Mr Emile Luniw Springate
1. Between or around September 2009 to on or around October 2011, did not maintain professional boundaries with your client and / or former client, Service User A, in that you had a sexual relationship with her.
2. Encouraged Service User A to have a contraceptive implant.
3. Provided her with approximately £110 to have the implant fitted.
4. Told Service User A that you had contacted “General Medical someone”, or words to that effect, in England and you had explained your relationship and had been told that it was 'possible as long as Service User A was signed off from your books', or words to that effect.
5. Instructed Service User A not to inform a National Society for the Prevention of Cruelty to Children (NSPCC) representative about your relationship.
6. Your actions described at paragraphs 2, 3 and 5 were sexually
7. The matter set out in Paragraph 4 was dishonest.
8. The matters set out in Paragraphs 1 – 7 constitute misconduct.
9. By reason of that misconduct your fitness to practise is impaired.
Application to sit in private
1. Ms O’Sullivan on behalf of the Registrant submitted that the entire proceedings should be heard in private. She said that inevitably most of the matters that would be ventilated would relate to the health of the Registrant or of Service User A or would relate to family members of the Registrant or would otherwise be of a confidential nature. She asked the Panel to exercise its discretion under Rule 10 of The Health and Care Professions Council (Conduct and Competence Committee)(Procedure) Rules 2003 (The Rules) so as to direct that the proceedings should be held in private
2. Ms Williams on behalf of the HCPC opposed the application. She accepted that parts of the evidence or other material which fell within the scope of Rule 10 of the Rules should be received in private, but that otherwise the hearing should be conducted in public.
3. The Panel heard and accepted the advice of the Legal Assessor.
4. The Panel determined that evidence or material which related to the private life or health of the parties to these proceedings or their families should be received in private, but that otherwise the hearing should proceed in public. The Panel indicated that this was a matter that would be kept under review.
Application to adjourn this hearing.
5. Ms O’Sullivan, who had received the papers the evening before the hearing commenced, then made an application to adjourn the hearing of this case. For the purpose of her application Ms O’Sullivan had spoken to the Registrant and to her instructing solicitors. In summary her submissions were as follows;
• That fairness to the Registrant required the case to be adjourned.
• The Registrant was anxious to attend this hearing but because of ill- health was unable to do so.
• There was evidence, in a report from a medical practitioner dated 2 March 2015, which indicated that the Registrant had a health condition. That condition was one of the grounds relied upon in support of an application made in January 2017 on behalf of the Registrant, to discontinue the present proceedings.
• The outcome of the case was likely to depend on a panel’s assessment of the evidence of Service User A and of the Registrant’s response to the Allegation. In the absence of the Registrant his case could not be properly advanced. It was at least possible that the Registrant had not been advised by his previous representative as to the importance of his presence at the hearing.
• A finding that the Registrant had acted as alleged in the particulars of the Allegation, would have very serious consequences for the Registrant.
• No reason could be given for the absence of up to date medical information but any failings on the part of those who had previously represented the Registrant should not work to his prejudice.
• That an adjournment would not put the public at risk and would not affect the quality of the evidence which would be adduced by the HCPC.
6. Ms Williams on behalf of the HCPC opposed the application. In summary she submitted that:
• The Registrant was aware of the hearing date of these proceedings since November 2016 but had made no application for an adjournment, until today.
• There was no current medical evidence to support the assertion that he was unfit to attend the hearing; the medical evidence relied on was two years old.
• Any prejudice could be mitigated as the Registrant was represented and the evidence of Service User A could be challenged and submissions made on his behalf.
• Service User A was a vulnerable witness who was standing by to give evidence by video-link. She had taken a week off work to prepare herself for the hearing, and to deal with the aftermath, and had arranged childcare. She stated that she would not be willing to give evidence on another occasion.
• There was a public interest in proceeding expeditiously.
7. The Panel heard and accepted the advice of the Legal Assessor.
8. The Panel has read and considered the Practice Note on Adjournments and Postponements published by the HCPC. The Panel has given very careful consideration to the submissions made to it and the legal advice that it has received. It considered fairness to both parties and in particular whether the Registrant would be prejudiced by the hearing proceeding today.
