Rebecca Grundy

: Social worker

: SW06641

: Final Hearing

Date and Time of hearing:10:00 05/09/2017 End: 17:00 08/09/2017

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

: Conduct and Competence Committee
: Caution

Allegation

Whilst employed as a Social Worker by Lifeline Project Ltd between 1 October 2014 and 31 August 2015:

1. You contacted Service User A by sending inappropriate SMS / text message(s) outside of work hours on one or more of the following occasions:

a) Sunday 15 March 2015 at around 19:21 hours;

b) Sunday 15 March 2015 at around 19:48 hours;

c) Saturday 4 April 2015 at around 16:03 hours;

d) Saturday 4 April 2015 at around 16:17 hours;

e) Saturday 4 April 2015 at around 16:49 hours;

f) Saturday 4 April 2015 at around 16:52 hours;

2. On an unknown date or dates, you had an inappropriate conversation with Service User A, in that you disclosed personal information;

3. Between October 2014 and July 2015, you did not maintain adequate records in relation to Service User A;

4. Your actions described at particulars 1 and 2 constitute misconduct;

5. Your actions described at particular 3 constitute misconduct and/or lack of competence;

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

Finding

Preliminary Matters

Application for an adjournment

1. The Panel noted the contents of an e-mail from the Registrant sent on Sunday 3 September 2017 in which she requested an adjournment of the hearing. She referred in the e-mail to health matters and personal issues which have been ongoing since at least July 2015. The Registrant stated that she wished to be “taken off the social worker role register as I never intend on going back in to this kind of profession…”.

2. A Scheduling Officer sent a response to the Registrant by e-mail between approximately 2pm and 3pm on 4 September 2017. The Registrant was advised that her application would be considered at the hearing. A copy of the HCPTS Practice Note on “Postponements and Adjournments” was attached.

3. The Panel was informed that there was no further communication from the Registrant.

4. Ms Hastie opposed the application for an adjournment. She submitted that the Registrant has been aware of the concerns relating to this case for a significant period of time. The Registrant was informed of a complaint against her and given an opportunity to respond at an investigatory interview with her employer on 3 August 2015. In May 2016 she was advised that the HCPC were investigating a fitness to practise concern. She responded to this notification by e-mail and referred to the same personal issues that she later described in her e-mail of 3 September 2017.

5. The Registrant was advised that an Investigating Committee (IC) meeting would take place, but did not make representations. After the IC meeting the Registrant was sent notice of the Allegation by a letter dated 12 December 2016. The Registrant was notified of the date of today’s hearing by a letter and e-mail dated 25 May 2017. In the Notice of Hearing the Registrant was advised that if she wanted to make any application for a postponement or adjournment, she should do this in writing well in advance of the hearing.

6. Ms Hastie submitted that the Registrant has had sufficient time to provide a response. The e-mail requesting an adjournment was not supported by medical evidence and the Registrant had not provided any detail of whether she wished to attend the hearing or the timeframe in which she might be able to respond to the Allegation or attend a hearing.

7. Ms Hastie further submitted that the Allegation referred to events in 2014-2015 and is of a serious nature. One of the witnesses, Person A, was particularly anxious about travelling to London and attending the hearing. There was no good or compelling reason for an adjournment and it was in the public interest for the matter to be heard and determined expeditiously.

8. The Panel did not make a decision on the Registrant’s application to adjourn on 5 September 2017 because there was uncertainty about the attendance of one of the HCPC’s witnesses, MB, who was due to give evidence that day. Ms Hastie provided an update to the Panel on 6 September 2017. She explained that enquiries were made and that at approximately 11am, MB was contacted by telephone. He said that he was not aware that the hearing was taking place that day. He was asked to attend on 6 September and he advised that he would need to seek approval from his manager. It took a long time to obtain a response from MB. He sent an e-mail at 5:17pm stating that he was not able to travel to London. Ms Hastie said that she had spoken to MB and that he was available to give evidence by telephone. If the hearing proceeded she would make an application for MB to give evidence by telephone.

9. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPTS Practice Note on “Postponements and Adjournments”. The Panel had at the forefront of its mind the need for the hearing to be fair.

10. The Panel carefully considered all the circumstances, but did not agree to the Registrant’s application. The Panel noted that the circumstances in the Registrant’s application for an adjournment are similar to the matters she referred to in May 2016. Importantly, the Registrant does not state that she wishes to attend the hearing and she does not provide any timeline as to when she might feel able to respond to the Allegation or attend a hearing. Although the Registrant may not have been aware that an application for an adjournment on health grounds should be supported by medical evidence until she received the e-mail from the Scheduling Officer on 4 September 2017, she had not responded to that e-mail.

11. The Panel recognised that the Registrant will not be able to present her defence at the Hearing. She has had several opportunities in the past to make representations, and the Panel was not persuaded by the content of her e-mail dated 3 September 2017 that she would attend a hearing if an adjournment was granted.

12. The Panel took into account that the allegations are over two years old and was mindful also of the interests of Person A, who had made arrangements to travel to London to give evidence.

13. The Panel took into account all the circumstances, including the information provided by Ms Hastie relating to the witness MB. The Panel decided to refuse the Registrant’s application for an adjournment.

Service of Notice

14. The HCPC sent a Notice of Hearing to the Registrant’s registered address on 25 May 2017. The Panel was satisfied that good service had been effected in accordance with the HCPC (Conduct and Competence Committee)(Procedure) Rules 2003.

Proceeding in the absence of the Registrant

15. Ms Hastie made an application for the hearing to proceed in the absence of the Registrant. She submitted that the Registrant is aware of the hearing. Although the Registrant has requested an adjournment of the hearing, the Panel has rejected that application. Ms Hastie submitted that it was in the public interest, the Registrant’s interest and the interest of the witnesses for the matter to be dealt with expeditiously.

16. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

17. The relevant matters overlap with the considerations relevant to the Panel’s decision not to adjourn the hearing. The reasons the Registrant is not in attendance appear to be the health and personal issues she referred to in her request for an adjournment. These issues have been ongoing for more than two years. The Registrant does not suggest that her position is likely to change in the foreseeable future and the Panel did not consider that there was a realistic prospect that she would attend a hearing at a later date. The Panel again noted the disadvantage to the Registrant that she would not be able to present her defence, but considered that it was outweighed by the public interest in the expeditious disposal of the matter. The Panel also took into account the interests of the witness Person A and the effect of delay on the recollection of the witnesses.

18. The Panel decided that it was appropriate to proceed in the absence of the Registrant.

Hearing in private

19. The Panel noted that the case concerned health matters relating to Service User A and that there was also reference to the Registrant’s personal circumstances. The Panel decided that steps could be taken to protect the private life of Service User A by the use of anonymisation, so that he cannot be identified.

20. The Panel decided that details relating to the Registrant’s family circumstances should be heard in private to protect her private life.

Application for evidence to be given by telephone

21. Ms Hastie made an application for the Panel to make a direction that MB should give his evidence by telephone. She submitted that this was appropriate and proportionate, taking into account the need for expedition. She submitted that it was a pragmatic solution to the issue raised by the difficulties of MB in travelling to London to give evidence to the Panel.

22. The Panel asked Ms Hastie to make further enquiries to clarify the reasons for MB’s difficulties in travelling to London to give evidence and to enquire if MB could travel to London to give evidence on 7 September. In his e-mail MB stated that that his manager had not given him permission to attend the hearing and that “it was not typically policy” for his employer to “attend these meetings”.

23. Ms Hastie spoke to CW, the Registrant’s manager. CW had not understood the reasons why MB was required to give evidence and mistakenly believed that MB’s statement was sufficient. CW was asked if MB could travel to London to give evidence on 7 September. She replied that the employer was in a transition period, there were pressures on workload, and a lack of available managers. CW therefore told Ms Hastie that it would be preferable if MB could give his evidence by telephone.

24. Ms Hastie confirmed that the HCPC made an application for the Panel to direct that MB’s evidence could be given by telephone.

