Mr Patrick Nyamushonyongora

: Social worker

: SW32911

Interim Order: Imposed on 13 Feb 2017

: 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

(As amended at Substantive Hearing):

During the course of your employment as a Social Worker at North Tyneside Council:


1. In relation to Child A’s case you,
a. Did not adequately recognise the risks posed to Child A, in that the Birth Plan allowed for Child A to live in the same household as his father;


b. Did not follow the instructions of your supervisor in a timely manner in that you did not complete a:

i. [Removed]
ii. A risk assessment
iii. Parenting assessment


c. Did not adequately prepare for annual leave, in that you did not:


i. Discuss Child A’s case with a manager and/or supervisor; and/or
ii. Make a manager and/or supervisor aware that Child A was due to be born whilst you were on annual leave


2. In relation to Child B:


a. On or around 13 November 2015 Child B made an allegation of sexual assault and you did not:


i. Visit Child B to offer support
ii. See or speak with Child B prior to a meeting on or around 27 November 2015


b. On or around 4 December 2015 Child B’s foster carer made a disclosure of a sexualised incident and you did not:


i. Discuss the disclosure with your supervisor and/or line manager
ii. Instigate the child protection process
iii. Visit Child B until approximately 22 December 2015
iv. Address the issues with Child B at the visit on or around 22 December 2015


c. Did not conduct and/or record adequate statutory visits and/or care team meetings between approximately July 2015 to March 2016


3. In relation to Child C’s case, in or around March 2016 you:


a. Did not follow up on and/or instigate child protection procedures when informed or sexual abuse disclosures in relation to Child C.


b. Did not adequately prepare for annual leave in that you:


i. Discuss any action required in relation to Child C’s case with a supervisor and/or line manager
ii. Did not discuss any outstanding emails with your manager and/or supervisor relating to Child C.

4. The matters set out in paragraphs 1-3 constitute misconduct.


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

Finding

Preliminary Matters


Application to amend the Allegation
1. 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 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 did not raise any objection following notification of the proposed amendments. The Panel granted the amendment application in order to clarify the HCPC’s case.

Background


2. The Registrant, Mr Patrick Nyamushonyongora, commenced work in the UK as a Social Worker in 2002 when he was employed by North Tyneside Council (the Council). He qualified as a Social Worker in Zimbabwe where he practised from 1994 to 2002. The Registrant was employed by the Council in the Child Protection Team from 2007 until he was transferred to the Looked after Children (LAC) team in 2015. His role in the LAC team was to support children primarily in settled placements, to review Care Plans and amend them, if necessary, with Court approval. His transfer to the LAC team occurred following disciplinary proceedings concerning Child A which also give rise to particular 1 above.

3. A Personal Improvement Programme (PIP) was successfully completed by the Registrant, in September 2015 following the disciplinary proceedings. He had felt traumatised by the disciplinary process but says his caseload as a member of the LAC team was initially more manageable. However, from September 2015 there was an increase in his caseload and by December 2015 he had a high caseload of approximately 30 cases, many of which were demanding. The Panel heard evidence from his former supervisor that a caseload of 16 to 20 would have been more appropriate. A number of the placements he dealt with were outside the Council’s immediate area, requiring him to make long journeys to carry out visits. In November and December 2015, the Panel heard evidence from the Registrant and JW that the case of one child who was at very high risk and unavoidably occupied 50% of his time. JW was aware that he was struggling with his caseload and raised this as an issue with her senior manager but no action was taken at that time. The Registrant did not request a meeting with a more senior manager to discuss the size of his caseload but informed the Panel he was “crying out for help”.

4. Factual particulars 1, 2 and 3 refer to service users: Child A, Child B and Child C respectively.

5. The Panel considered sequentially:
1) whether the factual particulars are proved;
2) if the proved facts amount to misconduct, and if so;
3) is the Registrant’s fitness to practise currently impaired?


6. 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.

7. The Panel heard oral evidence from the following HCPC witnesses: FCC (Foster Carer for Child C), RP (Registrant’s Line Manager and Investigating Officer for Child B), JW (Registrant’s Line Manager) and AG (Investigating Officer for Child A, Child B and Child C). The Panel also heard oral evidence from the Registrant and considered a written character reference from his friend AH. He had a previously unblemished record of employment as a Social Worker until 2014. Evidence of previous good character is relevant to credibility and has been taken into account by the Panel at the fact finding stage.

Decision on Facts

8. The Panel found the live HCPC witnesses to be credible, reliable and consistent in respect of the matters within their own knowledge. JW was an impressive witness in respect of her clear knowledge of the Registrant his cases. She confirmed that the Registrant’s case had become too high by December 2015.


