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

Complaint 1: Confidentiality and intimidation

In many respects… no, to be honest, in every respect, this complaint is the one that has given me most concern. It doesn’t really affect me, but my family, so it was top of the complaints list.

As a result of my hearing, at which members of my family were present, a number of questions were raised and later submitted to the Scottish Social Services Council as Freedom of Information requests.

In essence, the flood of these were deemed what I suppose could best be summed up as conspiratorial. In actual fact, there was no organised family campaign but outrage, and the result was that most of these questions were deemed vexatious on the grounds of their “nature and number”.

The relevance of these questions is a matter I’ll deal with later. However, there were further ramifications involving contact made by the SSSC and employers – an issue of considerable dispute and one that is still continuing, and still of significant concern.

I was, and remain, adamant that I would be honest in this blog but there are sections in here I have removed as a safeguard for others. But there is a message her for everyone, whether you align yourself with the SSSC stance or not, and that is to always use a personal email account when dealing with the SSSC and not one connected with your profession or your employer.

Contrary to what we understood, and were legally advised, FOI requests do not need to be viewed as "applicant blind"; your profession and the use of a work account means your boss, and your colleagues, can be made aware of your submission of FOI requests.

The response from Lorraine Gray, chief executive of the SSSC, is given at the end.

Complaint 1: Breach of Data Protection Act 2018 & SSSC intimidation

Of the two allegations against me, investigated by the SSSC, the second was my breach of the Data Protection Act, a breach I admitted from the outset and one committed as protection from harassment and bullying I felt I was experiencing and the dishonesty of a colleague which I believed really was placing children at risk.

I submitted my mitigating circumstances - Aberlour’s production of two suspect documents giving a completely false version of events, which had been written by a worker subsequently dismissed for other serious acts of dishonesty. The SSSC had no power to investigate these given this person’s unregistered status and the case investigator subsequently removed them from evidence in my favour.

It was initially redacted by the case holder, allegedly to spare me embarrassment, and I had no access to it until I submitted a subject access request.

If it had not had such serious implications for me I would have dismissed it as an absurdity. More seriously however, if the SSSC sought to include the statement when said worker had already been dismissed, or was about to be, were any agreements reached, and between whom, for this to occur?

However, my admission to my own transgression clearly shows my recognition of the gravity of such an act. Therefore it was with considerable surprise that I found my family targeted by the SSSC through a breach of the Data Protection Act 2018 after I had been removed from the register and in response to Freedom of Information requests.

FOI requests are applicant blind and that was confirmed by the Office of the Scottish Information Commissioner which stated on September 24, 2018:

...requests under the Freedom of information (Scotland) Act 2002 are indeed considered to be ‘applicant blind’. Unless it is necessary to do so, in order to consider your information request (for example if your boss holds the information you are requesting and it is necessary that he/she is aware of your identity), I would not expect an authority to share your details. If you are concerned that an authority has unlawfully shared your personal data, as mentioned below, you may wish to seek further advice from the ICO.

There seems also to have been some “confusion”, as admitted by the SSSC, over other FOI requests, possibly caused by the surnames of the FOI applicants, thereby causing yet another breach of the Act, and I believe leading to the identification of {REMOVED}. We, as a family decided we had no option but to withdraw all of {REMOVED} FOI requests and not to reduce or re-assess them, or ask for a Review.

I find this breach of the Data Protection Act 2018 intimidatory in the extreme.

The SSSC response we received in seeking an explanation to your approach to {REMOVED} was:

In reference to your email of 3 September 2018, I have now spoken to my colleague, XXXXXXX, who had a conversation with {REMOVED} and it appears that there may have been a misunderstanding. I understand that XXXXXX did not advise that your freedom of information requests were made by {REMOVED} but rather made reference to the fact that a number of requests have been made by{REMOVED} and there were a number of requests from people we believe were
connected to {REMOVED}. Beyond that, I am unable to comment any further on the particular content of that conversation.

