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24.10.19

Regulating social workers—England’s new regime

Local government analysis: Will the establishment of Social Work England as the new regulator of social workers in England improve public confidence in the profession? Nick Brett, partner in regulatory and disciplinary proceedings at Brett Wilson LLP, explains how the new regime will work in practice, sets out the transition arrangements that are in place, and considers whether we are likely to see reform of other medical professional regulatory bodies as a result.

When will Social Work England (SWE) take over as professional regulator?

The Children and Social Work Act 2017 (CSWA 2017) established Social Work England (SWE) to be the new regulator of social workers in England. It replaces the Health and Care Professions Council in this role. CSWA 2017 also created the Social Workers Regulations 2018 which prescribe its functions. The Children and Social Work Act 2017 (Transitional and Savings Provisions) (Social Workers) Regulations 2019 make transitional and savings provisions. The transition to SWE will take place on 2 December 2019.

What transition arrangements are in place?

CSWA 2017 empowers the Secretary of State to make regulations for the transition to SWE. These transitional arrangements can be found in the Children and Social Work Act 2017 (Transitional and Savings Provisions) (Social Workers) Regulations 2019.

SWE will take over the register of social workers in England (only) and the regulations provide for the transfer of any social worker previously registered by the Health and Care Professions Council. They also deal with arrangements for applications to go on the register which are outstanding at the date of transfer and for dealing with any appeals against the refusal of registration.

Further transitional arrangements exist for transferring responsibility for the education and training of social workers. Regulation and disciplinary proceedings with respect to fitness to practice are also assumed by the new regulator and any prior sanctions will continue to have effect. Fitness to practice proceedings commenced by the old regulator will be taken over by SWE (save where a hearing has already begun).

How is the fitness to practise regime intended to work for SWE?

There are new sanctions and details of the replacement terminology can be found in the Transitional Order. For example, a striking off order is now a ‘removal order’ and a ‘caution order’ is now a ‘warning order’. The terminology for some of the sanctions remains the same although the power to impose such sanctions is now contained in Schedule 2 of the Social Workers Regulations 2018.

The grounds for fitness to practise proceedings are:

  • misconduct
  • lack of competence
  • convictions in the UK (and abroad)
  • adverse physical or mental health
  • a determination by (another) regulatory body that fitness to practice was impaired
  • not having the necessary knowledge of English, and
  • being included on DBS or other lists.

SWE will make disciplinary conduct rules to guide the process. The regime commences with a ‘triage’ to determine whether there are ‘reasonable grounds’ to investigate. It should be noted that where there is a conviction for a listed offence or where a custodial sentence is imposed there is automatically a case to investigate by virtue of Schedule 2 paragraph 1(2) of the Social Workers Regulations 2018.

Thereafter, if it is determined that there are reasonable grounds to investigate then investigators and case examiners will be appointed. The social worker will be informed, he or she will be invited to make submissions on the allegation(s) and will have a duty of disclosure regarding their current work. The investigators will have powers to order disclosure and the case examiners will go on to decide whether there is a realistic prospect of a finding of impairment. If so—and if it is in the public interest to do so—the allegations will be referred for a fitness to practise hearing.

At the same time, the case examiners must go on to determine whether it is necessary to impose any interim orders. There is provision for disposal without a hearing in circumstances where there has been a conviction (for a non-listed offence) or where the case examiners consider a hearing is not deemed to be in the public interest. In such circumstances the case examiners retain inherent powers to deal with the allegations summarily or by taking no action. Otherwise, the matter will proceed to final hearing in the event that it is contested.

In the event that the matter is proven (on a balance of probabilities), the adjudicators may:

  • order removal or suspension from the register, or
  • impose a restriction or condition on practice, or
  • give a warning

There is a statutory right of appeal to the High Court within 28 days.

The government consultation outcome recommended reforming other regulators’ fitness to practice regimes to follow the new SWE procedures—what might that look like?

It is envisaged there will be a greater emphasis on speed and a more collaborative as opposed to adversarial system in respect of all those bodies which regulate medical professionals. It is further envisaged that existing regulators, including the General Medical Council and General Dental Council, will have their processes reformulated along similar lines to the SWE. The number of regulators regulating medical professionals may even reduce from the current nine. Legislation and process will be simplified and procedure will be less legalistic. It is envisaged that fewer cases will go to final hearing and that case examiners will use their inherent powers to deal with matters summarily.  It is further envisaged that there will be more support for professionals and it is to be assumed that is likely to mean less work for regulatory and disciplinary lawyers. The introduction of formal mediation is also being considered as a means of avoiding lengthy and costly final proceedings.

Do you think this will help improve public confidence in medical professionals?

The maintenance of public confidence is a benchmark for all professional regulation. To a certain extent, public confidence in disciplinary and regulatory systems is dictated by results. The perception of those results can be affected by the manner in which individual cases are reported in the media. The media tends to report on matters which it hears at tribunal proceedings through the ‘open justice’ principle. Whilst the desire for speedy and simplified justice is laudable, the desire of professionals to protect their reputation and defend themselves vigorously against accusations should not be under estimated.

 

Nick Brett was interviewed by Jenny Rayner. 

This article was originally published on LexisPSL and reproduced with thanks.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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