Mr Adrian David Whitehorn

: Social worker

: SW42643

: Final Hearing

Date and Time of hearing:10:00 02/10/2017 End: 17:00 05/10/2017

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

During the course of your employment as a Social Worker for Dudley  Children’s Services, you:


1. Made inappropriate comments:

a) On 30 December 2015, when supervising colleague A and discussing a pregnant service user who was a sex worker:


i) commented in relation to “why men paid more money for sex with a women who is pregnant”, or words to that effect, and said ‘it’s because they think they are fucking the baby’, or words to that effect;

ii) referred to the service user using what you said was a Chinses saying “Tom Tom Chi”, or words to that effect, which you said means ‘cunt like a bucket that lies to be fucked’, or words to that effect;

iii) referred to ‘double penetration’, or words to that effect.

b) On 31 December 2015, in the general office in the hearing of two colleagues, when you said ‘today is a good day to visit master-bates’, or words to that effect.

2. The matters set out in paragraph 1 constitute misconduct.

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

Finding

Preliminary Matters

Application to receive live evidence by way of telephone link


1. Ms Long on behalf of the Registrant, applied for Witnesses 4 and 5 to give their evidence by way of telephone. She informed the Panel that both of the witnesses were now unable to attend to give evidence because of personal circumstances. All parties accepted that the reasons for each of the witnesses being unable to attend in person were valid.


2. Ms Long provided the statements of Witness 4 and Witness 5 to the Panel, and she submitted that their evidence was relevant to the allegation facing the Registrant.


3. Ms Hastie on behalf of the HCPC, did not object to the application.


4. The Panel accepted the advice of the Legal Assessor who reminded the Panel of its over-arching objective and that the Civil Rules of Evidence applied in these proceedings. He pointed out that in the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin), where the appeal hinged on material irregularity in relation to some of the witnesses, there was no criticism of the single witness who gave evidence via telephone.


5. The Panel determined that the evidence of Witness 4 and Witness 5, were relevant to the proceedings. The Panel was aware that they would not be able to observe the demeanour of the witnesses, but reminded themselves that the demeanour of a witness is seldom, if ever, a good guide to the credibility of their evidence. Furthermore, it bore in mind that the evidence of the witnesses could nevertheless be tested by appropriate questioning and by reference to other evidence in this case. The Panel determined that receiving these witnesses’ evidence by way of telephone link was fair and just in the circumstances.


6. Therefore, the application to hear Witness 4 and Witness 5 via telephone link was allowed.


Background


7. At the relevant time, the Registrant was working for Dudley Children’s Services as a Locum Assistant Team Manager. This role involved the Registrant supervising Social Workers as well as the Registrant acting in the role of a Social Worker himself. A newly qualified Social Worker alleged that, during their supervision session, the Registrant made inappropriate sexual comments regarding a Service User.


8. It is further alleged by two other Social Workers that the next day, the Registrant made a further inappropriate sexual comment which was not related to Service User A. A formal grievance procedure took place, but the Registrant left before the procedure was completed.


Decision on Facts


9. The Panel considered all the evidence in this case together with the submissions made by Ms Hastie on behalf of the HCPC, and by Ms Long on behalf of the Registrant.


10. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.


11. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

• Witness 1, who was a newly qualified Social Worker in the Child Protection Team at Dudley Children’s Services at the relevant time. She gave evidence in relation to the matter on 30 December 2015.


• Witness 2, who was a newly qualified Social Worker in the Child Protection Team at Dudley Children’s Services at the relevant time she gave evidence in relation to the matter of 31 December 2015.


• Witness 3, who was a Social Worker in the in the Child Protection Team at Dudley Children’s Services at the relevant time. She gave evidence in relation to the matter of 31 December 2015.

 
12. The Panel also heard evidence from the Registrant, and the following witnesses called on his behalf:


• Witness 4, Social Worker who was at the relevant time the Interim Head of Services for Dudley Children’s Services.


• Witness 5, who had been the Registrant’s line manager at another local authority prior to these events, and also his line manager subsequent to these events.


13. The Panel received a bundle of evidence from the HCPC which included:


• Witness statements.


• Minutes of investigation meetings and correspondence relating to the grievance process carried out by Dudley council into these matters.

14. The Panel received a bundle from the Registrant which included witness statements.


15. In relation to the witnesses who gave evidence, the Panel noted the following about their evidence:

(a) Witness 1 was clear in her oral evidence. Her evidence was consistent with her statement and with her initial discussions with her employer about her allegations. She was visibly upset about giving evidence and clearly found some of her evidence distressing to her. The Panel had no reason to disbelieve her evidence.


