Mr Mazharul Mannan

: Social worker

: SW29678

Interim Order: Imposed on 13 Oct 2015

Finding:

 


: Final Hearing

Date and Time of hearing:10:00 07/02/2017 End: 17:00 07/02/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

While registered as a Social Worker, on 3 June 2016 at the Crown Court at Kingston you were convicted of:

 

1. Sexual Assault, contrary to section 3 of the Sexual Offences Act 2003.

 

2. By reason of your conviction as described in paragraph 1, your fitness to practise as a Social Worker is impaired.

Finding

Preliminary matters

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, dated 27 January 2017, by First Class post, to the address shown for the Registrant on the HCPC register.  The Notice of Hearing was also sent to the Registrant’s email address. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct and Competence Committee Rules 2003 (as amended).
Proceeding in Absence

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence, as permitted by Rule 11 of the Conduct and Competence Rules 2003 (as amended). The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in the Absence of the Registrant”.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:

(i) The Registrant has dis-engaged from the regulatory process. His last communication with the HCPC was in February 2017, when he stated that he would not be attending an Interim Order Review hearing. The HCPC has received no communication from him since. Having been properly served with the Notice of Hearing, the Panel was satisfied that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend.

(ii) The Registrant has not made an application to adjourn and there is no indication that, even if the case were to be adjourned, that he would attend on any future date. In these circumstances an adjournment would serve no useful purpose.

(iii) The Panel concluded that any disadvantage to the Registrant is limited to not being present to make submissions at later stages of the proceedings, as the facts and grounds are capable of being proved based on the documents alone. 

(iv) The Panel was satisfied that, given the serious nature of the allegation, there is a strong public interest in ensuring that this Final Hearing commences and proceeds expeditiously.

Background

4. The Registrant is a Social Worker registered with the HCPC. Between August 2013 and July 2014 he employed a live-in au pair to look after his five year daughter. During this period the Registrant sexually assaulted the au pair. The au pair had a pain in her shoulder and the Registrant offered to give her a massage in the living room. The Registrant repeated the massage when as the Sentencing Judge put it, ‘he required her to come into his bedroom.’ This behaviour then progressed to the Registrant’s unwanted touching of the au pair’s breasts under her clothing and formed the basis of the subsequent sexual assault allegation.

5. The Registrant was charged with sexual assault and entered a not guilty plea. His trial took place at Kingston Crown Court and on 3 June 2016 he was convicted.  The sentence hearing was adjourned until 16 August 2016, pending the preparation of pre-sentence reports, and the sentence imposed was as follows:
• 24 months imprisonment suspended for 24 months;
• A requirement to undergo Supervision and complete 100 hours of Unpaid Work;

6. In addition the Registrant was placed on the Sex Offenders Register for a period of 10 years. The Registrant was ordered to pay £1,000 compensation to the victim, costs of £2,800 and a £100 Victim Surcharge.

7. The Registrant had no previous convictions but had a caution for domestic assault.
Decision on Facts
Panel’s Approach

8. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the particular of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

9. In reaching its decision the Panel took into account the documentary evidence including the Certificate of Conviction and the Judge’s Sentencing Remarks. The Panel also took into account the HCPC Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that in accordance with Rule 10(1)(d), it could not go behind the conviction and was required to accept the certification from Kingston Crown Court as conclusive proof of the conviction itself and the underlying facts.
Decision
Particular 1  – Found Proved
‘While registered as a Social Worker, on 3 June 2016 at the Crown Court at Kingston, you were convicted of:
1. Sexual Assault, contrary to section 3 of the Sexual Offences Act 2003.’

10. The Panel was provided with a Certificate of Conviction in the name of the Registrant, which was signed by an officer of the court on 9 September 2016. The Panel accepted the Certificate of Conviction as conclusive evidence that the Registrant was convicted of Sexual Assault on 3 June 2016. The Panel noted that the Registrant had entered a not guilty plea and had been convicted following a trial.

11. The Panel was therefore satisfied that the facts and grounds had been proved.
Decision on Impairment
Panel’s Approach

12.  The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the submissions of Ms Mitchell-Dunn on behalf of the HCPC. The Panel also took into account the HCPC Practice Note: ‘Finding that Fitness to Practise is Impaired’ and the HCPC Practice Note: ‘Conviction and Caution Allegations’. The Panel accepted the advice of the Legal Assessor.

