George Osborn Otieno
(as amended at Substantive Hearing):
During the course of your employment as a Social Worker with Lancashire County Council, you:
1. Did not maintain professional boundaries, in that you:
a. On or around 17 June 2014, entered into a financial agreement with Carer B for the purchase of car tyres in exchange for payment of approximately £420 at a later date;
b. Entered into a financial agreement with Service User C to purchase a television and an Xbox with games for £150;
c. Entered into a financial agreement with Carer B for the purchase of a car;
d. Entered into a financial agreement with Carer B for the purchase of car tyres for your wife’s car.
2. Did not act in the best interests of Service User A, in that you:
a. Did not attend monthly visits, in accordance with her care plan, in:
i. July 2014;
ii. September 2014
b. Did not arrange support for Service User A over the 2014 Christmas period when she was known to be vulnerable.
3. On 14 November 2014, in direct contravention of management instructions issued in the course of a disciplinary investigation you attended the home of Service User A.
4. On 14 November 2014, you asked Carer B to lie to Lancashire County Council about the financial agreement.
5. The matters set out in paragraphs 3 and 4 were dishonest.
6. The matters set out in paragraphs 1-5 constitute misconduct.
7. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
1. The Registrant, Mr George Otieno, has neither attended this hearing nor been represented at it.
2. The Panel first considered whether notice of the hearing had been sent to the Registrant in proper form. The Panel decided that the letter dated 15 March 2017 addressed to the Registrant at his HCPC Register address informing him of the date, time and location of the hearing constituted good service of the required notice.
3. The Panel then considered an application on behalf of the HCPC that the hearing should proceed in the absence of the Registrant. The Panel heeded the advice it received from the Legal Assessor as to the proper approach to such an application, and it also considered the factors identified in the HCPTS Practice Note on the issue. After giving the matter careful consideration, the Panel concluded that the hearing should proceed in the absence of the Registrant. The reasons for this decision were as follows:
• During the evening of 24 September 2017 (the day before the first day of the hearing) the Registrant emailed the HCPC stating that he could not attend the hearing because he lacked the funds to pay for accommodation. He also said that he could not afford to pay for representation. It was apparent from this email that he was aware of the dates scheduled for the hearing.
• The Registrant did not request an adjournment of the hearing, and did not ask that he be permitted to participate in it remotely.
• In these circumstances there was no indication that an adjournment of the present hearing would result in the Registrant attending or participating to a greater extent on a future occasion.
• By the email dated 24 September 2017, the Registrant asked that his written response should be considered. The Panel was satisfied that any disadvantage to the Registrant arising from his absence would be mitigated by the Panel considering his case in relation to those aspects on which he had commented in writing. Furthermore, the Panel, having regard to the Registrant’s comments, would be in a position to ask questions of the witnesses called by the HCPC. The Panel would draw no adverse inferences against the Registrant as a result of his absence from the hearing.
• The factual matters relied on by the HCPC concerned events that occurred some time ago. The most distant matters occurred over six years ago, the most recent nearly three years ago. The need for expedition that applies to every case was thus particularly important in this case.
• There were three witnesses who had travelled from Lancashire and who were ready to give evidence. The Panel was concerned about the effect any further delay would have on the recollection of the witnesses. If the hearing did not proceed, their attendance would be wasted and they would need to attend on another occasion.
• For all these reasons the Panel decided that the clear public interest in the hearing proceeding outweighed any disadvantage arising from the Registrant’s absence.
4. After the Panel announced its decision that the hearing would proceed in the absence of the Registrant, the Presenting Officer applied to amend the particulars of the allegations. After an initial “case to answer” decision by an Investigating Committee Panel (ICP) referring allegations to the Conduct and Competence Committee, an ICP was again asked to consider the matter on 2 August 2016. On that second occasion it is clear that the second ICP added particulars 1(c) and 1(d) as set out above. Although it appears that other changes were in contemplation at the time of the second Investigating Committee referral, it is unclear whether those further matters were dealt with by the second ICP. Accordingly, the HCPC took the view that the safest course was to ask the present Panel to direct that the particulars should be amended to allow for these further changes. The amendments were limited to the correction of descriptions of service users and a carer of a service user; the insertion of the word “approximately” in particular 1(a), and the separation into what is shown above as particulars 3 and 4, namely, the alleged visit to the home in contravention of a management instruction and the request that the carer should lie, matters that had originally been alleged in a single particular. The Panel considered that the proposed amendments were appropriate in the sense that they were in keeping with the evidence the HCPC proposed to adduce and that they accorded with the spirit of the second ICP decision. The Panel concluded that they did not give rise to the risk of prejudice to the Registrant who had been informed of them by a letter dated 3 August 2016, as well as by service of the hearing bundle which included the proposed amendments in the Case Summary. For the avoidance of doubt, the allegation, as it is set out at the head of this document, reflects the re-referral by the second ICP and the amendments permitted at the present hearing.