9. The Panel has decided to refuse the application to adjourn the hearing. It has taken careful note of the submission that the Registrant’s case may be prejudiced by his absence but concluded that notwithstanding that, the present hearing should proceed. Its reasons are as follows:
• The Registrant was given notice of the present hearing in a letter dated 16 November 2016. That letter informed the Registrant as to how a request for a postponement of the hearing could be made. The letter also indicated the importance of attending.
• The Registrant had instructed legal advisers in January 2017 to make an application to discontinue these proceedings, and also in connection with the HCPC’s application for the evidence of Service User A to be given by video link.
• There is no contemporary medical evidence to support the Registrant’s assertion that he is unfit to attend these proceedings. The submission made by Ms O’Sullivan depends largely on what the Registrant had said to Ms O’Sullivan on the telephone this morning, on the contents of the application to discontinue the proceedings dated 29 January 2017 and also on a medical report dated 02 March 2015. In the opinion of the Panel this material does not provide a sufficient basis for a conclusion that the Registrant is unfit to attend the present hearing.
• There is in the view of the Panel, based on what Service User A is reported to have said today, a real risk that if this case is adjourned, she will not give evidence on a subsequent date.
• There is, in the opinion of the Panel, a real risk that the Registrant will not attend any future hearing, were an adjournment to be granted. The Panel is reinforced in that view by the terms of the Application to Discontinue (the proceedings) dated 29 January 2017 in which it is stated, by his representative on his behalf “Mr Springate will not be fit enough for the foreseeable future to attend a hearing and give evidence. He has no intention of seeking to return to his former profession”. In addition it was said that Mr Springate “…is no longer fit to work or attend such a hearing. He has retired and is no longer on the register.”
• Two witnesses are presently available to give evidence, one of whom is vulnerable.
• Further delay could prejudice the quality of the evidence.
• Any adjournment could be for a substantial period of time. The Panel has no information as to the Registrant’s current health.
• There is, in the view of the Panel, a strong public interest in hearing and determining an Allegation of this nature.
10. The Panel decided to consider the facts, misconduct, and impairment as a single stage. Sanction if appropriate will be considered as a separate stage.
11. The Registrant was employed as a psychiatric social worker at Jersey Health and Social Services (JSS) from November 1988 until 2015. He worked within the Adult Mental Health Service with service users who had enduring mental health needs.
12. In his professional capacity the Registrant provided support and counselling to Service User A from July 2007 until 22 December 2009. The nature of the referral for support would have identified her as being a “vulnerable person”. The service user records maintained by JSS indicate that between July 2007 and December 2009 there had been 96 different occasions of contact.
13. On 13 May 2014 Mr Tony Le Sueur (TLS) was approached by NM, the HR Manager to undertake an investigation into allegations that had been raised by Service User A with TW, who was then her treating therapist.
14. Service User A alleged to TW that a relationship had existed between herself and a social worker. The initial allegation, made in November 2013, was that a social worker had “taken advantage of her”.
15. When she made the initial allegation Service User A did not identify the social worker in respect of whom she was making the allegation. At the time that Service User A made the initial allegation, she wished to remain anonymous.
16. At a session prior to December 2013 Service User A identified the Registrant as being the social worker with whom she had had a relationship.
17. On 07 March 2014 and in the course of the therapy sessions with TW , Service User A clarified the allegation that she was making, by saying that she was referring to a physical relationship with the Registrant which she said had lasted for between 18 months and 2 years.
18. Subsequently an investigation was undertaken and a disciplinary hearing was held on 10 March 2015.
19. The allegations that are set out in the particulars of the Allegation reflect the allegations that were made by Service User A to TW and subsequently in the course of the internal investigation.
Decision on Facts
20. The Panel heard oral evidence from Service User A, who gave evidence by way of video link, in accordance with a previous direction of the Panel Chair. Service User A had previously made a formal statement in these proceedings but that statement was not signed or dated prior to 15 March 2017 when, in the video presence of the Panel, she signed and dated the statement. Service User A has also made a formal signed statement to the States of Jersey Police which is dated 12 November 2014.
