Grant v Health and Care Professions Council

Miss Bianka Antonia Grant holds a degree in social work. She is the appellant in these proceedings.

The respondent in these proceedings is the Health and Care Professions Council (“the Council”). The Council is established under article 3 of the Health and Social Work Professions Order 2001 (“the 2001 Order”), made under section 60 of the Health Act 1999.

Article 5 of the 2001 Order requires the Council to establish and maintain a register of members of relevant professions. Upon becoming a newly qualified social worker Miss Grant was duly registered in the Social Worker part of the register.

On 3 July 2018 a panel (“the third panel”) of the Council’s Conduct and Competence Committee made an order (“the striking-off order”) directing that Miss Grant be struck-off the register. Miss Grant now appeals against that order. Argument on the appeal has taken place before me today. Miss Grant appears in person. She has been assisted by a McKenzie friend, Mr Rodney Wright. Mr Peter Mant, instructed by BDB Pitmans LLP, has appeared for the Council.

The appeal is brought under article 38 of the Health and Care Professions Order 2001. That article provides, in part, as follows:

An appeal from —

any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; …

In any appeal under this article the Council shall be the respondent.

The court … may - (a) dismiss the appeal;

allow the appeal and quash the decision appealed against;

substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or

remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff and may make such order as to costs as it, or he, as the case may be, thinks fit.

In this article, the "appropriate court" means:

Paragraph 19.1 of CPR PD 52D applies to this hearing. It provides, in material respects, that the appeal should be supported by written evidence and, if so ordered, by oral evidence and will be by way of a rehearing.

The test for the court to apply in determining whether to allow the appellant's appeal is contained in CPR 52.11.3 and is as follows:

wrong; or

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

Miss Grant, as a newly qualified social worker, began employment with the Royal Borough of Kingston (“Kingston”) on 4 March 2013. This was an important stage at the outset of her career, when she would be going through an assessed and supported year in employment.

Kingston had a business account in its name with ZipCar, a car rental firm. Miss Grant had access to that account. On 28 June 2013 Kingston informed Miss Grant that an investigation was to be carried out into her use of the ZipCar account for what Kingston said were non-work purposes.

The investigation resulted in findings by Kingston that Miss Grant had indeed used the account for non-work purposes, and should be the subject of disciplinary action. In consequence of Kingston’s disciplinary action, she was dismissed by Kingston with effect from 31 August 2013. An internal appeal against the dismissal was unsuccessful.

In November 2015 the Council informed Miss Grant that it would be investigating her use of Kingston’s ZipCar account, along with an incorrect declaration to Kingston by her that she had never been convicted of a criminal offence. Miss Grant responded by, among other things, setting out her account of what had happened.

Miss Grant was then given notice that allegations of misconduct in relation to her employment by Kingston would be the subject of a hearing before a panel (“the first panel”) on 3 to 5 January 2017. Despite that notification Miss Grant did not attend and was not represented.

The majority of the allegations to be considered by the first panel concerned Miss Grant’s use of Kingston’s Zipcar account. These were allegations 1 and 2. Allegation 3, however, concerned the misstatement that Miss Grant had never been convicted of a criminal offence. The first panel, proceeding in the absence of Miss Grant, concluded that allegation 3 did not involve misconduct. The panel noted that Kingston had concluded that on this aspect Miss Grant did not intentionally wish to deceive. After recording this, the first panel stated:

However in relation to the use of Kingston’s Zipcar account, on allegation 1 the first panel found that on five occasions between 1 June and 23 June 2013 inclusive Miss Grant had used the account for non-work purposes, and that she had given inconsistent explanations for this use. In these circumstances the first panel concluded that she had acted dishonestly and was aware that her actions were dishonest.

Allegation 2 was that Miss Grant, when told by Kingston on 28 June 2013 that there would be an investigation into her use of the ZipCar account, failed to disclose that she had booked a car on Kingston’s account intending to use it for non-work purposes that evening, and went ahead with that non-work use of the account despite being told of the proposed investigation. The first panel found this allegation proven, and in relation to this allegation concluded that Miss Grant acted dishonestly and was aware that her actions were dishonest.

