Mrs Delali Kokui Aidam-Fiawoo

Profession: Social worker

Registration Number: SW38401

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 25/06/2019 End: 17:00 26/06/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

(As amended at the commencement of the hearing)

Whilst registered as a Social Worker:

1. On 11 December 2017, you did not attend Person A's fitness to practise hearing to give evidence when you were under an order of the Conduct and Competence Committee, dated 4 December 2017, to do so, when you:

a. did not have a reasonable excuse for not attending; and / or

b. did not provide sufficient information and / or supporting evidence to the HCPC for your non-attendance.

2. Your action at paragraph 1 amounts to misconduct.

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

Finding

ORDER: That the Registrar is directed to suspend the registration of Mrs Delali Kokui Aidam-Fiawoo for a period of 6 months from the date this Order comes into effect.

Order

Preliminary Matters

Application to Amend the Allegation

1. There was an initial application by the HCPC to amend the particulars of the Allegation. This was a minor amendment which did not alter the substance of the allegation and there was little or no prejudice to the Registrant in allowing it.

2. The Registrant consented to the amendment, having been provided with notice of the same on 21 February 2019.

3. Having accepted the advice of the Legal Assessor, the Panel granted the application. The particulars of Allegation set out above is the amended Allegation.

Documentation

4. The Panel has been provided with a substantive bundle of documents which runs to 138 pages from the HCPC.

5. The Panel has also seen the Registrant’s two page submissions / statement.

6. The Registrant was not present on the second day of the hearing, due to a pre-arranged medical appointment. The Panel has been provided with two letters confirming the appointment, one from her GP dated  18 June 2019 and the other from a hospital confirming the appointment.


Background

7. The Panel has not heard any oral evidence on behalf of the HCPC, but has seen a witness statement from EM, who is a Legal Assistant with Kingsley Napley LLP.

8. The Registrant is a Social Worker. She was employed by Somerset County Council between January 2015 and July 2016. She moved to her new employer, North Somerset Council in July 2016.

9. In November 2016, Kingsley Napley were instructed on behalf of the HCPC to undertake an investigation into Person A’s fitness to practise who was employed by Somerset County Council. As part of that investigation, the Registrant was identified as a witness. She was the main witness, as she was the internal Investigating Officer, who produced the investigation report for Person A’s employer. As a result, contact was made with the Registrant to obtain a statement to use in the HCPC’s proceedings in relation to Person A.

10. A witness interview took place on 26 January 2017 by telephone. Thereafter, however, the Registrant’s engagement with the process deteriorated. The Registrant returned an amended statement on

13 April 2017. A further amended statement was sent to the Registrant on 28 April 2017. Thereafter, the Registrant was chased server times for a further response, both by the HCPC and by Kingsley Napley.

11. A letter dated 31 May 2017, was sent by the Case Manager to the Registrant, chasing the return of the amended statement. It contained the following:

‘I would only remind you of your duty as a registered Social Worker to comply with the Standards of conduct, performance and ethics, which states at 9.6 that:

 “You must cooperate with any investigation into your conduct or competence, the conduct or competence of others, or the care, treatment or other services provided to service users.”

I appreciate that this is a lengthy and at times stressful process and I thank you for your assistance thus far. As a registrant you have a duty to assist in our investigation and I would encourage you to do so as it helps us to fulfil our duty of protecting the public.’

12. Further contact was made on the Registrant’s work telephone on 28 June 2017, regarding her amended statement and the final hearing. The Registrant was informed that she was the main witness who could “speak to the allegations”. The telephone file note records the Registrant as saying that she did not have the time to spend three hours reviewing the records again, given her full time role and family commitments. She states that she is being treated “a little unfair” and accuses Kinglsey Napley of “harassing her”. The Registrant repeated this allegation in her oral evidence.

13. In her oral evidence, the Registrant challenged the file note for this conversation. She gave evidence that she was being asked for records from Somerset County Council which were very difficult for her to access. She also identified a health issue.

14. This telephone contact was followed up by an email, also on 28 June 2017. It was explained that some outstanding questions were removed from her statement and she was requested to sign the final version of her statement.

15. On 12 July 2017, the Registrant left a voicemail regarding her statement. A telephone conversation took place between the Registrant and KR of Kingsley Napley, discussing amendments to the statement, on 13 July 2017. The Registrant is recorded in the file note as stating that she would not be able to attend the hearing, due to her geographical location and childcare issues. The statement was resent to the Registrant for signing on the same day.

