Mrs Jane Louise Kirby

: Social worker

: SW52694

: Final Hearing

Date and Time of hearing:10:00 23/01/2018 End: 17:00 23/01/2018

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Caution

Allegation

1. On 15 August 2016 at Carlisle Magistrates Court you were convicted of
assault by beating.

2. By reason of your conviction as set out at paragraph 1 your fitness to
practise as a Social Worker is impaired.

Finding

Preliminary matters


Service


1. On 29 November 2017, the HCPC sent notice of this hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent on the same date by email. The notice contained the required particulars, including time, date and venue.

2. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied on the documentary evidence provided, that the Registrant had been given appropriate notice of this hearing in accordance with the Rules.

Proceeding in absence of the Registrant

3. Ms Eales, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

4. The Panel had regard to the chronology of events. On 27 May 2016, the Registrant self-referred the matter to the HCPC, informing the HCPC that she had received notification from the police that she was to be summonsed to court for an offence of common assault. On 27 April 2017, a Panel of the Investigating Committee found that there was a case to answer. On 3 May 2017, the HCPC wrote to the Registrant to indicate that it would seek to amend the allegation at the outset of the hearing.

5. On 3 June 2017, the Registrant wrote to the HCPC indicating her intention, at that stage, not to attend the substantive hearing, albeit no date had been fixed for it. The Registrant continued to communicate with the HCPC’s legal representatives, providing material that she wished to be considered by the Panel. On 20 September 2017 the Registrant sent an email confirming that she would not be attending the final hearing and indicating that she was content to receive the hearing bundle electronically. On 29 November 2017, the notice of hearing was sent to the Registrant. On 12 December 2017, the Registrant sent a further email confirming that she would not be attending the hearing, but forwarding information for the Panel’s consideration. The Registrant has not sought an adjournment.

6. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve notice on the Registrant in accordance with the Rules.

7. The events resulting in the Registrant’s conviction occurred in March 2016. Although the HCPC is not calling any witnesses, the Panel was mindful of the public interest in hearing matters expeditiously.


8. In light of the above, the Panel was satisfied that the Registrant had been provided with the means of knowledge as to when and where her hearing was to take place. The Panel concluded that the Registrant had taken the decision not to attend the substantive hearing, thereby waiving her right to attend. The Panel also considered that it was in the public interest for this hearing to go ahead.

Application to amend particulars

9. At the beginning of the hearing, Ms Eales for the HCPC, applied to amend the particulars, in order to include within the stem of the allegation, that at the time of the conviction, the Registrant was a registered Social Worker.

10. Having heard and accepted the advice of the Legal Assessor, the Panel decided to allow the proposed amendments. It was of the view that this was an important part of the stem, and there was no dispute that the Registrant was a registered Social Worker. The Panel was therefore satisfied that there would be no prejudice to the Registrant in allowing the amendment.

Background

11. The Registrant is a registered Social Worker, registered with the HCPC.

12. Person A is the adult daughter of the Registrant. Person A had been in a relationship with Person B for the previous 4 years. The Registrant was concerned that that this was an abusive relationship, and that Person A had been the victim of ongoing domestic violence.

13. At approximately 15:00 on Sunday 27 March 2016, Person A was at her home address. She had invited the Registrant round that afternoon, but then texted the Registrant to tell her not to attend. Person A’s former partner, Person B, was visiting Person A’s home address to give Easter eggs to their two young children, the Registrant’s grandchildren. The Registrant attended Person A’s home address, and was not pleased to see Person B at the address.

14. An altercation between the Registrant and Person A occurred, whereby Person A wanted the Registrant to leave, the Registrant resisted, and during the struggle the Registrant assaulted the victim causing superficial injuries.

15. On 28 March 2016, the Registrant voluntarily attended the police station and gave an interview, in which she denied the offence. On 6 June 2016, the Registrant pleaded not guilty at Carlisle Magistrates’ Court. On 15 August 2016, the Registrant was convicted of one offence of common assault. She was sentenced to a fine of £500 and ordered to pay a victim surcharge and prosecution costs.

16. On 27 May 2016, the Registrant had self-referred the matter to the HCPC, the day after being informed by police that she was summonsed to court. On 1 July 2016, the Registrant’s employer, Cumbria Children’s Services, also referred the matter to the HCPC.

Decision on facts

17. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that the burden of proving the facts rests on the HCPC and that the HCPC will only be able to prove a fact, if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

18. The Registrant did not attend. The Panel did not hold her non attendance against her at the fact finding stage.

Particular 1 – found proved

On 15 August 2016 at Carlisle Magistrates Court you were convicted of assault by beating.