On the question whether the dishonesty that been found proved was sufficiently serious to amount to misconduct, the panel said that it took into account:

That the dishonesty occurred on a number of separate occasions.

The cost of the personal use of ZipCar by the Registrant amounted to £751 of public money.

In respect of the use of the vehicle on 28 June 2013, the dishonesty continued after the Registrant was made aware that her personal use of ZipCar was under investigation.

Having taken those matters into account the first panel concluded that Miss Grant’s dishonesty did indeed amount to misconduct.

Turning to impairment, the first panel concluded that a finding of current impairment was:

In that regard the first panel said that it took into account the following factors:

The Registrant has shown little insight in relation to her actions and … the potential consequences for the standing of the profession of Social Work.

Whilst the Registrant’s failings are, in theory, capable of remediation, there is no evidence before the Panel that they have been remediated.

There is a lack of remorse on the part of the Registrant [:] although the Registrant has made some limited admissions, she has also attributed the blame elsewhere.

Turning to sanction, the first panel identified mitigating and aggravating circumstances:

Mitigating factors included the following:

The Registrant has accepted that she acted in the manner set out in particulars 1.a-f, 2, and 3 of the allegations.

In June 2013 the Registrant was a newly qualified Social Worker.

There was no direct harm caused to any service user.

However the Panel also considered the following aggravating factors:

The Registrant has shown little insight or remorse.

There is no evidence that the Registrant has reflected on her dishonesty or has addressed it.

The Registrant has not taken responsibility for her actions and has sought to put the blame elsewhere.

The dishonesty did not occur on an isolated occasion but occurred over a period of a month.

The Registrant’s personal use of the account on 28 June 2013 occurred after the Registrant was made aware that her personal use of the ZipCar account was under investigation.

There is a risk that the Registrant will act dishonestly in the future.

The first panel concluded that a suspension order was the only appropriate and proportionate sanction. The first panel’s reasons for reaching this conclusion, and its reasons for considering that a striking off order was not appropriate, were set out in paragraphs 55 and 56 of the first panel’s decision:

The Panel concluded that having regard to the Registrant’s dishonesty, a Suspension Order was the only appropriate and proportionate sanction. Such an order would provide proper and sufficient protection to the public and would help to sustain public confidence in the profession. The Suspension Order will be for a period of 12 months. This will provide sufficient time for the Registrant to reflect on and acknowledge her dishonesty and to seek ways to demonstrate that she has addressed it.

The Panel did not consider a Striking Off Order. It was aware that such an order is a sanction of “last resort”. The Panel did not consider that at this stage such an order was either necessary or proportionate. In coming to this conclusion the Panel noted in particular the absence of any direct harm to service users.

A final section of the first panel’s decision, headed “Review”, advised Miss Grant that prior to expiry of the 12 months suspension a review panel would give consideration to the order. This passage also advised Miss Grant of matters which might assist the review panel:

The attendance of the Registrant.

A reflective piece from the Registrant indicating a recognition of her dishonesty, what she has learnt from these events and her understanding of the impact that

The Registrant’s career plans for the future.

Evidence of the steps that she has taken to maintain her professional skills.

As had been advised in the decision of the first panel, arrangements were duly made for a review hearing. Notice was given to Miss Grant on 15 November 2017 that the hearing would take place on 15 December 2017. That hearing was conducted by what I shall call “the second panel”. Under article 30 of the 2001 Order, the task of the second panel was to review the order made by the first panel. In that regard article 30(1) gave powers to the second panel so that, among other things, it could:

Miss Grant did not attend the December 2017 hearing. The second panel considered whether to proceed in her absence. In that regard it noted that Miss Grant had sent an email on 13 December 2017 requesting that the hearing be adjourned so that she could attend and be represented. Paragraph 5 of the second panel’s decision recorded a decision by the second panel that it was appropriate to proceed in the absence of Miss Grant. Reasons were given in paragraph 5 for taking this course:

… This is a statutory review of a substantive order which must be reviewed before 1 February 2018. The Registrant in her email explains that she has difficulty taking time off to search for a legal representative “so close to the festive season” as she is self-employed. The Panel considered that she had a month’s notice of this hearing and was aware … that it would be reviewed prior the expiry of the Order. … there has been no engagement from the Registrant until her email two days before this hearing. Further, she gives no explanation as to what, if any efforts, she has made to engage a legal representative. The Registrant does not explain why she cannot personally attend today. There has been no proposed time scale as to when she could attend a hearing. In all the circumstances the Panel determined to refuse the application to adjourn the hearing today.

