Rosalind Shaw v GSCC

This was an appeal against a decision by the GSCC Conduct Committee to refuse an application to adjourn a hearing. That decision was made on the first day of a four day hearing the purpose of which was to determine whether or not the appellant, Miss Rosalind Shaw had been guilty of misconduct and, if so, what the appropriate penalty should be. Miss Shaw was neither present nor represented at that hearing.

She appealed to this tribunal against the decision of Conduct Committee. Her appeal form is undated but there is a covering letter dated 21^st October 2009. The case was set down for hearing on 12^th and 13^th July 2010.

On 25^th June 2010 there was a directions hearing before Tribunal Judge Nancy Hillier. At that hearing the parties agreed that “the hearing listed on 12^th and 13^th July 2010 shall be limited to the issue of whether the conduct committee should have held a hearing on 28^th September 2009 in the absence of the applicant.” They further agreed that if the appellant’s succeeded on that point, the matter would be “remitted by consent for re-hearing by the conduct committee.” If, however, she did not succeed, directions for the remainder of her appeal would be considered on 12^th or 13^th July.

Thus the issue before us was solely in relation to the decision to proceed with the hearing of the complaint against Miss Shaw in her absence. We were not, at this stage, concerned with the hearing of the complaint itself.

Care Standards Act 2000

GSCC Conduct Rules 2003

Our bundles contained a number of case reports of which the following were relied upon in submissions:

In January 2004 the appellant began working for the London Borough of Waltham Forest (Waltham Forest) as a social worker. The following May they asked her to apply for another job setting up a new project and in June she started that job on a probationary basis. Problems arose and in May 2005 Waltham Forest terminated her probationary period. In June 2006 they made a complaint about her to the GSCC.

That complaint was first considered by the Preliminary Proceedings Committee in September 2006. They decided that the concerns raised were sufficiently serious to warrant a hearing to decide whether there should be an interim suspension order (ISO), pending a fuller investigation and final determination of the complaint. That interim hearing took place in March 2007.

Miss Shaw attended the hearing and she and a witness, Mr Ray Bellas, gave evidence to the Committee. Mr Bellas is a Trade Union official and a friend of Miss Shaw.

The Committee found Mr Bellas to be a “credible witness” although they said that the evidence of Miss Shaw “lacked focus”. They also found that there “may have been a clash of personalities between the registrant and her manager Ms Vincent.” They decided not to impose an ISO.

There was then a long gap and it was not until 11^th February 2009, nearly two years later, that she was notified of a forthcoming hearing. She says that in the interim she had been trying to find out what was happening about the complaint against her. She had written a number of letters to the respondent which had either not been answered or “not definitely responded to”. She had been in touch with a BASW (British Association of Social Workers) official who had also made enquiries on her behalf. He had been told that the GSCC had staffing problems and that her case had had to be re-allocated to a new caseworker.

There was a pre-hearing review conducted by telephone on April 22^nd. Miss Shaw said she was “unable to attend for personal reasons.” However, she sent a letter, dated April 18^th which, she wrote, set out her responses to the points set out in the agenda for the meeting.

At the pre-hearing review directions were made in preparation for the hearing. The respondent’s representative was to comply with their directions and provide their documents to the “Registrant/the Registrant’s representative” by May 18^th. The “Registrant, or his/her representative” was to comply with their directions and provide their documents by June 15^th and to provide details of their own and their witnesses’ availability between July and September 2009.

The respondent’s solicitors, Field Fisher Waterhouse (FFW), were granted an extension of one month to comply with the direction so it was not until June 17^th that they sent Miss Shaw their proposed bundle of documents, together with a table of allegations and the names of their witnesses. The covering letter was also sent to her by email.

Miss Shaw had difficulty downloading the email and on June 20^th she emailed a Mr Hencox, a GSCC Committee Clerk with whom she had been in contact to inform him of this. On July 4^th she emailed him again. She attached a statement which consisted of a brief point by point response to the allegations. It ended: “Thank you for your attention. Please consider this a final statement.” This attachment, which was shown to us, was clearly an incomplete document. It was headed, “Draft” and “TO WHOM...” and a number of documents were referred to followed by gaps where further details or dates should have been inserted.