21. The Panel read the following witnesses’ statements which were relied on by the HCPC:
22. The Panel considered a bundle of documents comprising 207 pages which was produced by the HCPC. This bundle contained contemporaneous documents relating to the allegations against the Registrant and documents which came into existence as part of the investigation. This bundle includes records of the interviews with the Registrant on 29 May 2014 and on 18 July 2014 together with a record of the disciplinary hearing held on 10 March 2015. Also included are copies of statements and submissions made by the Registrant. In the course of the hearing Ms Williams produced further documents which included photographs taken by the States of Jersey Police of gifts which Service User A alleged had been given to her by the Registrant. The gifts as illustrated in the photographs included a watch, a bracelet and a necklace. Ms O’Sullivan on behalf of the Registrant, produced further records of professional contact, including records of professional contact between the Registrant and Service User A commencing in July 2007.
23. The Panel considered the submissions as to facts, misconduct and impairment made by Ms Williams on behalf of the HCPC and those made by Ms O’Sullivan on behalf of the Registrant.
24. The Panel heard and accepted the advice of the Legal Assessor as to facts, misconduct and impairment.
25. The Panel was aware that on matters of fact (as distinct from issues of misconduct and impairment) the burden of proof rested on the HCPC and that the standard of proof was the civil one, namely on the balance of probabilities.
26. The HCPC relied primarily on the oral and written evidence of Service User A herself. She gave a detailed account of her relationship with the Registrant and in that account she supported each of the specific allegations that are set out in the five particulars just identified. Ms Williams submitted that the evidence given by Service User A was consistent with the account that she had given to TW and was also consistent with the contents of the statement that she had made to the States of Jersey Police.
27. The Panel noted and accepted the written evidence of TLS “that as a social worker who was providing the service user with professional support and treatment it was wholly inappropriate for [the Registrant] to have engaged in any form of personal relationship with that service user, whether it was outside of the scope of practice or sexual in nature”.
28. The Panel further noted and accepted the written evidence of PA. As an exhibit to her statement, PA produced a copy of the Codes of Practice for Social Care Workers of the General Social Care Council [The Code] published by the General Social Care Council, which prior to 01 August 2012 regulated Social Workers in England. The Panel accepted that this was the code that applied to the profession of Social Worker prior to 01 August 2012. PA referred to paragraph 5.4 of the code which states “you must not form inappropriate personal relationships with service users”. PA also referred to paragraph 5.8 of the Code which provides that a social worker must not “behave in a way in work, or outside work which would call into question your suitability to work in social care services”.
29. The Panel was aware that the Registrant, whilst admitting that Service User A was part of his caseload, has always denied that he had any improper or sexual contact with Service User A. In this context the Panel gave careful consideration to a written statement made by the Registrant on 02 March 2015. The Panel has also taken into account the responses given by the Registrant in the course of the interviews on 29 May 2014 and on 18 July 2014 and at the disciplinary hearing on 10 March 2015.
30. The Panel further took into account the responses given by Service User A to the cross examination conducted by Ms O’Sullivan and in particular as regards certain physical characteristics and marks on the body of the Registrant to which Service User A had not made reference at any earlier point. Ms O’Sullivan submitted that those characteristics and marks were of such a distinctive kind that, in the context of a sexual relationship, they would have been noticed by Service User A and referred to in her statements and her oral evidence to the Panel. In addition Ms O’Sullivan in her cross examination of Service User A and in her submissions to the Panel suggested that Service User A was unreliable and had fabricated her allegations. Ms O’Sullivan suggested that there had been no sexual contact between the Registrant and Service User A. In cross examination and in her submissions to the Panel, Ms O’Sullivan relied on a number of factors which included the following;
• That in her statement to the States of Jersey Police Service User A did not refer to the fact that the Registrant has a tattoo on his right shoulder which was clearly visible, albeit she made reference to it when asked about it in cross examination.
