Elizabeth Wanjiru Ka Mutiga

: Social worker

: SW57002

: Final Hearing

Date and Time of hearing:10:00 03/05/2017 End: 17:00 04/05/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

While registered as a Social Worker, you; 

1. on 25 February 2016, submitted false references to Sanctuary
Personnel Ltd when undergoing pre- employment checks in that:

a) a reference you provided which was purportedly from Person A of 
Wandsworth Borough Council was not written by him; and/or

b) a reference you provided which was purportedly from RH of East Sussex County Council was not written by him.

2. Your actions as described in paragraph 1 were dishonest.

3. The matters set out in paragraph 1 constitute misconduct.

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

Finding

Amended Allegation

1. While registered as a Social Worker, you;

1. On 25 February 2016, submitted references to Sanctuary Personnel Ltd when undergoing pre-employment checks and

a) A reference you provided which was purportedly from Person 1 of Wandsworth Borough Council was not written by him and/or

b) A reference you provided which was purportedly from Person 2 of East Sussex County Council was not written by him.

2. Your actions as described in paragraph 1 were dishonest.

3. The matters set out in paragraph 1 and 2 constitute misconduct.

4. By reason of your misconduct your fitness to practice is impaired.

Preliminary matters

1. The Panel found that there had been good service, in accordance with rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 by notice dated 5 January 2017. The Registrant is aware of the hearing today and has not attended the hearing.

2. The Panel considered whether to proceed with the hearing in the absence of the Registrant, Ms Mutiga. The Panel was advised by the Legal Assessor to consider the guidance in the Practice Note entitled Proceeding in the Absence of the Registrant and followed that advice. It is in the public interest to proceed with the hearing and there are three witnesses here today. The Panel concluded that the Registrant is aware of the hearing today and has waived her right to attend and has returned the Response Proforma on 16 March 2017 stating that she will not be attending.

Amended Application


3. The HCPC made an application to amend the particulars of the allegation. The Panel considered whether there was any unfairness or prejudice to Mrs Mutiga, also known as Elizabeth Lawrence, by reason of the proposed amendments, which serve to clarify the HCPC’s case in accordance with the evidence. Mrs Mutiga was given notice of the application on 16 August 2016 and she has not objected to it. The Panel granted the amendment application to protect the identity of the witnesses, and remove the word false from particular 1 because a specific reference to dishonesty appears in particular 2.

4. The Panel considered sequentially:

(1) Whether the factual particulars are proved;

(2) If the proved facts amount to misconduct; and if so:

(3) Is the Registrant’s fitness to practise currently impaired?

5. The Panel accepted the advice of the Legal Assessor that the burden of proof is upon the HCPC on the civil ‘balance of probabilities’ in relation to findings of fact. Whether any proved facts in this case amount to the statutory ground of misconduct and the issue of current impairment, are not matters which need to be proved. They are matters of judgement for the Panel.

Background

6. On 25 February 2016, as part of an application to Sanctuary Personnel Limited (Sanctuary), a recruitment agency, for a Social Worker role the Registrant sent an email containing two employment references from Person 1 and Person 2.

7. On 4 March 2016, the Junior Compliance Administrator at Sanctuary emailed Person 1 to verify the reference. Person 1 replied to this email confirming that he had not written the reference in question.

8. Person 2 was then emailed requesting that he confirm whether he had written the second reference. Person 2 responded to this email on 14 March 2016 confirming that he had not written that reference. Two genuine references had been provided for the Registrant by Person 2, one of which highlighted some shortcomings in the Registrant’s practice.

9. The Registrant, when questioned by Sanctuary, suggested that the references may have been supplied by another Recruitment Agency, Social Care Locums; but when approached by Sanctuary, Social Care Locums refuted this. The Registrant then suggested that the reference from Person 2 had been forwarded to her by a Recruitment Agency named TXM Healthcare, but could not recall the source of Person 1’s reference.

10. The Registrant Mrs Mutiga has not disputed the factual particulars and has submitted a written representation, apologising for her dishonesty.

Findings of Fact

11. The Panel heard oral evidence from the following HCPC witnesses: Witness 1 (Operations Manager at Sanctuary), Person 1 (Team Leader of the Review Team at Wandsworth Council) and Person 2 (Practice Manager at East Sussex County Council). The Panel also considered all the written material before it, including the submission from the Registrant dated 28 May 2016. The Panel found the HCPC witnesses to be credible and honest.

