Complaint 8: Abuse of process

So, we come to Complaint 8, ‘Abuse of Process’. This took me weeks and weeks to research, and I received help and advice from a number of people, either with a legal background or familiar with legal procedures.

I apologise for the length of this but if you are going to be facing a hearing them I really do believe you need to read this and be aware of what exactly is going to be thrown at you, and who you will be compared to.

Given my name as a service manager with Aberlour Child Care Trust now appears in an official SSSC record alongside that of mass murderer Harold Shipman, I suppose I should be grateful that Myra Hindley and Rose West were not members of any profession that involved registration with a governing body.

Despite the work that went into this section of my complaint, it again received but a brief response from the SSSC; I was simply given another nudge to go to a higher court if I wasn’t happy.

That, in itself, I find unforgivable. The issues that are raised below are absolutely crucial to every registrant who may find him or herself in a fitness to practise hearing.

Everything I have learned about the legal process, and everything I was told is, essentially, according to the Scottish Social Services Council, just not even worth responding to.

The reaction is dismissive and one of utter contempt.

What I find most astonishing is not the disregard my arguments received from chief executive Lorraine Gray and her team, but that support was unanimous from the members of the SSSC Council.

This was not each and every one of them saying that I was wrong, they were all united in saying the likes of Lord Clyde and Lord Reid had it all wrong.

My journey through the hearing process has undoubtedly been a massive learning experience for me.

My life, both personally and professionally, has been and still is a learning curve.

While we may all have “done our best”, reflection affords the opportunity to examine if we could not have done better and motivates us to do so in the future.

It is what makes us human, and it is what makes us better people.

Yet the SSSC must be unique in being 100 per cent infallible. Through the hundreds of questions and thousands of words, I have failed to elicit one single concession or admission.

To be honest, while I have been portrayed as angry, or obsessive, or aggrieved, the strongest emotion is one of total demoralisation.

It was bad enough to be made to feel, and be described as a public danger but my refusal to accept the infallibility of the SSSC, and even its lay members, prompted me to research and learn, and challenge.

That hasn’t helped me, or helped my self-esteem.

I’ve persisted in this not because I think I am infallible, and not because I am vexatious or a nuisance.

I’ve persevered because I am not an idiot, and I do not like being treated as one.

Please wade through this part of the complaint. Give me your views, not just on the points I’ve made but the attention they merited from the SSSC.

As usual, chief executive Lorraine Gray’s full response is given at the end of this section.

Complaint 8: Abuse of process

It is my contention that the hearing into the allegations against me, held between 30 May 30, 2018, and June 23, 2018, was unfair, biased and tailored towards a specific verdict from the outset of the active proceedings, thereby not a true culmination of an investigation.

Prior to the commencement of the hearing on the opening morning session, I was again offered a document outlining conditions proposed on my registration. I declined to accept these as I believed the SSSC would detail my mitigating circumstances to the panel and conduct a fair and balanced examination of the witnesses. This did not occur.

Without representation I witnessed my case essentially ignored with the SSSC presenting a one-sided, stilted and biased representation of the case against me.

On the second day, despite a few hours earlier having been offered conditions on my registration, the SSSC urged the panel to reach a decision of professional misconduct and have me removed from the register.

This, in itself, was surprising in that a few hours earlier the SSSC had re-offered me those conditions and the cancellation of the hearing. I refused this offer and recall stating that I wanted “my day in court” and wished to see the outcome of the investigation into the two managers of Aberlour Child Care Trust who were central to my mitigating circumstances.

To support that case of professional misconduct the SSSC used the tactic of persuasive precedent to provide examples of behaviour meriting that description.

The documents were unseen prior to their presentation to the panel and none was from the field of social services. The only precedents were from the field of medicine. a practice adopted by the SSSC at least since 2010 before Sheriff Derek O’Carroll in the appeal under section 51 of the Regulation of Care (Scotland) Act 2001 against a decision by the SSSC to remove the pursuer from the register of social workers.

So while a few hours earlier I was offered the option of Conditions, rather than go to hearing, the interim had convinced the SSSC my case could be equated with those responsible for causing multiple deaths and mass murder.

As part of Scotland’s legal process I contend that precedent violates the principle that sentencing is carried out in “fairness and proportionality”. Such is the significance of this that guidelines were formally introduced into Scotland’s court system in November, with Lady Dorrian, Lord Justice Clerk and Chair of the Scottish Sentencing Council, stating: “We believe this guideline sets out the fundamental principles and purposes of sentencing…”

I have no doubt that if the SSSC had responded to my enquiries on the justification for using these persuasive precedents, it would have said it was to provide the panel with a legally-accepted definition of “professional misconduct” from the perspective of a professional body.

I certainly would not challenge that causing the death of 29 children or murdering between 300-500 people falls firmly into that category. I remain surprised, however, that my name now has a place in medical history alongside the 20-year-old Roylance Privy Council decision and mentioned alongside one of the world’s most notorious murderers.

And while I expect the defence of an established and recognised definition, Sheriff O’Carroll did cite this in 2010:

In Mallon v General Medical Council 2007 SC 426 the Second Division of this court had to consider inter alia the question of the entitlement of the Fitness to Practise Panel of the General Medical Council to make a finding that the appellant was guilty of serious professional misconduct. In delivering the opinion of the court, Lord Justice-Clerk Gill said: "Serious professional misconduct ... In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera. The decision in every case as to whether the misconduct is serious has to be made by the panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence...

Considerable research must have gone into sourcing these persuasive precedents, running into many hundreds of words, before laying them before the panel, though I remain confused as to why the SSSC had researched these yet still offered me the opportunity to retain my registration, albeit with Conditions.

Given all the websites of all the UK’s regulatory bodies for social services have sections populated with decisions from fitness to practise hearings, including those of workers being removed from the register, the SSSC has refused to say why none of these provided a precedent or persuasive precedent for my case and why it opted to trawl English medical decisions.

The SSSC also refused to respond as to why and how such emotive precedents were sourced for presentation to the panel, given their place in medical history going back decades.

The SSSC also refused to say if these career-defining precedents hadn’t been researched thoroughly but simply drawn from an online database, such as that provided by British and Irish Legal Information Institute (BAILII) - this database does contain a Scottish section.

Nevertheless, given the SSSC place in Scottish ‘hard’ law I would accept that a benchmark definition of ‘professional misconduct’ in the field of medicine and the rationale for a medical practitioner being struck off is contained within Roylance v. General Medical Council (No 2) [2000] 1 AC 311 at 330-332. However, since I maintain I am guilty essentially of administrative shortcomings, I am unable to determine the relevance of this multiple-death case to my own.

The force of judicial precedent has been recognised for centuries in England and Scotland. That force was repeatedly emphasised in the case involving the State of Qatar the 1999 Appeal against Order of Judicial Greffier giving leave to serve Order of Justice out of Jurisdiction.

In that lengthy ruling on precedent, Lord Reid’s statement from 1973 provided a benchmark in his judgement:

I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.

I fail to see how the precedents presented by the SSSC, repeated from 2010 can be seen to be “reasonably analogous” with my case.

A Freedom of Information request was lodged with the SSSC to determine its use of precedents:

6. 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?

This question was deemed “vexatious” due to the “number and nature” of Freedom of Information requests lodged with the SSSC.

Social Care Wales did respond to that question under the FOI Act and confirmed the use of Roylance v. General Medical Council (No 2) [2000] 1 AC 311 at 330-332, but pointed out:

As Lord Clyde might have encapsulated his discussion of the matter in Roylance v. General Medical Council, it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious.

The Health & Care Professions Council also responded to the same FOI request, and on the subject of precedent stated:

During a hearing, relevant case law may be brought to the attention of the Panel by the Legal Assessor and/or by advocates for the parties.

The Northern Ireland Social Care Council also responded to the FOI request, stating:

NISCC does not direct committees towards decisions through the use of precedents.

While Roylance v. General Medical Council (No 2) [2000] 1 AC 311 at 330-332 may be used as the benchmark definition for professional medical misconduct, resulting in a medical practitioner being struck off, I challenge the SSSC justification for not just using that conclusion but presenting to the panel, and myself, a total of 28 A4 pages from the ‘Judgement of the Lords of the Judicial Committee of the Privy Council’, dated March 24, 1999, and allowing only a few minutes for this to be read, understood, absorbed and whether or not its relevance could be challenged. The panel was apparently able to do so, I was not.

