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Drafting fitness to practise decisions

This guidance is intended for use by parties during the fitness to practise process and help adjudicators, case examiners and triage officers make well-reasoned decisions in accordance with the fitness to practise rules and regulations.

Guidance on drafting fitness to practise decisions

Last updated: 6 December 2019


About this guidance

This guidance is intended for use by parties during the fitness to practise process and help adjudicators(the panel), case examiners and Social Work England triage officers make well-reasoned decisions in accordance with the fitness to practise rules and regulations. In this guidance, ‘decision’ refers to the document produced following the outcome of a case.

Good decision drafting aims to:

  • make sure the parties understand why a particular outcome has been reached
  • help a reasonable person with no prior knowledge of the case to fully understand the reasons for a decision (whether or not they agree with it)
  • uphold confidence in the quality of the decision making process
  • explain how we deliver our overarching objective and apply the standards we expect of registered social workers
  • deliver a consistent approach as to how decisions are presented.

Any decision could be subject to scrutiny as a result of legal challenge or internal review, for example. It’s therefore very important that, whether or not a decision is being published, it should be written so that a person with no connection to the case can fully understand the issues and why the particular outcome was reached. It’s also very important that the decision should include every relevant factor. A good decision is one to which nothing can be added later.

Fitness to practise panels

The court in Ariyanayagam v GMC [2015] EWHC 3848 (Admin) suggested that a ‘model’ determination by a fitness to practise panel would:

  • set out a conclusion on each of the allegations raised
  • provide an adequate summary of the background to each allegation
  • summarise the witness evidence
  • comment on the quality of the evidence provided by the registrant
  • explain in some detail why some allegations were found proved and others were not found proved
  • provide detailed explanations of why it reached the conclusions that it did.

In ‘The Regulation of Health Care Professionals: Law, Principle and Process’, David Gomez submits that the above approach represents best practice and should be followed by panels as often as possible.

Structure of fitness to practise decisions

The process of assessing, investigating and adjudicating on a concern follows a consistent process. Good decisions reflect this process in how they are structured. Broadly speaking, the process is as follows:

  1. Define the issue(s) to be determined
  2. Identify the various factors that impact the issue(s)
  3. Explain the decision and the reasons for it

In fitness to practise concerns, the structure of decision reasoning should broadly reflect this process as follows:

  1. Identify the elements in the available information that raise a question about the social worker’s fitness to practise
  2. Identify the evidence relevant to whether or not these elements can be proved to the civil standard of proof
  3. Make a judgment on the seriousness of the provable elements by reference to relevant guidance and to the threshold for a finding that the social worker’s fitness to practise is impaired
  4. Make a judgment on any sanction based on the facts and seriousness of the concern

In some cases, this process will take place at different times. For example, the triage decision may sift out elements in the information that are not relevant to whether the social worker’s fitness to practise is impaired, while identifying those elements that should be investigated. In these cases, the case examiner decision should not revisit the triage decision. It should instead address only those elements that the triage officer referred to the investigators.

There are other factors that are specific to particular stages, and these are explored in more detail below. For example, case examiners can decide whether a matter is capable of being proved, but must not decide whether disputed facts are actually proved. Adjudicators, on the other hand, hear evidence and then make findings of fact.

Language and style

Abbreviations

Try to keep abbreviations to a minimum to help ease of reading. Use shortened names rather than abbreviations where possible. For example, East Sussex County Council should be shortened to ‘the council’ and not ESSC. Use terms in full, for example ‘case examiners’ rather than ‘CE’, ‘interim orders panel’ rather than just ‘the panel’, and ‘Social Work England’ rather than ‘SWE’.

If using an abbreviation, use the full expanded term on first use with the abbreviation in brackets. An exception to this would be where the abbreviation is so well understood that no explanation is necessary, for example NHS.

Terms to avoid

‘We think’ or ‘we believe’: These are imprecise terms and could be read as suggesting a subjective approach to the decision making. Use ‘We have decided’, ‘We have determined’ or ‘We have concluded’ instead.

‘We considered’: This is ambiguous because it can mean ‘We took into account’ or it can mean ‘We decided’. The phrase is best avoided.