Particular 1a

12. The Registrant has admitted this factual particular and submitted written representations apologising for her behaviour. She says that she was unable to get hold of Person 1 to ask him for a reference, despite several attempts to contact him. The Panel finds that the Registrant misused Wandsworth Council headed note paper; fabricated a reference and herself wrote a signature for Person 1 and this particular is proved.

Particular 1b

13. The Registrant has admitted this factual particular and submitted written representations apologising for her dishonesty, as set out above. The Panel finds that the Registrant misused East Sussex County Council headed note paper, fabricated the reference, and herself wrote a signature for Person 2. This particular is proved.

14. Ms Mutiga has also described what she did as ‘mistakes’ but has not demonstrated sufficient insight into the dishonesty which has occurred on two separate occasions when fabricated references were submitted to secure employment as a Social Worker. The HCPC witnesses clearly state that they did not write the references which were provided by the Registrant and which contained numerous errors and spelling mistakes, consistent with her letter dated 28 May 2016, which states: ‘I acknowledge, regret, and apologise for my dishonest in this matter… I cannot justisfy that what I did in both cases was the right thing to do, but to apolige again and promise that such mistakes will not be repeated agin. (sic)’    

Particular 2

15. The Registrant admits that in respect of the matters referred to above she was dishonest. She has submitted a written representation apologising for her dishonesty. She says that she was unable to get hold of the referee in question as regards particular 1a.

16. The Panel considered a two-stage test in respect of the alleged dishonesty to determine whether according to the ordinary standards of reasonable and honest Social Workers what was done by the Registrant was dishonest. If it was not dishonest by those standards, that is the end of the matter. If it was dishonest by those standards then secondly, the Panel has to consider whether the Registrant must have known that what she did was, by those standards, dishonest. The Panel has considered whether dishonesty is or is not proved in respect of particulars 1a and 1b. The Panel took into account the Registrant’s admissions and explanations for her behaviour.

17. The Panel finds that both the objective and subjective tests for dishonesty are met.  The Registrant’s actions were dishonest by the standards of reasonable and honest members of the profession, and that she would have known her conduct was dishonest by those standards, in respect of particulars: 1a and 1b.

Grounds

18. Article 22(1) of the Health and Social Work Professions Order 2001 states:

This article applies where any allegation is made against a registrant to the effect that—

(a) his fitness to practise is impaired by reason of—

(i) misconduct

19. Misconduct is a word of general effect, involving some serious 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 Panel has referred to the HCPC Standards of conduct, performance and ethics (2016 edition), because the fabiricated references were submitted by the Registrant on 25 February 2016. Under the 2016 Standards, Registrants are required to comply with the following standard:

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession. 

9.2 You must be honest about your experience, qualifications and skills.

20. The Panel finds that the Registrant’s behaviour was in breach of the above standard and concludes that the allegation of misconduct, arising from the proved factual particulars is well founded, in respect of particulars 1a, 1b and 2, because the Registrant’s behaviour in respect of each particular is sufficiently serious to amount to misconduct.

Impairment

21. The Panel considered the Practice Note on Finding that Fitness to Practice is Impaired. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:

(1.) the ‘personal’ component: the current competence, behaviour etc. of the
individual registrant; and

(2.) the ‘public’ component: the need to protect service users, declare and
uphold proper standards of behaviour and maintain public confidence in the profession.

22. The HCPC submits that the Registrant’s fitness to practise is impaired on public and personal grounds, due to the dishonesty which has been admitted and proved and the Registrant’s failure to comply with the relevant standard of conduct.

23. The Registrant submits that she has worked hard as a Social Worker for 10 years and states she has never put any of her clients at risk, or been the subject of any previous complaints. She wishes to be able to continue to practise as a Social Worker and promises that her mistakes will not be repeated. She requests that the Panel deals with her leniently. The Registrant has not attended this hearing and has attempted to justify her actions in respect of Particular 1a, by reference to attempts to contact Person 1.

24. It is important to note that the test of impairment is expressed in the present tense; that fitness to practise is impaired at the current date. The Panel has also taken into account the critically important public policy issues.