13. In determining current impairment the Panel had regard to the following aspects of the public interest:
• The ‘personal’ component: the current behaviour of the individual registrant; and
• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Decision


14. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

15. The sentencing judge concluded that the sexual assault fell within Category 2 (medium category – starting point of two years with a range of one to four years) with regard to harm caused to the victim and Category A (highest category) in terms of culpability. He observed that the offence involved clear planning and was committed in breach of trust. As noted by the sentencing judge the sexual assault was, ‘[a]ggravated by the location being the home where she should have been expected to feel safe in, at night, and …behaviour escalating over a period of time and on a number of occasions.’  He also observed that it was clear when the victim gave evidence that, ‘she is a modest, rather naïve and unworldly person’ and he concluded that this would have been obvious to the Registrant.

16. The Panel considered the HCPC Standards of Conduct and Ethics and was satisfied that the Registrant’s conduct and behaviour represented a significant departure from the following standard:
• 9.1 - ‘You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

17. The Panel recognised that demonstrating remediation following a conviction for sexual assault is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. However, there has been no engagement from the Registrant during these proceedings and therefore the Panel was unable to assess whether he has any insight and if so, the scope and level of that insight. There was no evidence before the Panel that the Registrant appreciated the consequences of his actions or that the Registrant had properly reflected on the impact of his behaviour on the victim and on his profession, which legitimately expects high standards of integrity at all times. In the absence of meaningful reflection and a commitment to remediation the Panel concluded that there was a risk of repetition.

18. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired, based on the personal component.

19. In considering the public component the Panel had regard to the important public policy issues which include the need to protect the public, maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

20. The Registrant’s conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is wholly unacceptable for a Social Worker to commit a sexual assault. The Panel concluded that the Registrant’s conduct and behaviour breached a fundamental tenet of the profession, brought the profession into disrepute and demonstrated a lack of integrity. The Panel took the view that, in the absence of any evidence to the contrary, there is an on-going risk that these aspects of the Registrant’s behaviour would be repeated.

21. The Panel also concluded that a reasonable and informed member of the public would find the Registrant’s conduct to be deplorable. As a consequence the Panel was satisfied that public confidence in the profession and in the HCPC as a regulator would be undermined if a finding of fitness to practise was not made, given the nature and seriousness of the Registrant’s conviction.

22. The Panel concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

 

 

Decision on Sanction

Panel’s Approach

23. The Panel took into account the submissions made by Ms Mitchell-Dunn on behalf of the HCPC. She provided the Panel with a copy of the General Social Care Council’s (GSCC) decision in 2010, relating to the Registrant’s Police Caution for domestic assault and a copy of the Codes of Practice that applied at that time. The Panel noted that the Registrant received an Admonishment which was ordered to remain on the GSCC’s Register for 3 years. The Panel took into account its findings in relation to the sexual assault conviction and impairment of the Registrant’s fitness to practise. The Panel also had regard to the Indicative Sanctions Policy (ISP).

24. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant twice for the same offence, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession, and the HCPC as its regulator, upholding proper standards of conduct and behaviour and deterring other registrants. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.


Decision

25. In determining the appropriate sanction, if any, to impose the Panel first identified what it considered to be the mitigating and aggravating features of the case. The Panel was unable to identify any mitigating factors. However, the Panel identified the following aggravating factors:

• The sexual assault took place at night in a home environment where the victim ought to have felt safe;

• The sexual assault represented a significant breach of trust as the Registrant was the victim’s employer;

• The Registrant would have been aware that the victim was ‘a modest, rather naïve and unworldly person’;

• There has been no engagement from the Registrant during this hearing and therefore no evidence of insight, remorse or remediation.

• The Registrant received a Police Caution for common assault in 2009 in relation to an assault of his wife and, therefore, the current matter is the second criminal offence he has committed.

• The nature and circumstances of the Police Caution demonstrates that, in terms of boundary transgressions in his private life, the current matter is not a one off incident.

26. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s conduct, to take no action on his registration would be wholly inappropriate. Furthermore, in the absence of exceptional circumstances, the Panel concluded that taking no action would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

27. The Panel then considered a Caution Order.  The Panel noted paragraph 22 of the ISP which states:

“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 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.”

