IN THE CARE TRIBUNAL

Between

Pauline McKenna (Appellant)

and

Northern Ireland Social Care Council (Respondent)

Before Diane Drennan (Chairman)

Panel members: Monica Culbert and Jim McCall

Hearing held at the Tribunal Hearing Centre, Bedford House, Belfast on the 30th January 2012.

Appeal

  1. Pauline McKenna (‘the appellant’)  appeals under s.15 of the Health and Personal Social Services Act (Northern Ireland) 2001 against the decision of the Conduct Committee of the Northern Ireland Social Care Council (NISCC) of 23rd and 24th August 2011, which imposed a nine month suspension order upon her registration as a social worker.

Representation

  1. The appellant was represented by Mr Mark McEvoy of Counsel and the respondent by Ms Dorcas Crawford, solicitor.

Preliminary Hearing

  1. At a preliminary hearing on 18th November 2011, attended by the above named representatives, directions were made by Tribunal Chairman Mr Harry Black, dealing with the exchange of documents, the preparation of a Tribunal bundle and the fixing of hearing dates.

The Law

  1. Section 3(1) of the Health and Personal Social Services Act (Northern Ireland) 2001 requires the respondent to maintain a register of social workers. Section 6 of the Act permits the respondent to determine the circumstances in which and the means by which a person can be sanctioned in relation to their registration or removed from the register.
  1. The relevant rules are the NISCC (Conduct) Rules 2007 (‘the 2007 Rules’) which define misconduct in Rule 2(1) as conduct which calls into question “the suitability of the Registrant to remain on the register”.
  1. The available sanctions upon a finding of misconduct are set out in paragraph 25 of Schedule 2 of the 2007 Rules as follows:

                  i.        Admonishment, a note of which can remain on the register for 5 years.

                ii.        A suspension Order for a maximum term of 2 years.

               iii.        A removal Order

               iv.        Power to revoke an interim suspension Order

  1. When deciding what sanction to be imposed the Committee must take into account :

                  i.        The seriousness of the Registrant’s misconduct;

                ii.        the protection of the public

               iii.        the public interest in maintaining confidence in social care services

               iv.        the issue of proportionality

  1. Section 15 of the Health and Personal Social Services Act (Northern Ireland) 2001 provides a right of appeal to the Care Tribunal from a decision of the NISCC. Section 15(3) states that: “On an appeal against a decision, the Care Tribunal may confirm the decision or direct that it shall not have effect”. Section 15(4) provides power to vary conditions which may have been placed on decisions, to make directions about such conditions and to set out conditions. By s.15 (5), the NISCC shall comply with any direction given by the Care Tribunal under this section.

Standard of Proof

9.      The standard of proof is the civil standard, that is, the balance of probability, as defined in Re H [1996] 563 at paragraph 73: “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not”.

Background

  1. The appellant was employed as a social worker with the South Eastern Health & Social Care Trust from 1999, having worked in the social care sector from 1981. In February 2006, she was appointed to a position as a senior social work practitioner in the Family & Childcare team in Stewartstown Road Health Centre.
  1. In late 2006, it came to the attention of the Trust that there were problems with the appellant’s work. These problems resulted in the appellant being supervised and mentored by a member of the management team and her work improved. In January 2008, similar performance issues emerged and in September 2008, the Trust commenced disciplinary proceedings.
  1. Ultimately, it was found (as set out in a letter dated 2nd June 2009 from the Trust to the appellant) that the appellant had seriously breached Trust policies and procedures and that she had brought the Trust into disrepute. The appellant was found guilty of gross misconduct. However, as a result of mitigating factors, including health issues, she was not dismissed but was moved to another area of the Trust as a residential social worker. She was demoted by two grades and given a final warning to remain on her record for two years. The warning expired on 2nd June 2011.
  1. Nine charges of misconduct were made against the appellant relating to her employment as a social worker with the South Eastern Health & Social Care Trust, as follows:

                      i.        That despite the fact that Service User A’s own child was on the Child Protection Register, the appellant agreed that A should care for her sister’s child.

