Agenda item

Stage 3 – Did the Member fail to follow the Code? 

 

1.              The Committee invited representations from Mr McAndrew as to whether, on the basis of the undisputed and agreed facts, Councillor Watkins had failed to comply with the Code of Conduct.

 

2.              Mr McAndrew submitted that the relevant issue was whether Councillor Watkins had failed to comply with the following provision of the Code of Conduct:

 

7(a) – not to, in an official capacity or otherwise, use or attempt to use her position improperly to confer on or secure for herself, or any other person, an advantage or create or avoid for herself, or any other person, a disadvantage.

 

3.              Although paragraph 7(a) of the Code applies to all members at all times, and not just when they were acting in an official capacity, Mr McAndrew submitted that Councillor Watkins was acting at all times in her capacity as a Councillor. She had introduced herself as a Councillor during the telephone calls to the Practice and, in the second call, had stated that she was acting in her capacity as a member of the Health Board. The subsequent complaints to the Health Board about the Practice were also made in her capacity as a Councillor and were sent from her official Councillor E-mail account.

 

4.              Mr McAndrew accepted that Councillor Watkins was initially trying to be helpful when she contacted the Practice on behalf of an elderly patient but she was forceful in the way that she spoke to the Care Navigators. She also threatened to approach the Chief Executive of the Health Board regarding their refusal to put her through to the on-call Doctor. He submitted that it was difficult to see how Councillor Watkins’ comments were helpful to either the Practice or the patient. Although the patient had contacted the Councillor in distress, her conjunctivitis could not have been considered as a medical emergency. Therefore, he submitted that Councillor Watkins had improperly used her position as a Councillor and member of the Health Board to try to seek an advantage for her constituent over other patients of the Practice, whose medical needs may have been more urgent, and that her actions constituted a breach of paragraph 7(a) of the Code of Conduct.

 

5.              Councillor Watkins had stated during the investigation that she had experienced her own personal issues with the Practice previously about her own healthcare and Mr McAndrew submitted that this may have influenced her behaviour towards them.  

 

6.              As a member of the Council and its representative on the Health Board, Councillor Watkins should have been mindful of the need to act fairly and appropriately in her role. Mr McAndrew submitted that Councillor Watkins’ attempts to use her position as a Council representative on the Health Board to pressurise the Practice staff into acting outside of their standard procedures was, again, a clear breach of paragraph 7(a) of the Code of Conduct.

 

7.              Councillor Watkins had admitted at interview that she should not have said she was “acting in the capacity of sitting on the Health Board”, as advocating for individual patients in this way was not part of her representational role. Mr McAndrew submitted that this was effectively an admission that she had attempted to improperly use her position in breach of the Code of Conduct.

 

8.              Although he accepted that Councillor Watkins was acting “in the moment” during her initial telephone call to the Practice, Mr McAndrew submitted that her subsequent threat to raise the matter with the Chief Executive of the Health Board could not be regarded as a spontaneous response or in the best interests of the patient, as the Practice had already contacted her directly. 

 

9.              Furthermore, he submitted that Councillor Watkins was certainly not acting “in the moment” when she subsequently made her first complaint to the Health Board 13 days after the telephone calls. In view of the time which had elapsed, she had a significant opportunity to reflect and consider her actions. The complaints made by Councillor Watkins about the Practice were inaccurate and did not reflect the true nature and content of the telephone conversations. The call recordings confirmed that the Practice had properly adhered to its standard procedures and the staff were firm but remained polite and courteous. However, Councillor Watkins’ complaints suggested that the staff had been unhelpful and had a poor attitude. Councillor Watkins also complained that that the Practice had not contacted the patient, when they had clearly done so. Mr McAndrew submitted that Councillor Watkins’ complaints were unfair and untrue. In fact, Councillor Watkins had admitted in interview that she “may have come on too strong” in her complaint about the staff.  

 

10.           Mr McAndrew submitted that Councillor Watkins’ complaint to the Health Board was a punitive act because the Practice did not defer to her wishes. In his view,

the complaint was an attempt by Councillor Watkins to use her position in the Health Board to undermine the actions of the Practice and create a disadvantage for it and that these actions constituted a breach of paragraph 7(a) of the Code of Conduct.