25. The Panel noted that there had been a misunderstanding by MB and MB’s manager about the reasons MB was required to attend the hearing. The Panel also recognised that MB’s absence with minimal notice would be likely to cause difficulties for his employer. MB had apparently not given prior notice to his manager that he was due to attend the hearing.

26. The Panel considered carefully whether there would be unfairness to the Registrant if the Panel were to hear MB’s evidence by telephone, rather than the alternative of requiring him to travel to London to give his evidence on 7 September. It was preferable for the Panel to hear the evidence as expeditiously as possible and avoid delay. The Panel considered that any prejudice to the Registrant was very limited because she would not be able to cross-examine MB in either circumstance, and the Panel would be able to ask questions to test MB’s evidence. The Panel decided to direct that MB’s evidence could be given by telephone.

Background

27. From 1 October 2014 until 3 August 2015, the Registrant was employed as a Recovery Co-ordinator within the Treatment Team at a charity, Lifeline Project Ltd (LL), which provided drug and alcohol services. LL were contracted by a local authority to provide a range of services for individual service users. Prior to October 2014 the Registrant had worked for a different employer for approximately three years in a similar role.

28. Service User A had had a walk-in appointment with the Registrant on 20 October 2014 and his case was formally allocated to her on 4 December 2014. Service User A was problematically using alcohol and would consume approximately 40 units of alcohol per day. After the formal allocation, Service User A had regular appointments with the Registrant that should have been scheduled fortnightly.

29. On 15 July 2015 Person A, Service User A’s partner, made a complaint to LL. MB was appointed to investigate the complaint. He considered the Registrant’s telephone records and identified that the Registrant contacted Service User A by text message at weekends, which was outside working hours. MB also considered records made by the Registrant of her contact with Service User A. MB interviewed Service User A, Person A and the Registrant.

Decision on Facts

30. The Panel heard evidence from MB by telephone and from Person A, who attended the hearing.

31. The Panel found that Person A was an open and credible witness who was ready to assist the Panel. The Panel noted that significant parts of Person A’s evidence were hearsay evidence in that Person A relayed information provided to her by Service User A. The majority of this hearsay evidence did not relate to the Allegation and did not form part of the Panel’s deliberations. One aspect of Person A’s hearsay evidence related to particular 2 and is considered further below.

32. The Panel found that MB was a credible witness. He was not guarded and was willing to agree that there were contradictions in the evidence. The Panel found that his investigation was not as rigorous as the Panel would expect. There was no attempt to explore the Registrant’s denials in the light of the information obtained during the investigation and no attempt to explore context, including the Registrant’s training and her understanding of the policy expectations. Person A did not receive the notes of her investigatory interview with MB. She drew attention to an inaccuracy in the notes. MB did not try to make excuses for omissions in his investigation.

33. The Panel read the hearsay statement of Service User A. The majority of this statement did not relate to the Allegation and the Panel did not admit or give weight to those parts of the statement. The Panel decided to admit and give weight to one part of the statement which relates to particular 2. The Panel noted that the HCPC had decided not to call Service User A to give oral evidence because of the content of a medical report. The Panel decided that it was not unfair to the Registrant to admit the hearsay evidence for the reasons which are explained below under particular 2.

Particular 1 – Proved

34. Ms Hastie confirmed that the HCPC case was that the SMS/text messages were “inappropriate” because they were sent outside work hours. The word “inappropriate” did not refer to the content of the messages.

35. The Panel found particular 1(a)-(f) proved by the evidence of MB and the documentary evidence.

36. The Panel was provided with telephone records which showed that the Registrant communicated with Service User A by SMS or text message on two occasions on Sunday 15 March 2015 and on four occasions on Saturday 4 April 2015. The time of the contact shown on the telephone records in each instance matched the time set out in particulars 1(a)-(f).

