Orla Maire Gleeson – and – Social Work England [2024] EWHC 3 (Admin)

Case summary

Gleeson v SWE: The High Court revisits key principles across all stages of Fitness to Practise hearings

The High Court reaffirmed a number of key principles ranging from the particularisation of charges to important considerations at the sanction stage in the recent case of Orla Maire Gleeson v Social Work England [2024] EWHC 3 (Admin). While this was a Social Work England case, the principles apply equally to all healthcare regulators.

Background

The substantive case

The substantive case relates to a social worker, Orla Maire Gleeson (the Registrant), who was subject to Fitness to Practise proceedings before her professional regulator, now Social Work England (SWE). Following a 9-day hearing, the Registrant was found impaired by reason of her misconduct, which ultimately resulted in a removal order being imposed.

The first two allegations related to emotional and physical abuse by the Registrant against two of her ex-partners, Person A whom the Registrant had no connection professionally, and Person B, who worked for the same employer as the Registrant.

The charges alleged abuse between 2012 and 2015 against Person A, and between 2016 and 2017 against Person B. However, it was not in dispute that both of the Registrant’s relationships were volatile until their conclusions in 2015 and 2017 respectively.

The third allegation related to inappropriate social media posts made by the Registrant following her suspension by her employer arising from complaints made by Person B.

The Registrant denied all of the allegations.

The substantive panel’s finding on facts

Of the allegations, the charges relating to the emotional abuse of Person A were found proven, namely that the Registrant often became aggressive towards Person A and said ‘I’m thinking of ways I could kill you and get away with it’ or words to that effect.

In relation to Person B, the charges relating to physical abuse were found proven, namely that the Registrant pulled Person B out of bed and pushed Person B down the stairs.

The allegation relating to the inappropriate social media posts was also found proven, the Registrant having not disputed making the posts. The posts in question contained inappropriate material including foul language, and were considered disparaging of her employer and Person B.

The substantive panel’s finding on misconduct and impairment

The panel decided that the Registrant’s actions in relation to Person A and Person B amounted to serious professional misconduct, notwithstanding that they related to her private rather than her professional life.

In relation to Person A, the panel concluded the Registrant’s actions amounted to misconduct on the basis that: there was repeated emotional abuse often through aggressive behaviour; this caused the police to be called; Person A’s neighbour was caused to be alarmed; and the Registrant’s child and Person A’s child had actually or possibly been exposed to the behaviour.

In relation to Person B, the panel found the Registrant’s actions amounted to misconduct on the basis that, although it only related to one evening, it was a serious event which could have had serious consequences.

Regarding the social media posts, the panel found misconduct as this was inappropriate and irresponsible conduct with a direct bearing on the Registrant’s professional relationship with her employer.

The panel decided that the Registrant was currently impaired. The panel considered that there was a “concerning pattern of behaviour” over an extended period and that there was no evidence of any remediation, irrespective of the passage of time and character references / testimonials. In particular, the panel noted that there was evidence of an escalation of behaviour regarding Person B, which was inexcusable, so could not be satisfied that the misconduct was unlikely to be repeated. The panel made similar findings in relation to the social media posts.

The substantive panel’s finding on sanction

In light of its findings, the panel decided that a removal order was the appropriate sanction that met the level of impairment and was sufficient to meet the overarching objective of public protection.

The appeal

The Registrant appealed to the High Court against the panel’s findings on grounds that SWE’s decision to make a removal order against them was wrong and/or unjust because of a serious irregularity. In summary, the particulars of the appeal were:

i) The charges were inadequately particularised;

ii) The panel was wrong to restrict questions asked during cross-examination;

iii) The panel was wrong to find that emotional conduct, in non-professional relationships, was professional misconduct;

iv) It was wrong and unfair to allow SWE to amend charges after witnesses had given evidence;

v) The panel was wrong to accept and/or failed to give adequate reasons for accepting inconsistent evidence, and failed to have regard to evidence in favour of the Registrant;

vi) It was wrong and procedurally unfair to treat the denial of the allegations as evidence of lack of insight.