                    ii.        The appellant permitted a father (Service User B) under investigation for sexual abuse to reside at a house where children were living and failed to implement child protection policies and procedures in respect of this Service User.

                   iii.        Failed to carry out visits to a foster child (Service User C)

                   iv.        Permitted the supervision of contact between Service User D and his child by a relative without carrying out checks.

                    v.        Advised a new mother (Service User E) that she could have care of her baby contrary to the plan agreed at a multi-disciplinary case conference.

                   vi.        Assessed the relative of Service User E as an appropriate kinship carer despite the fact that he was under investigation for assault of a minor.

                  vii.        Agreed to the closure of a case in respect of Service User F despite ongoing child protection concerns.

                viii.        Misrepresented the views of a superior regarding the necessity of a residential assessment for a father (Service User G) to parent his child.

                   ix.        Brought the Trust into disrepute by making unauthorised amendments to a LAC Report in respect of Service User H, resulting in misleading and false reports being provided to a Court.

  1. In October 2009, the matter was referred by the Trust to the respondent Council which began its investigation in November 2009. There were lengthy delays in completing the investigation because of the long term sick leave of one of the main witnesses and the fact that files and documents regarding charge (ix) were held by the Family Court. The investigation was not completed until January 2011 and was referred to the Preliminary Proceedings Committee in March 2011, which determined that the matter be transferred to the Conduct Committee of the NISCC. The Health Procedure was invoked under Schedule 2: Rule 28 of the 2007 Rules.
  1. The Conduct Committee of the NISCC met on the 23rd and 24th August 2011 and conducted the hearing under the Health Procedure. Under paragraph 28(3) of Schedule 2 of the 2007 Rules, the Conduct Committee..... “in determining whether the Registrant has committed Misconduct at stage 2 , and in deciding on the issue of sanction at stage 3, the Committee shall consider any medical reports or other medical evidence on whether the alleged Misconduct may have been caused or substantially contributed to, by the Registrant’s physical or mental ill health”. The medical adviser in the proceedings was Dr Alistair Glasgow who was appointed to provide advice to the Committee, but took no part in the decision-making process and provided no written report. A psychiatric report, dated 16th June 2011, had been commissioned by the Preliminary Proceedings Committee and prepared by Dr Paul Bell, consultant psychiatrist, who had access to the appellant’s medical notes and examined her prior to the preparation of his report.
  1. The Committee found charges (i),(ii),(iv),(v),(vi),(vii) and (ix) proved and charges (iii) and (viii) not proved. In relation to charges (iii) and (viii), no evidence was offered by the NISCC and those charges were not proceeded with. In relation to the remaining charges, the Committee received an agreed Statement of facts and of Additional Agreed Facts. The appellant admitted to being guilty of misconduct in respect of charges (i),(ii),(iv),(v),(vi),(vii) and (ix). The Committee accepted that misconduct had occurred and made an Order suspending the appellant’s registration for nine months, having determined that she had acted in contravention of the NISCC Code of Practice for Social Care Workers (September 2002), inter alia, paragraphs 5.7, (putting oneself or other people at unnecessary risk), 5.8 (behaving in a way either inside or outside work which would raise questions about suitability to work in social care services)  and 6.1 (meeting relevant standards of practice and working in a lawful, safe and effective way).
  1. In deciding what sanction to impose, the Committee took into account the following, as set out in paragraph seven above :

                      i.        The seriousness of the misconduct

                    ii.        The protection of the public

                   iii.        The public interest in maintaining confidence in social care services

                   iv.        The issue of proportionality.