37. The service provided by LL to all service users was a weekday service only. Social Workers were expected to switch off their mobile phones at 5pm on Friday and to respond to messages on Monday mornings. The expectation was not reinforced by a written policy. The Panel accepted the evidence of MB that it was made clear to service users and to staff that there was no provision of services at weekends, and it was therefore inappropriate for a Social Worker to text a Service User at the weekend.

Particular 2 – Proved

38. The Panel found particular 2 proved by the documentary evidence, the evidence of MB and the hearsay evidence of Person A and Service User A.

39. Person A and Service User A reported to MB that the Registrant had disclosed personal information. The personal information was of a sensitive nature.

40. It was not clear from the evidence whether this information was communicated to Service User A in a one to one conversation or in a text message conversation. The Panel did not need to resolve this point, because the Panel found that the communication, whether by text or in person, was an inappropriate conversation.

41. It is inappropriate to communicate personal information because it is a breach of professional boundaries. The professional is exposed if they provide such information. The service users are vulnerable and the blurring of boundaries can change the nature and dynamics of the professional relationship with potentially adverse consequences.

42. The Panel admitted and gave weight to the hearsay evidence of Service User A on this matter because the evidence was consistent with other reliable evidence and because Service User A could not have known such personal information unless it had been communicated to him by the Registrant.

Particular 3 – Proved

43. The Panel found particular 3 proved by the documentary evidence and the evidence of MB.

44. The telephone records showed numerous text messages sent by the Registrant to Service User A. On some days multiple text messages were sent. These text messages were not recorded in the notes made by the Registrant for Service User A. For example, the text messages referred to in particular 1 were not recorded in the notes of Service User A.

45. The Panel accepted the evidence of MB that the Registrant was expected to record all text messages in the service user records. The LL recording system provided the facility for staff to record all forms of communication with a Service User, including face to face contact, telephone contact, and text messages. Text messages were widely used at LL. For example, a text message might be sent to remind a service user of an appointment. All such contacts should be recorded. It was not uncommon for a service user to say that they had not received reminders, so the record provided the evidence that the contact had been made.

46. The Registrant did not maintain adequate records for Service User A between October 2014 and July 2015 because she did not record text messages she sent to Service User A.

Decision on Grounds

47. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof. 48. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311:

“Misconduct is a word of general effect, involving some 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 conduct must be serious, in that it falls well below the required standards.

49. The Panel first considered particular 1. The particular is limited to sending six text messages on two weekend dates. The inappropriate nature of these texts is solely that they were sent outside working hours. While the Panel has found that the Registrant should not have sent the text messages at the weekend, the lack of any information about their content or the context in which they were sent was relevant to the Panel’s assessment of the level of seriousness of the Registrant’s conduct. The Panel had no evidence that the basis of the messages was anything other than professional.

50. The Panel noted that there was no written policy. MB’s evidence was that the matter was covered in training on professional boundaries, but there was a lack of evidence to confirm that the Registrant had attended the training. MB’s investigation did not extend to considering whether the Registrant or other Social Workers had sent messages to other service users at weekends.

51. The Panel considered that the Registrant’s conduct in sending the text messages fell below the expected standards of a Social Worker, but, on the evidence available, did not cross the threshold of seriousness to constitute misconduct.

52. The Panel next considered particular 2. Service User A was a vulnerable service user. It was a serious breach of professional boundaries for the Registrant to disclose to him her own personal difficulties. The disclosure of personal information to a Service User may damage the professional relationship. The Service User may lose confidence in the professional or feel that the professional is herself vulnerable, which may interfere with the treatment plan.

53. The Registrant disclosed a significant amount of personal information. In the Panel’s view the extent of the information disclosed could not have been disclosed in a momentary lapse by a slip of the tongue.

54. When she was interviewed by MB on 3 August 2015 the Registrant recognised that it was inappropriate for her to disclose information about her personal circumstances to Service User A. She did not suggest that there were any circumstances in which such a conversation could be professionally justified.

55. The Panel found that the Registrant’s conduct was a breach of the HCPC Standards of Conduct, Performance and Ethics (2012), standards 1 and 7, and the HCPC Standards of Proficiency for Social Workers, paragraph 3.4.

