property. The high point of FM’s evidence was that the coins were not where she had seen them when she entered the property. In her oral evidence FM accepted that they could have been moved and put away somewhere less inconvenient. The Panel does not find this particular proved. 

Particular 7(a) - (c)

On an unknown date, in relation to Service User 12, retained approximately £30.00 belonging to Service User 12 for use as a deposit on her accommodation, and you:

a) did not inform your line manager of this

b) did not take the money to your office for safekeeping;

c) did not record the payment.

52. The Registrant was supporting Service User 12, who had experienced domestic violence, to secure accommodation with a Housing Association. The service user had given £30 to the Registrant to pay to the Housing Association as a deposit. When asked, Service User 12 had explained to SC that she had given the Registrant the money to look after and to make sure that she did not spend it. SC told the Panel that Service User 12 was perfectly capable of paying the deposit to the Housing Association herself and that the Registrant’s retention of the sum was inappropriate.

Particular 7(a) – Found Proved

53. The Panel accepts SC’s evidence that the Registrant did not disclose that Service User 12 had given her the money for use as a deposit when SC asked her if she had any other money or property belonging to service users, at her initial suspension. The Panel also notes that the Registrant admits this particular in her Pro-Forma response to the Allegation. Accordingly, the Panel finds this particular proved.

Particular 7(b) – Found Proved

54. The Panel accepts SC’s evidence that she attended the Registrant’s home to collect the money belonging to Service User 12. Self-evidently, the Registrant had not taken Service User 12’s money to the office for safe-keeping. The Panel finds this particular proved.

Particular 7(c) – Found Proved

55. There is no record of Service User 12 paying the deposit money to the Registrant in the Council’s electronic record system. The Panel finds this particular proved.

Particular 8 – Found Not Proved

In or around April 2016, you borrowed in excess of approximately £1000.00 from Service User 13

56. Service User 13 had a chaotic lifestyle and was referred to Adult Social Care to receive support. The Registrant was assigned to co-ordinate support for Service User 13 and to assist him in managing his personal finances and benefits. She worked with him from October 2014 to November 2016.

57. SC told the Panel that in September 2017 this service user told his Social Worker that he had lent money to the Registrant to start a jewellery business. Service User 13 told the Social Worker that the Registrant took him to a bank and supported him in withdrawing £1000 in cash which he gave to her. Service User 13 further alleged that some months later the Registrant asked to borrow more money from him and he withdrew £500 and gave it to her.

58. No formal statement was taken from Service User 13 for the purposes of the internal investigation.

59. Service User 13 stated that he communicated with the Registrant by text messages. However, he did not retain the text messages. No evidence in relation to Service User 13’s bank account such as statements detailing withdrawals or receipts was placed before the Panel.

60. The Panel noted that Service User 13 had admitted not telling the truth to SC when she first visited him in December 2016 and considered that there were legitimate concerns as to the credibility of his reported accounts.

61. This was one of the most serious of the particulars raised against the Registrant and the Panel considered that cogent evidence was required to support it. The Panel has concluded that the HCPC has failed to adduce sufficiently robust evidence. Accordingly, the Panel does not find this particular proved.

Particular 9 – Found Proved (in relation to 3(b) only)

The actions set out in paragraphs 3(a), 3(b), and / or 6(b) were dishonest.

62. The Panel has not found Particulars 3(a) or 6(b) proved. In determining the issue of dishonesty in relation to Particular 3(b) the Panel applied the test for dishonesty set out in the case of Ivey v Genting Casinos [2017] UKSC 67. That is, the Panel first sought to ascertain the Registrant’s knowledge or belief in relation to the relevant facts and whether it was genuinely held. The Panel then went on to consider whether the Registrant’s conduct was dishonest applying the objective standard of ordinary decent people.

63. Since the Registrant was not present or represented at the hearing and had made only limited representations in writing, the first part of this exercise was primarily focused on an examination of what the Registrant had said at the time in interviews in the internal investigation and of any contemporaneous documents. The Registrant had no recollection of this matter in her first interview on 26 January 2017, nor in the disciplinary hearing she attended.

64. The Panel have accepted FM’s account of this matter including her statement that the Registrant asked her not to report the loss of £150 given to her by Service User 3 from her handbag because she feared that she would be dismissed for holding service users’ money.

