Notice of Decision of the Northern Ireland Social Care Council’s Conduct Committee
Name:
Richard William Byrne
SCR No:
2079905
Date:
22 August 2013
NOTICE IS HEREBY GIVEN THAT the Conduct Committee of the Northern Ireland Social Care Council, at its
meeting on 19, 20 and 21 August 2013, made the following decision about your registration with the Northern
Ireland Social Care Council:
The Committee found the facts proved;
The Committee found that you have committed misconduct;
The Committee decided to make an Order for removal of your registration from the Register (‘a Removal
Order’).
Charge:
“That, being registered under the Health and Personal Social Services Act (Northern Ireland) 2001 (as amended):
1.
You were employed as a Care Assistant in Ardmaine Care Centre between 04 January 2009 and 21 August
2011.
2.
On an unknown date between 04 January 2009 and 21 August 2011, you kissed a female who was a resident of
Ardmaine Care Centre, Resident A.
3.
Your actions as set out in Paragraph 2 were:
a.
not in Resident A‟s best interests;
b.
inappropriate; and
c.
not of a standard to be expected of a registered social care worker.
4.
In May 2011, Resident A moved from Ardmaine Care Centre to Rathfriland Manor.
5.
On an unknown date between May 2011 and 21 August 2011, you kissed Resident A at Rathfriland Manor.
6.
Your actions as set out at Paragraph 5 were:
a.
not in Resident A‟s best interests;
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7.
b.
inappropriate; and
c.
not of a standard to be expected of a registered social care worker.
On an unknown date between 04 January 2009 and 21 August 2011, you developed and / or pursued an
inappropriate relationship, namely a relationship of boyfriend / girlfriend with Resident A.
8.
9.
Your actions as set out in Paragraph 7 were:
a.
not in Resident A‟s best interests;
b.
inappropriate; and
c.
not of a standard to be expected of a registered social care worker.
On or about 01 July 2011, you provided a research proposal to an organisation named “UnLtd”.
10. In the research proposal referred to at Paragraph 9 above, you disclosed personal information relating to
Resident A and her sister without seeking the consent of either of them.
11. Your actions as set out in Paragraphs 9 and 10 above were:
a.
not in Resident A‟s best interests;
b.
inappropriate; and
c.
not of a standard to be expected of a registered social care worker.
12. On 02 September 2011, you emailed a Conduct Officer at NISCC indicating that your research proposal had
gained the “support” of a senior staff member of the University of Ulster, which it had not.
13. In the email referred to at Paragraph 12 above, you also indicated that the senior staff member had, in
conjunction with another individual from the University of Ulster, provided a reference from the University of
Ulster, which she had not.
14. Your actions as set out in Paragraphs 12 and 13 above were dishonest.
15. You submitted written submissions for a Preliminary Proceedings Committee hearing on 01 December 2011.
16. In the submissions referred to at Paragraph 15, you indicated that no information about Resident A and her family
was used to promote your “Holidays with Nursing Care” project, which was inaccurate as you had disclosed
information about Resident A and her family to “UnLtd” as outlined in Paragraphs 9 and 10 above.
17. Your actions as set out in Paragraphs 15 and 16 were dishonest.
And your actions as set out above amount to misconduct, such as to call into question your suitability to remain on the
Social Care Register.”
Preliminary Matters
Service and Proceeding in the Absence of the Registrant
The Committee was satisfied that the Notice of Hearing was served on the registrant in accordance with Rule 3
of Part 1 and Rule 4 of Schedule 2 of the NISCC (Conduct) Rules. The Committee considered an application
from Mr Wilson (Council Solicitor) to proceed to conduct the hearing in the registrant‟s absence. He submitted
that the registrant had voluntarily absented himself from the hearing and that, in all of the circumstances, there
was a public interest in proceeding to hear the case expeditiously.
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The Committee received legal advice from the Legal Adviser on the question of whether to proceed in the
registrant‟s absence. Having received that legal advice, the Committee decided to exercise its discretion in
favour of proceeding. In reaching this conclusion, the Committee took into account correspondence from the
registrant to the NISCC (dated 06 August 2013), from which it is clear that his decision to absent himself from the
hearing was indeed a voluntary one. In that correspondence, the registrant stated that he „does not see the point
of attending a hearing’. The Committee reached the view that, in all likelihood, any adjournment of the
proceedings would not have any effect on the registrant‟s decision that he would not attend or participate in the
hearing. Accordingly, the Committee exercised its discretion in favour of the public interest in dealing with the
case in an expeditious manner, in order to ensure that the confidence of the public in the regulatory process is
maintained.
Background
At the material time, the registrant was employed as a care assistant by Southern Cross Healthcare at its
Ardmaine Care Centre in Newry, County Down. He is registered on Part 2 of the Register as an adult residential
care worker. The charges which were considered by the Committee, as set out in the foregoing, relate to
aspects of the registrant‟s conduct towards female „Resident A‟, both during the time when she was cared for by
the registrant at Ardmaine, and subsequently when she transferred to accommodation at Rathfriland Manor
Nursing Home, and an alleged inappropriate relationship between the registrant and „Resident A‟. The charges
also addressed the registrant‟s alleged use of confidential information relating to Resident A and her sister, and
his alleged dishonesty in what he told others about how he used that information.
Evidence
The Committee heard oral evidence from five witnesses: Sharon Campbell, Lesley Johnston and Rosemary
Moreland (all 19 August 2013), and Sinead Gilchrist and Mary Stevenson (both 20 August 2013).
Prior to hearing oral evidence from these witnesses, the Committee acceded to an application from Mr. Wilson to
receive a bundle of documentation comprising of witness statements from these witnesses and associated
exhibits. The bundle also included a written submission which the registrant had sent to the Preliminary
Proceedings Committee ahead of its meeting on 01 December 2011. Before agreeing to receive the bundle of
documentation, the Committee satisfied itself that the registrant had been served with a copy of this material.
