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Referral for an interim order

This guidance supports investigators and case examiners to decide whether to invite the adjudicators to consider making an interim order.

Referral for an interim order

Last updated: 25 November 2019


Introduction

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

An interim order can be imposed by adjudicators if they consider it necessary to protect the public or it is in the best interests of the social worker. This guidance supports investigators and case examiners to decide whether to invite the adjudicators to consider making an interim order.

How and when are referrals for interim orders made?

Referrals for interim orders are made by the case examiners. Investigators must refer a case to the case examiners if, at any time during their investigation, they consider that an interim order:

‘...may be necessary for the protection of the public or in the best interests of the social worker.’ (Schedule 2 paragraph 5(4)(a) of the regulations)

If the case examiners agree with the investigators that an interim order may be necessary, the regulator must appoint 2 or more adjudicators to consider whether to make an interim order. In addition, at any time they are considering a concern under the fitness to practise procedures, the case examiners or the adjudicators may refer the case for an interim order hearing or meeting if they consider it may be necessary to make an interim order on the grounds above. An Interim order can be made by way of a hearing or, in certain circumstances and in accordance with Rule 13(c), by way of a meeting.

A meeting may be held by means of electronic communication. Adjudicators may also make an interim order on these grounds after making a final order.

The criteria for making an interim order

An interim order hearing or meeting must decide, after balancing both the interests of the public and the social worker, whether an interim order is necessary to protect the public or is in the best interests of the social worker. When deciding whether to refer a case for an interim order, investigators and case examiners must determine whether there are grounds for adjudicators to consider making an order.

They should bear in mind that this is not the same as deciding that an interim order should be imposed. They should ask themselves whether an interim order may be necessary for the protection of the public or in the best interests of the social worker.

Protection of the public

The protection of the public is the overarching objective of Social Work England. It has 3 elements:

  1. To protect, promote and maintain the health, safety and wellbeing of the public.
  2. To promote and maintain public confidence in social workers in England.
  3. To promote and maintain proper professional standards for social workers in England.
Social worker’s best interests

Referral in the social worker’s best interests may be needed if the social worker is practising unrestricted and as a result is placing themselves or others at risk of harm. For example, 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.

An interim order referral may also be necessary in the social worker’s best interests where 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 fitness to practise (or other) concerns being raised. Decision makers should identify and record each criterion that points to referral.

Factors affecting decisions to refer

Decision makers should consider 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?

The level of risk may be affected by the seriousness of the original concern, the weight of evidence so far obtained, and the likelihood of further concerns or incidents occurring while the concern is investigated. The question of likelihood of further concerns arising 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 whether such measures cover all the social worker’s practice, and what safeguards there are to ensure that the social worker will comply with those local measures.

Decision makers will need to carefully consider the practicality and reliability of any local measures in circumstances where the social worker is employed on a locum basis and may move between organisations and/or work for more than one organisation at a time.

The more serious a concern, the less it may be reasonable to rely on 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. Previous history of similar concerns may be considered by decisionmakers when assessing the likelihood of further concerns occurring, where it is fair and relevant to do so.

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

This may apply in many cases where the risk to the public criteria above has been met. In contrast, imposing an interim order on public interest grounds alone is likely to be relatively rare, and will most commonly arise where the social worker is facing criminal investigation for very serious offences.

Case law has set a high bar for such orders, for example, ‘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’ (Bawa-Garba v GMC 2015 EWHC 1277 (QB)). On the other hand, a 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)).

There may be some cases 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. Decision makers should bear in mind that the question of public confidence refers directly to the period during the investigation.

The 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 Social Work England did not impose a sanction at the end of the investigation, assuming the concern is found proved. 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?

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, for example because of a health condition, and so is unable or unwilling to restrict their practice in a way that provides adequate public protection.

It may also arise in exceptionally high-profile cases, where it may be in the social worker’s best interests to be relieved of their professional responsibilities while the investigation continues.

What types of concern may need to be referred?

Every case must be looked at against the referral criteria of public protection or in the social worker’s best interests. This means that it isn’t possible to provide an exhaustive list in this guidance. The following are examples of cases where referral may be needed.

Concerns where there is a risk of harm to service users

Concerns about the social worker’s standard of practice

This might arise where the concern suggests that the social worker’s knowledge or skills fall so seriously below an acceptable standard that there is a significant and ongoing risk to the public, and in particular their service users. The concern might be about a series of incidents, or about one particularly serious failure.

Maintaining boundaries

Evidence of a social worker engaging in predatory behaviour and using their professional position to pursue an inappropriate relationship with a service user is likely to warrant referral. Examples include:

  • 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

Concerns about a social worker’s health

A health case may have been opened as an investigation because of insufficient assurances about public protection or risk to the social worker’s own professional interests arising from the health condition. Referral for an interim order is likely to be justified if there is a clear and current risk to service users resulting from the social worker’s health or if the social worker is, or has recently been, detained under the Mental Health Act 1983 (as amended).