56. The Panel decided that sharing personal information to the extent that the Registrant did was a serious breach of professional boundaries and was sufficiently serious to constitute misconduct. The Panel therefore found that particular 2 constituted misconduct.

57. The Panel next considered particular 3, which is alleged to constitute misconduct and/or a lack of competence.

58. A lack of competence is a standard of work which is unacceptably low. It will usually be demonstrated by a fair sample of the Registrant’s work.

59. The Panel found that the Registrant’s failure to keep accurate records in particular 3 did not constitute a lack of competence. The Panel does not have a fair sample of the Registrant’s work. The Registrant had a case load of approximately 50 service users and particular 3 is limited to one service user. The evidence of MB was that the standard of the Registrant’s work, including her case recording, was satisfactory. The Registrant’s record-keeping was subject to auditing, but no significant deficiencies were identified.

60. The Panel considered whether the inadequacy of the Registrant’s record-keeping in particular 3 was sufficiently serious to constitute misconduct. The inaccuracy of the records kept by the Registrant for Service User A was specifically the failure to record every text message. The notes the Registrant made of her face to face contact with the Registrant were adequate. The notes also included records of telephone contact. As a whole, the notes showed the progress or lack of progress that Service User A was making in sufficient detail.

61. The Panel has no information about the content of the text messages. They could be either a brief confirmation or reminder of an appointment or they could be more significant. In the absence of information, the Panel has assessed the seriousness of the Registrant’s conduct on the basis that there was minimal significant information in the content of the text messages.

62. In the Panel’s judgment the Registrant’s failure to keep adequate records was poor practice, but it was not sufficiently serious to constitute misconduct. The Panel therefore found that particular 3 did not constitute misconduct.

Decision on Impairment

63. The Panel applied the guidance in the HCPTS Practice Note “Finding that Fitness to Practise is ‘Impaired’” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.

64. The Panel first considered the personal component, which is the Registrant’s current competence and behaviour.

65. The Registrant’s engagement with the HCPC has been very limited. She has not provided a substantive response to the Allegation.

66. When the Registrant was interviewed by MB on 3 August 2015 she stated that she had disclosed personal information to Service User A, but then asserted that she did “not talk to clients about home stuff, I don’t think it’s appropriate”. It is not clear from her recorded answers whether she made an admission or the extent of any admission.

67. In the Panel’s view, the Registrant’s response at this interview demonstrated partial insight. However, there is no evidence that she has considered the impact that her behaviour may have had on Service User A, her employer or her profession. The Panel considered the risk of repetition to be low given the Registrant’s acknowledgement that sharing personal information with service users is not appropriate. Furthermore, MB, when questioned, was clear that there had been no previous concerns about the Registrant’s engagement with service users. Her misconduct may be remediable, but there is no evidence that she has taken any steps since the matters were drawn to her attention in August 2015. This may be due to factors affecting her own health and personal circumstances.

68. The Panel considered the wider public interest considerations, including the need to protect the public, uphold standards of conduct and behaviour, and to maintain confidence in the profession and the regulatory process. The misconduct had the potential to cause further harm by deterring Service User A from accessing the services provided by LL. The Registrant’s misconduct had the potential to damage the reputation of LL and the profession. The Panel therefore determined that the Registrant’s fitness to practise is impaired in order to maintain confidence in the Social Work profession and the regulatory process.

69. The Panel also declared and upheld the required standards of conduct and behaviour by its finding that the Registrant’s fitness to practise is currently impaired. It is not acceptable for Social Workers to breach professional boundaries and disclose personal information to vulnerable service users.

70. The Panel therefore decided that the Registrant’s fitness to practise is impaired on the basis of the personal component and the public component.

Decision on Sanction

71. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC “Indicative Sanctions Policy” (ISP). The purpose of a sanction is not to punish the Registrant, though it may have that effect. The purpose of a sanction is to protect the public. The Panel should also give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.

72. The Panel applied the principle of proportionality, balancing the Registrant’s interests against the public interest.