The next document in our bundle was dated 16^th September, over two months later. It was a letter from FFW to Mr Bellas, the union official who had given evidence at the ISO hearing in March 2007. He had agreed to receive documents on Miss Shaw’s behalf at the union offices. Mr Rider, who had taken over the case from another solicitor, wrote: “I understand that you are representing Miss Shaw” and queried “several outstanding matters on which we have not heard from you.”

At this stage the hearing was due to begin in only eight days’ time. There followed various communications between Mr Bellas and Mr Rider. In an email dated September 23^rd Mr Bellas informed Mr Rider that Ms Shaw was unlikely to be attending the hearing because “her aged mother is ill in Southampton” but it was not until the afternoon of September 24^th that Mr Rider finally became aware that Mr Bellas was not representing Miss Shaw and that in fact she was unrepresented. By this time there was only one clear working day until the hearing.

Mr Rider emailed Miss Shaw. He wrote:

“If you are not intending to be present at the hearing starting on Monday, are you content for the hearing to proceed in your absence? Alternatively are you applying for an adjournment of the hearing?

If you are applying for an adjournment, you will need to do so immediately in writing (email would suffice)...setting out your reasons, the length of the postponement sought and providing any supporting documentation (for example a doctor’s report in relation to your mother.)

I doubt whether there is now time for the Chairman to adjudicate on any such application before Monday and that it is more likely that the application would have to be considered by the Conduct Committee itself at the beginning of the hearing on Monday. You will appreciate that it is possible that the Conduct Committee would refuse your application, and in that event the Committee would have the power to proceed with the substantive hearing of the case in your absence.”

Miss Shaw responded in the early hours of the following day. She said:

“I am requesting an adjournment of this hearing arranged for next week by the gscc. I hope this can be arranged.

My father only recently died after long illnesses; I am now and have been for a while a full time carer for both persons and am now to my 95 year old mother whose health is deteriorating rapidly, about which there is grave concern. This commitment is additionally located outside London. You will I am sure comprehend why attendance is not possible, nor additional attention to the issues, raised 4 years ago. Please accept this as a formal request; I accept your earlier comment today about the possible options. My GP will forward a letter to you I am sure.

Mr Hancox was already aware of my complex and difficult position over some period of time. I did keep the GSCC informed.”

The hearing was duly convened on September 28^th 2009 with a time estimate of four days. Miss Shaw did not attend and the Conduct Committee first considered whether to proceed in her absence. Mr Rider the presenting officer, invited them to do so. He referred them to the case of R v Jones [2003] 1AC, 1HL and handed them a brief summary of that case as set out in Archbold. The summary included what is described as a “checklist of matters relevant to the exercise of the discretion” and Mr Rider went on to address each one in turn. He provided them with a transcript of the ISO hearing in March 2007, which included a record of Miss Shaw’s evidence at that hearing, together with documentation containing comments made by Miss Shaw over the course of her communications with the GSCC, about the allegations.

The Committee retired to consider the matter and their decision, on their return, was to refuse the adjournment. They then adjourned for lunch instructing their clerk to send Miss Shaw an email, informing her of their decision, and advising her that they would begin hearing evidence the following day, should she now wish to attend.

Over the next two days the Committee heard evidence from four witnesses and the outcome was that they found Miss Shaw to have breached the Codes of Practice in a number of respects and to be guilty of misconduct. They decided that the appropriate sanction was to remove her name from the register.

Some time after that the GSCC received a letter from Miss Shaw’s doctor, dated 2^nd October 2010. He said that she had “been under severe stress recently” due to the illness and death of her parents and her own responsibilities as their carer.

Miss Shaw’s mother died in October 2010.

We heard oral evidence from Miss Shaw and from two witnesses who gave evidence on her behalf.

Miss Shaw told us that she had not been represented at any time during the course of these proceedings although she had been helped and advised by Ray Bellas, a UNISON official, and Terry Dadswell and later Lily Robertson, advisers from the British Association of Social Workers (BASW). Unfortunately she had not been a member of BASW for long enough to qualify for representation. Throughout this period she had kept in touch with the GSCC. During the two years between the ISO hearing and the substantive hearing she had written them a number of letters which, she said, were “never acknowledged or definitely responded to.” Mr Dadswell had also made enquiries on her behalf about the delay. She felt there had been “no meaningful engagement with myself on any of the matters they were investigating.”

