Miss Nichola Jane Evans

Profession: Social worker

Registration Number: SW05653

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 03/06/2019 End: 17:00 05/06/2019

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

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

1) On 9 September 2017 you contacted Service User A via Facebook messenger and asked/stated:

a) “the decisions I made, I hope were the correct ones”

b) “I just need to know that you, Service User B and Service C are OK”

c) “I hope you are all happy, my decisions were clearly documented when u read them u will see. You, Service User B and Service User C were really prominent in my desire to become a good social worker. I’m sorry x”

d) “Did I make the correct decision separating you and Service User C?”

2) The matters set out at paragraph 1 constitute misconduct and/or lack of competence.

3) By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary Matters

Service

1. Notice of hearing was sent to the Registrant at her address as it appeared on the Register on 11 March 2019. The Notice contained the date, time and venue of the hearing. The Panel also had regard to the proof of service document.

2. The Panel accepted the advice of the Legal Assessor, namely that Notice appeared to comply with the relevant Rules.

3. The Panel was satisfied that Notice of today’s hearing had been served on the Registrant in accordance with the Rules.

Proceeding in the Absence of the Registrant

4. The Panel considered, as the Registrant was neither present nor represented at this hearing, whether it should nevertheless proceed with the hearing in her absence.

5. The Panel was satisfied that all reasonable steps had been taken to serve the Notice of the hearing on the Registrant under Rule 6(1).

6. Ms Mond-Wedd, on behalf of the HCPC, submitted that the Registrant had voluntarily absented herself from this hearing, as she had confirmed that she did not intend to attend in the form entitled “Response Pro-Forma and Pre-Hearing Information Form”.

7. The Panel accepted the advice of the Legal Assessor, and particularly its duty to proceed in the absence of a Registrant with the utmost care and caution.

8. The Panel was satisfied that the Registrant was aware of this hearing and that she had voluntarily absented herself. In reaching its conclusion, the Panel relied on the Registrant’s written confirmation that she had no intention of attending this hearing, nor had she made an application for an adjournment. Even if the case was adjourned, the Panel did not consider that it would serve any useful purpose as it would not secure the Registrant’s attendance. The Panel was also mindful that two HCPC witnesses had attended, one of whom was a vulnerable Service User, and it was in their interests to proceed, as well as in the public interest in dealing with the case expeditiously.

Amendment

9. Ms Mond-Wedd applied to amend the following part of the Allegation.

On 9 September 2017 you contacted Service User A via Facebook messenger and asked/stated:

”I hope you are all happy, my decisions were clearly documented when u read them u will see. You, Service User B and Service User C were really prominent in my desire to become a good social worker. I’m sorry x”

10. The amendment sought to this part of the Allegation was as follows:

“I hope you are all happy Service User A. You are a fabulous girl. My decisions were clearly documented when u read them u will see. You, Service User B, and Service User C were really prominent in my desire to become a good social worker. I’m sorry”

11. On 19 December 2018, the HCPC served the Registrant with a letter setting out their intention to apply to amend the allegation at this hearing.

12. The Registrant has not responded to that letter.

13. Ms Mond-Wedd submitted that the amendment sought was not significant and was in order to more accurately reflect the contents of the Facebook message sent by the Registrant to Service User A.

14. The Panel agreed with these submissions and considered that it was fair to amend the Allegation, and no prejudice would be caused to the Registrant in doing so.

Background

15. The Registrant was employed by Manchester City Council (MCC) as a Social Worker at the relevant time. From 2005 to 2010, the Registrant was the assessing social worker for Service User A and her siblings, Service Users B and C. Service Users A, B and C were the subject of care proceedings and had been removed from their parents under a care order.

16. Between April 2017 and October 2017, Witness B was Service User A’s Leaving Care Adviser.

17. On 12 September 2017, Service User A told Witness B that the Registrant had sent her a Facebook friend request and direct messages on Facebook. Service User A struggled with mental health issues, including dissociative disorder, social anxiety, a major depressive disorder, extreme anxiety attacks, night terrors and flashbacks to childhood.