5. At the time relevant to the allegations being considered by the Panel, the Registrant was employed by Lancashire County Council (“the local authority”) as a Social Worker. He was working in a Team he had joined in May 2010, having been employed by the local authority since 2002 (save for a short period from late 2007 to early 2008). In this public determination the Panel does not identify the specific team to which the Registrant was attached in order to protect the confidentiality of any service user whose involvement with the Registrant would be known to have existed by a member of the public. It suffices for present purposes to record the fact that the service users with whom the Registrant worked were acutely vulnerable.
6. The HCPC’s case is that in mid-November 2014 Carer B, who with his wife, Service User A, ran a business selling car tyres (and previously also cars) had been attempting to contact the Registrant for some time. Finding that his attempts to contact the Registrant were proving to be unsuccessful, Carer B contacted the local authority in an attempt to speak to the Registrant. On being told that the Registrant was not available, Carer B confided in the Duty Social Worker that he wished to speak to the Registrant about a payment that was overdue. Further discussions took place and the issues relating to the purchase of tyres came to light (particular 1(a), an arrangement that dated back to July 2014). As a result, the Registrant was suspended and instructed not to contact Service User A. The HCPC alleges that in contravention of this instruction, the same day the Registrant visited the home of Service User A and Carer B (particular 3), and when there asked Carer B to lie to the local authority about the nature of the transaction that had resulted in the money being owed (particular 4). Investigation of the Registrant’s involvement with Service User A resulted in the contentions that, despite the service user’s Care Plan stipulating that she was to receive monthly visits, no such visits were made in the months of July 2014 and September 2014. It was also alleged that he did not arrange support for Service User A over the Christmas 2014 period, despite knowing that Christmas periods had proved difficult for the service user in the past. After an investigation was conducted into the matters just described, information came to light that there had been earlier dealings between the Registrant and Carer B, in 2011 when the Registrant had bought a car (particular 1(c)), and in 2012 when he bought tyres for his wife’s car (particular 1(d)). The HCPC additionally contends that the Registrant entered into a transaction with Service User C. The HCPC’s case is that he agreed to buy a television and an Xbox from Service Use C (who had no connection with Service User A), but having taken them away, he subsequently failed to pay for them. Finally, the HCPC alleges that the Registrant’s visit to the home of Service User A when he had been told not to do so, and his request to Carer B that he should lie to the local authority, amounted to dishonest behaviour.
Decision on Facts
7. The HCPC called three witnesses to give oral evidence before the Panel. They were:
• Carer B, carer of Service User A.
• Mr RB, a Social Worker, who was the Manager of the Team in which the Registrant was working at the relevant time. It was Mr RB who, on 14 November 2014, gave the Registrant the management instruction not to visit Service User A.
• Ms SM, also a Social Worker, at the time a Social Care Lead working for the local authority. Ms SM carried out an investigation on behalf of the local authority into some of the matters being considered by the Panel.
The Panel was satisfied that each of these witnesses did their best to assist the Panel in reaching a just decision on the facts to which their evidence related. As an investigator, Ms SM gave no direct evidence as what had or had not occurred. The direct evidence of Mr RB of his personal involvement was limited to the instruction he gave to the Registrant not to visit the home of Service User A. Carer B’s evidence was necessarily direct evidence relating to his dealings with the Registrant over a considerable period of time. The Panel found Carer B to be a credible witness. That he was not motivated by a desire to damage the Registrant was demonstrated by the fact that he volunteered positive evidence about the Registrant’s interactions with Service User A, as well as expressions of concern about the effect his evidence might have on the Registrant’s employment. Furthermore, the reliability of the evidence of Carer B was bolstered in significant respects by contemporary financial documents which corroborated the evidence based on his recollection. The Panel was satisfied that it could safely rely on the evidence of Carer B.