In February 2009 she had given up work to care for her parents. Her mother was immobile due to a brain injury and she described her as “totally dependent”. Her father, who had previously cared for his wife, had himself become too ill to do so. A sister, who would have been available to share these caring responsibilities was unable to help because she was “having a depressive breakdown” due to the loss of her own husband who had died at around that time.

As a carer for her parents Miss Shaw had moved between her own home in North London and their home in Windsor, sometimes staying in bed and breakfast accommodation in Windsor when her father became angry, making it impossible for her to remain in the house, even though both parents relied on her for daily tasks. She told us that at one point she had left them to go on holiday in Italy in early July, leaving her mother in the care of one of her sisters. However, she had had to return after three days as her mother had had a fall.

In relation to the Pre Hearing Review on April 22^nd she said that she would have found it difficult to deal with a telephone hearing and had informed them that she would not be attending.

Her father had died on June 16^th.

In September her mother had been moved to a residential home in Southampton. This had been organised by a sister who lived in Southampton. Miss Shaw believed that her mother’s wish was to remain in her own home and to die there and that she had been moved against her will and she became involved in a bitter dispute with her sister about this.

Because of her concerns about her mother she had felt it necessary to move to Southampton herself and to be more or less constantly at her side, although she had felt able to leave her for a day to go to her GP in London for an annual blood test.

Access to emails had been difficult, though not impossible, and she had also been able to communicate using her mobile telephone. However, the fact that she had spending considerable periods of time away from her own home, living and staying in various places since the previous February, had contributed to her difficulties in engaging in the preparations for the Conduct Committee Hearing. She had also been pre-occupied with family matters and in a state of stress and anxiety.

In answer to questions put to her by Miss Tahta in cross examination she said: “I was not giving up, but I was not clicking in to the issues... Part of me just didn’t want to deal with it.”

Miriam Battle, a friend, who gave evidence on Miss Shaw’s behalf described her at that time as “tearful, angry, unsupported, not sleeping or coping.”

Jan Thomas, another friend, told us that Miss Shaw had had “massive responsibilities, over and above most people I’ve ever known.”

Prior to making their final submissions Miss Tahta informed the tribunal that she and Mr Gloag had been able to narrow the issues between them. They were now agreed that the Conduct Committee had been right to make the decision not to adjourn at the time but that we needed to reconsider the matter in the light of any evidence which had subsequently become available to us. She further asked us to make a finding that the Committee had made the right decision, given the evidence before them at that time.

This agreement between the parties was, she told us, based on the case of Baba v The General Medical Council [2001] WL 483009. In that case the appellant was present at the GMC hearing but counsel representing him had asked for an adjournment on the basis that his client was unwell. That application was supported by a letter from his GP. The GMC had refused the application and Dr Baba then appealed to the Privy Council against the decision not to adjourn. At the appeal hearing further medical evidence, which had not been available to the panel at the time, was produced. The court found that: “the Board cannot criticise the Committee’s decision to refuse an adjournment.” The medical evidence then available to them: “fell far short of what was needed to support such an application at such a stage.” However, they went on to find that: “The medical evidence now before the Board does, however, raise a real question whether Dr Baba was, at the time of the hearing, in a fit state to give coherent instructions.” This being so, they found that there was a risk of injustice which should be resolved by remitting the matter for a fresh hearing.

She said that she and Mr Gloag were now inviting us to proceed on a similar basis. She asked us to make a finding that the Committee had made the right decision, given the evidence before them, and then to re-consider the application to adjourn in the light of any subsequent evidence now available to us.

Mr Gloag argued that “no reasonable tribunal” could have proceeded in the absence of Miss Shaw or a representative, “knowing what we now know”. He drew our attention to the delays caused by the GSCC itself and submitted that Miss Shaw was not capable of dealing with the matter between February and the September hearing due to the effects on her of the stress of caring for her dying parents. He said that she had engaged consistently in the process for a period of four years and that it was only in the months leading up to the final hearing that her engagement had faltered.

He submitted that in considering the application to adjourn we were not limited to the consideration of her mental or physical condition.

