Mr Angus Welsh

Profession: Social worker

Registration Number: SW102029

Interim Order: Imposed on 22 Jun 2017

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 01/07/2019 End: 17:00 09/07/2019

Location: Jurys Inn Bradford, 2 Thornton Road, Bradford

Panel: Conduct and Competence Committee
Outcome: Not well founded

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Allegation

During the course of your employment as an agency Social Worker employed by Lancashire County Council between 17 October 2016 and 30 January 2017, you:

1. On or around 26 January 2017, sent inappropriate text messages to Child A’s mother (Person A)

2. On unknown dates, behaved in an inappropriate manner towards Person A, in that you:
(a) spoke down to her during a meeting;
(b) threatened to bring the matter back to Court to consider Child A’s removal from her care;
(c)  on a home visit made comments about how she looked and questioned what Child A’s father had lost and what he had now ended up with, or words to that effect;
(d) at a subsequent meeting made comments about her relationship with Child A’s father and warning her not to lead Child A’s father on.

3. The matters described in paragraphs 1, and 2(c) were sexually motivated.

4. The matters set out in paragraphs 1 – 3 constitute misconduct.

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

 

Finding

Preliminary Matters

Amendment of Allegation
1. Mr Foxsmith, on behalf of the HCPC, applied to amend the Allegation. Mr Foxsmith submitted that the amendments sought were consistent with the evidence, and that they served to clarify the allegation by giving further and better particulars.

2. Mr Preston, on behalf of the Registrant, did not object to the amendment.

3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided the Panel was satisfied that no injustice would be caused to the Registrant by the amendments. The Panel considered that the amendments sought did not change the substance of the allegation in any unfair way. The amendments did clarify the allegation and would not cause injustice, as it is always preferable that allegations are as clear as possible. Furthermore, one of the amendments sought to delete a factual particular thus limiting the allegation against the Registrant. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above and the original Allegation is appended to this decision.

Application to exclude evidence on the basis that it had not been properly exhibited
4. Mr Preston applied for Exhibit 2 and Exhibit 10 to be excluded on the ground that they had not been properly exhibited. He submitted that the exhibit bundle was freestanding, and that the exhibits had not been attached to any witness statements. He pointed out that the witnesses introducing those exhibits into evidence had not declared that they had been shown the documents in question. He submitted that the exhibits in question should not be admitted into evidence because continuity of evidence had not been established.

5. Mr Foxsmith, on behalf of the HCPC, accepted that there had been a break in the continuity of evidence. However he did not accept that the lack of continuity of evidence in this case was fatal to the admissibility of the exhibits in question.

6. Mr Foxsmith reminded the Panel that its overriding duty was the protection of the public and of the public interest. He submitted that in the circumstances it was fair and proper to admit Exhibits 2 and 10 into evidence.

7. The Panel accepted the advice of the Legal Assessor. He drew the Panel’s attention to the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the CCC Rules”). He advised that rule 10(b) directed that the rules of evidence in civil proceedings were applicable to these proceedings. He also drew the Panel's attention to rule 10(c), which permitted the Panel to hear or receive evidence, which would not be admissible in such proceedings, if it is satisfied that admission of that evidence is necessary in order to protect members of the public.

8. He then drew the Panel’s attention to Practice Direction 32 part 4.3 of the Civil Procedure Rules (CPR), which relates to exhibits in civil proceedings. He pointed out that part 4.3 states as follows:
4.3 Where a deponent –
(1) refers to an exhibit or exhibits, he should state “there is now shown to me marked … the (description of exhibit)”, …

9. The Legal Assessor advised the Panel that Exhibits 2 and 10 had not been exhibited in accordance with the above Practice Direction. The Legal Assessor then drew the Panel’s attention to part 25.1 of Practice Direction 32, which deals with such defects. He advised the Panel that under part 25.1 the Panel have the power to refuse to admit the exhibits into evidence.

10. The Legal Assessor advised the Panel that in making its decision it should take into consideration all of the above and bear in mind the principles of fairness and proportionality.

11. In coming to its decision the Panel took into account the submissions of both parties and the advice of the Legal Assessor. It determined that both Exhibits 2 and 10 had not been properly produced in line with the Civil Procedure Rules.

