Case Examiner Decision Stephen Moyo FTPS-16886 · Case reference number FTPS-16886 Date the concern...

Classification: Confidential

Case Examiner Decision Stephen Moyo FTPS-16886


Contents

The role of the case examiners .................................................................................................. 3

Administrative details ................................................................................................................ 4

Decision summary ...................................................................................................................... 5

Summary of the initial concerns ................................................................................................ 6

Preliminary issues ...................................................................................................................... 8

The realistic prospect test - facts ............................................................................................... 9

The realistic prospect test - grounds ....................................................................................... 10

The realistic prospect test – current impairment .................................................................... 12

Referral to a hearing ................................................................................................................ 15

Accepted disposal .................................................................................................................... 16

Final decision............................................................................................................................ 21

3


The role of the case examiners

The case examiners perform a filtering function in the fitness to practise process, and their

primary role is to determine whether the case ought to be considered by adjudicators at a

formal hearing. The wider purpose of the fitness to practise process is not to discipline the

social worker for past conduct, but rather to consider whether the social worker’s current

fitness to practise might be impaired because of the issues highlighted. In reaching their

decisions, case examiners are mindful that Social Work England’s primary objective is to

protect the public.

Case examiners apply the ‘realistic prospect’ test. As part of their role, the case examiners will

consider whether there is a realistic prospect:

• the facts alleged could be found proven by adjudicators

• adjudicators could find that one of statutory grounds for impairment is engaged

• adjudicators could find the social worker's fitness to practise is currently impaired

Case examiners review cases on the papers only. The case examiners are limited, in that,

they are unable to hear and test live evidence, and therefore they are unable to make

findings of fact.

4


Administrative details

Case examiners

Lay case examiner Michael Lupson

Professional case examiner Michael Broadhurst

Social worker that is the subject of the concern(s)

Name Stephen Moyo (referred to hereafter as ‘the social

worker’).

Registration number SW128780

Date of registration 16 October 2019

Case details

Case reference number FTPS-16886

Date the concern was raised 22 January 2020

5


Decision summary

Decision summary

Provisional decision Accepted disposal – conditions of practice (12 months)

Final decision Accepted disposal – conditions of practice (12 months)

Executive summary

The case examiners have determined it is not in the public interest to refer this matter to

adjudicators. Rather, they have decided, with the social worker’s agreement, to dispose of

this matter without a hearing.

They found a realistic prospect of the concern being found proved; a realistic prospect that

the concern would amount to misconduct, and a realistic prospect the social worker’s

fitness to practise would be found to be currently impaired. The case examiners’ full

reasons are set out below.

The social worker has indicated that he has agreed that with the case examiners’ decision

that this matter be dealt with by way of accepted disposal (conditions of practice - 12

months).

6


Summary of the initial concerns

Complainant’s details

Complainant’s name Melanie Kearns

Relationship to the social

worker

Team manager at the social worker‘s previous employer.

Details of the complaint

Date complaint was

received

22 January 2020

Complaint summary The complainant is a team manager at Trafford north

community mental health team, part of Greater

Manchester Mental Health. This is where the social

worker was employed as an agency social worker.

On 22 January 2020, the complainant received a

“FairWarning alert” advising that the social worker had

accessed a PARIS (case recording system) record for a

service user with the same surname, Moyo. The service

user did not reside in the Trafford area and was not open

to the team that the social worker was working for.

The complainant states the social worker accessed the

record at 15:08 hours until 15:15 hours on 4 December

2019. The complainant informs us that the social worker

accessed personal details, progress notes, migrated

events, assessment, clinical summary, and appointments

for the service user.

The complainant met with the social worker on the day the

alert was received. She states the social worker admitted

that the access of the record was deliberate and not

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legitimate. The social worker’s employment was ended

with immediate effect.

Regulatory concerns

1. On 04 December 2019 whilst employed as a social worker at Greater Manchester

Mental Health NHS Trust, you accessed a service user’s electronic records without

permission and without a legitimate or professional reason to do so.

Your fitness to practise as a social worker is impaired by reason of misconduct.

Key evidence considered by the case examiners

• The testimony of the social worker’s previous team manager (MK).

• FairWarning report.

• Emails between Service Care Solutions and the training team at Greater

Manchester Mental Health NHS Foundation Trust.

• Service Care Solutions Ltd certificate of completion record for the social worker.

• Service Care Solutions Ltd data protection/GDPR policy.

