Mr Mark Anthony Henry

: Social worker

: SW27050

: Final Hearing

Date and Time of hearing:10:00 02/08/2017 End: 17:00 04/08/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (as amended at the final hearing)

Whilst registered as a Social Worker and employed by North Somerset Council, you:

1.  On or around 13 January 2016, in relation to Service User A, did not attend a MultiAgency Risk Assessment Conference ('MARAC').

2.  On or around 22 January 2016, in relation to Service User B, did not attend a Detention and Training Order statutory review meeting at HMP Parc.

3.  In relation to Service User C:

a)  On or after 1 December 2015, did not undertake and/or record statutory visits in relation to Service User C.
b)  On or around 9 February 2016, recorded on the ChildView system that you had visited Service User C on:
i. 7 December 2015

ii.  14 December 2015

iii.  29 December 2015

iv. 6 January 2016 and/or

v.  11 January 2016 when this was not true.

4.  The matters described at particular 3(b)(i) - (v) constitutes dishonesty in that you had not conducted visits on the respective dates.

5.  The matters described at particulars 1 to 4 constitutes misconduct.

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

Finding

Preliminary matters

Service

1.  The Panel found that there had been good service of the proceedings, in accordance with Rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 by notice dated 12 June 2017.


Proceeding in absence

2.  The Panel next considered whether to proceed with the hearing in the absence of the Registrant. The Panel was advised by the Legal Assessor to consider the guidance in the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and followed that advice. The hearing bundle sent to the Registrant has been returned as ‘not called for’. The Registrant has returned a pro-forma document to the HCPC dated 15 May 2017, indicating that he will not be attending the hearing and will not be represented. The Panel is satisfied that the Registrant has waived his right to attend this hearing and it is in the public interest that the hearing proceeds today. Two witnesses are in attendance  to  give  evidence  and  no  injustice  or  prejudice  will  be caused to the Registrant if the case proceeds.


Amendment application

3. The HCPC made an application to amend the Particulars of the Allegation. The Panel accepted the advice of the Legal Assessor and considered whether there was any unfairness or prejudice caused to the Registrant, by reason of the proposed amendments, which serve to clarify the HCPC’s case in accordance with the evidence. There is no prejudice to him from this application and he has not raised any objection following notification of the majority of the proposed amendments, on 27 January 2017. The Panel granted the amendment application in order to clarify the HCPC’s case.


Confidential matters

4.  The Panel considered whether to hold the hearing partly in private in respect of a private telephone number. The Panel took into account the HCPTS’s Practice Note on “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel decided that it was necessary to hold this hearing partly in private, to preserve the confidentiality of this number.


Hearsay

5.  The Panel received and accepted advice from the Legal Assessor that hearsay evidence is admissible in these proceedings under Rule 10 (1)(b) and (c) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. However the Panel has approached the hearsay evidence with caution, because it has not been tested by cross-examination. The Panel has carefully considered what weight to afford to the hearsay evidence before it.


Background

6. The Registrant, Mr Mark Anthony Henry, was employed by North Somerset Council as a Social Worker in the Youth Offending Team, from 8 May 2007 until 6 June 2016. The Youth Offending Team works with young offenders, their families, carers and victims, with the aim of preventing further offending. During the course of the Registrant’s employment concerns arose in relation to his alleged failure to attend statutory meetings and the falsification of records of contact in relation to Service User C (SUC). On 11 February 2016, the Registrant was suspended from his employment pending an internal investigation.
 

Multi-Agency Risk Assessment Conference.

7.  Multi-Agency Risk Assessment Conferences, (MARAC), are meetings chaired by the police to ensure that a co-ordinated approach is taken in domestic abuse cases. MARAC meetings are a specifically designed forum to share information to increase the safety, health and well-being of victims, adults and children. They are also intended to construct jointly and to implement a risk management plan that provides professional support to all those at risk and to reduce the risk of harm. The Registrant was the allocated social worker for Service User A (SUA) from 4 March 2015. SUA was sentenced to a 6 month Referral Order and was subsequently charged with assaulting his girlfriend on 29 November 2015. On 30 December 2015 the Witness JH, Line Manager of the Registrant at the relevant time, emailed the Registrant notifying him of the date, time and place of a MARAC meeting and confirming that the police had been told that the Registrant would be attending. JH also attached a copy of the relevant information received from the police, setting out the reason for the referral to MARAC and concerns in relation to SUA. JH also emailed the Police confirming that the  Registrant  would  be  attending  the  MARAC  meeting,  as  SUA’s social worker. However the Registrant failed to attend the MARAC meeting and subsequently explained that he had forgotten about the meeting. He attributed this to the anniversary of his mother’s death.


