Bernadette M Dinkin

: Social worker

: SW49907

: Final Hearing

Date and Time of hearing:10:00 15/06/2017 End: 17:00 16/06/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

Allegations (as amended at Final Hearing):

Whilst registered as a social worker;
1. On or around 26 August 2015, you used and/or allowed property belonging to Birmingham City Council(BCC) as collateral in obtaining a loan from a 'Cash Generator' shop in Coventry, namely;

a) a laptop and/or;

b) a mobile telephone

2. During 2014 and/or 2015, you used and/or allowed property belonging to Birmingham City Council (BCC) to be used as collateral in obtaining a loan from a 'Cash Generator' shop in Coventry on a number of occasions.

3) In relation to your actions in paragraph 1 and 2 you did not secure confidential and sensitive data located on one or both of the laptops and/or the mobile phone.

4) Your actions in paragraph 1- 2 were dishonest.

5) The matters set out in paragraphs 1- 4 constitute misconduct.

6) By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters:

Proving Service

1.   The Panel has seen a copy of the Notice of Hearing dated 20 February 2017 and the Amended Notice of Allegation dated 10 January 2017, which contain all relevant information, the proof of posting of the same date, and a copy of the certificate of the Registrant’s registered address. The Panel determined that there was good service of the Notice of Hearing on the Registrant at her registered address in accordance with the provisions of Rule 6(1) of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, as amended (“the Rules”).

Proceeding in absence

2.   The Panel heard a submission from Ms Parry on behalf of the HCPC to proceed in the absence of the Registrant under Rule 11 of the Rules. The Registrant was not present or represented and had not engaged at all with the HCPC in respect of these proceedings. Ms Parry invited the Panel to receive in private session two recent emails which were not from the Registrant but related to her present circumstances. The Panel agreed that both the content of the emails and any other confidential evidence should be heard in private pursuant to Rule 10(1) (a) of the Rules in the interests of justice and to protect the private life of the Registrant and others mentioned in those emails. Ms Parry also submitted that this process should not be frustrated by the Registrant’s failure to inform the HCPC of her new address.

3.   The Panel accepted the Legal Assessor’s advice to carefully consider all the circumstances and take account of the relevant HCPC Practice Note “Proceeding in the Absence of the Registrant” (September 2016) and the public interest in regulatory proceeding expeditiously for public protection reasons. The Panel also accepted the Legal Assessor’s advice that the Panel should bear in mind that if the Panel decides to proceed in the absence of the Registrant it is under a duty to take reasonable steps to test the evidence presented by the HCPC.

4.   The Panel noted that the Registrant had not applied for an adjournment. The Panel also took account of the public interest in final hearings being dealt with at the appropriate time and expeditiously. The Panel was also mindful that two witnesses were in attendance to give evidence today.

5.   The Panel determined that the HCPC had taken all reasonable steps to serve the Notice of Hearing on the Registrant. The Registrant had not engaged at all with the HCPC in respect of these proceedings and had not sought an adjournment. There would be inconvenience to witnesses if the case was adjourned, the case related to matters that occurred some two years ago and there was nothing to suggest that the Registrant would attend, or be represented, on a future date if this hearing was adjourned. The Panel recognised that it was accordingly fair, proportionate and in the public interest to proceed with this final hearing in her absence.

Amendment of the allegation

6.   Ms Parry applied for the allegation to be amended as indicated in the HCPC’s letter to the Registrant dated 10 January 2017. There had been no response from the Registrant. Ms Parry submitted that the amended form of the allegation would more properly reflect the evidence in the case and it was therefore appropriate for the Panel to allow the amendments.

7.   The Panel accepted the Legal Assessor’s advice that it could allow amendments if there was no injustice to the Registrant, and determined that it was appropriate to allow the amendments sought.

Background:

8.   The Registrant is a registered Social Worker and had been employed by Birmingham City Council (BCC) since 2007. From July 2013 the Registrant was employed as a Grade 5 Senior Social Worker in the Family Support and Safeguarding Kitts Green team. It was alleged that the Registrant had, on a number of occasions, in 2014 and 2015 used property belonging to BCC as collateral in obtaining a loan from a ‘Cash Generator shop in Coventry. It was further alleged that in August 2015 the Registrant had used a colleague’s work laptop and smart phone as collateral in obtaining a loan from the same shop.