The Panel concluded that the Registrant has voluntarily absented herself from this hearing. It considered that there is a public interest in proceeding with this case today.

The second panel then went on to consider whether Miss Grant’s fitness to practice remained impaired. It stated in paragraph 16 of its decision that it had regard to the public interest and to whether Miss Grant’s conduct was remediable, whether it had been remedied and the risk of repetition. The conclusion of the second panel was that Miss Grant’s fitness to practice remained impaired. Reasons for this conclusion were set out in paragraphs 17 to 19 of the second panel’s decision. Paragraph 17 noted the first panel’s three reasons for concluding that Miss Grant’s fitness to practice was impaired. Turning to the current position, the second panel said in paragraphs 18 and 19:

The only new evidence before this Panel from the Registrant is her email requesting an adjournment. In that email she appears to reject the findings of dishonesty that the previous Panel found and she states that she views “this hearing as an actual harassment and victimisation…”. The Panel therefore has no evidence before it today to enable it to come to any other conclusion than that the Registrant’s fitness to practice remains impaired. There is no evidence of any insight or remediation and in those circumstances the Panel concluded that there was a risk of repetition of the misconduct found proved. The Panel remained concerned as to the Registrant’s level of insight given her continued denial of facts found proved.

The Panel has taken into account the public interest which includes protection of service users, maintenance of public confidence in the profession and declaring and upholding public confidence in the profession. It concluded given the Registrant’s level of engagement that the Registrant’s fitness to practice remained impaired.

In these circumstances the second panel decided to impose a further period of suspension for six months. Its reasons for taking this course were set out in paragraphs 21 to 23 of its decision. Paragraph 21 noted the six factors highlighted by the first panel when reaching its conclusion on the sanction that should be imposed. Paragraphs 22 and 23, so far as material, stated:

The Panel concluded that given the Registrant’s continuing lack of insight to take no further action or to impose a Caution Order would be wholly inappropriate. The Panel considered the appropriateness of making a Conditions of Practice order. The Panel is aware that the conditions imposed by such an order must be relevant, workable, enforceable and proportionate. The Panel concluded that, in the circumstances of this case, appropriate conditions of practice cannot be formulated given the Registrant’s limited engagement and her lack of insight and remorse.

The Panel therefore concluded that it would be appropriate and proportionate to impose a further period of suspension for a period of 6 months. This will allow the Registrant a further period of time to develop insight and demonstrate her continued commitment to her chosen profession…

Also in paragraph 23 of its decision the second panel referred to the recommendations that had been made by the first panel as to ways in which, at a review hearing in due course, Miss Grant could demonstrate insight and her continued commitment to the profession of social worker. It added in paragraph 24:

… this panel wishes to make it clear to [Miss Grant] that this further period of suspension should enable [Miss Grant] to develop insight. If [Miss Grant] chooses not to fully engage with these proceedings the next reviewing Panel may consider that a striking off order is the appropriate order.

On 25 May 2018 Miss Grant sent a letter to Mr Marc Seale, chief executive officer of the Council. The letter was headed “Re: Systematic Oppression”. The letter began by saying that Miss Grant wrote in distress and despair. She said that this was because her career had been destroyed through systematic oppression by Kingston through sex and race discrimination that had been compounded by harassment and humiliation by the Council. The remainder of the letter described, among other things:

her version of what had happened in relation to the use of the Zipcar account;

a conversation with her service manager at Kingston which she had difficulty understanding;

advice from an agency when seeking a new placement that Kingston had said she was an unsuitable candidate;

an assurance given to her by Kingston that management had not provided any poor reference;

job offers from Enfield and Essex which were withdrawn as a result of a poor reference from Kingston;

advice that a lawyer’s letter should be sent to Kingston, and the

a letter from the Council, within a month of the lawyer’s letter to Kingston, saying that she was under investigation for fitness to practice in relation to her use of the ZipCar account;

a question whether the timing of the letter from the Council was “merely a coincidence”, followed by an observation that the Council had taken 2 years before investigating something that had been dealt with in 2013;

a further investigation by the Council concerning a private matter, leading to the comment by Miss Grant that this was now harassment; and

a list of matters which Miss Grant would like Mr Seale to investigate.

