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Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

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Scottish Social Services Council

 

Notice of Decision

Impairment Hearing

Scottish Social Services Council
(Fitness to Practise) Rules 2016 

Decision: To dismiss the case and to revoke the Temporary Suspension Order (TSO)
 

Date of Effect: 23 March 2019

Decision
Your right of appeal
Matters taken into account
Allegations
Preliminary matters
Findings of fact
Evidence led by the SSSC
Evidence led by you
Submissions of the Presenter
Submissions on your behalf
Reasons for the Panel’s decision
Impairment
Temporary Suspension Order
Legal advice

Decision

This is a Notice of the decision made by the Fitness to Practise Panel (the Panel) of the Scottish Social Services Council (the SSSC) which met on Tuesday 26, Wednesday 27,Thursday 28 February and Friday 1March 2019 at Compass House, 11 Riverside Drive, Dundee, DD14NY.

 

At the hearing, the Panel decided that some of the allegations against you were proved. It found that your fitness to practise was not impaired and dismissed the case.

It revoked the Temporary Suspension Order which would otherwise expire on 12 March 2019.

Date of effect

​The decision to revoke the TSO comes into effect on 23 March 2019; or, if you appeal, once the appeal is determined or abandoned.

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Your right of appeal

​You can appeal against the decision to revoke theTS0 in terms of Section 51of the Regulation of Care (Scotland) Act 2001. If you decide to appeal it, you must make the appeal to the Sheriff at Dundee Sheriff Court, Sheriff Court House, 6 West Bell Street, Dundee, DD1 9AD. You must make the appeal by 22 March 2019.

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Matters taken into account

​In coming to its decision, the Panel had regard to these documents:

  • ​the Regulation of Care (Scotland) Act 2001 (the Act)

  • the Code of Practice for Social Services Workers Revised 2016 (the Code)

  • the Scottish Social Services Council (Fitness to Practise) Rules 2016 as amended (the Rules)

  • Decisions Guidance for Fitness to Practise Panels and Scottish Social Services Council staff dated December 2017 (the Decisions Guidance).

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Allegations

​The allegations against you at the hearing were as follows:

1. On dates between 1 September 2015 and 31July 2017, while employed as a Practitioner, and during the course of your employment, you did:

 

​(a) On more than one occasion:

 

​(i) Take food from the children’s lunch bowls while they were still eating;

 

(ii) Drink water from the children’s glasses.

 

​(b) Between 1 February 2016 and 26 May 2017, on more than one occasion:

 

​(i) Wear the same apron and gloves to change different children’s nappies when you should have changed these in between nappy changes;

 

(ii) Leave soiled nappies on the changing unit while changing the children’s nappies when you should have taken these to the bin.

 

​(c) Between 1August 2016and 30September 2016:

 

​(i) Forcefully push child HH on the head while he was sitting in a buggy;

 

(ii) Your action in 1.c.i caused HH distress.

 

​(d) Between 1 October 2016 and 31 March 2017:

 

​(i) Smack child AA on the bottom;

 

(ii) Smack child BB on the bottom.

 

​(e) Between 1 October 2016 and 27 July 2017:

 

​(i) On more than one occasion, give children a drink of water from pots used for glue;

 

(ii) When questioned by your colleague VV about your action say ‘a little bit of dirt wouldn’t hurt them’ or words to that effect.

 

​(f) Between 1 June 2017 and 30 June 2017, in relation to child EE:

 

​(i) Hold EE by the forearm and pick him up so that he left the ground;

 

(ii) Shout at EE saying ‘tidy this mess up or words to that effect;

 

(iii) Forcefully put EE back on the floor.

 

​(g) Between 1 June 2017 and 30 June 2017, in relation to child DD, a child living with Autistic Spectrum Disorder:

 

​(i) Raise your voice at DD and say ‘tidy up, look at this mess’ or words to that effect;

 

(ii) On more than one occasion, drag DD back to the mess so that he would tidy this up;

 

(iii) Remove DD from the sensory tent to make him tidy up;

 

(iv) Your actions contributed to DD being distressed;

 

(v) When told by your colleague YY that DD was distressed and had additional support needs, say ‘he can’t be treated special, he’s got to learn’ or words to that effect.

