Mr Lofton Alexander McTavish Hull
During the course of your employment with Devon County Council as an agency Social Worker, you:
1. On or around 30 August 2015, you grabbed Child B and pulled him into a room by his wrist.
2. On or around 10 September 2015, you disregarded the opinion of the CLIC Sargent Nurse when she advised that Child A should not attend a meeting due to his health, or words to that effect.
3. You spoke to Child A’s Consultant Oncologist, Dr D,
i. in an aggressive and / or rude manner and/or by
ii. you interrupted what he was saying.
4. On 28 August 2015 you spoke to Doctor F, a junior doctor:
i. in a rude and / or aggressive manner and/ or
ii. you interrupted what she was saying.
5. During a telephone conversation with a Staff Nurse at Bristol Royal Hospital for Children, you spoke to her in an aggressive manner;
6. On or around 12 October 2015, you disregarded the opinion of Person A when he advised that Child A was too unwell to attend a meeting and insisted that Person A and therefore Child A attend the meeting.
7. Did not maintain an effective relationship with Person A in that you gave him insufficient notice of scheduled meetings and /or contact sessions as follows;
a) on or around 10 September 2015, you contacted Person A at approximately 12.16pm and insisted that he and Child A had to attend a meeting at 11.00am the next day;
b) on or around 28 August 2015, you contacted Person A and informed him that a contact meeting was due to take place on the same day at 7.30pm;
c) on 15 September 2015, you contacted Person A at approximately 9.51am and informed him that a contact meeting was to take place at 10.30am on the same day;
d) on 12 October 2015, you contacted Person A at approximately 7.30am and informed him that a PEPS meeting was to take place on the same day at around 1pm.
8. Between February 2015 and October 2015, did not maintain an effective relationship with School E, in that you:
a) did not respond to e-mails and / or phone calls promptly and / or at all;
b) on or around 27 March 2015, did not attend a scheduled meeting and / or did not inform other attendees that the meeting had been cancelled;
c) did not communicate that meetings had been arranged and/or that dates had been changed and / or cancelled;
d) were rude and dismissive towards school staff.
9. Your actions described in Particulars 2, 4, 5, 6 and 7 placed Child A at risk of harm and / or were not in the best interests of Child A.
10. The matters set out in Particulars 1 – 9 constitute misconduct and / or lack of competence.
11. By reason of your misconduct and / or lack of competence, your fitness to practise is impaired.
Service / Proceeding in the absence of the Registrant
1. At the outset of the proceedings the Registrant was neither present nor represented.
2. Mr Paterson on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.
3. He submitted first that the Panel was entitled to proceed in the absence of the Registrant because there was clear evidence that he had been served with notice of the proceedings in accordance with the Health Professions Council (Conduct and Competence) (Procedure) Rules 2003 ("the Rules"). He submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because there was sufficient evidence that the Registrant had voluntarily absented himself by not engaging at any stage with the regulatory process.
4. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.
5. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.
6. The Panel received evidence in the form of a notice of hearing dated 27 July 2017, setting out the nature, time, dates and location of this hearing. It saw a certificate dated 27 July and Proof of Service signed by Ms Petrina Baker, which showed that notice of the proceedings had been sent by first class post on that date to the address for the Registrant held by the HCPC.
7. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the Rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a Registrant is entitled to 28 days’ notice of the hearing. Finally, it had regard to Rule 11 which provides that "where the Registrant is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the Registrant.”
8. In deciding whether all reasonable steps had been taken, the Panel had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba  EWCA Civ 162, that in deciding whether reasonable steps had been taken to serve a Registrant when notice had been posted to his registered address, the Panel should bear in mind that the Registrant was under an obligation to maintain an up-to-date address on the HCPC Register. It had regard to the observation of Leverson LJ that: “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”
9. In these circumstances, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by posting a notice to the address held by the HCPC on the appropriate register.
10. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence.
11. The Panel had regard to the guidance given in the Practice Note, “Proceeding in the absence of the Registrant" dated 22 March 2017 and to the decision of the House of Lords in R v Jones  UKHL 5 and the Court of Appeal in GMC v Adeogba. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care. It should look at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. No communication at all has been received from the Registrant.
12. The Panel considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented at an adjourned hearing. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to attend or be represented at any adjourned hearing.
13. The Panel also had regard to the position of the witnesses, one of whom had made arrangements to give live evidence by video link.
