Mr John Tinashe Makombe

Profession: Social worker

Registration Number: SW95686

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 01/05/2019 End: 17:00 02/05/2019

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

Panel: Conduct and Competence Committee
Outcome: Caution

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 Final Hearing:

 

Whilst registered as a Social Worker working for Milton Keynes Council,

you:

1) On or around 27 September 2017, you stated during a discussion with Colleague A that you had visited Service User A on or around 27 September 2017, which was not the case.

2) On or around 28 September 2017, you confirmed during a meeting with Colleague A and Colleague B that you had visited Service User A on or around 27 September 2017, which was not the case.

3) Your actions described in paragraphs 1-2 were dishonest.

4) The matters described in paragraphs 1-3 constitute misconduct.

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

 

 

Finding

Preliminary Matters 

Application to amend particulars

1. At the beginning of the hearing, Ms Mond-Wedd, for the HCPC, applied to amend particulars 1 and 2. She submitted that there would be no unfairness to the Registrant, as the amendments would not materially change the substance of the allegation, which was that the Registrant had told Colleague A, his line manager, that he had visited a service user when he had not, and which he accepted. The amendment was to add the words ‘on or around’ to the dates of the purported visit to Service User A and the supervision session with Colleague A, as there was some confusion within Colleague A’s statement and the documentation about the precise date. Further, Ms Mond-Wedd submitted that the Registrant had been informed of the HCPC’s intention to seek the amendment and been provided with details of the proposed amendments by letter dated 31 January 2019.

2. Mr Waldock, on behalf of the Registrant, did not object to the application.

3. Having heard and accepted the advice of the Legal Assessor, the Panel decided to allow the proposed amendments. It was of the view that the amendments did not materially change the substance of the allegation, they simply allowed for the situation for the dates of the purported visit to Service User A and supervision session to be more flexible, namely between 25 and 28 September 2017.

4. During the course of her evidence, Colleague A clarified a number of areas in respect of dates, and types of communication. She explained that the last formal supervision with the Registrant was on 26 September 2017. On 27 September 2017 she had had a discussion with the Registrant, not a supervision session; and it was during that discussion that the Registrant told her that he had visited Service User A that day (27 September 2017). Some of the confusion appeared to stem from the fact that she had used a formal supervision template, entitled ‘Record of Personal Supervision’ to document her discussion of 27 September 2017 with the Registrant.

5. As a result, Ms Mond-Wedd applied to further amend the particulars. In relation to particular 1, she applied to amend the date of 26 September 2017 to 27 September 2017, and the date of 25 September 2017 to 27 September 2017. She also applied to amend the type of communication from ‘supervision session’ to ‘discussion’. In relation to particular 2, Mond-Wedd applied to amend the date of 25 September 2017 to 27 September 2017. She submitted that the mischief of the Allegation was the same and that there would be no unfairness to the Registrant.

6. Mr Waldock, on behalf of the Registrant did not object to the application.

7. The Panel, having heard and accepted the advice of the Legal Assessor, decided to allow the late application to amend the allegation. It did not consider that there was any unfairness to the Registrant, noting that the amendments accorded with his case, and the substance of the allegation remained the same.

Background

8. The Registrant is a Social Worker registered with the HCPC. At the material time he was an agency Social Worker who, in March 2017, had been placed within the Multi Agency Safeguarding Hub (MASH) at Milton Keynes Council (the Council). He worked with children up to the age of 18 years old within the area of Milton Keynes. His role was to complete children and families’ assessments, section 47 enquiries, and work as a duty Social Worker when new referrals were received within MASH. In his role, the Registrant would receive monthly supervision with his line manager, Colleague A, to discuss caseload and other relevant matters.

9. On 11 September 2017, a referral was received by MASH for Service User A. The Registrant was allocated the case on 12 September 2017. It was a family of two young children and there were concerns about domestic violence and so the role for MASH was to carry out child protection investigations and identify appropriate support for the family. The role for the Registrant, as the allocated Social Worker, was to conduct an assessment of the family, speak with each child away from their parents (when age appropriate), to gather their views and gather information from their doctor and school, in order to be able to recommend support for the family and any child protection needs.

