Mr Daniel Smith
Allegation (as amended at the Final Hearing)
Whilst registered as a Social Worker and during the course of your employment with Sheffield City Council, you:
1. Sent inappropriate text messages to Service User A.
2. Accessed the confidential Care First record of Service User A after the case had been closed:
a) on or around 16 September 2015;
b) on or around 28 September 2015.
3. Did not record and/or make a safeguarding referral to your Line Manager and/or a safeguarding agency in respect of Service User A threatening physical harm to herself and/or her child.
4. The matters described at particular 1 were sexually motivated towards Service user A.
5. The matters described at particulars 1 to 4 amount to misconduct.
6. By reason of your misconduct your fitness to practise is impaired.
Application to hold part of the hearing in private
1. At the beginning of the hearing, the Panel considered a joint application by Ms Shameli, on behalf of the HCPC, and Mr Smith, on behalf of the Registrant, that any part of the hearing which dealt with the Registrant’s health or private life should be heard in private. Having taken advice from the Legal Assessor, and in accordance with Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”), the Panel allowed the application.
Applications to amend the Allegation
2. Ms Shameli applied to amend particulars 1 and 2 of the Allegation as set out above. Particular 1 was drafted in the following terms:
1. Between July and October 2015 sent inappropriate text messages to Service User A, including:
a) ‘You’re sexy’, or words to that effect;
b) ‘I’m horny’, or words to that effect;
c) ‘We could save on water’, or words to that effect.
Particular 2 was drafted in the following terms:
2. Accessed the confidential Care First record of Service User A after the case had been closed, obtaining personal information for no professional purpose:
a) on or around 16 September 2015;
b) on or around 28 September 2015.
3. She submitted that the amendments were sought in order to clarify the basis on which the case was put, and that no injustice would be caused to the Registrant.
4. Mr Smith, on behalf of the Registrant, did not oppose the application. The Legal Assessor advised that the Allegation could be amended provided that the Panel was satisfied that no injustice was thereby caused. The Panel noted that the Registrant had been informed of the proposed amendments well in advance of the hearing, and that he did not object to the application. The Panel concluded that there was no injustice caused to the Registrant and it allowed the application.
5. At the conclusion of the evidence, the parties invited the Panel to allow an application to add the words “towards Service User A” to particular 4. It was submitted that this better reflected the HCPC’s case that the text messages were deliberately sent to Service User A. The Panel again took advice from the Legal Assessor and decided to allow the application.
6. The Allegation in this case arises out of the Registrant’s employment at Sheffield City Council (“the Council”).
7. The Registrant started working at the Council on 27 January 2015 as a Prevention Worker within the Learning Disabilities team. He remained in this team until the end of July 2015 when he moved to become a temporary Grade 6 Care Manager within the Adult Long Term Care and Support Service team, having successfully applied for the role. Neither of these roles required the Registrant to be registered with the HCPC as a Social Worker.
8. The Registrant’s role as a Prevention Worker involved working with service users aged 18 and over who were diagnosed with, or suspected of having, learning disabilities. His role involved screening cases for eligibility for the use of the Learning Disabilities Service, offering advice and information to service users and referring service users to services outside the Council.
9. On 13 April 2015, a contact assessment for Service User A was received by the Learning Disabilities Team. Service User A has mental health issues, particularly around anxiety. She was struggling with everyday tasks and thought this might be as a result of dyscalculia (a condition relating to basic arithmetic). The case was allocated to the Registrant. As such, he was expected to find services that could help Service User A and organise a screening of her condition.
10. The Registrant completed the work that was expected of him in respect of Service User A. He arranged for her to be assessed. The result of the assessment was that Service User A was not suffering from dyscalculia.
11. Service User A’s case was closed on 6 July 2015. The Registrant left the Learning Disabilities team on or around 27 July 2015.
12. The case concerns text messages which the Registrant is alleged to have sent to Service User A. The HCPC’s case is that the texts were intended for Service User A and were sexual in nature (particulars 1 and 4). The Registrant accepted sending the texts but he said they were intended for his partner and were sent to Service User A in error. The HCPC further alleged that the Registrant accessed Service User A’s case notes after her case had been closed (particular 2), and that he did not take appropriate action when Service User A disclosed to him that she was at risk of harming herself and her child (particular 3).