8. In addition to the oral evidence of the witnesses just described and their written witness statements, the HCPC produced a substantial body of documentary exhibits extending to 121 pages. Included in the documentary exhibits was a written statement dated 20 February 2015 provided by Service User C dealing with the facts alleged in particular 1(b).
9. When the Panel explained its reasons for proceeding in the absence of the Registrant, mention was made of the fact that there were a number of documents that recorded views expressed by the Registrant in relation to some, but not all, of the contentions raised by the particulars being considered by the Panel. The Panel was provided with, and fully considered, the following documents:
• A 5 page typed document prepared by the Registrant before he was interviewed by Ms SM on 27 November 2014, and handed to Ms SM on the occasion of that interview.
• A typed document produced following the interview of the Registrant by Ms SM on 27 November 2014.
• A copy of a document that was originally the last mentioned document, but which was expanded to accommodate manuscript additions made by the Registrant after the original version was provided to him.
• A typed document extending to five pages sent to the HCPC and signed by the Registrant on 12 June 2015.
10. In reaching its decisions on the facts the Panel has remembered throughout that the burden of proof has rested on the HCPC, the standard of that burden being the balance of probabilities.
11. The Panel accepts the evidence that in the summer of 2014, the Registrant entered into a transaction with Carer B for the purchase of four car tyres to a value of £420. The contemporary documents record the transaction and support the clear evidence of Carer B. Furthermore, it is clear from the written submissions of the Registrant that he accepts that he entered into the transaction. The Panel finds particular 1(a) to be proved.
12. As was mentioned when the Panel described the nature of the documentary exhibits, a written statement provided by Service User C dated 20 February 2015 was presented in evidence. As the date of Service User’s statement indicates, the circumstances disclosed by her were not covered by Ms SM’s investigation conducted at the end of the preceding year. Indeed, the Registrant resigned from his post on 19 February 2015. For these reasons there was no comment made by the Registrant with regard to particular 1(b) in the context of the local authority investigations. It would appear that the HCPC originally erroneously alleged that the TV and Xbox had been bought from Service User A, and this would explain the only comment made by the Registrant with regard to these purchases, which is in the document dated 12 June 2015, where the Registrant simply (and accurately) stated, “I did not enter into a financial agreement with service user A to purchase a television and X Box with games for £150”. Now that the allegation is focused on the correct alleged vendor, Service User C, there has been no comment by the Registrant since he was informed in early August 2016 that it was intended to allege that it was Service User C who sold these items to him. The Panel finds on a balance of probabilities that the contents of the statement provided by Service User C, having made the disclosure in the circumstances relayed to Mr RB, are correct. Accordingly, the panel finds that particular 1(b) is proved.
13. With regard to the purchase of a car from Carer B, the Panel accepted the oral evidence of Carer B which was supported by a contemporary invoice dated 3 May 2011 signed by both the Registrant and Service User A. Particular 1(c) is proved.
14. Again, the Panel accepted the oral evidence of Carer B as to the transaction resulting in the Registrant purchasing tyres for his wife’s car from Carer B. His evidence was corroborated by an invoice dated 5 April 2012. Particular 1(d) is proved.
Particular 2(a)(i) & (ii)
15. That Panel accepts that Service User A’s Care Plan stipulated that she should be visited monthly. It also accepts the evidence that during the relevant period, July 2014 to September 2014 inclusive, Service User A’s case was allocated to the Registrant. The Panel notes that the Registrant has stated that he was away for much of the month of July 2014, and it accepts that that might well be so. However, the Panel is satisfied that he was not away for the whole of the month of July 2014, and thus was not prevented from visiting Service User A in that month. Furthermore, even if his holiday arrangements had meant that he had not been able personally to make a visit, it was his responsibility to arrange for another person to do so. So far as the month of September 2014 is concerned, the absence of a visit recorded on the electronic record, coupled with a crossed out entry relating to 15 September 2014 in the Registrant’s paper diary, persuades the Panel that he did not visit in that month. The Panel noted the explanation provided by the Registrant in his response dated 12 June 2015, but it also noted that the Registrant did not explain why the meeting was not re-arranged later in September 2014 to meet the Care Plan requirements for Service User A. Particulars 2(a)(i) & (ii) are proved.