Particular 1
9. The case of Child A (an unborn child) was allocated to the Registrant on 16 July 2014 under the supervision of JM. Child A’s elder sibling was not residing with Child A’s mother, due to domestic violence perpetrated by Child A’s father upon Child A’s mother and alcohol/substance misuse by both parents. As an experienced Social Worker the Registrant should have treated Child A’s case as a “Child Protection” rather than a “Child in Need” case, due to the risk of harm to Child A. However the Birth Plan completed by the Registrant would have allowed Child A to reside with both parents, which contradicted the Registrant’s Section 7 Court Report for Child A’s sibling. He also failed to complete a risk assessment and a parenting assessment before the birth of Child A, as instructed by his supervisor on 11 September 2014. The Panel heard evidence from witness AG, who undertook the internal investigation, within which she expressed concerns about the quality of supervision provided to the Registrant.

10. The Registrant went on holiday before Child A’s birth on 13 November 2014, without any preplanning discussion of the case with his supervisor or manager and despite knowing he would be on holiday on the expected date of birth. This created a potentially serious risk in relation to the safety of Child A (a new born baby). When Child A was born, his manager JW amended the birth plan to ensure the father could not reside with Child A overnight.

11. The Registrant states that he takes responsibility for not instigating the child protection process. He states he had a high caseload but accepts that the Birth Plan for Child A should have been discussed with a senior colleague.

12. In respect of particulars 1a, 1bii, 1biii, 1ci, 1cii: the Panel finds these particulars proved because they are admitted and clearly established by the evidence.

Particular 2

13. Child B was a young girl with a concerning and complex background of neglect. Her case was allocated to the Registrant on 20 July 2015 by his manager JW. A disclosure of sexual assault was made by Child B on 13 November 2015. The Registrant did not visit her until after a LAC meeting on 27 November 2015; this delay was in breach of the Council’s Child Protection Procedures and prevented the Registrant from providing up to date information at the LAC meeting. In addition, on 4 December 2015 a seriously concerning incident involving Child B was reported to the Registrant but he failed to take appropriate action, or visit her, until 22 December 2015 and then did not address the incident with her. He did not carry out adequate visits to Child B, or hold meetings with her regularly, from July 2015 to March 2016, as instructed by JW.

14. In respect of particulars 2ai, 2aii, 2bii, 2biii, 2biv and 2c: the Panel finds these particulars proved because they are admitted and clearly established by the evidence.

15. In respect of particular 2bi, this particular is denied. JW states that she was informed for the first time about the 4 December 2015 incident by RP, in April 2016. The Registrant states that a manager (JS) was made aware by him of the disclosure made by Child B. He did not promptly visit Child B in December 2015 due to his high caseload, which caused him to struggle to keep up with visits and he says his manager JW was aware of this. The Panel finds that whilst this allegation is capable of being found proved in that the Registrant did not discuss the case with his supervisor JW, it has formed the view that the Registrant’s account that he did discuss the case with JS is credible. The Panel had been told that JS had signed off his PIP. JW also told the Panel that she may have been on leave at the relevant time and that a discussion of the case between the Registrant and JS would have been an acceptable course of action.


16. The basis upon which this charge is found proved is because it was charged in the alternative (supervisor and/or line manager) and the Panel finds the matter proved on the basis of the Registrant’s evidence that he informed a senior manager, JS. Accordingly, the finding that this particular is proved is limited and, in the circumstances, does not amount to misconduct.

Particular 3

17. In respect of particulars 3a, 3bi and 3bii, these particulars were denied. Child C was one of four LAC siblings who had made several allegations of historic abuse, a chronology had been made of these in order to clarify any new revelations. In March 2016, Child C made a further allegation of historic abuse to FCC who attempted to pass this information on to the Registrant after a meeting at a school and on 7 March 2016 and on 14 March 2016 sent him an email with the details. The email did not contain the word ‘disclosure’ in the subject header and included a photograph of Child C for the child’s Permanence Report. The Registrant states that FCC did not make a verbal disclosure to him in March 2016 nor did he see the email sent to him by FCC on 14 March 2016. He informed the Panel that during this time that he was instructed by WK (a senior manager) to complete a number of urgent tasks and was instructed by RP not to access his emails from 14 - 17 March 2016. He was then on holiday from 18 - 30 March 2016. However, an audit report shows that he was accessing emails in the period 14 - 17 March 2016.