Standard wording

Decisions should be specific to each case or issue but there are some concepts and principles that will routinely appear in most decisions. These principles can be complex and they often reflect case law that has evolved over a number of years. Using standard wording avoids any risk of inadvertently altering the meaning of the principle (relevant case law is set out in the annex to Social Work England’s sanctions guidance).

Social Work England’s overarching objective

As with everything we do, our overarching objective (Section 37 Children and Social Work Act 2017) must be taken into consideration. Our overarching objective is the protection of the public. This is broken down further into the following objectives:

  • to protect, promote and maintain the health, safety and wellbeing of the public
  • to promote and maintain public confidence in social workers in England
  • to promote and maintain proper professional standards for social workers in England.

Impairment

A social worker’s fitness to practise can be impaired because they pose an ongoing risk to the public, and/or because what they’ve done is so serious it risks undermining public confidence in social workers, or requires a signal to be sent to all social workers about the standards expected of them.

Remediation

Social Work England’s role is to protect the public from social workers who may pose an ongoing risk to their safety. Past actions may help inform the decision about ongoing risk, but the purpose of fitness to practise procedures is not to punish the social worker for those past actions. When deciding whether or not the social worker poses a current risk to the public, we must therefore take into account whether the social worker’s failings are easily remediable, whether they’ve, in fact, been remedied, and whether they’re likely to be repeated.

However, some past actions may be so serious that taking no action risks undermining public confidence in the social work profession or failing to uphold proper standards of social workers. In these cases, the social worker’s fitness to practise may be found to be impaired even if they’ve remedied their deficiencies and there is low risk of repetition.

Single incidents

A single act of lack of competence or capability will not usually be enough to amount to impaired fitness to practise unless it’s particularly serious or if there’s evidence of reckless disregard of professional responsibilities that might amount to misconduct.

Dishonesty

When deciding whether or not a social worker has been dishonest, we must apply the relevant case law. The accepted test for dishonesty was set out by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67. The judgment states: ‘When dishonesty is in question, the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts...once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

Anonymisation

If a decision is being published, the starting position is that only the registrant’s name should be given in full. When deciding if other parties should be referred to by name, the assumption is that they should be anonymised in the written decision unless they’ve given explicit consent to be identified. This applies even when witnesses have agreed to be referred to by name in open session during fitness to practise hearings.

Where possible, references should be to a person’s role or relationship to the social worker rather than their name, for example ‘[social worker’s name]’s line manager’. A system of assigning letters to individuals can also assist manage the writing of a decision, for example ‘Mr A, [social worker’s name]’s line manager’.

Health cases

If a decision is being published or copied to a referrer or complainant, it should usually exclude references that are capable of revealing confidential information about a social worker’s medical condition. If necessary, these references should be included in a confidential annex that is only disclosable to the social worker. At hearings, the fitness to practise panel will go into private session when hearing health evidence and the publication of outcomes will maintain this separation between public and private.

References to case law

Except when using the standard wording about dishonesty, it’s not usually necessary or helpful to cite specific case law. In particular, doing so in triage or case examiner decisions risks the decision having an overly legalistic tone. Wherever possible, decisions should be written in plain English. It can be tempting to include legal citations to boost the authoritative tone of the decision, but in fact it’s rarely helpful. Confidence in the decision quality comes from seeing that all relevant facts have been taken into account and that standards and thresholds have been applied reasonably, not through legal citations and language.

However, if specific case law has been referenced at hearings in submissions by the parties or in legal advice from the legal assessor or legally qualified chair, the citations should be given when summarising these submissions or advice.

Commenting on third parties

Decision makers must remember that their role is to make judgments about whether or not a social worker is fit to practise. In their decisions they should not pass judgment on the conduct of third parties.

For example, a social worker may suggest that responsibility for what has gone wrong rests with their employer rather than themselves. In this instance, the decision makers may conclude that there is not sufficient basis for finding the social worker’s fitness to practise impaired but should not pass judgment on the actions of the employer. Those actions are not the subject of their determination.