• The social worker’s submissions/ email exchange with Social Work England

investigator.

8


Preliminary issues

Conflicts of interest

Declaration: I am not aware of any material conflicts of interest that could impact upon

my consideration of this case.

Lay case examiner Michael Lupson

Professional case examiner Michael Broadhurst

Requests for further information or submissions, or any other preliminary

issues that have arisen

The case examiners are satisfied that the social worker in this case has been notified of

the grounds for investigating whether their fitness to practise is impaired and has been

provided with a reasonable opportunity to make written representations to investigators.

9


The realistic prospect test - facts

Is there a realistic prospect of the facts as stated being found?

In considering the facts, the case examiners have utilised the evidence provided in the

case bundle. The concern will be addressed in more detail within the text but as a

summary:

There is a realistic prospect of the facts being found proven by adjudicators for the

regulatory concern.

1. On 04 December 2019 whilst employed as a social worker at Greater Manchester Mental Health NHS Trust, you accessed a service user’s electronic records without permission and without a legitimate or professional reason to do so.

The case examiners have identified the key evidence in this case, in summary:

• The testimony of the social worker’s previous team manager, MK (within the

online concern form) confirms she received the ‘FairWarning alert’ showing the

social worker accessing an electronic record outside of the Trafford area. She

states the case was not open to the social worker’s team, which suggests there

was no professional reason for the social worker to access the record.

• MK confirms that, when she spoke with the social worker, he confirmed he had no

legitimate reason to access the record, which in turn suggests he did not have

permission.

• MK confirms the social worker’s contract was ended with immediate effect,

further supporting that it was deemed there was no professional or legitimate

reason for the social worker to access the service user’s electronic record.

• The FairWarning report shows the social worker accessing the record of a service

user with the same surname as him on 4 December 2019 from 15.08 hours

through to 15.15 hours. Although ends of the last words have been cut off on two

of the line details, the evidence suggests the social worker accessed personal

details, progress notes summary, migrated events, assessments, clinical summary,

and service user appointments, all on the service user’s record.

In his submissions, the social worker accepts he accessed the record of a service user with

the same name as him, but that he is not related to them, rather the service user is a

family friend. The social worker states he regrets his actions and the breach of

confidentiality but that, as it was his first posting as a social worker and occurred in only

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his second week of practice, he was not aware he was breaching confidentiality at the

time.

To conclude, the case examiners are satisfied that there is a realistic prospect of the matter being found proven by adjudicators.

Is there a realistic prospect of facts being found if the regulatory concerns

were amended?

N/A

The realistic prospect test - grounds

For the facts that have passed the realistic prospect test, is there a realistic

prospect that they could amount to an allegation of impaired fitness to

practise by reason of the statutory grounds?

The case examiners must next consider whether, if found proven, the concerns would

amount to an allegation of impaired fitness to practise by reason of the statutory ground.

The relevant statutory ground in this case is misconduct.

Case examiners note that ‘misconduct’ denotes serious acts or omissions, suggesting a

significant departure from what would be proper in the circumstances.

The case examiners consider it is an expectation that social workers should maintain the

confidentiality of service users, this is a key element of social work and is the personal

responsibility of the individual social worker.

Though they note the social worker‘s comments that he wasn’t aware he was breaching

confidentiality at the time of accessing the record of a service user who was a family

friend, the case examiner’s do not consider this a plausible explanation.

The case examiners note the emails between Service Care Solutions and the training team

at Greater Manchester Mental Health NHS Foundation Trust. In these, it is confirmed that

the social worker received training around the PARIS case system on 26 November 2019,

(eight days before he appears to have accessed the service user’s record with no

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legitimate purpose) and that this training includes expectations around sensitive and

confidential data.

The case examiners also note the Service Care Solutions Ltd certificate of completion

record for the social worker, which shows he completed distance learning around

information governance on 11 November 2019. It is reasonable to conclude this would

have included information based on Service Care Solutions Ltd data protection/GDPR

policy, which the case examiners also have sight of, and that it should have assisted the

social worker in understanding his responsibilities around sensitive information.

Despite the evidence suggesting the social worker had opportunities to embed

expectations around confidentiality, the case examiners consider that, even without this,

it is a very basic expectation that professionals should know not to access confidential

information when they have no professional reason to do so.

Further to this, the social worker should also have been aware of Social Work England’s

professional standards. To help them decide if the evidence suggests a significant

departure from professional standards, the case examiners have considered the following

Social Work England professional standards that were in place at the time of the alleged

conduct:

• 2.2 Respect and maintain people’s dignity and privacy.

