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