The Committee heard evidence from Sharon Campbell (registered social worker employed by the Southern
Health and Social Care Trust). She told the Committee that in or about May 2011, shortly after Resident A had
moved from Ardmaine to Rathfriland Manor, concerns emerged about certain aspects of the registrant‟s
behaviour towards Resident A and his relationship with her.
Ms Campbell explained that those concerns prompted the Southern Health and Social Care Trust („SHSCT‟) to
carry out an investigation into the issues raised under its „safeguarding‟ procedures. Ms Campbell told the
Committee that as part of that investigation, a decision was made to interview the registrant. Ms Campbell
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conducted the interview on behalf of the SHSCT, and Mary Stevenson (Service Quality Inspector with Southern
Cross Health Care) took notes of the meeting. The Committee was told that the notes were subsequently typed
up into a formal record, and both witnesses confirmed that the record was an accurate reflection of what was
discussed at that meeting. The Committee was provided with a copy of the record of the meeting.
Ms Campbell went on to explain how steps were taken by the SHSCT to ascertain whether Resident A had the
capacity to make decisions regarding her relationship with the registrant. Ms Campbell told the Committee that a
report obtained from a Consultant Psycho-Geriatrician confirmed that Resident A was capable of making her own
decisions with regard to the relationships she formed. Having been advised of this medical opinion, Resident A
declined to give her consent to any further investigation under the „safeguarding‟ procedure. Ms Campbell
explained that, in the circumstances, the SHSCT decided not to proceed with its investigation.
The Committee was told by Ms Stevenson that the registrant‟s employer, Southern Cross Health Care, decided
that it was necessary to conduct an investigation into whether the registrant‟s conduct infringed its disciplinary
code. She was responsible for carrying out an investigatory meeting with the registrant on the 02 August 2011.
Sinead Gilchrist (Administrator, Southern Cross Health Care) attended that meeting as a note taker. Both of
these witnesses explained to the Committee the process by which notes were taken at the meeting and
subsequently typed up into a formal record. In their evidence, they each told the Committee that this record, a
copy of which was provided to the Committee, was an accurate reflection of what was said at the meeting.
Ms Stevenson also told the Committee that it was her decision to commence disciplinary proceedings against the
registrant in respect of a number of matters arising out of his dealings with Resident A. The registrant attended a
disciplinary hearing which was convened on 10 August 2011. The Committee was provided with the formal
record of that meeting. Ms Gilchrist gave evidence to the Committee that the record was made by her after the
meeting and based on notes taken by her at the meeting. She gave evidence that the record was an accurate
account of what was said at the meeting. The Committee did not hear evidence from the decision maker at that
meeting, Karen Agnew (Service Quality Advisor, Southern Cross Health Care). The Committee was told that Ms
Agnew decided that the registrant should be dismissed from his employment.
The contents of the records of the three meetings referred to above are, together with the other evidence
described below, relied upon by the Council to support the case against the registrant. In particular, Mr Wilson
referred to a number of specific extracts from the records which he submitted contained admissions from the
registrant in respect of matters which are germane to the charges. The contents of the records have been
considered by the Committee in considerable detail and are discussed further below as part of the Findings of
Fact.
The Committee heard evidence from two other witnesses. In 2011, Lesley Johnston was employed as a
development manager for an organisation called „UnLtd.‟ She explained that the registrant had applied to her
organisation for funding to support a project described as „To Co-Ordinate a Holiday for an Elderly Person‟. As
part of the process of assessing whether to award a grant, Ms Johnston explained to the Committee that she
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interviewed the registrant on the 01 July 2011. She further explained how, in the course of that meeting, he
provided her with a document entitled „Community Care and Social Development for the Elderly‟. Referring to
that document, she told the Committee in clear and specific terms that the name of Resident A was visible on the
face of that document, as was the name of her sister. She told the Committee that, contrary to what has been
stated by the registrant (for example at page 6 of his submission to the Preliminary Proceedings Committee), he
had not taken steps to maintain confidentiality such as by substituting „Mrs X‟ for Resident A‟s real name.
Finally, the Committee heard evidence from Dr Rosemary Moreland. Dr Moreland is employed as a lecturer at
the University of Ulster and she is the Course Director for the BSc Honours Degree in Community Development.
She explained that she knew the registrant because he was formally her student on a degree course at the
University. She was asked to consider the contents of an email sent by the registrant to Denise Rooney of the
NISCC on 02 September 2011. In that email the registrant, referring to what he described as his research
proposal („To Co-Ordinate a Holiday for an Elderly Person‟) made the following assertion: „It has gained the
support of Dr Rosemary Moreland and Dr Tony Morgan who have given their reference from the University of
Ulster, Jordanstown Campus, Dalriada‟.
Dr Moreland told the Committee in specific terms that, until she was contacted by the NISCC as part of its
investigations into the conduct of the registrant, she had not heard about the research work he was undertaking.
In particular, she had never discussed that research work or its subject matter with the registrant. Accordingly, in
straightforward terms, she told the Committee that since she had never discussed the research project with the
registrant, she had never given it her support or provided a reference in connection with it. She described the
normal process which students might follow if they were seeking a reference from her or support for their
research activities. Such a process would involve discussing the research issues with her, and asking her to
provide a reference. She told the Committee that at no stage had she been contacted by the registrant despite
what he claimed in the email of 02 September.
The Committee listened carefully to the evidence it received from all of the witnesses. It took the opportunity,
after each witness had given their evidence, to retire to the Committee room to consider their notes of the
evidence and the relevant documentary materials. The Committee then decided whether, with each witness, it
was necessary to ask further questions in order to clarify any part of a witness‟ evidence, or to seek further
information. Many of the witnesses were questioned by Committee Members for these purposes.
The
Committee is satisfied that the evidence it heard from each of the witnesses was entirely credible and truthful.