10. Due to the Registrant’s domestic circumstances, it had been agreed that the Registrant would move teams within the Council, at the end of September 2017, to allow him more flexibility. On 26 September 2017 he had his last formal supervision with Colleague A. During this supervision, it was discussed that the Registrant had two outstanding cases to be completed by Friday (29 September 2017).

11. On 27 September 2017, it was brought to Colleague A’s attention that the Registrant had had an excessively long lunch break and had told the Customer Liaison Officer (CLO) that he was visiting Service User A. On the Registrant’s return to the office, Colleague A had a discussion with the Registrant. During this discussion, it is alleged that the Registrant told Colleague A that he had visited Service User A.

12. On 28 September 2017, Colleague A spoke to Service User A (the mother), who told her that no visit had taken place the day before, and the last visit by the Registrant had been two weeks earlier (14 September 2017).

13. On 28 September 2017, as a result of what Service User A told Colleague A, Colleague A spoke to her manager, Colleague B. A meeting was held with the Registrant, Colleague A and Colleague B that day (28 September 2017). At that meeting, it is alleged that the Registrant confirmed that he had visited Service User A on 27 September 2017, but then, when told that Colleague A had contacted the Service User, admitted that he had not visited Service User A.

Decision on Facts

14. On behalf of the HCPC, the Panel heard live evidence from Colleague A, who was a Senior Practitioner within MASH. Colleague A had responsibility for supervising two Social Workers, one of whom was the Registrant, and with whom she held monthly formal supervision sessions. The Panel was also provided with a documentary exhibits bundle, which included the personal supervision records for the Registrant between 26 April 2017 and 26 September 2017, completed by Colleague A; and the induction records for the Registrant, dated 13 March 2017.

15. On behalf of the Registrant, the Panel was provided with a bundle of documents which included his initial response letter; testimonials from a number of placements where the Registrant had been placed by his agency; and a chronology of events detailing his account. The Registrant also gave evidence on oath.

16. The Panel heard and accepted the advice of the Legal Assessor. In respect of the facts, the Panel understood that the burden of proving each individual fact is on the HCPC, and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

17. The Panel considered the evidence of the witnesses.

18. The Panel considered that Colleague A was a credible witness who was doing her best to assist the Panel, but it was mindful that there were some inaccuracies in what she had recorded. As a result the Panel found Colleague A to be confused about dates. Some of her confusion stemmed from her witness statement not always being in accordance with the contemporaneous supervision notes, and some of which stemmed from her having inaccurately recorded dates in the minutes for the meeting of 28 September 2017. The Panel found her to be open about those errors, and it considered that she had been consistent in her narrative of events and the order of them.

19. In respect of the Registrant, the Panel found him to be a credible witness who was open about his actions on the relevant dates.

Particular 1
On or around 27 September 2017, you stated during a discussion with Colleague A that you had visited Service User A on or around 27 September 2017, which was not the case

20. The Panel finds particular 1 proved.

21. The Panel had regard to the record which Colleague A had made of the discussion between her and the Registrant on 27 September 2017, a copy of which had been provided to the Panel. This had been documented on a ‘Record of Personal Supervision’ template, Colleague A had clarified in her oral evidence that it was not a supervision session, but a discussion. The Panel was satisfied that Colleague A had made the record shortly after the discussion.

22. In the record of this discussion, it states that the Registrant ‘contacted CLO to advise he was visiting Child A family.’ The record then states that Colleague A questioned the Registrant about the need to visit Service User A, given that the previous day in supervision he ‘did not advise of further visits required’. The record states that the Registrant needed to clarify information with the mother and also needed to see the child.