When dealing with concerns about a social worker’s health, decision makers should be clear that the regulatory function does not extend to managing a social worker’s health condition, treatment plan or impact of the health condition on them personally. It only concerns the way in which the health condition may result in a risk of harm to the public or where the risk of harm to the public may in turn result in a risk of harm to the social worker. Decision makers might address the following questions when considering health cases:

  • Is there a serious risk to service users from the social worker’s health?
  • Does the social worker have sufficient insight to limit their practice so as 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 a serious condition?
  • Is the social worker engaging with their employers to limit their practice appropriately?
  • Is the social worker engaging satisfactorily with their regulator to keep them informed of their health status?
  • Is the social worker engaging with their medical professionals to limit their practice appropriately?

A refusal by a social worker to undergo 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, such as evidence from the social worker’s GP or expert evidence.

Concerns about a social worker’s language skills

If a social worker has failed to attain the necessary scores in a recognised English language assessment, this may point strongly towards the need for referral. Aggravating factors may be where the scores fall well below the required standard, or where the social worker is refusing to adjust their practice in light of their language deficiency.

If the language deficiency is accompanied by other evidence of poor performance, this may suggest an increased risk pointing to referral. Decision makers should consider the extent to which the language deficiency may be putting service users at risk, for example if there is evidence the social worker has been unable to engage effectively with other professionals responsible for the service user’s care.

A refusal by a social worker to undergo language assessment is not of itself a basis for referral for an interim order, although Regulation 25(6)(b) allows decision makers to draw an adverse inference if the social worker does refuse. 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

If a social worker has breached any of the conditions of a practice order, this may point strongly towards the need for an interim order referral, but it is not of itself necessarily a basis for referral. Decision makers must still assess the current position in terms of the seriousness of the concern, the risk posed to the public, or whether referral is needed in the social worker’s best interests.

Concerns where there is a risk to the public interest

There may be cases where there is no current risk to the public but where public confidence in social workers may be seriously damaged if the social worker is allowed to practise unrestricted while the concerns are investigated. Bearing in mind that conditions of practice are usually used for protective purposes, it is probable that the only suitable sanction in public interest cases is suspension.

The threshold for suspending a social worker from practice on public interest grounds alone, is high. Social Work England has powers to fast track cases through to automatic removal where a social worker has been convicted of a serious criminal offence such as murder, sexual offences, child pornography, slavery and trafficking, and blackmail.

Decision makers should be careful to check the exact position and likely timescales in each case to determine whether a referral for an interim order or automatic removal is the most appropriate course of action. A referral for an interim order will almost inevitably be required if a social worker is being formally investigated but has not yet faced trial for an offence that, if convicted, would result in automatic removal.

The point in other criminal investigations at which it may be appropriate to refer for an interim order may vary. For example, the fact a social worker has been arrested in connection with a serious criminal offence does not necessarily mean a referral is needed. Decision makers should consider the overall circumstances, including the current status of the criminal investigation, the seriousness of the alleged offence, and the current risk to the public, whilst also bearing in mind the legal principle that an individual is innocent until proven guilty.

Other concerns warranting referral on public interest grounds may include serious abuses of professional position, whether or not they represent a direct risk to individuals. Examples might include financial probity causing a significant loss of public funds, and concerns arising from discrimination in relation to characteristics protected by law.

Weight of evidence needed for referral

An interim order hearing or meeting reviews the available evidence to assess the current and future risk to the public if the social worker is allowed to work without restriction while the concern is investigated. It does not make findings of fact about whether the concern being investigated is true.

This may involve a degree of speculation about the level of risk if the alleged concern turns out to be substantiated, but the interim order panel must not prejudge the outcome of the investigation. This means there needs to be some evidence in support of the concern.

Nonetheless, decision makers should carefully review the current status of the concern and consider the quality and nature of the evidence available. They should note the possibility that in some cases, further investigation may have cast doubt on evidence obtained at triage.

New information

Where a decision is made not to refer a concern for an interim order, a fresh decision should be made when new information is received that changes the assessment of risk. Investigators should continually review whether to make an interim order referral whenever they are considering a concern but particularly upon receipt of new information.

Where there is already an interim order in place, the investigators should continually review whether the current order remains appropriate. New information might, for example, suggest that a current conditions of practice order needs to be varied 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 varied to a conditions of practice order. An interim order will automatically lapse if, for example, the case examiners conclude there is no impairment. But it may be fair to the social worker to invite an interim order hearing to revoke an order as soon as it becomes apparent the order is not needed, rather than to wait for the fitness to practise process to move to the case examiner decision.

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

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