Thursday, 5 September 2019

So many questions, so few answers






Unless you can really think quickly, logically, and legally, then if you do not have an experienced solicitor at your side in your hearing, then you are in trouble.

My support was my husband and we were both surprised that he was was forbidden by the chairman of the panel to speak.

I managed a few mumbled questions through the trauma of it all while he sat there, the questions growing with every passing minute.

At the end of the proceedings and notification of the panel’s decision, we were in a quandary.

Should we appeal the decision to have me removed from the Register? If so, on what grounds?

That wasn’t really the issue though. If my actions merited being struck off then, humiliating though that was, then I had to accept that.

But what really was more distressing was that I never had my side, my mitigating circumstances, examined. Essentially, I had fabricated the stress, harassment and bullying; I had total disregard for child protection, I had no “insight” into my actions; my behaviour was comparable to reckless surgeons and midwives who challenged the implications of meconium staining.

It appeared no one around me at the time of the allegations was interviewed; the front line social workers I worked in conjunction with were never contacted; the criminal actions I suspected were never investigated. The list went on.

But the one question that I really needed answered was whether that was the norm? Was there an abuse of process in my case. Is there an abuse of process in all cases?

What would I appeal to a sheriff for? The decision against me? The processes? If so, which processes?

I had no information and so many questions, vague, general questions…

Not so my husband. With his little legal knowledge, her believed the SSSC had flouted basic principles in Scottish law and, having been bound to silence throughout the hearing, he wanted answers.

The result was a torrent of questions, all submitted under the Freedom of Information process. He would later concede that some, though not all, were not covered by FOI, but still maintains their relevance.

The SSSC ruled every question as “vexatious”.

This presented us with a major obstacle as many of these questions were on matters crucial to any complaint about the SSSC hearing process.

With the SSSC refusing to answer any of these questions, chief executive Lorraine Gray then presented a report to her council on October 23, 2018 (Agenda item 15, para 2.16).

In this she stated:

“Of the total number of {FOI}requests, 74 came from a single source and we held these to be vexatious due to the number and nature of the requests. The individual did not exercise their right to a review of the requests and, while we are still within the timescales for making a referral to the Information Commissioners Office (ICO), we do not anticipate that the individual will challenge this decision to the ICO.”

This prompted this response from my husband:

“The paucity of detail in that statement could be construed as deliberately misleading. I am the author of these requests, all of which were withdrawn not because I agreed with your ‘vexatious’ ruling but because as a family we felt intimidated by the SSSC contacting... (this section has been removed as we continue to have concerns over SSSC contact with external employers).

“Our decision was taken in the belief that we were protecting (removed), and one I reluctantly agreed to abide by, until your comments on October 23.

“As you are aware all my FOI requests were made in response to an 18-month investigation into my wife’s fitness to practise, 200-plus pages of SSSC documents, and 70-plus pages of persuasive precedent produced without notice and accepted without question by your panel. This last issue prompted 49 of the FOI requests as I challenged their relevance and appropriateness. A communication from your Legal and Governance staff pointed out that most of these would not fall within FOI parameters, and given each query does indeed follow on from the other, I accepted that, as you will be aware from the communication exchange.

“That leaves 25 other “vexatious” requests. These were not the result of the actions of a crank or an aggrieved relative (as you are aware your ruling was accepted by my wife and she did not appeal it) but from a journalist and editor with 40 years’ experience of District, JP, Sheriff, and High Courts, along with tribunals, and multifarious hearings. In all these years I have never witnessed such processes as those practised by the Scottish Social Services Council. If not the public, then who in Scotland, has the right to question the regulation of the regulators?

“Through my questions I have endeavoured to establish if what I witnessed, as my wife's supporter, was an abuse of process and, if so, was it restricted to a single hearing or is it endemic throughout all investigations? This, I believe, is not just in the interest of registrants with the SSSC but the Scottish public in general.

“If you consider my requests to be offensive, abusive or threatening, I would urge you to consider pursuing legal action. I am more than willing to pass all my correspondence on to the police, the press or politicians, three professions that do not operate under restrictions on the number of questions they can ask; that limit seems reserved for public queries to the SSSC.

