Mr Seedy Saidykhan

: Social worker

: SW88228

: Final Hearing

Date and Time of hearing:10:00 03/07/2017 End: 17:00 06/07/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

During the course of your employment as a Social Worker at Buckinghamshire County Council between October 2013 And 29 August 2015, you:

1. Prior to submitting Client A’s Mental Capacity Assessment on 10 October 2014 and/or 13 October 2014, did not conduct a review of Client A’s capacity to make a decision about extra respite care.

2. On 10 October 2014 and/or 13 October 2014, submitted a Mental Capacity Assessment for Client A which:

a) was an amended version of a Mental Capacity Assessment for Client A which had been completed in 2011 by another worker;

b) did not assess Client A’s capacity to contribute to consideration of additional respite care.

3. Between 23 September 2014 and 09 October 2014, did not conduct a Mental Capacity Assessment for Client B prior to making a best interest decision regarding Client B’s ability to manage a payment of a direct grant.

4. On 9 October 2014 during a Mental Capacity Assessment for Client C:

a) did not allow Client Cs parents to Support Client C at the meeting;

5. The matters described in particular 1 and/or 2a are dishonest.

6. The matters set out in paragraph 1 - 5 constitute misconduct and/or lack of competence.

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

Finding

Preliminary matters
Service
1. The Notice of today’s hearing was sent to the Registrant at his address in the register on 29 March 2017 by first class post. The Notice contained the date, time and venue of today’s hearing. The Panel accepted the advice of the Legal Assessor and is satisfied that good service had been effected.

Proceeding in absence
2. The Registrant did not appear. However, two communications with him were produced. Firstly an email dated 23 January 2016 in which the Registrant stated that he was in The Gambia and that he did not intend to attend the hearing and would accept whatever decision the Panel made. Secondly there was a file note of a telephone conversation dated 21 February 2017 when the Registrant telephoned the HCPC and spoke to his Case Manager. He stated that he was no longer interested in the matter and was pursuing a different career path. Ms Mitchell-Dunn submitted that the Registrant knew about the hearing and had waived his right to attend and that it was in the public interest to proceed in his absence.

3. The Legal Assessor referred the Panel to the case of Jones R v Jones [2002] UKHL 5 and Adeogba v GMC [2016] EWCA Civ 62 and advised that if it decided to proceed in the Registrant’s absence it should do so with the utmost care and caution.

4. The Panel determined to proceed in the Registrant’s absence. The Panel noted that two witnesses had attended today and two witnesses had made arrangements to attend tomorrow. It was clear from the Registrant’s communications with the HCPC that he did not intend to attend the hearing or send any representations. The Panel concluded that these are potentially serious allegations and that there is a public interest in them being heard. The Panel had no reason to suppose that the Registrant would attend if the matter were postponed to a future occasion.

Background
5. The Registrant was employed as a Band 5 Care Manager in the Learning Disability Team (the Team) at Buckinghamshire County Council (the Council). When the Registrant joined the Team in October 2013, he was a newly qualified social worker on the Assessed and Supported Year of Employment programme (ASYE). He was responsible for working with adults who had learning difficulties. He would have met with service users and their families, conducted assessments and subsequent follow-up work. This would include matters such as dealing with funding agreements, Mental Capacity Assessments and respite services.

Evidence
6. Following concerns about the Registrant’s practice Witness 1 was commissioned to investigate matters in relation to Clients A, B and C. Witness 1 interviewed Witnesses 2, 3 and 4 as part of her investigation and the Panel had access to those interview notes. She also conducted an interview with the Registrant about these matters and the Panel had access to the interview notes.

7. Client A was a middle aged lady who lived at home with her mother and step-father. She had significant learning difficulties and her mother had made a request for an increase in the amount of respite care to be provided. The expectation was that the Registrant would assess the Client to establish if additional respite should be put in place. This included an assessment into whether the Client had the capacity to agree to additional respite or whether a Best Interests Decision would need to be made. In order to assess this, a time and decision specific Mental Capacity Assessment would need to be conducted, to assess the Client’s ability to consent to additional respite.

