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Fitness to practise rules and regulations

Guidance on the application of social workers regulations and Social Work England fitness to practise rules.

Guidance on the application of social workers regulations and Social Work England fitness to practise rules

Last updated: 26 November 2019


Language used in this guidance

Throughout this guidance we will refer to certain words and phrases that, within this guidance, have a specific meaning. We will set out these definitions in this section.

Can/cannot: is able to/isn’t able to—used when something is or isn’t possible.

Fitness to practise process: the entire case process from a concern being raised to case closure.

Impairment: if a social worker’s fitness to practise is impaired, it means that they do not have the skills, knowledge, character or health to practise their profession safely, effectively or without restriction.

May/may not: is allowed to/isn’t allowed to—used when someone is able to use their discretion to make a decision.

Must/must not: has to do or not do something—used when referring to something that is possible but is either mandatory or prohibited.

Triage

1. When Social Work England receives a complaint or any information about a registered social worker, we must decide whether it is reasonable for us to investigate their fitness to practise. This decision is made by Social Work England employees who are specifically trained as triage officers.

2. The triage officer assigned to a case must decide whether a complaint or information raises a concern under one or more of the following fitness to practise categories:

  • i. misconduct
  • ii. lack of competence or capability
  • iii. conviction or caution in the UK for a criminal offence
  • iv. conviction elsewhere which would be a criminal offence if committed in England or Wales
  • v. physical or mental health that stops the social worker from practising safely
  • vi. a decision by another regulator that the social worker is not fit to practise
  • vii. being included on the barred list of the Disclosure and Barring Service or the equivalent lists in Northern Ireland or Scotland
  • viii. not having the necessary knowledge of English to practise safely.

3. When deciding whether there are reasonable grounds to investigate a concern further, the triage officer must consider the following criteria set out in the rules.

The seriousness of the concern by reference to the pursuit of Social Work England’s overarching objective

4. Social Work England’s primary objective is the protection of the public and includes:

  • protecting, promoting and maintaining the health, safety and wellbeing of the public
  • promoting and maintaining the public’s confidence in social workers in England
  • promoting and maintaining proper professional standards for these social workers.

5. When assessing the seriousness of a concern, the triage officer may take into account the age of the events in question. The fitness to practise process is only used if the social worker’s fitness to practise is currently impaired. This means the more recent an event, the more relevant it may be to the social worker’s current fitness to practise. Although time may be a determining factor, some concerns are so serious that they can suggest current impairment regardless of how long ago the events happened.

The likely availability of sufficient evidence to support an allegation of impaired fitness to practise

6. The triage officer may take into account whether the concern is based on facts that can be supported by witnesses or documentary evidence. The triage officer may be slower to find grounds to investigate concerns based only on assertion or speculation, or disagreement with a social worker’s reasonable use of professional judgment.

The concern suggests the social worker may have breached any relevant published professional or ethical guidance, rules, regulations, procedures or laws in place at the time of the events giving rise to the concern

7. The seriousness of any breach of guidance, rules, regulations, procedures or laws must be assessed. Not all breaches will necessarily reach the threshold of impaired fitness to practise, but not complying with requirements raises a concern in itself.

The outcome of any investigation by another body such as an employer, or the police

8. Although Social Work England is not necessarily bound by the outcome of such an investigation, the triage officer may take it into account when assessing a concern. For example, it may count towards the seriousness of a concern or whether or not it’s likely to be supported by sufficient evidence.

Whether the social worker is taking, or has successfully completed, remedial actions in respect of the concern

9. If any risk to current public safety has been addressed, the triage officer may take this into account. This is likely to be particularly relevant to concerns about lack of competence and capability. A social worker who has successfully completed relevant training and development after the events in question may pose no further risk to the public. This could mean an investigation into their current fitness to practise is not necessary. Social Work England may ask for evidence of successful remediation, such as certificates of courses undertaken and passed by the social worker.