 

11.           The Committee then invited Councillor Watkins to respond to the representations from the Investigating Officer and give reasons why she did not consider that she had breached the Code of Conduct

 

12.           Councillor Watkins submitted that this was a vexatious and retaliatory complaint by the Practice. She was not a close personal friend of the lady concerned, but they had met through a befriending service where Councillor Watkins worked as volunteer. The lady was very vulnerable and elderly and she suffered from an eye condition. The lady was very distressed when she spoke to Councillor Watkins about not being able to get an appointment with the Practice for her eye condition and Councillor Watkins had offered to help. The Practice had only offered her an appointment with the Nurse in 9 days’ time and no medical treatment. Councillor Watkins had met the lady in Caerleon a few weeks earlier and she seemed to be distressed as the Practice Nurse had just referred her to an optician.

 

13.           The first telephone call to the Practice was between 5.00-5.30 pm on a Friday evening and Councillor Watkins wanted to speak to the doctor to ask for a prescription for the lady. She only wanted to support an elderly lady, who lives on her own. Councillor Watkins said that she was incredibly disappointed by the response, although she accepted that, with hindsight, she may have overreacted. Councillor Watkins had worked in the Health Service herself for 42 years and the Practice knew her well.

 

14.           Councillor Watkins stated that she had taken the decision to complain to the Health Board about the Practice in her capacity as a local Councillor because she felt that the staff had been unhelpful and the Doctor could have helped by giving a prescription for the lady, which Councillor Watkins could have picked-up for her. If she came-on too forcefully, then she would apologise but she would not apologise for trying to help an elderly lady who was in distress.

 

15.           In support of Councillor Watkins, Councillor Routley stated that, in his view, she was not guilty of breaching the Code of Conduct as she was simply trying to help this elderly lady and not secure any personal gain or advantage for herself. She was just trying to speak to the Doctor to get a prescription for the lady. 

 

16.           Councillor Routley reiterated that, in his view, this was a retaliatory complaint by the Practice against Councillor Watkins. She had previously been hospitalised and had an appointment with the Practice for the Doctor to prescribe her morphine for pain relief. However, when she turned up for the appointment, the receptionist sent her to see the Practice Nurse, even though she was aware that the Nurse was unable to issue a prescription for morphine. Councillor Watkins had insisted on seeing the Practice Manager but, instead she was sent to the Practice Nurse, which made her feel very upset, particularly as she was still in pain. Following this incident, there had been accusations on social media that Councillor Watkins had been “bad mouthing” the Practice, which was untrue.

 

17.           Councillor Routley stated that Councillor Watkins had made the telephone calls to the Practice on behalf of a constituent, who she had met through her befriending service. She was an elderly lady, who had poor eyesight and balance problems, not just conjunctivitis, and Councillor Watkins was concerned about her welfare. Councillor Watkins had worked for over 40 years as a Nurse and, therefore, had medical expertise. Councillor Watkins was not using her position for any personal gain or advantage.

 

18.           However, Councillor Routley stated that Councillor Watkins had apologised and had learned that her enthusiasm had been misinterpreted. She had acted “in the moment” and had been given training to ensure that she did not get involved in these types of complaints in the future.

 

19.           Mr McAndrew clarified that, although Councillor Watkins may have acted “in the moment” during the first telephone call to the Practice, her subsequent complaint to the Health Board was made 13 days after the event.

 

20.           The Committee then retired to consider in private whether Councillor Watkins had breached the Code of Conduct. In reaching their decision, the Committee had regard to the Investigating Officer’s report and background documents, the agreed and undisputed facts and also the submissions made by Mr McAndrew and by Councillor Watkins and Councillor Routley.

