Referral for consideration of an interim order

Last updated: 16 December 2022

Contents

• About this guidance
• Who is this guidance for?
• How and when are referrals for interim orders made?
• Factors affecting decisions to refer
• Decision options
• New information requiring a new decision

About this guidance

The Social Workers Regulations 2018 (as amended) (‘the regulations’) give us (Social Work England) the power to restrict or suspend a social worker’s registration while a fitness to practise investigation is in progress.

An interim order can be imposed by adjudicators if they consider it (either of the following):

• necessary to protect the public
• in the best interests of the social worker
  

Who is this guidance for?

This guidance is intended primarily for those acting on behalf of the regulator (‘the decision maker’). They can use this guidance when deciding whether they should refer a case for an interim order application to be considered by adjudicators, at any stage before a final hearing has started.

This guidance may also be useful for (any of the following):

• social workers
• employers of social workers
• fitness to practice case examiners and adjudicators
• Social Work England staff
• people with lived experience of social work
• the public
  

How and when are referrals for interim orders made?

We will make a referral for an interim order if (one or both of the following apply):

• we consider it necessary to protect the public
• we consider it to be in the best interests of the social worker

We can initiate an interim order referral (in either of the following ways):

• on our own volition
• following recommendations made by our investigators or case examiners

When deciding whether to refer a case for an interim order, the decision maker must determine whether there are grounds for the adjudicators to consider putting an order in place. The decision maker should bear in mind that this is not the same as deciding that an interim order should be imposed.

The decision maker should consider whether an interim order may be (either or both of the following):

• necessary for the protection of the public
• in the social worker’s best interests

When we make a referral for an interim order, we must appoint at least 2 adjudicators to consider the referral. These adjudicators will hold a hearing or meeting. During this hearing or meeting, they must decide whether an interim order is necessary to protect the public, or in the best interests of the social worker.

Factors affecting the decision to refer

Decision makers should consider all the following factors when deciding whether to make a referral:

• How serious is the risk to the public if the social worker is allowed to practise unrestricted while the concern is investigated?
• Will public confidence be seriously damaged if the social worker holds unrestricted registration while the concern is investigated?
• Is it in the social worker’s best interests to hold unrestricted registration?

We will now go into more detail about each of these factors.

How serious is the risk to the public if the social worker is allowed to practise unrestricted while the concern is investigated?

The protection of the public is our overarching objective. Decision makers should take this into consideration when deciding whether to make a referral for an interim order. The objective has 3 elements:

• 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

The level of risk will be determined by considering (all of the following):

1. the seriousness of the fitness to practise concerns
2. the nature of the evidence obtained so far
3. the likelihood of further concerns or incidents occurring while the concerns are investigated

1. The seriousness of the fitness to practise concerns

Decision makers will gauge the seriousness of the concerns using the same criteria used to decide whether to make the referral for an interim order in the first place.

They will consider whether an interim order may be (either of the following):

• necessary to protect the public
• in the social worker’s best interests

The following are some examples of types of concerns that are likely to be considered serious enough to warrant referral for an interim order.

Serious concerns about the social worker’s standard of practice

These might arise when a concern suggests that the social worker’s knowledge or skills fall seriously below an acceptable standard. These may indicate that there is a significant and ongoing risk to the public and/or people receiving social work services. The concern might be about a series of incidents, or about one particularly serious failure.

Breaching professional boundaries

Allegations that a social worker has seriously breached professional boundaries will likely be serious enough to be referred for consideration of an interim order. Examples of breaching professional boundaries that are likely to be serious enough include (any of the following):

• engaging in predatory behaviour
• the social worker using their professional position to pursue an inappropriate relationship with a service user
• sexualised behaviour (whether by acts or words designed to arouse or gratify sexual impulses and desires), including the pursuit of a sexual relationship with a service user
• engaging in an inappropriate emotional or financial relationship with a service user (especially where this was for exploitative motives)

Other serious concerns

There are some types of concerns that are regarded as a serious failure to meet the standards required of social workers. If proven, these cases are particularly likely to result in a finding of impairment.