13. The particulars of the Allegation were read out. The Registrant admitted particulars 1, 2 and 3 saying, however, in relation to particular 3, that Service User A was only threatening physical harm to herself and not her child. The Registrant denied particular 4 (sexual motivation). The Panel took the admissions into account when deciding whether the factual particulars had been proved or not.
14. The HCPC called two witnesses. TT was an Early Years Intervention Worker at the Council. SM-S is a registered Social Worker and was a Team Leader at the Council. In addition, the HCPC relied on witness statements from three other witnesses: PH and MW were employees of the Council and AM was a Legal Assistant with Kingsley Napley, the HCPC’s solicitors. The Panel also saw various exhibits produced by the witnesses, including a Safeguarding Adults Alert dated 30 October 2015 which contained information from two other Council employees, IM and LH, regarding their contact with Service User A and information she was said to have provided to them about the text messages.
15. The Panel found TT to be credible, honest and fair-minded. She knew Service User A but she did not know the Registrant. On 30 November 2015, Service User A showed her some of the text messages which the Registrant had allegedly sent. In her evidence she was balanced, at one time describing Service User A as ‘needy’. There was no reason to believe that her evidence had been influenced in any way by bias towards or against the Registrant. In her evidence, she accepted that she was unable to give details of the origin of the text messages or their timings, dates, or the context of the conversations. She did not make any contemporaneous notes when she viewed the texts, although she did send an email detailing what she had seen to a colleague on 7 December 2015. However, the content of the messages and the fact that they were sent by the Registrant and received by Service User A was not in dispute. The witness was open about the limits of the evidence that she could give. She was factual and did not expand on the matters in her witness statement.
16. The Panel found SM-S to be an honest and credible witness. She had line management responsibility for the Registrant when he moved to the Care Manager role, but not when he was working with Service User A. In relation to the allegations against the Registrant, SM-S’s role was primarily as the investigating officer.
17. The Panel considered that SM-S demonstrated a balanced approach to the investigation. She acknowledged that the Registrant had only had three supervision meetings with his line managers during the time he was working with the Learning Disabilities team. She also accepted that he was agitated during the investigation interview on 12 November 2015, although she confirmed that she had not been made aware by him of his health issues or medication. During the course of the investigation process, she tried to meet Service User A on a number of occasions but was unsuccessful. She was an Advanced Practitioner. The Panel accepted the accuracy of the record of interview produced by SM-S, supplemented as it was by the Registrant’s comments of 20 November 2015, although on one issue (relating to particular 3) the Panel had cause to doubt the interpretation of the interview record.
18. The Panel considered the notes of the original Safeguarding Adults Alert. The events recorded are based on hearsay evidence from IM, LH and Service User A, but are detailed notes made close to the time of the events recorded and are consistent with other sources.
19. The Panel also considered the information it had in relation to Service User A. She had not made a statement and had not engaged with the process except at the very beginning when she made disclosures to IM, LH and TT. If Service User A had been the only source of evidence, the HCPC’s case would have been weak. Indeed, on certain issues – such as who instigated the text messages between Service User A and the Registrant – the Panel was unable to make definitive findings. However, on the core issues in the case – whether the messages were sent (deliberately or otherwise) to Service User A by the Registrant and whether they were sexual in nature – there was other evidence, including admissions by the Registrant, to support Service User A’s evidence.
20. The remaining evidence adduced by the HCPC comprised witness statements, the factual content of which was not accepted by the Registrant. The witnesses were not called to test their evidence. However, in general terms there was little that was not covered elsewhere and the statements were not relied upon other than to provide some corroboration for other pieces of evidence. This evidence was not central to the case
21. The Registrant gave evidence. The Panel noted that he had engaged with the process through his written statement and his oral evidence, although the written statement was not provided until the first day of the hearing. He admitted a number of particulars, showing where there was no dispute between the parties. Where he denied matters he provided his detailed account of the events. He was candid about his personal life. However, the account he provided during the internal interview on 12 November 2015 regarding the intended recipient of the text messages, and the account given in his witness statement and his oral evidence were inconsistent. The Panel considered there was a marked contrast in his evidence about his background and personal matters, when he came across as open and fluent, but when he was talking about the texts his evidence was less clear, it was imprecise and lacked detail. It was not convincing.