The Committee was particularly conscious of the fact that the registrant was not in attendance and nor was he
represented at the hearing. The Committee recognised that, in those circumstances, there was a responsibility
which rested with the Committee to be satisfied as to the veracity of the evidence, and to ensure that points
made by the registrant in his submission to the Preliminary Proceedings Committee were considered.
The Committee was concerned to establish whether the three sets of meeting records had ever been sent to the
registrant with a request that he confirm their accuracy and completeness. The evidence received by the
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Committee indicated that this had not been done, either by the SHSCT or by Southern Cross Health Care. The
Committee considers that this represents something of an oversight and does not comply with best practice.
Nevertheless, in her evidence, Ms Stevenson indicated that the registrant had received the records from the
meetings of 26 May and 02 August 2011 in advance of the disciplinary hearing which took place on 10 August
2011, and had opportunity to comment on those records at that meeting. The Committee further noted that the
registrant had received all of the records as part of the NISCC process, and that he had provided a submission to
the Preliminary Proceedings Committee at which time he could, had he so wished, have included any
submissions he wanted to make about the accuracy and meaning of what is recorded.
The Committee has noted the few observations made by the registrant about the meetings which he was
required to attend, particularly at page 7 of the submission he made to the Preliminary Proceedings Committee.
He has referred critically to the „leading questions‟ which were directed to him at an unspecified meeting, and he
has suggested that certain things were taken out of context. He has stated that, at the meeting on 26 May 2011,
he was confronted with certain „insinuations‟ which weren‟t recorded in the notes. Nevertheless, it is notable that
the registrant does not take issue with the accuracy of the words that have been recorded, and the answers that
are attributed to him.
In the circumstances, the Committee is entirely satisfied on the basis of the evidence that it has heard that the
records of the meetings presented to it represent a fair attempt to accurately reflect the discussions which took
place at those meetings. Obviously, the records do not represent a verbatim account, but the Committee accepts
that both Ms Stevenson and Ms Gilchrist will have done their utmost to provide a full and accurate account of the
meetings to the best of their abilities. Accordingly, the Committee is prepared to give full weight to the records
and to accept them as proof of what was said at those meetings.
Approach of the Committee
The Committee has considered all of the documentary evidence placed before it and the evidence of the
Council‟s witnesses. The Committee has approached the case in the following way:
a.
Firstly to determine whether, on the balance of probabilities, the facts in each charge have been proved;
b.
Secondly, to decide if the established facts, as particularised, amount to misconduct; and
c.
Finally, if misconduct is established, and having considered any evidence provided in mitigation, to
determine what sanction should be applied.
In approaching the task of determining the facts, the Committee was cognisant of the advice provided by the
Legal Adviser that the burden of proof rests with the NISCC. The registrant is not required to prove anything.
The Committee was also mindful of the requirement, also set out in the Legal Adviser‟s advice, that it is for the
NISCC to prove matters in accordance with the civil standard of proof, that is, on the balance of probabilities.
The Committee has accepted the advice provided by the Legal Adviser, which is otherwise more fully described
elsewhere in this Notice of Decision.
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Finding of Facts
The charge faced by the registrant is enumerated over seventeen separately numbered paragraphs. The
Committee will set out its findings with regard to each of the paragraphs sequentially:
Paragraph 1: the Committee finds that the registrant was employed as a Care Assistant at Ardmaine Care
Centre in the period between 13 January 2009 and 21 August 2011. This commencement date was put to the
registrant and accepted by him at the investigatory meeting which was conducted on 02 August 2011. The
relevant record is contained at page 23 of the bundle submitted by Mr. Wilson. The Committee accepts the
accuracy of this record. The difference between the date agreed by the registrant and his employer at the
investigatory meeting, and the date indicated in paragraph 1, is not material in the sense that it has become clear
to the Committee that the relevant period of time so far as the alleged misconduct is concerned is the period
commencing in or about 10 March 2011, when the registrant first had contact with Resident A when she became
a resident at Ardmaine Care Centre.
Paragraph 2: the Committee finds as a fact that the registrant did kiss Resident A when she was a resident in
Ardmaine Care Centre. Having regard to the evidence of Ms Campbell and Ms Stevenson, the Committee
accepts as accurate the following remarks attributed to the registrant, which are contained in the record of the
investigatory meeting which took place on 26 May 2011: „he described that he put A to bed and she said he was
the best care assistant in the Ireland and he said thank you and kissed her’. The Committee further accepts the
evidence of Ms Campbell that Resident A was cared for at Ardmaine between 10 March 2011 and 01 May 2011,
on which date she moved to Rathfriland Manor. The Committee further accepts that during her stay in Ardmaine,
Resident A was cared for by the registrant, amongst others. It was in these circumstances that the Committee
finds as a fact that the registrant kissed Resident A.
Paragraph 3: the Committee finds that the registrant‟s actions in kissing Resident A at a time when she was
being cared for by him in Ardmaine, and when he was working in the capacity of Care Assistant, were both not in
her best interests and were inappropriate.
The Committee finds that, by virtue of her status as a resident of a care home, and regardless of her state of
health, Resident A was in a vulnerable position. Indeed, the Committee finds that the registrant knew that
Resident A was a person who was emotionally vulnerable, as he accepted this when questioned by Ms
Stevenson at the investigatory meeting on 02 August 2011. The Committee finds that the act of kissing in this
context had the potential to confuse a vulnerable resident, and was apt to be misinterpreted. Accordingly, and
even allowing for the probability that the kiss was entirely consensual, the Committee finds that the act of kissing
Resident A was not in her best interests.
Moreover, for these reasons, the Committee also finds that the act of kissing Resident A must be regarded as
inappropriate. The Committee adds to these reasons its view that, given the registrant‟s experience, training and
induction, he knew or ought to have been aware that clear boundaries should exist between a professional carer
and a resident. Those boundaries should dictate that, in this context, acts of physical intimacy such as kissing are
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prohibited in all but the most exceptional of circumstances. The Committee finds that such circumstances do not
exist here.
