RS v Health and Social Care Professional Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Micheál O'Higgins
• Judgment Date: 20 February 2025
• Neutral Citation: [2025] IEHC 267
• Docket Number: [Record No. HP 2024/258MCA]

In the Matter of Section 69 of the Health and Social Care Proffessionals Act, 2005 As Amended

Between/

R. S.

Applicant

and

The Health and Social Care Professionals Council

Respondent

[2025] IEHC 267

[Record No. HP 2024/258MCA]

THE HIGH COURT

Sanction – Undue severity – Proportionality – Applicant appealing against the decision to cancel his registration as a social worker – Whether the sanction of cancellation was unduly severe and disproportionate

Facts: The applicant appealed to the High Court against the decision of the respondent, the Health and Social Care Professionals Council, to cancel his registration as a social worker and prohibit him from applying for restoration to the register for eighteen months. His registration was cancelled following a fitness hearing on charges that he had an inappropriate relationship for several months with a vulnerable patient in his care. The applicant contended that the sanction of cancellation was unduly severe and disproportionate. The appeal was brought pursuant to s. 69 of the Health and Social Care Professionals Act 2005.

Held by O’Higgins J that, having applied the legal principles on sanction set out by Finlay P in Medical Council v Murphy (unreported High Court 29 June 1994), the appropriate sanction to impose in this case was the sanction of a lengthy suspension, coupled with the imposition of appropriate conditions; such conditions may include a mandatory structure of supervision, reflective practise, retraining and/or re-education. Bearing in mind the overarching need to ensure the protection of the public, O’Higgins J direct that the applicant for the time being would remain suspended from duties, at least until he has completed to the satisfaction of the respondent effective retraining and re-education, and until he has taken proactive steps to seek help for his psychological difficulties. O’Higgins J found that the approach taken by both the Professional Conduct Committee and the respondent was flawed in that it failed to assess the level of the applicant’s culpability in the context of his own personal circumstances, including his diagnosis of autism spectrum disorder and the fact that there was uncontradicted evidence before the court that he suffered from a range of psychological difficulties in the short number of months before the index breaches. In addition, O’Higgins J took the view that the reasons of the Professional Conduct Committee for concluding that the formulation of effective workable conditions “would involve too much guesswork to be realistic or practicable” was unduly dismissive of the applicant’s situation and failed to have sufficient regard to the consequences of a cancellation order for someone in the applicant’s circumstances, including his personal circumstances and close family members. Moreover, O’Higgins J found that the decision to impose a cancellation order failed to take sufficient account of the ample mitigation factors present in the applicant’s case. In O’Higgins J’s view, there were several unusual features present which, taken together, rendered this a sufficiently exceptional case to warrant departing from the generally expected outcome that would ordinarily follow where a social worker engages in an inappropriate relationship with a client or patient; misconduct of that type would ordinarily involve a sanction at the serious end of the scale up to and including cancellation.

O’Higgins J allowed the applicant’s appeal.

Appeal allowed.

Appearances:

The applicant was a litigant in person.

The respondent was represented by Ronan Kennedy SC and Caoimhe Daly BL instructed by Fieldfisher Ireland LLP.

Judgment delivered by Mr. Justice Micheál O'Higgins on 20 ^th February, 2025

Contents

Introduction	2
Factual background	2
The disciplinary process and misconduct charges	5
Legislative framework	6
Legal principles on sanction	6
Doctrine of curial deference	7
Reasons of the PCC for recommending cancellation	9
Sanction hearing before the respondent Council	11
Report of Dr. Maria O'Halloran, Clinical Psychologist	12
Submissions made on behalf of the applicant at the sanction hearing	15
Assessment of the appropriate sanction	17
Caselaw on regulatory sanctioning	18
Analysis of the respondent's reasons for imposing cancellation	20
Evidence of the applicant in the appeal	24
Conclusions on the question of sanction	26
Conclusion	29

Introduction

1 . This is an appeal brought by the applicant against the decision of the Health and Social Care Professionals Council (“CORU”) to cancel his registration as a social worker and prohibit him from applying for restoration to the register for eighteen months. His registration was cancelled following a fitness hearing on charges that he had an inappropriate relationship for several months with a vulnerable patient in his care. The applicant contends that the sanction of cancellation is unduly severe and disproportionate.