 

21.           The Committee found that paragraph 7(a) of the Code of Conduct was engaged in this matter and that Councillor Watkins was, at all material times, holding herself out as acting as a Councillor and also a representative member of the Health Board. Councillor Watkins admitted that she was pursuing this matter on behalf of a constituent in her ward, she referred to herself as “Councillor Watkins” throughout her telephone conversations with the Practice staff and also complained in her official capacity to the Health Board. Furthermore, she also sought to rely upon her position as a member of the Health Board to unduly influence the Practice and subsequently admitted that she should not have said she was acting in this capacity. The Committee did not consider that it was part of Councillor Watkins’ representational role to act as an advocate for individual patients in this way and, therefore, she was attempting to use her position, both as an elected member and as a member of the Health Board, for an improper purpose and in breach of the Code of Conduct.

 

22.           The Committee accepted that Councillor Watkins’ motives when she first contacted the Practice were well-intended and that she was trying to help an elderly constituent about whom she was genuinely concerned. The Committee also accepted that Councillor Watkins was not seeking to secure any personal gain or advantaged in her actions, at that time. However, the Committee found that Councillor Watkins had improperly tried to use her position as a Councillor and member of the Health Board to unfairly obtain medical priority for her constituent over other patients of the Practice who had more urgent medical needs. Despite being elderly and vulnerable, the lady was suffering from conjunctivitis and she had been properly assessed by the Practice in terms of priority for an appointment and a prescription. In trying to use her position to circumvent this process, Councillor Watkins had breached paragraph 7(a) of the Code of Conduct.

 

23.           The Committee also found that, in seeking to obtain an advantage for her constituent in terms of medical treatment, Councillor Watkins also attempted to use her position to improperly pressurise the Practice staff into departing from their standard operating procedures, both in terms of patient confidentiality and medical assessment. Insisting on speaking to the Doctor about a confidential medical issue, without the appropriate authority, was a clear breach of GDPR

and trying to secure preferential medical treatment for a patient with a non-urgent eye-condition was wholly inappropriate. Given her significant experience in the Health service and as an elected member, Councillor Watkins should have been well aware that this was an abuse of her position.

 

24.           The Committee accepted that Councillor Watkins had acted “in the moment” when she first telephoned the Practice late on a Friday evening on 7^th August 2020. However, the Committee found that this could not explain or excuse her subsequent behaviour. Having been told that the Practice would contact the patient directly to sort out an appointment and medication, then that should have been the end of the matter. The Committee found it significant that Councillor Watkins appeared to take no steps to contact the lady afterwards to see whether the matter had been resolved to her satisfaction. Instead, she pursued what could only be described as a personal grievance against the Practice.

 

25.           Both Councillor Watkins and Councillor Routley referred to this complaint as being “vexatious” and “retaliatory” and they also referred to previous personal issues between Councillor Watkins and the Practice regarding her own healthcare. The Committee did not accept that this complaint against Councillor Watkins was, in any way, a retaliatory act on the part of the staff at the Practice. Conversely, the Committee found that, in pursuing her subsequent complaints against the Practice, Councillor Watkins was influenced by her previous disagreement with the staff. The Committee considered that Councillor Watkins was not making these complaints on behalf of the patient, but on her own account and she was pursuing her own personal grievance because of the earlier incident and also because the staff had failed to defer to her when she originally contacted them about this patient. 

 

26.           Councillor Watkins had not sought the authority or consent of her constituent to make these complaints on her behalf and, indeed, there was no evidence that she had even contacted the lady to check whether her issues had been resolved. It was some 13 days later, on 20^th August 2020, when Councillor Watkins submitted her first written complain to the Health Board. That was clearly a considered and deliberate act, not a spontaneous reaction “in the moment”. Furthermore, her follow-up response on 15^th September 2020 was 38 days after the original incident. By that stage, such a complaint would have secured no benefit or advantage for the patient as she would, by now, have received an appointment at the Practice. Therefore, based on the balance of evidence, the Committee concluded that Councillor Watkins’ motivation in pursuing this complaint was more about her own grievances against the Practice. By using her position as a Councillor and a member of the Health Board to make such a complaint, Councillor Watkins had not only attempted to create a disadvantage for the Practice but had also sought to secure an advantage for herself in terms of a successful outcome to her complaint. The Committee decided that that this abuse of her position constituted a clear breach of paragraph 7(a) of the Code of Conduct.