18. The Registrant told the Panel he had previously seen the photograph of Child C, but not the disclosure. The Panel finds on the balance of probability that the email in question was received by the Registrant and he was informed of Child C’s disclosure at the school but failed to appreciate the significance of what he had been told. The Panel had heard from FCC and the Registrant that there was no disclosure to him at the formal meeting at the school and the situation was hectic when the meeting closed at the end of the school day. FCC informed the Panel that she had told the Registrant of the new disclosure as they left the meeting and that she would send the details by email. The Registrant should have informed his manager of any outstanding emails, before going on holiday, in particular the email from FCC in relation to a disclosure by Child C and about the conversation at the school with FCC.


19. Accordingly, the Panel finds particulars 3a, 3bi and 3bii proved.

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 submitted that the Registrant’s actions amount to misconduct. His conduct fell seriously short of what would be proper in the circumstances and breached the HCPC Code of Conduct and the HCPC Standards of Proficiency for Social workers in England.

22. In respect of particulars 1a, 1bii, 1biii, 1ci, 1cii, 2ai, 2aii, 2bii, 2biii, 2biv and 2c, the Panel finds that the allegation of misconduct arising from these proved factual particulars is well founded. The Registrant admits his behaviour in respect of these particulars was sufficiently serious to amount to misconduct and the Panel is satisfied that these particulars demonstrate a serious falling short of the standards to be expected of a Social Worker.

23. The Panel considered that the Registrant’s conduct breached the following standards:

The HCPC standards of conduct, performance and ethics (2012 edition):

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

The HCPC Standards of Proficiency for Social workers:

4.1 - be able to assess a situation, determine its nature and severity and call upon the required knowledge and experience to deal with it
4.3- recognise that they are personally responsible for and must be able to justify their decisions and recommendations

24. In respect of particulars 3a, 3bi and 3bii, the Panel finds that the allegation of misconduct arising from these proved factual particulars is not well founded. The Panel is not satisfied that there was a serious falling short of the standards to be expected of a Social Worker in respect of these particulars. The Panel heard evidence that during the period 14 - 18 March 2016 the Registrant had been directed by a senior manager (WK) to undertake an urgent piece of work and that this work was to be given priority. To facilitate this work, calls to his telephone were blocked or diverted and he was instructed not to access the internet.


25. The Panel concluded that although his falling short of what was expected in the circumstances under which he was working, the acts or omissions giving rise to 3a, 3bi, 3bii was not so serious as to amount to misconduct.

Decision on Impairment

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

1. the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
2. the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

27. Mr Paterson submitted that the Registrant’s fitness to practise is impaired on public and personal grounds. Mr Paterson argued that despite the Registrant’s PIP being signed off in September 2015, he had made two more errors of a similar nature. Therefore, he submitted that there was a risk of repetition.

28.  Ms Goring, on behalf of the Registrant, submitted that the he had been given inaccurate management guidance in relation to Child A and Child B. She further submitted that the Registrant had shown insight and developed strategies that he would implement to prevent a reoccurrence of his past behaviour. She also reminded the Panel that he had been complimented on the quality of his relationship with LAC service users and this point was also acknowledged by Mr Paterson.
 
29. The Panel heard and accepted the advice of the Legal Assessor. He advised the Panel that 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.

30. The Legal Assessor reminded the Panel of the guidance given by Dame Janet Smith that 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.

31. 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”.

32. In determining whether the Registrant’s fitness to practise is impaired the Panel first considered the personal component of his practise.

33.  The Registrant attended the hearing and gave evidence on oath. He took full responsibility for the matters found proved and which the Panel determined amounted to misconduct. He understood the risk to Child A and had not escalated his concerns to his manager. He also understood the risks entailed in Child B’s behavior and he did not inform his manager that he could not visit Child B in a timely manner. He stated that he tried to take on too much work to help the team that was very short of social workers and he worked long hours including weekends. He was worried about saying “no” as he had been on a PIP and was concerned that he would be seen as failing. His manager JW confirmed that he was a very dedicated worker who was eager to learn and improve, she explained that there had been a high turnover of staff and his caseload was far too high. She said “there were not enough hours in the day”.

34. During his evidence, the Registrant demonstrated reflection and remorse. He has engaged with the HCPC process and admitted factual particulars: 1a, 1bii, 1biii, 1ci, 1cii, 2ai, 2aii, 2bii, 2biii, 2biv and 2c. He was able to assure the Panel of the strategies he would employ to avoid a repetition of his past failures. He did not admit particulars, 3a, 3bi and 3bii which have been found proved. These matters were not judged by the Panel as amounting to misconduct.

35. Looking forward the Registrant stated that in future he would challenge unsafe professional practices and escalate his concerns up the management chain. He would record any concerns about caseloads and would be prepared to challenge and record any management advice that he did not agree with. He spoke of his commitment to helping LAC service users build more fulfilled lives and the job satisfaction this brings. In answer to a question from the Panel he was able to explain how he would organise and prioritise his work on a day to day basis and how he would achieve effective handovers when going on leave. The Registrant also informed the Panel how he had been maintaining his professional knowledge through reading recent relevant social work legislation.