I believe by citing 28 pages of this case, the SSSC breached natural justice, ignored the principle of stare decisis {Stare decisis ensures that cases with similar scenarios and facts are approached in the same way} and applied an overly strict application of precedent and an excessive citing of previous authorities, with the persuasive precedent not being “reasonably analogous” to the case presented to the panel prior to issuing its findings. 

I fail to understand how my case and, at that point, a two-day hearing, could reasonably be equated with a 74-day hearing, involving charges against a healthcare trust official and two surgeons, resulting in the deaths of 29 children over a five-year period?

No explanation was given to me by the SSSC as to why a 19-year-old medical case was cited and a 28-page Privy Council decision presented to the panel. In the case of Roylance v. General Medical Council, 100-plus witnesses gave evidence, there were 339 witness statements and over 200 comments on them . There were some 674,000 pages of medical documents and 175,000 other pages presented as evidence. About 100 people gave oral evidence.

While the SSSC has refused to reveal the rationale behind the selection of this persuasive precedent it is a fact that it is contained within the British and Irish Legal Information Institute (BAILII) database and is but one from thousands dating from 1809-2018.

How this can be presented to and accepted by the panel requires explanation. I believe the SSSC committed an abuse of process in the use of this case and documents.

Attempts under the FOI Act to determine how often the SSSC has used this practice with other registrants and if it has been challenged were ruled “vexatious”.

However, although not obliged to do so under the Freedom of Information Act, the Law Society for Scotland, did respond on the matter of precedent, stating:

I can confirm that our Fiscals will use precedent before the Tribunal but it {is} a matter for their professional judgement what they use and equally, the solicitor who stands {represents the} accused has the same right to call on precedents to support their case. It is for the Tribunal to decide its relevance.

The legally-qualified case holder and the chair of the panel accepted that relevance, as, of yet, without explanation,

So, as said above, while the Roylance recommendation may have provided a benchmark definition of “misconduct”, albeit 19 years old, one surely must question why such precedent is not available within the social services field anywhere in the United Kingdom.

I believe that abuse of process continued with the SSSC citing three other persuasive precedents in its direction to the panel.

The SSSC also presented 118 sections in 25 A4 pages from the England and Wales High Court (Administrative Court) Decisions, with the cited case being that between the Council for Healthcare Regulatory Excellence and (1) Nursing and Midwifery Council (2) Paula Grant.

Again this is contained in the British and Irish Legal Information Institute (BAILII) database and is one of 672 cases from the Administrative Court. With the other 671 ruled out, the SSSC chose to present a case involving a nurse who, on two occasions, failed to perform a vaginal examination while within it, (para 65), the Shipman Enquiry is cited, a serial killer with 218 victims and an estimated total victim count possibly in excess of 500.

It surely can only be natural justice that recommendation is only relevant within context - a fact that must also be accepted by the SSSC given its citing of this particular case out of 672 in its entirety - and to find myself equated with Harold Shipman and a case involving a refusal to perform vaginal examinations, was degrading, insulting, inappropriate and, I contend, an abuse of process. How is this deemed “reasonably analogous”.

This was followed by the 77-section Dr Simon Kimmance v General Medical Council report which involved 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, then it must be an abuse of process? Yet this too was deemed appropriate by the SSSC and accepted by the panel without question as relevant.

The final persuasive precedent was the 31-section Mallon v The General Medical Council involving a doctor whose reluctance to provide a mask, costing between £20-£25, resulted in the death of an asthmatic child. Again I do not believe this comparable, and is an abuse of process, though, again an SSSC submission accepted without question by the panel.

Yet this was the same case where Sheriff O’Carroll stated:

In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera. The decision in every case as to whether the misconduct is serious has to be made by the panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence…

The use of these submissions by the SSSC raises a number of questions, all ruled vexatious under FOI requests by the SSSC but I have no means of determining whether the process adopted by the SSSC at my hearing is common practice.

Through redacted documentation received from the SSSC and from correspondence with my husband, I am fully aware of the irritation we have caused, and the reaction that our inquiries are conspiratorial, with even chief executive Lorraine Gray stating to the SSSC council that the nature and number of FOI requests made them vexatious.

My case is that it is my basic right to be able to ask for answers for actions carried out by the SSSC that I do not understand.

While it is perceived that the number of requests was excessive, it should be pointed out they were a reaction to the actions of the SSSC.

To take, for example, the submission in my hearing of the case between the Council for Healthcare Regulatory Excellence and (1) Nursing and Midwifery Council, (2) Paula Grant, the SSSC deemed it appropriate to present:

The Registrant’s case in defence was that… as she approached Patient A she noticed the meconium liquor, which led to her decision to seek obstetric assistance than conduct a VE (vaginal examination) herself.

Surely I am entitled to ask why the SSSC saw this, and over 100 other points, including the parallel with mass murderer Harold Shipman, were relevant to my case and deemed “reasonably analogous”, and why there were presented to, and accepted without question by the panel. I personally can find no rationale behind this submission and still believe it is reasonable to ask why this was presented and if this type of tactic in directing the panel is common-place?

I believe a number of questions need answered by the SSSC as they are in the public interest and, more specifically, in the interest of every registrant in Scotland.

1. Given that 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?

2. 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?

3. 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?

4. 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.

5. 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?

6. 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?

7. 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?

8. 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 oversea territories, to seek persuasive precedent?

9. 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?

10. 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?

11. 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?

12. 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?

13. 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 the persuasive precedents 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?

14. 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.

15. 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?

16. Since the formation of the Scottish Social Services Council how many persuasive precedents have been successfully challenged by a worker?

17. Since the formation of the Scottish Social Services Council how many persuasive precedents have been challenged by the Panel at a hearing?

The actual administration of this stage of the hearing process also gave me serious concern and I would ask these questions:

1. 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?

2. 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?

3. 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, in my case these ran to 70-plus A4 pages in length?

In doing so, 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?

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise a complaint that the hearing was unfair, biased and tailored to a specific verdict. The process was conducted in terms of our Rules. There is a statutory appeal right to the Sheriff Court._

You go on to complain about the use of legal authority. The SSSC may present case law it considers relevant to the Panel's determination. This involves the exercise of professional judgment of those who present cases. The registrant has a right to refer to case law they consider relevant to the Panel's determination. The Panel will decide the relevance of case law referred to. The decision the Panel makes is made under our Rules. There is a statutory appeal right to the Sheriff Court.

As with a number of the previous parts of your complaint, the issues you have raised under this part of the complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.

Picture: Akiragiulia

Complaint 7: Actions by the SSSC open to public misinterpretation

As a social worker your integrity and behaviour are two key foundation stones for your career.

The British Association of Social Workers (BASW) has a code of practice which the profession has embraced since 1975.

But it’s not just about what we do in our working hours.

While BASW clearly defines the ethics of social work our own watchdog in Scotland, the Scottish Social Services Council, emphasises that all actions of its registrants outwith working hours also fall within its jurisdiction. The SSSC website states:

It is important that all social service workers uphold public trust and confidence in social services. We believe that certain behaviours, even if they take place outside the workplace, could question a worker’s suitability to be registered.

That’s a huge responsibility for every person employed within social services in Scotland. Breaking the law, in either summary or solemn cases, could mean being ruled unfit to practise your profession.

Instances of harm, neglect, child protection concerns, “inappropriate” relationships … all of these can come under the scrutiny and investigation of the SSSC.

To some it may sound harsh, but those in social services must be above reproach.

But what about “inappropriate” communication? When social media is a key communication tool, what we say, or how we say can also be interpreted by the SSSC and that Tweet or post could carry the severest of sanctions. This is what the SSSC says:

Inappropriate communication outside of work is also an area which we investigate. This includes breaches of confidentiality or inappropriate use of social media and electronic communication such as email and text messages. This behaviour could be exploitative, discriminatory or abusive and cause offence. This behaviour would question a worker’s reliability and may affect the trust and confidence of people who use services and the public.

So, the SSSC has the authority to decide what may or may not cause offence. That, also, is a huge responsibility.

Despite the repeal of the short-lived Offensive Behaviours at Football Act in March 2018, the “beautiful game” still has its ugly side.

And, of course the “Anyone but England” attitude expressed by some north of the Border is offensive to some. Some may dismiss it as banter, others view it much more seriously.

If you are interested in the “ontological narrative” of the subject, Stuart Whigham’s paper ‘Anyone but England? Exploring anti-English sentiment as part of Scottish national identity in sport’, published by the International Sociology of Sport Association, is worth a browse.

But what’s this to do with me being removed from the Register? Well, of course, absolutely nothing.

And to even be hyper-sensitive to any anti-English sentiment, you’d really need to be English.