 

27.           The Committee also concluded that the nature and content of the complaints made by Councillor Watkins to the Health Board were a blatant

misrepresentation of the truth and grossly exaggerate the issues. The Committee had regard to the written transcript of the telephone conversations included within the documentary evidence and considered that they did not substantiate the personal accusations made by Councillor Watkins in her written complaint. The Practice staff had properly adhered to their standard procedures and, although they were firm with Councillor Watkins, they remained polite and courteous throughout.  There was no evidence to suggest that they were in any way “rude” or “unhelpful”, as alleged or at all.  In addition, Councillor Watkins had complained that the Practice had not contacted the patient, when they had clearly done so. Therefore, the Committee concluded that Councillor Watkins’ complaints about the Practice staff were unfair and untrue. She had subsequently admitted that she may have “come on too strong” in her complaint about the staff.  In making a complaint that she knew was exaggerated and, therefore, unfair and untrue, Councillor Watkins was again improperly using her position in a retaliatory manner as retribution against the Practice staff. The Committee again decided that these actions constituted a breach of paragraph 7(a) of the Code of Conduct.

 

28.           The meeting then reconvened and the Chair announced the unanimous decision of the Committee that Councillor Watkins had failed to comply with paragraph 7(a) of the Code of Conduct.

 

Stage 4 – Determination of sanction

 

29.           The Committee invited representations from Mr McAndrew as to the appropriate sanction that the Ombudsman would consider should apply in this case, and whether there were any other cases of a similar nature that may provide guidance to the Committee in terms of sanction.

 

30.           Mr McAndrew referred the Committee to the Adjudication Panel for Wales Sanctions Guidance. He also referred the Committee to two similar determinations by the Standards Committees of Wrexham County Borough Council and Denbighshire County Council. Copies of all these documents had been circulated in advance of the meeting.

 

31.           Mr McAndrew submitted that, with regard to any mitigating factors, Councillor Watkins had initially attempted to assist an elderly constituent and she had also subsequently undertaken further training and learned her lessons. However, she had improperly relied upon her position as a Councillor and member of the Health Board, even if she was trying to help her constituent.

 

32.           Mr McAndrew further submitted that there were aggravating factors in this case.  This was not a “one-off” incident; she had made two telephone calls to the Practice and a written complaint to the Health Board 13 days afterwards, which was inaccurate and unfairly criticised the staff. Also, this was in the middle of the Covid-19 outbreak, when the Health service was under severe pressure.  The two complaints were exaggerated and, although she relied upon the fact that she was acting “in the moment”, she had the opportunity for reflection prior to the second call and certainly before the subsequent complaint 13 days later.

 

33.           He submitted that the breach was also more serious because of the consequences of what she was trying to pressurise the staff into doing, which would have required them to act outside of data protection and also prioritise a non-urgent medical case during a pandemic.

 

34.           Because this breach also involved abuse of her position as a representative member of the Health Board, Mr McAndrew submitted that the Committee may wish to consider a partial suspension from her role on the Health Board.

 

35.           Mr McAndrew referred the Committee to the similar cases of improper use of a Councillor’s position contrary to paragraph 7(a) of the Code and the sanctions imposed by the Wrexham and Denbighshire Standards Committees. In the Denbighshire case, the member concerned had been suspended for a period of 2 months, although he acknowledged that there were other breaches of the Code of Conduct that were taken into consideration in that case. In the Wrexham case, the Councillor had been suspended for 3 months, although there were other breaches of paragraph 4(b) and (c) of the Code, involving a failure to show respect and alleged bullying, that were the subject of an appeal. Nevertheless, the Ombudsman was satisfied that the sanctions were fair and reasonable for cases of this nature. 