Examples include but are not limited to (any of the following):

• sexual misconduct
• violence
• serious dishonesty
• abuses of trust
• discrimination involving a protected characteristic
• knowingly practising as a social worker without registration

Allegations of this type are serious. However, referral for an interim order in cases of this nature is not necessarily inevitable in every instance. Whether or not a referral is required in these cases will depend on the individual circumstances of each case, and the risk posed by the social worker.

If the conduct is alleged to have been perpetrated against a service user (or in the course of the social worker’s practice), the concerns are likely to meet the seriousness threshold to warrant an interim order referral. This is because this may suggest there is a risk of harm to service users and/or the public by the social worker continuing to practise without restriction.

Examples of instances where a referral for an interim order will be likely include but are not limited to (any of the following):

• sexual misconduct
  • convictions for sexual offences
  • allegations of sexual misconduct directed towards service users
  • allegations of predatory behaviour such as contacting service users using details from case records
  • sexual harassment of colleagues and/or making inappropriate comments of a sexual nature in the workplace
• violence
  
  • allegations of engaging in physical altercations with service users, their carers or relatives with the intention of causing harm or reckless to causing harm
• serious dishonesty
  
  • allegations of theft from or of defrauding people who use social work services, their relatives or carers
  • allegations of falsifying case records such as falsely recording that a safeguarding referral has been made or a statutory visit undertaken
  • allegations of submitting inaccurate or misleading information in a CV or job application

If the alleged conduct is unrelated to the social worker’s practice (for example, allegations of defrauding members of the public rather than people who use social work services), the risks associated with repetition of the conduct will not usually be a relevant consideration. In cases of this nature, the key question will need to be whether public confidence would be damaged if the social worker continued to hold unrestricted registration while the fitness to practise investigation is ongoing.

This is considered in the section dealing with public confidence below.

Concerns about a social worker's health

When considering seriousness in relation to concerns about a social worker’s health, our regulatory function does not extend to managing (any of the following):

• a social worker’s health condition
• their treatment plan
• the impact of the health condition on them personally

We must instead focus on considering (both of the following):

• the way in which the health condition may result in a risk of harm to the public
• where the social worker practising without restriction may in turn result in a risk of harm to the social worker

When deciding whether to make a referral for an interim order, decision makers should ask themselves the following questions:

• Is there a serious risk to service users because of a social worker’s unmanaged health condition?
• Does the social worker have sufficient insight to limit their practice to satisfactorily mitigate this risk?
• Is this insight likely to be maintained or is there a risk of lack of insight arising from a high-risk of relapse of the health condition?
• Is the social worker engaging with their employers to limit their practice appropriately?
• Is the social worker engaging satisfactorily to keep us informed of their health status?
• Is the social worker engaging with their medical professionals to limit their practice appropriately?

A social worker refusing to undergo a health assessment is not of itself a basis for referral for an interim order. But it may be relevant when considering the level of insight that the social worker has into their health condition (especially if accompanied by a refusal to limit their practice voluntarily).

Decision makers may need to consider medical evidence when considering the risk of relapse and associated lack of insight in serious health conditions. This can include (either or both of the following):

• evidence from the social worker’s GP
• expert medical evidence

Read more about health cases in our health concerns guidance.

Concerns about a social worker's language skills

Decision makers are likely to consider a referral for an interim order if (both of the following apply):

• a social worker has failed to attain the necessary scores in a recognised English language assessment
• they have other accompanying evidence of poor performance

Decision makers should consider the extent to which the language deficiency may be putting service users at risk. For example, evidence that the social worker has been unable to engage effectively with other professionals responsible for service users’ care is a concern.

Other factors that decision makers should take into account are:

• whether the English language assessment scores fell well below the required standard
• whether the social worker is refusing to adjust their practice to mitigate the risks associated with their language deficiency

A refusal by a social worker to undergo language assessment is not of itself a basis for referral for an interim order. The test for referral depends on the level of risk posed to service users by the social worker’s language deficiency if allowed to practise without restriction.

Concerns about breaches of Social Work England orders

If a social worker has allegedly breached any of the conditions of a conditions of practice final order, this may point strongly towards the need for an interim order referral. However, it is not of itself necessarily a basis for referral. Decision makers must still assess (all of the following):

• the seriousness of the alleged breach
• whether the breach poses a risk to the public
• whether referral is needed in the social worker’s best interests

2. The nature of the evidence obtained so far

The purpose of an interim order hearing or meeting is to (do both of the following):

• review the available evidence
• assess the current and future risk to the public if the social worker is allowed to work without restriction while the concern is investigated

The purpose is not to decide whether the concern being investigated is true.

