Ms Arlene Nicholson

: Social worker

: SW84724

: Final Hearing

Date and Time of hearing:10:00 27/03/2017 End: 17:00 29/03/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

(as amended at the Final Hearing)

Between March 2011 and June 2015, whilst employed as a Social Worker by Hampshire County Council:

1. In the case of Service User A, you inappropriately disclosed information about another service user to Service User A’s wife;

2. In the case of Service User B:

a) You did not adequately complete a Care Needs Assessment;

b) You did not undertake a Mental Capacity Assessment;

c) You did not refer the service user to the Older Person’s Mental Health Team for assessment until prompted to do so;

3. In the case of Service User C:

a) You did not arrange respite for Service User C in a timely manner;

b) You did not maintain appropriate professional boundaries, in that you inappropriately carried out 6 visits with the service user and his wife.

4. In the case of Service User D:

a) You did not communicate effectively with the service user;

b) You closed Service User D’s case without having completed all actions;

5. In the case of Service User E:

a) You closed Service User E’s case without having obtained feedback from a Mental Health Review / CPA meeting;

b) You did not promptly respond to a safeguarding alert;

6. In the case of Service User F:

a) You did not complete ‘Consent to Share’ for Service User F’s family member in the case file;

b) You did not complete adequate notes in respect of your visit for Service User F on 6 May 2015;

c) You did not undertake a Mental Capacity Assessment until prompted to do so;

7. In the Case of Service User G;

a) You did not inform the domiciliary agency that you had arranged for Service User G to move into residential care;

b) You did not undertake a Mental Capacity Assessment until prompted to do so;

c) You did not adequately complete a Care Needs Assessment;

8. In the case of Service User H;

a) You did not progress the case in a timely manner, in that you:

i) Did not gather information for the Deprivation of Liberty (DOLs) condition check;

ii) Did not update the Service User’s daughters following your visit on 6 May 2015;

iii) Did not make and/or record a decision and/or outcome about the Service User’s capacity;

b) You did not adequately undertake a Mental Capacity Assessment.

9. Your actions described at Particulars 1 to 8 constitute misconduct and/or lack of competence.

10. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

1.             The case for the Health and Care Professions Council (“HCPC”) was presented by Ms Charlotte Watts, of Kingsley Napley Solicitors. The Registrant was neither present nor represented at the hearing.

Proof of Service

2.             The Panel dealt initially with service. The Panel had sight of the Notice of Hearing dated 1 December 2016, sent to the Registrant’s address on the Register, which set out all the relevant information about today’s proceedings. The Panel was satisfied that service had been effected in accordance with the Health and Care Professions Council (Conduct and Competence) Committee (Procedure) Rules 2003 (“the Rules”).

Proceeding in the absence of the Registrant

3.             Ms Watts applied to have the case heard in the Registrant’s absence. Ms Watts submitted that the Registrant had been properly served in accordance with the Rules. She further submitted that the Registrant had voluntarily absented herself and that there was no indication that if an adjournment was granted the Registrant would attend on a future date. She also informed the Panel that the Registrant’s only engagement with the HCPC was a telephone call from her on 5 February 2016, following correspondence from the HCPC.

4.             The Panel accepted the advice of the Legal Assessor. The decision to proceed in the absence of the Registrant must be exercised with the utmost caution. The Panel had regard to the recent authoritative decision in this area in GMC v Adeogba (2016) EWCA Civ. 162 and to the HCPC’s Practice Note “Proceeding in the Absence of the Registrant” (September 2016) which has been updated to take into account recent developments in the case law which emphasised the importance of public interest considerations.

5.             The Panel was satisfied that it was appropriate to proceed in the Registrant’s absence. It considered that the allegation is serious and there is a strong public interest in proceeding with the matter today. The Panel noted that the HCPC’s solicitors had managed to trace the Registrant’s current address and that a hearing bundle was sent to that address and signed for as being delivered on 7 February 2017. The Panel further considered that no purpose would be served in adjourning the matter. Balancing the relative interests of the Registrant with those of the public, the Panel decided that it is in the interests of justice that the matter proceed, notwithstanding the Registrant’s absence.

Application for part of the hearing to be in private

6.             Ms Watts applied under Rule 10(1) of the Rules for the hearing to be heard in private in relation to any part in which the health or private life of the Registrant was discussed.

7.             The Panel, having taken the advice of the Legal Assessor, agreed that the hearing could partly be held in private where it was necessary in order to protect the Registrant’s private life or any discussion relating to her health.

