RS v Health and Social Care Professional Council (Approved)

Factual and Procedural Background

This opinion concerns an appeal brought by the Applicant against the decision of the Health and Social Care Professionals Council ("the Respondent") to cancel his registration as a social worker and prohibit him from applying for restoration for eighteen months. The cancellation followed a fitness hearing on charges that the Applicant engaged in an inappropriate relationship over several months with a vulnerable patient under his care at a hospital in The City.

The patient was admitted as an inpatient in early 2022 with serious health issues and a history of trauma and vulnerability. The Applicant was assigned as her social worker. After discharge, the patient reported that the Applicant had been visiting her home, triggering an investigation. The Applicant admitted to a personal relationship, including visits to the patient’s home, social outings, and exchanges of money. The Respondent’s Preliminary Proceedings Committee referred the matter to the Professional Conduct Committee (PCC) for an inquiry on grounds of professional misconduct and poor professional performance. The inquiry was held in late 2023, where the Applicant admitted the facts and the charges. The PCC recommended cancellation of registration and an eighteen-month prohibition on restoration. The Respondent Council adopted this recommendation in April 2024.

The Applicant appealed the sanction pursuant to section 69 of the Health and Social Care Professionals Act 2005, asserting that cancellation was disproportionate and unduly severe. The appeal hearing included evidence from the Applicant, cross-examination, and consideration of expert reports, including a clinical psychologist's assessment conducted prior to the misconduct.

Legal Issues Presented

1. Whether the sanction of cancellation of registration and prohibition from restoration for eighteen months was appropriate and proportionate in the circumstances of the Applicant's admitted misconduct.
2. Whether the Respondent and PCC properly took into account the Applicant’s diagnosis of Autism Spectrum Disorder (ASD) and related psychological difficulties in assessing sanction.
3. The extent to which curial deference should be afforded to the Respondent’s decision on sanction and the circumstances permitting the Court to vary that sanction.
4. The adequacy and sufficiency of the reasons given by the Respondent and PCC for imposing the ultimate sanction of cancellation rather than a lesser penalty such as suspension with conditions.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that the cancellation sanction was disproportionate and that a lesser sanction, such as suspension with conditions, would sufficiently protect the public and uphold professional standards.
• He highlighted his 24-year blemish-free career as a social worker with no prior disciplinary history.
• He emphasized early and full admissions of misconduct, cooperation throughout the investigation and inquiry, and remorse and apology expressed from the outset.
• The Applicant relied on a detailed clinical psychologist’s report diagnosing ASD prior to the misconduct, arguing that his condition contributed to his poor judgment and difficulties with professional boundaries.
• Counsel for the Applicant urged that the Applicant had insight into his wrongdoing and was willing to engage with supervision, retraining, and conditions to prevent recurrence.
• It was submitted that the PCC and Respondent failed adequately to consider or give weight to the Applicant’s ASD diagnosis and psychological difficulties in mitigation.
• The Applicant disputed the assertion that the relationship was covered up, noting no charge was made on that basis and that the Respondent’s reasons lacked sufficient explanation for rejecting suspension with conditions.

Respondent's Arguments

• The Respondent maintained that the misconduct was very serious, involving a deliberate abuse of trust through formation of an inappropriate intimate relationship with a vulnerable patient.
• The Respondent emphasized the numerous breaches of the professional code of conduct and the risk of harm to the patient and public confidence in the profession.
• The PCC and Council rejected the mitigating effect of the Applicant’s ASD diagnosis, reasoning that it was unsupported by expert opinion relating to the misconduct period and that the Applicant had not sought further professional help.
• The Respondent argued that cancellation was the only sanction sufficient to protect the public, uphold professional standards, and maintain public confidence.
• Submissions highlighted the lack of real insight shown by the Applicant, particularly early in the process, and concerns about compliance with conditions if imposed.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the facts, the disciplinary process, the Applicant’s admissions, and the expert psychological report diagnosing ASD. It acknowledged the serious nature of the misconduct involving an inappropriate relationship with a vulnerable patient, recognizing the professional and ethical breaches and the power imbalance. However, the Court found that the Respondent and PCC erred in principle by effectively disregarding the Applicant’s ASD diagnosis and psychological difficulties, which were supported by a comprehensive clinical psychologist’s report predating the misconduct.

The Court noted that while the Applicant's conduct was incompatible with professional standards, the mitigating factors were significant, including a long unblemished career, early and full admissions, cooperation, remorse, and the presence of psychological difficulties that likely contributed to poor judgment and difficulties with professional boundaries.

The Court emphasized the importance of curial deference to the Respondent’s expertise but also highlighted the necessity for the Court to form its own view and ensure that all relevant mitigating factors are properly considered. It found the Respondent’s reasons for cancellation sparse and insufficiently engaged with the Applicant’s submissions, particularly the proposal for suspension with conditions. The Court also noted procedural unfairness regarding the absence of a specific charge of cover-up and the Respondent’s emphasis on this factor without prior notice.

The Court concluded that a suspension with appropriate conditions, including retraining, supervision, and psychological support, would adequately protect the public, uphold professional standards, and maintain confidence in the profession. It found that the ultimate sanction of cancellation was disproportionate given the full context and mitigation.

Holding and Implications

The Court ALLOWED the Applicant's appeal against the sanction of cancellation.

The sanction imposed by the Respondent Council is varied to a lengthy suspension coupled with substantial conditions, including mandatory supervision, reflective practice, retraining, and psychological support as recommended by the clinical psychologist. The Applicant shall remain suspended until these conditions are satisfactorily met.

This decision directly affects the parties by permitting the Applicant the opportunity to remediate and potentially return to practice under conditions, rather than facing permanent removal. The Court did not establish new precedent but applied established principles emphasizing proportionality, mitigation, and proper consideration of personal circumstances in regulatory sanctioning.