“You stated to the Council that the 'vexatious' ruling was also made on the grounds of the 'nature' of the requests. A statement I believe is open to negative interpretation and, as such, I am surprised to see it placed in the public domain by the Chief Executive Officer.

“Given your present position, the previous incumbent in the role, the fact that the SSSC itself states that over 80 per of those employed within social services are female, the abundance of commendable material published on the SSSC website relating to equality and diversity, and the prominence given to equality on the national agenda, I am bewildered that you and the council are in consensus in publicly endorsing the following example question as ‘vexatious’ on the grounds of its ‘nature’:

On how many occasions in the last 10 years, five years, 12 months and six months has the Scottish Social Services Council held a Fitness to Practise Hearing where the panel chair, two lay members and the case holder are of one sex and the worker of another?

“I maintain this is a fair question (in the context of another 'vexatious' inquiry asking how many hearings had been held) and that the other 24 questions I submitted are equally pertinent to your processes and procedures. I would be willing to provide any party, internal or external to the SSSC, those other questions along with the rationale behind them.

“In the meantime, it is appropriate that the Chief Executive of the Scottish Social Services Council , and possibly the Council members themselves in their unanimity, explain, for the public record, exactly why this particular question on the gender balance of SSSC panels is collectively deemed ‘vexatious’ on the grounds of its ‘nature’.

“This is a reasonable request given the application of section 14(1) (para 12) of the Information Commissioner’s Office guidelines on dealing with vexatious requests:

It is important to remember that section 14(1) can only be applied to the request itself, and not the individual who submits it. An authority cannot, therefore, refuse a request on the grounds that the requester himself is vexatious.

Ms Gray duly responded, underlining the fact that SSSC officials had offered to meet my husband – an offer he had declined – and the rationale behind declaring his questions vexatious.

And she added:

“I do not accept that the information provided to Council was inaccurate or deliberately misleading in any way and that we were justified in treating your requests cumulatively as vexatious.

“It is clear from your questions that you do not feel that this was an appropriate decision or that the Fitness to Practise process is a fair one. I note that our Director of Regulation has offered to meet with you to answer any queries and discuss these concerns with you but that you have declined this meeting. I do feel that this is a more appropriate way for the SSSC to discuss and address these matters rather than by lodging a number of Freedom of Information requests which divert staff time away from fulfilling the core statutory functions of the organisation.

“In response to the question posed in your email which is: ‘On how many occasions in the last 10 years, 12 months and six months has the Scottish Social Services Council held a fitness to Practise Hearing where the panel chair, two lay members and the case holder are of one sex and the worker are of another.’ It is not a requirement for people applying to sit on our Fitness to Practise Committee to specify their gender before they are appointed. We do not therefore hold the information requested in a manner which can be released as part of a Freedom of Information request.”

Miss Gray concluded by directing my husband, if he still felt aggrieved, to the Scottish Public Service Ombudsman.

In the end, although a number of these questions formed part of my subsequent complaint, most, to this day, remain unanswered.

These are his vexatious questions:

Has the Scottish Social Services Council ever held a Fitness to Practise Hearing since the organisation’s establishment in October 2001?

Has the Scottish Social Services Council ever held a Fitness to Practise Hearing that involved professional misconduct since its establishment in October 2001?

How many Fitness to Practise Hearings that involved professional misconduct have been held by the Scottish Social Services Council since its establishment in October 2001? If this information is not available then how many Fitness to Practise Hearings that involved professional misconduct have been held by the Scottish Social Services Council in the last 10 years, five years,12 months and six months?

Have the findings of Fitness to Practise Hearings, involving professional misconduct, been retained?

Are those (if any) retained findings of Fitness to Practise Hearings, involving professional misconduct, accessible for reference by the Scottish Social Services Council and its case holders?

Is it the practice of the Scottish Social Services Council to direct the panel in a Fitness to Practise Hearing in determining its findings through the use of precedents? Is it the practice of the Scottish Social Services Council to direct the panel in a Fitness to Practise Hearing that involves professional misconduct in determining its findings through the use of precedents?