10. Before deciding whether or not to close a concern on the basis of successful remediation, the triage officer must be satisfied that doing so does not risk the public’s confidence in the social work profession or in the proper management of social worker’s professional standards. The triage officer will be slower to take remediation into account in respect of concerns about a social worker’s conduct because of the difficulty involved in making an objective assessment of whether remediation is complete in issues of character. For example, the triage officer is unlikely to close a case at the triage stage on the basis of successful remediation if the concern involves alleged dishonesty.

11. If a concern is raised because of a social worker’s ill health, treatment and limiting their practice may be considered to be evidence of remediation. Social Work England will not normally need to investigate a social worker’s health if the social worker is getting suitable treatment and/or limiting their practice to protect the public.

Whether the social worker has been subject to a previous adverse finding

12.This may be particularly relevant in cases where the concerns are about a social worker’s competence and capability. In most cases, the triage officer will need to see a pattern of such concerns before they decide to investigate a social worker’s fitness to practise. The triage officer must consider whether the concern about competence or capability is an isolated incident. If they decide it is an isolated incident, they may decide to close the case. If the incident is part of a wider pattern, the triage office is more likely to decide to open a formal investigation.

13. When making a decision about whether or not the concern about competence or capability warrants an investigation, the triage officer may ask for more information from the complainant, an employer, or the social worker themselves.

14. The triage officer may also ask for advice from an expert or professional adviser.

15. If the triage officer decides that a concern is sufficiently serious to raise a question about a social worker’s current fitness to practise, they must also decide whether there is, or is likely to be, sufficient evidence to support the concern. Social Work England’s investigators are able to require the disclosure of evidence, so any questions about the difficulty in getting hold of particular evidence should not affect the triage officer’s decision. However, the triage officer may assess whether the concern is based on facts that are able to be proven using evidence, or whether it is based on an assertion for which there is limited or no supporting objective proof. This may be relevant if the concern is based on a disagreement with a social worker’s reasonable exercise of professional judgment.

16. If a concern is being investigated by another body, such as the social worker’s employer, the triage officer may decide to wait for the outcome of that investigation. If they choose to do this, it will be to assess whether or not the evidence in support of the concern or of remediation is both available and sufficient. Before deciding whether or not to wait on the outcome of another investigation, the triage officer must assess if the case is so serious that any delay to the process may put public safety at risk. In such cases, they must open a formal investigation so that case examiners can be assigned to decide whether or not to refer the case to an interim orders panel. This panel will decide whether or not to restrict a social worker’s right to practise while further investigation takes place. (See paragraphs 41-45 for further information about interim order hearings.)

17. When making any triage decision, the triage officer must explain in the reasons for the decision what factors they have taken into account. Their decision will then be sent in writing to the person or body who raised the concern. A decision to open an investigation will be sent to the social worker in writing by the investigators (see paragraph 24).

Paragraph 1(2) of Schedule 2 and rule 4: convictions

18. Rule 4 relates to convictions that have resulted in a custodial sentence (including a suspended sentence) but that do not fall under the category of a listed offence. It also applies to convictions that occurred before the rules took effect but would now qualify as a listed offence. The rule requires the social worker to send their employer details to Social Work England within 7 calendar days.

19. The triage officer must refer any cases involving convictions falling under the terms of paragraph 1(2) of Schedule 2 of the rules directly to the case examiners. The case examiners may exercise their right under paragraph 7(4) of Schedule 2 to ask the investigators to obtain further information, such as a judge’s sentencing remarks.

Regulation 26 and rules 5 and 6: automatic removal

20. The triage officer will normally put automatic removal cases into effect immediately. Rule 5 allows up to 7 calendar days to notify the social worker to take into account bank holidays or other unavoidable delays. Rule 5 means that we do not have to have official confirmation of a conviction before putting this action into effect but we must have reasonable grounds for believing that the information about the conviction is accurate.

21. Regulation 26(2)(c) and rule 6 is likely to only apply if the social worker has been incorrectly identified as the subject of the conviction or the conviction is not one that qualifies for automatic removal. A pending or proposed appeal by the social worker against the criminal conviction does not amount to an error of fact for the purposes of this process. This means that the process for automatic removal must continue even if an appeal has been lodged. A social worker is entitled to be restored to practise after an automatic removal if, on appeal, the conviction is overturned.