Decision

The High Court allowed the appeal and set aside the allegations found proven in relation to Person A, and refused the appeal in relation to the allegations relating to Person B. The findings in relation to the inappropriate social media posts were unchallenged. The court therefore remitted the matter back to a SWE panel for reconsideration of the allegations in relation to Person A.

Legal principles

The key considerations that are in this case are:

1. Particularisation of charges

The court confirmed that an allegation of professional misconduct must be adequately particularised so as to give the registrant a fair opportunity to prepare their defence: Squier v GMC [2015] EWHC 299 (Admin).

The court cited the longstanding case of Hutchinson v General Dental Council [2008] EWHC 2896 (Admin) at paragraphs 18 and 19 which provides:

i) In some cases the nature of the charges may make it impossible to be precise, but that charges should nonetheless be as precise as the nature of it allows;

ii) In such a case where the nature of the charges causes issue, the fundamental question is whether a fair trial was possible and took place;

iii) Panels should firmly keep in mind when reaching its findings on the evidence there may be a risk of prejudice to a Registrant caused by factors such as the time passed since the allegations and lack of specificity of charges.

It was held that charges will be considered adequately particularised where the statement of case, read as a whole and with the relevant cross-references to the witness statement and the supporting documentary references, provided the necessary detail.

Further, the court held that it was not properly open to the panel to make findings above and beyond what was contained in the statement of case (in the absence of amendment).

Therefore, it held it was procedurally unfair and wrong for the panel to rely on information in support of its finding where it was not referred to as being relied upon as part of that allegation.

2. Amending charges after evidence

PSA v HCPC and Doree [2017] EWCA Civ 319 is the leading authority that a panel may amend an allegation even at a late stage to avoid injustice. Further, the relevant Fitness to Practise Rules give panels the power to regulate proceedings, which includes the power to amend the allegation, subject to requirements of fairness.

In this case, the court noted that SWE’s statement of case aligned with the evidence, and although the charge lacked some clarity, the essential nature of the complaint was clear and the actual evidence did not materially change the statement of case, nor cause the Registrant any prejudice in defending herself.

Therefore, the court did not find that it was wrong and unfair for the regulator to amend the allegation after the witnesses had given evidence.

3. Restriction of cross-examination questions

The court, at para 68, accepted that under the relevant Fitness to Practise Rules “the panel was entitled to regulate their own procedures and conduct the hearing in a manner they consider fair.” 

Further, it accepted that “any court or tribunal is entitled to set timetables for cross-examination and ensure reasonable compliance with those timetables and to exclude irrelevancies and discourage repetition… An appeal should only be allowed on grounds of inappropriate intervention in cross examination where it resulted in actual unfairness.”

In this case, the court found that the panel had not in any event restricted the questions being put to a witness, but had simply reminded the advocate to remain within the agreed timetable for cross-examination and to focus on the allegations.

4. Panels accepting inconsistencies in evidence

In relation to the panels accepting evidence in spite of inconsistencies between live evidence and contemporaneous evidence, Davies J stated that “there is an obvious difference between treating evidence with some caution and placing no weight upon it.”

The court relied on the cases of Southall v General Medical Council [2010] EWCA Civ 407 at paragraph 47 that provides that challenges to findings of primary fact are “virtually unassailable”, particularly if founded upon an assessment of the credibility of witnesses, and Byrne v GMC [2021] EWHC 2237 (Admin) at paragraphs 12 to 27.

The court held that in the absence of any supporting evidence or other contemporaneous documentary evidence, it was simply not properly or safely open to the panel to find “stale, vague and hopelessly general sub-allegations” proved based on documentary evidence that did not provide a proper evidential basis.

The court further clarified that “allegations, forming part of the statement of case, should not be read as if they were part of a statute or as an indictment in a criminal case”. It needs to considered in the light of the wording of the allegations overall, and in the context of other allegations found proved.