I am English.

The reaction from SSSC chief executive Lorraine Gray to this particular complaint is, again, given at the end. Apparently this, too, should be referred to a higher court.

Complaint 7: Actions by the SSSC open to public misinterpretation

The SSSC’s mission statement, prominently displayed on the home page of its website, declares:

Our work means the people of Scotland can count on social services being provided by a trusted, skilled and confident workforce. We protect the public by registering social service workers, setting standards for their practice, conduct, training and education and by supporting their professional development. Where people fall below the standards of practice and conduct we can investigate and take action.

The SSSC also examines what it deems to be inappropriate behaviour outwith an individual’s role, such as repeated traffic violation offences. Therefore one would expect the organisation to apply the same standards to its own behaviour.

As a social worker with many years’ experience in a variety of roles, all my colleagues and I were very much aware of how our behaviour and actions could be interpreted by those we served, interacted and collaborated with; at all times ensuring we were seen as part of a “trusted, skilled and confident workforce”.

It was, therefore, somewhat of a surprise when a social work colleague remarked, and I concede it was done jokingly, that she hoped my harassment claims against Aberlour Child Care Trust would be investigated thoroughly as it was “obvious” that my case holder did not like the English - and I was English.

The reason behind this comment was that on July 3, 2018, the same day England met Colombia in Moscow in the FIFA 2018 World Cup, my case holder changed his public profile picture on Facebook to Carlos Valderrama.

My colleague assumed this picture of the Colombian football legend had been done as an anti-English sentiment, but given any comments associated with this post were private, there are many other reasons for this change of profile picture.

But given the wide range of ethnicity within my profession and the gravity associated with any investigation into one’s conduct within it, there would seem to be the need for some guidance by the SSSC to its staff, and especially its investigating officers, on the fact that those employed within social services are always aware that their behaviour, professionally and personally, is subject to scrutiny, and that they too should adhere to the standards that they are judging others upon.

While I accept that the case holder may well have personal, familial, social or cultural connections with Mr Valderrama, there was, naturally, some doubt during the hearing process that there might be a racist undercurrent. At the very least, I would have expected the SSSC to have been aware of how staff actions on social media platforms can be interpreted, and what would be inappropriate, ill-advised, ‘laddish’ and immature.

To quote Charles Lamb, who famously said that he supposed all lawyers were children once, SSSC should ensure that their legally-trained personnel have left this state behind them before exercising roles of great responsibility.

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise a complaint about the actions of a SSSC staff member. The implication is that the actions of the staff member on a social media site may reveal a bias based on nationality. In effect, this is a challenge to the objectivity of the presenting solicitor. There is a statutory appeal right to the Sheriff Court.

As with a number of the previous parts of your complaint, the issues you have raised under this part of the complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.

Complaint 6: A discriminatory hearing process

From the minute I set foot in the hearing room, this has been an issue for me.

Don’t think for one minute I’m an inflexible feminist: I simply believe in equality.

Apart from the brief appearance of the two hostile witnesses and a clerk on the second day, I was the sole female at the hearing.

Now given our profession is predominantly female in its composition (approximately 85 per cent) and the SSSC is around 75 per cent female, you would think there would always be some female representation in that mix of pursuer and panel.

Questions to get more information from the SSSC on its panel composition were ruled vexatious and equality organisations, women’s rights groups and even feminist campaigners though sympathetic were not keen on becoming involved.

It was only when the Ombudsman ruled that my complaints were not within her jurisdiction that this took another twist. She suggested the gender balance was an issue that could, perhaps, be directed to an elected representative.

My MSP, Willie Rennie, the leader of the Scottish Lib Dems, did raise it with Maree Todd MSP, Minister for Children and Young People.

Ms Todd was considerably more forthcoming than the SSSC on the panel selection process, pointing out that “there are a number of factors that are taken into account”.

These, she explained, included expertise in the registrant’s area of work, gender balance, conflict of interest etc. Even taking all of these into account, Ms Todd pointed it that it could still be possible to have a same-sex quartet.

That’s fair enough. I fully understand that. It is reasonable and it is fair. However, it actually strengthens the relevance of my asking how often this actually happens? Why is that information so difficult to obtain?

That’s one issue, and while accepting Ms Todd’s explanation it prompted me to get in touch with her for some further clarification.

If there is all this in-depth discussion on ensuring a balance, where possible, on panel and pursuer, then was she endorsing the decision taken that it was deemed appropriate for a male quartet to consider presenting as a parallel to a female’s case that of pages and pages of medical detail on vaginal examinations.

Is the Minister at our Scottish Parliament who represents our profession condoning this? Would she consider it professionally sound? Would she back its use in a case against a male worker?

Ms Todd opened the door to more questions that I hadn’t thought of. I was subsequently referred the the chief social work adviser, Iona Colvin... who referred me to the SSSC.

As for the SSSC response to this part of my complaint? Chief executive Lorraine Gray’s comments are, again, given at the end. It is, once more, a referral to the sheriff court if I'm not happy with the SSSC processes.

Complaint 6: A discriminatory hearing process

The SSSC has commendable material on its website regarding equality and diversity issues.

Considerable resource is given to ensuring equality is a priority in all the SSSC stands for and promotes. I would assume that the values expressed in the 2013 Equality Report ‘Valuing Diversity, Improving Opportunity’ this statement remains valid:

The SSSC is wholly committed to ensuring that equalities are central to everything we do, as required by the new legislation. This is not just a legal obligation, but it also makes good sense. If we as an organisation meet the diverse needs of our stakeholders, we will carry out our work more effectively. It also helps us draw on a broader range of talent and ideas. This is likely to result in better informed decision-making and policy development and more efficient and effective services.

According to the SSSC’s own data contained within its ‘2017 detailed workforce information’, approximately 84 per cent of all staff employed within the country’s social services are female.

Reports, dating back to 2008, analysing just under 200,000 personnel employed within Scottish social services, also provide a breakdown of sectors, age and ethnicity.

The SSSC Equality Mainstreaming Report 2015 also provides a detailed breakdown of those on the SSSC payroll. This shows 77.29 per cent of staff are female. The female/male breakdowns are also provided in areas such as ethnicity, disability, stress, training, mentoring and pay gap, as well as the composition of the council.

While that five-year-old pledge on diversity is well promoted on the SSSC website through this statistical analysis, it did not apply to my hearing nor was the statistical weight of gender taken into consideration, especially in the composition of the panel.

Other than the two hostile witnesses called on the first day of my hearing, and the clerk on the second, I was the sole female in that room.

An FOI request submitted by my husband which stated: “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?” was deemed to be vexatious.

However, the General Medical Council, Health and Care Professions Council, Northern Ireland Social Care Council and Social Care Wales all did respond to that question.

The general policy is, perhaps, best encapsulated by Social Care Wales, which stated:

We do not have a formal policy on this however, there is a pool of lay and social care members who are randomly selected to form a panel for an individual hearing. Each panel has three members; a lay member, a social care member and a lay chair. We endeavour to avoid an all-male or all female panel where possible.

The SSSC policy, given its publicly-declared commitment to equality and diversity. is harder to establish.

FOI requests to determine the composition of panels at hearings over the past 10 years, five years, 12 months and six months, were all deemed vexatious by the SSSC, though chief executive Lorraine Gray, when later challenged, after endorsing that decision to the Council did, on December 6, 2018, personally respond thus:

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.

This, I would contend, is an admission from the chief executive that the SSSC is in serious breach of national guidelines.

The SSSC is one of Scotland’s listed public authorities and, as such, has a legal duty to consider equality, including gender specifically, in the development of policy and practice. This duty should, therefore, extend to considering gender in the panel appointment process, and the need for gender representation on panels which make decisions about people’s employment.

I would argue that to dispel any concerns over a discriminatory hearing process within the SSSC these questions are, in fact, vital. While it is commendable that the SSSC views the gender of all its panel members as irrelevant, that does not mean they are gender-neutral or non-binary. Without monitoring and public accountability the perception of cisnormativity will be applied.

Therefore my concern was that the panel structure did not represent the statistical structure of the profession. The fact that the SSSC cannot provide the ‘traditional’ gender breakdown of its panels over the last 10 years, or even one year or six months, contradicts the openness the SSSC advertises on gender balance in the profession and its own staff.

What makes this particularly relevant to my case, and without the given information, perhaps to all cases, is the use of certain documents presented to what I perceived as an all-male panel by a male case holder.

These pertained to precedents (their use and relevance are challenged later within this document).