16. There were further chase emails and letters throughout July and August 2017. The Registrant sent an email on 27 July 2017, advising that she was out of the county, due to a family emergency. The Registrant was informed on 31 July 2017 that the final hearing was scheduled for between November 2017 and February 2018. The Registrant was asked for any dates to avoid which would prevent her from attending the hearing.

17. After further correspondence on 7, 11 and 14 August 2017, the Registrant requested an update on what was outstanding on 15 August 2017. The statement was resent to the Registrant on 17 August 2017. The statement, and final hearing were discussed by telephone on 22 August 2017. The file notes record the Registrant as saying that she: “would find it hard to guarantee when she would be free” and expressed the view that she “…wished she had never got involved in the matter.”

18. The Registrant’s statement was chased again on 23 August 2017. Eventually, a signed witness statement was obtained from the Registrant on 24 August 2017.

19. On 30 August 2017, the Registrant was informed that the final hearing would take place between 11 and 13 December 2017. The Registrant was required to attend on 11 December 2017. The Registrant hence had over 3 months’ notice of the final hearing date and her need to attend.

20. Thereafter, the Registrant did not engage with the HCPC or Kingsley Napley in relation to her attendance at the final hearing. Further correspondence was sent on 14 November 2017. The Registrant was placed on notice that a witness summons would be sought (as a last resort) unless the Registrant confirmed her attendance by  20 November 2017. This was reiterated in further correspondence on  23 November 2017. The letter reminded the Registrant that she had an obligation to assist with any investigation undertaken by the HCPC.

21. A voicemail was left on the 27 November 2017 for the Registrant and a further email was sent on 28 November 2017.

22. Finally, on 28 November 2017, the Registrant informed the Case Manager that she would not be attending the hearing. She stated that she was “not in the right frame of mind to attend the hearing” and that she could not, “provide any further assistance - she stated that we are harassing her and she is at the point that we are going to cause her to tip over.” When asked whether she would be prepared to give evidence via telephone, the Registrant explained that she “…still would not attend the hearing as she had to look after her own wellbeing.” It was made clear in the file note that the HCPC would be applying for a witness summons.

23. In oral evidence, the Registrant stated that during the telephone conversation on 28 November 2017 she had made it clear that she was unable to attend on health grounds.

24. However, the letter from the Case Manager dated  28 November 2017, regarding the earlier conversation (the same day) with the Registrant, recorded only that she had: “…alluded to the fact she is ill (however she did not elaborate any further on the specific health condition that she is suffering from).”

25. On this basis, the HCPC applied for a witness summons on 3 December 2017. The Registrant was stated to be a “crucial witness for the HCPC as she was the internal Investigation Officer who produced the investigation report for the Council. Without the evidence of this witness, the HCPC case will be solely hearsay…”

26. The application for a witness summons was agreed and the Witness Production Order was sent by special delivery post the following day on 4 December 2017 (both by post and email). The witness order set out very clearly that ignoring the order was a crime, and may lead to a fine, upon conviction, of up to £5000. The letter also states that the Registrant would be “breaking the law if you ignore the summons…”

27. Article 39(5) and (6) of the Health & Social Work Professions Order 2001, provide that a person, who without reasonable excuse, fails to comply with an order made under Article 32(2)(m) of the Order, is guilty of a criminal offence, which carries on summary condition a fine not exceeding level 5 of the standard scale.

28. A follow-up letter was sent to the Registrant on 7 December 2017, seeking confirmation of the Registrant’s attendance, to which there was no response.

29. In total, there were some 38 attempts at communication by either Kingsley Napley or the HCPC with the Registrant.

30. It was only following notification that a fitness to practise enquiry had been opened, that the Registrant then sent an email dated 19 December 2017, enclosing a letter from her GP dated 7 December 2017. There was no diagnosis or medial view / opinion, other than “I hope you can take this into account”.

31. The Panel has also seen a written statement from the Registrant. She makes the following points:

(a) She commenced her employment with North Somerset Council in July 2016 as the Lead Manager - Integrated Mental Health Team. Between January 2015 and July 2016, she undertook an internal investigation into a named social worker.

(b) The statement subsequently given to the HCPC was under “challenging personal circumstances”.

(c) She admits she did not attend the final hearing, but denies the two particulars.

(d) She advances a number of mitigating circumstances for her non-attendance.

(e) Producing the statement for the HCPC was a “huge challenge” and she struggled to complete it. She maintains that she was “…not sufficiently well enough to take part in the HCPC hearing and potentially be the cause of the end of a social worker’s career for any reason linked to my inability to contribute effectively in that environment.”