• That Service User A had stated in her evidence to the Panel that the entries made by the Registrant in clinical notes recording the fact that she was seeing an “old flame” and that there were tensions in her marriage as a consequence of that, were untrue. Ms O’Sullivan submitted that Service User A’s responses on this matter were clearly dishonest and this called into question the Service User A’s honesty and the integrity of her evidence.
31. The Panel had given very careful consideration to all the evidence that it has received. The Panel considered very carefully the extent to which it could rely on the oral evidence of Service User A. The Panel recognised that its assessment of the integrity of Service User A was critical in determining the Allegation against the Registrant. The Panel took into account all the submissions of Ms O’Sullivan and also the fact that the Registrant had a long and unblemished career as a social worker.
32. The Panel has concluded that Service User A was a credible witness who was seeking to give honest evidence. In coming to this conclusion the Panel took into account the following considerations;
· The two and a half year duration of the professional relationship which was exceptional, in the context of the Acute Team’s remit.
· The frequency and duration of the contact, given that it was a ‘low risk’ case.
· The Registrant did not ever involve senior management in his conduct of the case, it was not recorded in clinical supervision and the closure of the case was not transparent. There were no formal reviews of the case during the period of intervention. The result was that management was excluded from oversight of the case.
· There was no evidence of the Registrant, in his role as care coordinator, liaising with the Multi-Disciplinary Team (MDT).
· There was no evidence of a care plan in the records and therefore the reason for continued contact was not explained.
· The Registrant said that “she didn’t stand out” and that “she was one of many former clients…” The Panel found this hard to reconcile with the established nature, intensity and frequency of the contacts. In this context the Panel also noted the allegation made by Service User A, which the Panel accepted, that the Registrant had given her a number of gifts including a watch, jewellery, make-up and perfume.
33. The Panel has taken account of the cross examination by Ms O’Sullivan and her subsequent submissions that Service User A has lied about the accuracy of the references in the clinical notes to the existence of a previous boyfriend with whom she had contact. After careful consideration of the oral and documentary evidence the Panel did not think that the integrity of Service User A’s evidence was thereby undermined. In addition, the Panel was satisfied with Service User A’s explanations in respect of the Registrant’s distinguishing physical features.
34. In all the circumstances the Panel concluded that Service User A was a credible witness. The Panel did not think her account was exaggerated, fabricated or untrue. The Panel noted that when Service User A was uncertain of a fact she acknowledged it. Her evidence remained consistent, straightforward, and convincing, even under robust cross examination.
35. The Panel has concluded that on the balance of probabilities the allegations set out in particulars 1-5 of the allegation are proved in their entirety. In particular and having regard to the totality of the evidence available to it, the Panel was satisfied on the balance of probabilities that:
(a) At the times alleged Service User A was a client or a former client of the Registrant;
(b) That between the dates alleged in the particulars, the Registrant did have a sexual relationship with Service User A;
(c) That at the time when the Registrant had a sexual relationship, albeit one that fell short of full sexual intercourse but included oral sex and digital penetration of Service User A, there was a professional relationship between the Registrant and Service User A.
(d) That full sexual intercourse between Service User A and the Registrant did occur, but that it happened after the professional relationship between the Registrant and Service User A had ceased.
(e) That in having a sexual relationship with Service User A between the dates alleged in the particulars, the Registrant did not maintain proper professional boundaries;
(f) That between the alleged dates the Registrant acted in the manner alleged in particulars 2, 3, 4 and 5.
36. Having regard to the evidence given by Service User A, which it has accepted, the Panel found on the balance of probabilities that the actions described in particulars 2, 3 and 5 were sexually motivated.
37. The Panel accepted the evidence of Service User A that the Registrant did make the statement referred to in particular 4 of the Allegation.
38. The Panel noted that the investigation report compiled by TLS and dated 22 August 2014, recorded that “ES denies that there was any discussion about them commencing or having a sexual relationship and denies that he had ever consulted any ‘professional body’ about any such matter.”