The Committee declines to make a finding of fact in relation to paragraph 3(c). The Committee is of the view that
the particulars of paragraph 3(c) are such that, to consider it at this stage of the proceedings, risks trespassing
upon the „misconduct stage‟. The Committee applies the same analysis to paragraphs 6(c), 8(c) and 11(c).
Paragraph 4: the Committee accepts as accurate the evidence of Ms Campbell that Resident A moved from
Ardmaine Care Centre to Rathfriland Manor in May 2011.
Paragraph 5: the Committee finds that the facts set out in paragraph 5 are proved. Having regard to the
evidence of Ms Gilchrist, the Committee accepts as accurate the following entry contained in the record of the
disciplinary hearing which took place on 10 August 2011:
Karen Agnew: Please tell me about the circumstances surrounding the kiss with A at Rathfriland Manor?
Richard Byrne: I walked in and greeted A and I kissed her.
Karen: The manager said that you kissed A in the lounge what was the circumstance?
Richard: It was just a greeting.
Karen: How did you greet her? Where did you kiss her? On the lips or face?
Richard: Lips I’m pretty sure. I kiss everyone on the lips I did with my late father too.
The Committee takes the view that the remarks attributed to the registrant, contained as they are in an accurate
record of a disciplinary hearing, constitute an acceptance on the part of the registrant that he conducted himself
in the manner alleged in this paragraph.
Paragraph 6: the Committee finds that the registrant‟s actions in kissing Resident A at Rathfriland Manor were
both not in her best interests and inappropriate.
The Committee repeats the analysis set out above in connection with paragraph 3. Notwithstanding the fact that
the kiss at Rathfriland Manor took place at a time when the registrant was no longer in a formal caring
relationship with Resident A, he was aware that she was in a vulnerable position. The registrant was in a
position to know about those vulnerabilities and did know about her emotional vulnerability because he had
recently cared for Resident A. The Committee finds that, for this reason, the registrant ought not to have
engaged in acts of physical intimacy with the resident, even if the kiss was intended as a mere greeting and even
where the kiss was consented to.
The Committee also finds that the kiss was inappropriate for the same reasons. Having regard to his previous
relationship with Resident A as her carer, and given that only a short period of time had passed since that
relationship had ended, the behaviour of the registrant departed from what was appropriate in the circumstances,
although the offence might, on one view, be regarded as somewhat less aggravating in nature given that the
relationship of professional carer no longer existed.
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Paragraph 7: the particulars of paragraph 7 are set out so as to allow for an alternative, so that if the Council
establishes that the registrant either „developed‟ or „pursued‟ a relationship of boyfriend / girlfriend with Resident
A, then the facts will have been made out.
The Committee finds that the facts set out in paragraph 7 are proved, in that the registrant „pursued‟ a
relationship of boyfriend / girlfriend with Resident A, which was inappropriate. The Committee cannot be satisfied
that a boyfriend / girlfriend relationship actually developed, even if the registrant claims that it did.
In support of its finding that the registrant pursued such a relationship, the Committee accepts as accurate the
following entry contained in the record of the investigatory meeting which took place on 26 May 2011, and which
is attributed to the registrant: „Resident A was a friend and when she moved to Rathfriland Manor they became
boyfriend / girlfriend, their affection for each other developed’.
The Committee is entirely satisfied as to the veracity of this record, having regard to the evidence of Ms
Campbell and Ms Stevenson. The Committee notes that similar admissions are to be found elsewhere in the
records, so that is quite clear to the Committee that the registrant wished to see such a relationship develop.
In this context, the Committee has also noted that, at the same meeting, the registrant spoke about visiting
Resident A at the Rathfriland Care Home, not as a care worker, but as her „boyfriend‟. The Committee is
conscious that it has not heard any evidence from Resident A about how she regarded the relationship.
Accordingly, the Committee is hesitant about concluding that a boyfriend / girlfriend relationship had developed.
However, it is clear from all of the evidence that the Committee has considered, that the registrant regarded the
relationship in this way, and must therefore have engaged with Resident A in order to pursue the object of such a
relationship.
Paragraph 8: the Committee has concluded, and is satisfied, that the registrant‟s pursuit of a relationship of
boyfriend / girlfriend with Resident A was not in her best interests and was inappropriate. Again, the Committee
has paid particular regard to the admissions contained in the records of the various meetings held with the
registrant, the accuracy of which has been established to the Committee‟s satisfaction.
In determining that the relationship being pursued by the registrant was not in the best of interests of Resident A,
the Committee has had regard to the registrant‟s description of his feelings when he was interviewed on 26 May
2011. At that time he spoke about his own needs, his loneliness, how he „craved for someone to talk to‟, and
how his visits to Resident A were to „help him more than her‟.
In the Committee‟s view, the registrant put his own needs above those of Resident A‟s, and pursued a
relationship which he described as boyfriend / girlfriend. He did this notwithstanding that he knew that she was
emotionally vulnerable. He failed to exercise restraint and regarded his own needs as paramount. In the
Committee‟s view, there was obvious potential for Resident A to become hurt and upset in the circumstances,
and for intentions to be misinterpreted. She was already in a vulnerable position, and yet she was placed in a
situation where there was a risk that she would be exposed to the registrant‟s own need for support.
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Moreover, the circumstances were complicated by the fact that, at the same time as pursuing a relationship of
boyfriend / girlfriend, the registrant also regarded Resident A as a valuable source of material for his research
interests. As he admitted at the investigatory meeting conducted on 02 August 2011, he wanted to use Resident
A as a case study. Accordingly, and for each of these reasons, the Committee is of the view that the pursuit of
the relationship was not in the best interests of Resident A and was also inappropriate.