12. In relation to Exhibit 2, the Panel determined that it would not necessarily be admissible under the Civil Procedure Rules but determined that it should nevertheless allow Exhibit 2 to be admitted into evidence, under rule 10(c) of the CCC rules. Exhibit 2 purports to be text messages from the Registrant to Person A that contained sexualised content. The Panel took into account that the text messages raised serious public protection issues. The Panel was aware that in admitting Exhibit 2 some unfairness might arise, but the Panel determined that any unfairness caused would be offset by the fact that the Panel will bear in mind that the evidence had not been properly verified when considering what weight, if any, should be placed upon Exhibit 2.

13. In relation to Exhibit 10, the Panel determined that it would not permit it to be admitted into evidence. In the index to the bundle Exhibit 10 is described as a file note made by Person A’s solicitor. However on actual examination of Exhibit 10, it does not purport to be a record of a conversation between the solicitor and Person A. Furthermore, Exhibit 10 is not dated and it is an incomplete document in that it has been selectively copied. The Panel determined that it would not be fair to admit Exhibit 10 into evidence.

Application to exclude Exhibit 2 on the basis that it is not relevant evidence

14. Mr Preston then made an application to exclude Exhibit 2 on the basis that it did not constitute relevant evidence. He drew the Panel's attention to the allegation against the Registrant. He pointed out that Exhibit 2, which purports to be a printout of texts sent on the relevant dates, did not actually have any dates on the printout. Mr Preston submitted that this meant that there was nothing to show that these printouts were actually those referred to in the Allegation. He submitted that in the circumstances, Exhibit 2 should be excluded as it was not relevant evidence.

15. Mr Foxsmith accepted that there were no dates on the printout of the texts. However he did not accept that there was nothing to show that these printouts were actually those referred to in the Allegation. He submitted that Person A would be able to identify them as the texts that she says she received on the dates in question. He submitted that they were therefore relevant evidence and should not be excluded.

16. The Panel accepted the advice of the Legal Assessor. He advised the Panel that the basic rule of evidence is that only relevant evidence is admissible, and that if the Panel determined that Exhibit 2 did not contain sufficient information to make it relevant to the allegation against the Registrant, or that there is no other evidence that could make it relevant, then it should be excluded.

17. The Panel carefully considered the matter and recognised that there were problems with Exhibit 2. However the Panel determined that those problems were capable of being remedied by Person A if she attends to give evidence. The Panel was also aware that Exhibit 2 was not produced into evidence by Person A. The Panel determined that any unfairness arising from this point would be balanced out by the fact that the Registrant was represented by Mr Preston, and by the fact that the Panel was aware that it should be very careful when ascribing weight to the exhibit.

Background

18. The Registrant commenced his employment at Lancashire County Council (“the Council”) as a Social Worker on 17 October 2016. At the time, the Registrant was already an experienced Social Worker. As part of his caseload, he was allocated the case of Child A on 4 November 2016, while the case was in the early stages of care proceedings.

19. It is alleged that the Registrant sent Person A inappropriate text messages from his work mobile phone on Thursday 26 January 2017. It is also alleged that the Registrant behaved in an inappropriate manner towards Person A.

20. The Registrant, an agency worker, resigned from his position at the Council, and the matter was subsequently reported to the HCPC.

Decision on Facts

21. The Panel considered all the evidence in this case together with the submissions made by Mr Foxsmith on behalf of the HCPC, and by Mr Preston on behalf of the Registrant.

22. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

23. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:
• Witness 1 (IC), who was a team manager at the Council. At the time of these matters he had oversight of the Registrant’s work as team manager. However, he was not the Registrant’s direct line manager, who was Witness 2.

• Witness 2 (KN), who was the Practice Manager of the Registrant’s team and who provided day-to-day line management and supervision to the Registrant.

24. The Panel found Witness 1 to be candid and honest in his answers. He was fair in that when there were matters that he did not know, he said so and did not speculate.

25. The Panel found that Witness 2’s evidence often lacked detail. It was unclear to the Panel whether this was because her memory of events had faded over time or because of some other reason. 

Application for an adjournment in the hope that Person A would contact the HCPC and attend to give evidence

26. At the conclusion of Witness 2's evidence on the afternoon of the second day, Mr Foxsmith applied for the hearing to be adjourned until Monday 8 July 2019.

27. The Panel was told that Person A had not attended to give evidence and that there was some doubt as to whether she would attend, despite being warned as a witness. The Panel was told that the Hearings Officer had sent an email on 18 June 2019 to Person A to remind her of this hearing but received no response. The Hearings Officer then wrote another email on 21 June 2019 to Person A who responded the same day stating that she had thought that the hearing was due to start on 7 July 2019 and not 1 July 2019.