Investigation

22. If an investigation is opened after a case has been triaged, paragraph 3(1)(a) of Schedule 2 requires Social Work England to assign 2 or more investigators to carry out the investigation. Social Work England will normally appoint 2 investigators but may replace one or both with different investigators if it’s necessary to make sure the investigation is carried out fairly and efficiently.

23. The investigation may be carried out by one investigator under the direction of a second investigator.

Paragraph 4(1)(a) of schedule 2 and rule 8(a): notification of opening an investigation

24. The investigators will notify the social worker as soon as possible after the decision to open an investigation has been made. The period of up to 7 calendar days is to allow for bank holidays or other unavoidable delays.

Paragraph 4(1)(b) of schedule 2 and rules 8(b) and 8(c): requiring employer details from the social worker

25. Engagement with employers is a key part of the regulatory framework. It is essential that social workers send their employer’s details to Social Work England as soon as they are asked to do so for the protection of the public. The 7 calendar day timeframe in rule 8(b) reflects the urgency of the request.

26. Rule 8(c) refers to Social Work England’s powers under regulation 16(4) to suspend or remove a social worker’s registration if they fail to provide information about their employers when asked to do so. If a social worker refuses or, in response to communication from Social Work England, fails to provide employer details without an explanation, Social Work England is likely to start the suspension process immediately. If a social worker fails to respond at all to communication from Social Work England, we will usually try to find out why they have not responded or if they have an alternative contact address.

27. Unless the social worker has refused or failed without explanation to provide their employer’s details, it’s normally preferable to allow the investigators to complete any ongoing investigation before starting the suspension process. This is so that any evidence does not go out of date or become irrelevant in the event that a social worker is removed from the register for not providing employer details and later applies for restoration.

Paragraph 4(1)(c) of schedule 2 and rule 8(d): timeframe for written submissions for the social worker

28. The investigators may decide to allow a longer period than 14 calendar days. This may be the case if, for example, there is an ongoing external investigation by another body and they decide to wait for the outcome of those investigations before seeking comments from the social worker.

29. If the social worker comments at this stage of the fitness to practise process, the investigators may take the comments into account when they’re deciding whether the concerns could result in a finding of impaired fitness to practise. For example, if the social worker’s submission provides satisfactory evidence of remediation that was not available when the triage decision was made, the investigators may decide to refer the concern to the case examiners without gathering further evidence. The case examiners may make a decision about the case or ask the investigators to obtain further information. Another reason for referring straight to the case examiners might be if the social worker’s submission is able to disprove the complaint by showing they were not at work on the day in question, for example. Communication sent to the social worker must explain how any comments they give at this stage may be taken into account.

Paragraph 4(2) of schedule 2 and rule 9: complainant comments

30. The regulations allow the investigators to invite the complainant to comment on the social worker’s submissions. The investigators will normally exercise this option if the social worker’s comments suggest a conflict of evidence on a fact that is potentially key to whether or not the social worker is fit to practise without restriction. Social Work England will always encourage complainants to provide all the information they have at the start of the fitness to practise process. However, complainants should be given the chance to comment if their version of the facts is contested by the social worker, and if the disputed fact is central to the question of fitness to practise. The usual timeframe of 7 calendar days is intended to minimise delay at this stage of the process, but the investigators may extend the time if necessary.

Paragraph 5 of schedule 2 and rule 10: obtaining further information

31. Regulation 32(1)(e) makes it an offence to fail to produce documents when asked to do so by the investigators. The timeframe of 14 calendar days or longer acknowledges the administrative constraints that may affect collation and presentation of the requested material.

Rule 11: invitation to comment at the end of an investigation

32. Paragraph 4(1) of schedule 2 requires Social Work England to notify the social worker of the grounds for investigating their fitness to practise and to give them an opportunity to comment at the beginning of the investigation. Rule 11 gives the investigators an option to ask the social worker for further comments at the end of the investigation to help inform the case examiners’ decision. The investigators may choose to do this if the investigation has found new evidence that may impact upon the nature or seriousness of the concern or on the sufficiency of the evidence. This process may not be necessary if the evidence gathered in the investigation has confirmed the initial grounds for investigating the social worker’s fitness to practise or if it’s obvious after investigation that the case examiners are likely to close the case.