Detention and Training Order review meeting.

8.  A Detention and Training Order (DTO) is a custodial sentence available in the Youth Courts which can range from 4 to 24 months in length. The Youth Justice Board’s National Standards for Youth Justice Services, specify the frequency of contact the Youth Offending Team should have with a young person. This depends upon the length of the sentence imposed by the Court but in no case should the frequency of contact be less than once every two months. The purpose of such contact is to support the young person through the custodial part of the sentence   and   to   properly   plan   for   resettlement   back   into   the community. Service User B (SUB) received a 24 month DTO on 24
June 2015 and, as at 20 January 2016, had served about 7 months in custody. A Sentence Plan Review meeting was scheduled for 22 January 2016, to enable key personnel involved in delivering the sentence  plan  to  review  progress  and  consider whether new targets should be added. JH stated there was an expectation that the case manager would always attend the sentence planning and review meeting and this was made clear to all staff. In the case of SUB, the case manager was the Registrant and he was aware of his responsibility to attend the meeting on 22 January 2016 or to arrange for another person to attend. However, on 20 January 2016, JH was made aware that the prison had telephoned, expressing concern that the Registrant was on leave and would not be attending the review meeting. The Registrant had not raised the issue of his non- attendance at the review meeting with his line manager, before going on annual leave. Therefore another member of the Youth Offending Team had to attend the relevant meeting at short notice. When he was later interviewed about this incident on 2 March 2016 the Registrant stated he did not realise that it was “that much of an issue”. It is accepted that the Registrant did contact the prison and had been told by a representative of the prison that his attendance was not required. However, the manager’s view was that it was not the decision of a staff member from the prison and that the Registrant would have known this.


Service User C

9.  Service User C (SUC) received a Youth Rehabilitation Order on 14 October 2015 and his case was allocated to the Registrant on 15 October 2015. It was the Registrant’s responsibility to ensure that the statutory  standards  for  contact,  as  set  out  under  the  National Standards for Youth Justice Services, were met. SUC was assessed on 16 October 2015 as requiring ‘Enhanced’ intervention, namely: a minimum of 4 contacts per month for the first 12 weeks of the Order and thereafter 2 contacts per month. JH reviewed SUC’s contacts on the “ChildView” electronic system in January 2016. He was concerned that there were no recorded appointments for the Registrant to meet SUC from 1 December 2015 to 28 January 2016, although 7 appointments should have been offered to SUC during this period. JH met the Registrant on 8 February 2016 to discuss the outstanding contacts for SUC. The Registrant stated that he had seen SUC on a number of occasions since 30 November 2015, but had failed to record the appointments on “ChildView”. He offered to update the records by the end of the day and subsequently added 5 appointments, dated 7, 14 and 29 December 2015 and 6 and 11 January 2016 on ChildView. JH decided to contact SUC and was informed by SUC that he had not seen the Registrant “for months”. When interviewed by the Witness JC, Senior Human Resources Advisor and Investigating Officer at the Council, on 2 March 2016, the Registrant agreed that he did not offer enough appointments to SUC. However he maintained that the appointments recorded on 7 and 14 December 2015 and 6 and 11 January 2016 had taken place. The HCPC submits the Registrant has been dishonest because he did not, in fact, conduct the visits to SUC on the dates recorded, namely: 7, 14, 29 December 2015 and 6, 11 January 2016.

Dishonesty

10. It is the HCPC’s case that the Registrant’s behaviour in relation to the factual Particulars 3(b)(i) - 3(b)(v) was dishonest, because he would have known he was acting dishonestly by the standards of honest social workers.


Decision on facts

11. The Panel considered sequentially:

(1). whether the factual Particulars are proved;

(2). if the proved facts amount to misconduct, and if so;
 
(3). if the Registrant’s fitness to practise is currently impaired.

12. 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 grounds of misconduct and the issue of current impairment, are not matters which need to be proved. They are matters of judgement for the Panel.