14. It also had regard to the age of the allegations, over 2 years, and the strong public interest in deciding this case without further delay.
15. The Panel accepted that a Registrant is likely to suffer prejudice by not being able to present his case. However, the Panel balanced that against the public interest in allowing the HCPC to do its work protecting the public and the guidance given by the Court of Appeal in GMC v Adeogba, that a Registrant should not be permitted to frustrate the work of the Panel by not attending.
Amendment of the Allegation
16. At the start of the hearing Mr Paterson applied to amend the allegation in the terms set out above.
17. He drew the Panel’s attention to a letter dated 6 January 2017, sent to the address held by the HCPC on the appropriate register. This letter set out the proposed amendments, several months in advance of this hearing.
18. The Panel heard Mr Paterson’s submissions that the majority of the amendments reduced the scope of the Allegation and that any additions reflected the evidence that had been served on the Registrant.
19. The Panel heard the advice of the Legal Assessor, which it accepted, and allowed the amendment. It was satisfied that in all the circumstances, the amendment would cause no injustice to the Registrant and would serve the interests of justice by ensuring that the allegation properly reflected the evidence.
20. At the end of the evidence Mr Paterson applied to amend Particular 8 of the Allegation so that the end date of the period referred to in the Particular was amended from September 2015 to October 2015.
21. The Panel heard his submissions and the advice of the Legal Assessor, which it accepted.
22. The Panel found that the amendments did no more than reflect the evidence, served in advance of the hearing. Accordingly, the Panel was satisfied that it could allow the amendments without any risk of injustice.
Hearing in private parts of the evidence
23. The Panel decided that it would hear in private any parts of the evidence necessary to protect the private life of an individual. The Panel accepted the advice of the Legal Assessor and had regard to Rule 10(2).
24. The Registrant was employed as an agency Social Worker by Devon County Council from January 2014 until October 2015. The available evidence indicates that the Registrant obtained his Social Work qualification in 1985.
25. Child A and Child B were being cared for by Person A who had a Special Guardianship Order (SGO). Person A and the children’s mother (Mother A) did not live together. On 21 August 2015, the Registrant became the allocated social worker for Child A and Child B. One of his main duties was to arrange contact between Child A and B and Mother A.
26. The bulk of this case relates to the Registrant’s conduct as the Allocated Social Worker of Child A and Child B.
Decision on Facts:
27. When deciding the facts, the Panel accepted the advice of the Legal Assessor and bore in mind that the burden of proving the facts in this case rested on the HCPC throughout and that the standard of proof was the civil standard. It took into account all the evidence before it and had regard to the submissions of Mr Paterson.
28. On or around 4 August 2015, Child A was diagnosed with neuroblastoma. This is a highly malignant cancer which necessitated Child A having numerous chemotherapy treatments at the Bristol Royal Hospital For Children throughout 2015.
29. The HCPC relied upon the written and oral evidence of 5 witnesses who gave evidence to the Panel.
30. Person A gave evidence by video link. The Panel Chair had previously made an order allowing his evidence to be given by video link.
31. The Panel was of the opinion that Person A was a dedicated and capable carer of both Child A and Child B, who is managing very effectively the medical treatment of Child A. However, the Panel noted that Person A gave a different account to the Panel of his relationship with Mother A and his attitude to her contact with Child A to the accounts he gave to Dr D and Teacher E. The Panel has therefore approached the evidence of Person A with appropriate care and caution and, except where indicated, could not rely upon it entirely to resolve disputed areas of fact, unless it was corroborated by other evidence.
32. The other witnesses were:
i. Dr. D, the consultant in charge of Child A’s treatment,
ii. Dr F a junior doctor in his team,
iii. CLIC Sargent Nurse, a specialist cancer nurse who treated Child A and
iv. Teacher E the head of Child A’s primary school.
33. The Panel found that they were not only all credible witnesses but were informed and open and not afraid to admit that there were things they could not remember. The Panel accepts entirely that they all helped the Panel to the best of their ability and the Panel has no hesitation in accepting their evidence.
34. The allegation that the Registrant "grabbed Child B and pulled him into a room by his wrist" depended entirely on the evidence of Person A who gave evidence that the Registrant had taken hold of Child B by the wrist and pulled him towards Child B’s bedroom. He did not know whether the Registrant pulled Child B specifically into the room or not.