• 2.6 Treat information about people with sensitivity and handle confidential

information in line with the law.

If it was found proven that the social worker breached confidentiality and accessed the

service user’s record with no legitimate purpose, he could have obtained information that

the service user wanted to keep private, which may negatively impact their dignity. This

would not align with standard 2.2.

Accessing confidential information with no legitimate purposes is likely to be considered

unlawful due to GDPR. Respecting confidentiality is central to social work principles,

failing to do so is likely to be considered unethical and has the potential to bring the

profession into disrepute. As such, if the alleged conduct was found proven, this would

not align with standard 2.6.

Though the case examiners do not have any information to show if the service user is

aware of the alleged conduct of the social worker, or how this impacted them, it is

reasonable to conclude that his alleged actions had the potential to cause emotional

harm to the service user. Due to this, and as maintaining service user confidentiality is

such an important part of social work, and that not doing so has real potential to harm

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public confidence in the profession, the case examiners consider this is sufficiently serious

and would represent a significant departure from the standards.

As such, the case examiners are satisfied there is a realistic prospect of adjudicators

finding this matter amounts to misconduct.

The realistic prospect test – current impairment

Fitness to practise history

The case examiners have not had sight of any evidence to indicate adverse history.

Is there a realistic prospect that, if the case were to proceed to a hearing, the

adjudicators might find the social worker’s fitness to practise is currently

impaired?

In assessing whether there is a realistic prospect of adjudicators finding the social

worker’s fitness to practise to be impaired, the case examiners have reminded

themselves that the purpose of regulation is not to punish a social worker for past

mistakes. Rather, the regulatory process seeks to establish whether a social worker is safe

and fit to practise today and in the future.

The case examiners have considered both the personal and public interest elements of

this case.

Personal

In considering current impairment, the case examiners have considered whether the

conduct is remediable, whether the social worker has undergone remediation and

demonstrated insight, and whether there is a likelihood the matters alleged will be

repeated.

The social worker confirms he regrets his actions but maintains he was not aware that he

had breached confidentiality.

The case examiners do not feel the social worker has demonstrated sufficient insight in

this case. The social worker in his submissions focuses predominantly on how the matter

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has helped him learn and develop. Though remediation is important, without true insight,

remediation is a significant challenge. The case examiners would expect to see the social

worker reflect on how this has, or could potentially have, impacted the service user and

their trust in the profession. Similarly, the impact his actions could have had on the

confidence of the wider public. The social worker does not offer this anywhere within his

submissions.

Regarding remediation, though the social worker describes extensive reading around

confidentiality, he has not presented any documentation that would support this. Neither

has the social worker demonstrated how his reading has translated into practical learning,

for example by way of certificated learning programmes.

The case examiners do believe that the alleged conduct could be remediated. However,

without sufficient insight, they cannot conclude the social worker is currently capable of

this.

The case examiners considered the social worker’s mitigation that he was new in practice

but do not consider this negates that he should have been aware of the need to respect

confidentiality. They have detailed their rationale for this within their consideration of the

grounds.

Indeed, the case examiners are concerned that the social worker was so quick to access

the record of a family friend after he was given access to sensitive information for the

first time. They consider this an aggravating factor as they do not have information that

suggests the alleged conduct was out of character or a departure from the social worker’s

usual standards of practice.

The case examiners conclude that the risk of repetition is high. There is a lack of sufficient

insight and remediation is not deemed to have been completed. Further, they consider

the social worker could not fully remediate at present due to the lack of sufficient insight.

As such, there is a realistic prospect that adjudicators will make a finding of personal

impairment.

Public

The case examiners have considered whether the social worker’s actions have the

potential to undermine public confidence in the social work profession and whether this

is a case where the public interest may require a finding of impairment.

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The evidence suggests the social worker has breached the confidentiality of an individual

in contact with social care. This had the potential to expose the service user to emotional

harm.

Respecting confidentiality is something which is fundamental in social work practice,

failing to do this has the potential to undermine trust and confidence in the profession.

The alleged conduct is a significant departure from the standards.

As such, there is also a realistic prospect that adjudicators will make a finding of public

impairment.

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Referral to a hearing

Is there a public interest in referring the concerns to a hearing?