16. At some stage in late 2014, and certainly before December of that year, the Registrant started a placement in relation to advanced training in a specific subject area closely related to his practice. When Mr NK, a Deputy Manager who was responsible for the Registrant’s management supervision was interviewed for the purposes of the local authority’s investigation, he said that in supervision sessions between 6 October 2014 and 7 November 2014 the focus of the supervisions had been to prepare the Registrant’s caseload for transition to another Care Co-ordinator in the light of the Registrant leaving the team to undertake the advanced training. The Panel does not doubt the importance of Service User A having support over the Christmas 2014 period, particularly as earlier Christmases had proved difficult for her, but in circumstances where the support would not be given by the Registrant himself because he would have ceased to see clients previously allocated to him in order to undertake the placement, and where the issue was being considered by a manager, the Panel does not find that the HCPC has discharged the burden of proving that the responsibility for arranging the support fell to the Registrant. Accordingly, particular 2(b) is not proved.
17. The Panel accepts that when the issue of the Registrant purchasing tyres from Carer B arose, Mr RB instructed the Registrant not to visit Service User A. It also accepts the evidence of Carer B that a visit was made by the Registrant, and the Panel notes that in his written submissions, the Registrant has admitted that he visited. Accordingly, particular 3 is proved.
18. The Panel accepted the evidence of Carer B that when the Registrant visited in contravention of the instruction not to do so, he repeatedly asked Carer B to telephone Mr RB and say that Service User A had had no dealings with the purchase of the car tyres. Carer B’s attitude to this request was that he could not do what the Registrant asked him to do as he knew that it was not true. It was not true because Service User A was involved in the transaction. The Panel finds that the words used by Carer B to the Registrant in refusing to make the telephone call he was being asked to make involved Carer B stating that he would not lie for him. The Panel is satisfied that the Registrant asked Carer B to make the telephone call, and the Panel is equally satisfied that the Registrant appreciated that he was asking Carer B to say something that he (i.e. the Registrant) knew to be untrue. Accordingly, the Panel is satisfied that the Registrant asked Carer B to lie to the local authority with the consequence that particular 4 is proved.
19. The Panel has approached its decision on whether the facts established by the findings in relation to particulars 3 and 4 amount to dishonest conduct as advised by the Legal Assessor. This has meant that the Panel first considered whether the HCPC has discharged the burden of proving that, by the standards of ordinary and honest members of the Social Work profession, what the Registrant did would be regarded as dishonest. The Panel finds that they would regard it as dishonest. If the finding had merely been that the Registrant had made a visit in contravention of an instruction, the Panel might have reached a different decision, as a visit without more might be regarded as foolish or ill-advised, but not necessarily dishonest. However, in the present case the Panel has concluded that the visit and the request that a lie be told must be viewed together, the visit being made for the purpose of making the request. In these circumstances the Panel is satisfied that, by the standards of ordinary and honest Social Workers, the conduct would be regarded as dishonest. The Panel is also satisfied that the Registrant appreciated that his actions were dishonest. Accordingly, particular 5 is proved.
Decision on Grounds
20. As the Panel has found the facts, with the exception of particular 2(b) proved, it is necessary for the Panel to go on to consider whether those facts constitute misconduct or demonstrate a lack of competence.
21. The Panel is satisfied that this is not a case of lack of competence. The Registrant was an experienced Social Worker. His competence and experience was demonstrated by the fact that in late 2014 he was chosen for advanced training in a specific subject area closely related to the work he had undertaken when working in the team. As an experienced and competent Social Worker he would have been well aware of the dangers of failing to visit a service user as required by the service user’s Care Plan, and of the risks that were inherent in crossing proper professional boundaries. Furthermore, the Panel is of the clear view that the dishonest behaviour reflected by particulars 3, 4 and 5 could, in any event, not sensibly be categorised as arising from a lack of competence.