23. At the outset of the hearing, the Registrant admitted particular 1. In evidence, he admitted that he had lied to Colleague A in the discussion when he said that he had visited Service User A. He explained that he had been really upset by an earlier discussion with Colleague A that day about being required to complete his outstanding write ups by 4pm, as he would be covering ‘Duty’ for the next two days. He felt that he was being pressured to finish quickly in order to cover the ‘Duty’. He said that he was angry and upset as he felt he was being treated unfairly, so he took a lunch break lasting 1 ½ hours, telephoning the CLO to say that he was visiting Service User A. The discussion with Colleague A occurred on his return to the office on 27 September 2017 and was somewhat confrontational. In the heat of the moment he said that he had gone to visit Service User A, and when asked why, he had said that he needed to return as the child had been asleep on his previous visit. The Registrant subsequently confirmed that the child had not been asleep on his previous visit.

24. In light of the evidence of Colleague A, her contemporaneous record on 27 September 2017 and the Registrant’s admissions, the Panel was satisfied to the required standard that Particular 1 is proved.

Particular 2
On or around 28 September 2017, you confirmed during a meeting with Colleague A and Colleague B that you had visited Service User A on or around 27 September 2017, which was not the case.

25. The Panel finds particular 2 not proved.

26. The Panel considered that the only HCPC documentary evidence of the meeting of 28 September 2017, between the Registrant, Colleague A and Colleague B (the third person who had been at the meeting on 28 September 2017) was the typed record prepared by Colleague A using a ‘Record of Supervision’ template. In respect of the specific paragraph (recording that Colleague B had asked the Registrant to confirm that he had needed to visit Service User A again), Colleague A admitted in her oral evidence that there were a number of inaccuracies within this paragraph in respect of dates and type of communication.

27. Colleague A’s statement makes no mention of the Registrant confirming, in a meeting on 28 September 2017 to Colleagues A and B, that he had visited Service User A on 27 September 2017. In her oral evidence, the Panel noted that Colleague A could not recollect all of the details of the meeting, saying that Colleague B would have asked questions in the context of the visit. The Panel had no evidence either in a statement or in person from Colleague B.

28. The Registrant denied that he had confirmed in the meeting of 28 September 2017 that he had visited Service User A. He told the Panel that the nature of the questioning was that Colleague B had asked him whether he had said to Colleague A that he had gone to visit the child, to which he had said yes. There had been follow up questions where he was asked whether he had visited the child where he had said he had not, and explained what had happened. The Panel considered that this account was credible. The Registrant stated that he had not been provided with either the handwritten or typed record of the meeting to check or sign for accuracy. He had first seen it as part of the HCPC’s information.

29. In all the circumstances the Panel did not consider that the HCPC had adduced sufficiently reliable and accurate information to satisfy it to the required standard that the Registrant had confirmed in the meeting of 28 September 2017 with Colleagues A and B, that he had visited Service User A.

Your actions described in paragraphs 1 and 2 were dishonest.

30. The Panel finds particular 3 proved in respect of particular 1.

31. The Registrant described himself as having told a lie. The Panel was satisfied that the Registrant knew that he had not seen Service User A, and when challenged by Colleague A about the need to see the family, he lied to her about having gone and the reason for going. The Panel was satisfied to the required standard that by the standards of ordinary and decent people, this would be considered dishonest.

Decision on Statutory Grounds

32. The Panel next considered whether the matters found proved in particular 1 and particular 3 amounted to misconduct and if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.

33. The Panel considered the submissions made by Ms Mond-Wedd on behalf of the HCPC. She identified a number of the standards which she submitted the Registrant had breached, and that dishonesty was clearly a fundamental tenet of the profession. The Panel also considered the submissions from Mr Waldock on behalf of the Registrant.

34. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that the question of misconduct was a matter for the independent judgement of the Panel.

35. The Panel had regard to its findings on the facts, namely that the Registrant had lied to his line manager about going to see Service User A, and that he had done so dishonestly. Although this was a single episode of dishonesty, which was not sustained, it was nevertheless in his role as a Social Worker and, in the Panel’s view, breached a fundamental tenet of the profession.