8. On 10 October 2014 the Registrant asked Witness 2 to authorise a Panel request form for extra resources for Client A. By sending this email the Registrant was requesting confirmation that the matter could be sent to a Panel for a decision. At this stage the Registrant had completed a Community Care Assessment for the additional support.

9. The Registrant provided a Mental Capacity Assessment to Witness 2 as part of the request for extra resources for Client A. The outcome of the Mental Capacity Assessment was that Client A did not have capacity.

10. Upon receipt of the Mental Capacity Assessment, Witness 2 realised that it related to a decision about managing finances and not to respite care. She checked the Council’s electronic system (Adult Integrated System, AIS) and found that an earlier Mental Capacity Assessment completed in July 2011 related to Client A’s finances. She compared the two documents and discovered the wording was almost identical. From the two assessments it can be seen that only the date and the name of the social worker had changed.

11. Witness 2 thought that the Registrant had sent an incorrect copy of the assessment. Therefore, on 13 October 2014, she emailed the Registrant asking him to re-send his Mental Capacity Assessment. The Registrant responded the same day and provided the same Mental Capacity Assessment, dated 10 October 2014 with all of the content from the 2011 assessment.

12. Witness 2 checked the AIS and discovered that the last visit to the Client was on 20 August 2014 and the last record of contact with the mother was on 6 August 2014. The assessment was recorded on the system as having commenced on 19 August 2014 and completed on 6 October 2014.

13. Witness 3 had attended the visit to Client A on 20 August 2014 with the Registrant. The visit was part of the ASYE programme and a community care assessment was conducted. Throughout the visit the Registrant never mentioned a Mental Capacity Assessment and the issue of capacity was not referenced.

14. Ms Mitchell-Dunn submitted that the Registrant produced the Mental Capacity Assessment when he had not in fact undertaken that assessment and, therefore, he was dishonestly producing a document which was copied from the 2011 assessment.

15. She further submitted that the effect of this was that Client A was not properly assessed to determine if she had the capacity to agree to the decision. The assumption was made that the Client didn’t have capacity because of the 2011 assessment, however this may not have in fact been the case.

16. The Registrant was interviewed in relation to this matter by Witness 1. The Registrant stated that he took advice from Witness 4. The Registrant said, “he told me that if it is not a new service and you believe her capacity has not changed from your last contacts i.e. assessment,..you can use the last MCA and (up) date it. That is exactly what I did”. The Registrant stated he took this advice in good faith.

17. Witness 4 gave evidence and stated that he had no recollection of this conversation and would not have advised the Registrant to do that.

18. Client B was a young male who was moving into the youth adult services. The Client was in a residential college and needed support during the holidays. During term time he resided in Dorset but he would live at the family home in the holidays. The Client’s mother wanted a care package to support him during the holidays and wanted this to be paid via a Direct Payment.

19. This case was allocated to the Registrant in December 2013, after the request made by the Client’s mother.  The Registrant was required to determine the required care package. This would involve meeting the Client and his mother and looking at what measures were needed. The Direct Payments Team was in the middle of reviewing whether Direct Payments would be appropriate when the Registrant took over the case.

20. The Registrant needed to complete a Mental Capacity Assessment to decide whether Client B had the capacity to manage the Direct Payment himself. If Client B lacked the capacity to manage the Direct Payment, a Best Interests meeting would need to be held to make a Best Interests decision about who should manage the Direct Payment. Making a Best Interests decision without determining a Client’s capacity means that an assumption has been made that the client lacks capacity. The Client is therefore potentially denied their right to make a decision.

21. On 9 October 2014 Witness 2 received a request from the Registrant to approve the Client’s mother to be the suitable person to manage the Direct Payment. The Registrant then informed Witness 2 verbally that a Best Interests meeting had taken place on 23 September 2014 and the decision in respect of the Client’s mother had been made.

