Mr Sipho O Dlomo

: Social worker

: SW100947

: Final Hearing

Date and Time of hearing:10:00 23/03/2017 End: 17:00 24/03/2017

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

: Conduct and Competence Committee
: Caution

Allegation

Allegation (as amended)

During the course of your employment at Southampton City Council as a Social Worker between 23 April and 04 August 2015, you

1. On 4 June 2015, accessed and/or viewed the confidential records of Service User A’s daughter on Paris, which you did not have permission and/or authorisation to access.

2. On 4 June 2015 accessed and/or viewed Service User B’s confidential records on Paris, which you did not have permission and/or authorised to access.

3. The matters set out in paragraphs 1 - 2 constitute Misconduct.

4. By reason of your Misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Amendment of Allegation

1. Ms Mitchell-Dunn, on behalf of the HCPC, applied to amend the Allegation.  She submitted that the amendments were consistent with the evidence before the Investigating Committee, and they served to clarify the allegation.

2. Ms Travis, on behalf of the Registrant, did not object to the amendment.

3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the allegation, provided no injustice would be caused by the amendment. The Panel considered that the amendment sought did not change the substance of the allegation. The amendments served to clarify the Allegation by specifying dates upon which the Registrant’s conduct occurred and would not cause injustice. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.

Background

4. On 23 April 2015, the Registrant commenced employment at Southampton City Council (the “Council”) as a Social Worker. He was employed in the Children’s Safeguarding Services Department. On 3 August 2015, an employee at the Council alerted Witness 1, Team Manager, to an allegation that the Registrant had accessed Service User A’s daughter’s confidential records, when he did not have the authority nor permission to do so. Service User A was a family friend of the Registrant. Witness 1 subsequently conducted an investigation into this, during which the Registrant volunteered the information that he also accessed Service User B’s records without authorisation. Service User B was a close relative of the Registrant.

Decision on Facts

5. The Panel considered all the evidence in this case together with the submissions made by Ms Mitchell-Dunn on behalf of the HCPC, and by Ms Travis on behalf of the Registrant.

6. The Panel accepted the advice of the Legal Assessor.

7. The Panel heard oral evidence from Witness 1 who was the Investigating Officer at the Council on this case, and received a bundle of documentary evidence, which contained documents that formed part of Witness 1’s investigation into these matters.

8. The Panel found Witness 1’s evidence to be of limited assistance. Witness 1 could not explain the data that was contained in the Paris System Audit Report. She could not assist the Panel as she did not know whether the audit report showed the Registrant merely accessed the Users’ computer files, or whether he accessed and viewed specific components of the records. Witness 1 did not appear to understand the contents of the report, and was unfamiliar with the document. The Panel therefore put very little weight on Witness 1’s evidence.

9. The Panel also heard evidence from the Registrant. The Panel found his reasons for accessing the confidential records of Service User A and Service User B to be generally clear.

10. The Registrant accepted that he was wrong to have accessed the confidential information. However, what he actually saw of the records, if anything, was unclear. He stated that his purpose in doing so was to confirm that the referral regarding Service User A’s daughter was on the system. He said that if the referral was not on the system, he would have raised the matter with his line manager as a possible safeguarding issue based on what Service User A had told him.

11. The Registrant initially told the Panel that he had accessed Service User B’s electronic file so that he could learn about the Paris system. He did not accept that it was fanciful in the light of the fact that the record related to a close relative of his, and which also related to an allegation made against him by that person. He stated that his attempt to familiarise himself with the Paris system entailed seeing how he could access Service User B’s electronic file using various details separately such as date of birth, name, and Client ID number. The Registrant told the Panel that he did not view any specific records in relation to Service User B as, due to the historic nature of the record, there was no information on the system to view.

12. The Panel firstly considered factual Particulars 1-2 of the allegation in turn. At the start of proceedings the Registrant admitted those particulars. In relation to each of these Particulars, the evidence presented was consistent with this admission on each of the factual Particulars. Furthermore, there was no reliable evidence that the Registrant had viewed any of the data contained in the records of Service User A and Service User B.

13. The Panel was conscious that it must not speculate on what the data contained on the Paris System Audit Report meant. It could only proceed on what it was told it meant which as explained in paragraph 8 was unclear other than what that the Registrant was shown to have accessed the records of Service User A and Service User B. Accordingly the Panel finds Particulars 1 and 2 proved by way of the Registrant’s admission and on the sole basis of his admission – namely that he had accessed the electronic folders of Service User A and Service User B.

Decision on Grounds

14. Ms Mitchell-Dunn submitted that these matters were so serious that they amounted to Misconduct for the purposes of these proceedings. She submitted that the Registrant breached the following standards of the HCPC Standards of Conduct, Performance and Ethics: 2, 3, and 13. She also submitted that the Registrant’s conduct failed to meet the following standards of the Standards of proficiency for Social Workers: 2.7, 7.1 and 10.2.

15. Ms Travis reminded the Panel that, at the start of this hearing, the Registrant had accepted that his conduct amounted to the statutory ground of Misconduct. She told the Panel that the Registrant has not changed his position.

16. The Panel accepted the advice of the Legal Assessor.

17. The Panel considered that on the facts found proved, the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:

3  You must respect the confidentiality of service users.

13  You must behave with … integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

18. In relation to paragraph 13 of the Standards, the Panel determined that the breach was that the Registrant did not behave with integrity. There is no suggestion that he behaved dishonestly.