36. The Panel considered the HCPC’s published standards required of Registrants: ‘Your duties as a registrant Standards of conduct, performance and ethics’ (2016). It considered that the Registrant had breached the following standards:

⦁ 9 – Be honest and trustworthy;
⦁ 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

37. In all the circumstances, the Panel concluded that the Registrant’s actions were sufficiently serious as to amount to misconduct.


Decision on Impairment

38. The Panel considered the submissions of Ms Mond-Wedd. She acknowledged that the Registrant had attended and engaged in the HCPC proceedings and that he had made admissions to particulars 1 and 3. She identified that he had shown remorse and regret and he had accepted that there was no justification for his actions. She also acknowledged that there were elements of remediation. She invited the Panel to evaluate whether there remained a risk of repetition. In respect of the public component, she submitted that this was very important and asked the Panel to consider what message would be sent to the public if the dishonesty was not marked by a finding of impairment.

39. The Panel considered the submissions of Mr Waldock, who identified that the Registrant’s actions had been out of character, and that he had not behaved in that way either before or since his admitted dishonesty. He submitted that the Registrant was not currently impaired.

40. The Panel heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’, as identified from the case law.

41. The Panel first considered the ‘personal component’, and in particular the factors of insight, remorse, and remediation, all of which are relevant to the assessment of the likelihood of repetition.

42. In the Panel’s judgement, the Registrant had demonstrated considerable and genuine remorse and regret for his actions, and it was clear that he was ashamed of how he had behaved. His misconduct related to one episode of dishonesty, in which he had lied to his manager about his whereabouts. The Panel noted that he had been under pressure both personally and professionally at the time, although he accepted that there was no justification for his dishonesty.

43. The Registrant has been qualified as a Social Worker for five years, and the references, together with the Registrant’s evidence on oath, satisfied the Panel that his dishonesty had been out of character. The reference dated 29 August 2018, in respect of an agency placement in Northamptonshire, subsequent to leaving the Council, also supported this view that the dishonesty was out of character. Further, there were no issues in respect of the Registrant’s practice or any identified risks in relation to public protection.

44. The Panel was of the view that no harm had been caused to Service User A as a result of the Registrant’s actions. The family had been visited on 14 September 2017 for an assessment, and there had been no concerns raised.

45. The Panel considered that that the Registrant had reflected on his actions and had consequently developed a good level of insight. The Panel was satisfied that he would act differently if placed in a similar situation in the future, where he became upset and perceived himself as being treated unfairly. The Panel was reassured that the Registrant understood the importance of being trusted and that he recognised the impact of dishonesty on public confidence in the reputation of the profession as a whole.

46. In light of all of the above, the Panel was of the view that there was a low risk of repetition. Although it is generally considered difficult to demonstrate remediation in dishonesty cases, the Panel was reassured by the Registrant’s efforts in this regard. It considered that his insight, remorse, and subsequent employment without concerns raised, demonstrated that he had remedied his misconduct considerably. In all the circumstances, the Panel concluded that in respect of the personal component, the Registrant’s fitness to practise is not currently impaired.

47. The Panel went on to consider the ‘public component’, and in particular the effect the Registrant’s dishonesty would have on public confidence in the profession.

48. The Panel considered that the Registrant’s dishonesty, although a single episode, was in the context of the workplace. He had initially told the CLO that he was seeing Service User A, which was not true, and then, when challenged by Colleague A he maintained that position to explain his whereabouts during an extended lunch break. The immediate consequence of his deceit was that he put his manager in difficulty of not knowing whether or not the children of the family of Service User A had been seen.

49. In light of the above, and given the importance of upholding standards and maintaining the reputation of the profession, the Panel concluded that public confidence would be undermined if no finding of impairment were made in this case. In the Panel’s judgment, the wrong message would be given to the public if the Registrant’s dishonesty and the profound unacceptability of such behaviour were not marked. Accordingly, in respect of the public component, the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

50. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration.

51. The Panel took account of the submissions of Ms Mond-Wedd on behalf of the HCPC and those of Mr Waldock, on behalf of the Registrant. It also had regard to all of the material previously before it, including the Registrant’s references.