13. The Panel heard oral evidence from the following HCPC witnesses: JH (the Registrant’s Line Manager) and JC (the Investigating Officer).


14. The  Panel  found  the  live  HCPC  witnesses  to  be  credible  and consistent. They both admitted if they could not recall certain facts and the Panel found their evidence to be compelling.


Particular 1 – found proved

15. In respect of Particular 1, the Panel finds this Particular proved. The Registrant has admitted that he failed to attend the MARAC meeting as he had forgotten. He attributed this to the anniversary of his mother’s death.


Particular 2 – found proved

16. In respect of Particular 2, the Panel finds this Particular is proved. The Registrant admitted that he failed to attend the meeting as he was on annual leave.


Particulars 3(a), 3(b)(i) –  3(b)(v) –  found proved

17. In  respect  of  Particulars  3(a),  3(b)(i),  3(b)(ii),  3(b)(iii),  3(b)(iv)  and

3(b)(v), these Particulars are proved. SUC received a Youth Rehabilitation Order on 14 October 2015 and the case was allocated to the Registrant on 15 October 2015. SUC was assessed on 16 October
2015 as requiring ‘Enhanced’ intervention, namely: a minimum of 4 contacts per month for the first 12 weeks and thereafter 2 contacts per month, but the Registrant did not record any meetings with SUC from 1 December 2015 to 28 January 2016, although 7 appointments should have been offered during this period, and recorded. The Registrant made entries of visits to SUC retrospectively (in February 2016) on the “ChildView” system, showing appointments on: 7, 14 and 29 December
2015 and 6 and 11 January 2016. The Panel finds the Registrant did not undertake these visits because:
(a) SUC informed JH, in February 2016, that he had not seen the Registrant for many months.

(b) There were no standard appointment letters recording these visits to SUC on the Childview system.

(c)  The  visits  were  not  recorded  in  the  Registrant’s  electronic  or paper diaries, although he had made diary entries for contacts with SUC on 16 and 23 October and 6 November, 2015.

(d) There are clashes between the times of these alleged visits and contacts with other service users on 7, 14 and 29 December 2015.

(e) SUC  wanted  to  avoid  meeting  the  Registrant  at  the  Youth Offending Team office, but the visits on 7 and 29 December 2015 and 6 and 11 January 2016, are recorded as taking place at the office.

(f)  The level of detail in the records is not consistent with records being made from memory, 2 months after they took place, without any contemporaneous documents.

(g)  SUC was suspended from school on 11 December but this was not referred to in the record for 14 December.

(h) The  Registrant  said  his  approach  was  to  “wing  it”  and  to telephone SUC to make arrangements. However his landline and mobile phone records show there are no calls or text messages making arrangements to visit SUC, from 7 December 2015 to 11 January 2016, suggesting that no contact took place during that period.
 
Particular 4 – found proved

18. In respect of Particular 4: the Panel accepted the advice of the Legal Assessor that it is necessary to consider a two-stage test in respect of the alleged   dishonesty,   namely:   whether,   on   the   balance   of probabilities, according to the ordinary standards of reasonable and honest members of the Registrant’s profession, what was done by the Registrant, was dishonest; and, if so, on the balance of probabilities, whether the Registrant must have known that what he was doing was dishonest by those standards. Accordingly dishonesty requires consciousness that one is transgressing ordinary standards of honest behaviour; and the Panel has specifically considered the Registrant’s state of mind, in respect of each of the relevant Particulars: 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv) and 3(b)(v). The Panel considered possible motives for the alleged dishonesty and the Registrant’s explanations for his behaviour.


19. The Panel finds that the Registrant’s actions were dishonest by the standards of reasonable and honest members of the profession and that he would have known his conduct was dishonest by those standards, in respect of 3(b)(i) - 3(b)(v). He appears to have admitted these Particulars on his HCPC pro-forma response, although he maintained  in  interview  during  the  investigation  that  four  of  the meetings with SUC did take place. The Panel finds the meetings did not take place. The detailed records were compiled retrospectively, following an instruction from his manager to record meetings which had taken place. The records the Registrant compiled are clearly not accurate or credible, due to clashes of appointments between these records and other documents. Also the Registrant’s phone records do not support that appointments had been made as described by the Registrant.  As  an  experienced  social  worker,  the  Registrant  would have been aware that he was behaving in a manner which was dishonest, by the standards of reasonable and honest social workers.
 