This means before imposing an interim order, adjudicators should be satisfied there is some evidence to support the concern and the assessment of its seriousness.

Before making a referral, decision makers should consider (all of the following):

• the quality and nature of the evidence available
• whether there is sufficient evidence to support the concern
• the assessment of the concern’s seriousness
• the possibility that in some cases, further investigation may cast doubt on evidence already obtained

When assessing the overall nature of the evidence, the decision makers should consider these 3 factors:

• the source of the evidence
• the accuracy of the information and whether it is sufficiently clear for the social worker to understand the concern
• the nature of any evidence that supports/corroborates the concerns being raised

Evidence from an identifiable source

Evidence that comes directly from an identifiable source is likely to be more reliable than evidence from an indirect or unknown source. This is because, if the evidence from a witness is subsequently disputed at a hearing, it will rarely be fair to rely solely and decisively on hearsay evidence to support the concern.

For example, if there is an allegation of a sexual relationship between a service user and a social worker, an account from the service user is more reliable than from someone who the service user allegedly told about the relationship. This does not mean a formal witness statement from the service user is necessarily needed to make an interim order referral— a direct account is likely to be sufficient if it’s in the service user’s own words.

In circumstances where information is received from a reliable source, such as an employer or safeguarding authority, about a serious concern under investigation it will not always be necessary to seek supporting evidence or wait for findings to be made before escalating the matter for consideration of an interim order. There should, however, be sufficient information to assess whether the social worker may pose a risk to the public or that an interim order may be in their best interests.

Being charged with a criminal offence

When a social worker has been charged with a serious criminal offence, this is likely to be sufficient for the decision maker to consider an interim order, even if the underlying evidence is not available to us yet. This is because the prosecution services have made an independent decision applying a higher evidential threshold and it is therefore reasonable for us to rely on their assessment of the evidence.

The fact of police involvement on its own is unlikely to be sufficient to establish a case unless (either or both of the following apply):

• there has been a charging decision
• we have some information about the underlying evidence to support the concerns being investigated

The decision maker will need to consider whether:

• the offence raises direct public protection issues
• the offence is of high public interest
• the offence raises a risk of harm such that a restriction on registration is necessary
• whether such restriction will serve any purpose

If the offence does not raise a risk of direct harm to service users, it needs to be serious to cross the threshold on the public interest basis alone.

The accuracy of the information and whether it is sufficiently clear for the social worker to understand the concern

If the available evidence is vague, the social worker may not be able to respond to it in any detail. If this is the case, it may not be fair for us to rely on the evidence.

For example, where there are concerns raised about a social worker’s record keeping, evidence of an audit or the service user records themselves will help the social worker to understand and respond to the specific concerns. Evidence that simply refers to the overall record keeping difficulties is unlikely to be enough.

The nature of any evidence that supports or corroborates the concerns being raised

The adjudicators cannot (and should not) seek to decide the credibility or merits of a disputed allegation or to decide the facts. However, they can discount evidence that is inconsistent with objective evidence, or which is clearly unreliable. [1]

[note 1] Perry v NMC [2013] EWCA Civ 145 at paragraph 20

3. The likelihood of further concerns or incidents occurring while the concern is being investigated

When making a referral for an interim order, the decision maker should be satisfied that (both of the following apply):

• there is a real risk of repetition of concerns of a serious nature
• immediate action to restrict a social worker’s practice is necessary

The likelihood of further concerns may be affected by any local measures in place. These could be employment related (for example, restrictions or supervision) or imposed bail conditions.

Decision makers will need to assess (all of the following):

• whether such measures cover all of the social worker’s practice
• whether the measures are sufficient to address the risks we have identified
• what safeguards are in place to make sure that (both of the following apply):
  • the social worker will comply with those local measures
  • we would be made aware of any changes to those restrictions (such as lifting or varying bail conditions)
• the practicality and reliability of any local measures in circumstances where the social worker moves between organisations and/or works for more than one organisation at a time
• the social worker’s compliance or non-compliance with any previous local restrictions
• whether the social worker has a history of similar concerns

The more serious a concern, the less likely it may be reasonable to rely on the social worker’s assurances about practice intentions when considering whether to refer for an interim order.

