Miss Emma Dowd
1. During the course of your employment with Cornwall Council as a
registered Social worker you:
a. On or around the 16 December 2015 accessed Server User A, B and C case notes on your employers case management system (MOSAIC) without business need;
b. Disclosed confidential Information gained from MOSAIC surrounding Server User A, B and C to another individual who was not a Council employee.
2. The matters set out at 1(a) and 1(b) amount to misconduct.
3. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
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, by First Class post on 12 January 2017, to the address shown for the Registrant on the HCPC register. The Notice of Hearing had also been sent to the Registrant by email on the same date. 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 and that the HCPC had taken all reasonable steps to bring notice of this hearing to the Registrant’s attention.
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 & Competence Rules. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in Absence”.
3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
a) The Registrant has not engaged with the regulatory process. Despite correspondence being sent to the Registrant from the HCPC by post and email during the investigation stage of these proceedings there has been no response from her. Having been properly served with the Notice of Hearing, the Panel was satisfied that it was fair and reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of her right to attend.
b) The Registrant has not made an application to adjourn and there is no indication that even if the case were to be adjourned that she would attend on any future date. In these circumstances an adjournment would serve no useful purpose.
c) The Panel noted that the evidence is primarily document based, rather than solely dependent on witness recollections. However, two witnesses were in attendance to give evidence on Day 1 and the Panel concluded that it would not be in the interests of justice for the evidence of these witnesses to be inconvenienced or for their evidence to be delayed.
d) The Panel acknowledged that proceeding in the absence of the Registrant may cause some disadvantage to her in that she would not be able to present her case or challenge the HCPC’s case. However, the Panel concluded that the Registrant’s interests were outweighed by the Panel’s duty to give effect to the public’s interest by ensuring that the hearing commences and concludes expeditiously.
4. The Panel, having determined that the hearing should proceed in the Registrant’s absence, was aware that no adverse inferences should be drawn from the Registrant’s non-attendance. The Panel was also aware that in fairness to the Registrant any reasonable questions that could be put to the witnesses on behalf of the Registrant would be put by the Panel.
Application to Amend
5. Mr Foxsmith, on behalf of the HCPC, made an application for the Allegation to be amended, by replacing ‘case notes’ with ‘records’ and by removing the lack of competence ground. The Registrant had been put on notice of the proposed amendments in a letter, dated 29 July 2016, and no objection had been raised at that time or since.
6. The Panel determined that the particulars should be amended. The Panel concluded that the amendments:
· provide helpful clarification by changing the description of the material accessed from ’case notes’ to ‘records’ which more accurately reflects the HCPC case;
· avoids ambiguity;
· do not alter the substance or meaning of the Allegation as originally drafted and do not widen the HCPC’s case. In fact the amendment of the grounds limits of the scope of the HCPC’s case.
7. The Panel was satisfied that no injustice would be caused by making these amendments as they accurately reflect the HCPC case. In forming this view the Panel took into account the fact that the Registrant had been put on notice of the HCPC’s application eight months in advance and had made no representations with regard to the proposed amendments.
8. The Registrant was employed by Cornwall Council (‘the Council’) as a newly qualified Social Worker from September 2015. The Registrant was employed in the Adults Care and Support Team, which deals with service users with learning difficulties, physical difficulties and those with drug and alcohol concerns. On 21 December 2015 concerns were raised that the Registrant had accessed the personal records of her boyfriend’s ex-wife (Service User A) and her children (Service User B and Service User C) and then disclosed information in these records to him. The Registrant’s boyfriend is referred to as Person D.
9. Witness 1, a Senior Family Worker in the Children’s Team, was supporting Service User A and her children. Witness 1 received a telephone call from Service User A on 18 December 2015. Service User A expressed concern that she had been informed by Person D that the Registrant had accessed her confidential records.
10. An investigation was carried out by Witness 2, Principal Social Worker at the Council, into allegations that the Registrant had accessed confidential records without having any professional reason to do so. The Council used a database called MOSAIC as a central data system for records regarding all service users. Social Workers of the Council were provided with user login details which allowed them to access records on the system. Records should only have been accessed where there was a professional purpose for doing so. The use of the login also enabled the Council to audit which records had been accessed. Witness 2 had requested an audit of MOSAIC. This audit confirmed that the Registrant had accessed the confidential records of Service User A, B and C.
Assessment of Witnesses
The Panel heard oral evidence from the following HCPC witnesses:
Witness 1, Senior Family Worker
11. The Panel found Witness 1 to be a credible and reliable witness. Witness 1 was aware that the Registrant was a social worker in the Adults Team but did not work with her and to her knowledge they had never met. Witness 1 provided the Panel with a clear and consistent account of the content and nature of the telephone discussion that she had with Service User A on 18 December 2015. The Panel recognised that the evidence of Witness 1 was hearsay in respect of the conversation between Service User A and Person D. Therefore, the Panel proceeded with caution in assessing the weight to be attached to this evidence.