22. In the judgement of the Panel the Registrant’s behaviour was very serious. It resulted in him practising in a manner that conflicted with the basic professional standards established by the HCPC’s Standards of Proficiency for Social Workers in England. Further, his behaviour breached of a number of the requirements imposed on all HCPC registrants by the Standards of conduct, performance and ethics, in particular:
• Standard 1 - “You must act in the best interests of service users.”
• Standard 3 - “You must keep high standards of personal conduct.”
• Standard 7 – “You must communicate properly and effectively with service users and other practitioners.”
• Standard 13 – “You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.”
23. Honesty, integrity and reliability lie at the heart of Social Work practice. The way in which the Registrant behaved undoubtedly undermined the trust that Service User A, Service User C and Carer B were entitled to place in him as a person who should have had the best interests of the service users guiding his actions. The three financial arrangements with Carer B, arrangements which necessarily involved Service User A, were repeated and spanned a period of over three years, and that concerning Service User C occurred during the latter part of the same period. These transactions were undertaken by the Registrant to advance his own interests, not those of the service users whom he should have been assisting. It is clear from the evidence received by the Panel that his actions seriously undermined the confidence the two service users and the carer were entitled to place in him.
24. The Panel is satisfied that fellow practitioners would regard the Registrant’s actions to be deplorable. The established facts are properly categorised as misconduct.
Decision on Impairment
25. The Panel, considered the submissions made by the Presenting Officer, accepted the advice of the Legal Assessor and carefully considered the terms of the HCPTS Practice Note on the topic. As will become clear when the Panel explains its decision on the issue of current impairment of fitness of practise, the Panel also had regard to the Registrant’s representations that were relevant to the issue.
26. The Panel is required to decide if the Registrant’s misconduct is currently impairing his fitness to practise as a Social Worker. The Panel has considered this issue by reference to both the personal component and the public component.
27. It is fair to acknowledge that the Registrant has expressed remorse. However, the remorse he has expressed must be regarded as incomplete for two reasons. One reason is that the Registrant has denied a very serious element of the dishonesty found by the Panel, namely his request to Carer B that a lie should be told on his behalf, and in relation to his accepted visit in breach of the management instruction he has advanced the case that it arose from desperation and foolishness. The other reason why the remorse is limited is that alongside the expressions of remorse there is clear evidence of the Registrant being primarily concerned with the adverse impact of his actions on him personally. This latter aspect is also relevant to the issue of his insight, because there is little evidence before the Panel that the Registrant has reflected on the consequences of his behaviour on the service users and those connected to them. He has stated that he has taken steps to address matters, but, in the circumstances where that statement is made, there is an absence of information that he understands the gravity of his actions and why his failings were very serious. Therefore, there remains a real question mark over the efficacy of any steps he has taken. On the basis of the evidence the Registrant has chosen to put before the Panel, the only conclusion the Panel is able to reach is that the Registrant has not achieved full understanding of the seriousness of his actions and has not fully remedied them. That being the case, there remains a risk of repetition. These conclusions require a finding that the Registrant’s fitness to practise is impaired upon consideration of the personal component.
28. The Panel is equally satisfied that the Registrant’s fitness to practise is impaired upon consideration of the public component. A fair minded and fully informed member of the public would be dismayed at the prospect of the Registrant being permitted to return to unrestricted practice. Furthermore, the findings in this case are sufficiently serious to require a finding of impairment of fitness to practise in order to declare and uphold proper professional standards. Failure to reach such a finding would diminish confidence in the Social Work profession as well as confidence in this regulatory process.
29. The finding that the Registrant’s misconduct is currently impairing his fitness to practise has the consequence that the Panel must proceed to consider the issue of sanction.
Decision on Sanction
30. After the Panel announced its decision on the allegation, the Presenting Officer made submissions on sanction. He urged the Panel to have regard to the HCPC’s Indicative Sanctions Policy and made comments on the applicability of certain sanctions. He prefaced the remarks he made about specific sanctions by suggesting that the Panel should regard them as observations rather than positive submissions. With this caveat entered, he suggested that the Panel should not be considering the imposition of a lesser sanction than suspension.