  1. The Committee considered the sanctions available to it (as set out in paragraph six above). It explored admonishment or removal from the register, but discounted these sanctions, which left them (as there was no interim suspension Order) with the option of a suspension Order for up to two years. The Committee felt that suspension for a nine month period was fair and proportionate, regarding this period of suspension as being towards the lower end of the scale. The Committee took into account the appellant’s many years of experience, her clear disciplinary record (apart from supervision and mentoring in 2006) and the mitigating factors referred to in a letter written by the Trust’s Human Resources Manager, on 2nd June 2009. Mention was made of the fact that the case was dealt with under the Health Procedure, as well as the medical evidence available. The Committee considered the appellant’s conduct to have been very serious and was “satisfied that this disposal will provide protection to the public and will maintain public confidence in social care services generally”.
  1. On the 22nd of September 2011 the appellant appealed to the Care Tribunal. In her Notice of Appeal, she set out the main grounds of her appeal in a very detailed note attached to the appeal form, stating inter alia that:

·         While the seven charges set out in the Statement of Facts were admitted by the appellant, she attributed them entirely to the pressures and stress that the Trust had placed her under.

·         The incidents all occurred “over a 10-12 week period” (the statement of Additional Agreed Facts referred to the incidents referred to in the charges taking place in January and February 2008, with the exception of Charge nine, which took place in March 2008).

·         The appellant’s employer considered that there was no risk of further incidents occurring (which was why the appellant was not dismissed) and there had been no recurrence.

·         The mitigating circumstances (including work-load pressures and the complexity of cases handled) set out in the final outcome letter of 2nd June 2009 were not sufficiently taken into account.If these circumstances had been taken into account, the appellant would have received an admonishment rather than suspension.

·         Regarding her health, the appellant referred to her GP diagnosing her in April 2008 with “Moderately Severe Depression” which had been an issue... “for a not insignificant period of time before diagnosis..”. She also referred to Dr Bell’s medical report (prepared for NISCC) referring to his diagnosis ofa mild depressive disorder with stress related symptoms, resulting in tiredness and poor concentration” with resulting consequences for her performance at work.

·         The appellant considered that the Conduct Committee Panel gave undue weight to the fact that Ms LY, Team leader at the Assessment Unit where the appellant now works, “was not aware of the circumstances of the charges until her attendance at the hearing on 23rd August 2011”.The appellant stated that Ms LY “was aware of the detail (albeit not full details of every charge) when she prepared the reference…..she had attended both days of the hearing and when she gave evidence she adopted her reference despite being aware of all matters”.

·         The appellant disagreed that the nine month period was fair and proportionate, stating that the Committee’s decision was “retributive and unduly punitive” she  also disputed that this sanction “will provide protection to the public and will maintain public confidence in social care services generally”. She referred to the different working environment in which she was now placed and emphasised the good support mechanism which she now has, her long career and evidence of rehabilitation.

·         The appellant also stated “I also consider that the suspension is wrong and is a breach of my human rights as I cannot work or gain an income”.

Evidence and Submissions

  1. The hearing was conducted by agreement as a hearing by submissions only. The appellant was in attendance.

The Tribunal Panel had the benefit of reading a full written transcript of the hearing before the Conduct Committee as well as the Notice of Decision dated 30th August 2011 with attached documentation. The Tribunal bundle contained the NISCC Code of Practice for Social Care Workers, excerpts from the NISCC Conduct Rules 2007 and sections from the Health and Personal Social Services Act (Northern Ireland) 2001.The medical report of Dr Paul Bell, consultant psychiatrist, dated 16th June 2011 was made available to the Tribunal. The Tribunal panel also considered the very detailed grounds of appeal document attached to the appellant’s Notice of Appeal, the witness statement of Ms LY, dated February 23rd 2011 and the further evidence provided by her during the hearing on 24th August 2011.

  1. The Tribunal was assisted by the representatives who clearly presented the main issue before the Tribunal, which was the appropriateness and proportionality of the sanction imposed by the Conduct Committee.