For the purpose of this complaint {REMOVED} has made available the response he received from the SSSC regarding his complaint over this breach of the Data Protection Act 2018. In this the SSSC acknowledges contact with {REMOVED} but justifies its actions. The ramifications of the SSSC actions are disputed; the SSSC obviously sees its actions as fair and reasonable and any criticism or objection to these would appear to be simply attributed to those of an aggrieved, vexatious and time-wasting family.

The SSSC, not for the first time in my family sourcing facts for this complaint, raises the issue of the number of requests for information lodged though, at no time in correspondence or on its website, has it ever indicated the ceiling number of questions a member of the public is permitted to ask. The SSSC response was thus:

We received a high volume of requests for information from your professional account that states that you are {REMOVED}. It was therefore not unreasonable for us to make enquiries with {REMOVED} to ascertain {REMOVED}, so that we could respond or assist appropriately. The purpose of that conversation was not to interfere with your right to make a Freedom of Information request in any way and should not be conflated with our obligations to provide information in accordance with the legislation. Therefore, I do not accept that we contacted {REMOVED} to impugn your professionalism.

It is my submission that the actions of the SSSC were improper, intimidatory and illegal in that they were a deliberate breach of Data Protection Act 2018. I would also like to enquire if this was the first breach the SSSC has committed in dealing with its registrants?

Response from Lorraine Gray, chief executive SSSC

Under this heading you complain that the SSSC committed a data breach in respects of {REMOVED} regarding information disclosed {REMOVED}. We have addressed these matters with those individuals directly. I hope you can appreciate that it would be inappropriate for me to disclose any further details in this regard.


Picture: Kalhh

The grounds of complaint

When the panel issued its decision, I did have the option to appeal to the Sheriff Court but, to be honest, I really didn’t know what I would appeal on.

The decision itself to have me removed from the register is perhaps fitting for the allegations against me. Examining the SSSC consistency in its ‘verdicts’ was of only passing interest.

My career was at an end through retirement, and the SSSC ruling, though stopping me contributing to the Children’s Panel system, provided what was, essentially, a damning epitaph – that of an incompetent, a liar, on a par with those professional medical practitioners behind multiple child deaths over years, and even cited alongside one of the world’s most notorious mass murderers.

I needed answers as to why this approach was permitted, and whether it was restricted to my case, or applied to everyone’s. And if that was a tactic that would continue to be used in the future.

The questions I, and my family, asked were invariably bounced back, prompting more questions and more research. And still I don’t have answers to the questions I have – not from the SSSC nor even the Scottish Minister within whose remit the matter falls.

This resulted in a 10-point complaint to the SSSC to simply secure an explanation – it might not be the one I wanted, or expected, but at least my work and rationale would surely merit more than being fobbed off with the equivalent of “If you don’t like what we do, go to the Sheriff Court”.

Here was how the complaint started in December 2018...

Rationale behind the complaints

On July 23, 2018, after an 18-month investigation by the Scottish Social Services Council and my attendance at two days of a three-day Fitness to Practise hearing held at Compass House, 11 Riverside Drive, Dundee, I was removed from the register of social workers after a 28-year career.

The allegations against me were:

1 On three occasions between August 7, 2015, and March 7, 2016, I failed to respond to child protection concerns;

2. On or around March 29, 2016, I sent two contact record forms to my personal email account.

In November 2016 I accepted SSSC conditions in my registration in an attempt to comply with an investigation which the SSSC informed me would last around nine months; I subsequently accepted the SSSC withdrawing conditions on my registration in July 2017; In December 2017 I refused to accept the re-imposition of conditions on registration as they were unachievable and chose to go to the hearing stage.

In mitigation to allegation 1, I stressed no child was ever at risk and my actions occurred when I was forced to absent myself from work through stress, caused by a turbulent working environment where I was subjected to harassment and bullying.

I admitted allegation 2 and, in mitigation, stated this was to protect myself from the environment at Aberlour Child Care Trust.

No witnesses who could support my mitigating circumstances were contacted by the SSSC, the social work teams dealing with the two children and their family in the child protection case were not contacted to establish the impact, if any, of my actions.