65. The Panel considers that this demonstrates that the Registrant knew that holding Service User 3’s money was wrong and that she would be disciplined for it. Effectively, the Registrant asked FM to conceal her wrongdoing. The Panel has concluded that ordinary decent people would consider the Registrant’s actions in this regard to be dishonest. The Panel therefore finds Particular 9 proved in relation to Particular 3(b) of the Allegation.


Decision on Grounds

66. Mr Chalmers told the Panel that the HCPC relied on the statutory ground of misconduct. He submitted that although the Registrant was not working as a Social Worker at the time the Allegation arose, as a registered professional she remained bound by the “HCPC Standards of conduct, performance and ethics”. Mr Chalmers drew the Panel’s attention to Standards 1, 10 and 13 in particular.

67. Standard 1 provides that “You must act in the best interests of service users.” Standard 10 provides that “You must keep accurate records.” Standard 13 provides that “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.”

68. Mr Chalmers submitted that there was evidence that the Registrant’s conduct fell below the required standards.

69. Before making its decision on grounds the Panel accepted the advice of the Legal Assessor.

70. In reaching its decision on whether the statutory ground is made out in this case the Panel considered the organisational context in which the concerns about the Registrant’s practice arose. It noted evidence that the department in which the Registrant was working had no documented procedures or policies in relation to handling, retaining or securing service users’ property, employees in the Registrant’s role received no specific or dedicated training in relation to their role and that training records were not accurate or complete. The Panel also noted that the Registrant asserted at her disciplinary hearing that she had never received any training in the use of the IAS electronic record keeping system and produced documentation to support that assertion.

71. The Panel also bore in mind evidence as to personal difficulties which the Registrant was experiencing at this time which were documented in the internal Council proceedings and which concerned her health and family circumstances.

72. The Panel noted that there is no statutory definition of misconduct. It is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances.

73. The Panel considered that the facts found proved fall into four broad categories: dishonesty, record keeping, data protection and retention of service users’ property.

74. The Panel considers that its findings in relation to Particulars 3(b) and 9 constitute serious misconduct related to the Registrant’s fitness to practise.

75. The Panel has found four instances of inadequate record keeping proved. The most serious of those concerned Service User 7 where the Registrant had failed to record that an ambulance had been called to the service user’s property. The Panel considers that even though the Registrant was not working as a Social Worker at the time, that incident was one which she would have been expected to report. The Panel has concluded that there is evidence of a pattern of behaviour in relation to the Registrant’s deficient record keeping. The matters taken together amount to misconduct which is serious.

76. The findings the Panel have made in relation to the Registrant’s handling of service users’ personal data clearly indicate that the Registrant was not following best practice. However, the Panel has received no evidence of the standards of service user data handling that were in place at the time the Allegation arose. The Panel reminds itself that the Registrant ought to be judged by those standards rather than the standards in place today in the light of the General Data Protection Regulations. On balance, the Panel has concluded that the Registrant’s conduct does not meet the threshold of sufficiently serious misconduct going to her fitness to practise.

77. Taking into account the organisational context and the absence of policies, training or guidance, the Panel has determined that the Registrant’s retention of service users’ bank cards and keys for up to four days does not amount to misconduct which is serious.


Decision on Impairment

78. Mr Chalmers submitted that the Registrant’s failure to engage with this hearing meant that the Panel had no information to inform its consideration of matters of insight, remediation and the risk of repetition.

79. The Panel reminded itself that, whilst it had taken account of the Registrant’s past acts and omissions, its task was to determine whether the Registrant’s fitness to practise is currently impaired.

80. The Panel has had regard to the personal component of impairment. It has made findings that the Registrant’s conduct amounted to misconduct and, that in one particular, the Registrant acted dishonestly.

81. The Panel has only limited material before it to indicate what, if any, insight the Registrant now has in relation to her misconduct. There is no evidence that the Registrant has reflected more deeply on why she did what she did. There is no evidence of any steps taken by the Registrant to avoid a repetition of her misconduct.

82. Whilst the Panel has some sympathy for the Registrant as regards the particular health and personal stresses that she faced at the time of these incidents, the Panel does not have any evidence that she has developed strategies to ensure that if comparable stresses arise in the future she is better placed to deal with them.