The Respondent’s submissions

  1. Ms Crawford set out the background to the case, providing a timeline for the various proceedings. She confirmed that the facts regarding the charges brought against the appellant were agreed, referring to the Statement of Facts and Additional Agreed Facts attached to the Notice of Decision, and that the appeal related to sanction only.
  1. She referred to the appellant’s statement of grounds for appeal, refuting the appellant’s assertion that the Committee had not taken the mitigating circumstances into account and referring to the six reasons for imposing a suspension Order, especially point three, arguing that the matter had received careful consideration. Detailed submissions were made regarding the appellant’s contention about the weight which the Committee attached to the extent of the character witness’s knowledge of the charges, Ms Crawford contending that no excessive weight had been ascribed to the lack of knowledge of the witness and concluding that the Committee’s overriding concern was the seriousness of the misconduct.
  1. The recent Care Tribunal case of Roderick McCreesh and NISCC [NISCC/1/2011],which also dealt with the suspension of a social worker and the Court of Appeal case, Bolton v The Law Society, [1994] 1 WLR 512. CA,involvingdisciplinaryactionagainst a solicitor,were referred to. The respondent’s representative stated that in McCreesh the Tribunal had decided that a suspension order was appropriate, but it was for too long a period. She also referred to Sir Thomas Bingham’s analysis in Bolton of the application of sanctions by professional bodies for the purposes of first,.. “to be sure the offender does not have the opportunity to repeat the offence”, second, “... to maintain the reputation of the solicitors’ profession...”. Issues relating to the appropriateness of suspension as a sanction, the reputation of the profession, the protection of the public and the risk of harm to Social Care Users were argued and assertions were made as to the extent of the appellant’s rehabilitation. Ms Crawford maintained that the Committee’s decision was quite appropriate in all the circumstances. Although It was confirmed that no actual harm had been caused, issues of distress were mentioned.
  1. Ms Crawford also submitted that the Committee were clearly aware of the health issue and that they had considered the medical evidence of Dr Paul Bell and the comments of Dr Glasgow. The appellant’s contention that she was deprived of the ability to earn a living was considered, with the respondent’s representative arguing, on the authority of Bolton (at paragraph 16) that unfortunate consequences of a suspension ... “does not make suspension the wrong order if it is otherwise right”.
  1. The respondent’s representative concluded that all relevant matters had been properly considered by the Committee and after considering all the issues and specific circumstances in the case, as well as all sanctions available, a Suspension Order was the appropriate sanction and a nine month term was not disproportionate.

The Appellant’s submissions

  1. Mr McEvoy confirmed that his arguments related to the appropriateness of the sanction and stated that the appellant had admitted the misconduct at an early stage, thus enabling the Committee to focus on the question of sanction. He emphasised the appellant’s contrition, full responsibility and insight, acceptance of the gravity of the misconduct and her rehabilitation, arguing that, when confronted with the mitigating circumstances, the Committee did not fully open its mind to these issues.
  1. Three main contentions were initially made on the appellant’s behalf:

                  i.        Suspension for nine months was disproportionate

                ii.        A sanction of admonishment would have been a more proportionate response

               iii.        If the Tribunal decided that suspension was an appropriate sanction, nine months is excessive and the Tribunal may consider a briefer period.