Application to amend the particulars

8.             Ms Watts applied to amend the Particulars in the form sent to the Registrant along with the bundle, as sent to her new address and signed for as delivered on 7 February 2017. The Panel considered the submissions of Ms Watts and accepted the advice of the Legal Assessor. The Panel was satisfied that the amendments were necessary to better reflect the evidence in the case and did not alter the nature of the allegation. The Panel was therefore satisfied that the amendments could be made without causing any prejudice to the Registrant and agreed to grant the application.

Background

9.             The Registrant commenced employment with Hampshire County Council (“the Council”) on 7 April 2003 as a Social Worker in the Adult Services, Adults with Physical Disabilities and Older People Team. In this role, the Registrant was responsible for adults who had physical impairments and older people with age-related conditions. She was also responsible for the assessment of carers. The Registrant’s team manager, appointed in 2009, noticed that the Registrant’s case load was lower than her peers, her cases progressed slowly and that she did not take on as many new cases.

10.          Informal monitoring of the Registrant’s workload commenced in 2011 due to concerns about the Registrant’s decision-making and workload. The Registrant was informed that concerns were identified in respect of her practice and an action plan was put in place to assist her. In addition to formal supervision, she was given opportunities to work from or closer to home and complete additional training. The Registrant did show some improvement but was unable to sustain it and as a result, it was decided that a formal performance management process should begin. This formal process began on 19 March 2013.

11.          Although the Registrant did make some improvements, they were not maintained and it was ultimately decided that the formal performance management process should be moved into Stage 2 in February 2014. The Registrant was on leave between February 2014 until August 2014. A ‘Stage 2 meeting’ was held on 12 January 2015 and the Registrant was given a Performance Improvement Plan.

12.          The January-May 2015 case work audit revealed that the Registrant had failed to achieve the targets set out in the Improvement Plan and a review meeting was held on 7 May 2015. A formal Stage 3 meeting was held on 23 June 2015 and a letter was sent to the Registrant explaining that the outcome was that the matter should be heard by a disciplinary panel. It was considered that the Registrant’s poor performance had a detrimental effect on the care of service users and the reputation of the Council.

Decision on Facts

13.          The Panel heard oral evidence from KB, District Service Manager, Hampshire County Council, who at the time of the matters alleged was the Registrant’s team manager. The Panel had documentary evidence consisting of a final hearing bundle and an exhibits bundle.

14.          The Panel considered that KB was a credible witness whose evidence was honest, reflective and balanced. KB produced comprehensive documentation in relation to her supervision of the Registrant over a period of four years. KB gave plausible explanations for any views expressed by her, although the Panel found that some of her assertions regarding the Registrant’s failings were not substantiated by the contemporaneous records. KB was positive about many aspects of the Registrant’s work and character.

15.          The Panel heard submissions from Ms Watts on behalf of the HCPC and accepted the advice of the Legal Assessor. The Panel made the following findings of fact.

Particular 1 – Not Proved

16.          KB’s evidence was that the Registrant had disclosed to Service User A’s wife that carers, who had been commissioned by the Council, had been fraudulently recording the start and end times of their visits. There was no evidence that the Registrant had disclosed any information about another service user to Service User A’s wife.

Particular 2a) – Proved; Particular 2b) – Proved; Particular 2c) – Not Proved:

17.          In relation to Particular 2a), the Panel accepted KB’s evidence that Service User B’s Care Needs Assessment, undertaken between 26 March and 2 April 2015, had been copied and pasted from a previous assessment completed by a hospital Social Worker. New information in the “review” section did not contain the information that Service User B had been moved or how her needs were being met. Further, the Care Needs Assessment completed by the Registrant related to information gathered when Service User B was living in a previous setting. Accordingly, the Panel was satisfied that the Registrant’s Care Needs Assessment in respect of Service User B was inadequate.

18.          In relation to Particular 2b), the Panel accepted KB’s evidence that a Mental Capacity Assessment, which should have been completed at the point that the decision was made to relocate Service User B, had not been done.

19.          In relation to Particular 2c), the Panel looked carefully at the contemporaneous case notes and emails. An email from KB to the Registrant dated 19 February suggested that the Registrant should contact the Older Person’s Mental Health Team (OPMHT) for a view relating to Service User B. The Registrant responded the same day and said that she would contact OPMHT. On 24 February, the Registrant informed KB that OPMHT were involved and had visited Service User B. The Panel found no reference to any necessity for the Registrant to refer Service User B to OPMHT. Accordingly, this Particular is not proved.