(b) Witness 2 was clear in her oral evidence. Her evidence was consistent with her statement and with her initial discussions with her employer. She accepted that she is a friend of Witness 1.  It was suggested that she had colluded with Witness 1 to make up some of the allegation. However, there was no evidence before the Panel to support this assertion. The Panel had no reason to disbelieve her evidence. She gives direct evidence to the words used in particular 1(b).


(c) Witness 3 was clear in her oral evidence. Her evidence was consistent with her statement and the account she gave in the investigation by the employer. She accepted that she had no direct evidence to support her opinion that Witness 1 disliked the Registrant. Witness 3 gave direct evidence regarding the words used in particular 1

(b).  The Panel had no reason to disbelieve her evidence.


(d) Witness 4 was clear in her oral evidence and it was consistent with her statement. She could not give direct evidence about the allegation as she was not present. She gave character evidence for the Registrant regarding his professionalism and that there had been no known previous concerns about the Registrant’s conduct nor his practice.


(e) Witness 5 was clear in her oral evidence and it was consistent with her statement. She could not give direct evidence about the allegation as she was not present. She provided character evidence for the Registrant regarding his professionalism and that there were no known concerns previously about his conduct nor about his practice.


16. The Panel considered each of the remaining factual particulars, namely 1(a)(i), 1(a)(ii) and 1(a)(iii). These matters essentially rest on the credibility of the individuals directly involved on the two days. In assessing the credibility of those witnesses, the Panel considered the following questions in relation to each witness:


(a) What is the consistency of the witness’s evidence with what is agreed, or shown by other evidence, to have occurred;


(b) what is the internal consistency of the witness’s evidence;


(c) what is the consistency of the witness’s evidence with what he or she has said or deposed on other occasions.


Particular 1(a)(i) and 1(a)(iii)


(a) on 30 December 2015, when supervising colleague A and discussing a pregnant service user who was a sex worker:
(i) commented in relation to “why men paid more money for sex with a woman who is pregnant” or words to that effect, and said “It’s because they think they are fucking the baby” or words to that effect;
(iii) referred to ‘double penetration’ or words to that effect

17. Particulars 1(a)(i) and 1(a)(iii) are intrinsically linked in that they form part of the same conversation. It was Witness 1’s evidence that the Registrant did say those words in the context of her discussion with the Registrant regarding the service user who was pregnant and who was a sex worker.

18. The Registrant denies that he said those words at all during the supervision session with Witness 1 on 30 December 2015. He accepted that they had discussed the case of that service user during the supervision.


19. In making its determination on this particular, the Panel took into account that the Registrant was of good character and that this was a serious allegation. It also took into account that the Registrant had accepted saying the phrases set out in particular 1(a)(ii) (although the context is denied), and particular 1(b). The Panel considered that this demonstrated a propensity on the part of the Registrant to using phrases containing swear words and sexual innuendo.


20. It was put to Witness 1 that she fabricated this allegation because she did not like the Registrant, but she denied this to be the case. Although it was the opinion of Witness 3 and Witness 4 that Witness 1 did not like the Registrant, there was no cogent evidence before the Panel to support their opinion. Furthermore, the Registrant stated that until these allegations were made, he did not believe there was any issue in his relationship between himself and Witness 1.


21. There was also no cogent evidence before the Panel to support the contention that Witness 1 had engineered this situation and manipulated the Registrant to get him to leave. It was accepted by all parties that it was known within the team that the Registrant was not a permanent member of staff and that he was leaving soon after the New Year.  There was therefore no cogent reason for the Panel to doubt Witness 1’s evidence in relation to this particular.


22. In the light of the above, the Panel determined that Particulars 1(a)(i) and 1(a)(iii) are proved on the balance of probabilities.


Particular 1(a)(ii)


(a) on 30 December 2015, when supervising colleague A and discussing a pregnant service who was a sex worker:
(ii) referred to the service user using what you said was a Chinese saying ‘Tom Tom Chi’ or words to that effect, which you said means ‘cunt like a bucket that likes to be fucked’ or words to that effect;

23. Witness 1 told the Panel that the Registrant had used the above mentioned phrase in relation to the service user during the discussion about that service user. She told the Panel that the Registrant and her discussed the case of this service user, the Registrant came out with this phrase and that was why she could not see any other explanation for it.

24. The Registrant accepted that he did make reference to the Chinese saying and that he did give an explanation of its meaning, but he did not accept that it was in relation to the service user in question or to any other service user. He told the Panel that he had referred to that Chinese saying and its meaning during a break in the supervision session and during a conversation he had with Witness 1 about the time he spent in China undergoing martial arts training. He told the Panel that the break and the conversation, took place after he had finished inputting the notes of the discussion in relation to the service user onto the computer system.