Does the Scottish Social Services Council accept that the importance of precedent is to allow the panel in any hearing to make their findings and judgements as consistent with previous decisions on the same subject? If there is such acceptance does this apply to all hearings, including Fitness to Practise where professional misconduct is an issue?

Is is the general practice of the Scottish Social Services Council to use, wherever possible, its previous decisions from similar cases as precedents to lay before the panel?

In how many cases since the formation of the Scottish Social Services Council, with particular reference to Fitness to Practise Hearings involving professional misconduct, has it not been possible to find a precedent within the archive of the SSSC’s findings and rulings? If this information is not available then please apply the question to the last 10 years, five years, 12 months and six months.

What is the Scottish Social Services Council’s policy, with particular reference to Fitness to Practise Hearings involving professional misconduct, if it is determined that in the history of the SSSC and within its archive of retained findings there is no precedent to a particular case?

In all the hearings held under the auspices of the Scottish Social Services Council, have proceedings, when it comes to guiding the panel through precedent, consistently adhered to, or tried to adhere to, the principle of stare decisis?

Given an instance where there is no precedent from the Scottish Social Services Council’s procedures and archive from the last 17 years for a case in a Fitness to Practise Hearing, involving professional misconduct, does the SSSC endeavour to find precedent elsewhere from the field of social services, primarily from its ‘sister’ organisations within the United Kingdom, those being Social Care Wales, Northern Ireland Social Care Council, and the Health & Care Professions Tribunal Service, that last of which has 1065 verdicts from hearings within the last 12 months alone?

In the event of the Scottish Social Services Council unable to find a precedent to direct the panel at a Fitness to Practise Hearing involving professional misconduct from all social services’ governing bodies in the United Kingdom, does the SSSC implement the process of seeking and presenting to the panel a persuasive precedent?

Given that there is no precedent for a particular case in a Fitness to Practise Hearing involving professional misconduct across all the social services in the United Kingdom, would the Scottish Council for Social Services ever consider it reasonable to NOT inform the panel that there was NO precedent for a particular worker’s case and the precedents being presented, upon which the panel would have to make make its finding, were persuasive?

In the event of the Scottish Social Services Council presenting persuasive precedent to the panel what efforts would have been made on the part of the SSSC to ensure that persuasive precedent is as close and as relevant to the case being heard?

In the event that no precedent can be found by the Scottish Social Services Council, and a persuasive precedent is being laid before the panel, should the worker be informed that no precedent has been found within the United Kingdom’s social services structure and administration, and the panel is being directed on a previous judicial decision that is not on the same subject?
If the Scottish Social Services Council has made no attempt to seek precedent within the field of social services, would the SSSC view that as an abuse of process?

How many instances since the formation of the Scottish Social Services Council has precedent not been found within in the field of social services and the SSSC has been forced to venture beyond its remit to seek precedent from legal and governing bodies outwith social services? If that information is not available how many times within the last 10 years, five years, 12 months, six months?

On how many occasions has the Scottish Social Services Council, since its formation, been forced to resort to the Judicial Committee of the Privy Council (JCPC), the final court of appeal of the Commonwealth, the Crown dependencies and the UK’s overseas territories, to seek persuasive precedent? If that information is not available then how many occasions has this occurred in the last 10 years, five years, 12 months, six months?

On how many occasions has the Scottish Social Services Council, since its formation, been forced, in a Fitness to Practise Hearing involving professional misconduct, been forced to seek persuasive precedent from the JCPC in the last 10 years, five years, 12 months, six months?

Given that the Scottish Social Services Council has been willing to turn to the Privy Council, has the SSSC, having exhausted the archives of the governing bodies for social services in the United Kingdom, ever turned to the governing bodies for social work in other Commonwealth countries for precedent, (eg the relevant bodies operating under the auspices of the Canadian Association of Social Workers, the Australian Association of Social Workers, the New Zealand Social Workers Registration Board etc) rather than turn to the Commonwealth’s highest court for persuasive precedent?