22. Witness 2 reviewed Client B’s records, and there was no mention of the Registrant visiting the Client before the Best Interests meeting on 23 September 2014. The last note recorded was that the Registrant intended to visit the Client’s mother on 23 June 2014, but no notes of this meeting were recorded. As a result, Witness 2 asked the Registrant to provide her with the Mental Capacity Assessment to evidence that the Client lacked capacity, enabling the Best Interests Decision to be made.

23. The Registrant then informed Witness 2 that he had not carried out the Mental Capacity Assessment, but had accepted the recommendation from the Client’s residential school that he lacked capacity to manage the grant. When Witness 2 asked the Registrant why he had not carried out the Mental Capacity Assessment, he stated he had not done so because the Client was based in Devon. Witness 3 stated that this was not an acceptable reason and that a visit to the area where Client B was at college should have been arranged.

24. Ms Mitchell-Dunn submitted that this was not appropriate practice and the Registrant should have conducted the Mental Capacity Assessment, irrespective of the Client’s location and could have taken advice about this issue.  The potential effect was that if the Client had the capacity to make a decision this right would have been denied.

25. Client C was a young male who had recently finished residential college and lived at home with his family. The family was looking for supported living services for Client C. The Client was autistic and in the past there had been safeguarding concerns raised by the college regarding financial abuse, however these had been resolved. The Registrant was involved in the case to work with the Client to identify a supported living service and make arrangements for the placement.

26. On 10 October 2014, the family of Client C raised concerns to the Council in respect of the Registrant’s management of the Mental Capacity Assessment for the Client. The Mental Capacity Assessment was conducted the day before on 9 October 2014 to ascertain if Client C had capacity to manage his own finances. The parents were concerned that the Registrant did not allow them to support the Client during the meeting to conduct the Mental Capacity Assessment. The Registrant had found that Client C lacked capacity to manage his own finances.

27. When the Registrant was interviewed he stated he had supported the Client through the process. He explained he did not allow the parents to be present because of the previous safeguarding concerns involving them. However, Ms Mitchell-Dunn submitted, these concerns had been resolved. Witness 2 said it would have been appropriate to have parents present to help Client C feel more comfortable during the assessment. Following the concerns raised by the parents, another social worker completed a Mental Capacity Assessment with the parents present to support Client C and she found on that occasion that he did have capacity to manage his own finances.

28. Ms Mitchell-Dunn submitted that the Registrant did not allow Client C’s parents to support Client C at the meeting, and this would have assisted the Client. This may have explained the different Mental Capacity Assessment outcomes.

Decision on facts
29. The Panel heard and accepted the advice of the Legal Assessor. He reminded it that the burden of proof is on the HCPC and the standard of proof is the civil standard, on the balance of probabilities. He advised the Panel that Witness 1 was not an expert witness nor a qualified social worker and so could not give opinion evidence. He reminded the Panel of the legal definition of dishonesty. He also reminded the Panel that it should not hold the Registrant’s absence and lack of engagement against him.

30. The Panel found all of the witnesses to be credible.

Witness 1
31. Witness 1 was the Investigating Officer who was asked to conduct the investigation into this matter. The Panel found Witness 1 to be a credible witness. She gave clear evidence, did not attempt to embellish her account, and appeared to be trying to be fair to the Registrant.

Witness 2
32. Witness 2 is a Learning Disability Nurse who was the business manager for the Learning Disability Team and the Registrant’s line manager. The Panel found Witness 2 to be credible. She did not embellish her evidence although the Panel noted that most of Witness 2’s evidence was one step removed from the incidents that she was reporting on.