Witness 2, Principal Social Worker
12. The Panel also found Witness 2 to be a credible and reliable witness. She was the Registrant’s line manager and interviewed the Registrant as part of her investigation into the alleged information security breaches. Witness 2 provided the Panel with a clear explanation of the remit of her investigation, the Employee Code of Conduct policy and the use of the MOSAIC central data system. Witness 2 also outlined the reputational and financial risks associated with the alleged data protection breaches. Witness 2’s evidence was fair and balanced. She informed the Panel that the Registrant was bright, keen and capable and prior to the breach of confidentiality appeared to be at the start of a successful career as a social worker.
13. The Panel noted that according to the minutes of the interview conducted with the Registrant on 21 January 2016, the Registrant made certain admissions. However, the Panel was not informed that the Registrant had made any formal admissions to the HCPC and therefore for the purposes of fact finding the Panel proceeded on the basis that the Allegations were denied.
Decision on facts
14. The Panel was aware that the burden of proving the facts was on the HCPC and that the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities. The Registrant did not have to prove or disprove anything.
15. In reaching its decision, the Panel took into account all of the documentary evidence. The Panel also took into account the oral evidence of the HCPC witnesses and the submissions of Mr Foxsmith, on behalf of the HCPC.
16. The Panel accepted the advice of the Legal Assessor.
Particular 1(a) – Found Proved
‘During the course of your employment with Cornwall Council as a registered Social Worker, you:
‘On or around the 16 December you accessed records for Service Users A, B and C on your employer’s case management system (MOSAIC) without business need:’
17. The Panel took into account the evidence of Witness 2 with regard to the MOSAIC case management system. The Panel accepted that having logged in to MOSAIC, a user would be taken to an access page which states:
· ‘Look only at records which are within your responsibilities and duties.
· You must not access information which relates to a friend or family member nor do so on behalf of another member of staff. This will be seen as a serious breach of confidentiality and as such will be deemed as potential misconduct and could result in disciplinary action.
· Inappropriate use of this system can lead to disciplinary action being taken and you may leave yourself open to legal proceedings under the Data Protection Act 1998.
· A detailed audit is kept of access, including viewing records’.
18. Witness 2 explained that IT Services were instructed to conduct an audit of the Registrant’s use of MOSAIC from 10 October 2015 - 18 December 2015, which were the first and last days that she was able to use the system. The Panel was satisfied that the search revealed that the Registrant had accessed the records of Service User A, Service User B and Service User C on 15 December 2015 for a total of just over six minutes. The Registrant’s access to the confidential records included viewing the Personal Records of Service Users A, B and C and the Case Notes of Service Users B and C. The Panel accepted the evidence of Witness 2 that although the front screen contains basic information it is possible to access assessment information from that page, which contains highly confidential information.
19. The Panel accepted that the Registrant was provided with a copy of the Council’s Employee Code of Conduct during her induction and that she had access to it on the intranet. Witness 2 also informed the Panel that as the Registrant’s line manager she had discussed safeguarding cases with the Registrant where decisions about disclosure were discussed to protect service users’ confidentiality. The Panel had no reason to doubt that these discussions took place. The Panel also accepted that the Registrant confirmed that she was willing to be bound by the guidelines and policies when she undertook her training and accepted employment with the Council. The Panel noted that the Council’s Confidentiality Guidelines state:
‘Access to personal confidential data should be on a strict need-to-know basis. Only those individuals who need access to personal confidential data should have access to it, and they should only have access to the data items that they need to see…’
20. The Panel took into account the apparent admission and explanation provided by the Registrant when she was interviewed on 21 January 2016. The Registrant is recorded as having confirmed that she accessed the records of Service Users A, B and C as she had read a post on a local newspaper’s Facebook page that Service User A had been involved in an incident. The Registrant wanted to know if that was the person she knew by the same name. When this reasoning was challenged the Registrant accepted that she had no explanation for accessing Service User A’s records other than wanting to find out if she was the person the Registrant knew. The Registrant also accepted that she may have accessed the records of Service User B’s records first which undermined the explanation she provided.
21. Although not a verbatim transcript, the Panel had no reason to doubt that the minutes of the internal interview with the Registrant were accurate. The Panel accepted the responses attributed to the Registrant were made by her and concluded that the explanation she provided did not justify accessing the confidential records of Service Users A, B and C. In the absence of any other explanation the Panel concluded that there was no professional reason for the Registrant to access any of these confidential records and therefore the access was without business need.