It’s reasonable and indeed necessary to explain why we were unable to attach weight to a particular piece of evidence, but this does not require the decision makers to directly criticise the supplier of that evidence.

Evidence of insight and remediation

Insight and remediation is often crucial to the question of current and future risk to public safety (Blakely v. General Medical Council [2019] EWHC 905 (Admin)). Decisions must aim to provide a third party reader with reassurance that the decision makers have fully and properly addressed these elements in their decisions. This reassurance is especially important for triage and case examiners decisions to conclude cases if the decision is based entirely on written evidence and submissions.

It’s not sufficient to simply say that the decision makers accepted evidence of insight or remediation. The decision must explain what the evidence was and how it demonstrated insight and remediation. For example, ‘[social worker’s name] has since undertaken a course’ is not a sufficient explanation. Instead, ‘[social worker’s name] has successfully completed a formal training course in [subject matter] delivered by [x body]. We accept this course is relevant to the concerns identified in this case. The fact that [social worker’s name] completed it successfully, gives us confidence that there is no risk of them repeating the mistakes they made in this case.’

Similarly, for insight it’s not sufficient to say: ‘we note that [social worker’s name] accepts that what they did was wrong’. More explanation is required. For example, ‘[social worker’s name] has commented that they accept their conduct was a breach of [specific guidance], and has said that, in future, if faced with a similar situation, they would act as follows...’

Guidance on specific decision stages

Triage decisions

The following headings can be used to provide a template for the triage decision.

Triage officer’s decision

The triage decision should begin by stating the decision in broad terms. For example, ‘I have decided that on the evidence available the information does not raise a fitness to practise concern’. Or ‘I have decided that on the evidence available some elements of the information raise a fitness to practise concern but that others do not’.

Background

The decision should then go on to describe the matters that’ve been raised by the referrer or complainant. This does not need to reproduce the entire content of the information, but it should aim to give the referrer or complainant full confidence that we’ve properly understood the basis of their concern.

Further enquiries (where relevant)

Describe any further enquiries conducted or advice obtained.

Reasons for decision

Describe the role of the triage officer as follows:

‘As a triage officer, I must determine whether there are reasonable grounds for investigating whether [social worker’s name]’s fitness to practise is impaired. A social worker’s fitness to practise can be impaired because they pose an ongoing risk to the public, and/or because what they’ve done is so serious it risks undermining public confidence in social workers, or requires a signal to be sent to all social workers about the standards expected of them.

In making this decision, I must apply certain criteria. This decision explains how I’ve applied these criteria to this case.’

The decision should usually reference each of the criteria and explain:

  • whether or not each of the criteria is relevant
  • how each of the criteria is relevant
  • what view the triage officer has taken about its relevance and weight.

The criteria the triage officer takes into consideration are as follows:

  • The seriousness of the concern in reference to Social Work England’s overarching objective to protect the public and maintain confidence in and the standards of social workers in England.
  • The likely availability of sufficient evidence to support an allegation of impaired fitness to practise.
  • Does the concern suggest the social worker may have breached any relevant published professional standards or ethical guidance, rules, regulations, procedures or laws in place at the time of the events giving rise to the concern?
  • The outcome and subsequent actions arising from an investigation into the concern carried out by a public body.
  • Whether or not the social worker is taking, or has successfully completed, remedial actions in respect of the concern.
  • Whether or not the social worker has been subject to an adverse or negative finding in any previous investigations by Social Work England, its predecessors, or another public body.

However, if the concern clearly justifies only one course of action, it’s not necessary to cover all the criteria in the decision. For example, for an allegation of sexual misconduct towards a service user, it may be sufficient to note that the concern is clearly sufficiently serious enough to require investigation on both public safety and public confidence grounds. It may also be clear, through statements from the service user, that there is sufficient evidence to support it.

If the decision is to close the case because there is no likelihood of evidence being available, the decision must explain why it’s been decided that an investigation would have no prospect of obtaining the evidence. At the triage stage, it may be common to close concerns that are not sufficiently serious on this basis. It will be much less common, however, to close a serious concern on the basis that it cannot be evidenced, either on what is known now or on what might be revealed by an investigation. It’s therefore very important to fully explain these decisions to maintain confidence in the regulatory process.