I was astonished that this all-male quartet accepted and considered the 118-point, 28-page case between the Council for Healthcare Regulatory Excellence and (1) Nursing and Midwifery Council, (2) Paula Grant, of February 11, 2011.

Again through a ‘vexatious’ ruling, I have been unable through FOI requests to determine as to whether this case has been cited regularly by the SSSC – it focuses on alleged professional misconduct through the refusal to perform vaginal examinations.

The SSSC provided the all-male panel with the full report of that hearing, including medical details on the vaginal examination, meconium staining etc. (This was in addition to allegations of bullying, intimidation, contribution to a stillborn, and threatening funeral arrangements).

While, as said above, I challenge the relevance of these to my case, I am embarrassed, distressed and humiliated that these details were presented as a parallel to my conduct as a service manager - no child’s life has ever been put at risk by my actions in my entire career.

Yet, these details were accepted by the panel and its chair, who was legally qualified. The panel stated in its summation that I was not bullied as both the “credible witnesses” had denied this, but the panel members also failed to see aspects of sexual harassment in the use of this case to establish precedent.

This was a graphic and degrading experience, initiated and endorsed by an SSSC male case holder and accepted without question by SSSC-appointed all-male panel.

In 2018 when equality should be a priority in all walks of life, I firmly believe the SSSC needs to re-examine the openness on its gender balance at hearings and the tactics employed when these are single sex dominated.

Perhaps in every other hearing they have a male/female balance, but that raises the question why, when the SSSC had decided to find persuasive precedent through a case involving vaginal examinations, it was not even considered appropriate to have a female panel member, or, indeed, a female case holder presenting that persuasive precedent in my case?

Given the percentage of females employed within the social services profession, registrants and the public have a right to know the percentage of cases where a female worker has had her career decided by an all-male cohort.

The SSSC also advises that panels are chaired by a person with a legal qualification and also consist of a layperson and another who practised social work in a role similar to that of the worker under investigation. For removal of doubt, the chair reminded me that he was a legal professional and I had no legal understanding at every possible opportunity and while patronising, I was clear on that point. However, I am utterly and completely baffled as to who was the social work qualified member. One man said nothing other than ‘I have no questions’ and the other said very little. Perhaps they were more “engaged in the process” in camera?

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise complaints about the constitution of the Panel, based on gender; with the implication discrimination may have occurred. In effect, this is a challenge to the objectivity of the decision makers. The constitution of our Panels is governed by our Rules. There is a statutory appeal right to the Sheriff Court.

As with a number of the previous parts of your complaint, the issues you have raised under this part of the complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.

Complaint 5: Restrictions and conditions on my ability to work

If you follow the SSSC fitness to practise hearings you will have come across cases where, by the time everything is resolved, the worker will have moved out of the field of social services.

And then there will be others who will have moved nowhere. Now despite all the pledges that we are now in a ‘woke’ society, I personally haven’t found that those in the 60-plus age bracket actually have employers banging on their door.

I was determined to put my experience to good use when I left Aberlour but the on/off imposition of sanctions by the SSSC on my registration meant I was almost unemployable in my field.

So, for the best part of two years, until I reached my retirement age, I had almost no income and no benefits; if you want to equate that to a fine before you even reach your prosecution, that’s around a £50,000 tariff. Add to that another 18 months to two years after the 'verdict' then you are looking at £100,000 in lost earnings. The time, the tariff and public vilification puts the SSSC fitness to practise hearing process on a level with a serious criminal case in the sheriff court, with the exclusion of the jail sentence option (thank goodness!).

But the SSSC, operating under civil procedure, is allowed to ignore the guidelines of the Scottish Sentencing Council and "go it alone" in terms of deciding its "sentence". It is another example where the SSSC is above, or outside, accepted Scottish legal procedures.

It was a humiliating time, reaching a peak with the Children’s Panel being notified that I was a danger to the public. Believe it or not, I was even asked if I would still be allowed access to my grandchildren! That’s how horrendous the experience was.

Now, if only I had accepted the conditions on my registration…

But this is a bewildering aspect of the SSSC processes. While part of the Scottish legal system, granted, civil not criminal, it is able to ignore the safeguards that are legally in place, probably because a Panel decision is not a verdict – though it can equate to £50,000 in lost earnings and the end of your career.

It would seem no matter how much information you provide for the investigation into you, that can be decided as inadequate by the investigator, and you have no recourse to challenge that ruling, other than going to a higher court.

I’d really be interested to hear from others on this because I was convinced I received the toughest verdict, sorry ‘decision’, available, because I wanted my case to go to hearing.

While I am only too aware my persistent challenging of the SSSC processes has probably done me - and my family - more harm than good (including this blog), surely anyone who felt they needed to explain what led to their actions would find this statement from a Decision unfair and offensive: "Whilst you had not disputed the facts of the events... you had nevertheless obliged the Panel to proceed to a full hearing."

Surely you have a duty, and the basic right, to give your side of events? And isn't demanding the issues go before a hearing after being assured there has been a full investigation a bizarre choice for someone who had simply made everything up? Someone who simply fabricated  the story of a critical and negative working environment when every single employee apparently revelled  in a warm, caring and compassionate culture, created  and nurtured, as well as collaboratively endorsed, by the only two witnesses called - the same two at the heart of my complaint?

In hindsight, I would say my challenges to the SSSC pursuer had me down as probably obstinate or obstructive but I found it very difficult communicating with someone who apparently knew so little about my profession and my job.

The response from SSSC chief executive Lorraine Gray to this particular complaint is, again, given at the end. Once more it is a referral to a higher court. That Article 6 option that means if there is an appeal option then what went before it  can't be queried and doesn't need explained.

Complaint 5: The restrictions and conditions on my ability to work

I strongly believe all registrants should be aware of the autonomy and inconsistency with due legal process that the SSSC permits in the practise of its case holders.

In a Notice of Decision issued by the SSSC, the Council gives clear and prominent indication of the right of appeal, which is through the Sheriff Court. This indicates, and implies, a judicial progression through the process. It should be made clear on the SSSC website and through all correspondence with workers facing allegations that while the SSSC concedes to the higher authority of the Sheriff Court it does not follow or adhere to the sentencing guidelines as set out by the Scottish Sentencing Council.

These guidelines, issued from Parliament House, apply to the legal process in Scotland yet a decision made by the SSSC is not bound by these. However, the process of appeal refers that decision to a system that does adhere to them. The SSSC does not admit to registrant or superior court, that the guidelines can be ignored by any SSSC case holder.

Again, I have no option but to cite my own case, which, given the acquiescence of the panel, chaired by an acting Sheriff, would indicate this is normal practice.

I believe the conditions imposed by the SSSC on me pending my hearing were manifestly unreasonable as I was unable to undertake the basic duties of a social worker which I was qualified to do.

As a woman in her 60s it is difficult to find employment without such conditions and these terminated my career prematurely which has had a significant impact on my psychological well-being.

In retrospect, my decision to inform the SSSC case holder - as part of my engagement with the process - that I was considering agency work prompted the SSSC reaction of proposing conditions that meant, in effect, that no agency could put me on its books. Thus, effectively, ending my working life.

Using the summary of factors published by the Scottish Sentencing Council, my complaint centres on:

Nature of the offence: There is no judge in a fitness to practise hearing therefore the nature of the offence and how serious that offence is, remains the sole responsibility of an SSSC case holder who may have no qualifications or experience in a given field.

At the very outset, the gravity of any allegation needs to be investigated from all sides. I would argue, in my case, this was not done. Key front line senior managers and witnesses were not contacted, resulting in a skewed and inaccurate allegation at the very outset.

Culpability: Only from the detailed investigation of the above can that case holder form a clear perspective of the culpability of a worker. If that first stage is not given the importance it merits, this second stage is virtually meaningless and based primarily on an ill-informed, unqualified and subjective perspective.

Protection of the public and deterrence: Again, if the initial examination of the nature of the offence is not carried out with due diligence and care, then the grounds on the need to protect the public are not based on fact but the subjective interpretation of a restricted analysis of the complaint.

In my case, the first allegation refers to a failure “to progress a child protection concern”. This is totally true in that I did indeed fail to complete the required paperwork. On the first occasion I provided a tape recording which clearly indicated what was happening on that day, and in response to my seeking information from my manager on that same case, and on the second, which occurred three working days later by commencing sick leave within 24 hours of the required 48-hour period. On the third occasion, I had no computer of my own, it was broken. Aberlour states it was replaced but to my knowledge has not been able to prove this.