Of course, the circumstances of each case have to be judged separately and individually. In the case of this
registrant, the Committee has heard evidence, which it accepts, that the registrant commenced his visits to
Resident A at Rathfriland Manor very shortly after she transferred from Ardmaine, and was pursuing a
relationship of boyfriend / girlfriend with her within a very short period of time of the professional relationship
having ended.
In the circumstances of this particular case, the Committee takes the view that this was wholly inappropriate.
Moreover, it agrees with Mr Wilson‟s submission that whether or not there was consent for this pursuit it is not an
answer to the charge.
Paragraph 9: the Committee accepts the evidence of Ms Lesley Johnston, that the registrant submitted a
research proposal to „UnLtd‟ on 01 July 2011.
Paragraph 10: having had the opportunity to consider the document, the Committee finds as a fact that the
research proposal which the registrant submitted to Lesley Johnston of „UnLtd‟ on 01 July 2011 contained the
resident‟s name; the name of the resident‟s sister; information identifying the place at which Resident A was
cared for; and details regarding the resident‟s health and medical needs.
The Committee finds that, by the very nature of the information disclosed in the research proposal, it constituted
personal information for which the consent of the resident and her sister would ordinarily be required.
In assessing whether the facts have been established, the Committee has considered the contents of the record
of the disciplinary meeting which took place on 10 August 2011, and having regard to the evidence of Ms
Gilchrist, it is satisfied that this is an accurate record of what was discussed at that meeting. The registrant has
been recorded as saying at that meeting that he accepts that he breached the confidentiality of Resident A and
her sister by circulating the material contained in the research proposal. He told the meeting that, in doing so, he
„didn‟t think‟ and that „it was unintentional‟. Nevertheless, the Committee is satisfied that the registrant failed to
take steps to obtain the consent of Resident A or her sister before disclosing the personal information, and that
he should have done so.
Paragraph 11: having regard to the nature of the material that was contained within the research proposal, the
Committee is entirely satisfied that it was not in the best interests of Resident A, and nor was it appropriate for
the personal information to be disclosed without consent.
The Committee has not received any evidence to contradict the assertion made by the registrant at the
investigatory meeting which took place on 02 August, that he obtained Resident A‟s consent to use information
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pertaining to her in an ethnographic study. However, it is plain from the admissions that he made at the
disciplinary hearing that the registrant did not take the next step of informing Resident A that he would be
publishing material from that study which was personal to her and a family member, and disseminating that
material to a third party who was unknown to them.
It is perfectly obvious that Resident A and her sister would have an interest in deciding whether they were
satisfied that the information relating to them could be disclosed in the way which the registrant proposed, to the
organisation he proposed to send it to and for the purposes intended by him. The registrant, for reasons which
have not been adequately explained, deprived the resident and her sister of that opportunity. This conduct was
clearly not in the resident‟s best interests and was self-evidently inappropriate and without excuse. The
Committee noted that the registrant had completed a BSc Honours in Community Development at the University
of Ulster, and ought to have recognised the importance of safeguarding confidential information.
Paragraphs 12-14: it is appropriate and convenient to consider paragraphs 12, 13 and 14 together. The
Committee has studied the email sent by the registrant to Ms. Rooney (Conduct Officer NISCC), dated 02
September 2011. It is satisfied that the registrant stated within that email that his research proposal had gained
the support of Dr Rosemary Moreland, and that she had given a reference.
The Committee, having regard to the evidence of Dr Moreland, which has already been fully described in the
foregoing, is satisfied that she did not express any support for the registrant‟s research proposal and that she had
not provided a reference to the registrant. The Committee was impressed with the evidence given by Dr
Moreland, and is further satisfied that if the registrant had even so much as discussed his research interest with
her, she would have recalled the discussion. It was quite clear to the Committee that what the registrant
described in his email had simply never occurred.
For the purposes of paragraph 14, the Committee accepted the advice of the Legal Adviser in relation to the
correct approach to be adopted when determining whether dishonesty has been made out. The Legal Adviser
referred the Committee to the decision in Ghosh, and advised the Committee that, having regard to the oral and
documentary evidence which it had considered, it had to be satisfied that, at the material time, the registrant‟s
actions would have been regarded as dishonest according to the ordinary standards of reasonable and honest
people. He further advised that, in addition, and having regard to the same evidential material, the Committee
must also consider whether it is satisfied on the balance of probabilities that the registrant himself would have
realised, at the material time, that his actions would be regarded as dishonest by those standards.
Having received and accepted that advice, the Committee is satisfied that both limbs of the Ghosh test have
been satisfied, and that the particulars contained within paragraph 14 have been established to the requisite
standard. Accordingly, the Committee is satisfied that, when the registrant told Ms. Rooney that Dr Moreland
supported his research proposal and had provided a reference he had lied to her, and that his actions were
necessarily dishonest. Paragraphs 12, 13 and 14 have been proved to the satisfaction of the Committee.
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Paragraphs 15-17: again, it is appropriate and convenient to consider paragraphs 15, 16 and 17 together. The
Committee has studied a submission dated 01 December 2011 and is satisfied that this was sent by the
registrant to the Preliminary Proceedings Committee.
The submission contains the following assertion on internal page 6: ‘No information about Mrs x [Resident A] and
her family were (sic) has been used to promote the ‘Holidays With Nursing Care’ project’.
The Committee is satisfied that the assertion contained in the registrant‟s submission is inaccurate. It is plain to
the Committee that information relating to Resident A and her sister was submitted to Ms Lesley Johnston on 01
July 2011, when she interviewed the registrant on behalf of „UnLtd‟ in order to assess his suitability for a grant in
respect of his „Holidays With Nursing Care‟ project.
It will be noted from the analysis set out above that the Committee was satisfied with the evidence provided by
Ms Johnston, who recalled receiving a document from the registrant on 01 July 2011 which expressly and directly
referred to Resident A and her sister. The Committee is satisfied that the sole, or main purpose, for placing this
information into Ms Johnston‟s possession was to advance the grant application and so promote the „Holidays
With Nursing Care‟ project.