31. The Panel has taken account of the submissions of the Presenting Officer, the advice of the Legal Assessor and also had regard to the HCPC’s Indicative Sanctions Policy.
32. The Panel has approached the issue of sanction on the basis that a sanction should not be imposed with the intention of punishing a registrant against whom a finding has been made. Rather, a sanction should only be imposed to the extent that it is required to protect the public, maintain a proper degree of confidence in the registered profession, maintain confidence in the regulatory process and the declaring and upholding of proper professional standards. To ensure that these principles are applied, it is necessary for a Panel first to consider whether the finding that has been made requires the imposition of any sanction. If the answer to that first question is that a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that properly addresses the sanction aims just identified. As the finding in the present case is one of misconduct, the entire sanction range up to, and including, the making of a striking off order is available.
33. The Panel considered the aggravating and mitigating factors. Included in the aggravating factors were the very serious nature of the allegations, particularly the finding of dishonesty, and the fact that the crossing of proper professional boundaries was repeated on a number of occasions over a considerable period of time. The mitigating factors included the fact that there was no suggestion that the Registrant had a previous regulatory history, the evidence that the Registrant’s professional work was well regarded (including by Service User A and Carer B), that he had apologised (albeit subject to what has already been said about the limited nature of his apologies) and that there has been some limited and historical engagement in this fitness to practise process.
34. When the Panel came to consider whether the finding of misconduct it has made required the imposition of a sanction, it concluded that a sanction is required. The findings are very serious and the Panel has not received any evidence to demonstrate that they have been remediated. In the light of the absence of demonstrated remediation and the consequent risk of repetition, the Panel has concerns for public safety. Public confidence would not be sufficiently addressed were no sanction to be imposed. When the Panel turned to consider the available sanctions, the same factors resulted in it concluding that the sanction options of mediation and the imposition of a caution order were also inappropriate.
35. The Panel next considered whether it would be appropriate to impose a conditions of practice order but concluded that there were three distinct reasons why such an order would not be appropriate. First, the Panel is of the view that it is inherently difficult to construct appropriate conditions that can address a finding of dishonesty. Secondly, there is an absence of information relating to the Registrant’s professional activities that would inform the Panel as to how any conditions could be applied. Thirdly, the Panel is of the view that a conditions of practice order would not afford an adequate level of protection to the public, nor would it sufficiently mark the seriousness of the misconduct.
36. It followed that Panel went on to consider the making of a suspension order. A suspension order would, of course, provide an adequate degree of public protection while the order was in force. However, in the judgement of the Panel, such an order would only be appropriate if there were grounds for thinking that the position with regard to the Registrant’s fitness to practise might be less impaired at the conclusion of any period of suspension than it is now. The Panel is of the clear view that, particularly because of the finding of dishonesty that has been made, it would only be appropriate to consider permitting the Registrant to return to work as a Social Worker if he had both the desire and ability to address the findings made against him. A failing that amounted to dishonesty is one that it is difficult for a registrant to remediate. It would be necessary for a registrant against whom such a finding has been made to provide compelling evidence of the steps that they have taken, of the understanding they have reached and of the satisfactory implementation of the results of their efforts to remediate. In the present case the Registrant has not provided the Panel with evidence that he has taken these steps in the nearly three years since matters came to light, or even that he intends to do so. The Registrant could have supplied information that he was minded to address his failings at any time since he knew that there would be a final hearing of these allegations, but has not done so. For these reasons the Panel does not consider it can find that there is a sufficient likelihood of improvement to justify the imposition of a suspension order.
37. The consequence of these findings is that the Panel has arrived at the conclusion that the appropriate sanction in this case is one of striking off. It is the judgement of the Panel that it is the only sanction that will sufficiently mark the seriousness of the findings, and thereby declare and uphold proper professional standards and operate as a deterrent to other Social Workers. For this reason the Panel is satisfied that it represents a proportionate response to the findings made.
The Order imposed today will apply from 25 October 2017 (the Operative Date).
History of Hearings for George Osborn Otieno
|Date||Panel||Hearing type||Outcomes / Status|
|25/09/2017||Conduct and Competence Committee||Final Hearing||Struck off|
|13/02/2017||Conduct and Competence Committee||Final Hearing||Hearing has not yet been held|