33. Social Work England’s communications sent to the social worker will emphasise that they should provide information and comments as soon as possible so that they may be taken into account when deciding whether or not and how the investigation progresses. They will also make clear that the investigators may decide it’s not necessary to ask the social worker to comment at the end of the investigation before they refer the case to the case examiners. This is why the social worker should not wait for the outcome of the investigation before submitting their comments.

Paragraph 7 of schedule 2 and rule 12: referral to hearing or disposal without a hearing

34. At the end of an investigation, the case examiners must decide whether there is a realistic prospect that the adjudicators would decide that the social worker’s fitness to practise is impaired. If so, they must then decide whether to refer the case to a hearing in the public interest. The public interest includes maintaining the public’s confidence in the social work profession and its regulation.

35. If the case examiners decide to dispose of a case without a hearing, they must decide on the appropriate disposal by referring to Social Work England’s sanctions guidance. The proposed disposal must then be sent to the social worker.

36. The timeframe of 14 to 28 calendar days in rule 12(a) is to allow reasonable time for the social worker to decide whether to accept the proposed disposal without causing undue delay to the case.

37. Rule 12(b) may apply if, for example, the social worker is unwell and cannot respond within the timeframe of rule 12(a) and an extension of time may allow them to recover before responding. It may also apply if the social worker agrees in principle to a disposal without a hearing, but they contest the exact terms of the decision. The case examiners will always work to avoid unnecessary extensions at this stage of the process for the negotiation of the terms and will usually limit the engagement to one round of communication. If the case examiners and the social worker cannot reach an agreement after this round of communication, the case examiners will usually refer the case to a fitness to practise hearing immediately.

38. Paragraph 7(3) of schedule 2 enables the case examiners to notify the social worker of the terms on which they may choose to have the case disposed of without a hearing. This will be included in the notice sent to the social worker under rule 12(a). The terms will normally include that the proposed decision will be published on the register. This is in agreement with regulation 9(2)(b) that requires any advice given or an order imposed on disposal without a hearing to be published on the register.

39. The social worker must agree to the terms of the decision as part of the process of disposing of a case without a hearing. If the social worker disputes any facts that are not directly related to the issue of impaired fitness to practise, the case examiners may choose to amend the terms of the proposed decision. If the social worker disputes facts that are directly related to issue of impaired fitness to practise, the case examiners must, in most cases, refer the case to a fitness to practise hearing. The case examiners must not resolve any conflicts of evidence that are directly related to the question of whether the social worker’s fitness to practise is impaired.

40. If the social worker does not intend to practise again, the case examiners may take this into account when deciding what disposal to propose. If the social worker applies in writing for voluntary removal on completion of the fitness to practise proceedings, it may be appropriate to propose disposal with a finding of impairment but with no further action. Before proposing such an outcome, the case examiners must be satisfied that the social worker does intend to leave the profession permanently and that a hearing is not required in the public interest. Case examiners may choose to ask investigators to get a further statement from the social worker before proposing this outcome, except in cases relating to the social worker’s health.

Paragraphs 8 and 11 of schedule 2 and rule 13: interim orders

41. Case examiners may refer a case to the adjudicators to decide whether or not to impose an interim order while the fitness to practise process continues. If the case goes to a hearing, the adjudicators themselves may decide to impose an interim order.

42. The regulations require the adjudicators to give the social worker notice of the proposed interim order and to allow the social worker an opportunity to make written representations or to attend before the adjudicators and be represented to make oral submissions.

43. In most cases, the adjudicators will give the social worker at least 7 calendar days’ notice of the date they propose to make the interim order. However, they may give shorter notice if they consider it necessary to protect the public. This is likely to happen if exceptionally serious concerns are raised or if the adjudicators consider it necessary to make an order during a fitness to practise hearing, for example if the hearing is likely to end part-heard.