18. Witness B escalated the concerns of Service User A to her line manager and a Children’s Services manager.

19. On 18 September 2017, Witness B submitted a Fitness to Practise referral to the HCPC.

Decision on Facts

20. The Panel has considered the following material:

• Notice of Allegation and Proof of Registration dated 2 October 2018;

• Amended Notice of Allegation and Proof of Registration dated 19 December 2018;

• A case summary;

• Witness statements from Service User A and Witness B;

• Seven separate exhibits, including copies of screenshots relating to the messages the Registrant sent to Service User A;

• A response pro-forma and pre-hearing information form (‘Pro-forma’) completed by the Registrant;

• A handwritten statement from the Registrant and an email from her dated 23 August 2018.

21. The Panel heard oral evidence from Service User A and Witness B.

22. Service User A gave oral evidence and confirmed her witness statement. In her written statement, she said that the Facebook messages from the Registrant made her feel paranoid as they coincided with her recent request for her personal file from MCC’s Children’s Services. She added in oral evidence that the messages made her feel “on edge” and “uncomfortable”. In her written witness statement she said, “I have really awful anxiety attacks and hearing from [the Registrant] brought back a lot of night terrors and flashbacks to my childhood.”

23. Service User A also said that she did not have positive experiences in her dealings with social workers throughout her life, and believed that once she turned 18 years of age, she would no longer have any contact with them.

24. Following the Registrant’s conduct, Service User A said that she placed security settings on her Facebook in order to prevent access from unwelcome individuals in the future.

25. The Panel considered that Service User A’s oral evidence confirmed her written evidence as to the impact on her of the Registrant’s conduct.

26. The Panel next heard oral evidence from Witness B, who was Service User A’s Leaving Care Adviser from April 2017 until October 2017.

27. Witness B confirmed her witness statement. In oral evidence, she said the impact on Service User A was to increase her distress and paranoia.

28. Ms Mond-Wedd made closing submission indicating that she did not intend to make extensive submissions as to facts, since the Registrant has made full admissions in the Pro-forma. She invited the Panel to also consider the evidence of Service User A, Witness B, and the Facebook messages.

29. The Panel gave significant weight to the Registrant’s admission in the Pro-forma. It also carefully read and gave weight to the Registrant’s undated handwritten statement and her email dated 23 August 2018, in which she made full admissions to the Allegation. The Panel further took account of the written and oral evidence of Service User A and Witness B.

30. Accordingly, the Panel found the Allegation proved, applying the civil standard of proof, namely the balance of probabilities.

Decision on Grounds

31. The Panel next considered whether the proven facts amounted to a statutory ground. This is a matter for the professional judgment of the Panel.

32. Ms Mond-Wedd confirmed that she relied on the statutory ground of misconduct alone, although lack of competence was pleaded within the Allegation.

33. Ms Mond-Wedd also relied on the following standards being applicable in this case:

Standards of Proficiency for Social Workers (January 2017)

2. be able to practise within the legal and ethical boundaries of their profession

2.2 understand the need to promote the best interests of service users and carers at all times

2.3 understand the need to protect, safeguard, promote and prioritise the wellbeing of children, young people and vulnerable adults

3. be able to maintain fitness to practise

3.1 understand the need to maintain high standards of personal and professional conduct”

HCPC Standards of Conduct, Performance and Ethics and Standards (January 2016)

1. Promote and protect the interests of service users and carers

Treat service users and carers with respect

1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

Maintain appropriate boundaries

1.7 You must keep your relationships with service users and carers professional.

Social media and networking websites

2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.

Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

34. Ms Mond-Wedd submitted that the Registrant’s conduct was a breach of Service User A’s privacy and was inappropriate. In particular, she submitted that the actions of the Registrant, in making contact with a previous service user after she had ceased being her social worker, were unprofessional.

35. Ms Mond-Wedd also submitted that the Registrant was aware of Service User A’s past experiences, including her vulnerabilities and trauma she had encountered. She suggested that the Registrant ought to have known that making contact with Service User A could have ‘stirred up’ old feelings. She confirmed, however, that there was no evidence to suggest that the Registrant was aware that Service User A had recently made a request to access her social services file.

36. In relation to misconduct, the Panel considered Roylance v GMC (No 2] [2000] 1 AC 311 as follows:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a... practitioner in the particular circumstances.”

37. The Panel agreed that each of the standards referred to by the HCPC above was engaged, and that the Registrant fell seriously short of these expectations.