39. The Panel further noted the written evidence of HW which was to the effect that enquiries of the General Medical Council had established that there was no record of the Registrant having sought advice from the GMC during 2009.
40. The Panel accepted the accuracy of the record in the investigation report and the accuracy of the evidence given by HW. The Panel’s conclusion was that the HCPC have established on the balance of probabilities that (a) the Registrant did say to Service User A what is alleged in this particular and (b) that he had not contacted any professional body and (c) that in making that statement to Service User A, the Registrant was acting dishonestly, in that he knew that the statement was untrue and that he made it with the intention of deceiving Service User A into believing that there was nothing improper about their relationship.
41. The Panel proceeded to consider whether the matters found proved as set out above amount to misconduct and if so, whether by reason thereof the Registrant’s fitness to practise is thereby currently impaired.
42. The Panel considered the submissions made by Ms Williams on behalf of the HCPC. She submitted that in respect of all the matters alleged in particulars 1-7 inclusive they were sufficiently serious as to amount to misconduct and that by reason of that misconduct the Registrant’s fitness to practise was impaired.
43. Ms Williams further submitted that the Registrant was in breach of the standards set out in paragraphs 5.1, 5.3, 5.4, 5.8 of the Code which provide that you must not:
5.1 - Abuse, neglect or harm service users, carers or colleagues;
5.3 - Abuse the trust of service users and carers or the access you have to personal information about them or to their property, home or workplace;
5.4 - Form inappropriate personal relationships with service users;
5.8 - Behave in a way, in work or outside work, which would call into question your suitability to work in social care services.
44. Ms O’Sullivan accepted that if the Panel found the facts as set out in particulars 1-7 proved, it was inevitable that a determination of misconduct and present impairment would follow.
45. The Panel heard and accepted the advice of the Legal Assessor.
46. The Panel was aware that any findings of misconduct and impairment were matters for the independent judgement of the Panel.
47. The Panel was aware that consideration of impairment only arises in the event that the Panel judges that the proven facts do amount to misconduct and that what has then to be determined is current impairment.
48. The Panel determined that the facts found proved were a very serious departure from the proper standards of conduct to be expected of a social worker and clearly amount to misconduct. Its reasons included the following;
· Service User A was to the knowledge of the Registrant a vulnerable client.
· The Registrant abused a relationship of trust and responsibility.
· In the opinion of the Panel the Registrant deliberately groomed Service User A with the intent of having sexual relations with her. In coming to this conclusion the Panel noted the progressive nature of the relationship between Service User A and Registrant. This escalated from a professional relationship to one which involved the Registrant complimenting Service User A’s appearance, buying her makeup and encouraging her to wear it for their consultations, arranging meetings out of hours, giving her gifts, frequent texting, physical contact falling short of sexual contact, and progressing via sexual activity falling short of sexual intercourse, to full sexual intercourse as found by the Panel.
· The Panel also noted that the Registrant had sought to prevent Service User A from revealing the relationship to anyone else by threatening to use his professional influence to remove her child from her care.
· The grooming and abuse of trust continued over many months and, as was to be foreseen by the Registrant, has caused Service User A much distress.
49. Having regard to its findings on the facts and to its determination on misconduct the Panel has concluded that a finding of current impairment is necessary to maintain proper standards within the profession and to safeguard public confidence in the profession of Social Work and in the regulatory process. Consequently a finding of impairment is in the public interest as described by Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council, Paula Grant  EWHC 927 [Admin].
50. The Panel further considered that there was a serious risk that if the Registrant was in a similar position in the future he would repeat his conduct. In coming to this conclusion the Panel kept in mind its finding that the Registrant had groomed Service User A with the intent of having sexual relations with her. Through his counsel the Registrant has accused Service User A of giving false and fabricated evidence. He has shown no remorse, contrition or insight. In these circumstances and in the opinion of the Panel, the risk of repetition is real.
51. For the reasons set out above the Panel finds that by reason of the Registrant’s misconduct his fitness to practise is currently impaired.