Witness 3
33. Witness 3 was a senior social worker who worked within the Learning Disabilities Team. He had been the Registrant’s supervisor from May to October 2014. The Panel found Witness 3 to be a particularly helpful witness. The Panel noted that Witness 3 had known the Registrant from the outset and was very balanced in his account of his professional relationship with him. The Panel were particularly impressed that Witness 3 was prepared to both praise what he thought was good about the Registrant and at the same time accept what he saw as his own, and the Council’s, failings in the support that was given to the Registrant.

Witness 4
34. Witness 4 is a social worker who worked with the Registrant, and was the Registrant’s supervisor from October 2013 to June 2014. The Panel considered that Witness 4 was honest and his account was consistent with other evidence. It considered him to be a reliable witness.

Particular 1 – found proved
35. The Panel accepted the evidence of Witness 2 that there had not been a review of Client A’s capacity prior to the report being submitted on the 10 and/or 13 October 2014. It noted this was supported by screen shots of case notes which showed that the only meeting with Client A had been on 20 August 2014.

Particular 2(a) – found proved
36. The Panel compared the two Mental Capacity Assessment documents and concluded that the two documents are the same, the only change being the name and date. It noted that the Mental Capacity Assessment related to a decision about finance and not respite. The Panel noted that in his interview with Witness 1, at paragraph 3, the Registrant admitted that he had used the October 2011 Mental Capacity Assessment in this way.

Particular 2(b) – found proved
37. The Panel accepted the evidence of Witness 2 that there had not been an assessment of Client A’s capacity in respect of this decision relating to additional respite care.

Particular 3 – found proved
38. The Panel accepted the evidence of Witness 2 that the Registrant had not conducted a Mental Capacity Assessment for Client B prior to making a Best Interests decision regarding Client B’s ability to manage a payment of a direct grant. The Panel accepted Witness 2’s evidence that she had checked the records and there was no record of a meeting between the Registrant and Client B. The Panel also accepted her account that the Registrant told her that he had not carried out Mental Capacity Assessment but had accepted the recommendation from the Client’s residential college that he lacked capacity to manage the grant.

Particular 4(a) – found proved
39. The Panel accepted the evidence from Witness 2 that the Registrant had excluded Client C’s parents from the Mental Capacity Assessment meeting on 9 October 2014. This was supported by both Client C’s parents’ complaint about the matter and the Registrant had admitted to Witness 2 that he had done this, although he had given a reason for it.

Particular 5 in respect of Particular 1 – found proved
40. The Panel found that an ordinary social worker would think it dishonest to submit a Mental Capacity Assessment when the social worker concerned had not in fact conducted that Mental Capacity Assessment themselves. In submitting such a document the Registrant was submitting a document which told a lie about itself. The Panel concluded, on the balance of probabilities, that the Registrant would know that other social workers would regard this as dishonest.

Particular 5 in respect of Particular 2(a) – found proved
41. The Panel found that ordinary social workers would think it dishonest to take a document which has been completed by another social worker a number of years earlier and then to simply change the name and the date and submit it as one’s own work. The Panel noted what the Registrant had said to Witness 1 in his interview with her at paragraph 3 where he had said “I took advice from a senior colleague [Witness 4] and he told me that if it is not a new service and you believe her capacity has not changed from your last contacts i.e. assessment, you can use the last Mental Capacity Assessment and update it. That is exactly what I did.” The Panel rejected this assertion, it noted that the Registrant had not himself previously reviewed this Client’s capacity, secondly he had not updated the report but simply changed the name and date. The Panel accepted Witness 4’s evidence that he had not and would not advise the Registrant to behave in this way. The Panel therefore concluded that the Registrant knew that an ordinary social worker would have regarded this as dishonest.

Decision on grounds
42. Ms Mitchell-Dunn submitted that the facts, if proved, amounted to misconduct and/or or a lack of competence. She argued that the Registrant’s behaviour had fallen far below the standard expected of a social worker and highlighted the allegations of dishonesty.

43. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the tests set out on misconduct and lack of competence. The Legal Assessor advised the Panel that in order to find lack of competence it would need to have considered a fair sample of the Registrant’s work. He advised the Panel that it was difficult in this case, with its limited particulars, to see how this could have been achieved. He reminded them of the test set out by Cox J in the case of Grant v. CHREV NMC [2011] EWHC 927 (Admin).

44. The Panel first considered whether any of the facts proved amounted to a lack of competence. The Panel concluded that it had not seen a fair sample of the Registrant’s work and therefore could not consider whether any of the facts proved amounted to a lack of competence.

45. The Panel next considered whether any of the facts proved could amount to misconduct. In respect of Particulars 1 and 2(a) the Panel considered that these did amount to misconduct. The Panel considered that this misconduct amounts to breaches of the “Standards of conduct, performance and ethics”:

Standard 1: You must act in the best interests of service users
Standard 10: You must keep accurate records
Standard 13: You must behave with honesty and integrity and make 
sure that your behaviour does not damage the public’s    
confidence in you or your profession

46. The Panel considered that the failure to conduct a review of Client A’s capacity meant that she was deprived of her right to evidence her capacity and therefore make her own decision regarding respite. Even if she was found to lack capacity she was deprived of her right to have her wishes and preferences taken into account. Making an assumption of a lack of capacity contravenes the first principle of the Mental Capacity Act 2005.

47. In relation to Particular 3 misconduct is found. The Panel found this breached the following “Standards, of conduct, performance and ethics”:

Standard 1 You must act in the best interests of service users
Standard 7 You must communicate properly and effectively with
  Service users and other practitioners

By failing to complete a Mental Capacity Assessment for Client B and assuming he lacked capacity the Registrant potentially deprived Client B of his right to take part in the decision and state his wishes and preferences.

48. In respect of Particular 4 misconduct is found. The Panel found this breached the Standards, of conduct, performance and ethics:
Standard 1 You must act in the best interests of service users
Standard 7 You must communicate properly and effectively with
  Service users and other practitioners

The Panel concluded that not allowing Client C’s family to support him at the meeting reduced his ability to participate in that meeting. This contravenes the Mental Capacity Act 2005, Code of Practice 2007, Principle 2 “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success” (Section 1(3)).

Decision on impairment 
49. Ms Mitchell-Dunn submitted that as the Panel had heard nothing from the Registrant there was no evidence of insight or any remediation. She submitted that his fitness to practise was and remained impaired.

50. The Panel considered the test set out by Dame Janet Smith in her fifth Shipman report, as to whether the Registrant had in the past placed clients at unwarranted risk of harm, brought the profession into disrepute, breached a fundamental tenet of the profession or acted dishonestly.

51.  The Panel considered firstly, by reason of the facts, whether found the Registrant had presented a risk of unwarranted harm to clients. It concluded that he had, because in respect of Clients A, B and C he had deprived them of their right to be involved in decisions about their own care.

52. The Panel next considered whether the Registrant had brought the profession of social work into disrepute and considered that by his actions and dishonesty, he had.

53. The Panel next considered whether the Registrant had breached any fundamental tenets of the profession. The Panel concluded that, both by reason of his dishonesty and his failure to act in the best interests of his clients, he had.

54. The Panel noted that dishonesty had been found in this case.

55. The Panel went on to consider the position in respect of the Registrant’s current fitness to practise. The Panel considered, based on the submissions from the Registrant to his employer that he has shown little insight into his misconduct, instead he has attempted to shift the blame on to others, either claiming to have been given bad advice or to have been poorly supervised. The Panel has not heard that the Registrant has attempted to remedy any of his misconduct or shortcomings. The Panel has therefore concluded that there is a high risk of repetition of the misconduct. The Panel also considered that, given the dishonest component of his misconduct, the public would expect a finding of impairment. The Panel therefore found that the Registrant’s fitness to practise is currently impaired.