Particular 1(b) – Found Proved
‘Disclosed confidential information gained from MOSAIC surrounding Service Users A, B and C to another individual who was not a council employee’;
22. The Panel took into account the evidence of Witness 1 with regards to the telephone call she received from Service User A on 18 December 2015. Witness 1 had made a file record of this conversation shortly after she received the call. Witness 1 informed the Panel that Service User A told her that her ex-husband, Person D, was dating the Registrant. Service User A also stated that she was informed by Person D that the Registrant had viewed her personal records. Service User A was upset and concerned, particularly as she was also informed by Person D that the Registrant told him that Service User A had tried to take her own life, was in receipt of benefits and that she could have Service User A’s children taken away from her.
23. The Panel had no reason to doubt that the discussion Witness 1 described was anything other than her genuine recollection of the conversation that took place. However, the Panel proceeded with caution as the reported conversation between Service User A and Person D was hearsay. In assessing what weight to attach to this reported conversation the Panel took into account the corroborative evidence from the audit of the MOSAIC case management system and the evidence from Witness 2 with regard to the responses from the Registrant during the investigation interview.
24. The Panel, having already found that the Registrant had viewed the personal records of Service Users A, B and C, was satisfied that this provided her with access to confidential information. The Panel accepted that this confidential material may have included information about benefits and mental health issues. The Panel noted that when the Registrant was questioned about the disclosures she did not deny that she knew Person D. She confirmed that she had spoken to Person D about the Facebook post and that she told him that she had seen information relating to it on Service User A’s case notes.
25. The Panel was satisfied that taken together there was sufficient and reliable evidence to conclude that having accessed confidential information on MOSAIC the Registrant disclosed this information to Person D.
26. In considering the issue of misconduct, the Panel took into account the oral submissions of Mr Foxsmith, on behalf of the HCPC, and followed the advice of the Legal Assessor.
27. The Panel bore in mind the explanation of the term ‘misconduct’ given by the Privy Council in the case of Roylance v GMC (No.2)  1 AC 311 where it was stated that:
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”
28. The Registrant breached data protection and confidentiality requirements, which are fundamental to the role of a registered Social Worker. These breaches were for the purpose of furthering the Registrant’s own needs and interests. In relation to Service User A, the Panel identified the following adverse consequences as result of the Registrant’s actions:
· distress and anxiety;
· exposure to the risk of emotional harm as a consequence of fearing that her children would be taken from her;
· loss of trust and confidence in social workers and the Council.
29. In addition to the impact on Service User A the Panel noted that the Council was potentially exposed to reputational damage and financial loss. Furthermore, the Registrant’s conduct had the potential to adversely affect colleagues within both the Adult’s and Children’s Teams and the wider profession. Trust and confidence amongst professional colleagues is extremely important; they should be able to rely on team members to act with integrity at all times.
30. The Panel considered the HCPC Standards of Conduct, Performance and Ethics. The Panel concluded that the Registrant’s conduct breached a number of standards including:
1 – You must act in the best interests of service users.
2 – You must respect the confidentiality of service users.
3 - You must keep high standards of personal conduct.
13 – You must behave with … integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.
31. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied that the Registrant’s conduct and behaviour fell far below the standards expected of a registered Social Worker. The Registrant knew or ought to have known the importance of safeguarding confidential information because she had undertaken E-Learning on Information Security on 24 September 2015 which was based on the Council’s Information Governance Policy and had agreed to be bound by the Confidentiality Guidelines and Code of Conduct when she accepted employment at the Council.
32. The Registrant’s actions were serious and in the view of the Panel clearly amount to misconduct.
Decision on impairment
33. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.
34. In determining current impairment the Panel had regard to the following aspects of the public interest:
· The ‘personal’ component: the current competence, behaviour etc. 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.
35. The Panel took the view that the factual findings raise significant concerns. The Registrant abused the position of trust that her employer and the public place in all social workers and demonstrated a serious lack of judgment.
36. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.
37. The Panel noted that when the Registrant was suspended on 4 January 2016, pending an internal investigation, she was informed of the alleged breach of confidentiality. However, there was no indication that the Registrant had reflected on her conduct and behaviour when she was interviewed by Witness 2 more than two weeks later on 21 January 2016. There were no expressions of remorse or any indication that the Registrant understood the impact her behaviour had on others, the Council and the wider profession.
38. Furthermore, as there has been no engagement from the Registrant in these proceedings there is no evidence before the Panel that she fully appreciates the gravity of her misconduct, there is no explanation as to how she would behave differently in the future and no assurance that such serious misconduct would not be repeated. In the absence of any information with regards to the Registrant’s current level of insight the Panel concluded that there is a real risk of repetition. Given that social work necessarily involves access to vulnerable individuals, the Panel determined that there is a current and ongoing risk of harm to service users.