 

(h) Between 1 July 2017 and 31 July 2017 forcefully push child FF, a child living with Autistic Spectrum Disorder, on the head while she was sitting in a buggy.

 

​2. Between 1 December 2017 and 31 December 2017:

 

​(a) In an application form for employment with a Care Home Service, fail to declare that you were dismissed in November 2017 in that you did state that your reason for leaving was ‘to enter social care’

 

​(b) Your behaviour at was dishonest because you sought to mislead a Care Home Service by withholding information relating to your previous employment and in light of the above your fitness to practise is impaired because of your misconduct.

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Preliminary matters

​1. You had two sets of late papers, namely redacted copies of references etc which already formed part of the hearing bundle; and an e-mail chain of correspondence. The Presenter did not object to the lodging of these late papers.

2. The Panel therefore admitted the papers in terms of the first branch of Rule 32.7and directed that they be numbered W59—W74 and W75—W108 respectively.

​3. There was no agreed statement of facts.

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Findings of fact

​The Panel found the following allegations to be proved: Allegations 1.(a)(I) 1(g)(v) and 2(a).

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Evidence led by the SSSC

​The following witnesses were ledon behalf of the SSSC:

​ED gave evidence in relation to allegations 1(a)(I), 1(b)(ii), 1(d)(i) and (ii); 1(c)(i) and 1(e)(i) and (ii) ED was a confident and self-assured witness. She was emphatic that she had reported any incidents she had witnessed on the day she had witnessed them. She was clear that she had thought that nothing had been done about her concerns. The Panel found this to be slightly odd, given that she came across as being so assertive in other ways. She admitted that she knew all about your employer’s disciplinary procedure, the Code and so on; and yet she appeared to have let her allegations rest. She was vague about dates, which caused the Panel concern. Precise recall of dates is perhaps not to be expected when dealing with historic allegations, but ED was particularly vague. She was unable to give clear evidence in relation to the context of allegations 1(b)(i) and (ii); she had never seen such conduct on your part before or since. The Panel was puzzled by the fact that, if ED was so concerned about areas of your practice, she neither appeared to speak to you about them nor to go to the aid of any children allegedly affected by them. The Panel noted your allegations of bullying on the part of this witness and others, including PM. All in all, it decided that her evidence was evidence which should be treated with caution.

​PM gave evidence in relation to allegations 1(a)(I), 1(b)(ii), 1(f)(i)-(iii), 1(g)(I)-(v) and 1(f). She and ED were close friends at work. She was a patently self-confident witness and gave the impression of competence. She was particularly keen to stress that she and only she knew how to deal with child DD, despite the fact that at the time of the allegations, she herself was relatively inexperienced and had substantially less “hands-on” experience with children than you and other workers. She had been on the periphery of some events, which came to her attention through ED. According to you, she was involved in bullying. The Panel decided that her evidence was evidence which should be treated with caution, particularly when it came to child DD.

​LB was acting nursery manager, and then manager, between April and September 2017. She did not witness any of the incidents giving rise to the allegations, apart from having seen you eat pasta and garlic bread meant for the children. She had no issue with this. She had worked with you daily, although not in the same room, and had had no personal concerns about your practice. She had not found any written record of the complaints made by the first two witnesses against you, though she had no reason to believe that complaints had not been made. She had been told “cryptically” by a member of staff that there was an issue between you and ED. She described PM as being “very theatrical” and prone to “moaning”. She described ED as having “an attitude” and being opinionated. When made aware of the allegation about your practice in changing nappies she had observed you covertly performing this operation and had seen nothing amiss. She gave the Panel the impression that she had found management and systems to be somewhat haphazard. The Panel considered her to be credible and reliable.

​YC gave evidence in relation to allegation 2. Her evidence was straightforward and the Panel found her to be credible and reliable. The Panel noted that she had been “shocked” when you told her of the allegations against you because she had had fantastic feedback from clients. She considered that you did everything expected of you in your role and more. She judged you to be a really good worker and only terminated your employment because your Registration status gave her no choice.