35. In any event, the Panel also noted the email that Person A had written to his solicitor eight days after the day upon which he describes this incident as having occurred. This was a document which Person A prepared with the purpose of recording concerns about the Registrant. This email contains no reference to this incident. When asked about this, the Registrant explained that he had omitted the incident because he did not wish to cause trouble between himself and the Registrant. However, the Panel is satisfied that this is not consistent with the general tenor of that email which is, in many respects, critical of the Registrant.
36. Having regard to the evidence as a whole, the Panel is not satisfied that the HCPC have discharged the burden of proving that this incident occurred and finds this particular not proved.
37. CLIC Sargent Nurse, was, as the Panel has already indicated, an impressive witness. She told the Panel that she had 36 years of nursing experience and 22 years of nursing children with cancer. She was responsible for Child A’s care in the community.
38. She told the Panel how Person A had contacted her because the Registrant had insisted he attend a meeting about the care of Child A. Child A was too unwell to attend the meeting, having regard to the risk that he would acquire an infection outside his home environment because the chemotherapy had compromised his immune system.
39. She described in both her written and oral evidence how she had spoken to the Registrant and tried to explain that it was not appropriate for Child A to attend the meeting because of the risk to his health. She had, she told the Panel, already been told by the Bristol Royal Hospital For Children that Child A’s blood count was very low.
40. She told the Panel in a clear and straightforward manner that the Registrant simply would not accept her opinion. This was so even after she had a second telephone conversation with him, after Person A had phoned her to say that Child A’s temperature had risen. She recalled that the Registrant had said that the hospital would not have discharged Child A if he was not well enough, in a way that made it clear to her that the Registrant simply did not accept what she said. He had concluded the conversation insisting that Person A and Child A should attend.
41. The Panel accepts CLIC Sargent Nurse’s account of conversations with the Registrant and is satisfied that the Registrant disregarded her view. This is supported by the evidence of Person A that he had to text the Registrant on the morning of the meeting to say that Child A was too unwell to attend the meeting. Accordingly, the Panel finds this particular proved.
42. Dr D told the Panel of his first conversation with the Registrant in August 2015. He was aware of the Registrant's role in arranging contact between Child A and his mother and was initially pleased that the Registrant had called so that Dr D could explain Child A’s state of health and his complicated health needs.
43. He described to the Panel how the Registrant spoke in such an aggressive and insistent manner that at one stage Dr D held the telephone away from his ear. The Registrant was, he explained, far more concerned to tell him what he wanted to say than to understand Child A's needs. He described being confronted by "a constant barrage of words.”
44. When Dr D described the conversation, he said that in his opinion the Registrant was not rude. However, the Panel is satisfied that when the Registrant spoke to Dr D in a way that involved interrupting him so often that Dr D could not explain what he needed to about Child A's condition. This amounted to rudeness in the context of this important conversation.
45. The Panel has come to this conclusion with due deference to Dr D's opinion, by applying the standards it would expect of a Social Worker. The Panel finds this particular proved.
46. Dr F gave evidence to the Panel of a conversation she had with the Registrant on the telephone on 28 August 2015 about arrangements for Mother A to have contact with Child A.
47. She explained that she understood there was an arrangement that Mother A would not see Child A during the time he was receiving chemotherapy. The Registrant did not agree with this. She explained that she could not overturn the decisions made by the team and the Registrant should speak to the Consultant in case there had been some change in the plan.
48. She could not remember the precise words that the Registrant had used but recalled that he spoke to her in a manner that was so out of the ordinary that she recorded the conversation in Child A's notes. She said that this was something she would not normally have done due to the pressure on her time. The tone of voice and insistent manner of the Registrant was so marked that she was concerned that he would not accept the decision, would not speak to the Consultant and would try to arrange contact while Child A was receiving chemotherapy.
49. Dr F could not remember her personal reaction to this conversation. However, Dr D gave evidence that he had seen her at the time and she had brought it to his attention that the telephone call had been "unpleasant" and that the Registrant had spoken in an aggressive manner. Dr D told the Panel that "she was quite distressed after the telephone call".
50. In those circumstances the Panel is satisfied that the Registrant spoke to Dr F in a manner that should properly be described as both rude and aggressive. Accordingly, the Panel finds particular 4(i) proved.
51. Having regard to the allegation at 4(ii) the Panel enquired directly whether the Registrant had also interrupted Dr F. She did not recall this happening and accordingly the Panel finds 4(ii) not proved.