My proposal for police involvement on suspect documentary evidence was rejected, my counter allegations of breach of the Data Protection Act were dismissed and a recording which I claimed proved I was being harassed on the day of my first alleged transgression was deemed inadmissible.

The two line managers I cited as responsible for my untenable working conditions, denied all claims and were presented as credible witnesses, with impeccable and unblemished track records, and a caring, compassionate, supportive management style.

I, in turn, was equated with historic medical cases involving multiple children's deaths, midwives who refused to perform vaginal examinations and the subsequent death of a baby and cited alongside a reference to Harold Shipman, responsible for between 200 and 500 murders.

I consider this unacceptable and a vindictive abuse of process, coupled with intimidatory behaviour by the SSSC towards myself and my family.

Substance of the complaints

My Fitness to Practise hearing, came at the end of an 18-month process. In addition to approximately 200 pages of heavily redacted documents, the second day of the hearing also produced 70-plus pages of medical tribunal rulings.

The redaction and editing processes are undertaken and completed by the SSSC presenter without check; it is unclear who sources precedents from the UK’s medical archives, why precedents from social services or Scotland are not sought; I have also been unable to determine who undertakes the psychological profiling of registrants without face-to-face meetings.

These issues prompted many questions about my case and the serious possibility they may be relevant to a majority, if not all, cases.

My family and I were not aware that there was a limit, albeit unspecified, on the questions one could put to the SSSC over its processes. However, we did learn that questions from a multiple sources were deemed a conspiratorial onslaught and thus ruled vexatious. The nature, again unspecified by the SSSC, of inquiries can also rule them vexatious.

A number of these questions, while ineligible under FOI criteria, are contained here.

I think, for example, there is a public interest as to how the SSSC reached the conclusion that the allegations made against me equated to an eight-year-old English High Court case on midwives refusing to perform vaginal examinations. There is also the wider issue as to how appropriate it was for a male SSSC caseholder to present that to an all-male panel. How should I have responded to that?

The questions raised by that single action by the SSSC, which covers 118 points, could easily exceed the number of those lodged with the SSSC over its entire processes.

The complaints within this document are but a small percentage of those which could be lodged if I had the information available.

There was only six months to source the information I required, not to challenge the decision taken by the SSSC that ended my career, but to establish if the abuse of process is endemic.

My concerns are:

1. The SSSC is willing to breach the Data Protection Act 2018 and intimidate those who challenge its operation.

2. The SSSC does not investigate issues but prosecutes registrants. The ‘prosecution’ success rate falls when a registrant has strong legal representation, which may involve a fee for two years’, or
more, representation.

3. A registrant is urged by the SSSC to provide information which is then edited to reinforce the ‘prosecution’ case.

4. Registrants can find themselves out of work for two years or more when under ‘investigation’ which exacerbates the difficulties in funding legal representation.

5. Registrants can find conditions imposed on them during the investigation that terminates a career, even if two years later there is no case to answer.

6. Given that an estimated 84% of workers within the social services profession are female, the SSSC should be able to tell the public on how many occasions female workers face a male SSSC caseholder
and an all-male SSSC-appointed panel.

7. While monitoring every aspect of registrants’ lives, including speeding offences, how well does the SSSC monitor its own staff behaviour?

8. The SSSC guides the panel towards the decision it seeks through inappropriate and irrelevant persuasive precedent, thereby committing an abuse of process by these failing to be reasonably analogous.

9. Is it right, while still within appeal deadlines, outside organisations are informed of decisions taken against you, before you are told such action is being taken?

10. Who provides the psychological analysis on a registrant for the panel, and in the SSSC final written decision? How is this career-defining analysis reached without a single face-to-face meeting?

Introduction

I hereby make a formal complaint regarding the way in which the Scottish Social Services Council (SSSC), operating from Compass House, 11 Riverside Drive, Dundee DD1 4NY, manages and administers Fitness to Practise investigations and hearings into the conduct of registrants.

The purpose of this document is to show the SSSC, as the governing body of approximately 200,000 people employed within the social services field in Scotland, is culpable of multiple breaches of Section 6 of the Human Rights Act 1998.