19. The Panel found this particular proved.

20. The Panel had regard to Rule 10(d) which states: “where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (...) shall be admissible as proof of that conviction and the finding of fact upon which it was based”.

21. The Panel had before it a copy of the Memorandum of Conviction, dated 15 August 2016, from Carlisle Magistrates’ Court. The Panel was satisfied to the required standard, that the Registrant had been convicted of the offence of assault by beating, contrary to section 39 of the Criminal Justice Act 1988.

22. The Registrant did not dispute that she had been convicted of the offence, although she disputed that she was guilty of it. The Panel acknowledged that it could not go behind the fact of the conviction, and was satisfied from the Memorandum of Conviction that the Registrant had been convicted of the offence.

Decision on ground

23. Having found the facts proved, the Panel was satisfied that, by its nature, it amounted to the statutory ground of a conviction.

Decision on impairment

24. The Panel next went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence of her conviction. Ms Eales submitted that the Registrant’s fitness to practise was currently impaired on both the personal and public components. She submitted that the Registrant lacked insight as to her offending and had sought to justify her behaviour, which showed a lack of insight and remorse. She also submitted that the Registrant’s actions had brought the profession into disrepute and may undermine confidence in the social work profession.

25. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC Practice Note on ‘Convictions and Cautions’. It also had regard to the HCPC Practice Note on ‘Impairment’, and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

26. The Panel considered the ‘personal’ component.

27. As the Registrant had not attended this hearing, the Panel had not had the opportunity to hear from the Registrant in order for it to be able to assess whether she had gained insight and remorse into her actions, and whether she had remediated her behaviour. The Panel was mindful that insight, remorse and remediation are key issues to consider in the context of the personal component.

28. The Panel had regard to the information which had been provided in the Disciplinary Investigation Report prepared by the Registrant’s employer in August 1016. It contained the observations that the Registrant was an experienced Social Worker who had worked in Cumbria for more than 15 years, in various settings. It noted that the Registrant had joined what was to become the Cumbria Safeguarding Hub in 2012 and it described that: “in essence [the Registrant] was ‘a founding member’ of the service and helped fashion how it should evolve”. The Registrant’s email of 12 December 2017 indicated that she had worked as the domestic violence lead for the Multi-Agency Risk Assessment Conference representing Children’s Services for many years. In light of this information, the Panel was satisfied that the Registrant had been working as a Senior Social Worker for a number of years and there was no suggestion of any concerns about her professional practice, nor was there was no evidence to suggest that in a professional capacity, the Registrant had been anything other than professional and objective.

29. The Panel was of the view that the Registrant’s actions which led to the conviction were out of character. There was no evidence before it that the Registrant had any other convictions or cautions, or had behaved in a similar way in the past. The Registrant’s perspective of matters on 27 March 2016, was that her daughter and grandchildren were potentially at risk. Although the Registrant was a trained Social Worker, she had responded to the situation as an emotionally involved family member. The Registrant had allowed herself to become angry and, in the Panel’s view had lost her self control on that day, rather than step away.

30. The representations provided to the Panel by the Registrant focussed primarily on the fact that she denied the assault, and her concerns in protecting her grandchildren and daughter from Person B. The Panel recognised that it is difficult for a Registrant to demonstrate insight or remorse when the behaviour itself is denied. However, as the Registrant had not attended this hearing, nor provided any reflections of how, in hindsight she might have behaved differently to avoid escalating the confrontational nature of the situation, the Panel had not been able to explore the level of the Registrant’s insight or remorse with her. It had also not been able to assess the Registrant’s understanding of how such behaviour, if it were to involve a Social Worker, may impact adversely on the reputation of the profession. In the absence of such information, the Panel had some residual concerns about the Registrant’s insight and remorse.


31. Given these residual concerns over the level of the Registrant’s insight and remorse, the Panel was unable to conclude that there was no risk of repetition. However, the Panel was of the view that it had been an isolated incident which had arisen in an otherwise unblemished career, and the particular circumstances of the incident were exceptional. In light of this, the Panel concluded that the risk of repetition was, low, and a similar situation was unlikely to recur. However, given the residual concerns, and having regard to the Practice Note, in the Panel’s judgement, the Registrant’s fitness to practise is currently impaired on the personal component.

32. In relation to the ‘public component’, the Panel was aware that consideration of fitness to practise requires a judgement to be made in respect of the wider public interest which includes not only the individual need to protect the public, but also the collective need to maintain public confidence in the profession as well as to declare and uphold the proper standards of conduct and behaviour which the public expect.

33. The Panel considered that a Social Worker with a conviction for assault may damage the public’s confidence in the reputation of the profession. A criminal conviction for assault, in the Panel’s view, breaches the high standards of conduct and behaviour which are required of a Social Worker, and has the potential to bring the profession into disrepute.