44. When the adjudicators are making a final order, they may make an interim order and are not required to give notice of the proposed order.

45. Rule 13(c) allows cases to be disposed of by means of a meeting rather than a hearing but only if the social worker does not request a hearing. 

Fitness to practise hearings

Paragraph 10(2) of schedule 2 and rules 14and 15: notice of a fitness to practise hearing

46. Rule 15 means that different timeframes can be given for issuing notices of hearings to the social worker depending on the situation. For example, cases involving criminal convictions are given a shorter timeframe to reflect the relatively narrow issues to be determined by the adjudicators.

47. The rules do not make any specific provisions for the notice of a hearing to include the disclosure of evidence. This is covered by general principles of fairness in any quasi-judicial processes. Under these principles, the social worker is entitled to receive copies of the evidence relevant to the concern before the hearing.

48. Rule 15(b) means that the adjudicators must send the social worker a statement of case that outlines the facts on which the case is based on. The statement of case should clearly set out:

  • the reasons for referring the case to a fitness to practise hearing
  • any areas where the facts are disputed and where adjudication is needed
  • the basis on which it is alleged that the social worker’s fitness to practise is impaired.

The statement of case will usually be based on the case examiners’ decision, updated by the adjudicators to reflect any developments in the case after case examiners’ referral to a hearing.

Paragraphs 14 and 15 of schedule 2 and rule 16: review of orders

49. Rule 16(b) means that a short notice period for a review hearing is allowed in exceptional circumstances where it may be necessary to change the order urgently. For example, if we receive new information that a social worker is breaching their conditions of practice in a way that puts the public’s safety at risk.

50. Rule 16(c) is likely to apply if the likely outcome of the review is non-contentious, for example in reviews of interim orders while an investigation is continuing.

51. Reviews can be conducted by Social Work England employees assigned and trained for the purpose or by the adjudicators. In cases where the proposed decision to review and extend the order is accepted by the social worker, Social Work England employees will conduct the review. Social Work England employees may also direct a final order to lapse where it was imposed for public interest reasons only and if there has been no new adverse or concerning information received since the order was imposed. We will refer all other cases to the adjudicators to review.

Rule 17: meetings

52. When we refer to meetings, we mean the consideration of a matter in private on the basis of documents alone and in the absence of the parties. This rule allows members of staff or adjudicators to make decisions on cases in meetings by electronic means, such as telephone, video or other technology that allows verbal interaction, for efficiency. Meetings may only be held if there is no evidence to be heard and if the social worker has not exercised their rightto a hearing.

Regulation 15 and rules 18-24: restoration after removal order

53. These rules are under regulation 15(11). They outline in detail the information needed to support an application for restoration to the register after a removal order.

54. Under regulation 15(4), a person may not submit an application for restoration until at least five years after the date on which they were removed from the register. We must reject any application that is submitted early or does not comply with the requirements of rule 18.

55. Regulation 15(3)(a) means that we must refer an application to the adjudicators for a decision. Rule 34, panel membership, applies to restoration hearings or meetings.

56. Under regulation 15(4)(b), if an application for restoration is rejected, the social worker cannot submit a new application until 12 months after the date on which their last application was submitted.

57. Rule 23 sets a timeframe within which the restoration application must normally be determined. This is so that the minimum periods for which removal orders must apply is not unduly and artificially extended by Social Work England.

58. Rule 24 allows the person making the application to withdraw it before it is heard. This is so they can preserve their right to submit a new application rather than be prevented from so doing for 12 months if their application is determined and rejected.

Rules 25 to 30: case management

59. These rules are intended to help everyone involved manage the hearings process efficiently. They allow members of staff and adjudicators to narrow down the issues in a case to those that remain in dispute. They allow for applications that might have been made at the hearing, such as that a witness should be treated as vulnerable or that evidence be given by video-link, to be determined ahead of the hearing. The rules also support the production of a reliable timetable for the hearing in general and more specifically for witness attendance. The rules outlined for disclosure of evidence, witness statements, and skeleton arguments apply equally to both Social Work England and the social worker.