Miss Tahta argued that Miss Shaw had known about the date of the hearing and was aware that the Committee had the power to hear the case in her absence. Her application to adjourn gave no details as to where she was or whether she had tried to make arrangements for someone else to visit her mother at the residential home. She had always been made aware that she would be required to produce medical evidence if health was an issue and in any event there was no suggestion that she herself had been mentally or physically unable to attend the hearing.

Her father had died in June and the hearing was in late September, so it could not be said that her bereavement was very recent and she had had time since then to put arrangements in place to attend the hearing.

She should have served all her documents some two months before the hearing. The fact that she had not done so was not due to illness but because she was not an organised person.

The fact that practical problems had caused difficulties for her was not a sufficient reason to grant a last minute adjournment. She should have provided evidence of her mother’s state of health. It was not true to say, as she had done in her adjournment application to the committee, that she was a full-time carer since her mother was in residential care. Nor was it right to say that she the only person available to sit with her as her sister in Southampton was also available visit their mother. She had also been able to travel to London to see her GP, shortly before the hearing, even though this had meant spending the day away from her mother. She had exaggerated the practical difficulties.

So far as her mental state was concerned she had been sufficiently clear headed to deal with complex issues arising out of her dispute with her sister over her mother’s care. Her priority was fighting for her mother and the real reason for her failure to deal with the hearing was that she did not want to.

She referred us to the case of R. (on the application of Tinsa) v General Medical Council [2008] EWHC 1284 (Admin). In that case the appellant had sought to rely on medical evidence obtained after his case had been determined by the GMC, to show that he had not been mentally fit enough to deal with the hearing at that time, following the principle set out in Baba v GMC (see paragraph 39 above). His appeal was dismissed on the basis that the court was not persuaded by the new medical evidence that he had been unfit at the relevant time. In Miss Shaw’s case, she argued, there was no medical evidence whatever to support her application to adjourn.

Nevertheless Miss Tahta acknowledged that it had been a very difficult time for Miss Shaw.

S68(2) of the Care Standards Act 2000 states that, “On an appeal against a decision the Tribunal may confirm the decision or direct that it shall not have effect.” This confers a wide jurisdiction and permits this tribunal either to reconsider afresh matters previously adjudicated upon by the respondent or, in appropriate cases, to restrict itself simply to reviewing the original decision.

In this case we see no reason why we should limit ourselves to a review procedure, especially as the pre-hearing Directions made by Tribunal Judge Hillier on 25^th June 2010 recorded that the parties had agreed that “the hearing listed on 12^th and 13^th July 2010 shall be limited to the issue of whether the conduct committee should have held a hearing on 28^th September 2009 in the absence of the Applicant.” There was no suggestion there that we were to confine ourselves to the much more limited question of whether or not any reasonable panel could have proceeded to hear the case in her absence.

We considered whether the agreement in relation to the issues which Miss Tahta had informed us of prior to submissions meant that it would be more appropriate for the tribunal to limit itself to that of a reviewing body. However, neither party submitted that it should have such an effect. Indeed, both accepted that the tribunal was entitled to take account of matters which were not before the decision making body, which could only be part of a full re-consideration of the matter.

We have therefore dealt with this appeal in the usual way, that is, by means of a re-hearing of the application to adjourn, taking into account matters which were before the Conduct Committee when they made their decision as well as the additional evidence which has subsequently been made available.

The issue before us is to decide whether or not the respondent was right to proceed with the hearing in Miss Shaw’s absence, taking into account all of the evidence.

Relevant criteria in decisions about adjournments are set out in the case of R v Jones (Anthony) [2003] 1 A.C. 1 H.L. and this was the case to which the Conduct Committee were referred when they made their decision to refuse the adjournment. It is a leading case on the issue and provides valuable guidance, endorsed by the House of Lords. We think it appropriate to follow the same criteria.

This was a case against a decision in a criminal case to proceed in the absence of the defendant. The trial had already been adjourned twice, the first time on the application of the defence and the second time following the defendant’s failure to appear, having not surrendered to bail. At this point his legal representatives had withdrawn from the case so that when the hearing finally proceeded he was neither present nor represented.

The case came before the Court of Appeal who upheld the decision of the first instance judge. They drew up a list of relevant matters to consider, along with all the circumstances of the case, when deciding whether or not to adjourn. Their decision was confirmed by the House of Lords who approved all but one of the matters listed. Their Lordships also provided additional guidance on the issue of adjournments.