However, verbal communication with the relevant case holders had taken place. If the SSSC had spoken to the social workers and the senior managers dealing with the case in question this would have been confirmed with a simple phone call.

The SSSC chose not to do that and, instead, portrayed the allegation as a ‘cold call’ on a child at risk. This is simply not true. The most basic steps of a preliminary investigation, contacting the social work team responsible for the case, would have shown this. Why was this elementary step not taken?

Aggravation and Previous Convictions: These guidelines issued by the Scottish Sentencing Council were not relevant to my case, though I would argue that the SSSC acted in a manner that I was behaving in a way deemed aggravating in that (1) Conditions were imposed on my registration, effectively stopping me from practising as a social worker while the investigation was under way, thereby seriously affecting my livelihood; (2) Conditions were removed from my registration which would have allowed me to undertake agency work and secure employment; (3) SSSC wished to impose Conditions which would effectively terminate my employment again.

I challenged these Conditions, offered to me again on the morning of my hearing; some 10 hours later when I had spoken approximately 800 words through brief questions to two hostile witnesses and a brief statement, the SSSC equated me with those responsible on multiple charges of manslaughter and murder. I was subsequently removed from the Register.

Personal circumstances: The SSSC at no time considered any of my personal circumstances, did not offer a single face-to-face meeting and ignored all the Scottish Sentencing Council recommendations on establishing facts regarding home background, current living situation, finance or age; effect on family/employment.

The only circumstance taken into account by the SSSC was on health, not on my ability to work, but access to my GP regarding my health at the time of the incidents under investigation. This came with the warning from the SSSC that I could be removed from the Register if I failed to provide this, despite their having an Occupational Health report clearly stating I was fit to work, and only anxiety about working for Aberlour Child Care Trust prevented that.

Opportunities for rehabilitation: The imposition, removal and attempted re-imposition of conditions on my registration thwarted all my attempts to prove my capability as a social worker.

The SSSC was, however, interested in my selection and training for the Children’s Panel and considered whether that training would merit the removal or revision of the re-imposed conditions. The quality of training did in fact remove the necessity of undertaking child protection training - suggesting strongly that I no longer presented a risk in this regard. I had advised the SSSC that I had become a panel member because I believed it was important as part of my engagement in the process. The SSSC would not have been aware of it otherwise. After the hearing, the SSSC informed Children’s Hearings Scotland that the public should be protected from me, and I was forced to resign. I was not given the courtesy of being advised that this was to happen until it had been done.

Mitigating factors: The SSSC only gave cursory note to my previous impeccable record; it was acknowledged by myself from the outset that I did indeed breach Data Protection by sending information to my personal email account for personal protection over the harassment and bullying I was experiencing, and concern about the reliability, honesty and psychological well-being of a worker who had forged documentation – a justification dismissed as without grounds by the SSSC and through the removal of evidence.

It was not made clear to the panel that I advocated a police investigation into the circumstances of that breach and was willing to proffer information on serious breaches carried out by management within Aberlour Child Care Trust.

The SSSC chose not to pursue these.

It is also of some import that the SSSC itself chose to breach the Data Protection Act (see Complaint 1) by contacting {Removed} after queries were raised about the SSSC processes for this complaint.

By admitting the second allegation prior to the hearing, and offering mitigating circumstances to the first, I would argue that I cooperated fully with the SSSC, submitted valuable information worthy of serious investigation. Contrary to the Scottish Sentencing Council’s guidelines this proactive approach on my part was used by the SSSC as grounds for an extended sentence, rather than the conditions offered to me by the same caseholder some hours before.

Assisting the prosecutor: The Scottish Sentencing Council states: “If an offender, who has pled guilty to a crime, agrees in writing to help the prosecutor with the investigation, then the judge must take into account how the offender has assisted when deciding the sentence. The judge will give the offender a less severe sentence for helping the prosecution and explain what the sentence would have been otherwise. The sentence can later be reviewed depending on how much help is actually given to the prosecutor. If an offender does not provide what has been promised, the sentence can be made more severe. (But no more severe than it would have been if no agreement to help was in place.)

As far as my case is concerned, I am baffled how the SSSC can criticise my engagement with the process. Certainly, over the 18-month period I grew increasingly frustrated at being kept out of employment and the lack of enthusiasm by the SSSC to actually investigate all aspects of the allegations made against me.

Without the information I provided the case holder would have had a great deal less information available and it was only by SSSC redaction and editing of my statements that it was able to construct its case against me, while ignoring my mitigating circumstances.

The admission by the SSSC that those I claim were responsible for forcing me into an untenable position had come forward with other allegations that it decided not to pursue denied me the opportunity to challenge their behaviour. Fresh grounds were raised and dealt with by SSSC without my knowledge.

Taking all these factors, the SSSC ignored the guidelines of the Scottish Sentencing Council in ensuring a system of natural justice, openness and fairness is employed within its processes.

The SSSC successfully achieved in its decision an extended 'sentence' against myself but its investigation into the nature of the offence and culpability has attributed all blame to myself as one, essentially, rogue worker. I still find that a disturbing conclusion.

It would seem my mistake was to exercise my right to a hearing. I believe that I was punished for doing so, and the outcome would have been different had I accepted the conditions, however unworkable and impractical they were. That is an indisputable fact. In a recent case, for example, publicised on the SSSC website, a social worker who placed children, women, service users and the public at risk because his fitness to practise was impaired over several years, accepted the one SSSC condition which was to write a reflective essay. I am not judging this worker, I do not know what his mitigating circumstances were, but they were clearly taken into account. However, I believe the pervasive lack of logic and consistency within SSSC must be addressed as a matter of urgency.

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise complaints about how the decision was reached. The Decision was reached in terms of our Rules. There is a statutory appeal right to the Sheriff Court.

As with a number of the previous parts of your complaint, the issues you have raised under this part of the complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.


Picture: Athree23

Complaint 4: Length of time to complete process

The hearing process is not a quick one, so if you find yourself out of work after an allegation you can expect to be in career limbo for years, not weeks.

In criminal cases, the process from being charged to going to trial can vary from months to around two years, depending on the complexity of the case.

An SSSC investigation seems more likely to veer towards that ceiling, though it appears there are many instances where two years come and go.

From the worker's point of view, as in my position, I was essentially locked out of my chosen career for the last three years of my working life. That presents a major problem if you are having to find the money to pay for legal representation, never mind pay your daily bills.

It might also account for why a good number of workers accept the initial decision of the SSSC and avoid going to hearing – it is quicker, so financially less of an impact, and the ‘sentencing’ might be less severe.

Now, being the Devil’s Advocate here, that’s actually not good for the profession. As you will see from the complaint and Lorraine Gray’s response, I refused to have sanctions put on my registration after the initial investigation following being referred.

The ensuing 18 months apparently allowed a much “deeper clean” of my career, with minutes before the hearing began the SSSC was still content to apply those sanctions.

Between walking down the corridor to the hearing room and uttering, I’d reckon, between 300-400 words over the next few hours, I had rocketed from ‘sanctionable’ to a danger to the public, a disgrace to my profession, a liar and a fantasist; someone who would be willing to watch a child die rather than use the petty cash box to buy a £25 life-saving aid, someone who could kill numerous sick children over a period of years; someone whose name would not be out of place alongside a mass murderer.

If these extra few hours on my investigation produced these revelations, then you must surely argue the case that the chances are a lot of our colleagues have got off lightly and the SSSC has returned a veritable army of potential killers back into the workplace.

I’m actually more cynical. I think going to hearing just makes a lot more work for a resource-strapped SSSC, and demands to have a full investigation into allegations that affect your professional standing or can even end your career are not embraced by the governing body, but resented.

The response to this complaint, from SSSC chief executive Lorraine Gray, is given at the end.

Complaint 4: The length of time it has taken to conclude the process

I was not aware that the investigation and hearing process would take in excess of 18 months to complete. As my FOI requests demonstrate, with an average investigation taking months or years to complete I would argue that very few workers could afford legal support for this length of time.

Furthermore, if workers have been placed under conditions or restrictions they may, as in my case, find themselves unable to work, which means they are further disadvantaged in being unable to afford legal representation.

This may force workers into accepting the conditions of the SSSC without a fair hearing due to financial constraints.

This I empathise with completely. When the allegations were first made against me, the SSSC first imposed conditions on my registration with my agreement, as I believed I was entering a fair and balanced process which I was told would take around nine months. I lost a job because of this, and certainly could not have found another in statutory child care because of the case holder’s use of the word ‘supervision’ which he clearly did not understand in the social work context. The conditions were subsequently removed in July 2017, allowing me to take on agency work. New conditions were then proposed which made agency work (my last chance of employment in social work) impossible and I decided I had no choice but to go to a hearing.

