Mr Daniel Smith

Profession: Social worker

Registration Number: SW104887

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 13/09/2019 End: 12:00 13/09/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation (as amended at the Final Hearing)

Whilst registered as a Social Worker and during the course of your employment with Sheffield City Council, you:

1. Sent inappropriate text messages to Service User A.

2. Accessed the confidential Care First record of Service User A after the case had been closed:

a) on or around 16 September 2015;

b) on or around 28 September 2015.

3. Did not record and/or make a safeguarding referral to your Line Manager and/or a safeguarding agency in respect of Service User A threatening physical harm to herself and/or her child.

4. The matters described at particular 1 were sexually motivated towards Service user A.

5. The matters described at particulars 1 to 4 amount to misconduct.

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

Finding

Preliminary Matters

Service

1. The Panel, having heard and accepted the Legal Assessor’s advice, was satisfied that the notice of hearing had been served in compliance with Article 30(9) of the Health and Social Work Professions Order 2001 as amended and Rules 3 and 13 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the Rules’), being sent to the Registrant’s registered address by first class post no less than 28 days before the date of the hearing. The notice also set out the date, time and location of the hearing as well as the Panel’s powers at this review hearing.

Private Hearing

2. The Panel considered a joint application by Ms Whitby, on behalf of the HCPC, and Thompsons Solicitors for the Registrant made by email dated 9 September 2019, for parts of the hearing to be conducted in private as reference would be made to the Registrant’s health and private life. Having received advice from the Legal Assessor, the Panel granted that application in view of the principles set out in the rule 10(1)(a) of the Rules, and the HCPTS Practice Note, “Conducting Hearings in Private”. The Panel determined that those parts of the hearing that concern the Registrant’s health and private life should be conducted in private.

Proceeding in Absence

3. Ms Whitby applied to proceed in the absence of the Registrant. She submitted that in view of the email of 9 September 2019, he had made an informed decision not to attend the hearing. She further submitted that there was no benefit in granting an adjournment as his attendance could not be guaranteed at a later date. She said that there was no unfairness to the Registrant in the hearing proceeding today. The Panel received advice from the Legal Assessor, which it accepted. He also pointed out that in the email of 9 September 2019, it was stated on behalf of the Registrant that he was not fit to attend the hearing.

4. The Panel was satisfied that all reasonable steps had been taken to serve the notice of hearing on the Registrant in accordance with the Rules. In those circumstances, it proceeded to exercise its discretion under Rule 11 of the Rules to decide whether or not to proceed in the absence of the Registrant.

5. This hearing is a mandatory review of a Suspension Order that is due to expire on 11 October 2019. The Registrant is legally represented and would have been aware of his entitlement to seek an adjournment. He has not applied for an adjournment of today’s hearing. He has engaged before and attended the original fitness to practise hearing on 11 – 13 September 2017, and the first review hearing on 30 August 2018. Any adjournment would have to be short as the Suspension Order is due to expire soon. There is no reason to believe that an adjournment would secure the Registrant’s attendance on such a date in view of the circumstances set out in the email of 9 September 2019.

6. No medical evidence has been provided to explain the Registrant’s absence. Although such evidence might exist, it has not been placed before the Panel. There is some disadvantage to the Registrant in not being present at the hearing, because he would not be able to give evidence. The Legal Assessor referred to the case of GMC v Hyatt [2018] EWCA Civ 2796. The Panel has concluded that the reason why the Registrant has not attended today is because of the tragic personal circumstances referred to in the email.

7. The Panel has decided that in fairness to both parties that the appropriate course is to proceed in the absence of the Registrant.


Background

8. The Registrant joined Sheffield City Council (the Council) in 2015 and was employed as a Prevention Worker within the Learning Disabilities Team. This role did not require the Registrant to be registered with the HCPC as a Social Worker.

9. The Registrant’s role as a Prevention Worker involved working with service users aged 18 and over who were diagnosed with, or suspected of having, learning disabilities. His role involved screening cases for eligibility for the use of the Learning Disabilities Service, offering advice and information to service users and referring them to services outside the Council.

10. On 13 April 2015, a contact assessment for Service User A was received by the Learning Disabilities Team. Service User A had mental health issues, particularly concerning anxiety. The case was allocated to the Registrant. As such, he was expected to find services that could help Service User A and organise a screening of her condition. The Registrant arranged for her to be assessed and her case was closed on 6 July 2015.

11. At the final hearing on 11 – 13 September 2017, the original panel found that the Registrant had sent inappropriate text messages that were sexually motivated to Service User A; and that he had accessed her confidential Care First record after the case had been closed, obtaining personal information for no professional purpose. The panel also found that the Registrant did not make a safeguarding referral to his line manager and / or a Safeguarding Agency in respect of Service User A threatening physical harm to herself, though not to her child as had been alleged.

12. In considering the issue of misconduct, the panel noted that the Registrant’s conduct had been sexually motivated and that Service User A was a vulnerable person and he had put his own interests above those of Service User A in sending her text messages for sexual gratification. The panel also noted that at one stage of the proceedings he had tried to blame Service User A for ‘duping’ him, ‘lying’ to him and contacting him. His access to her case files for no good reason was a breach of his position of trust. He had also failed to take appropriate action when she had said she was a threat to herself. The totality of his behaviour amounted to serious breaches of his professional standards. The original panel found that the Registrant’s acts and omissions amounted to misconduct.