83. The Panel has concluded that in the circumstances of this case, whilst the Registrant’s misconduct is capable of remedy, in the absence of evidence of insight there is a risk that the Registrant’s misconduct might be repeated in the future. Accordingly, the Panel has concluded that there is current impairment of the Registrant’s fitness to practise having regard to the personal component.

84. Further, the Panel has also taken into account the need to protect service users, declare and uphold proper standards of behaviour and to maintain public confidence in the profession in arriving at its decision on impairment. Members of the public would be dismayed if there were no finding of current impairment to mark disapproval of the Registrant’s misconduct. The Registrant asked FM not to report her conduct because she feared disciplinary action would be taken against her and she failed to properly record her interactions with service users, potentially placing them at risk of harm and potentially jeopardising their future care.

85. The Panel is satisfied that if it did not make a finding of current impairment in this case, it would have failed in its duty to declare and uphold proper standards. As a result, public confidence in the profession and in the regulatory process would be undermined.


Decision on Sanction 

86. On behalf of the HCPC, Mr Chalmers reminded the Panel that the primary purpose of any sanction is to protect the public and not to punish the Registrant. Mr Chalmers drew the Panel’s attention to the HCPTS “Sanctions Policy” (2019). He referred the Panel to potential aggravating factors in this case and submitted that there was very little evidence available to the Panel of the Registrant’s insight or remorse. Mr Chalmers submitted that there also appeared to be a lack of remediation by the Registrant.

87. Mr Chalmers submitted that there may be mitigating factors in this case. He identified the historical nature of the Allegation noting that some of the concerns raised dated back to 2015. He also commented on the short period over which the misconduct took place, in the context of the whole period of the Registrant’s employment with the Council. Mr Chalmers noted that there was no evidence that the Registrant had previously come to the attention of the regulator nor had there been any further concerns raised since this referral. Mr Chalmers indicated that there was no evidence of previous conduct issues having arisen during the course of the Registrant’s employment with the Council.

88. Before reaching its decision on sanction the Panel reviewed the evidence it had read and heard. The Panel gave careful consideration to the submissions of the HCPC on sanction and accepted the advice of the Legal Assessor.

89. The Panel reminded itself that its task was to consider whether the Registrant may pose a risk to those who may need or use her services in the future. In addition, its decision must give appropriate weight to the wider public interest. Where the Panel identified a risk, it must determine what is the least onerous sanction available that provides the necessary degree of public protection to guard against it.

90. The Panel noted that it had no information as to whether the Registrant had provided any apology to the service users affected by her misconduct or whether she had otherwise expressed remorse before this hearing.

91. The Panel considered the evidence available to it in relation to the Registrant’s insight in to the misconduct found proved. Whilst there was some evidence of the Registrant’s empathy for the service users involved, the Panel had no evidence of a genuine recognition of the concerns raised nor of the Registrant’s understanding of the impact or potential impact of her actions.

92. The Panel next considered whether there was evidence that the Registrant had taken or was taking steps to address the concerns raised about her conduct. The Panel considers that there are steps which the Registrant could take to remedy her misconduct.

93. In relation to the misconduct findings in respect of record keeping, the Panel considers that this could be easily remedied by the Registrant taking and passing a relevant training course and by having proper support and training available to her in her workplace.

94. Whilst dishonesty is less capable of remedy the Panel notes that, as paragraph 58 of the HCPC “Sanctions Policy” (2019) observes, “there are different forms and different degrees of dishonesty, that need to be considered in an appropriately nuanced way.” Whilst obviously serious, the Panel records that the Registrant’s dishonest conduct was a single, isolated, impulsive act. The Panel notes that the Registrant had access to the homes and property of vulnerable service users over the sixteen years of her employment with the Council and yet there is no evidence that she abused that access or trust. The Panel considers that this is significant.

95. The Panel also had regard to the health challenges that the Registrant faced at the time these concerns arose. These are documented in an Occupational Health Report dated December 2016, which reports that the Registrant presented with a history of longstanding treatment to support a health condition. The report noted that the Registrant had managed her health condition well with support from her GP and achieved a return to work. However, the report noted that in times of stress the management of the Registrant’s health condition could be affected. The report identified forgetfulness, disorganisation, an inability to focus and poor judgment as ways in which ill health could affect the Registrant’s performance at work. In the internal proceedings the Registrant had stated that she had experienced all of these symptoms.