Particular 3a) - Not Proved; Particular 3b) – Not Proved

20.          Ms Watts informed the Panel that she was offering no evidence in relation to Particular 3a), which the Panel therefore found not proved. In relation to Particular 3b), the Panel heard evidence that the Registrant had made six visits to Service User C and his wife. On the basis of the evidence before it, in the Panel’s view, this amounted to an inappropriate use of time and resources, rather than any failure to maintain professional boundaries.

Particular 4a) – Proved; Particular 4b) – Not Proved

21.          In relation to Particular 4a), the Panel accepted KB’s evidence that the Registrant had promised to telephone Service User D before going on leave and did not, thereby not communicating effectively with the service user whose shopping arrangements and meal provision had not been put in place.

22.          In relation to Particular 4b), the Panel noted that the Registrant had provided a transfer summary to her manager. This suggested that the case had been transferred, not closed.

Particulars 5a) – Proved; Particular 5b) – Proved

23.          In relation to Particular 5a), the Panel was satisfied from KB’s evidence that the Registrant had closed Service User E’s case before she had obtained the requested feedback from a Mental Health Review / CPA (Care Programme Approach) meeting, which she ought to have done in order to properly assess the case.

24.          In relation to Particular 5b), the Panel was satisfied from the documentation that the Registrant did not respond to a safeguarding concern relating to Service User E for four working days, which does not constitute a prompt response.

Particular 6a) – Proved, Particular 6b) – Not Proved; Particular 6c) – Proved.

25.          In relation to Particular 6a), the Panel accepted KB’s evidence that the team were unable to share any information about Service User F with her daughter, as the Registrant had not completed the relevant ‘Consent to Share’ form. Further, at her supervision meeting with KB, the Registrant accepted that she had forgotten to complete that form.

26.          In relation to Particular 6b), the Panel noted that there was a joint visit to Service User F’s family along with the neurology nurse. There is no evidence of any visit to Service User F or that the Registrant purported that any such visit took place.

27.          In relation to Particular 6c), the Panel considered that the Registrant ought to have completed a Mental Capacity Assessment in relation to Service User F of her own initiative. The Panel noted that she only did so after being told to do so by KB.

Particular 7a) – Proved; Particular 7b) – Not Proved; Particular 7c) – Proved

28.          In relation to Particular 7a), the Panel accepted KB’s evidence that Service User G was living in the community and the Registrant was responsible for arranging for the service user to move into residential care. The Registrant failed to notify the domiciliary agency that she had arranged for the service user to be moved, thereby incurring an avoidable fee (which was later rescinded) having to be paid by the Council.

29.          In relation to Particular 7b) and 7c), the Panel was unable to find any evidence that the Registrant had undertaken a Mental Capacity Assessment (MCA) and therefore as worded, this Particular is not proved. Particular 7c) is proved given the absence of any MCA findings which would be essential for any Care Needs Assessment to be adequate.

Particular 8a(i) – Not Proved; Particular 8a)(ii) – Proved; Particular 8a)(iii) – Proved; Particular 8b) – Proved

30.          In relation to Particular 8a)(i), the Panel was provided with insufficient evidence that the Registrant failed to gather information for a Deprivation of Liberty condition check.

31.          In relation to Particulars 8a)(ii) and (iii), the Panel noted that the Registrant had on two occasions made a note that she would update Service User H’s daughters as to Service User H’s capacity, and there is no record that she did so. In relation to Particular 8b), the Panel was satisfied that there was no record of any MCA being undertaken in relation to Service User H and this ought to have been done.

Decision on Grounds

32.          The Panel considered the length of the Registrant’s experience as a Social Worker and KB’s evidence that there were some positive aspects of her practice. The Panel considered that the Registrant had received sufficient training and experience and was able to perform her role safely and effectively. The Panel concluded that the failings set out in the allegation were not due to a lack of competence.

33.          In relation to its findings of fact, the Panel was satisfied that misconduct was established in relation to Particulars 2a), 2b), 5a), 5b), 6c), 7c), 8a)iii) and 8b). These particulars related to failures to carry out two care needs assessments, three mental capacity assessments, one closing of a case prematurely and one of not responding to a safeguarding concern promptly. The Panel considered all of these matters constituted serious fallings below the required standards for a registered Social Worker, which amounted to misconduct.