28. In view of the Panel’s findings that the Registrant has demonstrated no insight, the Panel concluded that a Caution Order was not appropriate. The Panel also took the view that the Registrant’s underlying behaviour could not be described as limited or minor in nature. The Panel noted that a Caution Order would impose no restriction on the Registrant’s practice and, therefore, concluded that it would not provide any protection to vulnerable service users. In these circumstances a Caution Order would fall well short of meeting the wider public interest in terms of declaring and upholding proper standards or maintain public confidence in the profession.

29. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states at paragraph 28:

‘Where the allegation before the Panel is based upon actions which constitute... breach of trust or abuse, conditions of practice are unlikely to be appropriate unless the Panel is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.’

30. The Registrant’s conviction for sexual assault, and the underlying facts upon which it is based, involves a lack of integrity and such behaviour is not amenable to conditions as the basis for this type of behaviour is an attitudinal failing. The Registrant breached the trust of a young woman living in his home where she ought to have felt safe in her role as his daughter’s au pair. Such behaviour cannot be described as minor and, as there is no evidence of remediation there is a current and on-going risk of repetition. Furthermore, such behaviour undermines the trust and confidence the public are entitled to expect from all registered Social Workers. As a consequence the Panel concluded that it was not possible to formulate workable conditions and, in any event, such an order would not adequately meet the wider public interest.

31. The Panel next considered a Suspension Order. The Panel noted that paragraph 32 of the ISP states:

‘Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.

32. A Suspension Order would prevent the Registrant from practising during the suspension period, which would therefore provide temporary protection to the public and the wider public interest. However, the Panel could not be assured that when the suspension period came to an end, the risk to the public would be sufficiently reduced, as it would depend on the extent to which the Registrant’s conduct could be regarded as remediable. In considering this issue the Panel had regard to paragraph 34 of the ISP which states:
 ‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings then suspension may be appropriate.’

33. The Panel considered that not only is the Registrant’s conviction and underlying sexually motivated behaviour inherently difficult to remediate, but in the absence of any evidence of insight, remorse or remediation the Panel concluded that there was also no evidence of any realistic prospect that he would remedy his conduct in the future.

34. The Panel also took into account the case of CRHP v GDC and Fleischman [2005] EWHC 87 Admin, where it was made clear that if a registrant has been convicted of a serious criminal offence, and is still serving their sentence at the time the matter comes before a Panel, the Panel should not normally permit the registrant to resume their practice until that sentence has been satisfactorily completed. The Panel noted that the Registrant is currently subject to a suspended sentence which is not due to expire until August 2018 and for the next 10 years will be required to sign on the Sex Offenders Register. It would be wholly inappropriate for the Registrant to resume practice whilst subject to such requirements.

35. Overall the Panel concluded that in the circumstances of this case, a Suspension Order would not be sufficient to protect the public or the wider public interest.

36. Having determined that a Suspension Order would be insufficient the Panel determined that the Registrant’s name should be removed from the Register. In reaching this conclusion the Panel took into account paragraphs 40 and 41 which state:

‘Striking Off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust….

‘Striking Off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.’

37. The Registrant’s conviction for sexual assault involved a gross breach of trust. He has shown no evidence of insight or a willingness to acknowledge the gravity of his sexually motivated behaviour. The Panel does not consider that there is any way to protect the public other than through a Striking Off Order. Furthermore, it is the Panel’s view that the public would consider the Registrant’s behaviour to be so serious that it must be marked by imposing the ultimate sanction. Any sanction short of a Striking Off Order would fail to declare and uphold proper standards and would fail to maintain public confidence in the profession and the HCPC as its regulator.

38. Accordingly, it is the Panel’s decision that a Striking Off Order is the appropriate, necessary and proportionate sanction in this case.

Order

Order: That the Registrar is directed to Strike the name of Mr Mazhurel Mannan from the Register on the date this order comes into effect.                

Notes

The Panel also imposed an Interim Suspension Order for a maximum period of 18 months to cover the appeal period.

Hearing history

History of Hearings for Mr Mazharul Mannan

Date Panel Hearing type Outcomes / Status
07/02/2017 Conduct and Competence Committee Final Hearing Struck off
01/12/2016 Investigating committee Interim Order Review Interim Suspension
09/09/2016 Conduct and Competence Committee Final Hearing Interim Suspension
06/04/2016 Investigating committee Interim Order Review Interim Suspension
13/10/2015 Investigating committee Interim Order Application Interim Suspension