 

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Evidence led by you

​You gave evidence on your own behalf. You gave your evidence in a straightforward manner and tried to explain matters, despite being obviously anxious and upset. You told the Panel of your long career in the caring professions and outlined the difficulties you had with certain members of staff. You described a strained relationship with PM, who was friends with ED. You told the Panel of how they were friends with two other workers and would go on nights out with them. You were excluded from this group and considered yourself to have been bullied, to the extent that you sought to reduce your hours. The Panel found you to be generally credible and reliable. It considered that your evidence in relation to PM and ED gave context to the allegations each had made against you. Whilst some of your evidence was not wholly clear, the Panel found your explanations to be generally plausible.

 

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Submissions of the Presenter

1. The Presenter opened her submissions by reminding the Panel that its function was to decide which allegations were proved on the balance of probabilities.

2. She submitted that the four witnesses were credible and reliable and had provided their evidence in a straightforward manner. They were consistent with their previous accounts. They had been consistent in relation to the actions by you, in relation to the children involved, and in relation to the behaviour that concerned them. She acknowledged that witnesses were unsure of dates, which was natural due to the passage of time. She reminded the Panel that their complaints had not apparently been dealt with by the previous management regime. The witnesses had attended of their own volition. They were all registered with the SSSC and had a responsibility to be open and honest.

3. The Presenter referred the Panel to the sources of evidence in respect of each allegation and noted that there was no dispute that you had worked at the Nursery at the material time.

Allegation 1(a)(i)

Three witnesses spoke to this allegation: PM and ED had seen this conduct on more than one occasion. They stated the behaviour was wrong and not something workers were meant to do. LB had seen you take pasta and garlic bread from a child’s plate. LB had taken notes of the interviews with these witnesses. Your position was that you were encouraging children to eat. The Presenter submitted that there was sufficient evidence for the Panel to draw the conclusion that you took food from bowls while children were eating.

Allegation 1(a)(ii)

No witnesses had spoken to this and the Presenter did not insist on it.

Allegations 1(b)(i) and (ii)

These had been spoken to by ED, who saw you leaving soiled nappies on the changing unit. She was clear she was not mistaken. She did not consider that you had changed your apron and gloves between changing children. She had not witnessed this directly but drew the conclusion by the number of nappies that had been changed. Whilst the allegation was drafted as being “on more than one occasion", ED had spoken to allegation 1(b)(I) happening only once. Allegation 1(b)(ii) was also spoken to by PM, who had been alerted by ED. You had denied the allegations and said that the witnesses were mistaken.

Allegations 1(c)(i) and (ii)

ED had witnessed you pushing HH on the head. She had heard a loud bang and considered that force had been used. HH was crying and being upset, indicating distress. She was not clear on when this happened but it would have happened around the same time as the incidents involving BB. Your position was that you had had some contact with HH and were trying to ensure that he sat back in the buggy; and that ED was mistaken in what she saw.

Allegations 1(d)(i) and (ii)

These had been spoken to by ED, who spoke clearly to both incidents and was not mistaken. In cross-examination, she denied that you had been singing a song to AA; although admitted that she had seen the incident out of the corner of her eye. It was consistent with what she had said to your employer. There was no clear reason why ED would not hear a song. Your position was that ED was mistaken, but there was no reason before the Panel to show why this would have been the case.

Allegations 1(e)(i) and (ii)

These were spoken to by ED, who spoke of seeing children drink from glue containers on one occasion (not the “more than one occasion” libelled). She had said that she saw you giving children drinks from glue containers. When she had confronted you about this, you told her that “a little bit of dirt won’t kill them”. You denied this allegation and said that sometimes children may take the cups themselves. The Presenter submitted that there was no reason to say ED was mistaken in what she saw.

Allegations 1(f)(I) - (iii)

These had been spoken to by PM, who spoke of EE being lifted by the forearm and leaving the ground. She described you as having been rough and harsh. She had used the word “dumped” which implied that you had used force. What she said was consistent with her previous account given to your employers. You had denied the allegation and alleged bullying. You had said that you did not have any manual handling training.