52. The Panel heard and accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

53. Before considering the individual options open to the Panel, it considered the significant aggravating and mitigating features, which have previously been identified at the misconduct and impairment stage of this case.

54. The Panel considered the following to be the significant aggravating factors:

⦁ the Registrant’s dishonesty occurred in the work place;

55. The Panel considered the following to be the significant mitigating factors:

⦁ a single episode of dishonesty which was not sustained;
⦁ the Registrant’s behaviour was out of character;
⦁ no harm was caused to the Service User by the Registrant’s actions;
⦁ the Registrant’s engagement with this regulatory process;
⦁ low risk of repetition; and
⦁ the Registrant’s remorse, and good insight.
 
56. The Panel first considered whether any sanction was necessary. It looked at paragraph 8 of the Policy, which reminds Panels that even if it has determined that fitness to practise is impaired, it is not obliged to impose a sanction. It says: ‘This is likely to be an exceptional outcome, but for example, may be appropriate in cases where a finding of impairment has been reached on the wider public interest grounds…but where the registrant has insight, has already taken remedial action and there is no risk of repetition.’ Whilst on its face much of this appeared to apply to this case, the Panel was not of the view that this was an exceptional case, justifying such a course. 

57. In reaching this view, the Panel considered that to take no action for misconduct, which involved dishonesty in the workplace, would send the wrong message to the public. The Panel concluded that some form of sanction was necessary to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

58. Given that the Panel had ruled out that this was an appropriate case for no further action, it concluded that mediation was also not an appropriate outcome in this case.

59. The Panel then considered whether to make a Caution Order. Having regard to the Policy, it was of the view that paragraph 28 was particularly relevant in this case. It starts: ‘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.’

60. The Panel was of the view that the misconduct could properly be described as a lapse which was both isolated and limited. It occurred in one episode when the Registrant was angry and upset and lied to his manager. It was limited in the sense that it was not sustained after the discussion with his manager. The Panel had also identified at the impairment stage that there was a low risk of repetition, the Registrant had good insight, and had remediated considerably.

61. However, the Panel did not consider that the lapse was ‘relatively minor in nature’. It considered that dishonesty in the workplace, albeit not sustained, may undermine public confidence in the profession. The Panel had found at the misconduct stage that such actions breached a fundamental tenet of the profession.

62. The Panel also had regard to that part of paragraph 28 of the Policy, which reads: ‘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.’ In relation to this, the Panel had regard to its earlier findings to the effect that the Registrant has good insight and his conduct, when set against the references, was out of character.

63. The Panel considered its earlier findings that the Registrant was not impaired in respect of the personal component, and there were no issues with his practice. In light of this, the Panel was of the view that there were no meaningful practice restrictions which could be imposed on the Registrant’s practice, and so a Conditions of Practice Order was not appropriate in his case. 

64. The reality was, therefore, that the next applicable sanction to consider in the hierarchy of sanctions, if a Caution Order was not appropriate, was that of a Suspension Order. 

65. In light of the above, the Panel concluded that a Suspension Order would be disproportionate and unduly punitive in the particular circumstances of this case. It also considered the fact that, for a finite period, a Suspension Order would deprive the public of the services of an otherwise well regarded Social Worker. 

66. In all the circumstances, therefore, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order.

67. The duration of the Caution Order will be for a period of one year. This would, in the Panel’s judgement, be sufficient to mark the seriousness of the misconduct. Given that the Panel had found a low risk of repetition, good insight and considerable remediation, the Panel considered that a period for longer than one year would be disproportionate. The Panel was of view that a Caution Order for one year would be sufficient to demonstrate to the public and the profession that the Registrant’s actions had been unacceptable, had led to disciplinary proceedings by his regulator, and ultimately a sanction.

 

 

Order

The HCPC Registrar is directed to annotate the register entry of Mr John Tinashe Makombe 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 Mr John Tinashe Makombe

Date Panel Hearing type Outcomes / Status
01/05/2019 Conduct and Competence Committee Final Hearing Caution