22. The Panel also considered the material produced on behalf of the Registrant. This included medical evidence, a letter from the Registrant’s partner. The material also included the Registrant’s CV, training log, a supervision record and various testimonials.
23. The Panel recognised the sensitivity around the letter from the Registrant’s partner and also took into account that it was hearsay evidence. The Panel had no reason to doubt the letter’s veracity, although it noted that there were no dates or specific occasions referred to in the letter, other than the ‘end date’ of 3 October 2015. The medical evidence produced primarily covered the period at the end of 2015.
24. The Panel then considered the individual particulars. In doing so, the Panel took into account all of the oral and written evidence, the submissions of the parties and the advice of the Legal Assessor. The Panel reminded itself that the burden of proving the factual particulars lies with the HCPC and that the standard of proof is the balance of probabilities.
25. The Registrant admitted the particular, and his admission was consistent with the evidence from TT and the initial Safeguarding Adults Alert.
26. The HCPC case was put on the basis that the inappropriate messages included a sequence of texts between the Registrant and Service User A following a football match that the Registrant had been to on 29 August 2015; an earlier text relating to the Registrant having had a massage; and texts sent from the Registrant’s work phone on 20 and 23 July 2015, after Service User A’s case had been closed.
27. It appeared to the Panel that the admissions made by the Registrant related in particular to the 29 August sequence and the text relating to the massage. With regard to the July 2015 texts, the Panel did not see any evidence about the content or context of those messages. The Panel did not accept the HCPC’s submission that the mere sending of a text following the closure of Service User A’s case was in itself inappropriate. There could be legitimate reasons why a caseworker may have cause to send texts to a former service user. It was not for the Registrant to disprove the existence of any such reasons. Therefore the Panel found this particular proved, but only in relation to the text sequence of 29 August 2015 and the text relating to the massage.
28. Having found particular 1 proved, the Panel then went on to consider particular 4. The Registrant said that he sent the text messages by mistake to Service User A, and that they were intended for his partner. In view of the serious nature of this particular, and of the potential consequences for the Registrant if it were to be found proved, the Panel considered the circumstances with care.
29. In his oral evidence, the Registrant stated that he did not realise that he had been exchanging texts with Service User A until some 24 messages had been sent between them. He finally realised that he had been texting the wrong person when Service User A sent him a message to say that she was not interested. At this point, the Registrant replied to apologise for his mistake. He then, because of his anger and frustration as to his actions, deleted the messages from his phone and threw the phone across the room causing it to smash.
30. The first occasion on which this version of events was put forward by the Registrant was in his witness statement which he provided on the first day of the hearing. During the investigation process, there were at least three specific occasions, in the Panel’s view, when he could have advanced the explanation which he now provided. The first was during the verification meeting on 3 November 2015. He made no mention of his mistake in sending messages to Service User A, or of the fact that he had smashed his personal mobile phone. The second occasion was in the investigation interview on 12 November 2015. The notes of the interview record that when the Registrant was asked if investigators could look at the texts on his personal phone, he replied that “he had deleted them and in doing so smashed his phone”. The third occasion was when the Registrant was sent a copy of the notes of the interview and was given the opportunity to correct any errors. He responded by returning a supplement to the interview notes dated 20 November 2015. In this response, he again did not mention his mistake in sending the texts to Service User A.
31. The Registrant also maintained that he believed the discussion in the interview on 12 November 2015 was about meetings that he had had face-to-face with Service User A. He explained that, on one of these occasions when they had met, he suggested that she should get out more and “have some fun” because he was concerned that she was spending too much time at home. In the Panel’s view, it is clear from the frequent references to text messages that it was texts being investigated and not meetings. Even if the Registrant had been mistaken about this during the interview itself, he could have pointed this out when he was given the opportunity to comment on the record of the interview.