By that time Miss Grant had been notified that the next review hearing in relation to her suspension would take place on 3 July 2018. On 13 June 2018 Miss Grant notified the council that she would be attending the hearing. She also advised that she wished the material for the hearing to include her letter sent to Mr Seale on 25 May 2018. Miss Grant duly attended the further review, conducted by the third panel, on 3 July 2018. She was supported by Mr Wright.

As noted earlier, the conclusion of the third panel was that Miss Grant should be the subject of a striking off order. The third panel’s reasons dealt with the letter of 25 May, and other matters raised by the presenting officer, in paragraph 9 of its ruling:

The ruling then described the submissions by Miss Grant, and by Mr Wright on her behalf, in paragraph 10:

At paragraph 11 the ruling recorded that the third panel had accepted advice from the legal assessor and had approached the matter applying principles which, for ease of reference, I number in square brackets:

it is required to accept the findings made by the substantive hearing panel in relation to the allegation as settled. It is not appropriate to revisit the findings of fact made by that panel.

taking the substantive hearing panel’s finding as the starting point, and considering all that has and has not occurred in the period since that decision was made, the present Panel is required first to consider whether the Registrant’s fitness to practise is still impaired.

if there is no on-going impairment of fitness to practise, then there should be no further sanction imposed upon the expiry of the present order.

if, however, the conclusion of the Panel is that there is ongoing impairment of fitness to practise, then the Panel is required to consider whether a further sanction is required. If it is, then ordinary sanction considerations apply. In particular, a sanction must not be imposed with the intention of punishing the Registrant. Rather, a sanction must be the least restrictive outcome consistent with the need to protect the public, to maintain a proper degree of confidence in the registered profession and to declare and uphold proper professional standards. The sanctions available to the Panel will be dictated by the powers that were available to the panel that imposed the sanction being reviewed.

The third panel concluded that Miss Grant’s fitness to practise was still impaired. The reasons for this conclusion were set out in paragraph 12 of the ruling:

the Registrant had actively chosen to disregard the clear expectations documented in the previous panel’s determinations, in that she presented neither a reflective piece to demonstrate any insight nor any plans regarding her future career. In addition, no testimonials or evidence of professional updating were presented to the Panel and in her submissions she expressed a complete disregard for the findings of the substantive hearing panel.

the Registrant has not demonstrated remorse and accepted no responsibility for her actions, choosing instead to view herself as the victim of discrimination.

there is no evidence of any remediation, insight or remorse.

the Registrant has demonstrated a flawed understanding of her role and responsibilities as a professional and the role of the HCPC as regulator.

in all her written and verbal representations, the Registrant has continued to express anger at her treatment by her employer for being brought before the HCPC. She has failed to reflect on her professional responsibilities and the importance of honesty and integrity as a professional. The Registrant continually asserts her mistakes were naïve errors rather than dishonest acts. This perspective has prevented the Registrant from understanding her responsibility to address any deficits and to comply with the expectations of the reviewing panels.

for these reasons the Panel has concluded that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

further, the Panel is satisfied that a finding of impairment of fitness to practise is required in the wider public interest in order to maintain a proper degree of confidence in the Social Work profession and the regulation of it.

Turning to sanction, the third panel concluded that Miss Grant’s continuing lack of insight led to the conclusion that there was a significant risk of repetition. The third panel took the view that sanctions short of striking-off would serve no useful purpose as Miss Grant had:

In paragraph 14 of the ruling the third panel said that a striking-off order was:

Reason 1 stated:

Miss Grant’s difficulty here is that she did not appeal the decision of the first panel. In the absence of such an appeal, even if I were persuaded that Miss Grant genuinely believes that she did not act dishonestly, I am bound to proceed on the basis that in relation to use of the ZipCar account the first panel was right to hold that she did. Miss Grant has told me that she neither attended the first panel hearing, nor appealed its decision, because she could not get legal advice. Moreover, she was in acute personal difficulties caused by the impact on her of Kingston’s actions and the Council’s procedures, along with her inability to obtain child care. However, even if all these factors are taken at their highest, they cannot change the position: in the absence of an appeal the first panel’s findings must stand.