Evidence:

9.   Witness 1, Team Manager for BCC’s Children’s Services, Integrated Services and Early Help gave oral evidence and confirmed the contents of her witness statement dated 9 February 2017 dealing with her investigation on behalf of BCC. She also confirmed the contents of the contemporary note of investigatory interview with the Registrant on 5 November 2015, when the Registrant had made full admissions and explained the extenuating circumstances which had led her to wrongfully ‘pawning’ those items. She said that the investigation process through to the disciplinary hearing seemed to have made the Registrant realise the seriousness of what she had done, including the risk to confidential information, and the Registrant was very remorseful in that investigatory interview.

10. The Panel also heard oral evidence from Witness 2, the Registrant’s direct supervisor at BCC. He confirmed the contents of his witness statement dated 11 February 2017 and the Registrant informing him on 2 September 2015 that she had borrowed colleague’s laptop. Witness 2 ascertained that the Registrant had not been given permission to borrow that colleague’s laptop. The Laptop was returned to its owner on 2 September 2015 who found a Cash Generator’s buy-back agreement with the laptop. Witness 2 identified a copy of that agreement to the Panel which confirmed the laptop as having been used as collateral by the Registrant to obtain a loan of £50.00, with a buy-back value of £67.50. The agreement was dated 26 August 2015 and signed by the Registrant. Witness 2 later spoke to the manager at the Cash Generator shop who told him that he had not requested the password to the laptop from the Registrant.

11. Subsequently, on 7 September 2015, Witness 2 had gone to collect BCC’s work items from the Registrant’s home address. The Registrant had handed over her work laptop and an old work Nokia phone, and when Witness 2 asked for her work smartphone, the Registrant informed him that it had been pawned by another person. On 9 September 2015, Witness 2 ascertained that the smartphone was at the Cash Generator shop and arranged for the Police to collect it.

12. Ms Parry submitted that the Panel, applying the civil standard of proof that was on the HCPC, could find each of the particulars of the allegation proved. She acknowledged that in respect of dishonesty, there was a twofold test to apply, containing an objective element and a subjective element.

13. The Panel accepted the Legal Assessor’s advice. The Panel recognised that the burden of proof was upon the HCPC to prove the alleged facts, and that the standard of proof was that the alleged fact more probably occurred than not. The Panel carefully assessed the oral and documentary evidence presented, and also carefully considered what weight should be given to the hearsay evidence presented in accordance with the factors set out in s.4 of the Civil Evidence Act 1995.

14. The Panel determined that both witnesses who had given oral evidence had given their evidence in a balanced way, and were credible and reliable witnesses of fact.

Decision on Facts:

 Whilst registered as a social worker;
 1. On or around 26 August 2015, you used and/or allowed property belonging to Birmingham City Council(BCC) as collateral in obtaining a loan from a 'Cash Generator' shop in Coventry, namely;
a) a laptop and/or;

 Proved

15. The Panel noted the copy of the Cash Generator buy-back agreement in the bundle was dated 26 August 2015, identified the laptop as a Lenovo win 7.13, and identified the Registrant as a signatory to that agreement. The loan amount was £50.00 and the buy-back sum was £67.50. Witness 1 had told the Panel that this was the type of computer BCC provided to the Registrant. The Registrant had admitted in the BCC investigatory interview with Witness 1 on 5 November 2015 that she had “pawned” her assigned laptop to Cash Generator in Coventry between 26 and 28 August 2015. The Registrant had agreed that the written notes of that interview were correct on 14 November 2015 except in relation to another matter. The Panel accordingly found it proved that the Registrant had either used or allowed the laptop to be used as collateral for the loan.

b) a mobile telephone

Proved

16. The Panel noted that there was a copy of a Cash Generator buy-back agreement for a Nokia Lumia mobile phone dated 2 September 2015 in the bundle of documents presented by the HCPC, but the name and signature had been redacted. The Registrant had admitted in her investigatory interview with   Witness 1 on 5 November 2015 that her BCC smart phone had been pawned after she had bought back her laptop. She said another person had pawned it, and she also said the same to Witness 2 on 7 September 2015. The Panel accordingly found it proved that the Registrant had either used or allowed the BCC smart phone to be used as collateral for the loan.

 2. During 2014 and/or 2015, you used and/or allowed property belonging to Birmingham City Council (BCC) to be used as collateral in obtaining a loan from a 'Cash Generator' shop in Coventry on a number of occasions.