96. As a result of the Registrant’s lack of engagement with the regulatory process the Panel has no evidence that the Registrant is willing or able to address her misconduct. Accordingly, the Panel considers that there must be some risk of repetition of the concerns.

97. In these circumstances, the Panel has determined that it is necessary to impose a sanction. In identifying the appropriate sanction, the Panel has applied the principle of proportionality and has sought to strike a proper balance between the protection of the public and the rights of the Registrant.

98. The seriousness of the Registrant’s misconduct, involving as it did an act of dishonesty, the risk of recurrence and the lack of insight demonstrated by the Registrant to date, mean that to take no further action or to impose a Caution Order would not be proportionate sanctions in this case.

99. Given that the Registrant has not practised as a Social Worker since April 2015 and is currently not employed, the Panel does not believe that it could identify appropriate, realistic and verifiable conditions of practise. In any event, in the absence of engagement with the regulatory process by the Registrant, the Panel cannot be confident that the Registrant would comply with any conditions imposed on her registration.

100. The Panel has given very careful consideration to a Suspension Order. The Panel has concluded that there is some evidence to suggest that the Registrant is likely to be able to resolve or remedy her failings. The Panel notes that following the concerns in relation to Service User 6 being drawn to the Registrant’s attention by SC in July 2015, the Registrant made appropriate entries on the case recording system and advised Service User 6 that neither she nor her colleagues would use service users bank cards or bank books to carry out tasks on behalf of service users in the future. This suggests to the Panel that when given clear instructions, policies and procedures the Registrant will comply with them.

101. The Panel has already commented on the limited insight demonstrated by the Registrant to date.

102. The Panel considered whether the Registrant’s misconduct warranted a Striking Off Order. However, that sanction is a sanction of last resort for serious, persistent, or reckless acts. The Panel has concluded that a Striking Off Order would be disproportionate having regard to the nature of the Registrant’s dishonesty and other misconduct.

103. The Panel has concluded that a lesser sanction would be sufficient to protect the public, public confidence in the profession and public confidence in the regulatory process. The Panel has therefore determined that a Suspension Order will provide the required degree of public protection in this case and will maintain confidence in the reputation of the profession and the regulatory process.

104. The Panel has determined that a Suspension Order for a period of nine months is necessary and proportionate. This will protect the public and enable the Registrant to commence her journey towards full insight and remediation.

105. The Panel noted that there will be a review hearing shortly before the period of suspension is due to end and considered a future reviewing panel may be assisted by:

• Evidence that the Registrant has acknowledged her wrongdoing;

• Evidence that the Registrant has undertaken appropriate remediation;

• A statement of personal reflection from the Registrant;

• Evidence that the Registrant has undertaken relevant training in relation to record-keeping;

• A statement or reference from a current or recent employer.

Order

ORDER: The Registrar is directed to suspend the registration of Miss Tracy A Oakley for a period of 9 months from the date this Order comes into effect.

Notes

Interim Order

106. On behalf of the HCPC, Mr Chalmers indicated that he wished to make an application for an Interim Suspension Order in the light of the sanction decision and invited the Panel to consider proceeding in the absence of the Registrant to hear his application. The Panel accepted the advice of the Legal Assessor. It determined that there had been no material change in circumstances and it was appropriate to exercise its discretion to proceed in the absence of the Registrant.

107. Mr Chalmers submitted that the Panel ought to impose an interim order to provide appropriate protection until the end of the appeal period, or if an appeal is made to the end of the appeal process.

108. Having accepted the advice of the Legal Assessor, the Panel has decided that it is not necessary to impose an interim order in this case. The Allegation is historical in nature, there have been no further concerns raised in relation to the Registrant and the Panel has not found that the Registrant harmed service users or that there is a serious ongoing risk to service users or the public. In these circumstances, the Panel has decided not to make an interim order.

Hearing History

History of Hearings for Miss Tracy A Oakley

Date Panel Hearing type Outcomes / Status
15/07/2019 Conduct and Competence Committee Final Hearing Suspended