25. The Panel noted that the supervision session in question was the first supervision session that Witness 1 had with the Registrant. It was a long session in which all her cases, numbering about 30, were discussed.


26. The Panel also noted the evidence of the Registrant that he had previously discussed his time in China with Witness 1 prior to the supervision session. The Panel does not find it credible that, in what would have been an intense supervision session, there would have been a break and that during that break the Registrant would again discuss his time in China and then make reference to the Chinese saying and its meaning, which was clearly sexual.


27. The Panel determined that it was more probable that the reference to the Chinese saying was made following or during the discussion about the service user. The Chinese saying can be said to be linked to sex workers, and to the conversation about this particular service user being sexually active and continuing to have children.


28. Therefore the Panel finds this particular proved on the balance of probabilities.


Particular 1(b)


(b) on 31 December 2015, in the general office in the hearing of two colleagues, when you said ‘today is a good day to visit master-bates’, or words to that effect.’


29. At the start of these proceedings, the Registrant admitted that particular. In relation to that particular 1(b), the evidence of Witness 2 and Witness 3 are consistent with the admission made by the Registrant and accordingly the Panel finds this particular proved by way of admission.


30. Having concluded that the words set out in particulars 1(a) and (b) were said, the Panel then went on to consider the appropriateness of the words in the circumstances. The Panel determined that a reasonable person with full knowledge of the circumstances in question, would consider them to be inappropriate. Furthermore, the Registrant himself accepts that if those words were said, they would be inappropriate in the circumstances.

Decision on Grounds


31. The Panel then went on to consider whether the factual particulars found proved amounted to misconduct and/or lack of competence.  The Panel heard submissions from Ms Hastie and Ms Long.


32. Ms Hastie submitted that the Registrant’s actions breached the following standards of conduct, performance and ethics of the HCPC: 3, 7, and 10.

33. The Panel accepted the advice of the Legal Assessor.

34. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that ‘misconduct’ is qualified by the word “serious”. It is not just any professional misconduct, which will qualify.


35. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to ‘misconduct’ in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:


(a) The Registrant was a Senior Social Worker with management responsibilities, compared to Witness 1 and Witness 2 who were newly qualified social workers. Due to his seniority, not only should he have known better than to speak in that manner, he had a responsibility to be an example to other members of staff.


(b) The misconduct on 30 December 2015 occurred during a supervision session with Witness 1.

(c) There were no issues raised regarding the Registrant’s practice prior to these matters.


(d) These matters represent two separate, but similar, incidents of misconduct that occurred over two consecutive days.


(e) At the time of these matters the Registrant was working under challenging circumstances in that he was put in charge of a team of Social Workers who had not been receiving proper management and supervision for some time whilst having a caseload himself.


(f) The words used on 30 December 2015 were extremely offensive.


(g) No harm was caused to any service user.


(h) The comments on 30 December 2015 were not in relation to a service user.


(i) The comment on 31 December 2015, whilst not intended to cause alarm, distress or insult, was sexual in nature and directed at junior members of staff who were women.


36. The Panel considered each of the factual particulars found proved in turn, and determined that in the circumstances, each of them was sufficiently serious to amount to serious misconduct.


37. The Panel considered that on the facts found proved the Registrant had breached the following standards of conduct, performance and ethics of the HCPC (2012 edition):


3.  You must keep high standards of personal conduct.


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.


38. The Panel determined that the facts found proved amounted to the statutory ground of Misconduct.


Decision on Impairment 


39. The Panel then went on to consider, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel heard the submissions of Ms Hastie and Ms Long, and it accepted the advice of the Legal Assessor.


40. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired. The Panel was aware that the consideration of whether a Registrant’s fitness to practise is impaired is a forward looking exercise.


41. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:


“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:


a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or


b) has in the past brought and/or is liable in the future to bring the social work profession into disrepute; and/or


c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?”

42. The Panel determined that the Registrant had not put service users at risk of unwarranted harm by his actions, nor is he liable to do so in the future. However, the Panel determined that the Registrant’s actions did bring the profession into disrepute, and did breach one of the fundamental tenets of the profession, in considering whether the Registrant is liable in the future to do so again, the Panel took into account the following evidence:


(a) The Registrant admitted some of the factual particulars at the start of proceedings, and admitted that the facts found proved amounted to misconduct, at the later stage.


(b) The Registrant did apologise to Witness 1 shortly after the matter on 30 December 2015.


(c) The Registrant has modified his behaviour, the oral testimonies of Witness 4 and Witness 5 bears this out.