I had to ask about the progress of my case on several occasions; on one of these I had been asked to provide information by July 24 but heard nothing so emailed, and in September was informed that the case holder had been on holiday on that date, then broke his wrist so there had been no progress. In the interim I had not been informed, nor the case passed on to someone else. This clearly demonstrates the contempt with which SSSC regards the Public Services Ombudsman’s recommendation that it follows its own procedures which state that staff need to keep registrants informed of progress and also to plan communication when periods of inactivity are likely (Decision Reports 201508066 and 201507957 August 2016).

Response from Lorraine Gray, chief executive SSSC

On 19 December 2017 you emailed us and raised concerns about the length of time the investigation had taken. We responded to this by letter dated 22 December 2017 and provided information on how to take this particular complaint further.

The case was referred to us in October 2016. By December 2017 the investigation had concluded and you had been offered a sanction. You did not agree with the sanction offered and exercised your right to have the case heard by a Fitness to Practise Panel. The time it takes to hold a hearing is based on timescales within the Fitness to Practise Rules which allow for evidence to be exchanged and to provide the parties adequate time to prepare a case. In addition to this, a hearing date will depend on the availability of Panel members. The Panel convened in May 2018 and adjourned to July 2018.

I do acknowledge that Mr Miller had a short period of unforeseen sickness leave. His return to work also coincided with some other hearing commitments. This meant some aspects moved slower than others. I am not satisfied having someone else carry out Mr Miller’s duties during this period would have led to the case concluding quicker. The reason being that any new person allocated the file would time to familiarise themselves with the file. Had Mr Miller’s sickness absence been more long term then this option would have been considered.

I am unable to find evidence that the case was unreasonably delayed. I am satisfied the case was managed appropriately within our available resources.

Picture: Valentinsimon0

Complaint 3: Subjective use of redaction and editing

The aftermath of my hearing wasn’t just a time of reflection but a time of serious learning.

I had to start to understand basic principles of Scottish civil law, get to grips with qualified and absolute privilege, the use of precedent etc.

One area where, through family connections, I had plenty of experience was the world of editing and, related to that, redaction.

In its simplest form, the privilege granted through a legal setting certainly simplifies editing and redaction, or so I thought.

And linked to this is volume of work and resource. The SSSC has a high volume of work and does not have limitless resource.

As the governing body of the social services that is particularly fitting since I don’t know anyone employed in what was my profession who doesn’t daily face a massive, complicated caseload with little respite and any support that can be called upon is under the same pressure.

And, of course, every action, every decision is under scrutiny. Supervision is vital, and carrying out that supervision is also a massive responsibility.

But that is where the SSSC differs from its operational registrants.

Your pursuer is autonomous and, essentially, only accountable to a higher court.

No one checks his or her actions or decisions. Given the caseholder investigates, prosecutes, advises the Panel and psychologically assesses the worker, that’s a massive amount of responsibilities without performance being monitored.

And that 'psychological' assessment, performed without your knowledge or consent, is there for anyone and everyone to read...forever - you can't challenge it and it is as degrading and humiliating as your medical records being made public. And its effects on public perception continue long after your case as I found to my cost at the weekend. But that's another issue.

So, if you feel something important has been left out of your case. Tough. That’s down to professional judgement. If you think avenues should have been explored that weren’t. Tough. And so it goes on. The case that is presented is chosen and shaped by the pursuer - the person you are providing the information to, but without any say on what goes in, or is left out of, the case.

I don’t doubt the frontline of the SSSC is also under immense strain but that is of no concern to the person whose career is on the line.

Pressure from above and from behind, and from every direction you can imagine, is no excuse for a social worker, like me, getting something wrong.

So it shouldn’t be for our profession’s governing body.

But then again, the SSSC is seemingly infallible…

The SSSC chief executive’s response to this complaint is given at the end. Basically, again, if you think we got it wrong, go raise it with the sheriff.


Complaint 3: Subjective and unchecked use of redaction and editing

It is my contention that the SSSC redaction process within the investigation process is seriously flawed.

Registrants should be made aware that their governing body is not investigating, in its fullest sense, an allegation against him or her, but, as stated in Complaint 2, prosecuting the registrant.

Legal representation at the highest level is required by any worker to challenge the SSSC case holder who, especially, if a registrant insists on going to a hearing, is ‘investigator’, prosecutor, judge, jury and executioner.

SSSC registrants are not aware that there is no supervision of the case holder and the only recourse to challenge is through the court process.

This, of course, prolongs the proceedings and incurs greater cost.

Registrants are also not aware that the case holder might have very little knowledge of their employment and the everyday procedures that the post entails. They are also not aware that the case is tailored to an outcome, and that, without even meeting the SSSC case holder, he or she will present a ‘factual’ psychological assessment to a panel, that is nothing less than amateurish psychobabble.

Fitness to practise investigators are required to hold a degree or HND equivalent in law, social work or a paralegal qualification. There is no requirement for an ability to carry out psychological assessments (from SSSC website mentioned above).

All of this is undertaken without any supervision. Where is the accountability in this process? How can quality and consistency be assured when case holders seem to operate as singleton practitioners, and proffer ‘expert’ insights into fields in which they are not trained and have no valid knowledge? 

These are laid before the panel at a career-defining moment in the hearing process as ‘absolute fact’, when they are nothing more than subjective opinions.

Perhaps this would explain why I was struck off because, during a period of ill health I failed to follow up verbal information sharing with signed forms and a worker who failed to make appropriate referrals of children living in environments with characteristics of the ‘toxic trio’ and thus placed service users, their partners and children, and the general public at risk over a number of years writes an essay and keeps practising. How many more anomalies will I find as I continue to research SSSC beyond the timescale for this complaint?

The case for that total autonomy would, in my opinion, rest solely on the safety net of a literal ‘higher court of appeal’, and that it would not be “practicable” to have every case holder’s work supervised.

The former is valid, if the SSSC process endeavours to follow basic legal guidelines and natural justice, which it does not. The latter would seem to be a resource issue. This is of no concern to the registrant; this is a matter for the SSSC to take to its masters. A registrant may be fighting for his or her livelihood, the resource issue of the SSSC should not be a factor when one finds his or her professional capability challenged. In my case, the investigator pleaded volume and complexity of work as a reason for delays, but conflicting priorities and a high volume of work were not regarded as a reasonable excuse for my professional shortcomings in a brief period in an otherwise exemplary career working with vulnerable children and their families.

The right of appeal will be an obstacle for most registrants and is a camouflage for a seriously flawed process behind the investigation. I believe that is clearly evident in the redaction process.

It has been consistently difficult, owing to the total autonomy given to the case holder, to determine if my concerns about the SSSC are only relevant to my case, or to the fundamental processes that are in place throughout the Council’s remit.

I can only cite my circumstances in the hope it is an example which might be applied elsewhere.

In my case, I accepted the second of the allegations, with the defence of justification; regarding the first allegation, I claimed a number of mitigating circumstances.

The SSSC redaction process distorted my case in its entirety and, in so doing, the caseholder presented to the panel only the situation as he saw it. My opposition to that was seen as uncooperative and not accepting the gravity of the situation.

At the outset I stressed that the submission of Child Welfare/Child Protection forms in respect of this family was a frequent occurrence because I, as manager, had put this in place in order to monitor their progress. The family were known to a number of agencies, including social work, and communication was regular and two-way. Any concern was passed on verbally, and would have been entered on to the Dundee City Council database. The only time information was not passed on was when an Aberlour worker failed to report to anyone that she had allegedly seen the mother hit one of these children with a dustpan and brush (this being an offence). This information only came to light when she moved to Dundee City Council.

The police became involved then and that is when I found out about it, and I believe it was one of their meeting minutes which my manager in August 2015 purloined. As I told SSSC, when asked to comment in October 2016 about a form from March 2016 I could not recall it specifically, particularly given my stress at the time and lack of a computer.

I remembered however that one had been so poorly written I asked the worker to reattempt it, and had had to remind her I was still waiting for it some days later. Was that the form which was used as part of the evidence against me? I still do not know. I do know, although the SSSC has refused to provide evidence that it consulted Dundee about risks to the children, that these were not increased by my failures. I cannot express remorse for something I am not guilty of. Of course I deeply regret not completing these forms. Does the worker who kept quiet about children being hit with objects express remorse? She is still on the register and there is no evidence that she has been investigated or is under investigation.