If remediation is a factor, the triage officer should apply the guidance above when explaining the substance of the remediation. When applying the above criteria, the triage officer should also address whether or not the concern raises public safety and/or public interest issues. It should be clear how each of the criteria has impacted each element of the decision.

Often, a complaint or referral will include several aspects, some of which may require investigation and others which can be closed at triage. In such cases, it’s essential that the triage decision identifies which aspects of the information are being referred to investigation and which are being closed. This will avoid the unnecessary investigation of matters that do not raise concerns of fitness to practise.

Triage officer decision reasoning checklist

  • Can the referrer or complainant be satisfied that the decision accurately and comprehensively summarises the concern they’ve raised?
  • Does the decision cover all other information taken into account, such as the outcome of further enquiries or previous history?
  • Have all of the triage criteria relevant to the concern been addressed in the decision?
  • Does the decision adequately explain the substance of relevant factors? For example, why an investigation would not obtain evidence, or what form remediation has taken and why this addresses public safety risks?
  • Does the decision adequately address both the public safety and the public interest issues raised by the concern?
  • Does the decision clearly identify the various distinct elements of the concern and the outcome in respect of each of those elements?
  • Is the decision in plain English with minimal abbreviations and technical terms explained?
  • Would a third party with no prior knowledge of the concern be able to understand both the basis of the concern and the rationale for the triage decision from the reasons?

Case examiner decisions

The following headings can be used to provide a template for the case examiners’ decisions.

Case examiners’ determinations on whether to refer to the adjudicators

The decision should begin by stating the decision in broad terms. For example, ‘We’ve decided to refer the concern to the adjudicators to conduct a fitness to practise hearing’ or ‘We’ve decided there is no realistic prospect that the adjudicators would determine [social worker’s name]’s fitness to practise is impaired and we’ve decided to conclude the case by issuing advice.’

Background

This should summarise the original concern as refined through the triage process. In other words, it does not need to repeat any aspects of the original complaint or referral that were excluded from the referral to investigation, unless it’s helpful to do so for context. The concern should’ve been summarised in the triage decision, so this can normally be adopted by the case examiners. But the case examiners must be satisfied it accurately and comprehensively reflects the concern so that the complainant or referrer will have confidence it’s been fully and properly understood.

Investigation

Summarise the results of the investigation. This can normally be taken from the summary of investigation section of the investigation case report. However, case examiners should make sure this adequately reflects the investigation process. The case examiner decision is the key reference point for detail about the investigation, so it’s the case examiners’ responsibility to make sure this detail is adequately conveyed. If indoubt, they should check with the investigators for further information.

Draft statement of case

This should be taken from the investigation case report. It will normally have been disclosed to the social worker, so should not be amended at this stage.

Comments from the social worker or complainant

This should summarise any comments received from the social worker. It does not need to repeat them in full but should be detailed enough to allow the social worker to be confident that the representations have been fully understood. It should also allow the complainant or referrer to understand the social worker’s position. If the complainant has been invited to comment on the social worker’s comments, these should also be summarised in the same way.

Reasons for decisions on the realistic prospect test

Describe the role of the case examiners as follows:

‘As case examiners, we must consider the information obtained by Social Work England’s investigation and any comments received from [social worker’s name]. We must then determine whether there is a realistic prospect that adjudicators would determine that [social worker’s name]’s fitness to practise is impaired. The realistic test has two parts.

First, we must determine if the concern is sufficiently serious to suggest a continuing risk to public safety or to require action to maintain confidence in all social workers or to uphold the standards social workers must meet.

Second, we must determine if the allegations are capable of being proved to the required standard, namely that they are more likely than not to have occurred.’

