Professional Standards Authority for Health and Social Care and (1) Social Work England and (2) JS [2023] EWHC 926 (Admin): A charging reminder to regulators

Background as per the Judgment

The Registrant was registered as a social worker and permanently employed by SCC in its Children and Young Person service. In about September 2016 the Registrant was diagnosed with bipolar affective disorder.

On 15 March 2017, the Registrant made a home visit in her capacity as social worker to a client at which it became apparent that she was under the influence of alcohol and a colleague reported the matter. On 28 March 2017, SCC referred the Registrant to the HCPC. The Registrant was suspended from work and subjected to disciplinary proceedings by the County Council. She subsequently resigned from her employment and has not worked as a social worker since.

On 7 November 2017, SCC’s Local Authority Designated Officer (“LADO”) received a referral in relation to the Registrant’s child. The referral set out concerns about the Registrant’s engagement with her family as a result of her alcoholism and her Bipolar, and the impact of her excessive drinking and cannabis use. The referral noted verbal abuse, threats by the Registrant to take her own life, made in front of her own children, and threats that she would drive with her children whilst under the influence of alcohol.

On 29 August 2019, in response to the referral regarding her child, the DBS included the Registrant in its Child Barred List and its Adult Barred List.

As part of the HCPC’s investigation the Registrant was assessed by a consultant psychiatrist who identified concerns regarding the Registrant’s alcohol and cannabis use and noted the Registrant’s diagnosis of bipolar effective disorder. He recommended that she abstain from alcohol and cannabis use for at least 12 months and her mental health be reassessed thereafter. Despite that recommendation, the Registrant did not respond to repeated attempts to arrange further follow up assessments in order to enable the preparation of an updated psychiatric report.

The HCPC then applied to transfer the fitness to practise proceedings from its Conduct and Competence Committee to its Health Committee. The Health and Care Professions Tribunal Service (“HCPTS”) decided that the allegation should be dealt with as a health matter, and not as a misconduct matter. In the course of its ruling, the HCPTS noted that the “misconduct allegation appeared to result directly from the Registrant’s health condition. The panel was satisfied that this matter would be more properly dealt with as a health matter.”

On 2 December 2019, SWE took over from the HSCPC responsibility for the fitness to practise proceedings concerning the Registrant.

Notably, the SWE is “a single decision-making body”, meaning that – unlike HCPC Committees – adjudicators are permitted to hear health, conduct and other allegations together.

Hearing before Social Work England

At a hearing on 20, 21 and 22 September 2022, the charges before the panel as proven were:

Allegation 1

By reason of your mental and or physical health as set out in Schedule A your fitness to practise as a social worker is impaired.

Schedule A. You suffer from bipolar affective disorder.

Allegation 2

Whilst registered as a social worker and whilst you were employed in Suffolk County Council you were subject to findings of the disclosure and barring service in that on 15 March 2017 you attended a home visit in your capacity as a social worker under the influence of alcohol and on dates prior to November 2017 you neglected the basic care and emotional needs of your children, which resulted in you being included in the disclosure and barring services, Children’s barred list and adult’s barred list. Your fitness to practise is impaired by reason of being included by the Disclosure and Barring service in a barred list.”

In respect of sanction [39]:

“70. The panel considered that a suspension order would be sufficient to protect the public because it would protect service users. It would give [the Registrant] the opportunity to engage with treating health professionals, and work towards the suggestions in Dr Isaac’s report for managing her health.”

“71. …The panel has also found impairment on the ground of [the Registrant’s] inclusion in the DBS Barring Lists and the panel therefore has the power to impose a removal order. The panel decided that a removal order would be disproportionate at this stage…”

“76. The panel decided that a suspension order of two years was appropriate and proportionate.”

Grounds of Appeal

The Appellant, the Professional Standards Authority for Health and Social Care (“the PSA”) appealed against those decisions on two grounds. It contended that:

i) the First Respondent was wrong to conclude that a suspension order was a sufficiently serious sanction to protect the public; and

ii) the decision was unjust because of a serious procedural or other irregularity, in that SWE failed to allege before the panel that the Registrant’s fitness to practise was impaired by reason of her misconduct.