Having regard to paragraph 17, the Committee again received advice from the Legal Adviser in accordance with
the dicta contained in Ghosh concerning the proper approach to the question of dishonesty. Having received and
accepted that advice, the Committee is satisfied that both limbs of the Ghosh test have been satisfied, and that
the particulars contained within paragraph 17 have been established to the requisite standard.
Accordingly, the Committee is satisfied that when the registrant wrote in his submission to the Preliminary
Proceedings Committee on 01 December 2011 that, „No information about Mrs x [Resident A] and her family
were (sic) has been used to promote the ‘Holidays With Nursing Care’ project’ he had lied, and that his actions in
doing so were necessarily dishonest. Paragraphs 15, 16 and 17 have been proved to the satisfaction of the
Committee.
Misconduct
Having made a determination on the facts, the Committee proceeded to consider whether misconduct has been
established against the registrant. In this regard, the Committee heard a submission on the issue from Mr Wilson
on behalf of the Council. The Committee also heard and accepted the advice of the Legal Adviser.
The Committee reminded itself that misconduct is defined in Rule 5 (7) of Part II of the Conduct Rules as conduct
‘which calls into question the registrant’s suitability to remain on the Register’. The Committee took cognisance
of, and derived assistance from, the definition of misconduct recited in Roylance v GMC (No.2) [2000] 1 AC 311
at 330. In that case, the Privy Council said that ‘misconduct is a word of general effect, involving some act or
omission which falls short of what would be proper in the circumstances. The standard of propriety may often be
found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the
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particular circumstances…it is not any professional misconduct which would qualify.
The professional
misconduct must be serious’.
The Committee reminded itself of the requirements of Rule 12 (1) of Schedule 2 of the Conduct Rules. The
Council has brought these proceedings against the registrant. The burden rests upon the Council to prove that
the registrant has acted in a manner which amounts to misconduct. The applicable standard is the balance of
probabilities.
The Committee has found that the registrant kissed Resident A in Ardmaine Care Centre and in Rathfriland
Manor, and that in doing so, his conduct was not in her best interests and was inappropriate. The Committee
has also determined that the registrant pursued an inappropriate relationship of boyfriend / girlfriend with
Resident A, that this was also not in keeping with the best interests of Resident A and was inappropriate.
In accordance with Rule 23 (4) of Schedule 2 of the Conduct Rules, the Committee has had regard to the Code
of Practice for Social Care Workers to assist in its determination of whether the facts found by it constitute
misconduct on the part of the registrant. The Committee is satisfied that by kissing the registrant in the
circumstances described, and by pursuing a relationship of boyfriend / girlfriend, the registrant‟s behaviour
amounted to misconduct. In reaching this conclusion, the Committee is also satisfied that the registrant has
breached the following provisions of the Code, which state that a social care worker should not:
5.4
Form inappropriate personal relationships with service users;
5.7
Put yourself or other people at unnecessary risk; or
5.8
Behave in a way, in work or outside work, which would call into question your suitability to work in social
care services.
The Committee has also found that the registrant disclosed confidential information relating to Resident A and
her sister to a third party without seeking their consent, and that in doing so his conduct was not in the best
interests of Resident A and was inappropriate. The Committee again has considered the Code of Practice to
assist it in determining whether the facts found in this respect constitute misconduct. The Committee is satisfied
that the act of disclosing confidential information without the consent of Resident A or her sister is inexcusable,
and must inevitably be regarded as an act of misconduct in the circumstances of this case. In this regard, the
Committee found assistance in the following provisions of the Code which provide that a social care worker:
2.3
[Should respect] confidential information and clearly [explain] agency policies about confidentiality to
service users and carers; and
5.3
[Should not] abuse the trust of service users and carers or the access you have to personal information
about them, or to their property, home or workplace.
The Committee finds that the registrant has breached these provisions of the Code.
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The Committee also found as a fact that the registrant acted dishonestly when he told the Ms Rooney of the
NISCC that Dr Moreland supported his research project and had provided a reference.
He also acted
dishonestly when he provided a submission to the Preliminary Proceedings Committee, which claimed that he
had never used the name of Resident A or her sister to promote his „Holidays With Nursing Care‟ project. In light
of these findings, the Committee was left entirely satisfied that the registrant‟s behaviour constituted misconduct
and contravened the Code. The Code contains the following provisions:
2.1
Being honest and trustworthy; and
2.2
Communicating in an appropriate, open, accurate and straightforward way.
Accordingly, the Committee is satisfied that the actions of the registrant as determined at the fact finding stage of
these proceedings, fell below the standards set out above which would be expected of a social care worker in the
circumstances.
For these reasons, the Committee is satisfied that the registrant has acted in a manner which amounts to
misconduct, and that this has been proved by the Council on the balance of probabilities.
Sanction
The Committee has been advised by the Legal Adviser that the purpose of sanctions is not punitive. It accepts
that advice. However, it recognises that the imposition of a sanction may have a punitive effect. The purpose of
sanctions is primarily to protect the public. Other relevant considerations include maintaining public confidence in
the profession, maintaining confidence in the NISCC regulatory process and to provide for a deterrent effect on
other registrants.
The Committee was reminded by the Legal Adviser of the importance of approaching the question of sanction by
bearing in mind and applying the principle of proportionality, by striking a balance between the interests of the
public and the rights of the registrant. The Committee recognised that it should not seek to impose a sanction
which is more severe than is necessary having regard to the purpose of applying sanctions. In order to ensure
that a proportionate outcome is achieved, the Committee considered the available sanctions in Rule 25 of
Schedule 2 in ascending order of severity.
The Committee has given due consideration to the NISCC Indicative Sanctions Guidance and has accepted the
advice of the Legal Adviser.
Admonishment – the Committee first considered whether it was appropriate to admonish the registrant. The
Committee noted that there was no evidence of repetition of the behaviour complained of which has resulted in
the current proceedings against the registrant, although the registrant has been the subject of an Interim
Suspension Order. In addition, the Committee has noted that there have been no other findings against the
registrant in any other regulatory proceedings with the NISCC.