The case examiners must now turn their minds to whether it is in the public interest for this

matter to be referred to a final hearing to be considered by adjudicators. Whilst the case

examiners have determined there is a realistic prospect that adjudicators would find the

public interest is engaged in this case, they are of the view that the public interest can be

satisfied by their decision, and the reasons for that decision, being published on Social Work

England’s public register which can be found on its website.

The publication of this decision will provide the social worker with an opportunity to reflect

on and gain further insight into the circumstances of this case. The publication of this

matter will also highlight behaviour that falls short of acceptable standards in social work

and will act as an example to other member of the profession. Publication also

demonstrates that swift and appropriate action is taken in cases of alleged wrongdoing,

enhancing the public’s confidence in the social work profession. Further, the case

examiners do not consider this to be the type of case where public confidence in the

profession will be damaged by not holding a public hearing.

Lastly, public interest also entails the need for proportionate decision-making. The case

examiners consider it is in the public interest to bring this matter to a prompt conclusion,

whilst also ensuring the public remains adequately protected.

For the reasons stated, the case examiners have decided it is not in the public interest to

refer this matter to adjudicators; rather they will write to the social worker and ask them

to agree to dispose of this case without the need for a hearing.

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Accepted disposal

Case outcome

Proposed outcome Final order – conditions of practice (12 months)

Reasoning

The case examiners are satisfied there is a realistic prospect of the concern being found

proven by adjudicators. Furthermore, they have found a realistic prospect that those

complaints, if proven, would amount to misconduct. The case examiners have also found a

realistic prospect that adjudicators would find the social worker’s fitness to practise is

currently impaired. Case examiners have decided however that it is not in the public

interest to refer this matter to a final hearing.

The case examiners are aware they must choose the most appropriate sanction necessary

to protect the public.

The case examiners have started at the lowest possible sanction and worked up, testing

the appropriateness of each sanction and the next sanction above it to confirm their

decision is proportionate.

They have considered taking no further action. The case examiner guidance (para 108)

states that this may be appropriate if there has been a significant departure from

professional standards or guidance, but which has been fully remediated with no risk of

repetition. The case examiner guidance (para 110) states this outcome is very unlikely to

be appropriate where there is any continuing risk to the public of the social worker

behaving in the same way again. As the case examiners considered that remediation was

incomplete and there was a risk of the social worker repeating the conduct, this sanction

is not appropriate.

The case examiners next considered giving advice or giving a warning to the social worker.

However, they note the case examiner guidance (para 112) which states that these

outcomes do not directly restrict practice. The case examiners consider there is an ongoing

risk to the public and the guidance states in such circumstances these are not appropriate

outcomes.

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As such, the case examiners believe that a final order requiring conditions of practice is the

minimum necessary to ensure the public remains protected while the social worker gains

full insight and completes his remediation.

To ensure this sanction was appropriate, they did consider if suspension was necessary.

The case examiner guidance (para 128) states suspension is appropriate where no

workable conditions can be formulated that can protect the public or the wider public

interest. The case examiners are satisfied that there are workable conditions in this case,

so suspension would be too severe.

Further, the case examiner’s note that, from the social worker‘s submissions, he has

demonstrated a passion for social work and a desire to develop. Given that the social

worker is new to practice, suspension would likely de-skill him and prevent him from

gaining the experience that he requires.

The case examiners are aware that where a social worker’s fitness to practise is potentially

impaired, they will usually need to ensure the public is protected through some oversight

and supervision from the regulator. In order to provide this oversight and protection, they

have decided to suggest restrictions and conditions to the social worker’s practice that they

must comply with for a period decided by the case examiners. In this instance the case

examiners have decided that conditions of practice should be in place for a twelve-month

period. They feel this is a reasonable time period to allow the social worker to demonstrate

he has successfully gained insight and fully remediated, meaning the risk of recurrence is

removed.

The case examiners will now notify the social worker of their intention to suggest

restrictions and conditions and seek the social worker’s agreement to dispose of the matter

accordingly. If the social worker does not agree, or if the if case examiners revise their

decision regarding the public interest in this case, the matter will proceed to a final hearing.

Content of the conditions

Conditions 1-12 (inclusive) should be in place for a twelve-month period. In accordance

with paragraph 15 of Schedule 2 of The Social Workers Regulations 2018, the regulator

must review the conditions of practice order before its expiry. The social worker and/or

Social Work England can seek early review if new evidence becomes available to

suggest the current order needs to varied, replaced or removed.

1: You must notify Social Work England within seven days of any professional

appointment you accept or are currently undertaking and provide the contact details of

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your employer, agency or any organisation with which you have a contract or

arrangement to provide social work services, whether paid or voluntary.