32. The Panel concluded that there were significant inconsistencies between the accounts given by the Registrant in November 2015 and his later written statement and oral evidence. These inconsistencies caused the Panel to doubt the credibility of the Registrant’s later account. These concerns were exacerbated by the Panel’s view that the Registrant’s later account that he had exchanged some 24 messages with Service User A before realising that he was texting the wrong person was inherently implausible. In reaching this conclusion, the Panel bore in mind the fact that the texting was late at night that the Registrant had been drinking. Nonetheless, the Panel formed the view that the explanation put forward by the Registrant was highly unlikely to be true. The Panel’s view was further confirmed by the manner in which the Registrant gave evidence on these issues during the hearing. In contrast to his clear and detailed testimony on the background and his personal situation, when he came to speak about the text messages he was hesitant, lacked detail and was unconvincing.
33. For these reasons, the Panel did not accept the Registrant’s explanation that he had sent the messages to Service User A by mistake. He accepted that he had sent the messages to her and that they were of a sexual nature. The Panel’s conclusion was that he had deliberately sent such messages to Service User A and that his reason for doing so was for sexual gratification. Therefore, the Panel found this particular proved.
34. The Panel found this particular proved. In making this finding the Panel accepted the admission made by the Registrant, which was consistent with the evidence provided by HCPC witnesses. Service User A’s case was closed in July 2015. The Registrant had moved to a different team later that month, and he had no professional reason to access her records in September 2015.
35. The Panel found this particular proved in part. The case for the HCPC was that, during the interview on 12 November 2015, the Registrant said that Service User A had made threats to harm herself and/or her child. This was recorded in the interview notes from 12 November 2015. The Registrant’s case, and the basis of his partial admission, was that she had threatened to harm herself but had not threatened to harm her child, although she said she was concerned that she might harm her child. He said that this was what he meant to convey during the interview.
36. The Panel noted that SM-S, in her oral evidence, confirmed her recollection that the interview record was accurate. She recalled being particularly concerned by the explanation that Service User A was thinking of pitching a tent near a cliff. However, this explanation was not included in the original interview notes; it was added by the Registrant in his response of 20 November 2015. Whilst the Panel had no reason to doubt that SM-S was doing her best to recall the context of a discussion from nearly two years ago, the Panel was not satisfied that it could rely on her recollection on this specific point. Consequently, the Panel found that the HCPC had not discharged the burden of proof in so far as it related to threats towards the child.
37. The Panel was also not persuaded by the alleged requirement for the Registrant to have recorded his concerns. There was no on-going case file upon which to make a recording. The correct course of action, as accepted by the Registrant, would have been for him to make a safeguarding referral to his manager or some other relevant agency regarding Service User A’s threat to harm herself. He did not do so and, to this extent, the Panel found the particular proved.
38. The Panel therefore finds proved in this Particular that the Registrant did not make a safeguarding referral to his line manager and/or a Safeguarding Agency in respect of Service User A threatening physical harm to herself.
Decision on Grounds
39. The Panel went on to consider whether the facts it had found proved amounted to misconduct. The Panel heard submissions from Ms Shameli and from Mr Smith. It heard and accepted legal advice from the Legal Assessor. The Panel noted the words of Lord Clyde in Roylance v GMC (No 2) ( 1 AC 311) that: “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 Panel also reminded itself that misconduct was a matter for the Panel’s professional judgment and that there was no burden or standard of proof, although it did bear in mind that the Registrant accepted that – even if the sexual motivation had been found not proved – his actions did amount to serious breaches of the relevant Standards.
40. The Panel considered the actions found proved against the Registrant against HCPC Standards of conduct, performance and ethics (2012). The Panel considered that the Registrant had breached the following Standards:
1 You must act in the best interests of service users.
2 You must respect the confidentiality of service users.
7 You must communicate properly and effectively with service users and other practitioners.
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.
41. The Panel was mindful that not every breach of the Standards would amount to misconduct; any breach must be sufficiently serious to justify such a label. The Panel identified a number of aggravating features. The Registrant’s behaviour was sexually motivated towards Service User A, who was a vulnerable person. His access to her case files was a breach of his position of trust. He put his own interests above those of Service User A in sending her text messages for sexual gratification and by failing to take appropriate action when she said she was a threat to herself. At one stage of the proceedings he tried to blame Service User A for ‘duping’ him, ‘lying’ to him and contacting him. The totality of his behaviour amounted to serious breaches of his professional standards. The Panel therefore found that the Registrant’s actions amounted to misconduct.