28. When the Hearings Officer replied on the same day pointing out to Person A that on 18 February 2019 she had been requested to attend on 1 July 2019 as a witness, and had been given the correct dates, the Hearings Officer also asked for the reason why Person A would not be able to attend this hearing.

29. Person A replied in an email sent that same day that she would not be in the UK on 1 July 2019, and stated “I’ve got mixed up with the dates I thought it was the 7th”.

30. The Hearings Officer then wrote to Person A on 24 June 2019 asking her for details of her trip including the destination, date of her outward and return journey, and supporting evidence of the trip in order to ascertain the best way forward to deal with this issue. There has not been any response from Person A despite further emails sent to her later that day and on 26 June 2019 by the Hearings Officer.

31. Mr Foxsmith told the Panel that the HCPC was seeking the adjournment in order to see if Person A would make contact and would be willing to attend to give evidence. He pointed out that the hearing had been listed last year and that Person A had attended on the day of the hearing to give evidence. He told the Panel that the case had been adjourned on that occasion.

32. Mr Foxsmith accepted that he was unable to tell the Panel whether Person A would make contact if an adjournment was granted, nor whether she was still willing to give evidence to the Panel. Mr Foxsmith also accepted that if the adjournment were granted, it would inevitably mean that the hearing would not conclude within the time allocated, regardless of whether Person A re-engaged, and would have to be adjourned part-heard.

33. Mr Preston objected to the application. He pointed out that the timetable had been set such that the Registrant's case was due to start tomorrow and that the application would lead to further delay, and in turn result in less time for the Registrant to present his case.

34. Mr Preston also submitted that if the case were to be adjourned part-heard it would result in injustice to the Registrant, as he would no longer be legally represented at the resuming date. Mr Preston told the Panel that this was because he was conducting this case on a pro bono basis, and his representation of the Registrant only extended to this hearing.

35. Mr Preston submitted that an adjournment would serve no useful purpose as there is nothing to suggest that Person A would re-engage.

36. The Panel accepted the advice of the Legal Assessor. He advised the Panel to consider why the adjournment was being requested, what would be gained by an adjournment, and what prejudice might be caused. He reminded the Panel to keep in mind the principles of fairness and proportionality when making its decision.

37. The Panel took into account the following when coming to its decision:

(a) the correspondence set out above;
(b) that this case had been previously listed in July 2018 when Person A did attend;
(c) that Person A had not attended this current hearing despite being warned as a witness for 1 July 2019; and
(d) that in spite of further attempts by the Hearings Officer to contact Person A since 1 July 2019, no further contact was received from her.

38. The Panel determined that there was insufficient evidence that Person A’s non-attendance was involuntary. The Panel was concerned about her silence over the last few days. It could find no good reason why she had not responded to attempts to contact her. It therefore was not satisfied that an adjournment would secure her attendance at a future date. 

39. The Panel was aware that the principle of fairness meant fairness to both sides, and that involves a balancing exercise. The Panel recognised that both Person A and the Registrant were vulnerable people in the circumstances. However, if the adjournment were granted, it would result in the Registrant having difficulty rescheduling his witnesses, and also very likely result in the loss of his legal representation. The prejudicial impact of an adjournment would be much greater upon the Registrant than on the HCPC.

40. The Panel was also very aware that an adjournment would almost certainly result in these proceedings being adjourned part-heard, which in turn would likely lead to a long delay before the matter could be relisted. The Panel was very aware of the public interest in dealing with allegations against registrants expeditiously.

41. Looking at matters in the round, the Panel determined that it would not be fair or proportionate to grant the application for the adjournment. The Panel recognised that without Person A the HCPC's case would be weakened.

Application to admit the statement of Patient A into evidence as hearsay
42. Following the Panel’s decision not to grant the application for an adjournment, Mr Foxsmith applied for the statement of Person A to be admitted into evidence as a hearsay document.