34.          The Panel considered that the Registrant had breached the following HCPC “Standards of Conduct, Performance and Ethics” applicable at the time:

1              You must act in the best interests of service users.

7              You must communicate properly and effectively with service users and other practitioners.

10           You must keep accurate records.

Decision on Impairment

35.          The Panel was satisfied that the Registrant’s misconduct had put service users at unwarranted risk of harm. The Panel was also satisfied that the Registrant had brought her profession into disrepute and had breached a fundamental tenet of the profession by failing to act in the best interests of service users.

36.          The Panel was satisfied that the Registrant’s misconduct is remediable; however, it was provided with no evidence of insight or remediation and there was a lack of information as to the Registrant’s current circumstances. Therefore, the Panel was of the view that there remained a significant risk of repetition.

37.          The Panel was also mindful of the wider public interest considerations in this case, particularly the need to declare and uphold proper standards of conduct and behaviour and maintain confidence in the reputation of the Social Work profession and the regulatory process. The Panel concluded that public confidence in the profession and in the HCPC would be undermined were a finding of impairment not made.

38.          For all of the above reasons, the Panel found that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

39.          The Panel considered the submissions made by Ms Watts on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.

40.          The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.

41.          The Panel had regard to the HCPC’s “Indicative Sanctions Policy”. 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 seriousness.

42.          In its deliberations the Panel considered the aggravating and mitigating circumstances of this case. The Panel considered as aggravating factors the potential for harm to several service users caused by the Registrant’s misconduct and that the Registrant had not engaged in the hearing process or demonstrated any insight or remediation.

43.          In considering mitigating factors, the Panel took into account the lack of any disciplinary record prior to the matters which led to these proceedings and the positive evidence the Panel had seen that the Registrant could perform well as a Social Worker. The Panel had regard to the evidence of KB that the Registrant had suffered a range of difficult personal circumstances during the period in question. The Panel also took note of the matters set out in the Registrant’s telephone call with the HCPC in the file note of 5 February 2016, which made further reference to difficult personal circumstances.

44.          The Panel first considered taking no action or imposing a Caution Order. It concluded that neither would be appropriate to mark the seriousness of the matters for which the Registrant’s fitness to practise is found to be impaired. This was not an isolated incident of a minor nature and there was a significant risk of repetition.

45.          The Panel next considered conditions of practice. The Panel was not provided with any information as to the Registrant’s current professional circumstances or her ability or willingness to comply with any conditions. No evidence of insight, remediation or remorse was provided to the Panel. The Panel had regard to the Indicative Sanctions Policy at paragraph 27, which states that the imposition of conditions requires a commitment on the part of a registrant to resolve matters, and is unlikely to be suitable in cases where a registrant lacks insight.

46.          In circumstances where the Registrant is not engaging with proceedings, the Panel was unable to formulate practicable and workable conditions which would adequately protect the public or satisfy the public interest.

47.          In considering a suspension order, the Panel again had regard to the Indicative Sanctions Policy, which states at paragraph 32, “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”.

48.          Whilst the Panel had found that there was a risk of repetition, it considered that the misconduct was remediable. Accordingly, the Panel considered that a period of suspension could afford the Registrant the opportunity to demonstrate that she has developed sufficient insight into her failings and has remedied her misconduct, such that it is highly unlikely to be repeated.

49.          In considering whether a suspension order was proportionate, the Panel was mindful that striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. It therefore considered that a striking off order would be disproportionate at this time.

50.          In determining the length of the suspension order, the Panel considered that 12 months was necessary, given that, due to her non-engagement, the Registrant has not yet demonstrated any insight or remediation. Such a period may enable the Registrant to re-engage with the regulatory process and her profession, and to address appropriate remediation.

51.          The suspension order will be reviewed prior to its expiry. A reviewing Panel may be assisted by the following:

               Evidence of the Registrant’s engagement with the HCPC and her attendance at the review hearing;

               Evidence of the Registrant’s insight and appreciation of the potential harm caused by her to service users and the reputation of her profession;

               Evidence that the Registrant has kept her professional knowledge up to date.

Order

That the Registrar is directed to suspend the registration of Ms Arlene Nicholson for a period of 12 months from the date this order comes into effect.

Notes

The order imposed today will apply from 25 April 2017 (the operative date)

This order will be reviewed again before its expiry on 25 April 2018.

Hearing history

History of Hearings for Ms Arlene Nicholson

Date Panel Hearing type Outcomes / Status
15/03/2018 Conduct and Competence Committee Review Hearing Suspended
27/03/2017 Conduct and Competence Committee Final Hearing Suspended