  1. Regarding the sanctioning remarks made by the Committee, it was stated that no actual harm had been caused to any service users and the court case at the core of charge nine was unaffected. Lapse of time was discussed, emphasising that the appellant had been the subject of a lengthy disciplinary process, with more than 26 months elapsing  from its conclusion until the Committee hearing. It was stressed that no explicit mention was made by the Committee of this lapse of time in the sanction reasons part of their decision. Mr McEvoy also commented on the failure of the Committee to mention the expiry of the appellant’s final written warning on the second of June 2011 and the fact that some three and a half years had elapsed from the time the incidents occurred. He also  argued that the Committee should have referred to the delay in preparing the case for hearing, given the long term sickness of  a witness and difficulty in sourcing documents.
  1. He contended that, regardless of the weight of the case-law represented by Bolton, the appellant had a right to a fair hearing. The punishment imposed by the appellant’s employer had already expired and she had been working away in her new post without issue.
  1. The evidence of the appellant’s line manager, Ms LY, team leader at the Assessment Unit where the appellant now works, was examined. Ms LY, although not attending, had provided a statement, referring to the appellant’s duties with young people who exhibited very challenging behaviour. The witness had previously given oral evidence at the Committee hearing, which was contained in the transcript of the Committee proceedings. The witness’s oral comments as to the appellant’s wealth of knowledge, her thirty year career and the implications of her absence for the assessment centre were referred to. It was pointed out that this evidence was spontaneously given at the Committee hearing. The appellant’s representative contended that the Committee had not noted any of the positive features of the reference. He refuted the respondent’s submission that the witness was unaware of the charges at the time she wrote the reference, arguing that she did have some knowledge of them and that she had adopted her reference at the hearing after hearing full details of all the charges brought against the appellant.
  1. An argument was put forward that the written decision should have mentioned that the hearing was being dealt with under the Health Procedure, before the question of sanctions was discussed. The psychiatric report of Dr Paul Bell was considered, having been read by the Tribunal Panel. It was further asserted that there was no mention in the decision of Dr Bell’s diagnosis (of a current moderately severe depressive illness and a pre-existing mild depressive disorder, causing poor concentration and tiredness, resulting in the appellant’s lapses in performance) and his prognosis (of a slow recovery and a return to professional competence) set out clearly in the final page of his report.
  1. The appellant’s representative discussed the McCreesh case already mentioned above, specifically referring to the workload pressures and system failures outlined in that case and submitting that the similar pressures and failures in this case were not considered by the Committee. Further submissions were made about the appellant’s rehabilitation, describing her challenging work with young people and  her insight into her past failings.
  1. Mr McEvoy then addressed the Tribunal in relation to the powers available to it under Section 15(3) of the 2001 Act, again referring to the case of McCreesh wherethe Tribunalinterpreted its powers as either confirming the decision or directing that it shall not have effect (i.e. the Tribunal could not vary the sanction by substituting an alternative). He submitted that the recent English case of Judyth Kenworthy v General Social Care Council [2011] UKFTT 409 (HESC), heard by the First-tier Tribunal, set out the converse view that an interpretation of the equivalent section 68(3) of the Care Standards Act 2000 allowed that Tribunal to substitute an alternative sanction, such as admonishment.
  1. The appellant’s representative concluded that, given the punishment already meted out to the appellant following the internal disciplinary proceedings, a nine month period of suspension was punitive. He emphasised that the appellant fully accepted the gravity of her conduct and wished to convey her continued profound sorrow about the misconduct and its effects.

Conclusions

36. The Tribunal has carefully considered all the evidence and the submissions made even if we have not specifically referred to all of them.

37. In relation to the powers of the Tribunal regarding the sanction, after examining the legislation and having fully considered the case law mentioned by both representatives, the Tribunal Panel took the view that section 15 of the Health and Personal Social Services Act (Northern Ireland) 2001 does not give the Tribunal power to substitute an alternative sanction. We were supported in our view by the Care Tribunal case of McCreesh (noted at paragraph 24 above). The First -Tier Tribunal cases of SC-W v The General Care Council [2010] UKFTT 600 (HESC] (quotedin the McCreesh case) and the recent  English cases of Maxine Boohoo v General Social Care Council [2011] UKFTT 357 (HESC) and Steve Lloyd Simpson v General Social Care Council [2011] UKFTT 158 also  reached a similar conclusion under section 68 of The Care Standards Act  2000, which is in similar terms to section 15. Section 15(3), as noted at paragraph 8 above, states: “On an appeal against a decision, the Care Tribunal may confirm the decision or direct that it shall not have effect”.  Although the case of Judyth Kenworthy (noted at paragraph 34 above) did decide that the Tribunal had the power to substitute an alternative sanction, no full argument was heard in that case on this point and the cases mentioned above came to a different conclusion.