Allegations 1(g)(i) - (v)

These had been spoken to by PM, who spoke of you raising your voice and DD being grabbed and dragged. This was unacceptable. PM spoke about staff meetings which should have made people aware of how to treat DD. She spoke to him being upset. This was consistent with previous accounts given to your employers by the witness. You had denied this behaviour and said PM did not assist you in any way. You accepted that you had asked DD to tidy up and that you said that he had to learn. Your position was that the sensory tent was collapsing and you had been guiding him out for his own safety. PM, on the other hand, was clear that the tent had not been collapsing. There was no evidence as to why she would be mistaken about this.

Allegation 1(h)

This had been spoken to by PM, who had said that you had been pushing the child forcefully in his buggy, not trying to keep him in. Your position had been that the nursery’s buggies were flimsy and PM was mistaken in what she saw.

Allegations 2(a) and (b)

 

The first part of the allegation was established by the application form F167-F169, where you had not declared that you had been dismissed. The Presenter submitted that you would have been expected to declare dismissal. You did not tell your new employers of this until March 2018. Your position was that the form did not specifically ask for this information.

 

In relation to the second part of the allegation, the Presenter founded on the case of Ivey v Genting Casinos Ltd [2017] UKSC 67 for establishing dishonesty and submitted that your omission had been dishonest, as it was misleading.

 

4. The Presenter submitted that the evidence of the witnesses she had led was to be preferred to your evidence. Many of the allegations amounted to one word against another, but the Panel should prefer the SSSC witnesses to you. They had demonstrated consistency and had been proactive in raising concerns.

 

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Submissions on your behalf

​1. Your representative, Mr Booth, submitted that what had happened to you was extremely cruel. You had been bullied, as spoken to by LB, who had been made aware of your allegations about that. Mr Booth believed that ED had been disciplined. She had been evasive about the reason she was disciplined. This affected her credibility and reliability: if she was dishonest about being disciplined this called the rest of her evidence into question.

​2. Mr Booth submitted that LB had said that the previous manager said that PM and ED “had it in for” you. The previous manager had not believed the allegations, which was why ED had received a warning. He suggested that PM was “childish” and was “a moaner” and that ED was “difficult”, which was the evidence of LB.

​3. He invited the Panel to find YC to have been a credible witness who was shocked when she heard of the allegations. She said that you were a really good worker and she had been sorry to see you go. He asked the Panel not to find that you had been dishonest when you had given your reason for leaving the Nursery in the manner you had on the application form. You had been advised by your solicitor that you would be in a different part of the SSSC Register if working with the elderly. In retrospect that may have been poor advice. However, you were entitled to rely on it.

​4. Mr Booth submitted that neither ED nor PM were credible witnesses; their overall position was to throw as much dirt as possible at you over a period of time in the hope that something might stick. They had been spreading malicious rumours and stories about you.

 

​5. He suggested that it seemed odd that none of the allegations were ever put to you at the time; he said that “everyone else” had time to pass judgement on them but that you were not given the opportunity to respond and had paid a high price for this. The only real opportunity you had had to answer allegations was before this Panel. This was the only time you had been able to address allegations in a meaningful way.

 

​6. Mr Booth reminded the Panel that police and parents had been informed of the allegations and nothing had happened as a result. He suggested that this was because the allegations did not actually happen.

 

​7. He told the Panel that you had been affected emotionally, financially and professionally. You had lost your job and possibly your reputation. You had “gone the extra mile” for clients in your new job. You were a kind, caring person who would never do the things you were accused of and the allegations had made you, on occasion, feel like “ending it”.

 

​8. He addressed the allegations briefly and in turn. In relation to allegation 1(a)(i) and (ii), you denied these; you had been teaching children how to eat, which was part of your job. He said that allegations 1(b)(i) and (ii) were vague and did not hold up: LB observed your practice covertly and saw nothing to concern her. In relation to allegation 1(c)(i) and (ii), you had never hit the child on the forehead in the way it was alleged. You had acted instinctively as you thought that the child was in danger. That was just the sort of thing which one would do without thinking, as the priority is the safety of the child. As to allegations. 1(d)(i) and (ii), you had been singing a song and making “patting” actions. Allegations 1(e)(i) and (ii) were simply not believable; cups were available. As to allegations 1(f)(i)-(iii) and 1(g)(i)-(v), you had been helping children. You had not hit anyone. You had placed a hand on top of DD’s legs or thighs to extract him from the sensory tent.