Decision on grounds

20. 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.


21. The HCPC submits that the Registrant’s actions amount to misconduct, seriously falling short of what would be proper in the circumstances.


22. In respect of Particulars 1, 2, 3(a), 3(b)(i) - 3(b)(v) and 4, the Panel finds that the allegation of misconduct arising from those proved factual Particulars is well founded. The Registrant’s behaviour in respect of each Particular is sufficiently serious to amount to misconduct. The Panel is satisfied that there was a serious falling short of the standards to be expected of a Social Worker.


23. The  HCPC  Standards  of  conduct,  performance  and  ethics  (2012), standards 1 and 7, were breached by reason of Particulars 1, 2 and
3(a):

1 You must act in the best interests of service users.

7 You must communicate properly and effectively with service users and other practitioners.


24. The  HCPC  Standards  of  conduct,  performance  and  ethics  (2016), standards 6.1, 9.1 and 10.1 were breached by reason of Particulars
3(b)(i) - 3(b)(v) and 4:

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

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

10.1 You must keep full, clear and accurate records for everyone you care for, treat, or provide other services to.
 

25. The HCPC  Standards  of  proficiency  for  Social  workers  in  England (2012), standards 2, 2.1, 2.2, 2.8, 3 and 3.1 were breached by reason of Particulars 1, 2, 3(a), 3(b)(i) - 3(b)(v) and 4.


26. The   Panel’s   findings   of   deliberate   falsification   of   records   and dishonesty put the Registrant in breach of a fundamental tenet of the profession in respect of Particulars 3(b)(i) - 3(b)(v) and 4.


27. In relation to Particulars 1, 2 and 3(a) the Panel finds that the allegation of misconduct arising from these proved factual Particulars is also well founded, because the Registrant’s behaviour was sufficiently serious to amount to misconduct. He failed in his duty to support and contribute to the meetings in respect of SUA and SUB, to assist the victim in relation to the MARAC meeting, and to support SUC.


28. The Panel is satisfied that there was a serious falling short of the standards to be expected of a Social Worker. The false records giving rise to 3(b)(i) - 3(b)(v) relate to a 6 week period and involve 5 visits which did not take place. When these matters were investigated the Registrant gave, and maintained, an untrue account in interview.


Decision on impairment


29. The Panel considered the Practice Note on Finding that Fitness to Practise 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.
 
30. The HCPC submits that the Registrant’s fitness to practise is impaired on personal and public grounds.

31. The Registrant has not attended this hearing, however, the Panel has not drawn any adverse inference from his non-attendance and the Panel has taken full account of explanations and information he provided during the investigation.


32. 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 taken into account the lapse of time since these matters occurred, but has also looked at the Registrant’s past actions in order to assess the likelihood of future misconduct.


33. The Panel has taken into account the critically important public policy issues.


34. 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.


35. In respect of the public interest, the following guidance was provided in the case of Grant: In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider…whether the need to uphold proper professional standards and   public   confidence   in   the   profession   would   be undermined if a finding of impairment was not made.


36. The Panel finds that the Registrant was in breach of the fundamental tenets of the profession and is likely to undermine the relationship of trust required between social workers and service users. The Panel finds that the dishonesty was a particularly serious element in the circumstances of the case. The Registrant has not engaged with the HCPC process other than to return a pro-forma admitting the facts. The Registrant’s  fitness  to  practise  is  impaired  on  personal  grounds because there has been no evidence of insight, remediation or remorse and consequently there remains a risk of repetition.


37. It is necessary to protect service users, maintain confidence in the profession and to uphold the HCPC standards of conduct and proficiency, by making a finding that the Registrant’s fitness to practise is also impaired on the public policy grounds.

38. The Panel finds that confidence in the profession would be undermined if a finding of impairment was not made.

Decision on sanction

39. The  Panel  has  considered  the  guidance  in  the  HCPC  Indicative Sanctions Policy (ISP). The purpose of fitness to practise proceedings is not to punish Registrants, but to protect the public.


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

 

41. There is a public interest in upholding the reputation of the profession and maintaining public confidence in the HCPC regulatory process.

42. The Panel heard submissions from Ms Sheridan and has considered the mitigating and aggravating factors before deciding what, if any, sanction to impose.
 