 

36.           The Committee then invited Councillor Watkins to respond on the question of sanctions and any mitigating factors that she wanted the Committee to take into consideration. She stated that she had made two telephone calls to the Practice and remembered asking if the Doctor could call her back. She never intended to take the Doctors away from any emergency care. She was well aware of the difficulties faced by the Practice during the Covid-19 pandemic. She had been told, anecdotally, that this lady had been referred to the Nurse and she needed to see an optician. The lady was 80 years old and very frail and fragile. Councillor Watkins stated that she had worked for 30 years as a District Nurse and 10 years as a Community Nurse and all she wanted to do was help. She was willing to apologise if she had been too forceful but she had acted “in the moment” as it was late on a Friday evening. 

 

37.           Councillor Watkins stated that she thought she had made the complaint to the Health Board earlier than 13 days after the incident. She did take time to reflect but she felt that she had been let down by the Practice. Councillor Watkins confirmed that there was “history” between her and the Practice Manager. She had arrived at the Practice for an appointment with her GP, following her release from hospital, and had been referred to the Nurse even though she could not prescribe morphine for pain relief. 

 

38.           Councillor Watkins stated that, as a Councillor, you have to stand up for your constituents. She was clearly calling the Practice as a Councillor on behalf of this constituent, and she was not a personal friend for whom she was seeking any special favours. She only referred to herself as a “Councillor” when she was not making any progress with the staff. If she had come across too forcefully, then she will apologise. She had learned her lesson from this experience and there had subsequently been two further instances where constituents had raised concerns about the Practice with her but she had refused to get involved.

 

39.           Mr McAndrew replied that this was an unfortunate response and demonstrated a lack of insight by Councillor Watkins.  The incident had taken place 30 months ago but she had made no apology to the Practice. The decision regarding the medical priorities and the appropriate treatment for this lady had been a clinical matter for the Practice to determine. The lady was suffering from conjunctivitis and was offered an appointment in 9 days, which was within the good practice standard of 10 days, as stated on NHS Direct.

 

40.           Councillor Watkins responded that the lady was suffering with conjunctivitis but she could not see and that was affecting her mobility.

 

41.           Councillor Routley submitted that Councillor Watkins did not believe that she could approach the Practice to apologise while the Ombudsman was investigating this complaint, which she now understood was a misconception. However, she had been given additional training and had been spoken to about her perception, which was clearly different, but she understood that now.

 

42.           Mr McAndrew clarified that the draft report was issued to Councillor Watkins in June 2021 and it was clear from that draft that she could approach the Practice directly to apologise, but she had still failed to do so.  There was also documentary evidence that the complaint was made on 20^th August 2020, 13 days after the incident, and not any earlier as Councillor Watkins had thought. 

 

43.           The Committee then retired to consider its decision, having regard to the submissions made at the hearing, the other similar cases cited by the Investigating Officer and the Sanctions Guidance document produced by the Adjudication Panel for Wales. 

 

44.           In reaching a decision on the appropriate level of sanction, the Committee followed the five step process set out in the Sanctions Guidance. The first step was to assess the seriousness of the breach and its consequences. The Committee had regard to the fact that Councillor Watkins’ actions were quite deliberate and not inadvertent. It was also not one isolated incident but a continuing course of conduct over a number of weeks. Even though there was no element of personal gain involved, it was clear that Councillor Watkins was using her position to pursue a personal grievance against the Practice. The Committee also attached significant weight to the fact that Councillor Watkins had demonstrated a lack of insight and awareness about what she had done and had expressed no remorse. She had stated that she would apologise if she had been too forceful, but failed to understand that it was not just her manner that was inappropriate but her reliance on her position as a Councillor and member of the Health Board.  The Committee also considered that the actual and potential consequences of the breach were significant. There would have been serious implications for the Practice staff if they had breached patient confidentiality and deferred to Councillor Watkins requests and also if her unfair complaint against them had been upheld. Her abuse of her position as a Councillor and member of the Health Board also had significant reputational harm for the Council and undermined public confidence. Having regard to these considerations, the Committee found that this was a serious breach of the Code of Conduct.

 

45.           In considering the broad nature of the sanction to be imposed, the Committee considered all of the sanctions available to it, beginning with the sanctions of least impact. The Committee did not consider that No Action was appropriate given the serious nature of the breach.