I contend that the SSSC through redaction and editing, tailored a case with an end result in mind.

The lip service to legal proceedings is unsettling, and the processes employed, certainly in my case, were unsafe and unfair. Legally, with a higher court of appeal, the SSSC hearings are covered by qualified privilege, therefore a good number of the redactions are unnecessary.

The SSSC on June 5, 2018, cited (Ref: FtoP/CON-00015729) four “broad criteria” on which redactions are based.

While I accept, in the main, the need to redact personally identifiable information, and the outcome of prior investigations which may be prejudicial, I challenge the SSSC’s two main criteria which allow the tailoring of a case and ignore the legally valid qualified privilege.

The SSSC states:

Information that could be prejudicial to a worker is redacted from the bundle… a significant amount of information in relation to your conduct was redacted from the bundle as it related to matters that did not form part of the allegations before the panel. Had this information been included in the papers before the panel, there was a risk that the panel could have formed a negative impression of you, which would not have been fair given that this information did not form part of specific allegations before the panel. Redaction of this kind of information is a matter of judgement for the SSSC case holder.

Given that my mitigation rested on continuous bullying and harassment why would the case holder decide this information, unrelated to my conduct, would form a negative impression of me. This can only be based on the assumption that this “significant amount of information” was true. If this had been presented, challenged and proved false would this not have reinforced my case of bullying, harassment and intimidation? The SSSC declares this to have been a “matter of judgement” for its case holder.

This information would have been covered by privilege and it would have been for the legally-qualified chair to consider its relevance, veracity and whether its source was, indeed, a credible witness.

The SSSC, in this instance, has tailored the case, under the pretext of protecting me. By redacting that information it has narrowed the situation that led to the allegations and given credence to what may well have proved false. Two women who ‘managed’ me for a few months (and the case holder was aware of the lack of formal supervision during this time, though granted may not have regarded it as significant given SSSC’s own complete disregard for processes which ensure accountability) were portrayed as exemplary practitioners, with unblemished records who nurtured and practised a caring, compassionate and supportive management style.

The SSSC case holder did not inform the panel that it was involved after Aberlour’s SCAFAC service was closed as one of its two practitioners attended a hearing. The other - the SSSC’s witness in my case - was also under scrutiny but was not a registrant. The other witness agreed with me at the hearing that a meeting she cited in her official witness statement had not actually happened, and this in addition to other concerns, including her understanding of data protection.

Of far greater concern to myself, and relevant to all registrants, is the SSSC statement:

Information suggesting that another individual or worker may have behaved inappropriately may be redacted if it is thought that including information about that person within a bundle of documents might be unfair to them, in that they may not be present to be able to defend their own conduct. Again, redactions of this nature are a matter of judgement for the SSSC case holder.

This is a disturbing admission by the SSSC and must surely undermine any claims of mitigation that involve others.

In my case, and as previously mentioned above, I presented a tape recording that I believe shows the harassment by one of SSSC’s witnesses which I was enduring at the time of my transgressions; this was not admitted, though should have been admissable under Protection from Harassment legislation. I suggested that another matter involving forged documents submitted by one of SSSC’s witnesses should be referred to the police; this was not deemed appropriate. There were other instances involving data protection breaches; these were redacted. There was a witness to support my claims who was not contacted; because the case holder deemed her evidence would be irrelevant (without talking to her); and there was an implication that she would probably lie.

In short the caseholder suppressed a wealth of information which strengthened my mitigating circumstances, and never advised that he had done so.

Registrants surely deserve to be informed that if they cite someone else’s behaviour or actions as inappropriate and a cause or contributing factor in the allegation(s) levelled against him/her, the SSSC has the autonomy and power to decide whether or not this is unfair...without even contacting them or investigating, and then withhold that information from the panel, and from the worker.

In my case, a letter from the case holder dated February 6, 2018, drew a distinction between the imposition of a Temporary Order which is made apparently when there has not been ‘a full analysis of all the relevant factors’ and when a final decision is made, and based on, as the letter states ‘an assessment of a far wider range of factors’.

Between the Temporary Order being removed in July 2017 and the final decision being made in June 2018, the case holder had removed the forgeries from the evidence - thus removing the mitigation for my data protection failure.

He also suppressed a recording of a senior manager, now working for Aberlour but who had had a senior role in child protection at the time of a child’s death and a swingeing inspection of child protection services in Dundee city, and who refused to provide me, as one of her reporting managers with child protection information, one has to ask what the far wider range of factors could actually consist of, and how does this protect the public, maintain public confidence in the profession and uphold standards?

The autonomy granted by the SSSC to a caseholder in a hard-legal setting, since the right of appeal is to a Sheriff Court, is unprecedented in JP, Sheriff and High Courts, in that the SSSC ‘prosecution’ is directing the SSSC-appointed panel towards a verdict. Unless a registrant has legal presentation the odds are stacked against him or her; there is no semblance to justice and must be a breach of article 6.

In terms of a quasi-legal setting, the SSSC is also without precedent, in that appeals are directed into the mainstream legal process – a costly and intimidating experience with, given its hard-legal pretence, protection seemingly to favour the prosecution.

Despite the SSSC seeking a legally-qualified chair to a hearing panel, the panel itself has no say in what is redacted. Essentially the panel in its entirety receives all its information from the case holder; again a further breach of article 6.

The SSSC states:

It is the responsibility of the case holding solicitor to carry out the redaction of the bundle. This is not a process that is usually overseen or signed off by a senior colleague. The case holder is seen as the person who knows the file best, and is therefore best placed to carry out redactions.

It should be made clear to all registrants that all information they provide will then be processed to meet the case being presented by the case holder; that which does not will be edited/redacted. This is not done and is, therefore, another breach of article 6.

Natural justice would require the SSSC to inform registrants to say nothing until they take legal advice; this would at least force the SSSC to build and present its own case, rather than turn a registrant’s own case against him/her.

It is on that issue of natural justice that, perhaps, the most alarming admission is made by the SSSC on the autonomy and power of its individual case holders:

Given the volume of hearing work undertaken by the SSSC and the amount of paperwork produced for SSSC hearings, it would not be practicable for all redactions to be reviewed and signed off by more senior staff.

Of prime concern here is the reference to the “volume of hearing work” and “amount of paperwork”.

Why is that of any concern to a registrant, other than the impact that will have on he/she receiving a fair hearing? The volume of work is no defence for anyone in social services to fall short of the set standards or to jeopardise the public view of their competence in performing their job to the highest standards. It was certainly not permitted as a reasonable defence in my case. It should therefore not be justification for the SSSC as the governing body.

Given that admission, there is the potential within the SSSC process for an abuse of process from investigation through to hearing, with the redaction/editing stage key to that. There is no course of challenge or redress than to step out of the process and enter the Sheriff Court chambers. There a layman would be faced with having to carry the burden of proof that the SSSC advocacy of article 6 is not carried through in practice. Without experienced legal support this would be a major challenge. With it, it would be a major expense.

It is no great wonder that statistics show investigations favour the SSSC. This, I would suggest, is not down to consistent failings or weaknesses on the part of the registrants, but a system that is stilted, unfair and unjust at its operational level.

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise complaints about the evidence that was before the Panel. The evidence we chose to present at a Panel is a decision we make under our Rules. There is a statutory appeal right to the Sheriff Court.

As with the complaint you have raised under part of complaint 2, the issues you have raised under this part of your complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.

Picture: Gordon Johnson

Complaint 2: Investigation or prosecution?

Thanks to everyone for the feedback, and the messages of support. That really means a lot to me and has got me quite emotional!

There have also been a few questions, especially about the 'vagina' issue and the gender balance of the SSSC panels. I'm sorry but I don't have any more information but the SSSC welcomes questions from the public, stating on its website:

You can send your request by email to informationgovernance@sssc.uk.com or by post to the following address:
Scottish Social Services Council
Freedom of information request
Compass House
11 Riverside Drive
Dundee
DD1 4NY
All requests will receive a response within 20 working days.

Good luck with that. If you get any more information than I did, please share it.

Anyway, the second part of the complaint I lodged focused on how it all begins - learning that there is to be a investigation.

So, what exactly is an investigation? According to the Cambridge Dictionary it is: “The act or process of examining a crime, problem, statement, etc. carefully, especially to discover the truth.

Although, of course, I was aware of the Scottish Social Services Council, my profession’s governing body never really figured in my, or any of  my colleagues’ working lives – except in paying our fees. 