60. Social workers have a professional obligation to assist and engage when concerns are raised about their fitness to practise. The case management rules reflect this professional duty. Social Work England must act fairly and transparently in how it brings its case.

61. Rule 29 confirms that case management directions are normally binding on the subsequent hearing unless there has been a change of circumstances that invalidates the previous directions or it is no longer in the interests of justice for the relevant direction to be enforced. Although this is possible, it does not happen often. A disagreement with a previous direction would not normally be enough for it to be overturned.

Rule 32: procedure at hearings and meetings

62. The rules state that hearings must be conducted fairly, but other than that, the management of hearings procedure is at the discretion of the adjudicators or the assigned Social Work England employee(s) determining the case.

63. There are some matters that can be considered and decided by the adjudicators or Social Work England employees before the hearing. These matters include:

  • the admissibility of evidence
  • the content of evidence bundles
  • conflicts of interest
  • whether witnesses need to be called
  • whether some or all of the proceedings should be in private
  • any other legal points that may affect the course of the hearing.

For efficiency, it is usually preferable for adjudicators and Social Work England employees to resolve these issues before the hearing formally opens.

64. Conducting the proceedings in a fair manner must encompass the usual format for proceedings of any quasi-judicial process. Rule 32(c) sets out the sequence of stages that must be followed, subject to the discretion of the adjudicators or member of staff to vary the procedures if fair to do so.

For hearings the sequence will normally be as follows:

65. It is the responsibility of Social Work England to prove the case. Social Work England must therefore first bring its case including by calling witnesses where necessary. Social Work England may be represented by a legally qualified person and/or by a member of staff.

66. Witnesses are required to take an oath or affirmation when giving evidence. They may be cross-examined by the social worker or their representative. The adjudicators may also ask the witness questions.

67. At the conclusion of Social Work England’s case, and before hearing from the social worker, the adjudicators may determine of their own motion or on application of the social worker whether sufficient evidence has been brought on which disputed facts are capable of being found proved and/or whether those facts on which there is sufficient evidence are capable of supporting a finding of impairment. The adjudicators may refuse to hear an application from the social worker at this stage if they are of the view that there is sufficient evidence on which the facts and impairment are capable of being found proved.

68. If a case is not closed at this stage, the adjudicators will proceed to hear the social worker’s case. The social worker may call witnesses to provide evidence who may be cross-examined by Social Work England’s representative. The adjudicators may also ask the witnesses questions.

69. After the social worker has put forward their case, each party may be invited to make closing submissions on any facts that remain in dispute.

70. The adjudicators will then make decisions regarding any disputed facts and provide reasons for their decision.

71. Unless the adjudicators are of the view that the facts found proved could not support a finding of impairment, they must proceed to invite submissions on impairment. They may first ask the social worker to indicate whether, in the light of the facts found proven, they admit that their fitness to practise is impaired. If they admit impairment, or if the adjudicators consider that the facts found proven make a finding of impairment inevitable, the adjudicators may proceed to hear submissions from Social Work England and then the social worker on both impairment and sanction together and may issue one determination covering both questions. Otherwise, the adjudicators will normally hear submissions on impairment and then, if they find impairment, on sanction.

72. Regulating their own procedures means that the adjudicators may postpone or adjourn the fitness to practise hearing at any stage before making a decision on the case. This may be for any reason as long as it is fair to all parties to do so.

73. Paragraph 10(5) of Schedule 2 enables the adjudicators to require the investigators to obtain further information or submissions relevant to the fitness to practise hearing. This may result in postponement or adjournment of the fitness to practise hearing.

Rule 33: legal advice at hearings

74. This rule states that legal advice must be available at interim order hearings, fitness to practise hearings, and hearings to consider applications for restoration. This advice must be given by a legally qualified chair or an appropriately experienced solicitor or barrister.

Rule 34: panel membership

75. This rule states that at the very least, a panel must consist of a lay adjudicator (an adjudicator with no direct social work experience) and a professional adjudicator (an adjudicator with direct social work experience). The chair of any hearing or meeting must be a lay person and have no direct social work experience.