The decision should then address the statement of case by individual element and apply the realistic prospect test to it. In doing so, the case examiners should ask and answer the following questions in the decision:

  • Is the concern sufficiently serious, including in reference to professional standards or ethical guidance, to suggest there would be a risk to public safety if not remediated?
  • Is the concern so serious that it raises public interest issues of confidence in the profession or a need to send a signal to other social workers about the standards to be met?
  • Is the concern capable of being proved applying the relevant standard of proof (for example ‘more likely than not’)?
  • If the concern does suggest a risk to people’s safety but does not raise public interest issues, does the social worker show insight and has the social worker begun or completed remediation so that there is, in fact, no ongoing risk to public safety?

Case examiner decisions: other issues

Conflicts of evidence

Case examiners must not try to determine conflicts of evidence. The decision should identify such conflicts and state clearly that the case examiners cannot resolve them.

However, case examiners can assess what weight to give a particular piece of evidence. For example, they may decide that a piece of evidence is so unreliable that it can be given little or no weight. If so, the decision reasoning must explain why the case examiners have reached the conclusion about the weight of the evidence, given the likely impact on the realistic prospect test.

The following standard wording may help in drafting decisions about conflicts of evidence:

‘We cannot resolve conflicts in evidence because we can only consider the information on the papers. Adjudicators may resolve conflicts in evidence having heard witness testimony. However, we can assess what weight we should give a piece of evidence when deciding if a particular concern could be proved.’

Remediation and insight

See the guidance above about drafting decisions on remediation and insight. It’s insufficient to simply record that remediation or insight exists. The decision must explain what form the remediation or insight took and what weight the case examiners have given this evidence in deciding whether or not the realistic prospect test is met.

Public interest test and potential removal cases

Case examiners must refer concerns to the adjudicators if they consider it in the public interest to do so and/or where a removal order is a possible outcome. Our sanctions guidance explains that, usually, the fact that case examiner decisions are published is sufficient to satisfy the public interest. However, in exceptional cases, a concern may be so serious that not holding a hearing would carry a real risk of damaging public confidence in the profession.

If the case examiners determine that the realistic prospect test is met but that the case can be disposed of without a hearing, the decision reasoning should explain how the case examiners have addressed the public interest test and why removal is not considered a potential outcome.

Referring concerns to hearing: statement of case

If the case examiners decide to refer a concern to a hearing, they should review the content of the draft statement of case. Amendment may be necessary if the case examiners have decided that only some aspects of the concern are capable of proof, for example. Note that case examiners must not add aspects that were not subject to the investigation. If they conclude there are other aspects that should be investigated, they must refer these to the investigators. The decision reasoning should explain any amendments to the statement of case. These should have been referenced already in the reasons for determining the realistic prospect test is met.

Accepted disposal

If accepted disposal has been explored, the decision should explain this process as follows:

‘Accepted disposal is a means of arriving at the sanction on a social worker’s registration necessary to protect the public and the public interest without the need for a hearing. Concluding a case through accepted disposal requires the social worker to accept the key facts, show genuine insight, admit their fitness to practise is impaired, and agree to the sanction proposed by the case examiners.’

Sanctions

The case examiner decision reasoning on sanctions should reference and apply Social Work England’s published sanctions guidance. This includes detailed guidance on drafting reasons for sanctions at paragraphs 110-114.

Case examiner decision checklist

  • Can the social worker be confident that any comments they’ve made have been properly taken into account?
  • Can the complainant be confident that any further comments they’ve made in response to the social worker’s comments have been fully understood and taken into account?
  • Have all relevant facts been addressed?
  • Have all concerns, as set out in the draft statement of case, been addressed?
  • Does the information contain any material conflicts in evidence? If so, have these been addressed in the decision reasoning and their impact on the outcome explained?
  • Does the decision explain the reasons how and why case examiners have weighed evidence?
  • Does the decision explain what mitigation evidence there is, including of insight and remediation, and how the case examiners have weighed this in their decision?
  • Have clear reasons been given as to why each area of the realistic test is, or is not, met?
  • If the realistic prospect test is met, does the decision address the public interest test and whether or not a removal order is a possible outcome?
  • Does the decision explain how and why the case examiners arrived at a particular sanction, including reference to Social Work England’s sanctions guidance?
  • Is the decision in plain English with minimal abbreviations and technical terms explained?
  • Would a third party with no prior knowledge of the concern be able to fully understand both the basis of the concern and the rationale for the case examiner decision from the reasons?

