Saturday, 14 September 2019

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

1 comment:

  1. I seems to me that it was a total stitch up. The point about legal representation is a good one - the process is tantamount to a court proceeding.

    I had to go through a registration hearing in 2006 because of a spurious allegation in my personal life in 2000, which was thrown out by the Sheriff Court, because a key witness against me retracted her evidence, saying she had been bullied by the complainer. She some years later confirmed this to me personally.

    Unions and representative bodies have the best interests of their members at heart, but unless they have proper legal counsel, they are up against experienced prosecutors.

    I take the point about the "caseworker" role. In my case, the "investigation" was undertaken by a conduct officer, and the case was prosecuted by the SSSC solicitor, with the conduct officer present, but totally silent. So the title of "caseworker" i.e. the prosecutor, is subject to question.

    I had occasion, in 2006, to review files related to cases that were part of of your practice, as part of a UK Government request, and I have to say that at no point did I question your professional judgement.

    Your current situation is more to do with failings in your line management, and while, technically, you perhaps broke the rules, you should not have been dealt with in this way. A slap on the wrist would have sufficed.

    ReplyDelete