 

​9. Mr Booth submitted that your actions in relation to allegation 2 had not been dishonest.

 

​10. Finally, he referred to the character references which had been produced. He submitted that you had suffered enough. This matter had had a devastating effect on you emotionally, financially and professionally. Your life had been on hold during the proceedings. He asked the Panel to act in the interests of justice and to “give you your life back.”

 

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Reasons for the Panel’s decision

1. There was some dubiety over the precise dates for each allegation. Both parties agreed that the matters alleged had to have taken place between 1 September 2015 and 31July 2017, these being the dates of your employment. Mr Booth confirmed that he took no issue with any of the dates; your defence did not depend on dates.

2. Where there was conflict between your evidence and that of ED and PM, the Panel preferred your evidence. They were the only eyewitnesses to the bulk of the allegations. There was no contemporaneous evidence against which the credibility or reliability of their allegations could be judged. Whilst it is true that it appeared that each had told the Panel what they had told your employers on earlier occasions, that consistency did not assist the Panel; a prior consistent statement has no special evidential value. Evidence of a written report or complaint made at the time to your employers might have assisted their credibility, but no such evidence was produced.

 

3. The Panel formed the view, based on what it saw and heard from you, that you were an honest witness who was doing your best to tell the truth. That impression was reinforced by the evidence of YC, who spoke, among other things, to your good character. Character evidence is something which the Panel is entitled to take into account in assessing credibility of a witness at an impairment hearing.

 

4. Dealing now with each allegation in turn:

Allegation 1(a)(i)

Proved. This was spoken to by witnesses and you admitted it, under explanation that you were teaching the children how to eat. The Panel accepted this as a reasonable explanation.

Allegation 1(a)(ii)

Not proved. The Case led no evidence and did not insist on this allegation.

Allegations 1(b)(i) and (ii)

Not proved. No-one actually saw you fail to change your apron and gloves. Given that LB spoke to observing you covertly and to you performing this operation correctly, the Panel considered that the evidence of ED and PM was inherently implausible.

Allegations 1(c)(i) and (ii)

Not proved. The Panel preferred your evidence to that of ED. It could not understand why, in the circumstances outlined by her, ED would have not helped you and why she did not say anything to you at the time.

Allegations 1(d)(i) and (ii)

Not proved. ED spoke only to seeing you interact with AA out of the corner of her eye. She is hard of hearing. The Panel considered that your account of singing a well-known song to AA and making a patting motion as part of the actions was an account which had the ring of truth to it. In relation to BB, the Panel was not convinced by ED’s evidence, and as such, did not consider that the SSSC had discharged the burden of proving that allegation on balance of probability.

Allegations 1(e)(i) and (ii)

Not proved. The Panel accepted your explanation that, occasionally, children would drink from glue pots even though they were not supposed to. It considered that this is precisely the sort of mistake that young children are prone to make.

Allegations 1(f)(i)-(iii)

Not proved. It was not disputed that this child was particularly challenging. You did not recall any incident of this nature. The Panel accepted your evidence that you would not behave in this manner to a child.

Allegations 1(g)(i)-(v)

Allegations 1(g)(i)-(iv) are not proved. The Panel preferred your evidence to that of PPM. Allegation 1(g)(v) is proved. You admitted saying words to that effect.

Allegation 1(h)

Not proved. The Panel preferred your evidence to that of PM. It could not understand why, in the circumstances she described, she would not have assisted you and just appeared to have sat watching the alleged incident. It considered this to be inherently implausible.

Allegations 2(a) and (b)

 

Allegation 2(a) is proved. It is clear from the application form that you stated that the reason for your leaving the Nursery was “to enter social care.” You did not dispute that.

 

Allegation 2(b) is not proved. The Panel applied its mind to the test for dishonesty. Giving that word its ordinary meaning, it did not view your actions as having been dishonest. The form did not ask if you had been dismissed. Had it done so and had you failed to declare that fact, that would certainly have been dishonest. However, you had taken legal advice and had been advised, perhaps incorrectly, that you would be registered under a different part of the Register for your new job and need make no disclosure. You were entitled to act on your legal advice. In any event, you made full disclosure to your new employers as soon as you realised that you ought to. That is not the act of a dishonest woman.