When I discovered an “investigation” was under way, I suppose I was more indignant than concerned – a level of complacency I would come to rue. I knew what had happened and I knew why. An investigation would confirm that.

I admit it… I was totally naive. Though, in my defence, that’s not really the attitude of someone who would later be deemed to have fabricated everything.

Then there’s the word “prosecution”, defined in the dictionary as the act of officially accusing someone of committing an illegal act, esp. by bringing a case against that person in a court of law.

Now the SSSC and I interpret its actions differently but, at the very least, the investigation can change into a prosecution very quickly, and you don’t have any insight, or recourse, on the depth of the investigation.

For anyone entering the hearing process you should be aware that your caseholder, that's the solicitor entrusted with your career, is also the investigator. He or she will determine what aspects of the case to examine. 

This person, the investigator, is also the presenter of the case to the Panel, which will ultimately make the decision on your case and your career. 

The presenter though also happens to be the pursuer in that he or she will deliver the case against you that he or she has constructed. 

If that's not enough, the pursuer is also, in many respects, the judge, in that he or she will direct the Panel (essentially the jury) as to the outcomes it has available to it in delivering its judgement on you.

Of course before 'sentence' is passed the hearing also has what would be described  in a criminal court as ‘background reports’. These will examine your psychological state, analysing and detailing your attitude, co-operation, insightfulness etc. This psychological profile will be made public by being posted online. Oh, and it will be done without meeting you or speaking to you.

The SSSC has refused to say who carries out this personality analysis, or their qualifications. So, it is probably safe to assume this lasting, public psychiatric evaluation is also carried out by the solicitor/ caseholder/ investigator/ prosecutor.

That is a lot of roles for a single person, and each and every one of these roles can decide your career. Given they are one and the same person, I would imagine they always back each other up.

Oh, and don’t forget this multi-tasking SSSC appointee is also an expert in your particular field of work in the social services field, and fully aware of every pressure, every demand, every professional dilemma you may face.

So, you can see why you really need to be represented, and represented by someone who knows the SSSC system, who knows your profession and your role within it… and what demands are made upon you.

That’s a tall order. It is also a very expensive one.

I would recommend you have that expert advice on board right from the outset, from the very start of the investigation. Unless you have union backing or support from a professional body, you’ll be hiring those services for around two years. If you decide to complain, appeal, go to the Ombudsman, you can add another year of fees to that.

We did some rough sums, and we weren’t going to get much change, if any, out of selling our house…and that, of course, would have come on top of loss of earnings for nearly two years. Legal Aid wasn't available but now, at least if you are a Fifer, the Fife Law Centre will provide that support. That is a huge help, and a huge commitment from its staff.

So was it fair? 

The response to this complaint from SSSC chief executive Lorraine Gray is given at the end. Remember though, that Article 6 ruling by the Sheriff, which is the big Catch 22. In its simplest terms, the process should be fair but, if it isn't, as long as there is a right of appeal to a higher court  then it is fair.

Complaint 2: Prosecution or investigation?

My second complaint concerns the SSSC record of decisions in cases involving registrants.

I was investigated by SSSC from some time in 2016 (exact date unknown) until 2018.

I am unsure about the date the investigation started as I was not informed that it was under way until 12th October 2016 when I received a letter from SSSC advising that I had been referred.

Over the ensuing 18 months I received, approximately 25 letters from the SSSC caseholder and others within SSSC which were headed ‘SSSC investigation’, or made reference to it, as well as a number of emails in response usually to my requests for advice on progress as weeks turned into months... and years.

I believed that the circumstances of my case would be fairly and thoroughly investigated. It is stated in the Key Performance Outcome for Fitness to Practise Investigator post, retrieved from the SSSC website, that:

Investigations are completed fairly, proportionately and promptly to protect the public, maintain public confidence in the profession and uphold proper standards.

Indeed, the initial letter from an intake worker states: “ This investigation will be undertaken with an open mind.”

At no point during this period was I advised that I was presumed guilty until the SSSC was able to bring about a successful prosecution and ‘prove’ that I actually was. I had faith and trust in a body and a process which I now know was seriously misplaced.

What is particularly concerning is that the SSSC is more open about that role within the legal fraternity that it is with its own registrants. Speaking at the Scottish Universities Law Clinic Network, on June 7, 2017, at Glasgow Caledonian University, Martin Campbell, the SSSC’s fitness to practise manager, spoke on what the SSSC does, “as a prosecuting body”.
(https://twitter.com/SULCN/status/872472064183197696 ).

In addition the Network reported:

He notes there can be an access to justice issue connected to SCCC's work, and unrepresented parties tend to do worse than represented.
( https://twitter.com/SULCN/status/872472064183197696 )

This has been acknowledged by the SSSC and it would seem appropriate for the SSSC website to indicate that its registrants should be aware that their annual fee goes towards their ‘prosecution’ in the event of an allegation while they are advised to also pay for their defence.

It should be prominent in all literature, hard copies and online, and particularly in correspondence with workers under investigation, that when allegations are made against an SSSC registrant the process that ensues is a ‘prosecution’ and not an ‘investigation’. To indicate the latter but apply the former is, at the very least, misleading and a basic violation of article 6 of the Human Rights Act 1998.

It would be interesting to see the results of an independent legal trawl through some recent cases to determine how often the SSSC has violated article 6 on this issue.

The lack of clarity regarding the legal nature of the hearing is also of concern.

Although the SSSC recommends legal representation, it is not made clear to workers facing a fitness to practise hearing how imperative legal representation is to an outcome which will favour the worker, a point made by Martin Campbell at the Scottish Universities Law Clinic Network.

My family and I have submitted a number of FOI requests which clearly demonstrate that the better legal representation you have the more likely you are to achieve a positive outcome. This would suggest that the hearings are indeed conducted as a trial and in line with principles of natural justice, workers should be afforded appropriate representation or clearer guidance as to the potential likelihood of a prejudicial outcome without representation.

However, the majority of workers who are subject to a fitness to practise hearing do not have legal representation and the majority are struck off. Having searched your website the misconduct for which people are struck off is widely variable and I would suggest that once a worker is subject to a fitness to practise hearing the presumed outcome for the SSSC is for that worker to be struck off.

Indeed, there is evidence to suggest that the worker merely exercising his or her right to a hearing may escalate a decision made in his or her case up the tariff of possible outcomes sought by SSSC - compare the statement made by the case holder to me in a letter dated 21st May 2018 (page 2, paragraph 3) to the eventual outcome.

I think this is further prejudiced by the fact that, without legal representation, the only person who decided what information was or was not prejudicial or damaging to my case was the prosecuting officer who was presenting the case against me.

I am not a legal expert however I am aware that there is no court in the land that would expect a lawyer to both prosecute and defend the accused simultaneously.

Therefore, I do not believe that I was in any way likely to be able to successfully challenge the case presented against me without representation and I believe this should be made clear to any worker facing a hearing.

I found it difficult to engage with a process which to me seems so inherently unfair, and indeed I was told by the chair of the Panel that I had not engaged. I completely refute this as there are, in addition to paper correspondence some 35 emails retained on my computer between the caseholder and myself, and a comment from him within a letter dated 17th April 2018 thanking me for information needed to progress the case.

In addition, I participated, by telephone in a case management meeting (CMM) in April 2018 when I had indicated I did not wish to do so, with absolutely no notice. I had indicated that should a question arise during the meeting which information from me would clear up, thus aiding the process, I could be telephoned in order to provide an answer. The information I received prior to the CMM stressed the need to prepare for participation in a CMM. I was not given this opportunity as I was telephoned by a female at the very start of the meeting and pressured to participate by telephone. There is a concerning email (author’s name redacted) between SSSC personnel after this meeting, which clearly relates to my lack of understanding about the process. It would have been helpful if the case worker had advised at this point that he had no intention of letting the panel hear my audiotape, nor speak to my witness, despite his assertions to the contrary (in letters dated 21st May,1st June and 4th July 2017).

An FOI response from the SSSC further supports the fact that I did engage and strongly suggests that the Hearing Chair’s comment, and its inclusion in the final decision was unfounded (4th September 2018 00161/FOI/FP ).

Response from Lorraine Gray, chief executive SSSC

Under this heading you complain about the investigation and hearing process. How we investigate cases and the Panel’s decision making are decisions made under our Rules.

Given the above, the issues you have raised under this part of your complaint do not fall without our Complaints Handling Procedure and should be challenged in the Sheriff Court. I would recommend you give further consideration to lodging an appeal at the Sheriff Court in order for these issues to be considered in the appropriate forum.

Picture: Tumisu