38. The Panel also considered that the Registrant’s behaviour was inappropriate and unprofessional. The Panel considered that the Registrant’s conduct in contacting a past service user, who was vulnerable, could have a negative emotional impact. It appeared that the behaviour of the Registrant was seemingly rooted in her own desire to validate her past decision-making as a social worker, rather than placing the interests of the service user first.

39. In all the circumstances, the Panel considered that the Registrant breached professional boundaries, which fell far short of what would be expected in the circumstances, and the Registrant’s actions amounted to misconduct.

Decision on Impairment

40. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct.

41. Ms Mond-Wedd made brief submissions that the issue of impairment was a matter for the Panel’s own judgment. She submitted, however, that the evidence in this case supported a finding of impairment on both the personal and public components.

42. The Panel accepted the advice of the Legal Assessor. He reminded the Panel of the following two components:

The ‘personal’ component: the current competence and behaviour of the individual registrant.

The public component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

43. The Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the Social Work profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and or

d) …”

44. The Panel first considered the personal component. In doing so, the Panel carefully considered the handwritten statement of the Registrant and her email dated 23 August 2018.

45. The Panel considered that the Registrant had demonstrated significant insight into her conduct. She made full admissions and was very remorseful for her actions. She indicated that she had reflected on her actions in relation to the impact on Service User A, apologised to her in her statement, and took full responsibility for her behaviour. The Registrant also recognised that her personal situation was not a justification for her inappropriate conduct.

46. The Panel considered the issue of remediation and the risk of repetition. The Panel considered that the Registrant’s conduct is remediable. The Panel acknowledged that the Registrant’s conduct arose at a time when the Registrant was experiencing particularly acute personal difficulties. It is likely that those personal difficulties contributed to the Registrant’s poor judgment in deciding to make contact with a previous service user when it was wholly inappropriate to do so. In light of these unique and unusual circumstances, coupled with the Registrant’s good insight and genuine remorse, noted above, the Panel considered that the misconduct found proved is unlikely to be repeated.

47. Accordingly, the Panel considered that the Registrant is not currently impaired in relation to the personal component.

48. The Panel considered that the Registrant is currently impaired on the public component. It considered that a finding of impairment is necessary on this ground in order to uphold proper professional standards and public trust and confidence in the profession. The Panel considered that the public would be concerned, in light of the Registrant’s misconduct, if such a finding were not made. The public expects social workers to act within their professional code and not to behave in either an unprofessional or inappropriate way, as the Registrant did in this case, particularly where a social worker ought to have known that the service user was likely to be distressed by unsolicited contact from the social worker who had such deep involvement in her traumatic history.

HCPC recusal application in relation to Mrs Shelley, the Registrant Panellist

49. Following the Panel handing down the decision in relation to facts, statutory ground and impairment, and before hearing any submissions in relation to sanction, the Panel was informed that there had been a previous substantive hearing which took place on 2-3 August 2018 in relation to the same Registrant. That decision related to an allegation of dishonesty which was found proved, resulting in the statutory ground of misconduct being made out, as well as the Registrant being found to be impaired. The sanction imposed was a 12-month Suspension Order.

50. It is regrettable that at this stage of the proceedings, it became apparent that the Registrant Panellist, Mrs Pauline Shelley (in this case) had also been the Registrant Panellist in relation to the Registrant’s previous case.

51. Mrs Shelley made clear on the record that she did not recall that she had been the Registrant Panellist on the previous case until she saw her own name on the front page of that decision when it was presented to her; a decision which she did not read. At no stage prior to the decision on facts, statutory ground or impairment did she recall that she had sat on the Registrant’s previous case.

52. Ms Mond-Wedd submitted that there were three options for the Panel to consider as follows:

i. To continue with the case. Ms Mond-Wedd submitted that this was not a desirable option as she suggested that now Mrs Shelley has become aware that she was the Registrant Panellist in respect of the previous case, there may be a perception of bias in relation to any decisions she reached in relation to the sanction stage;

ii. To set aside the decision and adjourn the case for a fresh hearing. She considered this to be unnecessary as she submitted that there had not been any actual or potential bias, nor had Mrs Shelley made the connection between the two cases;

iii. To replace Mrs Shelley, the Registrant Panellist. with a new Registrant Panellists. This would require Mrs Shelley to recuse herself now. Ms Mond-Wedd said this was the HCPC’s preferred option. She submitted that although there had not been any bias, actual or perceived, this may arise in relation to future decision-making. She suggested that this was the most proportionate response, in that it avoided the need to adjourn the hearing or recall witnesses and preserved the decisions that had already been made. Further, she submitted that this approach would not give rise to any issue of prejudice on the part of the Registrant.

