Impairment and sanctions guidance

Last updated: 19 December 2022

Contents

• About this guidance
• Ensuring decisions are fair and consistent
• General principles for decision making
• Sanctions
• Findings of no impairment
• Findings of impairment
• Further guidance on types of concerns
• Reasons for decisions being made
• Interim orders at final hearings
• Reviews
• Annex 1: Key case law

About this guidance

Who this guidance is for

This guidance is primarily for Social Work England’s decision makers. Our decision makers are (both of the following):

• case examiners
• adjudicators

This guidance may also be useful for other people involved in fitness to practise proceedings. For example (any of the following):

• the social worker (and the social worker’s representative)
• Social Work England

What this guidance is about

Our decision makers consider whether a social worker’s fitness to practise is impaired. They also consider, if impairment is found, whether to apply a sanction to a social worker’s registration.

The guidance sets out (all of the following):

• how we ensure decisions are fair and consistent
• general principles for decision making and finding impairment
• general principles in relation to what sanction can be imposed (if any)
• the types of sanctions available
• things that decision makers should consider when deciding whether to apply a sanction
• things that decision makers should consider when applying sanctions to specific types of concerns
• interim orders at the final hearing stage
• things that decision makers should consider when reviewing a final order

Terminology

Case examiners should be aware that references to a “finding of impaired fitness to practise” should also be read to include “a realistic prospect of a finding of impaired fitness to practise”.

Supporting information

There are other documents that decision makers should consider alongside this guidance. These include (any of the following):

• the professional standards and standards guidance (and its predecessors, if in place at the time of the concern)
• guidance published by Social Work England (and its predecessors, if in place at the time of the concern)
• other professional guidance (such as the British Association of Social Workers Code of Ethics, and the Professional Capabilities Framework)

In some cases, a decision maker may use other relevant reference documents. If so, these documents must be the versions that were in place at the time of the alleged events.

Using this guidance

Readers can also use this guidance as a reference document. It may help with understanding the possible outcomes of a fitness to practise concern.

The examples in this guidance are not exhaustive. We use them to illustrate the principles that decision makers should apply.

The paragraphs in this guidance are numbered, for the purpose of referencing in decisions.

Ensuring decisions are fair and consistent

1. We work to ensure our fitness to practise processes are fair and proportionate. We are fully committed to impartiality and consistency in our decision making. This guidance supports and promotes this commitment.

2. Our overarching objective is to protect the public [1]. We do so by (doing all of the following):

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

3. Our fitness to practise powers enable us to deliver this overarching objective through proportionate sanctions [2]. A sanction must be the minimum necessary to protect the public and the wider public interest. The purpose of sanctions is not to punish the social worker, but to protect the public.

4. Our decision makers must demonstrate a commitment to the Seven Principles of Public Life (also known as the ‘Nolan Principles’). They should also meet each of the requirements set out in our appointment rules. Once appointed, decision makers must (do all of the following):

• undergo a formal appraisal at least once a year
• regularly engage in continuing professional development (CPD)
• declare any actual or perceived conflicts of interest in any case we ask them to consider

[note 1] Section 37 of the Children and Social Work Act 2017

[note 2] Schedule 2, paragraph 9(2) and (3) and paragraph 12(2) and paragraph 13(1) of The Social Workers Regulations 2018 (as amended) (‘the regulations’)

General principles for decision making

5. Before decision makers consider sanction, they will consider (all of the following):

• which facts are admitted (and evidence for those in dispute)
• the statutory ground of impairment
• the issue of impairment
  

What we mean by fitness to practise

6. A social worker is fit to practise when they have the skills, knowledge, character and health to practise their profession safely and effectively without restriction. We set out our expectations of social workers in our professional standards. Our decision makers should assess a social worker’s fitness to practise in accordance with the standards. If the alleged conduct predates our regulation, our decision makers will refer to the professional standards in force at the time of the alleged events [3].

7. Fitness to practise is not just about professional performance. Our decision makers will also consider acts by a social worker that may damage public confidence in the profession. This may include conduct that takes place outside of the workplace (such as acts resulting in criminal investigations).

8. We understand the challenges involved in social work. We know that sometimes social workers can make mistakes. The purpose of the fitness to practise process is not to punish social workers for mistakes.