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The Committee also recognised that the registrant has expressed some awareness that his behaviour was
inappropriate. In a letter sent to the NISCC on 06 August 2013 (erroneously dated 2012), the registrant indicated
that „inappropriate behaviour did occur‟. However, the Committee has reached the view that this awareness is
limited and equivocal, and does not reveal a full understanding of the extent of his misconduct and the harm that
it caused or could have caused. At various points when interviewed by the SHSCT and Southern Cross Health
Care, those interviewing him pointed out how his conduct departed from acceptable standards. It was only rarely
during those interviews that the registrant volunteered that his conduct was unacceptable.
In all of the circumstances, the Committee is not satisfied that an admonishment is a suitable or sufficient
sanction in this case. The Committee is concerned that there is a significant risk of repetition in this case,
whether in terms of entering into inappropriate relationships with service users, breaching client confidentiality or
engaging in acts of dishonesty. The Committee finds that there is an absence of evidence to demonstrate true
insight in this case, and there is a striking absence of evidence to show that the registrant has taken steps to
learn from his experiences. This is exemplified by the fact that, shortly after he was dismissed from his
employment with Southern Cross Health Care, the registrant wrote to Mrs Rooney in the dishonest fashion that
has been described above. Even when regulatory proceedings were commenced against him, the registrant
continued to offend against the Code of Practice by providing a dishonest submission to the Preliminary
Proceedings Committee. The Committee is satisfied that an admonishment would not afford adequate protection
to the public.
Suspension – the Committee next addressed the question of whether it was appropriate to make an Order
suspending the registrant‟s registration for a period not exceeding two years. The Committee repeats the
analysis set out above in relation to admonishment. The Committee reached the view that the repeated
misconduct of the registrant over a period of time, when viewed globally, rendered it particularly serious. The
registrant‟s misconduct was wide-ranging and involved various significant breaches of the Code of Practice. The
Committee is concerned that there is a substantial risk that the offending conduct could recur if the registrant was
afforded the opportunity to return to a care environment. Having regard to the findings of fact made in respect of
this case, and the decision which the Committee has reached in respect of the registrant‟s misconduct, the
Committee is satisfied that the interests of service users and the public at large would not be sufficiently
protected, even if a lengthy period of suspension was imposed. The Committee has no confidence that the
registrant will be able to take steps to resolve or remedy the cause of the misconduct during a period of a
suspension.
Removal – for these reasons, the Committee has determined that it is appropriate to impose a Removal Order in
this case. This sanction is necessary to protect the public and to declare and uphold proper standards of conduct
and behaviour in the public interest.
The Committee has made findings of fact against the registrant which plainly demonstrate that he acted in a
manner which abused his position of responsibility. He did this in a number of ways: by engaging in intimate
Page 15 of 19
contact with Resident A, by pursuing an inappropriate relationship with her, and by using confidential information
gathered during that relationship and using it without her knowledge or consent. The registrant has demonstrated
a blatant disregard for the interests of Resident A, and risked causing harm to her when he knew that she was a
vulnerable person. The Committee is concerned that harm could be caused to other service users if the
registrant was not removed from the Register.
There are a number of aggravating features of this case. The Committee was particularly concerned that the
registrant seemingly failed to learn any lessons as a result of being dismissed from his employment, but
proceeded to communicate dishonestly with the NISCC in an effort to mislead the Council and to place a more
favourable gloss on his behaviour. In the circumstances of this case, and having regard to paragraphs 5.10-5.13
of the Indicative Sanctions Guidance, the Committee is of the view that the registrant‟s dishonesty is wholly
incompatible with his role as a social care worker. By acting dishonestly in his communications with Mrs Rooney,
the Committee is of the view that the registrant had no regard for the rights and reputation of Dr Moreland. The
Committee further finds that the registrant set out intentionally to mislead the Council. More recently, the
registrant has written to the NISCC in a manner which indicated a clear and obvious disrespect for the regulatory
process.
The Committee reminded itself of the guidance given in the case of Parkinson v NMC [2010] EWHC 1898 (Admin)
which, although dealing with the regulation of nurses, has general application and is, in the Committee‟s view, of
assistance in this case. The Court observed that ‘a nurse found to have acted dishonestly is always going to be
at severe risk of having…her name erased from the Register. A nurse who has acted dishonestly, who does not
appear before the Panel either personally or by solicitors or Counsel to demonstrate remorse, a realisation that
the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the
small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather
than direct erasure.’
In addition to its finding of dishonesty, the Committee has identified various breaches of the NISCC Code of
Practice for Social Care Workers, which taken individually and collectively demonstrate a serious departure from
the standards to be expected of social care workers.
The Committee has carefully balanced the interests of the registrant together with those of the public interest and
the need to ensure that the public are protected. The Committee has also reminded itself of the need to adhere
to the principle of proportionality. Having regard to its findings of fact and decision on misconduct, the Committee
is satisfied that the public interest and the need to protect the public makes it necessary to impose a Removal
Order in this instance.
In the circumstances, the Interim Suspension Order currently in place in respect of the registrant is hereby
revoked, and the Removal Order shall take immediate effect.
Page 16 of 19
Legal Advice Given
Service of Documents & Proceeding in Absence of the Registrant
The Legal Adviser advised the Committee that notice to the registrant had been served in accordance with the
Rules, which was confirmed by proof that the registrant had signed for the Notice of Hearing. The registrant also
submitted to the Council, by letter dated 06 August 2012, correspondence indicating that he did not wish to
attend. If the Committee was satisfied that service of the requisite notice had been effected in accordance with
the Rules, it should then consider whether it should proceed in the registrant's absence.