76. Other than the mandatory members, the rule gives Social Work England the flexibility about the composition of panels. In practice, Social Work England will normally assign three people for substantive new concerns at a fitness to practise hearing and two people for less complex issues such as interim orders and most review hearings or meetings. A 3 person panel must include at least one registrant social worker.

Rule 35: previous history

77. This rule states that a previous adverse finding may be taken into account when making decisions at any stage of the fitness to practise process. The purpose of the rule is to support our primary objective to protect the public. It allows us to make a decision that takes into account any and all information that may be relevant to the facts of the case and whether those facts may amount to impairment of fitness to practise.

78. The decision makers must be satisfied that it is fair and reasonable to take into account previous history at the relevant stage of the proceedings. If the adjudicators are making a decision about disputed facts, it will normally only be fair to hear about previous history at this stage if the social worker denies a tendency to act in the way they’re being accused of acting but their history suggests otherwise. Rule 35(c) requires a party to make an application for previous history to be introduced at the facts stage. Otherwise, previous history will not be made known to the adjudicators until after they have made their decision on whether or not the facts have been proven.

Rule 36: health assessment

79. The purpose of a health assessment is primarily to establish the extent to which a current health condition is impairing a social worker’s fitness to practise. In other words, it is not to find out whether or not the social worker is unwell, but rather the extent to which the ill-health affects their fitness to practise safely.

80. The rule allows a minimum level of assessment to be carried out by one registered medical practitioner of Social Work England’s choosing. If the social worker accepts the request to undergo assessment, we will select a registered medical practitioner suitable for the presenting health condition. Nothing in this ruleprevents agreement between Social Work England and the social worker that, for example, a second medical practitioner is instructed to assess the social worker, selected by Social Work England or nominated by the social worker. The intention of this rule is that the health assessment process should be the least onerous possible to the social worker while still fulfilling our primary objective of protecting public safety.

Rule 37 and 38: attendance of the public at hearings

81. Hearings will normally be held in public but there are important exceptions to protect individuals and to help deliver the primary purpose of the proceedings.

82. There are well-established protocols for protecting vulnerable witnesses in judicial proceedings and these rules makes sure those protocols apply to our fitness to practise hearings. There are also protections for if the hearing involves confidential information about the health of the social worker.

83. Beyond this, many members of the public are unfamiliar with, and understandably anxious about, giving evidence in public. In our hearings, this evidence may be about deeply personal and sensitive issues that the witness would not choose to speak about in public. This can negatively affect the quality of the evidence given, and in extreme cases, may mean the witness refuses to give evidence at all.

84. The purpose of a hearing is to conduct a fully comprehensive inquiry into the concerns raised about the fitness to practise of a social worker. Anything that could inhibit the panel from conducting such an inquiry is a risk to the public interest. These rules allow the panel to hear evidence in private where it considers it appropriate to do so, including with regard to the public interest in the panel receiving all relevant evidence. The wishes and concerns of potential witnesses will be particularly relevant to whether a panel decides to conduct some or all of the proceedings in private.

85. Whether or not proceedings are in private, all decisions must be published along with sufficient reasoning to allow anyone not present at the hearing to understand what the decision was and why it was made.

Rule 39: recording of proceedings

86. This rule means that we must make sure the proceedings are recorded so a transcript can be produced if needed. The purpose of the rule is to allow audit and quality control both internally and by the Professional Standards Authority or in appeals, and to support the complainant’s direct interest in the course of the proceedings.

87. When requested, the timing of when Social Work England may supply a transcript on request may depend on the application of wider legal principles. For example, we would usually have to defer meeting a complainant’s request for a transcript where the complainant is a witness and they have not yet given their evidence. For this reason, the rule does not specify a timeframe for providing transcripts.

Rules 40 to 42: representation

88. ‘Professional organisation’ in rule 40(b) includes trade unions. Rule 40(c) entitles those conducting a hearing to exercise discretion in who might represent a social worker. They might use this discretion if it appears that a person is conducting, or will conduct, themselves in a way that threatens the effective and efficient management of the hearing, for example.