The social worker’s previous fitness to practise history (including compliance with any previous conditions or sanctions) may also be relevant to the question of how appropriate it is to rely on assurances about the social worker’s practice intentions.

Will public confidence be seriously damaged if the social worker holds unrestricted registration while the concern is investigated?

In cases where the social worker is alleged to pose a direct risk of harm to service users, it’s likely that public confidence will be damaged if an interim order referral is not made. However, there are cases where a risk of harm to service users is not identified. In these cases, the decision maker needs to consider whether a referral should be made on the grounds of public interest alone.

In most cases, the public interest is satisfied by the proper investigation and adjudication of regulatory concerns by the regulator in accordance with the Fitness to Practise Rules. Cases should not be referred for an interim order in circumstances where it would simply be desirable for an interim order to be imposed, rather than necessary for the protection of the public or in the public interest.

Referring a case for an interim order on public interest alone is likely to be relatively rare and most commonly happens when the social worker is facing a serious criminal charge or other serious alleged misconduct in their professional or private life.

Criminal investigations

If a social worker has been charged with a serious criminal offence, this may point towards us making an application for an interim order.

When assessing if public confidence will be damaged in a case where there is a criminal investigation taking place, decision makers should consider (all of the following):

• the current stage the criminal investigation has reached (For example, is it pre or post charge?)
• the seriousness and the nature of the alleged offence (For example, could it attract a custodial sentence?)
• the cogency of evidence to support the alleged offending. There may be little or no evidence available in support of the alleged offending at the pre-charge stage of the police investigation
• the current risk to the public

Decision makers must also consider that case law has set a high bar for such orders. For example, the case of Bawa-Garba v GMC [2015] EWHC 1277 (QB)) found that ‘the mere fact of a criminal charge, even a serious one, does not automatically mean suspension is necessary or appropriate; there is a judgement to be made’.

On the other hand, another relevant question is ‘would an average member of the public be shocked or troubled to learn if there is a conviction in this case that the [practitioner] had continued to practise while on bail awaiting trial?’ (NH v GMC [2016] EWHC 2348 (Admin)).

Decision makers should always bear in mind the legal principle that an individual is innocent until proven guilty.

At what point during a criminal investigation will a case be referred for an interim order?

The point in a criminal investigation at which it may be appropriate to refer for an interim order may vary. It will depend on the circumstances of the case.

The fact that a social worker has been arrested in connection with a serious criminal offence may not require an interim order referral to be made. This is because at this stage there has not yet been any decision made by a prosecuting authority (for example, the Crown Prosecution Service) that there is cogent evidence to support a criminal charge.

However, there may be some circumstances where a referral can be made at arrest stage, because there is otherwise cogent evidence to support serious fitness to practise concerns (regardless of whether the case leads to a criminal charge or not).

For example, if the social worker as part of the police interview admitted to having a sexual relationship with a service user, this may not result in a criminal charge if the person was over the age of consent. However, we may decide to take this forward as a fitness to practise case irrespective of criminal charge.

Inclusion on a barred list

If a social worker has been included on a barred list by the Disclosure and Barring Service or the Scottish Ministers in the children’s list or the adult’s list of the Protection of Vulnerable Groups (Scotland) Act 2007, this may suggest an interim order referral is appropriate.

A barring decision will prevent the social worker from working with adults, children or both. While the barring decision may mitigate the immediate risk the social worker poses to service users, inclusion on a barred list appears incompatible with continued registration and practice from a public interest perspective.

Other types of concern

Other concerns that may warrant a referral for an interim order on public interest grounds may include serious abuses of professional position, whether or not they represent a direct risk to individuals. Examples might include (but are not limited to):

• financial impropriety causing a significant loss of public funds
• concerns arising from discrimination in relation to characteristics protected by law

There may be some cases in these instances where there is no current risk to the public. For example, because the social worker has completely removed themselves from practice, but where the concern involves serious harm to a service user. Such exceptional cases may warrant interim order referral on public interest grounds alone.