52. The Panel heard evidence from Dr D that at around this time in August 2015, a staff nurse on the ward where Child A was being treated reported to him that she had had a telephone conversation with the Registrant in which he spoke to her in an aggressive manner. He saw that she was visibly upset.
53. The Panel is mindful that it has not heard direct evidence from the staff nurse in question. The account of Dr D is hearsay and accordingly the Panel approaches it with caution. Nevertheless, this evidence is supported in two important ways. First, Dr D gave direct evidence of the visible effects of the conversation on what he described as "a very experienced nurse". Secondly the Panel has taken into account that the Registrant's alleged conduct towards the nurse is very similar to the conduct it has already found proved in respect of both Dr D and Dr F.
54. In those circumstances the Panel is satisfied that the Registrant did speak to the nurse in an aggressive manner and finds the particular proved.
55. The Panel heard evidence from both Person A and Teacher E that a Personal Education Plan (PEP) meeting was arranged in respect of Child A at his school on 12 October 2015. The purpose of the meeting was to make arrangements for Child A’s education when he was too unwell to attend school. Teacher E described how Child A was brought to the meeting in a pram, visibly unwell and became more seriously unwell during the meeting to the point where he had to leave.
56. Teacher E gave evidence that the PEP coordinator, Jacqueline Cooper, who had organised the meeting, was unaware of Child A’s health and had advised Teacher E that if she had been informed by the Registrant, the meeting could have been held at Person A’s home.
57. Person A gave evidence that he had been informed of the meeting by the Registrant at 7.30am on the morning of the meeting. The Registrant had insisted that his mother wake Person A to take the call. Person A was concerned that Child A had not slept for most of the night due to his feed and he was very weak as he had recently been receiving chemotherapy treatment. Person A said that the Registrant said he must attend. The Panel has no further direct information about this communication but has decided, on the balance of probabilities, that Person A did convey to the Registrant Person A’s view that Child A was too unwell to attend. Accordingly, this particular is found proved.
58. Person A gave evidence that on four occasions the Registrant telephoned him and gave wholly insufficient notice of meetings. He gave evidence that on 10 September 2015 at 12:16pm the Registrant told him there was a meeting at 11:00am on the next day. On 28 August 2015 the Registrant told him that a contact meeting was due to take place at 7:30 pm that day. On 15 September 2015, the Registrant told him at 9:51 am in the morning that a contact meeting was to take place at 10:30 am that day. On 12th October 2015 the Registrant notified him of the PEP meeting referred to above on the same morning at 7.30 am and insisted that he attend.
59. The Panel heard that by then Person A was making a note of each meeting that was arranged and in particular noting the times from his mobile phone as he had been advised by his Solicitor and health care professionals. Accordingly, the Panel accepts his account of the notice he was given of those meetings.
60. The Panel has had regard to the role the Registrant had to play in arranging contact and other meetings. It has also had regard to the difficulties Person A faced in caring for Child A and arranging his treatment. Person A described his family as “being on their knees”.
61. The Panel finds that this was inevitably a difficult situation in which it was important for there to be as effective a working relationship between Person A and the Registrant as was possible. Person A maintains he was bullied and harassed by the Registrant who threatened to report him to the Court as being uncooperative. Person A described previous Social Workers providing several weeks’ notice of meetings and making available minutes from the meetings if he was unable to attend due to his caring responsibilities.
62. Having heard from Person A of the anguish the late notice caused him, the Panel is satisfied the late notice of meetings set out in Particular 7 did represent a failure to maintain an effective relationship with Person A. Therefore, this Particular is proved.
63. The Panel heard and read clear evidence from Teacher E (a Head Teacher) of the difficulties he had faced in his dealings with the Registrant. He had contact with the Registrant since February 2015, when the Registrant had social work responsibility for at least three pupils at his school.
64. He told the Panel that the Registrant “rarely responded’ to his communications and when he did “he took a long time”. He told the Panel of the Registrant’s “rude, confrontational and dismissive” manner.
65. He told the Panel of an important meeting in respect of a Child C which the Registrant cancelled without telling him. Teacher E said that he was thus deprived of important information about that child and had cancelled other meetings in order to attend.
66. He told the Panel that there were other meetings changed or cancelled without communication.
67. The Panel has already noted that Teacher E was a credible witness. His frustration at not being able to work with the Registrant in the interests of his pupils was apparent to the Panel and the Panel accepts his evidence. Accordingly, it finds particular 8 proved.