89. Rule 42 confirms the legal principle about the circumstances in which an alleged victim of a sexual assault may be cross-examined by the social worker and when they may not.

Rule 43: absence of the social worker

90. The regulations give the social worker the right to attend their hearing. This must be balanced by the need to dispose of cases quickly and efficiently in the public interest. This rule means that the proceedings may continue if the social worker fails to attend despite any earlier indication of a wish to attend, provided service of the notice has been properly effected.

Rules 44 to 46: service

91. These rules state that our preferred method of communication with all registered social workers is by Social Work England’s secure online account. This is a safer means of sending confidential information directly to the social worker than by registered mail. With registered mail there is a chance documents are left unattended and could be accessed by people other than the social worker.

92. The rules state that confirmation of postage is required whether information is sent electronically or by post. The rules reflect case law in that our responsibility is to evidence the sending of formal notices and documents to an effective address. The rules do not state that Social Work England is required to prove that the communication has been received by the social worker. It is therefore the social worker’s responsibility to make sure Social Work England has an upto date address where all communications concerning the social worker’s registration, including relating to fitness to practise, can be sent.

93. Rule 46 allows the social worker to nominate a suitable person to receive communications on their behalf. This increases the range of options for fitness to practise communications to be effectively delivered to the social worker.

Rule 47: eligibility to act as an investigator, case examiner or adjudicator

94. This rule references the Rules about the appointment of advisers and the Rules allowing the suspension or removal of advisers from office.

95. Rule 47(b) makes sure the rules on panel membership are followed and that the balance of lay and professional decision-makers is maintained.

Regulation 9 and rules 48 to 50: period for which information must remain on the register

96. Any finding of impairment and any final order, warning, or advice given as a result of such a finding must be published on the register. The same goes for any final order, warning or advice given by the case examiners without a hearing. Regulation 9(5)(a) and (6) means that the rules must state the period of time final orders must stay on the register after their expiry. Regulation 9(5)(b) and (6) means that the rules must state the period of time warnings or advice given after a finding of impairment should stay on the register.

97. Case examiners may also issue warnings or advice if they decide that there is no realistic prospect the adjudicators would find the social worker’s fitness to practise impaired. Adjudicators may also issue warnings or advice if they find the social worker’s fitness to practise is not impaired. However, these outcomes are not published.

98. Rule 48 gives time periods of 1, 3 or 5 years as options for how long advice or warnings after a finding of impairment must stay on the register. These periods support proportionate decision-making according to the seriousness of the concern. The three options are intended to avoid the potentially disproportionate effects of a one-size-fits-all approach, while also reducing the risk of inconsistency that could come from an open-ended range of timeframes.

99. Rule 49(a) is taken from regulation 9(3) which allows us to publish any information we consider appropriate on the register. This rule is based on the principle that it is in the public interest to publish on the register information about a previous removal order if the social worker successfully applies for restoration.

100. Rule 50 states that if the fitness to practise process ends with no finding of impairment, or if the impairment was related to the social worker’s health, there are no grounds to publish information about sanctions after the expiry of the given order.

Glossary

Adjudicator

A person who is not a member of Social Work England’s staff, who is appointed to make decisions on interim orders, final orders, reviews of orders or applications for restoration.

Case examiner

A person appointed by Social Work England to undertake the role of case examiner, with responsibility for making decisions about whether to refer concerns to an interim orders panel, whether to direct the investigators to obtain more evidence in the case, and disposal of cases at the conclusion of an investigation.

Complainant

A member of the public who, in a private capacity, raises a concern with Social Work England about the fitness to practise of a social worker.

Investigator

A person appointed by Social Work England to undertake the role of investigator, with powers to obtain evidence relating to a concern about a social worker’s fitness to practise.

Regulations

The Social Workers Regulations 2018 which set out the legal framework within which Social Work England must operate its fitness to practise procedures.

Rules

The Social Work England Fitness to Practise Rules 2019 which follow the requirements of the regulations to specify the details of how the fitness to practise procedures must be operated.

Triage officer

A member of Social Work England’s staff assigned to decide whether there are grounds to open an investigation into a social worker’s fitness to practise.

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