25. Dame Janet Smith identified the circumstances where impairment might arise as: (a) where a registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession or (d) has acted in a way that his integrity can no longer be relied upon.

26. There is a requirement for a finding of current impairment to maintain public confidence in the profession. Furthermore, the dishonest behaviour of the Registrant was in breach of a fundamental tenet of the profession.

27. The Panel finds that the Registrant’s fitness to practise is impaired for both personal and public policy reasons.

Order

Decision on Sanction

28. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the evidence which contributed to its findings and has considered the submissions made on behalf of the HCPC, the written submissions of the Registrant and the advice of the Legal Assessor. In accordance with that advice the Panel has had due regard to the Indicative Sanctions Policy (ISP) of March 2017 and has noted that any sanction must be proportionate, that it is not intended to be punitive although it may have a punitive effect, and that it should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public and otherwise meeting the wider public interest, in protecting the reputation of the profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards.

29. The Registrant submits that she has worked hard as a Social Worker for 10 years and states she has never put any of her clients at risk, or been the subject of any previous complaints. She wishes to be able to continue to practise as a Social Worker and promises that her ‘mistakes’ will not be repeated. She requests that the Panel deals with her leniently. The Registrant has not attended this hearing.

30. The Panel has found that the Registrant’s actions were dishonest by the standards of reasonable and honest members of the profession and that she would have known her conduct was dishonest by those standards, in respect of the two employment references.

31. The Panel identified the aggravating and mitigating factors that it should take into account. The aggravating factors are:


• The Registrant’s dishonesty concerns two separate incidents of actively falsifying important documents.

• The misconduct in this case is not at the lower end of the spectrum.

• The dishonest conduct involved the sending of fabricated references designed to assist her to secure employment as a Social Worker.

• The reputation of the profession is likely to be damaged by reason of this dishonesty which breached a fundamental tenet of the profession.

• There are no personal character references or testimonials. 

• The Registrant gave misleading information to Sanctuary when challenged about the references, and used the names of former employers giving a risk that their own integrity would be compromised in the view of those receiving the references.

32. The mitigating features are:


• The Registrant has engaged with the HCPC process to a limited extent and admitted the factual particulars.

• She says she has been working in a social work role for 10 years without problems.

• There have not been any previous HCPC proceedings against the Registrant.

• Her written submission expresses regret and offers an apology.

33. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.

34. Taking no action or mediation would not be appropriate due to the seriousness of the misconduct.

35. The ISP states that a caution order should be considered in cases where there is an isolated lapse, the conduct is out of character and the risk of repetition is not high.

36. The Panel has decided that a caution order is not an appropriate sanction in this case due to the Registrant’s dishonesty on two separate occasions and is insufficient to mark the serious nature of the misconduct.

37. The Panel considered conditions of practice but concluded that conditions of practice are not an appropriate or workable sanction in this case.

38. The ISP states conditions of practice are unlikely to be suitable in cases involving dishonesty.

39. The Panel finds suspension is not appropriate due to the repeated dishonesty which breached a fundamental tenet of the Social Work profession, giving rise to a finding of serious misconduct and impairment on personal and public policy grounds.

40.  The Registrant’s last communication to the HCPC was on 28 May  2016.  She has given no up to date information about her current employer or plans for the future.  There is no up to date information about her current level of insight or learning from these events, and therefore a risk of repetition remains.

41. The Panel next considered imposing a striking off order. Striking off is a sanction of last resort but striking-off is merited in this case of serious misconduct, as a deterrent to other registrants and to maintain public confidence in the regulatory process and the reputation of the profession.

42. This was not an isolated incident, there is no evidence of insight by the Registrant, there is a serious risk of repetition and the nature of the dishonesty is unlikely to be remediated.

43. The Panel considers that a striking off order is required to meet the legitimate requirements of a sanction and is proportionate in all the circumstances.

Notes

Order:  The Registrar is directed to strike the name of Mrs Elizabeth Wanjiru Ka Mutiga from the Register.

 

Hearing history

History of Hearings for Elizabeth Wanjiru Ka Mutiga

Date Panel Hearing type Outcomes / Status
03/05/2017 Conduct and Competence Committee Final Hearing Struck off