(f) The demands from the HCPC to attend the hearing “negatively impacted on her health.” She now realises she had “buried her head in the sand as an instinctive protective measure, I was not coping with any additional difficulties or challenges that came my way.”

(g) She recognises that her lack of response to the HCPC may have “exasperated the process or the situation and I regret I was not well enough at the time to have responded more positively.” She concludes that it was “beyond her control at the time” to “assist as a witness…”

32. The Registrant reiterated the points set out above in her oral evidence. She maintained that she had not seen the witness summons, as by this stage, due to her health, she was not opening correspondence.

33. When asked, how she would act differently, she gave evidence that she would have visited her GP at an earlier stage. She reiterated that it was difficult for her to access the records required from her former employer in Somerset County Council and noted that a number of managers had also left. She felt very much alone in relation to these matters with the responsibility for the Somerset County Council investigation, solely on her shoulders.

34. The Registrant maintained that her health prevented her from engaging with the HCPC or attending the hearing. She did not fail to engage, she co-operated to the extent that her health allowed and had requested “a period of grace” so that, “she could get on an even keel”. She had no intention of delaying Person A’s final hearing. At times, she also challenged the accuracy of some of some of the telephone file notes within the bundle.

35. When asked why she had not obtained any earlier medical evidence, she replied that she had communicated her health issue to the HCPC, but that this was not heard, or acknowledged. She did not think that medical evidence was required until the final letter was received. In hindsight, she admitted she should have attended at her GP earlier. She tried to self-manage her health for too long. She admitted she should have acted differently, but states she was being protective of her daughter, having regard to her health condition.

36. In answer to the Panel’s questions, the Registrant confirmed that it was her health which prevented her attending, not geographical or child care considerations. In hindsight, she should have sought guidance from her line manager. However, this had not been done at the time, as she was in a new role, (and the investigation wholly pertained to her former employer) and on reflection she had kept too strict a separation between her home and work lives, and was not coping well at the time. Some of her decision making was impaired at the time.

37. The Panel heard evidence that the Registrant had been on sick leave since September 2018 and had only worked 4 weeks in the last 12 months.


Decision on Facts

38. The Panel has heard and accepted the Legal Assessor’s advice and exercised the principle of proportionality at all times. In approaching the task of deciding the facts, the Panel has kept at the forefront of its deliberations, the importance of requiring the HCPC to prove matters against the Registrant. The standard of proof to which the HCPC is required to prove matters is the civil standard – on the balance of probabilities.

Particular 1(a) – Found Proved

39. The Registrant did not attend the final hearing on 11 December 2017 to give evidence. The Panel has seen a transcript of Person A’s fitness to practise hearing and a copy of the Conduct and Competence Committee decision. The decision of the panel in Person A’s case is in the hearing bundle. It is noted that that panel were only able to give limited weight to the witness statement of the Registrant, as this was hearsay evidence, which had not been tested in oral evidence. The Panel noted that a number of factual particulars were subsequently found not to have been proved.

40. The Panel further concluded that the Registrant did not have a reasonable excuse for not attending the final hearing of Person A’s case. The Panel took the view that a reasonable excuse in this context must take account of the very serious circumstances involved:

(a) The Registrant ignored a witness summons which could amount to a criminal offence;

(b) Her non-attendance had an impact on the fitness to practice hearing. Not only was the hearing significantly delayed, but the future career of another social worker, was to be determined at the hearing;

(c) The Registrant was a vital witness in the hearing.

41. The Panel concluded that there was no reasonable excuse why the Registrant had not attended the hearing bearing in mind the seriousness of the failings, and the fact that a witness summons had been obtained. The Panel took account of the following factors:

(a) The Registrant remained at work during the period in question throughout the summer and autumn of 2017. There was no suggestion that that the Registrant could not perform her day to day professional duties effectively throughout this period. There is an inherent contradiction between this, and the Registrant’s assertion that her health condition prevented her from engaging with the HCPC and attending the final hearing as a witness.

(b) The Panel also noted the Registrant’s evidence that she did not open correspondence from the HCPC. This is inconsistent with the fact she remained at work and is a serious omission on her part, which cannot amount to a reasonable excuse, bearing in mind the three month notice period she had been given.

(c) Whilst the Panel had sympathy for the Registrant’s health condition and problems, these were not supported by any detailed medical evidence.

(d) The medical evidence which provided was not until after the final hearing in Person A’s case, and was extremely vague.