38. In relation to the seven charges of misconduct admitted by the appellant, the Tribunal Panel were in no doubt about either the seriousness of the misconduct or the fact that it could have caused harm to vulnerable social care users and their families. Serious child protection issues were involved in all the charges, with charge nine also involving unauthorised amendments being made to a report which was produced to a Court, thus bringing the Trust itself into disrepute. The appellant has herself accepted that her behaviour during this time was inconsistent with that of a senior experienced social worker in a position of trust. The appellant was, in the words of Bolton,a member of a profession whose reputation depends on trust” (at page 486).  If trust is compromised, then the profession itself is compromised in relation to maintaining confidence in social care services. The appellant could not account for her conduct at this time in relation to these charges, but referred to mitigating circumstances, including her mental health at the time and various issues about the system of work and the structure of the team she was working in. The appellant was an  experienced social worker, used to working under pressure. It might have been expected that she would have sought medical help at an earlier stage. Despite the mitigating factors which will be further discussed below, the Tribunal has decided that the appellant was nonetheless responsible for these seven charges of misconduct.

39. However, although the appellant was responsible for the misconduct, there are important mitigating factors in this case. First, the system of work in Stewartstown Road Health Centre, at the time the issues relating to the misconduct arose, was far from ideal. The work-load was heavy and the appellant, due to team restructuring, found herself at the head of a very depleted team. It is clear from the documentation that the appellant was very stressed and that there were supervision and performance management issues at play in the situation. While a social worker has a duty under the NISCC Code of Practice for Social Care Workers to, for example, “Uphold public trust and confidence in social care services” (no. 5 NISCC Code 2002), the Code of Practice for Employers of Social Care Workers “requires that employers adhere to the standards set out in their code, support social workers in meeting their code and take appropriate action when workers do not meet expected standards of conduct.” (NISCC Code: 2002: introduction). The Tribunal takes the view that the appellant’s employers could have provided her with more support at the time these serious matters arose between December 2007 and April 2008.

40. A second crucial element to examine in this case is the appellant’s mental health. The Tribunal, having considered Dr Bell’s detailed report dated 16th June 2011, accept his diagnosis that this lady is currently suffering from a moderately severe depressive illness which arose as an exacerbation of a pre-existing mild depressive disorder with stress related symptoms, which itself resulted in tiredness and poor concentration. The Doctor concludes that the appellant’s “lapses in performance were, in fact, caused by her poor concentration and tiredness which, in turn were caused by the heavy workload that she was experiencing at the time when these events took place”. Dr Bell’s prognosis is of a slow recovery from her depressive condition once the professional issues are settled, after which the appellant “will once more be the able Social Worker that she appeared to be before these lapses in performance took place”. Dr Alistair Glasgow, the medical adviser appointed by the Committee under the Health Procedure, accepted under questioning by the appellant’s representative, that she had reported symptoms of stress and depression to her GP in April 2008 which had  existed for some months.

Although the Committee conducted the hearing under the Health Procedure, this was not noted until page six of the decision. The Tribunal consider that a clear indication that the case is being dealt with under the Health Procedure should appear at the beginning of the decision. The Committee stated in their reasons for imposing a suspension Order that they had considered the medical evidence available to it, but no mention was made of Dr Bell’s diagnosis of a current and pre-existing depressive condition. The Tribunal considers that the diagnosis should have been specifically noted in the decision.