36.  The Panel therefore determined that the risk of the Registrant repeating his past behavior was low and his fitness to practise was not impaired in respect of the personal component.

37. In determining whether the Registrant’s fitness to practise is impaired on the public component, the Panel considered the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

38. The Registrant in his role as a Social Worker for LAC service users had a key role in seeking to ensure their welfare, development and safety. In failing to discharge that responsibility to an adequate standard he failed to discharge the trust that society places in social workers to support and protect the most vulnerable in society. Whilst the Panel believes that the Registrant has learnt from his past failings and is unlikely to repeat them, it nevertheless feels that a finding of impairment is necessary to mark public disapproval of his past action, to declare and uphold the standards expected of a social worker in his position and because public confidence in the profession would be undermined if a finding of impairment were not made.

Decision on Sanction

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

40. There is a public interest in upholding the reputation of the profession and maintaining public confidence in the HCPC regulatory process. 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. The Panel heard submissions from both parties and considered the mitigating and aggravating factors before deciding what, if any, sanction to impose.

42. The aggravating factors are the misconduct in respect of Child A and Child B. Also the Registrant had been subject to a PIP following disciplinary proceedings in respect of Child A in 2014 before his misconduct in relation to Child B. These matters concerned the welfare of highly vulnerable children who were at risk of harm.

43. The context of both these cases, however, provides some mitigation. In relation to Child B, the Registrant’s supervisor/manager acknowledged his case load was too high with a significant number of demanding cases. His employer’s investigation reported management failures in respect of his supervision in regard to Child A.

44. The further mitigating features are that the Panel has found clear evidence of insight, remorse and acknowledgement by the Registrant of the impact upon others of his misconduct. It has been demonstrated by the Registrant that this misconduct was out of character. He has engaged with the HCPC process and given evidence about his remediation. This was also demonstrated by a large file of career development material and testimonials which the Panel considered after hearing submissions on sanction. He has been working as a Care Assistant and seeking further qualifications to show insight and personal accountability for his misconduct.

45. The Registrant admitted all the factual particulars giving rise to the finding of misconduct. There are strong mitigating features from the information before the Panel. He has shown insight and developed strategies to prevent a reoccurrence of his past behaviour and he has been complimented on the quality of his relationship with LAC service users and for his recent work as a Carer.

46. The risk of repetition is low and the Panel is confident that this misconduct is unlikely to be repeated.

47. The Panel has decided that it is necessary to impose a sanction due to the seriousness of the Registrant’s misconduct and the finding of current impairment on public but not personal grounds. Taking no action or mediation is not appropriate.

48. The Panel finds a Caution Order is in accordance with the ISP in the circumstances of this particular case. Although the lapses were not “minor” the Panel has viewed them in the context of inadequate supervision by his manager as regards Child A and an excessive caseload in respect of Child B. The lapses giving rise to the misconduct in this case were isolated because the failures in respect of child B were in the context of an excessive case load and at odds with his generally accepted high level of commitment. The lapse in respect of Child A was fundamentally different and related to a failure to challenge the inadequate supervision of his manager. He has been suspended from practise for seven months since February 2017 and has now successfully completed additional training, including risk assessment and managing stress. Due to the Registrant’s insight and the low risk of repetition, the Panel concluded a Caution for two years is a sufficient sanction to declare and uphold proper standards of behaviour and maintain public confidence in the profession.

49. The Panel did consider the more serious sanctions of Conditions of Practice or a Suspension Order. However these sanctions are not appropriate or proportionate, due to the Registrant’s engagement in the HCPC process, the low risk of repetition and the Registrant’s evidence given at the hearing, which has satisfied the Panel that he has remedied his past misconduct. He has demonstrated strategies to prevent a recurrence of his misconduct and no appropriate or workable conditions can be formulated in the current circumstances.

50. The Panel concluded that, taking into account the 7 month interim Suspension Order, that a Caution Order is a sufficient and proportionate 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. Further, it will serve as an ongoing reminder to the Registrant of the need to maintain a proper professional standards and must be declared to any potential employer.

Order

ORDER: The Registrar is directed to annotate the register entry of Mr Patrick Nyamushonyongora with a caution which is to remain on the register for a period of 2 years from the date this Order comes into effect (the Operative Date).

Notes

The Order imposed today will apply from 5 October 2017.

Hearing history

History of Hearings for Mr Patrick Nyamushonyongora

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