(e) There is no evidence that the Registrant raised her health issue or the question of whether she was fit to attend Person A’s final hearing with her line manager in supervision. The Registrant’s evidence was that she had sought to separate her work / professional life. However, a witness summons, from her regulator, clearly impacted on her professional responsibilities, even if it pertained to a period with a former employer.

42. The Panel, in short did not accept all of the Registrant’s evidence. She was guarded and at times elusive. She did not give evidence in an open and transparent manner. The Panel noted that the Registrant was vague in large parts of her evidence, but claimed to be able to recall detailed telephone conversations, where they differed with the contemporaneous written accounts.

Particular 1(b) – Found Proved

43. The Panel also found Particular 1(b) proved. The Registrant failed to provide sufficient information and / or supporting evidence to the HCPC for her non-attendance at Person A’s final hearing.

44. The Panel would have expected the Registrant to have provided a far more detailed account of her health issues, the impact upon her of her attendance and a clear request for the hearing to be delayed to allow her to recover. This could have been in the form of a detailed letter or email. The Panel prefers the account as set out in the contemporaneous documentation, particularly on 28 November 2017, to the effect that although the Registrant alluded to a health condition, she did not provide any or any adequate or sufficient details to allow the HCPC to consider postponing Person A’s hearing.

45. The Panel would also have expected the Registrant to have provided supporting and corroborative evidence from both her employer and her GP, in a timely fashion, if she was unable to attend to allow the HCPC to consider, how to proceed in Person A’s case.

46. Further, what little information was provided to the HCPC (letter from GP), was not provided sufficiently in advance of the hearing to allow consideration to be given to postponing the hearing in Person A’s case. This is particularly so when the Registrant had been offered the opportunity to attend by telephone, but had rejected this offer and had been given three months’ notice of the day she was required to attend as a witness.


Decision on Misconduct

47. The Panel next considered whether the Registrant’s actions amounted to misconduct.

48. The Panel accepted the Legal Assessor’s advice on the definition of misconduct. In particular, the Panel paid regard to the definition given by Lord Clyde in Roylance v General Medical Council (No.2) [2000] 1 AC 311:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances…”

49. The Panel also had regard to the guidance in Nandi v GMC [2004] EWHC 2317, where Collins J suggested that misconduct could be defined as:

“conduct which would be regarded as deplorable by fellow practitioners…”

50. The Panel concluded having considered the evidence as a whole that this was a case where the Registrant knew the standards which were expected of her, but chose not to comply with them. The Registrant’s actions would be regarded as falling well short of what was required of a social worker in these circumstances, given her failure to engage with her regulator which may have affected the career of another social worker and which potentially involved the commission of a criminal offence. Other social workers would regard such conduct as being deplorable.

51. The Panel also concluded that the Registrant was in breach of the HCPC “Standards to conduct, performance and ethics”, dated 2016.

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

9.6 You must cooperate with any investigation into your conduct or competence, the conduct or competence of others, or the care treatment or other services provided to service users.


Decision on Impairment 

52. The Panel has had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s misconduct having regard to the HCPTS practice note “Finding that Fitness to Practise is “Impaired”” and has accepted the advice of the Legal Assessor. The Panel has also exercised the principle of proportionality.

53. The Panel is mindful of the forward looking test for impairment.

54. The Panel heard submissions on the issue of impairment from the HCPC and from the Registrant’s representative.

55. The Panel concluded that the Registrant’s current fitness to practice is impaired, having regard to both the personal and public components of impairment, for the following reasons:

(a) The Registrant’s conduct was serious and potentially amounted to a criminal offence.

(b) The Registrant offered no remorse for her non-attendance and did not appear to fully appreciate the impact her actions in not attending may have had on Person A or the outcome of that hearing.

(c) The Panel concluded there was only limited insight and remediation. There was no evidence that the Registrant had developed coping skills to manage stress in her personal and or professional life, such that there would not be a repetition of misconduct.

(d) The Registrant has provided no documentary or character evidence demonstrating any modifications in her practice, since the events in question. There is no information available from her current employer.

(e) The Registrant’s actions have brought the reputation of the HCPC, and the social work profession into disrepute, damaging public confidence in the profession.

(f) The Registrant has breached a fundamental tenant of the profession, in not cooperating with the HCPC and ignoring the witness summons which amounted to a criminal offence.

(g) The Panel also had regard to the need to uphold the proper standards of behaviour, in concluding that the public component of impairment is clearly established. The Panel concluded that confidence in the social work profession and its regulator would be undermined, if there was no finding of impairment, given the seriousness of the misconduct which has been identified.