Given the difficulties encountered in sourcing information, and the obstacles placed in the way of determining how widespread these breaches are, as the core basis of this document I have been forced to focus on my own dissatisfaction and grave concern about the handling of an ‘investigation’ into my own professional conduct.

As a previous registrant with SSSC and now a member of the general public, I also express serious misgivings regarding the SSSC pledge that, as the regulatory body, it provides the general public with confidence and assurance that the social care workforce is well equipped and competent to perform a vital and challenging role in society.

It is my assertion that the SSSC is in itself neither equipped nor competent to regulate the social care workforce and it therefore goes without saying that this places the most vulnerable sector of society at increased risk.

From the outset I wish to make it clear that my complaint does not fall within the definition of appeal (the timescale of which lapsed on August 9, 2018) and I accept the SSSC Notice of Decision Removal Order imposed on me, issued on July 23, 2018, and effective from August 19, 2018.

I have accepted the latter because of a complete lack of faith and confidence in the regulatory system, a complete lack of respect for the process which led to that Decision, and the firm belief and knowledge that a judgement reached at the end of said process is of no consequence to me and to people who know me both professionally and personally.

I am also aware, from a response to a Freedom of Information request, that appeals are most unlikely to succeed and any further drain on my own or my family’s emotional and financial resources is unconscionable.

Information within this document was gained through responses to FOI requests (on the limited number of occasions when the SSSC was willing to provide it). This, I believe, demonstrates that said requests by myself and my family were genuine, and made on a need-to-know basis, and not ‘vexatious’ as SSSC has claimed in its attempt to avoid and obfuscate some issues raised.

I accept the Scottish Social Services Council was established under the Regulation of Care (Scotland) Act 2001 as the independent regulator for social workers in Scotland.

In addition, I note that the SSSC has accepted it is a “public authority” in terms of the aforementioned Section 6 of the Human Rights Act 1998 and that by virtue of Section 6(1) it is unlawful for a public authority to act in a way which is incompatible with a “Convention Right”, which includes the article 6 right that, in the determination of his civil rights and obligations, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established by law.

It is further accepted that if I believe the SSSC had breached article 6, then the SSSC is accountable to the courts and, as such, I could seek redress there.

This, however, is the crux of my complaint. In the judgement of Sheriff Principal RA Dunlop QC, “in the cause Judy Smith against Scottish Social Services Council”, held in Dundee, on March 12, 2015, Sheriff Principal Dunlop stated:

The court is entitled to expect that the Council will have regard to the pursuer’s entitlement to an article 6 compliant process and, while that process includes the right of appeal, in my view it cannot be right that the Council should be careless as to whether its own proceedings are article 6 compliant or not.

My complaint is not that the SSSC is lacking an article 6 compliant process. This I do not dispute. My concern is how that process is applied in individual cases, thus creating a major obstacle for a layman, notwithstanding the statutory time limit, in finding recourse within ‘hard law’ from a higher court.

It is my submission this is a fundamental case of ‘theory versus practice’, and by advocating the former while failing to monitor the latter, the social services governing body avoids accountable governance. It is a fundamental question of who regulates the regulator?

I have no legal background, nevertheless I have made robust attempts to establish whether what I perceive as grievous shortcomings in the application of the SSSC process was unique to my case or endemic and affecting all registrants under investigation.

It is with much regret that I have failed to establish the correlation between the individual and collective, and this submission, while not impacting on the four separate rulings made on my case over 18 months, is being made in the public interest and in the interest of all those registered with their governing body. It is to be hoped a wider audience will be able to provide the information I have sought.

To reiterate, my complaint, therefore, is not with the judicial or appeal processes published and publicly adopted by the SSSC but their internal application, and adaptation, in which there is no recourse other than through the internal SSSC avenues and via the public domain.

It is my submission that the judicial processes as per article 6 were not fairly implemented in my case. More importantly, is what I view as an unfair application adopted across all cases? This raises the question as to whether all SSSC proceedings are article 6 compliant?