Decision on Impairment
42. Having found misconduct, the Panel considered whether by reason of that misconduct the Registrant’s fitness to practise is currently impaired. Again, the Panel had the benefit of submissions from Ms Shameli and Mr Smith, and legal advice from the Legal Assessor. The Panel recognised that this was again a matter for its own professional judgment and was not subject to a burden or standard of proof. In reaching its decision on impairment, the Panel took into consideration the guidance in the HCPTS Practice Note ‘Finding that Fitness to Practise is impaired’.
43. The Panel considered the two component parts relating to impairment, the ‘personal component’ and the ‘public component’. It first considered the ‘personal component’, in other words “the current competence, behaviour etc of the individual registrant”.
44. The matters found proved do not directly relate to the Registrant’s professional competence, although they do call into question his judgment. He was not at the time practising as a Social Worker and, indeed, he has never practised in this role. The Panel noted that, in his oral evidence, the Registrant said that he did not feel he could practise as a Social Worker at the present time, because of his on-going personal issues, but he hoped he might be able to work in that capacity at some point in the future.
45. The Panel considered that the Registrant continues to demonstrate a lack of understanding of the consequences of his behaviour. He put his own interests above those of a vulnerable Service User. He sent her texts late at night for his sexual gratification. When made aware of threats that the Service User may harm herself, he failed to make a safeguarding referral because he was worried about the impact this would have on him.
46. Although he has shown some insight by way of his limited admissions, he has failed to demonstrate his understanding of the effect of his actions on the profession and the way in which the public would regard his behaviour. His insight is limited at this time. Whilst he has shown some remorse and has apologised for his actions, he sought to place blame on Service User A during the internal investigation in November 2015 and the Panel noted that he did not address this in his recent witness statement; in fact, he perpetuated this view of the circumstances by commenting, in that statement, that “she started harassing me and trying to disclose her issues to me”. The Registrant was the professional party in his dealings with Service User A and he does not appear to have understood the significance of this.
47. The Panel considered that the Registrant’s misconduct is capable of remediation, but this will require him to reflect more on his professional responsibilities and on the impact of his actions on Service User A, his employer, his profession and the wider public, and to demonstrate his understanding as to why he acted as he did.
48. The Panel concluded that the Registrant’s fitness to practise as a Social Worker is currently impaired with regard to the ‘personal component’.
49. The Panel next considered the ‘public component’, which the HCPTS guidance defines as “the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession”. The Panel noted that there have been no previous disciplinary findings against the Registrant, although he only qualified as a Social Worker in 2014 and has not practised in that role. The Panel took into account the Registrant’s evidence that there had never been a complaint against him before in any of his social care posts. However, by his actions towards Service User A, the Registrant placed her at unwarranted risk of harm in two respects: by sending the texts to her and by failing to take appropriate safeguarding action. His poor judgment and limited insight indicated to the Panel that there is a risk of his repeating similar actions in the future. This could place other service users at risk.
50. The Panel is aware that it must also look at the wider public interest when considering the question of impairment. The Panel considered that the Registrant’s actions have brought the Social Work profession into disrepute and he has breached a fundamental tenet of the profession by placing his interests above those of a service user. In view of the serious nature of the misconduct, the Panel concluded that public confidence in the profession and in the regulatory process would be undermined if a finding of impairment were not made in these circumstances.
51. The Panel therefore also finds that the Registrant’s fitness to practise as a Social Worker is impaired with regard to the ‘public component’.
Decision on Sanction
52. Having decided that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel went on to consider what sanction, if any, should be imposed. The Panel heard submissions from Ms Shameli and Mr Smith. The Panel received and accepted the advice of the Legal Assessor and took into consideration the HCPTS Indicative Sanctions Policy. The Panel reminded itself that the purpose of sanction is not to punish the Registrant, although there may be punitive consequences. The purpose is to protect the public and the wider public interest. Any sanction should be proportionate, in other words it should be the least restrictive order which adequately addresses the risk factors identified by the Panel, whilst appropriately balancing the public interest with the interests of the Registrant.