39. The Panel recognised that demonstrating remediation in a case involving matters of probity is particularly difficult as such issues are reliant on attitude, which can often only be inferred from conduct. The Panel noted that the Registrant’s conduct relates to a discrete set of circumstances, which may have the potential to be remediated, provided that there is evidence of sincere and meaningful reflection that demonstrates that the wrongdoing is firmly in the past and is not a deep seated attitudinal trait. However, the Registrant has provided no information that would assist the Panel in this regard.
40. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.
41. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
42. 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 access confidential information for an improper purpose. The Panel took the view that the Registrant has brought the profession into disrepute, has breached a fundamental tenet of the profession by failing to act in the best interest of Service Users A, B and C and demonstrated a lack of integrity. In the absence of any evidence of remediation there is a risk that all of these features are likely to be repeated in the future. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.
43. 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
44 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, 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 and upholding proper standards of conduct and behaviour. 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.
45 The Panel had regard to its findings in relation to misconduct and impairment of the Registrant’s fitness to practise. The Panel also had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Foxsmith, on behalf of the HCPC.
46 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 identified the following mitigating factors:
· The Registrant made admissions during the internal interview;
· There was positive evidence from Witness 2 that the Registrant was a competent newly qualified Social Worker. Witness 2 described her as ‘bright, keen, able and eager to learn’;
47 The Panel identified the following aggravating factors:
· The Service Users were vulnerable individuals;
· The Registrant has never acknowledged the seriousness of her conduct and as a consequence there is no evidence of any insight;
· The Registrant has not expressed any remorse.
48 The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct to take no action on her 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.
49 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.”
50 In view of the Panel’s findings that the Registrant has demonstrated no insight when she had the opportunity to do so, during the internal investigation interview, and has demonstrated no insight since, the Panel concluded that a Caution Order was not appropriate. The Panel also took the view that the Registrant’s misconduct 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 from the risk of repetition. 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.
51 The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states at paragraph 28:
‘Whilst conditions can be drafted so that they are verifiable, including providing mechanisms for verifying compliance…to a large extent the registrant will be trusted to adhere to those conditions. Where the allegation before the Panel is based upon actions which constitute… a breach of trust, conditions of practice are unlikely to be appropriate...’
52 The Registrant’s behaviour in accessing confidential records to further her own interests demonstrated a lack of integrity and such behaviour is not amenable to conditions, as the basis for this type of misconduct is an attitudinal failing. Furthermore, such failings undermine the trust and confidence the public are entitled to expect from all professional Social Workers, newly qualified or otherwise. As a consequence the Panel concluded that conditions would not adequately meet the wider public interest.
53 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, that striking off is not merited’
54 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 question then arises as to what assurance there would be when the suspension came to an end, that the risk to the public would be sufficiently reduced. The Panel took the view that that would depend, on the extent to which the Registrant’s misconduct 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.’
55 In this case the Panel considered that not only is the Registrant’s lack of integrity, evidenced by a willingness to access confidential records to service her own needs, inherently difficult to remediate, but in the absence of evidence of a willingness to remedy her failings, it concluded that there is no realistic prospect that she will do so in the future. In the Panel’s view the evidence suggests that the Registrant is either unwilling or unable to remedy her failings and therefore a Striking Off Order may be the most appropriate option.
56 In relation to a Striking Off Order the Panel noted that the ISP states at paragraph 40 and 41:
‘Striking Off is a sanction of last resort for serious, deliberate or reckless acts involving abusive 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.’
57 It is the Panel’s view that this is such a case. The Registrant’s misconduct has involved a gross breach of trust which caused distress and anguish to a vulnerable Service User. She has shown no evidence of insight or a willingness to acknowledge her failings. The Panel does not consider that there is any way to protect the public other than through a Striking Off Order.
58 Furthermore, it is the Panel’s view that the public would consider the Registrant’s misconduct to be a betrayal of the trust placed in her by her employer, colleagues and the wider public and therefore a matter which would need to be marked by the most severe 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.
59 Accordingly, it is the Panel’s decision that a Striking Off Order is the appropriate, necessary and proportionate sanction in this case.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel reached this decision having concluded that there is a serious and on-going risk to service users and having concluded that the Registrant's misconduct is so serious that public confidence would be undermined if she were permitted to remain in practice even on a restricted basis. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
History of Hearings for Miss Emma Dowd
|Date||Panel||Hearing type||Outcomes / Status|
|05/04/2017||Conduct and Competence Committee||Final Hearing||Struck off|