34. In all the circumstances, the Panel concluded that a finding of current Impairment was required to declare and uphold proper standards of conduct and behaviour. It was of the view that public confidence in the profession and the Regulator would be undermined if it did not make a finding of Impairment.

35. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

36. Having determined that the Registrant’s fitness to practise is currently impaired by reason of her conviction, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on her registration.

37. The Panel took account of the submissions of Ms Eales on behalf of the HCPC.

38. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Indicative Sanctions Policy (the Policy) 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 members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

39. Before considering the individual options open to the Panel, it considered what the aggravating and mitigating factors were in this case.

40. The Panel considered that, aside from the fact of a conviction for assault for a Social Worker, which had the potential to undermine the reputation of the profession, there were no other aggravating factors.

41. The Panel considered the following to be mitigating factors:

• This was a single, isolated incident in an otherwise unblemished career;

• The assault had not been pre-meditated, and was completely out of character.

42. The Panel first considered whether any sanction was necessary. It looked at paragraph 8 of the Policy, which reminds Panels that even if it has determined that fitness to practise is impaired, it is not obliged to impose a sanction. It says: ‘This is likely to be an exceptional outcome, but for example, may be appropriate in cases where a finding of Impairment has been reached on the wider public interest grounds…but where the registrant has insight, has already taken remedial action and there is no risk of repetition.’ Whilst on its face much of this appeared to apply to this case, the Panel was not of the view that this course was justified. 

43. In reaching this view, the Panel had regard to its earlier decision that a finding of Impairment was required to declare and uphold proper standards of conduct and behaviour. It considered that, having made such a finding, to take no action would send out the wrong message to the public. It concluded that some form of sanction was necessary to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

44. The Panel then considered whether to make a Caution Order. Having regard to the Policy, it was of the view that paragraph 22 was particularly relevant in this case. It starts: “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.”

45. The Panel was of the view that the actions of the Registrant could properly be described as a lapse in her judgement where she had lost her temper, and which was both isolated and limited. It also had regard to its earlier finding that although it was unable to conclude that there was no risk of repetition, it had been satisfied from all the material, that the risk of repetition was low, and a similar situation was unlikely to occur.

46. The Panel also had regard to that part of paragraph 22 of the ISP, which reads: “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”. As previously identified, the Panel was of the view that the conduct was out of character and the risk of repetition was low. The residual issue for the Panel was the level of insight the Registrant had, and whether it was sufficient for the Panel to feel reassured that a Caution Order was appropriate in the circumstances.

47. The Panel was mindful that it had not been able to explore with the Registrant the level of her insight into her behaviour, or how it may have impacted on the reputation of the profession. It was this which had led to the Panel’s conclusion that it had some residual concerns about the Registrant’s insight and remorse. The Panel noted that the Registrant, in her email dated 20 October 2017 to the HCPC’s representatives, had confirmed that she did not dispute that her actions of that day were not as a professional, and had observed that: “Hindsight is always a wonderful thing to determine whether I should have walked away on this day”. The Panel considered that these observations were consistent with a Registrant recognising that her response to the situation on the day had not been professional, and that there had been the option to have walked away. In the Panel’s view, this was relevant insight, albeit not full insight.

48. The Panel was of the view that this was not a case in which education or training were required and so there were no meaningful practice restrictions which could be imposed on the Registrant’s practice. In such circumstances, a Conditions of Practice Order was not appropriate in her case.

49. The reality was, therefore, that the next applicable sanction to consider in the hierarchy of sanctions, if a Caution Order was not appropriate, was that of a Suspension Order.

50. The Panel concluded that a Suspension Order would be disproportionate and unduly punitive in the particular circumstances of this case, particularly where the panel considered that the seriousness of the incident was nowhere near the top end of the spectrum. In reaching this view, it had regard to its findings that this was an isolated incident in an otherwise unblemished career, which was out of character and unlikely to recur.  The Panel also had regard to the Policy which sets out the importance of not seeking to punish a Registrant a second time for the same offence.

51. In all the circumstances, therefore, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order.

52. The duration of the Caution Order will be for the three years. A shorter period would not, in the Panel’s view, be sufficient to mark the conviction and its reputational effect on the profession.

Order

Order: The Registrar is directed to annotate the register entry of Jane Louise Kirby with a caution which is to remain on the register for a period of three years from the date this order comes into effect.

Notes

No notes available

Hearing history

History of Hearings for Mrs Jane Louise Kirby

Date Panel Hearing type Outcomes / Status
23/01/2018 Conduct and Competence Committee Final Hearing Caution