43. The Panel was referred to the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin) as part of this application.

44. Mr Preston objected to the statement of Person A being admitted into evidence. He submitted that it would be unfair to allow the application because of the following considerations, that were set out in the Thorneycroft case:
• Person A’s evidence was the sole and decisive evidence in support of the allegation;
• the entirety of the contents of her statement was challenged by the Registrant, and this had been the position from the start of proceedings;
• the allegation levelled against the Registrant is very serious;
• there was no good reason for Person A’s non-attendance. She had disengaged from the HCPC since her last email on 21 June 2019, and has not responded to requests for details of her assertion that she was going to be unavailable this week;
• the HCPC has not taken reasonable steps to secure Person A’s attendance to give evidence. It was known early last week that Person A was not going to come to give evidence, and no steps had been taken to secure her attendance this week;
• there was no prior notice to the Registrant from the HCPC that it was going to seek to have Person A’s statement admitted into evidence as hearsay.

45. The Panel accepted the advice of the Legal Assessor. He drew the Panel’s attention to the judgement of Andrew Thomas QC sitting as a High Court Judge in the Thorneycroft case:
“45. For the purposes of this appeal, the relevant principles which emerge from the authorities are these:
1.1.  The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP [sic] rules require the Panel to consider the issue of fairness before admitting the evidence.
1.2.  The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility.
1.3.  The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence.
1.4.  Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either that the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.”

46. The Legal Assessor advised the Panel to bear in mind the principles of fairness and proportionality when deciding whether or not the statement should be admitted into evidence.

47. The Panel took into account all of the above considerations and submissions when making its decision. The Panel particularly noted that the reliability of Person A’s statement cannot be tested, and its contents are vigorously challenged. The Panel determined that to permit the statement into evidence at this stage would cause injustice and would not be fair. The Panel was aware that it could later determine what weight could be attached to the statement if admitted. However, the Panel bore in mind that the statement of an absent witness should not be admitted into evidence as a matter of routine. The Panel was required to consider the issue of fairness before admitting the evidence. The Panel determined it was unfair to allow the statement of Person A to be admitted on the basis that little or no weight could be ascribed to it later.

48. Therefore the application to admit Person A’s statement into evidence as hearsay, on the grounds that she has failed to attend to give evidence without good reason, is refused.

49. Following the above ruling, Mr Foxsmith closed the case for the HCPC.

No Case to Answer submission
50. Mr Preston, on behalf of the Registrant, submitted that there was no case to answer in relation to all the factual particulars. He told the Panel that the main thrust of his argument is that there is no evidence upon which the Panel could find the particulars proved or that the evidence of the HCPC is so tenuous that, even if taken at its highest, the Panel could not properly find the particulars proved.

51. In relation to Particular 1, Mr Preston submitted that this particular was dependent upon Exhibit 2 and its reliability. He said that, as he had submitted at the start of the proceedings, problems of continuity of evidence existed, and this has not improved as the hearing progressed. Furthermore, the printouts themselves do not have any date as to when the texts were sent or received, nor is there a phone number recorded to prove which number had sent the texts. Mr Preston submitted that therefore there was no evidence text messages had been sent to Person A, nor that they were inappropriate.

52. In relation to Particular 2, Mr Preston submitted that, without Person A attending to give evidence, there was no evidence to substantiate this factual particular or any of the sub-particulars, and therefore there was no case to answer.

53. Mr Preston submitted that Particular 3 must fall away if the Panel determined that there was no case to answer on Particulars 1 and 2.

54. Mr Foxsmith drew the Panel's attention to the Practice Note entitled ‘Half-Time Submissions’ issued by the HCPTS, and reminded it that it must take the Practice Note into account.

55. The Legal Assessor advised that the Panel must bear in mind that it is for the HCPC to prove the fact alleged and that the requisite standard of proof is the balance of probabilities.

56. The Legal Assessor also drew the Panel’s attention to the case of Tutin v General Medical Council [2009] EWHC 553 (Admin), which set out the test to be applied by regulatory panels when considering submissions of no case to answer.

57. The Legal Assessor gave the following advice:
• If there is no evidence of a factual particular, then the Panel must allow the application in relation to that particular;
• If there is some evidence of a factual particular, but of such an unsatisfactory nature that the Panel, properly directed as to the burden and standard of proof, could not find the matter proved, then it must allow the application in relation to that factual particular.
• If there is some evidence of a factual particular, of which the relative strength or weakness is dependent upon the Panel's view of the reliability of a witness (or evidence), then the Panel should consider the issue of the strength or weakness of the evidence at this stage. The Panel should only allow a factual particular to continue beyond this stage, if it determines that the reliability of the evidence is such that the factual particular in question is capable of proof on the balance of probabilities.

