Mr Vitor Manuel Amarel Costa

: Social worker

: SW92292

: Review Hearing

Date and Time of hearing:10:00 02/05/2017 End: 12:30 02/05/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (as found proven at Final Hearing)

Whilst registered as a Social Worker you:

1. Undertook a voluntary placement organised by Gloucestershire Care Services NHS Trust from around June 2013 to July 2013 and demonstrated a lack of basic social work knowledge, including a lack of understanding of:

a) the relevant legislation and/or legal bases for social work;
b) the eligibility criteria;
c) the adult social care assessment process;
d) Not found proven

2. Demonstrated a lack of basic social work knowledge during an assessment and/or interview carried out on 2 September 2013, including a lack of understanding of:

a) the Mental Capacity Act;
b) the Mental Health Act;
c) the differences as a Social Worker between working with children and adults;
d) Fair Access to Care Services (FACS) eligibility;
e) financial assessment.

3. The matters described in paragraphs 1 and 2 amount to lack of competence.

4. By reason of your lack of competence your fitness to practise is impaired.

Finding

Background
 
1. This is a review under Article 30 (1) of the Health and Social Work Professions Order 2001 to review a 4 month suspension order made on 17 March 2017.

2. There was no issue as to service as the Registrant was present and represented by Mr Maxwell of Counsel.

3. Mr Costa (the Registrant) qualified as a Social Worker in Portugal in September 2007 and was registered with the HCPC in April 2013. In March 2013, he was placed on the Temporary Staff Register of Gloucestershire County Council (“GCC”). He attended a voluntary work placement with GCC’s Integrated Multi-Disciplinary Community Team (“the Team”) which undertakes assessments of the needs of vulnerable or marginalised adult Service Users. The Registrant’s line manager was MS who was concerned about the Registrant’s lack of basic social work knowledge. The Registrant decided that he would not attend the last week of his placement. In August 2013 he was invited to attend an interview and assessment, to determine whether he should stay on the Temporary Staff Register. During the interview and the assessment the Registrant demonstrated a misunderstanding of relevant legislation, provided incorrect information in response to basic questions and showed a lack of understanding of fundamental social work concepts. The areas in which he was deemed to be lacking in knowledge included the Mental Capacity Act, the Mental Health Act, the differences between working with children and adults, Fair Access to Care Services eligibility and financial assessment. As a result of this poor performance at interview the Registrant was removed from the Temporary Staff Register and referred to the HCPC.

4. The final hearing panel concluded that the facts found proved demonstrated an unacceptably low standard of professional performance amounting to a lack of competence, due to a lack of the knowledge, which even an inexperienced and newly qualified social worker would possess.  The original panel took into account the admission by the Registrant that he was “not up to the required standard” and concluded that the matters found proved amounted to a lack of competence. However the Registrant’s failings were deemed capable of remedy although he did not possess full insight into the impact the shortcomings in his knowledge and understanding could have on Service Users. There was no evidence that any Service User came to any harm.  The Registrant demonstrated a willingness and desire to remedy his failings.  He showed empathy and professional concern for others and wanted to be able to undertake an “adaptation course”.

5. The original panel imposed a Conditions of Practice Order as a sanction. However, at the first review of this order on 16 November 2015, the reviewing panel found the Registrant’s fitness to practise remained impaired because he had not addressed his lack of competency as a Social Worker, with efforts being made to address the conditions of practice only in the month prior to the first review. The first reviewing panel substituted the Conditions of Practice Order with an Order suspending the Registrant’s registration for 12 months.

6. The Order was further reviewed on 17 November 2016. The reviewing panel on that day determined that the Registrant’s fitness to practise remained impaired. That panel heard that the Registrant had found work in the care sector and that he remained committed to the profession. However, the panel’s view was that the Registrant still lacked a sufficient level of insight into his failings and how to address them.

7. That reviewing panel determined that the appropriate and proportionate sanction at that time was to extend the current Order of Suspension by an additional 4 months. The panel considered 4 months to be the appropriate period for the Registrant to demonstrate that he has taken the necessary steps to remedy his failings.

8. The Order was reviewed again on 17 March 2016 prior to the expiry of the 4 month suspension. On that occasion the Registrant gave evidence on oath. The Registrant stated that he was employed on a zero hours contract and had only worked 8 and a half hours in the past month. He did not have regular and meaningful supervision contact with his manager. His aim was to obtain full time paid employment. He also produced evidence of courses undertaken and produced a reflective piece. The panel determined that notwithstanding his continued engagement and commitment to remain in the profession his fitness to practice remained impaired as he had not demonstrated meaningful insight into the impact of his lack of competence on Service Users. Paragraph 21 of the decision is worth repeating in full.

9. “The Panel took into consideration that the Registrant had instructed a representative who was not able to be present today. The Registrant did not inform the HCPC in good time of this and this order was due to expire on 16 April 2017. Coupled with the fact that the HCPC would not be able to list this matter within the next three months, the Registrant did not make an application to adjourn these matters and that he was content for this hearing to proceed without legal representation. Taking that in consideration, the Panel determined that the appropriate period of suspension would be for another four months. This would allow the Registrant the time to demonstrate insight to evidence that he can effectively put his theoretical knowledge into a social care practice and also for him to be represented on the next occasion.”