73. The Panel identified the following aggravating circumstances:

• Service User A was a vulnerable service user.

74. The Panel identified the following mitigating circumstances:

• This was an isolated one-off incident;

• The Registrant’s otherwise unblemished record;

• There was no evidence of actual harm to Service User A;

• The extenuating circumstances of personal stress.

75. The Panel has no reason to doubt the information provided by the Registrant that she has experienced considerable personal difficulties since August 2015. In her application for an adjournment she outlined her personal circumstances. She added that she does not intend to return to the social work profession. The Panel’s view was that these personal circumstances explain the Registrant’s limited engagement with the HCPC and the absence of any evidence of remediation.

76. The Panel considered the sanctions in ascending order of severity. The Panel decided that taking no action or mediation would not be sufficient. They would be insufficient to mark the seriousness of the Registrant’s conduct and would not be sufficient to maintain confidence in the profession and the regulatory process.

77. The Panel next considered a Caution Order. The Panel considered the guidance in the ISP on a Caution Order. In the Panel’s view the misconduct in this case is at the lower end of the scale of seriousness of misconduct. The lapse was also isolated. The Panel has also found that there was a low risk of recurrence and that the Registrant has demonstrated partial insight.

78. The Panel considered carefully whether the lack of full insight and remediation in this case meant that a Caution Order was an insufficient sanction. The primary purpose of a sanction is to protect the public. Despite the absence of evidence of remediation, the Panel has not found that there is any significant risk of repetition. In the Panel’s view this is not a case where remedial action would have a significant impact on the risk of repetition. The Panel has found that the Registrant understood the need to maintain boundaries by not disclosing personal information to service users, as evidenced in her response when interviewed by MB. Her action in disclosing the information appears to have been out of character and inconsistent with her general standards of professionalism with service users.

79. The Panel considered conditions of practice, but did not consider that conditions of practice were appropriate in this case. The guidance in the ISP is that conditions are unlikely to be suitable in cases where the Registrant has failed to engage in the fitness to practise process. In this case the Registrant has engaged with the process to a very limited degree, but she has not indicated a commitment to resolving the matters. The Panel is not in a position to judge whether the Registrant will comply with conditions of practice.

80. The Panel also considered the more serious sanction of a Suspension Order. The Panel’s view was that a Suspension Order would be disproportionate taking into account the mitigating circumstances, the nature of the misconduct and the low risk of repetition.

81. The Panel considered that this is a case where workable conditions of practice are not appropriate and suspension from practice would be disproportionate. Although the insight the Registrant has demonstrated is partial, the most important aspect for the imposition of any sanction is that it is sufficient to protect the public. The Panel’s view was that a Caution Order was sufficient to protect the public. It would provide a marker for any potential employers and members of the public, and would allow the Registrant the opportunity to assure a potential employer as to her understanding of the potential adverse consequences on service users of not maintaining professional boundaries.

82. The Panel considered the wider public interest considerations, including the need to maintain confidence in the profession and the regulatory process. The Panel decided that a Caution Order was sufficient. The Panel has imposed a sanction which will remain on the public Register. This sanction enables the Registrant to practise without restriction, but it also sends a clear message that the Registrant’s conduct was entirely unacceptable.

83. The Panel decided that the appropriate length of the Caution Order is three years, which is the benchmark for a Caution Order. The Panel considered a shorter period of one year or two years, but decided that they would not be sufficient to mark the seriousness of the Registrant’s misconduct. The Panel also considered a longer duration for the Caution Order of up to five years, but decided that the benchmark period of three years was sufficient, taking into account all the circumstances of the case.

84. The Panel concluded that the appropriate and proportionate sanction was a Caution Order for a period of three years.

Order

That the Registrar is directed to annotate the register entry of Miss Rebecca Grundy with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.

Notes

The Order imposed today will apply from 5 October 2017 (the operative date).

Hearing history

History of Hearings for Rebecca Grundy

Date Panel Hearing type Outcomes / Status
05/09/2017 Conduct and Competence Committee Final Hearing Caution