 Not proven

17. There was no direct evidence from either Witness 1 or Witness 2 to support this allegation, and there was no specific admission made by the Registrant in the BCC investigatory interview on 5 November 2015. The HCPC sought to rely on hearsay evidence of statements given by the Cash Generator manager and the Police. However, the Panel considered it could not place any weight on that evidence because the HCPC had provided no explanation for not calling the manager and police officer to give direct evidence of those matters. Further, whilst the HCPC submitted that there was supportive oral evidence from Witness 1 and Witness 2 that evidence only emerged in their oral evidence and was not in their witness statements served on the Registrant. Further, even at its highest, that new evidence did not establish that the Registrant had “pawned” BCC property on any prior occasion, only that some work laptops had gone missing on previous occasions.

3. In relation to your actions in paragraph 1 and 2 you did not secure confidential and sensitive data located on one or both of the laptops and/or the mobile phone.

 Not proven

18. The HCPC’s case was that the Registrant had provided Cash Generator with the passwords for both the BCC work laptop and the BCC work mobile smart phone. The only evidence to support this was the hearsay evidence given by Witness 1 that she understood the Police had spoken to Cash Generator and it was confirmed that they would have been able to access the information that was on the laptop. That was contradicted by the oral evidence of Witness 2 that the Cash Generator manager told him that he had not been given the password for the BCC laptop. In respect of the work mobile smart phone the evidence was inconclusive as to whether a password had been given to Cash Generator.  Without either the relevant Police officer and/or the Cash Generator Sales Floor Manager having been called by the HCPC to give evidence, the Panel determined that this allegation was not proven on the balance of probabilities.

4) Your actions in paragraph 1- 2 were dishonest.
Proven in respect of paragraphs 1a and 1b
Not proven in respect of paragraph 2

19. The Panel applied the two-fold test. It determined that in respect of using or allowing the BCC work laptop and mobile smart phone as collateral for a loan, ordinary and honest members of the public would consider that to be dishonest. The Panel also determined that it must have been obvious to the Registrant at the time that, by those standards, what she was doing or allowing to be done would be considered dishonest. She well knew that the items were her employer’s, not hers, and could not have thought that she was entitled to use them as collateral in that way.

20. Paragraph 2 had not been found proved, so there was no need to consider dishonesty with regard to that allegation.

Ground of Misconduct

21. Ms Parry submitted that the proven facts were serious, because they involved misuse of employer’s property and that misuse had been dishonest. Further, the Registrant’s conduct amounted to a clear breach of the applicable standard 13 of the HCPC “Standards of conduct, performance and ethics” 2008 (as amended 2012). That requires registered Social Workers to “behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession”.

22. She also submitted that dishonesty was a category of conduct that was likely to amount to serious misconduct as recognised in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin).

23. The Panel accepted the Legal Assessor’s advice that the question of misconduct was a matter for the professional judgement of the Panel, and that the misconduct had to be considered serious to amount to the ground for impairment of misconduct.

24. The Panel determined that the proven facts and dishonesty in the linked paragraphs 1 and 4 of the allegation did amount to a breach of the applicable standard 13 and was misconduct which was serious. The ground of misconduct was therefore established upon those proven facts.

Impairment

25. Ms Parry referred the Panel to the HCPC’s Practice Note “Finding that Fitness to Practise is ‘Impaired’ ”. Ms Parry submitted that although Witness 1 had given evidence that she thought that the Registrant had shown some insight by the time of the BCC disciplinary hearing by expressing remorse at what she had done, there was no other evidence of insight. The Registrant had not engaged in these regulatory proceedings and had not provided any evidence of her insight, remorse or steps taken to remedy the misconduct. Whilst the Registrant had provided the BCC investigation with an explanation for her conduct, and the Panel had received in private further evidence of the Registrant’s past and current circumstances, Ms Parry submitted that the risk of repetition remained which would undermine public confidence in the profession.

26. The Panel accepted the Legal Assessor’s advice that the question of impairment was a matter for the independent professional judgement of the Panel, and that there were two components to that assessment. These were set out in the HCPC’s Practice Note Ms Parry referred to, namely, the personal component and the public component.

27. The Panel first considered the evidence regarding the Registrant’s insight and any steps taken to remediate. The only evidence came from the Registrant’s admissions in her BCC investigation interview in November 2015 and Witness 1’s oral evidence as to the Registrant’s expressions of remorse and developing insight. The Panel recognised the Registrant‘s difficult personal situation at the time of the misconduct, but the Registrant had not engaged in this regulatory process nor demonstrated further insight. The Panel bore in mind that there are considerable difficulties in remedying dishonesty. There was therefore a real risk of repetition of the dishonest misconduct which could be a risk to service users and undermine public confidence in the profession of Social Work.