Decision on Sanction

56. The Panel has heard submissions on sanction on behalf of the HCPC and on behalf of the Registrant. 

57. It has paid regard to the HCPC’s “Indicative Sanctions Policy” and has accepted the advice of the Legal Assessor. The Panel had particular regard to the principal of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant. 

58. The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public. The primary function of any sanction is to address public safety. However, panels should also have regard to the wider public interest and this includes the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process.  

59. The Panel has had regard to the aggravating and mitigating circumstances in this case.

60. The aggravating features are:

(a) The seriousness of the Registrant’s misconduct which amounted to a potential criminal offence;

(b) The lack of co-operation on the part of Registrant, which continued over a significant period of time and substantially delayed the final hearing in respect of Person A;

(c) The lack of insight, remorse and remediation;

(d) The Panel has concluded that the Registrant has breached a fundamental tenet of the profession.

(e) The Registrant denied the Particulars of the allegation.

61.  The mitigating features are:   

(a) The Registrant had a health condition and issues with her family / personal life at the relevant time;

(b) The Registrant is of previous good character and has an otherwise unblemished record;

(c) The Registrant has engaged in these proceedings.

62. In light of the above factors, the Panel determined that given the nature of the Registrant’s misconduct, that to take no action, make a Caution Order or a Conditions of Practice Order, would not be in the public interest, and would not retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing any of these sanctions, given the seriousness of the misconduct.

63. In addition, the Panel was unable to identify any suitable or workable conditions which could be imposed, given that the Registrant has recently resigned and is not planning an imminent return to social work.    

64. The Panel next considered whether to make a Suspension Order, and concluded that this was an appropriate sanction to both protect the public and to address the wider public interest concerns which the Panel identified. The Panel considered that the incident was serious, but is unlikely to be repeated and hence a Striking Off Order is not merited. This is in accordance with paragraph 39 of the “Indicative Sanctions Policy”.

65. The Panel further determined that the Suspension Order should be imposed for a period of 6 months. This period of suspension both marks the seriousness of the Registrant’s misconduct and allows her sufficient time for her health to recover and to take steps towards a return to practice should she wish to do so.     

66. Having arrived at an appropriate and necessary sanction, the Panel concluded that to impose the ultimate sanction of a Striking Off Order would be unnecessarily punitive and disproportionate. The Panel noted that striking off should be reserved for cases where there is no other way to protect the public and in this case the Panel determined that an adequate level of public protection could be achieved by the lesser sanction of a Suspension Order.

67. Whilst in no way seeking to bind any future review Panel, this Panel anticipates that the following matters are likely to be of assistance to any future reviewing Panel:

(a) The Registrant’s attendance at the hearing and engagement with the regulatory process; 

(b) Evidence of a detailed coping strategy for personal, professional and health issues and the measures in place to prevent them impacting on her professional responsibilities;   

(c) A written document / reflective piece of writing regarding: the Registrant’s insight into the impact of her misconduct on the profession and the regulator; what she has subsequently learnt; and how she would act differently in the future to prevent any repetition;

(d) Evidence of an up to date CPD record;

(e) Testimonials.

Notes

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest and in the Registrant’s interest. 

This Order will expire: (if no appeal is made against the Panel’s decision and Substantive Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) upon the final determination of that appeal, subject to a maximum period of 18 months.

68. The Panel heard from both the HCPC and the Registrant’s representative and took account of all the information before it. The application was not opposed by the Registrant. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Note on “Interim Orders” and reminded the Panel that the primary purpose of an interim order is protection of the public and that it is necessary to balance the interests of the Registrant with the need to protect the public.

69. The Panel is mindful that it is carrying out a risk assessment exercise. The Panel determined that that it would be wholly incompatible with its findings and with the sanction imposed to conclude that an interim order is not necessary for protection of the public or in the public interest. The Panel accordingly finds that an Interim Order is necessary on both grounds. The Panel also concluded that it was in the Registrant’s own interests for an interim order to be made. Given its findings, the Panel determined that it is appropriate that an Interim Suspension Order be imposed for a period of 18 months to cover any appeal period. When the appeal period expires this Interim Order will come to an end unless there has been an application to appeal. If there is no appeal the substantive Suspension Order shall apply.

Hearing History

History of Hearings for Mrs Delali Kokui Aidam-Fiawoo

Date Panel Hearing type Outcomes / Status
25/06/2019 Conduct and Competence Committee Final Hearing Suspended