Representations of the HCPC and the Registrant
10. On 31 March 2017 the Registrant sent an email to the HCPC requesting an early review hearing which the reason for today’s hearing is. Within that email he states that the current Suspension has been having a severe effect on his ability to work in any unqualified role in social care, undermining his success at job applications. The Suspension Order was said not to be appropriate because he works as a supervised contact worker having contact with vulnerable children and families and is looking for a second job in social care. The Registrant submitted a further reflective piece which the Panel has read and considered.

11. The Panel heard evidence on oath from Mr Costa. He is working for Freedom Childcare. He has been working there since November 2014 on a zero hours contract of paid employment. It is the work of social services/social care albeit in an unqualified role. He emphasised the impact of the suspension on his ability to undertake even unqualified social work type roles. The suspension has limited his opportunities and had a detrimental impact on his reputation. He remains committed to the social work profession and still retains a desire to be a Social Worker in England. The Registrant referred to the reflective piece which he further commented on. Since the date of the last Order in March 2017 he has been trying to attend seminars run by the British Association of Social Workers. The Registrant gave the Panel an update on his medical condition including treatment and prognosis which was heard in private session.

12. The Registrant was subject to cross examination by the HCPC and questions from the Panel.  The HCPC questions focussed on technical questions surrounding the governing legislation and social work practice to allow the Registrant the opportunity to demonstrate whether he had acquired the requisite knowledge since the original order. The Registrant was also asked about any feedback or advice he had taken note of. He gave an example of the use of simple and clear language for Service Users which he had been advised to use and asking the service user to repeat what he had said in order to confirm their comprehension. He has always been keen to respond to any feedback. He has not undertaken any specific courses since the last hearing. He accepted the only change since March 2017 was the submission of the reflective piece. The Registrant stated that a Conditions of Practice Order would open more doors professionally. He added that the previous Conditions of Practice were not practicable but the main difference since the making of that Order is his attitude, he is now much more resilient. 

13. In respect of questions from the Panel he confirmed he was dismissed from KeyRing in January 2017 for not passing the probation period. He was asked some questions about concerns raised by his employers at KeyRing and what his views were on them. He stated that in the future he must be very careful about not being misunderstood by Service Users. He must be clear in what he is saying either orally or in writing and not put his agenda onto other people’s actions. He did not accept that he actually had imposed his agenda on other professionals, but considered that he had been misunderstood. He did not agree that the minutes of the Investigatory Meeting at KeyRing were an accurate reflection of the facts. The KeyRing role while not a successful outcome was as a support worker not as a social worker. Also he had problems with the manager at KeyRing who he believes was bullying him. He had undertaken only 1 shift in March, 1 in April, 4 or 5 shifts in January and February 2017 for his current agency.  He was asked some further technical questions appertaining to social work including the relevant legislation by the Social Worker member of the Panel. He was also asked what journals he subscribed to and what seminars he wished to attend provided by the British Association of Social Workers. He has an interest in working with adults and seminars about the Care Act 2014. When asked to give more detail about the impact of his practice on Service Users, he agreed that his reflective piece was limited in scope, but he was unable to provide further understanding or insight into this subject.  His response was simply that he did not believe that his practice was any longer impaired.

14. Oral submissions were made on the Registrant’s behalf by Mr Maxwell of Counsel. He stated that this matter has been going on since 2013. He has been the subject of 4 reviews. On each occasion he has shown he is trying to improve and address the deficiencies in his practice. He is committed to continuing a career in social work. He is making efforts to improve and address the problems in his practice. It was submitted that there was nothing more he could do, given that he could not obtain work in the world of social care due to his current suspension. He has provided a reflective piece although it may be argued there are deficiencies in it. The Panel should consider whether to let the current order lapse or replace it with a conditions of practice order that will permit counselling and mentoring.

15. The HCPC submitted that the reflective piece was vague and short. Mr Claughton on behalf of the HCPC submitted that the reflective piece did not address recent work or the impact of his actions on Service Users. This issue has been raised on each previous occasion but has still not been met. The Registrant applied previously for voluntary removal which suggests a lack of commitment to the profession. His answers to the technical questions demonstrated that his practice remained impaired and there remained a possibility of repetition in the future, of failings in practice. His evidence as to impairment showed a lack of insight. The fact that he disagreed with the observations in the KeyRing meeting showed a worrying lack of insight. The point was made that the role at KeyRing was that of support worker not social worker but he was not competent even within that lesser role. The Registrant has had a significant period of time to remediate but he has not done so. His practice remains impaired. Conditions of practice have already been imposed but were not successful in providing an opportunity for remediation in this case. They would not be workable. Suspension is no longer proportionate given the amount of time that has passed and the fact he has not remediated his practice within that time. Accordingly, the only appropriate sanction is one of strike off.  