The Legal Adviser advised the Committee to proceed cautiously and with care, and that what was at stake was
a balancing exercise, weighing on the one hand the registrant's right to attend and, secondly, weighing against
that the public interest in proceeding with the hearing expeditiously. The Legal Adviser told the Committee that it
would be relevant to consider whether the registrant had indicated whether he was prepared to engage with the
process and, in assessing that question, it could refer to the content of the registrant's correspondence of 06
August 2013.
Finding of Facts
The Legal Adviser advised the Committee that it had to decide whether or not the facts set out in the Charges
had been proved. It must reach its decision only on the basis of the evidence. It must consider that evidence
and form its own judgment about the credibility of the witnesses and determine which evidence is reliable and
which evidence perhaps is not. The Legal Adviser informed the Committee that it did not have to decide every
point which had been put before it, but only those matters which were relevant to determining whether the facts
were proved. In this regard, the Committee should give proper cognisance to the burden and standard of proof.
The Legal Adviser reminded that Committee that the burden of proof rests with the Council to prove the facts
which give rise to the charges, and the standard of proof is the balance of probabilities.
The Legal Adviser referred the Committee to Rule 12 of Schedule 2 of the Rules, which provides that the more
serious the allegation, the more cogent is the evidence required to prove it. He reminded the Committee that the
test was not one of beyond all reasonable doubt.
The Legal Adviser told the Committee that the evidence, particularly with regard to, albeit not exclusively with
regard to, the nature of the relationship between the registrant and the service user relied very much upon the
admissions apparently made by the registrant during various meetings. He instructed the Committee to give
consideration to the records that had been put before it in relation to those meetings. He advised the Committee
to give due consideration to what the registrant said in his submission, in respect of what he had said and what
had been said about him. He reminded the Committee that it had not received evidence that the registrant
received the minutes of any of these meetings for the purposes of commenting upon the accuracy or otherwise of
the minutes, although the Committee had heard from Mrs Stevenson who indicated that the minutes were sent to
the registrant at the time of the disciplinary hearing, where he would have been taken through the minutes and
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given an opportunity to discuss them and make comments. The Legal Adviser advised the Committee to take
into account and consider the fact that the registrant had had opportunity at that disciplinary meeting to comment
upon the minutes. He had also had opportunity, through his engagement with the Council's process, to comment
on the minutes and, in particular, the Committee had received a submission from him in which he touched upon
the various aspects of the evidence that he knew would be used in connection with these proceedings.
Misconduct
The Legal Adviser advised the Committee that the definition of misconduct is „conduct such as to call into
question the registrant's suitability to remain on the Register.’ The Legal Adviser referred the Committee to the
case of Roylance v General Medical Council, in which the Judicial Committee of the Privy Council indicated that
‘misconduct is a word of general effect involving some act or omission which falls short of what would be proper
in the circumstances. The standard of propriety may be often found by reference to the rules and standards
ordinarily required to be followed by’ - in that case it was a medical practitioner, in this case it is a social care
worker – „in the particular circumstances’.
The Legal Adviser advised the Committee to pay due cognisance to the Code of Practice for Social Care
Workers, and to satisfy itself whether any aspects of the Code were breached.
The Legal Adviser reminded the Committee that it is the legal responsibility of the Council, having brought the
proceedings against the registrant, to discharge its burden of proving that misconduct has been made out. The
burden of proof rests with the Council and that burden must be discharged in accordance with the civil standard,
that is on the balance of probabilities. He informed the Committee that it must be satisfied that it was more likely
than not that the conduct which it had found in its findings of fact to have occurred amounted to misconduct in
contravention of the Rules.
Sanction
The Legal Adviser drew the Committee‟s attention to the sanctions available to it under the Rule 25 of Schedule
2 of the Conduct Rules.
In deciding whether and what sanction to be imposed, the Legal Adviser directed the Committee to take into
account various factors as set out in Rule 25 (2). He reminded the Committee that it was obliged to take into
account the seriousness of the registrant's misconduct, the protection of the public, the public interest in
maintaining confidence in social care services and the issue of proportionality.
The Legal Adviser referred the Committee to the Indicative Sanctions Guidance, and more specifically Paragraph
2.2 which provides that the public should have confidence that the Northern Ireland Social Care Council as the
regulator of social care workers will uphold proper standards of behaviour and conduct. The public interest
requires that the public and social care users are protected from unsafe practice and that confidence in the
profession of social work and the social care work force in general is maintained; Paragraph 2.3 which provides
that in serving the public interest, the primary purpose of sanctions is to ensure firstly, that the social care worker
Page 18 of 19
does not have an opportunity to repeat the misconduct and, secondly, to maintain the reputation of the
profession. The Legal Adviser informed the Committee that the primary purpose of sanctions is not punitive in
nature, albeit that in terms of the effect of any sanction, it may be felt punitively by a registrant.
The Legal Adviser also referred the Committee to Paragraphs 2.4, 2.5 and 2.6 of the Indicative Sanctions
Guidance in regards to fairness and proportionality.
The Legal Adviser reminded the Committee that it was its duty to give due weight to mitigating factors as well as
aggravating factors in its deliberations. The Committee would be cognisant of the fact that the registrant had
chosen not to attend and was not represented. Nevertheless, it was the Committee‟s obligation to consider all of
the material before it, and if there was evidence to ground mitigation or to support mitigation it should take that
into account and weigh it in the balance before determining the appropriate sanction.
The Legal Adviser referred the Committee specifically to Paragraph 5.13 of the Indicative Sanctions Guidance
which deals with the issue of dishonesty, and to consider what sanction to impose in ascending order of severity
as set out in the Rules.
Right of Appeal
You have the right to appeal this decision to the Care Tribunal. Any appeal must be lodged in writing within 28
days from the date of this Notice of Decision.
You should note that the Conduct Committee’s decision takes effect from the date upon which it was
made.
The effect of this decision is that your entry on the Register has been removed with immediate effect.
Clerk to the Conduct Committee
Date
Page 19 of 19