 

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Impairment

The Presenter, in light of the limited extent of the allegations found proved, indicated that she did not intend to argue that your fitness to practise was currently impaired. The Panel considered that that was a wise and pragmatic approach to take. The Panel therefore finds there to be no impairment; and dismisses the case.

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Temporary Suspension Order

There is a TSO in force, which expires on 12 March2019. The Panel will revoke that TSO forthwith.

 

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Legal advice

A Note of Legal Advice provided by the Chair is attached to this Notice.

The Panel accepted the legal advice given by the Chair.

 

Date: 7 March 2019

 

Scottish Social Services Council (Fitness to Practise) Rules 2016 (the Rules)

Note of Legal Advice given to the Panel by the Chair


Hearing conducted in accordance with the Rules

Chair's legal advice on late evidence

1. Where a party seeks to put forward additional evidence, other than oral evidence, which has not been disclosed in advance of the hearing, the Panel has discretion to admit it. That discretion requires to be exercised within the parameters of Rule 32.7. That Rule provides that such evidence may be admitted if:

(a) The other party consents; or

(b) The Panel is satisfied that the admission of the evidence is necessary 

to ensure the fairness of the proceedings and outweighs any prejudice to the other party.

2. In this case, the Presenter does not object to the Worker’s late papers. The Panel is therefore entitled to admit them in terms of the first part of Rule 32.7.

Chair’s legal advice at fact-finding

1. The burden of proof in this matter is upon the SSSC. It remains on the SSSC throughout this stage of proceedings. That means that the SSSC must prove the case against the Worker. The Worker need prove nothing at all, even if she chooses to give evidence. There is no obligationon her to give evidence and no adverse inference can be drawn if she chooses to exercise her right not to do so.

2. The standard of proof is that applicable to civil proceedings, namely, the balance of probabilities. Proof on balance of probabilities is a lower standard than the standard which applies in criminal cases, which is proof beyond reasonable doubt. Proof on balance of probabilities simply means that the Panel must find a fact proved if it considers it more likely than not to have occurred.

3. In Re H [1996] 1 All ER 1, Lord Nicholls of Birkenhead observed that ‘In assessing the balance of probabilities, the more serious the allegation, t he less likely is it that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on balance of probabilities.’

4. The Panel must consider the evidence in respect of each of the allegations separately and reach a finding on each one. However, the obligation to look at each charge separately doesn't mean that the Panel should ignore the surrounding evidence or background circumstances. This may well be evidence which will assist the Panel in reaching its decisions. Evidence of the facts in one charge may assist in coming to a decision on the facts in another, but the Panel must decide the case only on the evidence, both oral and documentary which has been placed before it. The Panel is entitled to draw inferences, that is, come to common-sense conclusions based on the evidence which it accepts, but it is important not to speculate about what evidence has not been led.

5. The Panel is entitled to accept the whole or any part of a witness’s evidence. Any part which it rejects, it should simply put aside and consider the rest of that witness’s evidence. The Panel should not assume that, because it has rejected the whole or any part of that witness’s evidence, the opposite is true.

 

6. Before accepting the whole or part of a witness’s evidence, the Panel must be satisfied that the witness is credible and reliable. A credible witness is a witness who is telling the truth. Even credible witnesses, however, may not be reliable. A witness may be doing his or her best to tell the truth and yet be unreliable because his or her memory is not accurate. That is why the Panel has to be satisfied that evidence on which it is going to rely is both credible and reliable.

7. It is often said that live evidence is the best evidence. This is because, with live evidence, you have the opportunity to observe the bearing and demeanour of the witness and you're able to hear the way in which their evidence is delivered, and because you're able to see and hear the evidence tested by cross-examination. A Panel can put its own questions, as it has to the witnesses in this case.

8. A word about the demeanour of witnesses; a Panel can take into account, in assessing a witness, their demeanour when giving evidence. However, it is important not to base a decision on credibility on demeanour alone. It was observed in Suddock v NMC 2015 EWHC 3615 that the way in which evidence fits with other evidence or agreed facts or contemporaneous documents ... the consistencies and inconsistencies, both internally  and with the evidence of others ... are likely to be far more reliable indicators of where the truth lies. The Panel should test the evidence, if possible, against these yardsticks before adding demeanour to the equation.