 Decision    

16. This Panel has taken into account all documentation placed before it and has given appropriate weight to the evidence supplied by the Registrant. It has heard the HCPC submissions; heard and accepted the advice of the Legal Assessor; and it has reminded itself of the terms of the Council’s Practice Note ‘Article 30 (2) Reviews’ which, while addressing a slightly different provision, contains useful guidance for the current application. In summary, the legal principles in respect of an Article 30 (1) review are as follows:

i) The primary objective of the Panel is to secure public protection in the most appropriate and proportionate way

ii) The Panel cannot go behind the original decision. Its task is to consider whether the order under review remains an appropriate and proportionate means of securing public protection. The Supreme Court recently emphasised that it is not for the reviewing panel to consider the adequacy of the original sanction as part of its deliberations. A review is “a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation” and it can never be a proper ground for the exercise of the power to extend the period of suspension that the period originally directed was insufficient to reflect the gravity of the original offence or offences- Habib Khan v GPhC (2016) UKSC 64 (a case in which the HCPC intervened as an interested party)

iii) The correct approach is to determine whether the Registrant’s impairment identified at the final hearing is still continuing and if so what level of restriction is appropriate.

iv)The Panel can allow the current suspension order to lapse, extend it or replace it with any sanction including, in the present circumstances, striking off- see Article 22 (1) (a) (ii) and 29 (6) Health and Social Work Professions Order 2001. The Panel should consider the sanctions in ascending order of severity. The Panel were reminded of the terms of the Indicative Sanctions Policy setting out the guidance in respect of sanction. 

17. The first question for the Panel is whether through the evidence provided, the Registrant can be said to have remedied the deficiencies previously identified such that his fitness to practise is no longer impaired. The Panel has no doubt that the Registrant’s fitness to practice remains currently impaired. The Registrant’s answers to specific questions were wholly unsatisfactory and betrayed a fundamental lack of insight into his own failings. The Registrant had a tendency to blame others and deflect from his own contribution, the most obvious example being the circumstances leading to his dismissal from the support worker post at KeyRing. The Panel has no confidence that the Registrant has insight into his failings and consequently is of the opinion that there is a serious risk of repetition. His answers to specific technical questions on relevant legislation and social work practice were on many occasions not comprehensive or, more troubling, simply wrong. The Panel observes that the Registrant has been subject to a restriction on his practice continually since November 2014. Despite this extensive period he has not remediated his deficiencies, indeed there is evidence such as the circumstances surrounding his dismissal from KeyRing, and the Registrant’s inability to demonstrate insight into his responsibility for those events, that almost all of the deficiencies in knowledge identified at the final hearing in 2014 remain. The Panel notes that the Registrant could not even provide accurate evidence on how many hours of work he had undertaken through his agency in 2017 and particularly since the date of the last hearing.

18. The Panel acknowledges the reflective piece submitted by the Registrant. While it summarised his work history it did not adequately demonstrate any insight into the impact his actions and lack of competency may have had on service users (which was its purpose). It failed to address the issues raised in the Keyring dismissal. In general it was an insubstantial piece of evidence to support remediation.

19. Accordingly the Panel has gone on to consider sanction. Considering available sanctions in ascending order as it must, it is clear that mediation or a caution would not be an appropriate and proportionate response to the impairment identified.

20. Conditions of Practice must be workable, practicable and verifiable. The Panel is of the view that the deficiencies in the Registrant’s practice are so fundamental that no Conditions of Practice would adequately address the necessity for public protection. Any conditions that could be formulated to do so, would be so restrictive as to amount to a suspension.

21. So far as Suspension is concerned the Panel notes the ISP guidance which states that suspension may not be appropriate where the Registrant cannot resolve or remediate his failings. This Registrant has been the subject of suspension for approximately a year and a half. On each occasion the Panel making the Order advised the Registrant on various steps that could be taken to demonstrate appropriate insight and remediation. Seemingly, despite the efforts of the Registrant, those steps have not been taken. Simply put, the Panel have no confidence that the Registrant is capable of resolving his failings. Consequently a further period of suspension would be of no utility.

22. Accordingly the Panel concludes that the only appropriate and proportionate sanction to meet the requirements of public protection is Striking Off. The Panel makes this Order in full knowledge of the detrimental impact that such an Order will have on the Registrant. Nevertheless, for the reasons stated, this is the only appropriate order in the circumstances.

Order

ORDER: The Registrar is directed to strike the name of Vitor Manuel Amaral Costa from the Register upon the expiry of the current order.

Notes

The Order  imposed will apply from 17 August 2017.

Hearing history

History of Hearings for Mr Vitor Manuel Amarel Costa

Date Panel Hearing type Outcomes / Status
02/05/2017 Conduct and Competence Committee Review Hearing Struck off
17/03/2017 Conduct and Competence Committee Review Hearing Suspended
17/11/2016 Conduct and Competence Committee Review Hearing Suspended
17/11/2015 Conduct and Competence Committee Review Hearing Suspended