Miss Vivienne Elmes

Profession: Social worker

Registration Number: SW10217

Hearing Type: Review Hearing

Date and Time of hearing: 13:00 27/03/2019 End: 17:00 27/03/2019

Location: Health and Care Professions Tribunal Services

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

The following allegation was found proved by a Panel of the Conduct and Competence Committee at the substantive hearing on 5 October 2018.


While registered as a Social Worker and employed by Somerset County Council, between January 2015 and 30 June 2016 you:


1. Disclosed the identity of Young Person A in an assessment report, having assured them that their identity would not be disclosed. 
2. In respect of Family B:
a) Completed a Child Permanence Report that:  
i) contained the name of another child; and/or
ii) did not contain an assessment of the child's needs; and/or 
iii) did not contain an assessment of the mother; and/or
iv) did not record key decisions in respect of the child's care.
b) Following a Children Looked After (CLA) review on 24 June 2015 did not carry out a follow up action to update the care plan;
c) In respect of a CLA review on 14 September 2015 did not:
i) update the care plan by 28 September 2015; and /or
ii) arrange a permanency planning meeting
d) Did not update the record of the legal status of Child B on 15 September 2015 when an interim Care Order was made.
3. In respect of Family C:
a) Did not update the Child Protection Plan between 3 June and 22 November 2015;
b) Did not update the Chronology between 12 March and 22 November 2015;
c) Did not undertake and/or record core group meetings for July and August 2015;
d) Not proved
4. In respect of Family D:
a) Copied a colleague's document resulting in a Public Law Outline letter dated 16 October 2015 that contained incorrect information about the case including:
(i) the incorrect name of the Service User; and/or 
(ii) the incorrect address of the Service User; and/or 
(iii) the incorrect name of the social worker to contact.
b) Did not have permission from Colleague A to use and/or copy their letter.
c)Did not update the Child Protection Plan between June and September 2015;
d) Not Proved
e) Did not complete a parenting assessment between June and July 2015 as required.
5. In respect of Family E:
a) Did not update the Child Protection Plan between 22 May and September 2015;
b) Did not undertake and/or record core group meetings in June, July or October 2015;
c) Did not update the Chronology between 30 March and 29 November 2015.
6. In respect of Family F:
a) Did not update a Child In Need Plan between 24 July and 20 October 2015;
b) Submitted the same plan for 20 October 2015 as was submitted on 24 July 2015;
c) Not Proved
d) Did not record Child in Need meetings and/or multi-agency working between 28 July 2015 and 30 November 2015.
7. In respect of Family G:
a) Did not update the Chronology from January to 22 November 2015;
b) Not Proved
c) Not Proved
d) On 18 August 2015, sent inappropriate and/or inaccurate information to a service user.
8. In respect of Family H:
a) Prepared a Section 7 report on the wrong form; 
b) Did not complete a Section 7 report within the court deadline.
9. In respect of Family I:
a) Did not record adequate and/or appropriate information in case records;
b) Did not make a referral to Barnados for support in a timely manner.
10. In respect of disclosures made by Child K raising safeguarding concerns:
a) Not Proved
b) Did not report your findings promptly to a manager so that further safeguarding action could be considered.
11. Your actions as described at paragraphs 1 to 10 constitute misconduct and/or lack of competence.
12. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary matters

Service

1. The Panel was satisfied by the evidence before it the Registrant was notified of the date and time of the hearing via a letter dated 25 February 2019 (the “Notice of Hearing”) which was sent by first class post to her registered postal address and email address and accordingly the HCPC had discharged its duty to serve documentation on the Registrant in accordance with the Health and Social Work Professions Order 2001 (the Order).
 

Proceeding in Absence of the Registrant

2. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant. She outlined the chronology of the matter, noting that a substantive hearing took place on 2 – 5 October 2018 and resulted in a Suspension Order being imposed for a period of 6 months. The Presenting Officer invited the Panel to exercise its discretion to proceed with the case in the absence of the Registrant, pointing out that the Registrant is under a professional burden to engage with the proceedings but had confirmed in writing by emails dated 25 February 2019 and 19 March 2019 that she did not wish to participate in the proceedings. The Registrant had not sought an adjournment, or to attend the hearing via alternative means, or expressed any desire to be represented at the hearing. The Presenting Officer confirmed that there was an expectation that regulatory matters would be dealt with expeditiously and there was no indication that, if the matter was adjourned, she would engage in future.