We list below the principles set out in Jones indicating how we have applied each one in the case before us.

The court held that “the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution” and “with close regard to the overall fairness of the proceedings.” Lord Rodgers of Earlsferry further observed that in Jones, “the first thing to notice is...that in deciding to go ahead with the trial, the judge exercised a discretion which under English law will only rarely result in proceedings being taken in the absence of a defendant.”

We therefore took into account at the outset that any decision as to whether to proceed in Miss Shaw’s absence was one to be exercised with “the utmost caution.” In Jones the judge at first instance had clearly taken a cautious approach as there had already been two previous adjournments. At the first adjourned hearing the defendant simply did not appear, despite being on bail. Nevertheless the hearing did not proceed on that occasion and the case was adjourned for a second time. This is to be contrasted with Miss Shaw’s case in which there had been no previous adjournments.

This is not a case where it can be said that the Registrant did not wish to be present, since she had asked for an adjournment. It is true that her request was made very late in the day but this was at least partly due to the fact that the respondent’s solicitors had only realised that she was unrepresented shortly before the hearing. As soon as they contacted her directly she responded.

Although she had failed to comply with the directions made at pre-hearing review on 22^nd April, she had nevertheless maintained some contact and engagement throughout the long period since the original complaint. Indeed she herself complained about the respondent’s failure to answer or acknowledge her communications throughout that period. In the bundle of documents evidencing the communication between the parties between April 2009 and the hearing there are also emails in which she refers to unanswered communications. For instance, in an email dated June 20^th she writes, “I have not yet received a reply to my previous correspondence (letter to GSCC) which must be some oversight.”

She had attended the ISO hearing. Thereafter she had provided written responses to the allegations, although these often appeared confused and difficult to follow.

However, by the time of the hearing before the Conduct Committee she was in a state of stress and anxiety due to a series of family crises. These, unfortunately, co-incided with the period of time when she should have been preparing her case and attending the hearing of the complaint against her.

Her main responsibilities at that time are set out by her doctor in his letter to the Conduct Committee. It confirms that she was caring for two terminally ill parents in their 90s, one of whom was immobilised due to a brain injury, while the other was suffering from prostate cancer, a stroke and heart failure. The doctor wrote that because of this she had been under “severe stress recently” and this was supported by her own evidence and the evidence of her two friends.

It is true that there is no medical evidence to suggest that Miss Shaw was suffering from a recognised mental or physical illness either at the time of the hearing or in the months leading up to it and that it would have been possible for her to engage more fully with the proceedings had she chosen to prioritise them, rather than concentrating on her responsibilities, as she saw them, to her parents.

However her circumstances at that time were clearly exceptional and were further complicated by the fact that towards the end of the relevant period, and at the time of the hearing, she was in conflict with siblings because of a dispute over their mother’s wishes.

Miss Shaw’s application to adjourn gave no indication as to any future date when she would be able to attend. She herself did not know how long her mother would survive or what would the outcome of her dispute with her siblings, so it would have been difficult for her to provide that information.

Mr Rider submitted to the Committee that in applying to adjourn Miss Shaw was simply “seeking to put off the evil day of this hearing this week.” No evidence, however, was given to support this statement and we find that without exploring the matter further there was no way of knowing whether or not this was the case.

On the basis of the information we now have, nearly a year later, it is clear that she would have no problem in providing dates for an adjourned hearing before the Conduct Committee.

In Miss Shaw’s case, in contrast with the case of Jones, she had no automatic right to representation. However, this is often the case in civil proceedings of this kind, unless representation is available as a benefit of trade union or professional membership, or there is enough money to pay for it. It is therefore more likely that a Registrant will be unrepresented and that if she also fails to attend the hearing, a decision will be made to proceed in her absence.

Miss Shaw’s evidence to us was that she was unable to obtain free representation because she was three weeks’ short of the necessary membership period and that she could not afford to pay for representation because she was “broke”.

Mr Bellas had given evidence on Miss Shaw’s behalf to the PPC at the ISO hearing. They found him to be “a credible witness”. They “accepted his evidence that there were deficiencies within the adult services section of the London Borough of Waltham Forest” and that it “did not follow its own guidelines or the national service framework. “ They also found that “there may have been a clash of personalities between the Registrant and her manager Miss Vincent.”