41. Another mitigating factor which the Tribunal has explored is the lapse of time in the processing of this case. The incidents the subject of the charges occurred between January and March 2008. The appellant had then been the subject of a lengthy disciplinary process which began in September 2008 and was not completed until June 2009. A complaint was referred to NISCC in October 2009 and an investigation began in November 2009. There were lengthy delays in the investigation due to the long term sick leave of one of the main witnesses and the retention of documents and files by the Family Court and the investigation was not completed until January 2011. In March 2011 the matter was referred to the Preliminary Proceedings Committee and from there it was referred to the Conduct Committee under the Health Procedure. Therefore, from the occurrence of the incidents to the Committee hearing, approximately three and a half years had elapsed. It is the Tribunal’s view that the lapse of time in this case is a significant factor and one which should have been mentioned in the Committee’s decision for the purposes of clarity.

42. The Tribunal panel has accepted and was impressed by the statement and transcript evidence of Ms LY, noted at paragraph 31 above. It is plain that the appellant is a valued and committed member of staff at the Assessment Centre, working in a residential environment with young people whose behaviour is often extremely difficult.  The Tribunal takes the view that, while Ms LY did not know  the details of the charges brought against the appellant at the time she wrote her reference, she did know that there had been some child protection issues and, in any case, after hearing full details of all the charges, she adopted her reference and made positive comments about the appellant’s work and ability to cope with what the witness described as a very stressful job. The Panel considers that this evidence provides positive indications of the appellant’s insight into her past failings and also shows how, by choosing to work in a residential team based environment, she is able to both improve the lives of very vulnerable young people and obtain support if she needs it. The Tribunal therefore finds that there is clear evidence of the appellant’s rehabilitation.

43. The Panel also considers it relevant that the appellant had already experienced a severe punishment following a long disciplinary hearing. She was demoted by two grades and given a final warning to remain on her record for two years. That warning expired on 2nd June 2011.

44. The Tribunal places considerable weight upon the mitigating factors noted above: the work related issues, viewed in the context of the Employer’s duties under the NISCC Code, the appellant’s mental health and the substantial lapse of time occurring from the date of the incidents to the Committee hearing. It also relies upon the evidence of Ms LY.

45. After examining all the facets of this case, the Panel concluded that given the seriousness of the misconduct, even taking into account the mitigating factors, the imposition of a suspension order was not inappropriate, especially considering the protection of the public, and the issue of trust and public confidence in the profession and social care services in general. However, the Tribunal was concerned by the length of the suspension imposed by the Committee in view of all the mitigating factors already discussed and the fact that the appellant had already undergone a rigorous sanction.

46. This appellant has accepted full responsibility for her actions, she has shown contrition, prepared fully for her appeal by preparing a detailed statement of grounds of appeal, attended the hearing and had been working, without recurrence of any problems, in a challenging social work environment with vulnerable young people from 30th June 2009 until her suspension on 30th August 2011. The Panel judges that the appellant poses no risk to the public. While the maximum term of suspension is two years, taking into account the factors set out at paragraphs 39 to 45 above, and the fact that the appellant had a clear disciplinary record and had a long career in the social care sector, the Panel consider that a suspension Order for nine months was punitive and disproportionate in the circumstances. The Tribunal consider that a suspension order for a shorter period would have been more apt.

47. Our decision making powers are limited as set out in paragraph 37 above. We must either allow the appeal or dismiss it. We have decided that, on our reading of the legislation, the imposition of an alternative sanction is not available to us. The Tribunal panel is unanimously of the view that we should follow the approach taken by the majority in the case of McCreesh where, in allowing the appeal, it was considered relevant that the appellant had already suffered a sanction by being suspended for a period of time before the appeal hearing. Therefore, the Tribunal judged that, after weighing up all the circumstances and bearing in mind that the appellant has currently been suspended for more than five months before the appeal hearing, the original decision should not be allowed to stand.

Decision

48. It is the unanimous decision of the Tribunal that the appellant’s appeal be allowed and a direction is given that the original decision shall not have effect.

Diane Drennan (Chairman)

Date Decision recorded in Register and Issued to Parties:21 February 2012