28. With regard to the public component, the Panel felt compelled to conclude that public confidence in the profession and the regulatory process would be undermined if a finding of current impairment was not made in the circumstances of this case given the lack of engagement of the Registrant and the absence of steps taken to remedy her dishonest misconduct.

29. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired by reason of her proven past misconduct.

Decision on Sanction:

30. Ms Parry submitted that whether to impose a sanction, and, if so, what sanction, was a matter for the Panel alone applying the HCPTS’s “Indicative Sanctions Policy” (“ISP”). Any sanction should accordingly be the minimum necessary to protect the public and the wider public interest. Ms Parry submitted that she acknowledged there were mitigating factors in this case, but the aggravating features were the Registrant’s failure to develop further insight, the fact that dishonesty was involved, and she had been a Social Worker for a considerable time.

31. The Panel accepted the Legal Assessor’s advice that the primary function of any sanction is to address public safety from the perspective of the risk which the Registrant concerned may pose to those who use or need her services. However, in reaching their decisions, Panels must also give appropriate weight to the wider public interest. The Panel applied the ISP when determining the appropriate sanction, including the application of the principle of proportionality by balancing the interests of the public and the interests of the Registrant.

32. The Panel first considered what aggravating features were present in this case. Misusing employer’s property given to her to perform her work as a Social Worker as the Registrant had done, was a very serious matter. As both the laptop and the smart phone contained highly confidential information, albeit password protected, there had been a risk that that information could have been accessed by unauthorised persons. Dishonesty is always a serious matter for a professional person and strikes at the fundamental requirement of trustworthiness and integrity.

33. The Panel next considered what mitigating features were present. First, this was effectively isolated misconduct. Second, there was convincing evidence before the Panel of the extenuating circumstances of duress that contributed to the misconduct. Third, there is no evidence of repetition of dishonest behaviour. Fourth, there was evidence of some insight being gained by the Registrant during the BCC investigation and disciplinary process. Fifth, there was recent evidence that the Registrant was receiving assistance with her personal circumstances. Finally, this was the first occasion of the Registration being brought before her regulator during many years of practice as a Social Worker.

34. The Panel determined that the misconduct was too serious for the Panel to consider mediation, make no order, or impose a Caution Order. The Panel went on to consider a Conditions of Practice Order, but considered that there were no workable conditions that could be framed adequately to address the misconduct. There was the inherent problem of constructing conditions that could address the issue of dishonesty.

35. The Panel therefore considered whether a Suspension Order would provide sufficient protection to the public, maintain public confidence in the profession, and declare and uphold proper standards of conduct for the profession. The mitigating factors in this case led the Panel to consider that the following paragraph of the ISG was applicable:

“41. 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 there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.”

36. The Panel determined that a Suspension Order would be the sufficient and proportionate order. A Striking Off Order would be disproportionate. The Panel determined that it should be for the maximum 12 months to reflect the gravity of the misconduct, but also to provide a sufficient period for the Registrant to gain insight by suitable reflection on her misconduct prior to the review of the Suspension Order that will take place shortly before the end of the suspension. That reviewing panel is likely to be assisted by:

• the Registrant’s personal attendance at the review

• evidence of insight and remediation of her misconduct

• up to date testimonials and references in respect of the Registrant’s character

• information in respect of current employment whether paid or unpaid

Interim Order 

37. Ms Parry submitted that in the light of the sanction determined by the Panel it would be appropriate to impose an Interim Order of Suspension to cover the appeal period on the ground of it being necessary for the protection of the public and otherwise in the public interest.

38. The Panel accepted the Legal Assessor’s advice and had regard to the HCPTS’s Practice Note “Interim Orders”. The Panel determined that an Interim Order of Suspension was required due to the seriousness and nature of the misconduct. This order was required to both protect service users and to maintain public confidence in the profession and the regulatory process. The Interim Order will remain in place until the substantive Order of Suspension for 12 months comes into effect.

 

Order

ORDER: That the Registrar is directed to suspend the registration of Mrs Bernadette M Dinkin for a period of Twelve months from the date this order comes into effect.

Notes

The order imposed today will apply from 14 July 2017 (the operative date)


This order will be reviewed no later than 14 July 2018 or earlier if new evidence relevant to the Order  becomes available after it was made .

Hearing history

History of Hearings for Bernadette M Dinkin

Date Panel Hearing type Outcomes / Status
01/06/2018 Conduct and Competence Committee Review Hearing Suspended
15/06/2017 Conduct and Competence Committee Final Hearing Suspended
25/04/2017 Conduct and Competence Committee Interim Order Review Interim Suspension