Decision on sanction
56. Ms Mitchell-Dunn reminded the Panel of the purpose of sanctions and the principle of proportionality. Ms Mitchell-Dunn also invited the Panel to consider the Indicative Sanctions Policy. She submitted that there were a number of aggravating features in this case. She submitted that the Registrant had:
• behaved dishonestly,
• breached a fundamental tenet of the profession,
• shown no insight into his misconduct and,
• brought the profession into disrepute.

57. The Panel heard and accepted the advice of the Legal Assessor who reminded them that the purpose of sanction was not to be punitive but to protect the public and the public interest. He advised it to firstly consider whether any sanction was necessary and, if it was, to consider sanctions in ascending order settling with the least restrictive that met the Panel’s concerns.

58. The Legal Assessor advised the Panel to bear in mind the principle of proportionality at all times balancing the Registrant’s interests with the public interest.

59. The Panel determined that there were a number of aggravating features in this case:
i. Dishonesty;
ii. Breach of fundamental tenets of the profession;
iii. The Registrant had brought the profession into disrepute;
iv. Lack of insight;
v. Lack of remediation;
vi. Lack of meaningful engagement with the regulator.

60. The Panel also considered that there were a number of mitigating factors:
i. The Registrant was newly qualified and still in his probationary period;
ii. The Registrant had a condition requiring support and the Panel had evidence that not all of the recommended support was given to the Registrant by his employer;
iii. The misconduct occurred over a short period of time.

61. The Panel had in mind the Indicative Sanctions Policy and the principle of proportionality when considering sanctions. The Panel concluded that the misconduct in this case was too serious to take no action. There is a risk of repetition and taking no action would not protect the public or the public interest. Having decided to take no action the Panel did not consider mediation appropriate.

62. The Panel next considered a Caution Order. The Panel considered the conduct to be too serious and there had been no appreciable insight or any remediation. The Panel noted that this case involved findings of dishonesty and that there was a risk of repetition. A Caution Order would not be appropriate or sufficient to protect either the public, or the public interest.

63. The Panel next considered a Conditions of Practice Order. The Panel firstly considered whether the misconduct was remediable and concluded that there is potential for remediation although it recognised that dishonesty is by its nature difficult to remediate. The Panel noted that conditions must be workable and measurable and there must be a potential for meaningful compliance. The Registrant has indicated that he is not currently working as a social worker and intends to pursue a different career. In this case there has been no meaningful engagement or insight, and the Panel has no evidence that the Registrant would comply with any conditions imposed. In all the circumstances the Panel has concluded that a Conditions of Practice Order is not practicable in this case, or sufficient to address the public interest.

64. The Panel next considered a Suspension Order. The Panel considered that a Suspension Order would protect the public and also would protect the public interest by acting as a deterrent to other Registrants. It would also maintain public confidence in the profession and the regulator.

65. Whilst the Panel acknowledged that there had been no meaningful engagement in this case and there remained a risk of repetition of the misconduct, it concluded that a Striking-Off Order would not be proportionate at this time.

66. The Panel has determined to suspend the Registrant’s registration for 12 months. This period would give the Registrant sufficient time to reflect on the Panel’s findings, develop insight, and formulate a plan for remediation.

67. The Panel considered that a reviewing panel may be assisted by a reflective piece, character references, details of relevant training/education undertaken by the Registrant and, if working, references/testimonials related to any paid or voluntary work undertaken since the imposition of the Suspension Order. 

Order

The Registrar is directed to suspend the registration of Mr Seedy Saidykhan for a period of 12 months from the date this order comes into effect.

Notes

The order imposed today will apply from 2 August 2017 (the operative date).
This order will be reviewed again before its expiry on 2 August 2018.

Hearing history

History of Hearings for Mr Seedy Saidykhan

Date Panel Hearing type Outcomes / Status
03/07/2018 Conduct and Competence Committee Review Hearing Struck off
03/07/2017 Conduct and Competence Committee Final Hearing Suspended