3. The Panel noted the provisions of the HCPTS practice note in respect of proceeding in absence. There had been no request for an adjournment received, nor any interest expressed by the Registrant in providing evidence via video or telephone link which was offered. The Registrant had not indicated any desire to be represented at the hearing, and had clearly indicated her desire not to engage with her regulator in this matter on a number of occasions and over a period of time. Included in the Notice of Hearing was confirmation that the hearing could proceed in the absence of the Registrant. She was therefore on notice that the hearing could proceed.

4.   The Panel was satisfied that it was appropriate for it to exercise its discretion to hear the matter in the absence of the Registrant.  Although proceeding in absence may disadvantage the Registrant, the Panel was satisfied that she was aware of the hearing and had chosen not to be represented or engage with the regulator. There was no evidence to suggest that the Registrant would attend or even engage in the event that the matter was adjourned to an alternative date. The Panel considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant. It was satisfied that the Registrant had voluntarily absented herself from the proceedings.

Background

5.   The HCPC received a referral in October 2016 from Somerset County Council (“the Council”) regarding the Registrant. She had been employed as a Social Worker in the children’s safeguarding team. The concerns centred around failures to maintain adequate records or communicate appropriately and related to a number of families over a sustained period of time.

6.   The Substantive Hearing took place in October 2018, proceeding in the absence of the Registrant. A number of Particulars were found, of which four were found to amount to misconduct and the rest to lack of competence. The Panel determined that the Registrant’s fitness to practice was impaired and that although the shortcomings identified were capable of remediation, the Registrant had not provided any evidence of remediation. The Panel concluded that she posed a risk to the public. It determined that the appropriate sanction was a Suspension Order of 6 months duration and indicated that a reviewing Panel may be assisted by:
 
 6.1  the Registrant’s attendance at the review hearing; 
 6.2   her reflection on the particulars found proved; 
 6.3   evidence of her ongoing professional development as a social   worker;
 6.4  up to date testimonials from any employer, whether paid or unpaid.

Decision

7.   The Panel carefully considered the information provided to it in the papers and the oral submissions on behalf of the HCPC.  It noted that the HCPC’s position was that a Striking Off Order was appropriate and available to the Panel by virtue of the finding of misconduct. The Presenting Officer highlighted that there was no evidence of insight or remediation as the Registrant had deliberately disengaged from the regulatory process and the HCPC therefore submitted that the Registrant continued to pose a risk to the public. The Registrant had indicated her desire to no longer be a registered social worker and that it was inappropriate to keep the Registrant in a review cycle given her lack of engagement in the process. In the event that the Panel did not find that a Striking Off Order was appropriate, the Presenting Officer submitted that the most appropriate Order would be a Suspension Order given that it would not be possible to formulate proportionate and workable Conditions of Practice to address the risk posed to the public in respect of the Registrant.

8.   The Panel accepted and applied the advice received from the Legal Assessor in relation to the proper approach in determining this matter. It had regard to the policies adopted by HCPC in relation to Fitness to Practice proceedings and Indicative Sanctions and also noted and applied the HCPTS’s guidance on Article 30 reviews and sanction orders and unrepresented registrants. 

9.  The Panel reminded itself that Suspension Orders are imposed only when there is either a serious and on-going risk to service users or the public from the Registrant’s lack of professional knowledge or skills, conduct or unmanaged health problems; or the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the Registrant were allowed to remain in practice on an unrestricted basis. The review process to be followed by a Panel when conducting an Article 30 review is the same as for other fitness to practise proceedings and is not a mechanism for ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. 