52. Ms Williams made submissions on behalf of the HCPC. In summary she submitted as follows:
· That the Panel should have regard to the Indicative Sanctions Policy (ISP) published by the HCPC.
· In reality the only appropriate sanctions were a Suspension Order or a Striking Off Order.
· In determining the appropriate order the Panel should have regard to the considerations set out in the determination, which explain the finding of misconduct and also to the finding that the Registrant had acted dishonestly.
53. Ms O’Sullivan made submissions on behalf of the Registrant. In summary she submitted as follows;
· That the only realistic sanctions that the Panel will consider are a Suspension Order or a Striking Off Order.
· That the proportionate sanction would be a Suspension Order. This would be justified by reason of the Registrant’s long and unblemished record as a Social Worker; by the fact that the Registrant was suffering from a health condition at the time that he acted as he did; that the misconduct was of an isolated nature, and that the risk of repetition was in fact low;
· A period of suspension would enable the Registrant to develop appropriate insight and on review the Registrant might be able to satisfy a Panel that his fitness to practise was no longer impaired.
54. The Panel heard and accepted the advice of the Legal Assessor.
55. The Panel kept in mind that the purpose of a sanction is not punitive but is designed to protect the public interest which includes protecting members of the public from possible harm, maintaining proper standards within the profession, the reputation of the profession itself and public confidence in the regulatory functions of the HCPC.
56. The Panel took into account the Indicative Sanctions Policy (ISP) that has been published by the HCPC.
57. In considering whether to make an order and the nature and duration of any order to be made, the Panel applied the principle of proportionality weighing the Registrant’s interests in the balance with the need to protect the public interest.
58. The Panel took into account both mitigating and aggravating circumstances.
59. Mitigating factors included the following:
· That the Registrant has had a long and apparently unblemished career as a social worker.
60. However the Panel also considered the following aggravating factors;
61. The Panel considered the sanctions available to it in ascending order of severity. In arriving at its decision the Panel applied the principles that are set out in the ISP.
62. The Panel concluded that having regard to the facts that have been found proven, to take no further action would be wholly inappropriate. The Registrants’ misconduct is far too serious to permit such an outcome, which would provide no protection to the public, would undermine confidence in the profession and in the regulatory functions of the HCPC and would not serve to uphold standards of conduct and performance within the profession.
63. The Panel concluded that mediation was not appropriate in a case of this kind.
64. For the same reasons as those just expressed with regard to taking no action, the Panel concluded that a Caution Order would also be wholly inappropriate. In coming to this conclusion, the Panel also noted that the Registrant has shown no remorse or contrition and the risk of repetition is real.
Conditions of Practice Order
65. The Panel considered making Conditions of Practice Order. The Panel was aware that the conditions imposed by such an order must be relevant, workable, enforceable and proportionate. The Panel concluded that in the circumstances of this case, appropriate conditions of practice cannot be formulated and in any event would not sufficiently safeguard the public interest or uphold appropriate standards of conduct within the profession.
66. Having regard to the gravity of the Registrant’s misconduct, to the risk of repetition and to the complete absence of remorse or contrition, the Panel did not think that suspension was a sufficient and appropriate sanction. In the Panels view the public would be shocked if a registrant found to have behaved in this way, remained on the register, even with restriction.
67. Whilst recognising that striking off was the sanction of last resort, the Panel concluded that having regard to the gravity of the Registrant’s misconduct, the abuse of trust involved, to the absence of remorse and contrition, to the attack on the integrity of Service User A’s evidence and to the risk of repetition, a Striking Off Order was the only appropriate and sufficient sanction.
68. The Panel received submissions from both counsel as to the need for an interim order. The Panel also heard and received the advice of the Legal Assessor.
Order: That the Registrar is directed to strike the name of Emile Luniw Springate from the Register on the date this order comes into effect.
The order imposed today will apply from 14 April 2017 (the operative date).
History of Hearings for Mr Emile Luniw Springate
|Date||Panel||Hearing type||Outcomes / Status|
|15/03/2017||Conduct and Competence Committee||Final Hearing||Struck off|