68. The Panel’s approach with regard to this particular involved consideration firstly, of “placing Child A at risk of harm” and secondly with regard to “best interests of Child A”. The Panel finds that the Registrant’s conduct in respect of Particulars 2 and 6 put Child A at risk of serious infection by attending a meeting when he was unwell and immuno-compromised.
69. In respect of Particulars 4, 5 and 7 the Panel finds that there is no evidence that the Registrant’s behaviour towards either Dr F or the staff nurse impacted upon Child A’s treatment. Nor did the late notice of meetings put Child A at risk.
70. The Panel has then considered whether the particulars it has found proved amounted to conduct that was not in the best interests of Child A.
71. Having considered all the evidence about Child A’s situation, including his medical condition and complicated family situation, the Panel is satisfied that good communication between members of the multidisciplinary team concerned with the welfare of Child A was fundamental to acting in Child A’s best interests.
72. The Panel is satisfied that the findings that it has made in respect of Particulars 2, 4, 5, 6 and 7 are all examples of the Registrant not merely failing to communicate with other members of the team caring for Child A but actively undermining communication by his unprofessional and oppressive manner. Dr D gave evidence that a meeting was arranged to resolve the difficulties caused by the Registrant’s behaviour towards staff at the hospital and this was unique in his experience. Dr D’s view was that the Registrant did not seem to take on board what had been said at the meeting and the Registrant had thought that his behaviour was appropriate.
73. For that reason, the Panel is satisfied that the matters proved in Particulars 2, 4, 5, 6 and 7 were not in Child A’s best interests.
Decision on the Grounds:
74. The issues of rudeness and unprofessional conduct raised by the Particulars found proved, are serious and fall well below the standards expected of a Social Worker. The Panel does not find any evidence of lack of competence. The Registrant was an experienced Social Worker and there is no reason to believe he was unable to conduct himself in a professional manner.
75. The Panel has then gone on to decide if the matters proved against the Registrant amount to misconduct. The Panel has accepted the advice of the Legal Assessor that not every failure by a Registrant will amount to misconduct. The failure must amount to unacceptable or improper behaviour. It must amount to conduct which would be regarded as “deplorable by fellow practitioners”.
76. The Panel has had regard to the HCPC Standards of conduct, performance and ethics, standards 1, 3 and 7 and the Standards of proficiency for Social workers in England 2012 edition 2.2, 2.3, 2.8, 2.9, 3.1, 8.1, 8.2, 8.9, 8.10, 9.1, 9.6, 9.7 and 13.1.
77. The Panel is satisfied that the Registrant demonstrated in particular a failure to:
a. understand the need to promote the best interests of service users and carers at all times;
b. demonstrate effective and appropriate skills in communicating advice, instruction, information and professional opinion to colleagues, service users and carers;
c. work in partnership with others, including those working in other agencies and roles;
d. contribute effectively to work undertaken as part of a multi-disciplinary team.
78. The Panel has considered the effect of the Registrant’s behaviour:
a. With regard to Particular 2, it is satisfied that by ignoring the warnings that Child A was too ill to attend a meeting in September 2015, the Registrant put Child A at avoidable risk of infection. This on its own amounts to misconduct.
b. In respect of Particulars 3, 4 and 5 the Registrant’s rudeness to any one of the doctors or the nurse, falls short of misconduct. However, taken together they undermined effective communication and working together with other professions, which fell short of the standard expected of a Social Worker. It was not in the best interests of Child A and had the potential to impact adversely on Child A’s care. The Panel is accordingly satisfied that those particulars taken together amount to misconduct.
c. In respect of Particular 6, the Registrant’s actions resulted in Child A attending a meeting when he was unwell, put Child A at serious risk and were not in Child A’s best interests.
d. In respect of Particular 7. By failing to maintain an effective relationship with Person A and by failing to take account of his need to care for Child A, the Registrant undermined his primary task which was to look after the interests of Child A. Person A described feeling bullied and frightened by the Registrant when he told him that he would inform the Court that Person A had been obstructive.
e. In respect of Particular 8, the Registrant failed to work with the school where Child A was a pupil and so undermined an important part of his welfare.
f. In respect of Particular 9 the Panel has already found that the Registrant put Child A at risk and failed to act in the interests of Child A as set out above.
79. For these reasons the Panel is satisfied that the Particulars proved at 2 6, 7, 8 and 9 amount to serious misconduct taken each on its own. It is also satisfied the failure to communicate proved at particulars 3, 4(i) and 5 amount to serious misconduct taken together.