9. A word about inconsistences in evidence. Witnesses may sometimes give differing accounts of the same event, particularly when things happen quickly or unexpectedly. Your life experience will tell you that that is quite natural, because our ability to observe and recall events can vary. If their accounts on crucial matters are substantially the same, small differences may not trouble the Panel.

10. It is the Panel’s impressions of witnesses which count and not the impressions of others. So, if one Witness A says that he or she believes what Witness B had told him or her, that does not make the evidence the Panel hears from Witness B any more credible. The Panel has to form its own judgement.

11. Whether police took action or not in relation to allegations before the Panel is not a relevant to the Panel’s decision on the facts. A criminal investigation applies a different standard of proof. It requires corroboration, which civil proceedings do not. The Panel should not assume that because the police took no action in relation to an allegation there is no truth in the allegation. The Panel’s task is to determine the truth or otherwise of the allegations on the basis of the evidence before it.

12. Prior inconsistent statements of witnesses (statements given on an occasion other than at the hearing) have evidential value. They can be used to test the credibility of a witness. If the witness has said something different on another occasion, they may be less likely to be telling the truth now. On the other hand, a prior consistent statement has no special evidential value. It cannot, in general, be used to bolster a witness’s credibility.

13. Where evidence is hearsay evidence, the Panel must be satisfied that it can give weight to it. Hearsay evidence has its limitations.The Panel has not had the opportunity to see the witnesses, to assess their demeanour or to observe their evidence tested by cross-examination, so you have to test it by other means. How do you do that?

(a) Well, you can have regard to any circumstances from which an inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(b) You can consider how reasonable or practicable it would have been for the party founding on the evidence to have produced the witness.

(c) You can ask yourselves if the statement made close in time to the events about it speaks - though this may be less important if the maker of the statement was not an eye witness.

(d) You can consider how it fits with other evidence you have heard and seen.

(e) Consider the inherent probabilities and improbabilities of what is said in the hearsay statement.

 

Having done all of these things, the Panel should decide then what weight it is prepared to attach to the hearsay evidence.

14. The Worker was not obliged to attend this hearing or give evidence. You should pay regard to any evidence you have been made aware of which shows that she is of good character. Of course, good character cannot, by itself, provide a defence to an allegation but, when deciding whether the SSSC has proved the allegations against her on the balance of probabilities, you should take it into account in her favour. The fact that she is of good character may mean that she is less than otherwise likely to commit that which is alleged now. The courts have held in Wisson v Health Professions Council [2013] EWHC 1036 that evidence of good character is evidence Panels can take into account in assessing the credibility of a Worker at the
fact-finding stage.

15. The allegations in respect of part 2 relate to dishonesty. So, I must give you advice on how you approach this. The test for dishonesty in England has recently been reviewed by the Supreme Court in Ivey v Genting Casinos Ltd [2017] UKSC 67 and this case changes the law as previously understood. This was referred to by the Presenter. It is, however, a case dealing with English criminal law, which differs in some important respects from that of Scotland. In Scotland, dishonesty is to be given its ordinary meaning. The question for the Panel is whether, by the standards of ordinary reasonable people, was what the Worker did in completing the form as she did dishonest?

16. The Panel should consider whether there is any other, innocent, explanation for the conduct said to amount to dishonesty. Could it have been a lapse of attention? Could it have been a genuine and innocent mistake? Was it done on legal advice? The Panel should consider these possibilities, always remembering that the burden of proof is on the SSSC - so it is for the SSSC to prove dishonesty on balance of probabilities.

17. The task of the Panel at this stage is to determine only whether the SSSC has discharged its burden of proof in respect of each of the allegations.

18. In approaching that task, the Panel should weigh up all the evidence, viewing it in context and giving such weight to each and every piece of it as it judges appropriate, and then determine, in the light of that evidence and the Panel’s views of it, whether or not it is satisfied, in respect of each allegation, that the matter alleged is more likely than not to have occurred; in other words, that the SSSC has proved it on the balance of probability.

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