Given the gravity and importance of persuasive precedent being laid before the Scottish Social Services Council panel before it is required to make its findings in any given hearing, are copies of these cited persuasive precedents made available to all members of the panel, the worker and the work’s representative or supporter?

In the event of the Scottish Social Services Council not having enough copies to be circulated at a hearing, does the SSSC consider it appropriate that concerned parties should be obliged to share documents?

What is the timescale considered appropriate by the Scottish Social Services Council for its case holder to present documents of persuasive precedent on professional misconduct to the panel and the worker? Should the panel and the worker be allowed sight of all persuasive precedents before the SSSC produces and refers to them in active proceedings?

If the Scottish Social Services Council concedes that it would be fair and proper for unseen and previously unsubmitted persuasive precedent to be shown to the panel and worker outwith active proceedings, would a failure to do so constitute abuse of process?
Can you provide the Scottish Social Services Council’s stance on what is considered to be a fair period for a worker to read, analyse and take advice on unseen documents of persuasive precedent on professional misconduct, running to 70-plus A4 pages in length?

If the Scottish Social Services Council does consider time should be allowed for the panel and the worker to consider a sizeable package of persuasive precedent and it failed to do so, does that constitute an abuse of process?

Given social services became a devolved matter in 1998, and the many Fitness to Practise Hearings held by the Scottish Social Services Council, what is the rationale of the SSSC in using a Privy Council decision on the General Medical Council (1999) and Council for Healthcare Regulatory Excellence (2011) rulings (the latter no longer in existence and whose remit covered The General Medical Council, The General Dental Council, The General Optical Council, The General Osteopathic Council, The General Chiropractic Council, The Royal Pharmaceutical Society of Great Britain (later General Pharmaceutical Council), The Royal Pharmaceutical Society of Northern Ireland (later the Pharmaceutical Society of Northern Ireland), The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (later the Nursing and Midwifery Council), The Council of Professions Supplementary to Medicine (later the Health Professions Council), as precedents for professional misconduct within the field of social work in Scotland?

Given the legal and quasi-legal definition of abuse of process as being “overly strict application of precedent or the excessive citing of previous authorities”, if the persuasive precedents are not comparable with the case presented to the panel prior to issuing its findings at a Fitness to Practise hearing involving professional misconduct, would the Scottish Social Services Council consider this an abuse of process?

If the persuasive precedents, in the absence of any precedents from within the field of social services, are diverse in all details other than their verdict, would the Scottish Social Services Council admit to excessive citing, thereby being responsible for abuse of process?

As the verdict is only relevant within context, on how many occasions in the last 10 years, five years, 12 months and six months, has the Scottish Social Services presented as a relevant persuasive precedent for professional misconduct to the panel at a social worker’s Fitness to Practise Hearing one involving the multiple deaths of children having undergone surgery at a hospital outwith Scotland? In presenting such an unseen persuasive precedent to a panel at a Fitness to Practice Hearing, what is the Scottish Social Services Council rationale in equating a SSSC three-day hearing with a 74-day hearing, involving charges against a healthcare trust official and two surgeons, resulting in multiple deaths from coronary surgery and poor treatment over a five-year period? If this is not deemed comparable, is it conceded this an abuse of process?

As the verdict is only relevant to the context, on how many occasions in the last 10 years, five years, 12 months and six months, has the Scottish Social Services presented as a relevant persuasive precedent for professional misconduct to the panel at a social worker’s Fitness to Practise Hearing one involving a nurse who, on two occasions, failed to perform a vaginal examination. If this is not deemed comparable, is it conceded this an abuse of process?

As the verdict is only relevant within context, on how many occasions in the last 10 years, five years, 12 months and six months, has the Scottish Social Services presented as a relevant persuasive precedent for professional misconduct to the panel at a social worker’s Fitness to Practise Hearing one involving a doctor who, owing to a relationship breakdown, referred to social care workers as ‘child abusers’ and was the author of abusive comments to care workers? If this is not deemed comparable, is it conceded this an abuse of process?