Today Miss Grant has sought to rely on a number of reasons for saying that the findings of dishonesty were wrong. It is simply too late for her to take this course.

What Miss Grant needed to do was to recognise that this was the position, and also to recognise that in circumstances where she did not attend the hearing the first panel did not have the benefit of evidence from her which might have led to a different conclusion. However nothing said by Miss Grant to the third panel demonstrated any recognition of these crucial features of the history.

Reason 2 stated:

Miss Grant had many complaints about Kingston. She added that the Council’s procedures prevented her from pursuing her claim against Kingston.

Reason 3 stated:

Miss Grant acknowledges that her appellant’s notice gave no particulars to support this assertion. She sought to give such particulars in a skeleton argument filed at a late stage, after the skeleton argument for the Council had been filed. I refused to allow an application by Miss Grant to amend the appellant’s notice in this regard. Not only did it come too late, it would also have required more detailed particularisation of what was relied upon, along with an opportunity for consideration of whether witness evidence would be required to meet it.

Reason 4 stated:

The decisions of each of the three panels are adverse to Miss Grant. All hold her to be a person who has acted dishonestly. But this is not harassment and humiliation. It is the result of a careful process in which Miss Grant has been given every opportunity to participate. It is right that she sought an adjournment of the second panel hearing, and that this was refused. The reasons given for that refusal, however, cannot be faulted.

Reason 5 stated:

Until the hearing today I was at a loss to understand this complaint. I had not found any assertion by the Council that Miss Grant was a “direct danger to the public”. At the hearing today Miss Grant relied on an exchange on 3 July 2018 in which the chairman of the third panel spoke of a role of protecting the public. As to that, the Council has the role of ensuring that the public can deal with social workers on the basis that they are honest and competent.

I have observed elsewhere in the context of impairment that it is not just past conduct that is relevant but also insight into what could be done in the future. This includes insight as to what could be done to prevent repetition of circumstances which led to what went wrong in the past: see Amao v Nursing and Midwifery Council [2014] EWHC 147, cited in Yusuff v General Medical Council [2018] EWHC 13 (Admin).

The regrettable fact in the present case is that Miss Grant has been found to be dishonest. Rather than acknowledging that finding and the reasons for it, Miss Grant’s response has been a blanket refusal to accept that anything could possibly have justified such a finding. Nothing said by Miss Grant to the third panel gave any indication that Miss Grant had insight into the circumstances which led to what went wrong in the past. Nor did anything she said suggest that she had insight into what could be done in the future to prevent conduct which might involve, or might be perceived as involving, dishonesty on her part. In these circumstances there is no merit in reason 5.

Reason 6 stated:

This criticism cannot stand in the light of my conclusions on reasons 1 to 5. I add that Miss Grant complained, under this head, that the third panel had stereotyped her as an “angry black woman”. She said she had not shouted or thrown things. But the panel did not say that she had done either of those things. To the extent that the panel recorded her as not being calm, Miss Grant accepted that she was not calm.

Reason 7 stated:

This criticism also cannot stand in the light of my conclusions on reasons 1 to

Reason 8 stated:

This is another criticism which cannot stand in the light of my conclusions on reasons 1 to 5.

Reason 9 stated:

Miss Grant explained orally that the “reflection-on-action” was what she had done in relation to the disciplinary proceedings by Kingston. Kingston had not found that there was dishonesty on her part. She had been content to move on in the expectation that this would not jeopardise her future career. What is relevant for present purposes, however, is what happened at the hearing before the third panel. At that hearing Miss Grant’s stance and conduct did not demonstrate any adequate reflection on her part as to what had gone wrong. In this regard I have particularly in mind Miss Grant’s reaction, described above, to the first panel’s conclusion that, while what happened in relation to nondisclosure of criminal convictions was attributable to naïvety on Miss Grant’s part, the evidence before the first panel of the use of the ZipCar, account, taken with inconsistencies in seeking to excuse what happened, was only consistent with dishonesty.

Reason 10 stated:

This criticism cannot stand in the light of my conclusions above.