Social Work England: Panel Decision Quashed on Appeal
18 August 2023
The Professional Standards Authority (PSA) challenged in the High Court a decision of an Adjudicating Panel of Social Work England (SWE) that a finding of impairment of fitness to practise of a social worker (MDR) was not necessary to protect, promote and maintain the health, safety and wellbeing of the public on the grounds that it was wrong and irrational, and that had it done so it would have imposed a suspension from practice rather than a warning: Professional Standards Authority for Health and Social Care v Social Work England & Anor [2023] EWHC 2125 (Admin) Farby J
MDR was the mother of twins born in 2005. She separated from the father of the twins when they were approximately 2½ years old and relations between them remained acrimonious over the years. MDR complained before the judge that the father had continually abused her emotionally and psychologically, made false accusations that she had abused the twins, refused to support her financially and cut himself off from his daughter (Child A). MDR felt she had been victimised by SWE. There was a history of social services involvement.
MDR had been subject to four fitness to practise investigations since 2019. In June 2021 MDR was interviewed for a job at a local authority where she worked until around the end of July 2021 when her employment was terminated for not having been open and honest during interview, specifically having failed to disclose fitness to practise investigations.
The Panel found proved allegation 1 that MDR had subjected Child A and/or Child B to emotional abuse or distress, and allegations 2 and 3 concerning her dishonest failure to disclose fitness to practise investigations.
It considered there would be no public interest in denying local authorities a competent, experienced, committed and passionate social worker and that proper professional standards could be promoted and maintained by issuing a warning which would last five years.
The importance of honesty and integrity in applications for professional positions had been emphasised by the courts on a number of occasions. See General Medical Council v Theodoropoulos [2017] 1 WLR 4794 and Makki v General Medical Council [2009] EWHC 3180.
Her Ladyship adopted those authorities in the context of social workers. Dishonesty at a job interview may deny the prospective employer information needed to assess whether there was any risk to the public (and, if so, its extent) that could arise from employing the candidate. It would harm the public interest in securing the right social workers for the right jobs.
The imposition of one sanction rather than another was an evaluative one and was multi-factorial: Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, para 61. The court’s intervention would be justified where the sanction was inadequate such that the public remained at risk: Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2004] EWCA Civ 1356, [2005] 1 WLR 717, para 60.
The Panel’s finding that dishonesty at interview was an isolated incident carrying a negligible risk of repetition was unsustainable in light of its other findings. Firstly, the Panel found that MDR would have known that Child A was seeking to mislead the Panel because MDR was aware of Child A’s written evidence (in the form of an email) before the hearing. It followed that MDR had made a conscious decision to rely upon Child A to give evidence before the Panel which she knew to be untruthful.
Although MDR was entitled to mount a vigorous defence to the charges, her decision to call her daughter to give untruthful evidence to the Panel went significantly beyond offering an alternative account of past events and went beyond ‘a failed attempt to tell the story in a better light than eventually warranted’: See Sawati v General Medical Council [2022] EWHC 283 (Admin). It demonstrated a lack of honesty and fatally undermined the Panel’s conclusion that there was no risk of repetition of the dishonesty shown in interview.
Secondly, MDR had consistently prevaricated about her dishonesty in interview. In her closing submissions to the Panel MDR sought to minimise her dishonesty by conceding only that she had not been “up front” which she said was purely for survival and to be able to earn an income and provide for her children.
The Panel accepted that MDR did not have ‘strong insight’ but found that her insight was ‘developing and had continued to develop through the proceedings.’ That approach to the question of insight was wrong and irrational.
The recruitment of social workers had at its centre the objective of keeping safe vulnerable adults and children. By being dishonest in interview, MDR placed her own interests above the protection of the health, safety and well-being of the public contrary to the overarching objective. The Panel could not rationally conclude that the risk to public health, safety and well-being had been remediated in circumstances where MDR did not recognise the risk and had shown no insight into her conduct.
Although there was no reason to suppose that the Panel did not have the correct principles in mind given the express citation in the Sanctions Guidance, it may have been preferable for the Legal Adviser to remind the Panel of the first and second principles in Bolton v Law Society [1994] 1 WLR 512, 519B-E, although there was no actual misdirection in this case.
The Panel’s decision was quashed on the grounds that it was wrong and irrational. Her Ladyship declined to accede to the PSA’s application that she substitute a period of suspension for one year.
The better course was to remit the case to a Panel for fresh findings on sanction because, despite her current lack of insight (and taking into account the strong professional references from various difference sources that were before the Panel), it was conceivable that a Panel may properly conclude that MDR’s impairment was not such as to justify the risk of deskilling a social worker who had in so many ways contributed to the public good by long professional service.