 

46.           The Committee considered that a Censure was not appropriate given the serious nature of the breach and their concern that there was an apparent lack of understanding and awareness about Councillor Watkins’ conduct.

 

47.           The Committee decided that a suspension was the most appropriate sanction in view of the seriousness of the breach. It was considered that a temporary suspension from her role was required to reinforce the seriousness of what Councillor Watkins had done, to act as an effective deterrent and to restore public confidence. 

 

48.           The Committee then considered any relevant mitigating or aggravating circumstances and how these might affect the period of suspension. The Committee accepted that there were mitigating factors in relation to the original telephone call from Councillor Watkins, in that she was not seeking any personal gain or benefit, she was trying to help an elderly patient who was in distress and she had acted “in the moment”. However, in the light of the Committee’s findings

that she was no longer acting “in the moment” during the second call to the Practice and when she pursued the later complaints to the Health Board and also the finding that this was more of a personal grievance, then there were no mitigating factors in relation to these actions.

 

49.           The Committee considered that there were a number of aggravating factors in this case. Firstly, Councillor Watkins had demonstrated a complete lack of understanding about the misconduct and its consequences. She was still unfairly trying to blame others, suggesting that this was a “vexatious and retaliatory” complaint by the Practice staff and that her actions had been “misinterpreted”. Both she and Councillor Routley repeatedly referred to a previous issue that she had with this Practice about her own healthcare and suggested that this had motivated the staff to make this complaint about her. However, the Committee had found that it was Councillor Watkins complaints about the Practice that were deliberate and retaliatory and that she had been motivated to make this complaint because of her personal grievance against the Practice and also because the staff had failed to defer to her when she contacted them about the elderly patient. This was a deliberate and punitive act and using her position as a Councillor and Health Board member to further this complaint was a serious abuse of trust and power. This was compounded by the fact that Councillor Watkins had deliberately exaggerated the conversation with the Practice staff in her complaint and had unfairly misrepresented the facts.

 

50.           The Committee also considered that it was an aggravating factor that Councillor Watkins was an experienced Councillor and someone with considerable experience of working in the Health Service.  Therefore, she should have been aware of the potential seriousness of the actions that she was pressurising the Practice staff into taking, in relation to patient confidentiality and breaches of GDPR and also in terms of clinical care priorities. It was a further aggravating factor that this incident took place during the ongoing Covid-19 pandemic and lock-down, when the Health Service was facing unprecedented pressures.

 

51.           Finally, the Committee considered that Councillor Watkins failure to apologise for her actions was another aggravating factor in this case. Although Councillor Routley maintained that Councillor Watkins was unaware that she could have apologised to the Practice while the Ombudsman’s investigation was ongoing, the draft report had been issued months ago and there was a clear indication that an apology would have been appropriate. Although Councillor Watkins stated at the hearing that she would be prepared to apologise if she had been too “forceful”, this was not a fulsome and complete acknowledgement of her inappropriate conduct

 

52.           For these reasons, the Committee decided that the aggravating factors in this case far outweighed any mitigation.  The Committee then proceeded to consider the appropriate length of the suspension in light of these aggravating and mitigating factors.  The Committee noted that the Sanctions Guidance document advised that a period of suspension of less than one month was unlikely to achieve the objectives of the sanctions regime. The Committee also had regard to the periods of suspension of 3 months and 2 months respectively imposed in the Wrexham and Denbighshire cases for similar breaches of paragraph 7(a).  Although the Committee acknowledged that there were other breaches of the Code of Conduct taken into consideration in these cases, it was considered that the aggravating factors in Councillor Watkins’ case meant that the suspension should be at the upper level of that scale. 

 

53.           Therefore, the Committee determined that a fair and proportionate level of suspension in this case was 3 months, having regard to the seriousness of the conduct, the deterrent effect of the sanction and the need to restore public trust and confidence.  In addition, the Committee considered that Councillor Watkins’ flagrant abuse of her position on the Health Board meant that she should not continue in this role.  Therefore, the Committee decided to recommend to the Council that Councillor Watkins be removed and replaced as a representative on the Health Board.