Competing arguments

The parties were invited to address the grounds in reverse order because ground 2, which addressed the adequacy of the charging decision, would have a logical impact upon the appropriate sanction.

In support of ground 2, the Appellant argued that the conduct of the Registrant in respect of attendance at a home visit under the influence of alcohol, and neglect and abuse of her children, were matters that could have amounted to misconduct and, whilst they may have been connected to her health problems, there was no basis to conclude that they were entirely attributable to her health.

In support of ground 1, the Appellant argued that anything short of removal from the Register was insufficient to protect the public, and to maintain public confidence in the profession and proper professional standards.

In arguing against ground 2, Social Work England (“SWE”) submitted that there was no substantive omission to make relevant findings of fact nor to undertake the required level of analysis about what the Registrant had done or why she had done those things. A fair procedure had been used and the adjudicators fully considered the relevant factual circumstances concerning the Registrant’s fitness to practice in regard to both her health condition and the barring decision taken by the DBS. In respect of ground 2, SWE argued firstly that the statutory scheme prevents adjudicators from removing social workers solely for physical or mental health conditions unless they have been suspended continuously for two years, and secondly that regulators should show empathy and compassion towards social workers with chronic ill-health or disability so that they can be rehabilitated and serve the public in the future.

The Second Respondent was not represented and no arguments were advanced.

Decision of the High Court

The decision of Mr Justice Garnham, handed down on 25 April 2023, found the appeal successful on ground 1, but not on ground 2. He concluded that it was not the case that all conduct in issue in respect of allegation 1 was clearly as a result of the Registrant’s medical condition, confirming that “by no-one was it suggested that the Registrant’s misuse of drink and drugs could be a function of her Bipolar condition” [61]. Allegation 1 dealt only with the fact of the diagnosis of Bipolar and not the allegations of possible misconduct in attending a home visit whilst drunk. Allegation 2 relied solely upon the DBS findings surrounding neglect but did not require the panel to consider the facts that led to such findings. He thus determined that “the failure to charge misconduct, or at least to consider charging misconduct, was a serious procedural irregularity, the effect of which is that I am unable to determine whether the sanction was sufficient for the protection of the public or not. That being so, this appeal succeeds on ground 2, but not on ground 1” [71].

The proposed remedy of Mr Justice Garnham was to “quash the decision of 22 September 2022 and remit the matter to the First Respondent with a direction that it give close consideration to reformulating the allegations so as to include allegations of misconduct as to the Second Respondent’s attendance at the home visit on 15 March 2017 and as to the neglect of her own children. The matter should then be heard by a differently constituted panel” [72].

Commentary

This case serves as a reminder to regulators of the importance of ensuring that cases are appropriately charged in the first instance. Whilst there are of course scenarios where actions may be so intrinsically linked to a registrant’s health that it is not appropriate to charge misconduct, regulators must conduct a full analysis of any referrals made to them to identify whether actions that fall short of those expected in the profession are entirely as a result of that health condition or whether, in fact, they are in some way separate of that.

To take a practical example, it may well be conceivable that lapsing concentration resulting in documentation errors could be entirely attributed to a health condition suffered by an otherwise competent registrant. However, a lapse in professional judgement resulting in an inappropriate relationship being struck up between a registrant and someone to whom they owe regulatory responsibily is (probably) unlikely to arise entirely as a result of a health condition.

Careful assessment will be required to ensure that those registrants with health conditions are investigated and charged fairly by regulators, and there are any multitude of scenarios in which it can be envisaged that there will be blurred lines and grey areas. The instant case is not one such scenario, and whilst a matter of health was plainly apparent, so too were allegations of misconduct. To fall short of proper charging decisions could expose regulators to risk of reputational damage and, perhaps more concerning, the public to the risk of registrants remaining on the register when it is plain that their actions are incompatible with such a decision.

Regulators are also reminded that it may not always be appropriate to merely rely upon the findings of the Disclosure and Barring Service without allowing the regulatory proceedings themselves to fully explore the underlying facts of those decisions. As in the present case, often it is the underlying facts themselves that are crucial in determining the appropriate sanction in any given case, and the regulator themselves must, as an independent tribunal, explore allegations against a registrant fully if they are to maintain the confidence of the public.

The Judgment in full can be viewed here.