Therefore, the court held that the panel’s findings in relation to Person A were made procedurally unfairly and wrongly, and should be quashed. However, the court found that the panel’s findings in relation to Person B must stand.

5. Jurisdiction and Private matters subject to professional misconduct allegations

The court affirmed the principle that a professional’s private behaviour may fall within the regulators jurisdiction where it carries implications for public confidence in the profession or the individual’s professional reputation.

In relation to whether non-professional relationships amount to “professional misconduct”, the court referred to the longstanding case of Roylance v GMC (No 2) [2000] 1 AC 311 which defines it as some act or omission which falls short of what would be proper in the circumstances, is linked to the profession, and is serious. The court caveated this with the well-established principle that acts committed in a professional’s private life may amount to misconduct where it has a sufficient impact on their professional reputation or that of the profession as a whole (R (Remedy UK Limited) v General Medical Council [2010] EWHC 1245 (Admin)), which is reflected in the relevant professional codes of conduct.

The court accepted the principles in Beckwith v SRA [2020] EWHC 3231 (Admin) that it is necessary to focus on the particular statutory and regulatory provisions applicable to a particular profession, rather than attempt some universal statement of principle, and that there is a need to hold members of a profession to a higher standard on some matters, while not falling into the trap of requiring members of that profession to be paragons of virtue in all matters.

In this case, the court held that it does not necessarily follow that social workers are required to be paragons of virtue in their private life in relation to all of their relationships, including consensual relationships with adults of full capacity. However, Davies J was clear at para 106 that “what is and what is not [capable of falling on the wrong side of the line into professional misconduct] will be very fact and context specific”.

Therefore, the court decided that the panel was entirely justified in enquiring into the allegations that arose in the Registrant’s private life on the basis that they were capable of amounting to serious professional misconduct. However, panels have to be careful to ensure they do not exceed the ambit of their jurisdiction in findings by crossing the line between conduct that people might not approve of and conduct that is so disgraceful that it impacts the public’s confidence in a Registrant or in the professions.

In this case, the court ultimately held that, but for the allegations of physical assault, the Registrant’s private relationships generally should not have been the subject of a professional misconduct allegation.

6. Denial as evidence of lack of insight and Sanction

Finally, the High Court considered the issues of insight and remediation, and held it was not wrong and procedurally unfair for the panel to treat the Registrant’s denial of the allegations as evidence of a lack of insight.

The court accepted that while denial of allegations is not a reason to impose a harsher sanction, it does make it more difficult for a Registrant to demonstrate insight and persuade the panel that the relevant conduct will not be repeated.

The court considered the case of Sayer v General Osteopathic Council [2021] EWHC 370 (Admin) where Morris J, at para 25, refers to a number of key principles:

i) Insight is concerned with future risk of repetition. To this extent, it is to be distinguished from remorse for the past conduct;

ii) Denial of misconduct is not a reason to increase sanction;

iii) It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it;

iv) However, attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight;

v) The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere.

The court therefore found that the panel did not adopt an incorrect approach as it was entitled to have regard to the evidence that was before it, and to the absence of evidence, as to insight and risk of repetition, which did not have to involve an admission of guilt.

In this case, the court accepted that in the absence of an admission, it was imperative for the Registrant to demonstrate by other means that she had understood the seriousness of the allegations and had taken steps to ensure that similar conduct would not occur in the future, which she had not.

In relation to sanction, Davies J expressed concerns that panels following the Sanctions Guidance “loyally but inflexibly, and without stepping back and looking at all of the circumstances” may result in it imposing harsher sanctions that would not otherwise be justified.

In this particular case, Davies J noted that a future panel when considering sanction should be alive to factors such as the positive evidence of the registrant’s performance of professional duties, the absence of any cross-over from personal to professional life, and the limited nature of the allegations found proved over an extended period of time when compared to the absence of any repetition since the incident.

Therefore panels should consider cases as a whole, even in the absence of sufficient insight and remediation, to ensure that cases that are otherwise suitable for suspension are not being met with removal had all of the circumstances been properly considered.