Tuesday, 17 September 2019

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

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