43. However, the Panel determined that the Registrant has not gained full insight into his misconduct. It was concerned that up until the Panel’s findings on the factual particulars, the Registrant sought to transfer the blame for his actions on 30 December 2017 onto Witness 1, in that he maintained his belief that she had manipulated and/or engineered the situation so that he would make those comments. This is a matter of misconduct, and there can only be limited remediation without full insight. The Panel therefore determined that the Registrant was liable in future to bring the profession into disrepute and to breach a fundamental tenet of the profession.


44. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances.


45. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.

Decision on Sanction

46. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction should be imposed. It has heard the submissions of Ms Hastie and Ms Long.

47. The Panel accepted the advice of the Legal Assessor. The Panel is aware that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It took into consideration the aggravating and mitigating factors in the case.


Panel’s consideration and decision


48. The Panel has had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy.


49. The Panel reminded itself of the circumstances of the misconduct as outlined above in paragraph 35. The Panel also took into account the following factors:


a) The Registrant had fully engaged with the process;


b) There was some evidence of remorse and insight;

c) The Registrant had a previously unblemished record as a Social Worker;


d) The Registrant has engaged in supervision sessions with his current line manager, which are reflective and relevant; and


e) He has the support of his current line manager who is willing to assist the Registrant if conditions were imposed upon his practice.


50. The Panel first considered taking no action. It is aware that the regulatory process and the finding of misconduct is a significant processes, which in some instances can suffice to declare and uphold proper standards of behaviour and maintain public confidence in the profession. However, the misconduct in this case is not minor in nature, and, and given that the Registrant has not yet demonstrated full insight into his misconduct, taking no action would not be appropriate in this case.


51. The Panel then considered whether to make a caution order. The Panel was mindful of its finding that the Registrant was liable to repeat his misconduct as he had not demonstrated full insight into his actions. It bore in mind that a caution order would not restrict his right to practise. In these circumstances, the Panel concluded that a caution order would not be sufficient to protect the public from the risk posed by the Registrant nor satisfy the wider public interest.


52. The Panel next considered the imposition of a conditions of practice order. The Registrant has indicated that he is willing to abide by any conditions the Panel may impose which would allow him to remain in practice. The Panel has also heard oral evidence from his line manager, Witness 5, who clearly holds him and his ability as a Social Worker in high regard.


53. The Panel noted the Registrant’s willingness to abide by conditions, and the fact that he has an otherwise unblemished career. The Registrant has demonstrated some insight, which, when considering the issue of impairment in matters concerning misconduct, is the key to remediation. In the circumstances, the Panel was of the view that a conditions of practice order would satisfy the wider public interest, and that it was both fair and reasonable to afford the Registrant the opportunity demonstrate full insight into his misconduct and remediation thereof.


54. Taking into account all of the above, the Panel concluded that conditions could be formulated that would adequately address the risk posed by the Registrant, and in doing so protect service users and the public during the period they are in force.


55. In all of the circumstances, the Panel determined that a Conditions of Practice Order was both the appropriate and proportionate sanction. It decided to make a conditions of practice order for a period of six months.


56. The Panel went on to consider suspension of the Registrant’s right to practice as a Social Worker, and decided that this was not an appropriate sanction to be imposed at this stage. This is because suspension would have a disproportionate effect upon the Registrant financially and reputational. At this stage, a Suspension Order would be disproportionate and punitive in nature.

Order

Order: The Registrar is directed to annotate the Register to show that, 6 months from the date that this Order comes into effect, you, Mr Adrian David Whitehorn, must comply with the following conditions of practice:


Conditions relating to your practice as a Social Worker –

1. You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 7 days of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.


2. You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

a. power dynamics within the supervisory process;
b. undertaking effective supervision;
c. professional boundaries; and
d. mentoring newly qualified social workers.

3. Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.

4. You must meet with your supervisor on at least a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

5. You must provide a report from your supervisor 14 days before any future review of this Order, setting out your progress towards achieving the aims set out in your Personal Development Plan.

6. You must provide a reflective piece 14 days before any future review of this Order of the HCPTS, which focuses on:

a. The allegation that has led to regulatory action;
b. The use of sexual language used;
c. The impact of your actions on others; and
d. How you have taken account of your failings and adjusted your practice.

7. You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake professional work;
b. any agency you are registered with or apply to be registered with as a Social Worker (at the time of application); and
c. any prospective employer (at the time of your application).

8. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

9. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

10. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

The order imposed today will apply from 1 November 2017. This order will be reviewed again before its expiry on 2 May 2018.

Hearing history

History of Hearings for Mr Adrian David Whitehorn

Date Panel Hearing type Outcomes / Status
02/10/2017 Conduct and Competence Committee Final Hearing Conditions of Practice