53. The Panel accepted the advice of the Legal Assessor. He invited the Panel to consider the key authority of Porter v Magill [2001] UKHL 67, where Lord Hope indicated that the question the Panel should ask itself is:

‘… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.

54. The Legal Assessor also provided the Panel with an example of bias in the case of R v Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119, in which Lord Hofmann was automatically disqualified from sitting on the House of Lords judicial committee because he was an unpaid director of a subsidiary of Amnesty International when the latter had intervened as a party in the proceedings, and it was found that no one should be a judge in his own cause.

55. The Legal Assessor referred to a further case of Davidson v Scottish Ministers [2004] UKHL 34, in which Lord Bingham remarked that what “…disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge's judgment”, for “In maintaining the confidence of the parties and the public in the integrity of the judicial process, it is necessary that judicial tribunals should be independent and impartial, and also that they should appear to be so”. The judge must therefore “…be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge's judgment, and must appear to be so.”

56. The Panel retired to consider its decision in the absence of Mrs Shelley, the Registrant Panellist.

57. The Panel took careful account of the legal advice and the test it had to apply pursuant to the Porter v Magill case. The Panel was satisfied that there had not been any actual or perceived bias in relation to the decisions that it had already made. Mrs Shelley simply did not make any connection between the instant case and the previous one until she was presented with the previous decision and it became apparent that her own name was on the front page.

58. As for the future, the Panel was concerned that there was a real risk that a “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” if Mrs Shelley continued as a Panellist at the sanction stage. This was because Mrs Shelley had now become aware that she had acted as the Registrant Panellist in the previous case, where she heard witness evidence and submissions. She now had an advantage over her fellow panellists owing to the additional role she had played. For example, after reading the previous decision, she might recall certain aspects of the case, potentially infecting her decision-making in relation to sanction. This would be highly undesirable and prejudicial to the Registrant.

59. Upon announcing its decision, Mrs Shelley formally recused herself.

Decision on Sanction

60. The Panel confirmed the presence of a new Registrant Panel member, Miss Suzanna Jacoby, in substitution for Mrs Pauline Shelley. The Panel then turned to the question of what sanction, if any, to impose.

61. Ms Mond-Wedd set out the approach the Panel should adopt when imposing a sanction by adopting a proportionate response, considering the mitigating and aggravating factors, and setting out the range of powers available to the Panel.

62. Ms Mond-Wedd also identified the mitigating factors as being the Registrant’s personal difficulties at the time of the Allegation, her admission to the Allegation, her remorse, and her insight.

63. Ms Mond-Wedd suggested that the aggravating factors in this case included the vulnerability of Service User A, since the Registrant would have known that she had a traumatic childhood.

64. Ms Mond-Wedd also referred the Panel to a previous decision of another panel, dated 3 August 2018. This related to a proven allegation of dishonesty against the Registrant, for which she received a 12-month Suspension Order due to expire in August 2019.

65. Ms Mond-Wedd stated that the Registrant was under investigation by the HCPC in relation to the previous matter of dishonesty when she decided to contact Service User A in September 2017, although Ms Mond-Wedd accepted that no hearing had taken place or sanction imposed in relation to the previous matter of dishonesty at that stage. That, she accepted, would have been more aggravating. In any event, she submitted that the Registrant could not be described as someone of good character.

66. The Panel accepted the advice of the Legal Assessor, who also referred the Panel to the Indicative Sanctions Policy.

67. In making its decision, the Panel reminded itself of the undated handwritten statement and the email dated 23 August 2018 provided by the Registrant. These documents assisted the Panel in considering the Registrant’s mitigation and current circumstances.

68. The Panel reminded itself that the primary function of any sanction is to address public safety from the perspective of the risk which the Registrant concerned may pose to those who use or need her services. However, in reaching its decision, it gave appropriate weight to the wider public interest, which includes:

• the deterrent effect to other registrants;

• the reputation of the profession concerned; and

• public confidence in the regulatory process.