19. The Panel also determined that the Registrant had not failed to meet any of the paragraphs of the HCPC’s standards of proficiency for Social Workers. This is a case of Misconduct and not lack of competence. The Panel determined that the Registrant had the required standard of knowledge and knew what was expected of him in terms of those standards, but did not apply them.

20. The Panel was aware that Misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”. It is not just any professional Misconduct, which will qualify.

21. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to Misconduct. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. In particular, it considered that unauthorised access of records focussed upon confidential child protection cases, where the Registrant knew the people involved, was serious.

22. In the light of the above, Panel considered that the facts found proved were serious enough so as to amount to Misconduct for the purposes of these proceedings.

23. Accordingly the Panel finds that the facts found proved amounted to the statutory ground of Misconduct.

Decision on Impairment 

24. The Panel then went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of his Misconduct. It heard the submissions made by Ms Mitchell-Dunn on behalf of the HCPC and Ms Wendy Travis on behalf of the Registrant.

25. The Legal Assessor drew the Panel’s attention to the test set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

26. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s Misconduct show that his fitness to practise is impaired in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the social work profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the social work profession?”

27. The Panel determined that the Registrant had not put any service user at unwarranted risk of harm as he had not viewed any specific information contained the records of either Service User A or Service User B.  The Panel determined that the Registrant’s action had brought the profession into disrepute and that he had breached a fundamental tenet of the social work profession.

28. The Panel noted the Registrant’s oral evidence and his reflective piece. The Panel determined that the Registrant has demonstrated insight and was indeed remorseful. His reflective piece was detailed and the Panel was satisfied that it was an accurate representation of the Registrant’s insight. The Panel determined that he was highly unlikely to repeat his behaviour. He told the Panel that he now knows what to do in similar circumstances, has refreshed his awareness of the Data Protection Act, the Council’s code of conduct, and the requirements to abide absolutely to information security policies. He now possesses a heightened awareness of the issues of confidentiality and information security. He told the Panel that if he were faced with a similar situation as he did with Service User A, he would discuss the matter with a manager.

29. The Panel determined that the Registrant’s fitness to practise was not impaired on the personal component of the test for impairment of fitness to practise as he was unlikely to repeat his Misconduct.

30. However, the Panel determined that the Registrant’s Misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. The unauthorised access of confidential information is always likely to raise an issue relating to confidence in the profession and its regulation, but in this case the breach was made worse because he knew the people personally to whom the records related.

31. Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired on the public interest consideration alone.

Decision on Sanction

32. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction should be imposed. It has heard the submissions of Ms Mitchell-Dunn on behalf of the Council and Ms Travis on behalf of the Registrant.

33. The Panel also accepted the advice of the Legal Assessor.

34. The Panel bore in mind that it found that these matters were such that a finding of impairment was necessary to declare and uphold professional standards and to maintain public confidence in the profession.

35. The Panel has had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy.

36. The Panel considered the following to be aggravating features of this case:

a) It involved an abuse of the Registrant’s position of trust;

b) It was an intentional and targeted access to specific confidential information, held on a confidential database related to Child Protection issues;

c) Maintaining confidentiality is a basic and fundamental requirement of the social work profession.

37. The Panel took into consideration the following mitigating features:

a) The Registrant cooperated with the employer’s investigation, making admissions from the very beginning, and in fact volunteered the information in relation to Service User B.

b) The Registrant made admissions to all the factual particulars at the start of these proceedings;

c) The Registrant was a Newly Qualified Social Worker at the time and was undertaking the Assessed and Supported Year in Employment programme;

d) The Registrant did not feel supported by his managers at the time.

e) The incidents were isolated in that they were limited to two separate incidents on one day.
f) No harm was done to any service user.

38. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct, this would be wholly inappropriate given the public interest.

39. The Panel then considered whether to make a caution order. Having reflected on the Indicative Sanctions Guidance, the Panel considers that all the circumstances of this case mesh with the criteria for a Caution Order namely: it was an isolated lapse; there is a low risk of recurrence; good insight has been demonstrated; and appropriate remedial action taken. It further considered that proper professional standards have been declared and upheld by the finding that the Registrant’s fitness to practise is impaired. The Panel also considers that a fair minded member of the public with full knowledge of the facts of this case would not consider such a sanction to undermine public confidence in the profession and the regulatory process. The Panel determined that a Caution Order was appropriate in this case.

40. The Panel next considered the imposition of a more restrictive sanction so as to assess the proportionality of its decision to impose a Caution Order in this case. It determined that a Conditions of Practice Order was not appropriate in this case as there were no areas of the Registrant’s practice that was found to be lacking, and a Suspension Order in these circumstances would be neither appropriate nor proportionate because, although the breaches were serious, they were not so serious that the Registrant should be prevented from practising.

41. The Panel was aware that the benchmark for a Caution Order is three years. It has not heard any evidence that provides a reason for departing from that benchmark. In all of the circumstances, the Panel determined that a Caution Order for three years was the appropriate and proportionate sanction.

Order

The Registrar is directed to annotate the register entry of Sipho O Dlomo with a caution which is to remain on the register for a period of three years from the date this order comes into effect.

Notes

No notes available

Hearing history

History of Hearings for Mr Sipho O Dlomo

Date Panel Hearing type Outcomes / Status
23/03/2017 Conduct and Competence Committee Final Hearing Caution