The 10 core complaints in this document relate to the following specific areas:

● Breach of Data Protection Act 2018 & SSSC intimidation

● ‘Prosecution’ not investigation

● Subjective and unchecked use of redaction and editing for information

● Length of time it has taken to conclude the process

● The restrictions and conditions on my ability to work

● A discriminatory hearing process

● Actions by the SSSC open to public misinterpretation

● Abuse of process

● Decision to notify Children’s Hearings Scotland

● Subjective and unsubstantiated psychological analysis in the SSSC final written decision


Picture: Gerd Altmann

So many questions, so few answers

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

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

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

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

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

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

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

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

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

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

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

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

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

The SSSC ruled every question as “vexatious”.

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

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

In this she stated:

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

This prompted this response from my husband:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And she added:

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

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

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

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

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

These are his vexatious questions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the event that no precedent can be found by the Scottish Social Services Council, and a persuasive precedent is being laid before the panel, should the worker be informed that no precedent has been found within the United Kingdom’s social services structure and administration, and the panel is being directed on a previous judicial decision that is not on the same subject?

If the Scottish Social Services Council has made no attempt to seek precedent within the field of social services, would the SSSC view that as an abuse of process?

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

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

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

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

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

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

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

If the Scottish Social Services Council concedes that it would be fair and proper for unseen and previously unsubmitted persuasive precedent to be shown to the panel and worker outwith active proceedings, would a failure to do so constitute abuse of process?

Can you provide the Scottish Social Services Council’s stance on what is considered to be a fair period for a worker to read, analyse and take advice on unseen documents of persuasive precedent on professional misconduct, running to 70-plus A4 pages in length?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How many witnesses, cited as supportive to a worker and provided to the case holder, have NOT been interviewed by a Scottish Social Services Council case holder for a worker without representation within the last 10 years, five years, 12 months and six months?

How many case holders within the Scottish Social Services Council have had direct, hands-on, operational experience of social services in the last 10 years, five years, 12 months, six months?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gentlemen, let's talk about vaginas (while that woman sits in silence...)

If that heading offends you or angers you; if you find it inappropriate or are immediately questioning the motives behind it, then we are on common ground.

This is not a flippant post and the subject which produced that heading was part of the package that ended my career.

No matter the twists and turns that brought me to a fitness to practise hearing, the unexpected appearance of the subject of vaginas took me very much by surprise.

So, for those of you about to enter the hearing arena, be prepared to find yourself equated to the most personal of medical detail, including all things gynaecological.

I can’t tell you if the Scottish Social Services Council (SSSC) likes to throw the vagina curved ball at everyone, or whether it was just me but, goodness me, I never expected it. Any subsequent challenges about it were dismissed as it was all down to “professional judgement”.

My pursuer devoted a lot of pages to the subject; chief executive Lorraine Gray gave vaginas her seal of approval; all the SSSC council members seemingly approve, and even Maree Todd MSP, Minister for Children and Young People, fully approves of a man, presenting three other men with detailed vaginal insights as a professional parallel to working for a children’s charity, mainly in an office where stirrups were never evident. It even gets the tacit approval of  Iona Colvin, the Scottish Government's chief social work adviser.

So, let me explain why vaginas can suddenly become an issue for consideration, though you may have no medical background or connections.

It’s down to what is called “precedent”. Now, having taken advice from the spheres of law and journalism, “precedent” is the citing of cases similar to yours.

However, that, according to the SSSC is not correct.

Chief executive Lorraine Gray says it is down to “professional judgement” so, although the case being cited may have nothing whatsoever to do with your line of work or your circumstances, if the SSSC wishes to use such a case, it can because it uses "professional judgement".

The purpose of the precedent, essentially, was to illustrate examples of professional misconduct, and although the SSSC has many cases involving social services, medicine appears to be the avenue of choice to explore.

So, if you are a care worker, or a social worker, you might, as I was, under “professional judgement” be equated with surgeons who killed children, doctors who killed children, or midwives who refused to perform vaginal examinations.

You might even find you name up there with one of the world’s most notorious mass murderers (I’ll get to that).