Decision on Impairment:
80. The Panel then went on to consider whether the Registrant's fitness to practise is currently impaired by reason of misconduct.
81. The Panel was aware that impairment is a question for its own judgement. In reaching its decision the Panel considered both the personal component and public component of fitness to practise, which includes the need to protect service users, maintain confidence in the profession and the regulatory process and uphold proper standards of conduct and behaviour.
82. When considering the question of impairment, the Panel asked the questions posed by Dame Janet Smith in the 5th Shipman report: (Rept CHRE v NMC and Grant  EWHC 927
a. Does the Registrant present a risk to patients?
b. Has the Registrant brought the profession into disrepute/liable to do so in the future?
c. Has the practitioner breached one of the fundamental tenets of the profession?
d. Is it the case that the Registrant’s integrity cannot be relied upon /acted dishonestly in the past?
83. It also had regard to Cohen v GMC  EWHC 581 (Admin),  in which Silber J held as follows;
“There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired”
84. The Panel has found that the Registrant's misconduct put a vulnerable service user at risk on several occasions, caused unnecessary distress to his main carer and / or was not in his best interests.
85. His serious misconduct was persistent over a number of months and involved a failure to communicate effectively both with Person A and a significant number of those concerned in Child A’s care.
86. There is no evidence before the Panel that the Registrant has engaged in any way remediated his faults or that he has developed any insight or recognised the seriousness of his misconduct.
87. In those circumstances the Panel is satisfied on the evidence before it that the Registrant remains a risk to future service users.
88. The Panel also considered the public component of fitness to practise, namely the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulatory process. The Panel find that fitness to practise is impaired with regard to the public component.
89. The Panel is satisfied that it would be failing in its duty if it did not find impairment in the light of the serious misconduct it has found, and which, for the reasons set out above, put a vulnerable service user at risk and obstructed the work of the multidisciplinary team caring for him.
Decision on Sanction:
90. Having concluded that the Registrant’s fitness to practise is currently impaired, the Panel went on to consider if a sanction is necessary and, if so, what would be the proportionate and sufficient sanction.
91. The Panel heard the submissions of Mr Paterson on behalf of the HCPC, in which he drew evidence of the aggravating and mitigating factors to the Panel’s attention.
92. The Panel heard and accepted the advice of the Legal Assessor. It had regard to the Indicative Sanctions Policy (ISP), dated 22 March 2017, and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive, but to protect the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.
93. The Panel identified the following mitigating factors in this case:
a) There are no other employment or regulatory concerns recorded against the Registrant as far as the Panel is aware;
b) The bulk of the allegations arise from the Registrant’s involvement with one family;
c) The Registrant was following a court order and had a duty to arrange contact between Mother A and Child A and Child B.
94. The Panel considered that the following were aggravating factors:
a) The Registrant has not engaged in the Regulatory process so that the Panel has no evidence of insight or remediation;
b) The Registrant was sufficiently experienced to know the importance of effective communication and building professional working relationships;
c) A vulnerable child was put at risk of serious harm;
d) Other professionals in a multi-disciplinary team were affected;
e) A carer for a seriously ill child was undermined and distressed;
f) There were several similar incidents over several months;
g) The Registrant disregarded concerns that were raised with him about his behaviour at a meeting convened to deal with those concerns.
95. The Panel does not consider the options of taking no further action or mediation to be either appropriate or proportionate in the circumstances of this case. Neither sanction would protect service users, address the identified risks, (including the risk of recurrence), or address the wider public interest because the case is too serious.
96. The Panel does not consider that a Caution Order meets the criteria as set out in paragraph 28 of the ISP which provides:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”
97. This is because the Panel has found that the Registrant’s misconduct is neither isolated nor minor. Nor is there any evidence that the Registrant has developed insight or taken appropriate remedial action so that there remains a risk of repetition.
98. The Panel is also satisfied that the public interest aspect of this case is too serious for a Caution Order.
99. The Panel next considered a Conditions of Practice Order. The Panel took account of paragraph 31 of the ISP, which provides:
31 – “Conditions of Practice Orders must be limited to a maximum of three years and should be remedial or rehabilitative in nature. Before imposing conditions a Panel should be satisfied that:
• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.”