As the verdict is only relevant to the context, on how many occasions in the last 10 years, five years, 12 months and six months, has the Scottish Social Services presented as a relevant persuasive precedent for professional misconduct to the panel at a social worker’s Fitness to Practise Hearing one involving a doctor whose reluctance to provide a mask, costing between £20-25, resulted in the death of an asthmatic child. If this is not deemed comparable, is it conceded this an abuse of process?

If all four of these diverse persuasive precedents, united only in a common verdict, were presented together to a Scottish Social Services Council Fitness to Practise Hearing involving professional misconduct, how would the SSSC justify them as all comparable with the case being heard? Would all four be deemed excessive citing and thereby constitute an abuse of process?

If the Scottish Social Services Council chose to defend such persuasive precedents on the grounds that it was the ultimate verdict or sanctions imposed that were relevant, why are medical examples chosen and given priority? Why would the full case be printed out and distributed? Would this not be deemed excessive citing, thereby constituting an abuse of process?

If the Scottish Social Services Council chose to defend such persuasive precedents on the grounds of the ultimate verdict or sanctions imposed, what is the SSSC rationale of using, for example, vaginal examinations as more relevant to findings for hearings and investigations made by regulatory bodies such as Gas Safe Register, the National Institute of Carpet and Floor Layers, the Federation of Master Builders. If these persuasive precedents from the medical world are used to falsely imply a parallel for a case before a panel, does this not constitute an abuse of process?

Should the chairman of a Scottish Social Services Council panel at a Fitness to Practise Hearing, involving professional misconduct, not be required to challenge and question why a collection of persuasive precedent from the SSSC, where multiple deaths, vaginal examinations, abusive behaviour and GP negligence are submitted as the only relevant persuasive precedents to one particular case and seek an explanation as why there was no precedent within social services in Scotland, Ireland, Wales and England? Is a failure to do so not an abuse of process?

Does the Scottish Social Services Council routinely cite as precedent rulings on cases that involve multiple deaths, or other dramatic cases that bear no relation to the one under consideration, to achieve the decision it requires? If it does, is this not an abuse of process?

Given its role to investigate complaints lodged against those on its register, should a worker not be provided with advance notice that the Scottish Social Services Council has been unable to find precedent across all social services in the United Kingdom to the complaints levelled against him/her and that the SSSC has been forced to seek (persuasive) precedent from the Privy Council, the highest court in the Commonwealth, and will be citing multiple deaths caused over a number of years by a number of people, as the nearest comparable example. Does a failure to do this not constitute an abuse of process?

Why is a worker at a Fitness to Practise Hearing, involving professional misconduct, not informed of the persuasive precedents that have been selected by the SSSC, given the opportunity to challenge their relevance, or given the time to read them, prior to the panel using them to configure its findings? Does this not constitute an abuse of process?

Does the Scottish Social Services Council assert that such diverse persuasive precedents as multiple coronary deaths through negligence; refusal to perform vaginal examinations; the verbal and literary abuse of care workers, and the refusal to treat, with fatal consequences, a child with asthma, presented together form a coherent picture of a single case, and that the SSSC believes that bound together they provide a meaningful reflection of the worker and an insight into his/her actions? If they do not, does this not constitute an abuse of process?

Does the Scottish Social Services Council analyse and review the process and selection of persuasive precedents?

Since the formation of the Scottish Social Services Council how many persuasive precedents have been successfully challenged by a worker? If these figures are not available, then how many over a 10-year, five-year, 12-month and six-month period?

Since the formation of the Scottish Social Services Council how many persuasive precedents have been challenged by the Panel at a hearing? If these figures are not available, then how many over a 10-year, five-year, 12-month and six-month period?

With reference to your document Ref: Ftop/CON-00015729 can you provide the official instructions given to a case holder within the Scottish Social Services Council regarding the parameters between redactions and ‘editing’ material for a fitness to practise hearing, given that the case is shaped by the case holder for the panel?