43. The aggravating factors include the repeated dishonesty and the likely adverse impact upon service users and a victim of domestic violence due to the Registrant’s misconduct with a significant risk that damage has  been  caused  to  the  reputation  of  the  profession.  The  Panel’s finding of dishonesty puts the Registrant in breach of a fundamental tenet of the profession and is likely to undermine the relationship of trust required between social workers and service users. The Panel has found   no   evidence   of   insight,   remorse,   remediation   or acknowledgement of the impact upon others of his misconduct, has been demonstrated by the Registrant. He has not engaged with the HCPC process (other than to return a pro-forma admitting the facts) or provided any information about his current circumstances. Although he admitted the factual particulars on his HCPC pro-forma response, he maintained in interview during the investigation by his employer that four of the meetings referred to in particular 3(b)(i) - (v) did take place. This is a version of events which the Panel finds to be untrue.

44. The Panel identified the following aggravating factors:

• Repeated dishonesty;

• No evidence of insight;

• No evidence of remorse;

• No evidence of remediation;

• The risk of potential harm to service users and others including victims of domestic violence;
• Lack of acknowledgement by the Registrant of those potential risks;

• Minimal  engagement  with  the  HCPC  process  by  the  Registrant other than completion of the pro-forma.


45. The Panel identified the following mitigating factors:

• Completion of pro-forma admitting the factual Particulars, albeit at a late stage;
 
• The Registrant’s admissions that he forgot to attend the MARAC meeting and his attribution of the anniversary of the death of his mother (Particular 1);
• The Registrant contacted the prison regarding the DTO meeting and was informed by prison staff that he did not need to attend.


46. However there are mitigating features from the information before the Panel because he admitted the factual particulars on his HCPC pro- forma response. He has explained that he forgot to attend the MARAC meeting (Particular 1) and contacted the prison who told him he did not need to attend the DTO meeting (Particular 2).

47. A risk of repetition arises because these were not isolated incidents and can properly be regarded as a course of conduct, covering a 6 week period, involving 5 visits which were recorded as having taken place when that was not the case. Therefore the Panel cannot be confident that his misconduct is unlikely to be repeated.

48. The Panel has decided that it is necessary to impose a sanction due to the seriousness of the Registrant’s misconduct and the extent of his current impairment.

49. The Panel finds a Caution Order would be contrary to the ISP, due to the  Registrant’s  lack  of  insight  and  remediation  and  the  risk  of repetition because the dishonest behaviour giving rise to Particulars 3(b)(i) - (v) cannot be viewed as isolated incidents.

50. The ISP states in relation to conditions of practice that: The imposition of conditions requires a commitment on the part of the Registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases involving dishonesty. Therefore conditions of practice are not appropriate due to the Registrant’s lack of engagement and dishonesty.  The  Panel  concludes  that  appropriate  conditions  of practice cannot be formulated which would satisfactorily protect the public nor would satisfy the wider public interest.

51. The Panel considers that the Registrant continues to pose a risk to the public and it is not in the public interest for him to remain free to practise as a social worker. Therefore the Panel has considered imposing a Suspension Order but finds this is not appropriate, due to the aggravating features identified, including dishonesty. The Panel recognises that dishonesty is difficult to remediate. Furthermore the Registrant’s limited engagement in the HCPC process gives rise to a significant risk of repetition and suggests the Registrant lacks the inclination to remedy his misconduct.

52. Therefore the Panel has considered imposing a Striking Off Order. The ISP states:

“Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as…dishonesty… “


53. The dishonesty and misconduct of the Registrant has breached one of the fundamental tenets of the profession. He has thereby undermined public trust and confidence in social workers. Furthermore, he denied factual particulars 3(b)(i) - (v) during the course of the investigation.


54. The Panel concludes striking-off is the only appropriate sanction in this case to protect the public, maintain public confidence in the regulatory process, to uphold the HCPC standards of conduct and the reputation of the profession.

Order

That the Registrar is directed to strike the name of Mr Mark Anthony Henry from the Register on the date this order comes into effect.
 

Notes

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. 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.

Hearing history

History of Hearings for Mr Mark Anthony Henry

Date Panel Hearing type Outcomes / Status
02/08/2017 Conduct and Competence Committee Final Hearing Struck off