10.   The purpose of this first mandatory review was to consider whether the Registrant’s fitness to practise remains impaired and if so, whether the existing order or another order needs to be in place to protect the public. The key issue to be addressed is what, if anything, has changed since the current order was imposed.  The factors to be taken into account include:

10.1   the steps which the Registrant has taken to address any specific  
failings or other issues identified in the previous decision;

10.2   the degree of insight shown and whether this has changed;

10.3   the steps which the Registrant has taken to maintain or improve   her professional knowledge and skills;

10.4  whether any other fitness to practise issues have arisen;

10.5  whether the Registrant has complied with the existing order.

11.   The Panel’s task is to consider whether the concerns raised in the original finding of impairment had been sufficiently addressed, and the burden is on the Registrant to demonstrate that she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently.

12.   This was the first review of the Suspension Order imposed upon the Registrant and the Panel noted that it had a duty to consider the safety of the public when determining whether the Registrant poses a risk if allowed to return to unrestricted practise. The Panel was aware of the need for its decision to be proportionate. 

13.  The Panel found that the risks identified by the previous panel considering this matter have not materially changed. The Registrant had provided limited comments on the circumstances giving rise to the concerns. Having conducted an assessment of the risks identified in this matter, the Panel was satisfied that the Registrant could continue to pose a risk to the public if allowed to return to unrestricted practise at this point and therefore her fitness to practice remains impaired.

14.   Further, a reasonable and well-informed member of the public would be concerned if no action was taken to restrict the Registrant’s practise - public confidence in the profession and the regulatory process would be seriously undermined given the nature and gravity of the Registrant’s shortcomings and her failure to engage with the regulatory process. 
 
15.   The Panel was satisfied that an Order was still necessary and proportionate with regard to the protection of the public and in the wider public interest. It did not believe that an adequate level of protection could be achieved through the imposition of a Conditions of Practice Order. The Panel also concluded that conditions would be insufficient to address the issue of trust and confidence in the profession and the requirement to uphold the integrity of the regulatory process. 

16.   The Registrant has repeatedly stated in her email correspondence with the HCPC that she no longer wishes to be a registered Social Worker. The Panel accepted this and noted that she was not able to voluntarily remove herself from the register at this stage of the regulatory process. Given the complete lack of engagement in the regulatory process by the Registrant for a sustained period, and her well-articulated and repeated desire to no longer be a registered Social Worker, the Panel considered whether, as advocated by the Presenting Officer, it should substitute a Striking Off Order for the Suspension Order imposed at the final hearing. Although a Suspension Order had been appropriate initially to try to facilitate the Registrant’s return to the profession, and it would be unusual for a Striking Off Order to be made at the first review of a 6 month Suspension Order. However the Registrant’s continued lack of engagement in the process and repeated requests to be removed from the regulatory process led the Panel to give serious consideration to whether it was appropriate to maintain the Registrant in the review process in the circumstances. 

17.   Article 29(6) of the Order was carefully considered by the Panel, being conscious that a Striking Off Order is prohibited in cases of lack of competence unless the Registrant has been continuously suspended, or subject to a conditions of practice order, for a period of no less than two years immediately preceding the date of the decision. However, it noted that there had been a finding of misconduct in respect of four particulars and considered that it was entitled to exercise it’s discretion to impose a Striking Off Order in the interest of the public, the profession and the Registrant. 
18.   In the particular circumstance of this case, the Panel was satisfied that, notwithstanding the fact that the Registrant’s conduct was capable of remediation, and that the determining panel had imposed a short suspension to help facilitate her return to the profession, retaining the Registrant in the review cycle would be contrary to the public interest, would undermine confidence in the regulator and would be detrimental to the Registrant. 

19.   The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

The Registrar is directed to strike the name of Vivienne Elmes from the Register on expiry of the existing order.

Notes

The order imposed will apply from 2 May 2019, if no appeal is made.

Hearing History

History of Hearings for Miss Vivienne Elmes

Date Panel Hearing type Outcomes / Status
27/03/2019 Conduct and Competence Committee Review Hearing Struck off
02/10/2018 Conduct and Competence Committee Final Hearing Suspended