2 . The appeal has been brought pursuant to s.69 of the Health and Social Care Professionals Act 2005. The applicant gave evidence in the appeal and was cross examined by senior counsel for the respondent. The court was provided with relevant reports and documents which I will summarise presently. The hearing took place in open court.

Factual background

3 . On the 19 ^th September 2022, a complaint was received from the Manager of Social Work Services in Cork University Hospital and Cork University Maternity Hospital in Wilton in Cork. The complaint related to the applicant, a social worker attached to the hospital, and alleged that he had formed an inappropriate relationship with a patient (whom I will refer to as “patient A” or simply “the patient”) to whom he provided care while she was an inpatient at the hospital. The patient had been brought into hospital on the 25 ^th February 2022 acutely unwell. She was admitted to ICU due to ongoing misuse of ibuprofen and codeine. The applicant was allocated as the patient's social worker. The applicant's own notes recorded that she had a history of trauma including experiences growing up of witnessing her father beat her mother. The notes also indicated that she had been raped by a soldier at age 16 during the Bosnian war, and that she felt insecure and vulnerable.

4 . The patient was discharged as an inpatient on the 29 ^th March 2022. Following discharge, she attended the regular outpatient appointments with the wound care team in the hospital. Her last outpatient appointment was the 29 ^th August 2022. It was at this appointment that she confided in a nurse that the applicant had been visiting her home. The nurse brought this information to the attention of the social work department at the hospital and an investigation began.

5 . Matters moved quickly and a screening meeting was held by the hospital with the applicant on the 7 ^th September 2022. From the outset, he admitted that he had been carrying on a relationship and admitted that he had visited the patient's home three or four times. He could not remember when he first visited the patient, but he said that the first visit involved bringing her forms that needed to be filled out for a housing application. He acknowledged there was no professional purpose for the visit and he said at interview that he had “clearly mentally moved on to this being something a bit different”. He said he had asked the patient out for coffee approximately ten times over a six-week period. He described the relationship as “ very comfortable, very nice, easy, we just seemed to get on”.

6 . The applicant described a trip to the beach and the patient writing their names in the sand. He also admitted a trip to his home, and he stated that they kissed twice during the visit, “the first time initiated by me and the second initiated by her”. The applicant attended the investigation meeting on his own. Towards the end of the meeting, the applicant is recorded as querying the nature of the problem about his contact with the patient.

7 . The social work team leader who interviewed the applicant on the 7 ^th September 2022 prepared a typed memorandum of the interview. This note is included as part of the second exhibit to the grounding affidavit of Claire O'Cleary, the Chief Executive Officer of CORU. I have re-read the minute of this first meeting, and it seems to me it contains some concerning features which are highlighted in the commentary provided by the author of the minute, Miriam Maher, who was the applicant's social work team leader. While there are concerning aspects, it is also fair to say that the minutes of the interview also identify a number of features that are relevant to mitigation, not least the detailed factual admissions that were made from the outset, the fact that he volunteered additional information that was not included in the original report from the patient, the fact he voluntarily handed over texts and WhatsApp messages, and the fact that he disclosed that the patient had asked him for money on at least two occasions and that he had given her money for groceries and dental bills.

8 . The applicant volunteered that in the weekend of the 19 ^th/20 ^th August 2022 the patient had asked him for a loan of €830 and he had given her €200. On this weekend he is recorded as saying he called to her house at around 6pm on the Friday night and stayed until 1am. The note records that the applicant and the patient discussed how the relationship might develop. According to the notes of the interview, the applicant made comments such as “it made me feel good” but later said “but now I wonder if I have been played”. He stated that there were multiple texts and emails between himself and the patient which he would be prepared to hand over. He sent photographs to the patient of himself and his daughter and stated that their...