2: You must allow Social Work England to exchange information with your employer,

agency or any organisation with which you have a contract or arrangement to provide

social work or educational services, and any reporter or workplace supervisor referred to

in these conditions.

3: a. At any time you are providing social work services, which require you to be

registered with Social Work England, you must agree to the appointment of a reporter

nominated by you and approved by Social Work England. The reporter must be on Social

Work England’s register.

b. You must not start/restart work until these arrangements have been approved by

Social Work England.

c. You must allow your reporter and Social Work England to exchange information.

4: You must provide reports from your reporter to Social Work England every three

months and at least twenty-eight days prior to any review and Social Work England will

make these reports available to any workplace supervisor referred to in these conditions

on request.

5: You must inform Social Work England within seven days of receiving notice of any

formal disciplinary proceedings taken against you from the date these conditions take

effect.

6: You must inform Social Work England within seven days of receiving notice of any

investigations or complaints made against you from the date these conditions take

effect.

7: You must inform Social Work England if you apply for social work employment / self-

employment (paid or voluntary) outside England within seven days of the date of

application

8: You must inform Social Work England if you are registered or subsequently apply for

registration with any other UK regulator, overseas regulator or relevant authority within

seven days of the date of application [for future registration] or seven days from the date

these conditions take effect [for existing registration].

9: a. You must make arrangements for an audit to be carried out by your reporter in

relation to accessing service user records. This audit should demonstrate to Social Work

19


England that you have not accessed service user records without a legitimate purpose.

The audit must be signed by your reporter.

b. You must provide a copy of this audit to Social Work England every three months and

at least twenty-eight days prior to any review.

c. Should you change employer within the specified twelve-month period, you must make

arrangements for an audit to be carried out by your reporter in relation to accessing

service user records prior to ceasing your employment. If this is not feasible, you must

obtain this retrospectively. You must provide a copy of this audit to Social Work England.

10: You must read Social Work England’s Professional Standards (July 2019), and provide

a written reflection to Social Work England three months after these conditions take

effect. Your written reflection should focus on your learning, in line with respecting

service user’s dignity and privacy, treating information about people with sensitivity and

handling confidential information in line with law. You should demonstrate the impact

this has had on your practice.

11: You must inform, within seven days from the date these conditions take effect, the

following parties that your registration is subject to the conditions listed at (1) to (10):

• Any organisation or person employing or contracting with you to undertake social work

services whether paid or voluntary.

• Any locum, agency or out-of-hours service you are registered with or apply to be

registered with (at the time of application).

• Any prospective employer (at the time of application).

• Any organisation, agency, or employer where you are using your social work

qualification/knowledge/skills in a non-qualified social work role, whether paid or

voluntary.

You must forward written evidence of your compliance with this condition to Social Work

England within fourteen days from the date these conditions take effect

12: You must permit Social Work England to disclose the above conditions, (1) to (11), to

any person requesting information about your registration status.

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Response from the social worker

The social worker responded to the case examiner’s preliminary decision on 22 July 2020.

He stated:

“Following the letter dated the 26th June 2020 regarding Case FTPS-16886/SW128780, I

fully understand the case examiners' proposal, and would like to accept the proposal as

stated in the letter.”

Case examiner response

The social worker has confirmed his agreement with the proposed accepted disposal as

outlined by the case examiners.

Having been advised of the social worker’s response, the case examiners have turned

their minds as to whether accepted disposal (conditions-12 months) remains the most

appropriate means of disposal for this case. They have reviewed their decision, paying

particular regard to the overarching objectives of Social Work England, i.e. protection of

the public, the maintenance of public confidence in the social work profession, and the

maintenance of proper standards.

The case examiners have again considered whether it is in the public interest for this case

to be referred to a hearing for consideration by adjudicators. The case examiners are

satisfied that there has been no material change since the initial decision and there

remains no public interest in referring this matter to a hearing.

Case examiners remain of the view that an accepted disposal by way of conditions of

practice (12 months) is a fair and proportionate disposal and is the minimum necessary to

protect the public and the wider public interest.

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Final decision

Case examiners’ final decision

The final decision of the case examiners is to dispose of the case by way of accepted

disposal (conditions of practice -12 months).

Is there an interim order to be revoked?

No

Case Examiner Decision Stephen Moyo FTPS-16886 · Case reference number FTPS-16886 Date the concern...

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