100. The Panel is satisfied that those conditions are not met in this case.
101. The Panel is aware that it is sometimes possible to impose appropriate conditions in cases of misconduct such as this. However, in this case it is not possible to formulate appropriate conditions because the Panel knows nothing of the Registrant’s current circumstances. Even if conditions could be formulated, there is no material before the Panel from which it could conclude that the Registrant would comply with them. On the contrary, the Registrant’s complete failure to engage with the regulatory process leads the Panel to believe he would not.
102. The Panel next considered whether a Suspension Order would be an appropriate and proportionate sanction.
103. The Panel considered paragraphs 39 and 41 of ISP which provide as follow:
39 – ‘Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.’
41 – ‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.’
104. The Panel has approached these provisions with care. There is no evidence before the Panel that the Registrant’s misconduct is “unlikely to be repeated”. Nor, on the other hand, is there any evidence of ‘other difficulties preventing the registrant from understanding and seeking to remedy the failings’.
105. After balancing these considerations, the Panel decided that it could properly protect the public by imposing a Suspension Order. The Registrant’s failings were capable of being remediated and it was right to give him an opportunity to do so while protecting the public.
106. In order to be satisfied that it had imposed a sufficiently restrictive sanction to protect the public, the Panel considered whether a striking off order was necessary in this case. It had particular regard to paragraphs 47 - 49 of ISG which provide:
47 – ‘Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.’
48 – ‘Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.’
49 – ‘Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process. Where striking off is used to address these wider public protection issues, panels should provide clear reasons for doing so. Those reasons must explain why striking off is appropriate and not merely repeat that it is being done to deter others or maintain public confidence.’
107. In all the circumstances the Panel is satisfied that it would not be appropriate to impose a sanction of “last resort” at this time, without giving the Registrant the opportunity to engage and remediate failings which appear capable of remediation. The public would be protected during any period of suspension. The Panel is satisfied that public confidence would be maintained by a significant period of suspension and that a panel would uphold proper standards in the profession by reviewing the order before its expiry and ensuring that the Registrant did not return to work until it was safe for him to do so.
108. The Panel has considered whether the Registrant’s conduct is fundamentally incompatible with continued registration. The Panel has concluded that the Registrant’s misconduct, although serious, falls short of being fundamentally incompatible with his continued registration because it does not fall into the most serious bracket, is limited to his communication with others and is capable of remediation.
109. Accordingly the Panel has decided to impose a Suspension Order for a period of 12 months. The Panel has decided on this period because it is satisfied that it is necessary to impose the maximum period both to give the Registrant time to remediate and to maintain public confidence by demonstrating that the Panel has recognised the seriousness of this case.
110. The Suspension Order will be reviewed before its expiry. At the review hearing, the reviewing panel is likely to be assisted by:
a) The Registrant’s attendance at the Review Hearing;
b) A reflective piece demonstrating that the Registrant has understood the significance of his misconduct and its impact on others and demonstrating how he would handle similar situations differently in the future;
c) Evidence of study and learning that demonstrates that the Registrant has learned how to communicate effectively with service users, carers and other professionals in a multi-disciplinary team;
d) Evidence of any paid or unpaid work since this hearing;
e) References or testimonials demonstrating the Registrant’s ability to work with others in a non-confrontational manner;
f) Evidence of the Registrant’s future plans as a Social Worker;
g) Evidence that the Registrant has maintained his Continuing Professional Development in anticipation of a return to work.
Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.
Application for an Interim Order:
1) Following the announcement of the sanction and the Registrant’s right of appeal, Mr Patterson applied for an interim suspension order.
2) The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed by the notice of hearing sent to him on 27 July 2017 that such an application might be made, and he has not responded with regard to that warning.
3) The Panel has considered whether it should impose an interim suspension order pursuant to order 31 of the Order which will apply during the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress.
4) The Panel has had regard to paragraphs 51 to 54 of ISP and reminded itself that it should only impose such an order if it is satisfied “that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended”.
5) Having decided that the Registrant would put service users at risk and undermine public confidence in the profession if he were allowed to practise at this time, the Panel is satisfied that an order is necessary both to protect members of the public and the public interest.
Interim Suspension Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
History of Hearings for Mr Lofton Alexander McTavish Hull
|Date||Panel||Hearing type||Outcomes / Status|
|08/10/2018||Conduct and Competence Committee||Review Hearing||Hearing has not yet been held|
|16/10/2017||Conduct and Competence Committee||Final Hearing||Suspended|