Case examiner interim order referral decisions

Decisions on whether or not to refer the question of imposing an interim order to the adjudicators should be made in reference to Social Work England’s publication ‘Guidance on referral to an interim orders hearing’. Decision reasoning should quote from this guidance where relevant.

Interim order referral decision

The decision should begin by stating the decision and whether it’s on grounds of public protection, public interest, or the social worker’s own interests.

Background

This should have been communicated to the case examiners by the investigators. However, case examiners should make sure the narrative accurately reflects the concern. For the purposes of interim order referral decisions, the background may focus on those aspects that raise a question about an interim order. Other aspects that do not point to an interim order can be summarised briefly.

Decision reasoning

Case examiners may refer a case to the adjudicators if they consider it necessary for the protection of the public or in the best interests of the social worker. The protection of the public includes the public interest elements of maintaining confidence in social workers and upholding the standards to be maintained by social workers. The decision reasoning must state explicitly which of the three areas the case examiners regard as relevant to the interim order being imposed.

Case law has established that the threshold for interim orders on public interest grounds alone is relatively high (R (Sheikh) v General Dental Council [2007] EWHC 2972 5R (on the application of Walker) v General Medical Council [2003] EWHC 2308 ). This means that the primary consideration at an interim stage is protection of the public or acting to protect the interests of the social worker. If the case examiners decide to refer on public interest grounds alone, they should provide detailed reasons of why they consider this necessary given that such referrals are exceptional5.

If the case examiners determine not to refer in cases where public protection may be an issue, the decision must explain what information they’ve taken into account that’s led them to decide that referral is not necessary.

In some cases, there may be insufficient basis for referral at the time of making the decision, but this might change depending on the progress of the investigation. Case examiners should set out any specific potential developments that might impact a referral decision. 

Adjudication decisions

Social Work England’s published sanctions guidance contains detailed guidance on the key decisions adjudicators must make and the factors they should take into account. In particular, paragraph 111 sets out what decisions should include to allow a third party with no prior knowledge of the case to fully understand the basis of the concern and how and why the decision was reached. Adjudication decision reasoning should apply the sanctions guidance using paragraph 111 as a checklist and, where relevant, quote from it.

Fitness to practise hearings proceed in defined stages and the final published decision will be a composite of those stages. Adjudicators should make sure decision reasoning is consistent across the stages. For example, the assessment of the seriousness of a case at the impairment stage should be reflected in the assessment of the proportionate sanction.

Adjudicators are assisted by submissions from the parties and also by advice from the legal assessor or the legally qualified chair. Decision reasoning should fully reflect the evidence received and heard, the submissions and legal advice given, together with detailed reasoning about the view the panel has taken of everything it has heard. If panels make sure the proceedings are reported in this way, this should deliver the objective of enabling a third party to understand what the case is about and why the panel has made that determination.

Legal arguments

Adjudicators may be asked to consider and determine legal arguments particularly at the start of the hearing. These may be on questions of service of notice, proceeding in absence, abuse of process, objection to elements of the statement of case, or submissions of no case to answer, for example. Adjudicators are likely to hear legal argument from the parties on these issues including reference to case law, as well as advice from the legal assessor or legally qualified chair. The panel’s decision reasoning on these issues must make sure each party can be confident their representations have been properly understood and their submissions taken into account.

Determining facts in dispute

Decision reasoning must explain clearly the basis on which the panel has found a disputed fact proved or not proved.

If the evidence of a party’s witness is not challenged by the other party, and the panel has no other reason to question their credibility, it’ll usually be sufficient to say ‘the panel accepted the evidence of witness [A]which was not challenged by the parties’.

If witness evidence is challenged, or is otherwise open to question, the panel must explain how it has addressed, how it was resolved, and how much weight to give the evidence. Panels should take care to distinguish between questions of reliability and those of credibility. In other words, the difference between a witness giving an honest, albeit possibly partial or incorrect recollection, as opposed to one giving an account that the panel is unable to accept as honest.

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