The key question for decision makers is: ‘Would public confidence be seriously damaged if the social worker holds unrestricted registration while the concern is investigated?’ This is different to the question of whether public confidence would be damaged if we did not impose a sanction at the end of the investigation, assuming the concern is proven. Decision makers should identify the reasons why an interim order may be needed, bearing in mind the different purposes of an interim and a final order.

Is it in the social worker’s best interests to hold unrestricted registration?

A referral in the social worker’s best interests may be needed if (either of the following apply):

• the social worker is practising unrestricted and as a result is placing themselves at risk of harm
• there is a risk that their professional judgement may be impaired

This is likely to arise most commonly where the social worker lacks insight into the risk they pose to the public while they are under investigation. Examples include but are not limited to (any of the following):

• if the social worker has a health condition and is unable or unwilling to restrict their practice in a way that provides adequate public protection
• if a social worker with apparent serious physical or mental health problems may be at risk of self-harm or causing harm to others if they are allowed to continue to practise without restriction
• if there is evidence of a lack of insight into the extent of their own practice failings to the extent that an interim order is necessary to protect the social worker against further concerns being raised

Decision options

When considering whether to make a referral for an interim order, the decision maker may choose (one of the following):

• to refer the case to adjudicators for an interim order application to be considered
• to decide that it is not necessary for a referral to be made on the evidence currently available
• to decide that further information is required before a decision is made
  

If a decision is made to refer

If they choose to refer the case for an interim order, the decision makers should identify (all of the following):

• the specific concerns/allegations that they have identified that require an interim order application
• the grounds on which the interim order application will be made out of one or both of the following:
  
  • public protection (including the wider public interest)
  • best interests of the social worker

Decision makers should identify and record each factor that points towards or away from referral.

New information requiring a new decision

Risk assessments are conducted regularly throughout the course of the investigation and whenever significant new information is received. This means that a decision maker may need to consider whether a referral for an interim order is required multiple times throughout a case.

When new information is received which suggests a change in the risk status of a case, decision makers should always consider the extent to which the social worker is engaging with the regulator as part of the overall assessment. In circumstances where engagement is strong, perceived changes in risk may be sufficiently addressed through targeted enquiries rather than referral for an interim order. For example, in circumstances where evidence is received regarding a relapsed health condition, it may be appropriate to seek information from the social worker in the first instance about how that condition is being managed.

If there have been previous decisions not to apply for an interim order

Before considering whether to make a referral for an interim order, decision makers should carefully review the documented history of risk assessments on the case.
In cases where a decision has been previously made not to refer a concern for an interim order, a fresh decision may be required when new information is received that changes the assessment of risk.

A new referral decision may be required in a case where adjudicators have previously considered an interim order application and chose not to impose the order. This may happen if new information is available that may affect the assessment of risk conducted by the adjudicators.

The decision makers should carefully consider the decision previously made by the adjudicators. They should consider whether the new information is likely to affect their previous assessment of risk. The new information must not be information that was available to the adjudicators at the time of the original interim order decision.

Reviews of an existing interim order

Once we have imposed an interim order, we should consider any new information received as part of the review of the existing interim order.

Interim orders must be reviewed regularly to make sure that they are still necessary for the protection of the public or in the best interests of a social worker. Where there is already an interim order in place, the investigators will continually review whether the current order remains appropriate. New information gathered as part of the investigation might suggest that a current conditions of practice order needs to be changed or replaced with a suspension order, to meet changing circumstances or a new perspective on the seriousness of risk.

New information might also suggest that an order may no longer be necessary or that a suspension can be changed to a conditions of practice order. An interim order will automatically lapse if the case examiners conclude there is no realistic prospect of a finding of impairment. But it may be fair to the social worker to organise an interim order review hearing to remove an order as soon as it becomes apparent the order is not needed rather than to wait for the fitness to practise process to finish.

No interim order should remain in place longer than is necessary to protect the public or in the social worker’s best interests.

Applying for an early review of an existing interim order

If new information is received that could change the seriousness of the risk identified, we will consider an early review. This is relevant both where the risk increases or decreases.

The social worker or Social Work England can apply for an early review at any time, but we will decide if an early review is necessary.

Further information is available in our early review guidance.