58. The Legal Assessor reminded the Panel that the test at this stage was not whether the allegation would be proved but whether it was capable of proof on the evidence before it.

59. The Panel accepted the advice of the Legal Assessor and had regard to all the available evidence before it. It also had regard to the submissions of both parties.

60. In coming to its decision, the Panel considered each element of each particular. Firstly, the Panel looked to see if there was any evidence to support the facts alleged. If there was, then the Panel would go on to consider whether the Panel could find the facts proved on that evidence.

The Stem of the Allegation

During the course of your employment as an agency Social Worker employed by Lancashire County Council between 17 October 2016 and 30 January 2017:

61. The Panel determined that the stem of the Allegation was capable of proof as it was not in dispute that the Registrant was employed as an agency Social Worker by Lancashire County Council between 17 October 2016 and 30 January 2017.

Particular 1
1. On or around 26 January 2017, sent inappropriate text messages to Child A’s mother (Person A)

62. In the absence of Person A attending to give evidence, there was no direct evidence that she did receive text messages on or around 26 January 2017 from the Registrant. What Witness 1 says about the text messages in question is that he received notification by email on 27 January 2017 from the Local Authority’s legal department, that Person A’s Solicitor had contacted them about the complaint made against the Registrant. Witness 1 then said he was provided with copies of the alleged text messages. 

63. The Panel determined that the printout before it could not be relied upon, as it is fourth-hand hearsay, and the Panel would not be able to place any weight on the printout or the information received by Witness 1 relating to it.

64. In light of the above, the Panel determined that the evidence was so tenuous, that even taken at its highest, a reasonable Panel could not properly find that Particular 1 was capable of being proved on the balance of probabilities.

65. Therefore, the Panel determined that there was no case to answer in relation to Particular 1.

Particular 2
2. On unknown dates, behaved in an inappropriate manner towards Person A, in that you:
(a) spoke down to her during a meeting;
(b) threatened to bring the matter back to Court to consider Child A’s removal from her care;
(c)  on a home visit made comments about how she looked and questioned what Child A’s father had lost and what he had now ended up with, or words to that effect;
(d) at a subsequent meeting made comments about her relationship with Child A’s father and warning her not to lead Child A’s father on.

66. Particular 2 is dependent on the evidence coming from Person A alone. As Person A has not attended to give evidence, there is no evidence:
(a) that she was spoken down to during a meeting;
(b) that in telling Person A of the possibility that he would bring the matter back to court, the Registrant issued a threat;
(c) of any comments made by the Registrant to her on any home visit; nor
(d) of any comments made by the Registrant to Person A about her relationship with Child A’s father.

67. Therefore the Panel determined that there was no case to answer in relation to Particulars 2(a), 2(b), 2(c) and 2(d).

Particular 3
3. The matters described in paragraphs 1, and 2(c) were sexually motivated.

68. As Particular 3 is dependent on there being a case to answer in relation to either Particular 1 or Particular 2(c), the Panel determined that there was also no case to answer on Particular 3.

69. The Panel further determined that as there was no case to answer on all the factual particulars, there was nothing left that could amount to misconduct and impairment of fitness to practise. The bare stem of the Allegation is not capable of amounting to misconduct or impairment of fitness to practise.

70. Therefore the Panel determined that the Allegation as a whole is not well founded and is dismissed.

Order

No information currently available

Notes

Original Allegation

During the course of your employment as an agency Social Worker employed by Lancashire County Council between 17 October 2016 and 30 January 2017, you:

1.  On or around 26 January 2017 and 28 January 2017, sent inappropriate text messages to Child A's mother.

2.  On unknown dates, behaved in an inappropriate manner towards Child A's mother, in that you:

(a)  spoke down to her during a meeting;

(b)  threatened to bring the matter back to Court to consider Child A's removal from her care;

(c)  on a home visit made comments about how she looked and questioned what Child A's father had lost and what he had now ended up with, or words to that effect;

(d)  at a subsequent meeting made comments about her relationship with Child A's father and warning her not to lead you on;

(e)  caused Child A's mother to feel uncomfortable and distressed.

3.  The matters described in paragraphs 1, 2 (c) and 2 (d) and were sexually motivated.

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

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

Hearing History

History of Hearings for Mr Angus Welsh

Date Panel Hearing type Outcomes / Status
01/07/2019 Conduct and Competence Committee Final Hearing Not well founded