While this aspect at the conclusion of my hearing stunned me, that wasn’t the reaction of my husband. Gagged by the chair of the panel, an advocate and acting sheriff, he stopped me from reading the mass of medical precedent, awaiting the chair to seek an explanation for its relevance.

That never came. It ended up as the catalyst for my husband's stream of Freedom of Information requests which only resulted in them all being ruled vexatious. The SSSC stood by its actions as adhering to Scottish law, my husband still finds this incredible, as it means the law he was taught, examined on, and required to apply throughout his career in journalism was wrong.

So it became apparent that what we, as laymen, see as relevant differs vastly from those who possess “professional judgement”.

I was surprised at the first one, not just that it came from medicine, and 20 years ago, and occurred in England. It concerned the multiple deaths of children from heart surgery over a number of years. The panel was fine with that; we seemed to be the only ones puzzled by its relevance. Even as a 'layman', I grasped the example was being presented to provide a definition to the panel of professional misconduct, which one would have thought an example that was more relevant, recent, comparable and from the same profession would have been appropriate.

But then came the vaginas.

Another 25 pages of print-out, this time containing 118 points, mainly concerned with vaginal examinations – or, to be precise, a refusal by a midwife in England to perform three over a 20-month period. There was also passing reference to guidelines on sexual misconduct.

That's a lot of points, with the SSSC perfectly happy with the number and nature of  them.

Now, when you are sitting there and a male pursuer, completely unexpectedly, presents 25 pages of details on vaginal examinations to an all-male panel you might feel… intimidated, humiliated, embarrassed bullied or, like me, maybe all of them? However, in this wad of papers, there was also a correlation with Harold Shipman, responsible for approximately 250 murders.

Now, I have no idea how the midwife felt being compared to Shipman, but I’m reeling from the fact that in the space of a few hours the SSSC had gone from 18 months of wanting to impose conditions on my registration to presenting a detailed parallel on refusing to perform vaginal examinations and then on to the mass murders committed by probably one of the world's most notorious serial killers.

As for the vaginal examinations? Well I don’t know if the midwife appealed so I won’t name her, though the chief executive and the SSSC are good with that.

But did she deserve to be struck off by her governing body? Was her decision, her "professional judgement", right to seek obstetric assistance rather than conduct a vaginal examination herself after she noticed meconium staining?

I don’t know.

I also don’t know what this has to do with a service manager employed by a charity.

I don’t know why the male SSSC caseholder in his "professional judgement" thought this English gynaecological case relevant, and why these medical details were more relevant than any case in social services in Scotland, or England, Ireland and Wales?

I don’t know why the panel accepted this without question.

Given social services encompass the likes of advice and guidance, childcare, child protection, community work, day care, counselling, fostering and adoption, occupational therapy, probation, psychology, residential care, supporting independent living, therapies, youth and community work. etc, were any of these areas looked at before vaginal examinations?

There is also the fact that cases involving these and other sectors are on the SSSC website as well as the sister organisations in England, Wales and Northern Ireland. Were they looked at?

So we asked the SSSC through the Freedom of Information process. The question was deemed vexatious.

Did the SSSC use this vaginal examination case regularly? Vexatious.

Were these examples simply randomly pulled from an online database with no consideration given to their relevance? I accessed one used by the SSSC and found results relevant to Scotland, to social services, and even the SSSC. It obviously takes considerable lateral thinking to abandon these obvious choices and type “vaginas” into the search box.

So we asked the SSSC was this just a random trawl? Vexatious.

So, that was put in a formal complaint to the SSSC and chief executive Lorraine Gray defended the citing of the midwife’s refusal to perform those vaginal examinations, stating: “The SSSC may present case law it considers relevant to the Panel’s determination. This involves the exercise of professional judgement of those who present cases.”

So, “professional judgement” on what I was told was the second source of legal rules in Scots Law was that vaginal examinations were more relevant than social work practice.

As mentioned above, this baffled my husband but all his Freedom of Information requests were deemed vexatious by the SSSC. With Ms Gray telling her council members this was because of the “number and nature” of them.