13. The original panel decided that the Registrant’s fitness to practise was impaired by reason of his misconduct and imposed a 12 month Suspension Order.

14. At the first review of the Suspension Order, the Registrant gave oral evidence and provided a number of documents to the reviewing panel, including a lengthy reflective piece.

15. The first reviewing panel stated in its decision that the Registrant had made some progress since the substantive hearing. That panel noted the Registrant’s reflective piece and oral evidence demonstrated that he had reflected on his misconduct and had shown both remorse and some insight into his past behaviour. That panel was encouraged that he had made steps to establish a support network and that he was undertaking a lengthy period of counselling, which he had found most useful.

16. However, that panel determined that, in light of all the evidence before it, the Registrant’s fitness to practise continued to be impaired by reason of his misconduct. The concerns identified in his practice had not been remedied and confidence in the profession and in the HCPC’s ability to maintain standards would be undermined if his fitness to practise were not found to be impaired.

17. That panel determined that the appropriate and proportionate sanction was to extend the Suspension Order by a period of 12 months ‘to hopefully allow the Registrant a period of further reflection and to demonstrate remediation.’

18. The first reviewing panel also stated:

‘The Panel considers that any future panel reviewing this order would be assisted by:

• The Registrant’s continuing engagement;

• Further evidence of insight, reflective analysis and remediation;

• An update regarding counselling and any other treatment and support being undertaken by the Registrant;

• References and testimonials in relation to any paid or unpaid work carried out by the Registrant.’


Decision

19. Ms Whitby submitted that, in light of the absence of further evidence as to risk reduction, remediation or insight from the Registrant both the public and the personal elements of impairment are made out in this case. The Panel received advice from the Legal Assessor, which it has accepted.

20. The question for this Panel was whether the Registrant’s fitness to practise remains impaired by reason of the misconduct found by the original panel. In practical terms there is a persuasive burden on the Registrant to show that his fitness to practise is no longer impaired and that all the shortcomings which led to the original finding of impairment have now been overcome: see Abrahaem v GMC (2008) EWHC (Admin) at [23].

21. The Registrant has placed no evidence before this Panel to identify any further progress in his insight into and remediation of, the misconduct. Therefore, there is no additional evidence to indicate any reduction of the risk that he would present to members of the public if permitted to return to unrestricted practice. Although he has continued to engage with these fitness to practise proceedings, the remaining information suggested in paragraph 22 of the decision of the previous panel has not been provided.

22. Therefore, the Registrant continues to present a risk to the safety and wellbeing of members of the public as a result of his un-remedied misconduct. The Panel has decided that both the personal and the public elements of impairment are engaged. Accordingly, the Panel has decided that his fitness to practise remains impaired.

23. The Panel carefully considered matters including the HCPC’s “Sanctions Policy”. It has borne in mind that any sanction must be proportionate and that the primary purpose of a sanction is the protection of the public. Any sanction it imposes must protect the public and the wider public interest as required by the relevant statutory objectives. Any sanction must be the least restrictive measure that achieves those requirements.

24. The Panel decided that the issues in the case are too serious to be met with either no further action or a Caution Order as these sanctions would not provide sufficient protection of the public.

25. The Panel next considered whether or not to impose a Conditions of Practice Order. However, no workable conditions of practice could be drafted to address the nature of the misconduct.

26. The Panel decided that a further period of suspension is necessary to protect the public from the risks presented by the Registrant’s un-remedied misconduct. A period of 12 months is required to give the Registrant the further time necessary to take further steps of remediation and to demonstrate fitness to practise to the next reviewing panel so that he would no longer present a risk to the public. The Registrant may also apply for an early review of his case, should he consider that he can demonstrate fitness to practise sooner.

27. The Panel refers to paragraph 22 of the decision of the first reviewing panel. The panel that reviews the Registrant’s case may be assisted by the matters set out as follows:

‘The Panel considers that any future panel reviewing this order would be assisted by:

• The Registrant’s continuing engagement;

• Further evidence of insight, reflective analysis and remediation;

• An update regarding counselling and any other treatment and support being undertaken by the Registrant;

• References and testimonials in relation to any paid or unpaid work carried out by the Registrant.’

28. In the circumstances of this case, the Panel considered that it would be disproportionate to impose a Striking-Off Order at this time.

29. In reaching its decision on the issues of impairment and sanction, the Panel has not found it necessary to take into account the Registrant’s non-disclosure of the existence of these proceedings to a previous employer who engaged him as a care-worker. This was a matter taken into account by the first reviewing panel, but this Panel has not done so.

Order

ORDER: The Registrar is directed to suspend the registration of Mr Daniel Smith for a further period of 12 months on the expiry of the existing Order.

Notes

This Order will be reviewed again before its expiry on 11 October 2020.

Hearing History

History of Hearings for Mr Daniel Smith

Date Panel Hearing type Outcomes / Status
13/09/2019 Conduct and Competence Committee Review Hearing Suspended
11/09/2017 Conduct and Competence Committee Final Hearing Suspended