A social worker brought an appeal to the High Court against the decision of CORU to impose two periods of suspension on her following findings by CORU’s Professional Conduct Committee (PCC) - in respect of two complaints against the social worker - that her conduct amounted to professional misconduct. The High Court found that CORU’s investigation process adhered to fair procedures and upheld CORU’s finding that the social worker’s failure to co-operate with the investigation was in itself professional misconduct. This article explores the decision and its impact for professional regulators.

Background to the complaints

The first complaint concerned an allegation that the social worker had breached Tusla’s Children First Guidelines by failing to disclose the identity of Tusla employees alleged by her to have been involved in the abuse of an identified child. The complaint was sent to inquiry stage by the Preliminary Proceedings Committee (PPC) on the grounds of professional misconduct, poor professional performance and relevant medical disability. At the inquiry hearing, the PCC found that the registrant’s conduct amounted to professional misconduct.

The second complaint dealt with issues arising from CORU’s investigation into the first complaint, where the registrant was alleged to have failed to engage appropriately with the inquiry process, by refusing to attend with three consultants engaged by CORU to assess whether she suffered from a relevant medical disability. The PCC found that the registrant was aware of her obligation to cooperate with the inquiry, and her failure to do so amounted professional misconduct.

Two sanctions were imposed by CORU on the registrant. The first sanction was a suspension for nine months with conditions attached to her registration, and a further 12 month suspension. The registrant appealed both decisions to the High Court.

Fair procedures

The procedural fairness of the proceedings, and the steps taken by CORU in pursuing its investigation against the registrant, were the focus of the registrant’s appeal to the High Court.

The registrant argued that CORU’s investigation and its decision-making process were flawed and biased. The court noted that the registrant’s position could be summed up by reference to her allegation that CORU’s hearing was “essentially a kangaroo court”. The registrant submitted to the court that the PCC had failed to consider the “complicated background” to the complaint, and alleged that everybody in the disciplinary process had demonstrated bias against her. She further argued that she was disbelieved from the outset, and that her engagement in person at the inquiry would have been “pointless”, because she would not have been listened to.

The court found that, although the registrant did not appear at any hearings in the inquiries against her, repeated invitations to do so were made to her. Further, “careful regard” had been given to the extensive correspondence between CORU and the registrant, and “at each decision-making point during the process, the PCC paused to give the applicant an opportunity to make submissions.”

The court stressed that there was “no evidence whatsoever of bias” against the registrant by those involved in the disciplinary process, and the decision-making body had no connection with the applicant or anyone else involved in the factual matrix. The court concluded that, contrary to the registrant’s allegations, the proceedings against her were conducted with “formality, courtesy and considerable care”.

Failing to co-operate with the inquiry process

In contrast, the registrant’s own actions were criticised by the court. In respect of the second complaint against the registrant, it had been held by the PCC that there had been a “singular failure” on the registrant’s part to cooperate with the investigation in the first complaint that she suffered from a relevant medical disability. Three psychiatrists had been briefed to provide expert reports as to whether the registrant suffered from a relevant medical disability. However, the registrant made complaints to the Medical Council in respect of all three psychiatrists without having been assessed by any of them. Consequently, all three psychiatrists considered themselves disqualified from acting.

To progress the matter, CORU instructed an independent medical consultant based in the United Kingdom. As the registrant would not meet with this consultant, a documentation-based report was prepared, which ultimately concluded that the registrant did not suffer from a relevant medical disability.

The court noted the statutory duty of CORU to investigate complaints made to it, and upheld CORU’s finding that a failure to co-operate by the registrant was professional misconduct. Further, the court found that, in contrast to the registrant’s position, a potential underlying health concern was a live issue, and that issue was appropriately sent forward from the PPC to the PCC. The court noted that “if a person about whom a concern has been raised refuses to co-operate with the very process which might allay the concern, they have only themselves to blame if the concerns continue to subsist.” The court further commented that it was “very worrying and somewhat shocking” that a social worker would take this sort of attitude to the inquiry process being conducted by their own disciplinary body.

Conclusion

This decision demonstrates the importance of the correct procedures being followed by professional regulatory bodies in the investigation of complaints. The right to be heard, to defend oneself, and to be afforded the opportunity to engage with the disciplinary process are significant rights held by registrants which should not be undermined. Professional regulators should ensure that they are in a position to evidence, as CORU was, that fair procedures were adhered to in the course of the inquiry process.

Further, the decision also highlights that an obligation rests with registrants to engage properly with the fitness to practise process. Regulatory bodies should not allow their processes to be frustrated through lack of active involvement by a registrant. Where appropriate, regulatory bodies should give consideration to bringing secondary complaints of their own initiative where a registrant fails to act in a manner which respects the fitness to practise process.

For more information on the investigation of complaints, please contact a member of our Public, Regulatory and Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.