Prior to making their decision about whether to proceed in Miss Shaw’s absence, the Conduct Committee were provided with a transcript of the earlier PPC proceedings and written representations which Miss Shaw had submitted as her evidence in these proceedings. Mr Rider specifically directed them to certain parts of that evidence.

At the substantive hearing the Conduct Committee heard from four witnesses. Their principal witness was Miss Vincent, who was Miss Shaw’s manager at the time and whose evidence could have been affected by the “personality clash” referred to by the PPC in their earlier findings. There were no witnesses on Miss Shaw’s behalf.

The evidence before the Conduct Committee was, inevitably, likely to be weighted against her and this made it particularly important that the hearing itself be conducted in such a way as to rebalance the situation.

In Jones Lord Hutton found that “the position of the appellant was adequately safeguarded ...by the fair and careful way in which the judge and also prosecuting counsel, conducted the trial...” We therefore considered whether the position of Miss Shaw at the Conduct Committee hearing had been “adequately safeguarded.”

At the hearing of the complaint against Miss Shaw Mr Rider presented the case to Committee. He introduced himself at the outset as “the Presenting Officer”. Paragraph 2 of the 2003 Conduct Rules defines the “the Presenter”: “the person acting on behalf of the Council at a hearing.”

In fulfilling this role Mr Rider mainly concentrated on presenting the case against Miss Shaw. In relation to the application to adjourn he submitted that the Committee should not adjourn. Later, when they had made their findings of fact he submitted that they should go on to make findings of misconduct. In relation to the appropriate sanction to be imposed he emphasised in his submissions the gravity of the misconduct.

Mr Rider did, at times, remind the Committee of the need to consider Miss Shaw’s position. For instance, at one point during the hearing he said that they should “take particular care when considering the position of the Registrant who has not attended this hearing and who is not represented” The Committee also received advice on the law from their Legal Adviser.

Mr Rider also reminded them of the need to consider mitigating factors in decided what sanction to impose. He offered to address the Committee in relation to this before they retired to consider the matter. The Chairman declined his offer. He said “Thank you Mr Rider, we will find those for ourselves.”

There have already been significant delays in dealing with the complaint against Miss Shaw.

London Borough of Waltham Forest did not make their complaint to the GSCC until June 2006, more than a year after the behaviour complained of. We do not know the reason for this. There was period of a further 9 months between the laying of the complaint and the hearing of the PPC in March 2007, to consider whether or not to impose an ISO. It then took the GSCC nearly two years to investigate the matter before deciding to proceed to the hearing which was set down for September 2009. There was therefore a period of over four years between the matters complained of and the hearing.

Such a delay is clearly neither in the public interest nor helpful to witnesses, but Miss Shaw was not to blame for it.

In our view she did not waive her right to be present. In the case of Jones there had been two previous adjournments. At the first adjourned hearing the defendant simply did not appear because he had failed to surrender to bail and the court only decided to proceed in his absence when this happened for a second time. In Miss Shaw’s case there had been no previous adjournments and she had continued to engage with the process over a long period of time. She sought an adjournment of the hearing and gave an explanation of her reasons for the request.

She was going through a period of exceptional stress and her decision to prioritise her responsibilities to her parents rather than dealing with the hearing of the complaint against her was not, in our view, an unreasonable one.

At the time of the hearing, and in the absence of any further contact with Miss Shaw to clarify the matter, this could only be a matter of speculation. However, the current position is clear. Miss Shaw is now represented and says she is committed to defending the allegations.

Therefore an adjournment would resolve the matter.

She did wish to be represented. She had tried to obtain representation from BASW but was had been unable do so and she said she could not afford to pay for representation.

She was clearly disadvantaged. The fact that she was neither present nor represented meant that the hearing was inevitably one-sided.

There have been significant and delays in this case. However, most of those delays, and any adverse consequences flowing from them, were not Miss Shaw’s fault and it would be unfair to penalise her for them.

Taking all these matters into consideration, and in accordance with the general principle as set out in Jones, that the discretion to proceed in a defendant’s absence should be exercised “with the utmost care and caution” our decision is to allow this appeal.

The hearing of the complaint against Miss Shaw is therefore to be remitted to the Conduct Committee for re-hearing, pursuant to the agreement set out in the Directions Hearing of 25^th June 2010.