69. The Panel was also mindful that when deciding what, if any, sanction to impose, it should apply the principle of proportionality, considering whether the chosen sanction:

• is an appropriate exercise of the Panel's powers;

• is a suitable means of attaining the degree of public protection identified by the Panel;

• takes account of the wider public interest, such as maintaining public confidence in the profession;

• is the least restrictive form of public protection;

• meets that degree of public protection, is proportionate in the strict sense, and strikes a proper balance between the protection of the public and the rights of the registrant.

70. The Panel considered the aggravating and mitigating features of this case.

71. Aggravating features included:

• Conduct which involved contacting a vulnerable service user whom the Registrant knew had a traumatic early life;

• The Registrant was under investigation for an allegation of dishonesty when the current Allegation was alleged, and this aspect was an aggravating factor. The Panel, however, reminded itself that the type of previous conduct was dissimilar to the present conduct, and there was no evidence that there was a pattern of the Registrant contacting previous Service Users. This aspect was not therefore an aggravating factor.

72. Mitigating features included:

• An incident which was isolated and/or limited in nature;

• Acute personal difficulties experienced by the Registrant at the time of the Allegation;

• Full admissions/responsibility made to the Allegation, and she did not seek to justify her actions;

• Genuine remorse expressed;

• Significant insight demonstrated.

73. The Panel considered each sanction in turn, starting with the least restrictive. It bore in mind the principle of proportionality and balanced the need to protect the public against the right of the Registrant to practise her profession.

74. The Panel first considered taking no action, but concluded that this would be inappropriate because it would not satisfy the public interest.

75. The Panel then considered whether to make a Caution Order.

76. The Panel reminded itself of the Indicative Sanctions Policy in relation to caution orders, which states that:

“28. A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight

29. At the Panel’s discretion, a caution order may be imposed for any period between one and five years. In order to ensure that a fair and consistent approach is adopted, Panels should regard a period of three years as the ‘benchmark’ for a caution order. However, as Panels must consider sanctions in ascending order, the starting point for a caution is one year and a Panel should only impose a caution for a longer period if the facts of the case make it appropriate to do so. A Panel’s decision should specify the duration of any caution order it imposes and its reasons for setting that duration.”

77. The Panel considered that a Caution Order is an appropriate and proportionate sanction in this case. In reaching this conclusion the Panel relied on its earlier findings, namely that the events arose at a time when the Registrant was experiencing particularly acute personal difficulties and that it was likely that those personal difficulties contributed to the Registrant’s poor judgment in deciding to make contact with a previous service user. Further, the Panel reminded itself that the Registrant had also demonstrated good insight and genuine remorse, and the misconduct found proved is unlikely to be repeated.

78. In view of this, the Panel considered that a Caution Order sufficiently satisfies the public interest in this case. It provides a deterrent effect to other registrants, maintains the reputation and respect for the social work profession, and upholds public confidence in the regulatory process.

79. The Panel next considered the length of the Caution Order. The Panel considered that a term of 1 year was an appropriate and proportionate period. The reason for this is that the Panel found impairment on the public rather than the personal component. A period of 1 year is a sufficient period to mark the misconduct in the unique and mitigating circumstances of this case.

80. The Panel next considered the imposition of a Conditions of Practice Order. As the Panel determined that the Registrant was unlikely to repeat the behavior, a Conditions of Practice Order was therefore unnecessary and disproportionate. The Panel did not consider that meaningful practice restrictions could be imposed to address the misconduct found proved. For all these reasons, and given that a Caution Order satisfies the public interest, the Panel did not consider a Conditions of Practice Order to be an appropriate or proportionate sanction in this case.

81. The Panel next considered whether a Suspension Order would be appropriate in this case. The Panel concluded that this was a disproportionate sanction in the circumstances, given that the conduct was unlikely to be repeated and a Caution Order was sufficient to satisfy the public interest.

82. Accordingly, the Panel imposed a Caution Order for a period of 1 year.

Order

The Registrar is directed to annotate the Register entry of Miss Nichola Jane Evans with a caution which is to remain on the Register for a period of one year from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Miss Nichola Jane Evans

Date Panel Hearing type Outcomes / Status
29/07/2019 Conduct and Competence Committee Review Hearing Struck off
03/06/2019 Conduct and Competence Committee Final Hearing Caution