With reference to your document Ref: Ftop/CON-00015729, what measures are in place to ensure an investigation, given its meaning to be a systematic examination as opposed to a prosecution, (ie a pursuit to a given end), is fair to the worker given there is no supervision of the redaction process or that information proferred in mitigation to the case holder is omitted to weight the balance to the case presented to the panel at a Fitness to Practise Hearing?

How many witnesses, cited as supportive to a worker and provided to the case holder, have NOT been interviewed by a Scottish Social Services Council case holder for a worker without representation within the last 10 years, five years, 12 months and six months?
How many case holders within the Scottish Social Services Council have had direct, hands-on, operational experience of social services in the last 10 years, five years, 12 months, six months?

How many case holders within the Scottish Social Services Council, with operational experience of social services, have dealt with cases outwith their particular field of expertise in the last 10 years, five years, 12 months, six months?

How many lay panel members have had operational experience of social services in the last 10 years, five years, 12 months, six months?

What is the official policy of the Social Services Council on gender balance of case holder, chairman, panel and a worker at a Fitness to Practise Hearing?

On how many occasions in the last 10 years, five years, 12 months and six months has the Scottish Social Services Council held a Fitness to Practise Hearing where the panel chair, two lay members and the case holder are of one sex and the worker of another?

Can the Scottish Social Services Council, in relation to the document Ref: FtoP/CON-15729, clarify the apparent anomaly between the SSSC website statement: “You have the right to choose not to respond to us and this is something that you may wish to take independent advice about. If we don’t receive comments from you, our investigation will continue and we will make a decision on the matter without the benefit of your point of view”, and the SSSC statement (item 12 on Ref: FtoP/CON-15729) “...which gives the SSSC the power to remove workers from the register due to non-compliance with requests for information regarding health.”

What is the Scottish Social Services Council policy on the confidentiality of medical information provided from a worker’s healthcare providers. How many people have access to this in a Fitness to Practise Hearing? Is that information ever contained in documents assigned to witnesses?

The Scottish Social Services Council consistently makes psychological evaluations of workers in its Notices of Decision. What are the professional qualifications of those making those diagnoses?

Can the Scottish Social Services Council reveal the names of the medical practitioners making those psychological evaluations?

Can the Scottish Social Services Council reveal the processes and timescales of its psychological assessments and evaluations of workers carried out by its medical experts and practitioners?

The Scottish Social Services Council does not on its website or within its hearing guidelines indicate that workers are being psychologically assessed by an unknown medical individual or individuals. Why is this not made clear?

What process does a worker require to go through to for him/her, his/her doctor, his/her legal representatives to have access to those psychological assessments?

One Scottish Social Services Council case holder/presenter in a ‘Notice of Decision’ refers repeatedly to insight. The SSSC states: “In the absence of meaningful reflection and insight… the public would be rightly concerned etc.” This is stated as absolute fact not conjecture. What is the Scottish Social Services Council’s definition of “meaningful reflection” and “insight”? What psychological tests were employed to determine that assessment.

How does the Scottish Social Services Council medical experts gauge “meaningful reflection”? How does the Scottish Social Services Council judge the levels of “meaningful reflection”, in terms of its absence and return? What are the qualifications of the Scottish Social Services Council’s staff who assess “meaningful reflection” and “insight”. At what point does the Scottish Social Services Council medical experts re-assess “meaningful reflection” and decree it has returned?

Can the Scottish Social Services Council please explain this statement in a “Notice of Decision”: “You had not disputed the facts… nevertheless obliged the Panel to proceed to a full hearing, He {the case holder} submitted... your participation...as ‘critical and negative’ {and} demonstrated that you were focused on yourself rather than the broader public interest...” As the facts are not disputed then this must be a careful medical analysis to be portrayed as fact by the Scottish Social Services Council,otherwise it is a personal viewpoint and totally subjective. Is this an individual expert conclusion or from a team of SSSC medical advisers? What are the qualifications of such a personal psychological and personal judgement?

Given the Scottish Social Services Council’s psychological analysis of workers, undertaken without their knowledge or recourse, and without any disclosure of who is making such personal assessments, on what grounds does the SSSC justify their inclusion in any of its findings?
















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