53. The Panel first considered the aggravating and mitigating features of the case. The aggravating features have already been identified in the Panel’s determination on misconduct. In summary, these were:
• sexually motivated behaviour towards a vulnerable service user;
• breach of trust;
• the Registrant putting his own interests above those of the service user;
• the Registrant seeking to blame Service User A for the events.
54. Mr Smith invited the Panel to take account of the following mitigating features:
• the absence of any previous disciplinary findings;
•the Registrant’s admissions which, although not relating to each particular, did acknowledge serious failings on his part;
• some insight into his actions and the reasons for his behaviour;
• the factors relating to the Registrant’s health and personal life which had a bearing on him at the time and which he is seeking to address through counselling;
• the Registrant’s awareness of his own limitations and his realistic assessment that he cannot practise as a Social Worker at the present time.
55. In addition, the Panel considered it was significant that the Registrant has engaged with the regulatory process. The Panel also noted that he has spent a number of years working in caring roles and that his testimonials make reference to his caring nature.
56. The Panel considered the available sanctions in ascending order. Taking No Action or imposing a Caution Order would not be appropriate because of the serious nature of the misconduct. Neither of these options would provide any protection for the public nor any support to the Registrant in trying to regain confidence and establish himself in the profession.
57. The Panel next considered the imposition of a Conditions of Practice Order. The Panel took the view that the Registrant’s behaviour at the time of his misconduct was affected by his personal and health issues. These continue to weigh heavily on him. The Panel bore in mind that the Registrant has never practised as a Social Worker and has no current offer of work in that capacity. He is about to embark on a course of counselling in relation his personal issues. The Panel concluded that the Registrant needs to be able to demonstrate that he is capable of separating factors in his personal life from his professional obligations, so that he does not allow his professional judgment to be affected by his personal life. Until such time as he is able to demonstrate this, the Panel does not consider that it would be possible to formulate suitable conditions which would be realistic and would provide an adequate level of protection. The Registrant also needs to show a greater depth of understanding of the reasons why he breached professional standards and how his actions impacted on Service User A, his employers, the wider public and his profession.
58. The Panel went on to consider a Suspension Order. It noted that the Indicative Sanctions Policy states that suspension may be appropriate “where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings”. Whilst the Registrant does suffer from health issues, he continues to take active steps to address these.
59. The Panel concluded that a Suspension Order for 12 months would be a proportionate sanction. It would protect the public by preventing the Registrant from practising as a Social Worker during the relevant period. The wider public interest would be protected by the review process, which would ensure that the Registrant could not practise until he had satisfied a review panel that his fitness to practise was no longer impaired, or at the very least that he had taken sufficient steps on that journey to enable him to practise subject to conditions. The 12-month period properly reflects the seriousness of the misconduct and it provides the Registrant with the opportunity to demonstrate further reflection and insight, and to continue to address his personal issues.
60. The Panel did consider whether it should impose a Striking off Order, in view of the seriousness of the misconduct. However, it concluded that such an order would be disproportionate and would be excessively punitive. The misconduct was serious but it was, for the reasons explained above, out of character and the Registrant appears able and willing to resolve the matters which gave rise to his behaviour.
61. The Suspension Order will be reviewed before its expiry. At the review hearing, the reviewing panel is likely to be assisted by:
• the Registrant’s continuing engagement;
• further evidence of insight, reflective analysis and remediation;
• an update regarding counselling and any other treatment and support being undertaken by the Registrant;
• references and testimonials in relation to any paid or unpaid work carried out by the Registrant.
• The Registrant’s continuing engagement;
• Evidence of insight, reflection and remediation;
• An update regarding counselling and any other treatment and support being undertaken by the Registrant;
• References and testimonials in relation to any paid or unpaid work carried out by the Registrant.
Order: That the Registrar is directed to suspend the registration of Daniel Smith for a period of 12 months from the date this order comes into effect.
The order imposed today will apply from 11 October 2017.
History of Hearings for Mr Daniel Smith
|Date||Panel||Hearing type||Outcomes / Status|
|11/09/2017||Conduct and Competence Committee||Final Hearing||Suspended|