Bearing in mind the SSSC presented 118 points alone on vaginal examinations, I wasn’t aware there was a limit to the number of questions you can ask. Lawyers, the police, politicians and reporters have no such limits imposed on their duties. Yet the public, directing questions to a public authority, has a limit, albeit unspecified.

And then there’s the “nature” issue, and that word carries a serious negative connotation. Now Ms Gray and her council members have agreed on that but I’m still not sure what’s wrong with the “nature” of our questions, given that they all referred to the nature (and number) of the SSSC’s own submissions.

So there you have it. According to the “professional judgement” of the Scottish Social Services Council, being signed off by your GP and not completing the tasks within a timescale you should have done as a service manager equates to a nine-year-old medical case concerning vaginal examinations.

If that explanation does not satisfy, then the SSSC recommends taking it to a higher court.

But let’s continue with the vaginal examination issue for the next point of how appropriate it is for a male pursuer to choose this subject to present to an all male panel, in a room, with the exception of an admin’ worker and me, that was all male.

The social services sector in Scotland employs 200,650 people, according to SSSC figures, and 85 per cent of these workers are female.

So you would assume that when a worker appears before a panel there would be a requirement for a gender balance. If you are going to have a male ‘prosecutor’ choosing to present detailed gynaecological precedent on vaginal examinations to an all-male panel while a silent, unsuspecting female sits in bewilderment, one would assume that balance would be particularly critical, and an ethical issue..

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, a ruling apparently accepted unanimously by its council members.

Given the high female representation in the social services sector, I thought it worth raising the issue with the Scottish Government. The directorate for children and families noted the query but pointed out that the SSSC was an independent professional regulator, and recommended I deal with... the SSSC,

Chief executive Lorraine Gray, when later challenged, and having that "vexatious" ruling endorsed by the SSSC council did, on December 6, 2018, respond with: “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.”

The relevance and appropriateness of the vaginal examination issue was raised in a complaint which Ms Gray said was a “challenge to the objectivity of the decision makers”...and suggested, if unhappy, to take the matter to a higher court.

It is astonishing that the chief executive and council do not see gender balance on career-defining/ending panels as a crucial issue. They are the governing body for 200,000-plus people (nearly eight per cent of Scotland’s workforce), 170,500 of whom are female, and the sector contributes £3.5bn to the economy.

However, through our MSP, we raised the matter again, this time it going to the relevant Minister, Maree Todd who, citing all the factors the SSSC takes into account when selecting a panel, concluded: "The SSSC will have considered all factors before selecting the members."

So, from the very seat of our government, the SSSC did, indeed, feel that its male pursuer, selecting 25 pages on vaginal examinations to three male panel members was appropriate and, no doubt, down to professional judgement.

And these 25 pages were selected as the "most similar" to my case from all civil and professional governing bodies' cases from Scotland, England, Northern Ireland and Wales in the last 20 years.

So that’s where this particular part of the journey has taken me, while delivering another successful prosecution for the SSSC.

You could argue the SSSC is the unfettered watchdog for social services in Scotland, employing processes that are neither checked nor monitored, and can only be challenged by legal representation. You will need a considerable financial reservoir if you want to prove that though.

While justice is free and without favour, access to it can carry a heavy price tag. And that allows the SSSC to cling to, and hide behind the skirts of the legal system. Instead of directing complainants to a higher authority, I really believe that higher authority should be looking at its offspring’s behaviour.

My advice to anyone working in the social services sector is to make sure you have someone legally sharp at your side. Every registrant is in the bizarre situation of paying in to fund his or her own freeform prosecution if the situation arises; it makes sense to ensure your defence is in place as well. Just be aware that could mean having a barrister on retainer for two years.

A brief initial consultation cost us £300. The process and the post-decision challenges over the process have now taken nearly three years. On a barrister's timesheet we would easily have broken a six-figure bill. How many people in the social services field could countenance that?

This was not written to sway anyone to my beliefs or outlook, in fact I need it explained to me why I am so wrong. I will happily respond to any questions: I cannot say the Scottish Social Services Council would do the same.

Picture: Ernie Stephens