9. If a decision maker decides a social worker’s fitness to practise is impaired, this means they have serious concerns about the social worker’s ability to practise safely, effectively, or professionally. When this happens, they may decide to (do either of the following):

• restrict a social worker’s practice
• remove their right to practise (in particularly serious cases)

10. Our fitness to practise process considers concerns on the following statutory grounds [4] (one or more of the following):

• misconduct
• lack of competence or capability
• a criminal conviction or caution in the UK or elsewhere [5]
• adverse health (physical or mental)
• a finding by a regulatory body that a person’s fitness to practise is impaired
• being on a barred list [6]
• not having the necessary knowledge of English

[note 3] These will likely include the professional standards in place at the time social workers were regulated by the Health and Care Professions Council and the General Social Care Council

[note 4] The statutory grounds are set out in regulation 25(2) of the regulations

[note 5] Regulation 25(2)(d) of the regulations, sets out that a conviction for an offence outside the UK, which if committed in England or Wales, would constitute a criminal offence

[note 6] Regulation 25(2)(g) of the regulations sets out what being on a barred list includes: (i) by the Disclosure and Barring Service in a barred list (within the meaning given in section 60(1) of the Safeguarding Vulnerable Groups Act 2006(a) or article 2(2A) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007(b)), or (ii) by the Scottish Ministers in the children’s list or the adults’ list (within the meaning given in section 1(1) of the Protection of the Vulnerable Groups (Scotland) Act 2007(c))

Impairment

11. Not every case where the statutory ground has been found necessarily means that the social worker’s fitness to practise is impaired. There are 2 elements to impairment; the personal element and the public element.

12. Our decision makers will assess whether there is current impairment of a social worker’s fitness to practise. When doing this, they will consider [7] whether the conduct (all of the following):

• is easily remediable by the social worker
• has already been remedied by the social worker
• is highly unlikely to be repeated by the social worker in future

This is what we refer to in this guidance as the “personal impairment element”.

13. Our decision makers must also consider whether a finding of impairment is necessary to promote and maintain (one or more of the following):

• public confidence in social workers in England
• proper professional standards for social workers in England

This is what we refer to in this guidance as the “public impairment element”.

14. Public impairment takes into account whether a finding of impairment is necessary to uphold the public’s confidence in the profession. Our decision makers may find that there is public impairment even if (one or more of the following):

• there is no personal impairment
• they do not consider the social worker presents a risk to the public [8]

15. Decision makers must consider both elements of the impairment test (personal and public) with equal weighting.

[note 7] See relevant case law in Annex 1: Cohen v GMC [2008] EWHC 581 (Admin) and CHRE v Grant and NMC [2011] EWHC 927 (Admin)

[note 8] Bolton v Law Society [1994] 1 WLR 512: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.’

Personal impairment

16. There are multiple factors that decision makers should consider when making a decision about personal impairment. These include, but are not limited to (all of the following):

• harm caused (or risk of harm)
• repetition (or risk of repetition)
• previous history
• insight
• remediation
• admissions of alleged facts
• testimonials

17. This is not an exhaustive list and factors are often interdependent. For example, risk of repetition is likely to be higher where the social worker lacks insight, or their remediation is incomplete.

18. Decision makers should also consider our published guidance, which explains to social workers what standards we expect them to meet. Serious, deliberate or repeated breaches of guidance are likely to increase the seriousness of the concern. These factors apply as much to the decision about impairment as they do to the decision on sanction.

Harm caused (or risk of harm): to what extent did the social worker’s actions harm or pose a risk of harm to the public?

19. One of the primary considerations of our fitness to practise proceedings is current and possible future risks to the public. Risk of harm and the impact of a social worker’s actions can be as important as actual harm caused. This is because continuing to act in a way that risks public safety could cause actual harm in the future, whether or not it has in the past.

20. Decision makers should be careful when assessing actual harm caused by a social worker’s actions and its impact on the seriousness of the case. An action that (by luck) has not caused harm may still represent an unacceptable risk of serious harm if repeated. If this is the case, decision makers should not regard it as any less serious because actual harm did not occur.

21. Decision makers should assess the extent to which the social worker could (and should) have foreseen the risk of harm (or actual harm caused). The decision makers may conclude that the social worker should have anticipated the risk of harm and managed it in advance.

22. In exceptional circumstances, actual harm caused may have been so serious that the case raises questions of public confidence in the social work profession (see ‘public impairment’ below).

Repetition: have any actions that risked the safety of the public been repeated (or could they be repeated)?

23. Decision makers should explore whether there is risk of repetition (now or in the future). This also links to the social worker’s level of insight and their capacity to remediate.

24. Decision makers should explore in depth whether the social worker has reflected and acted on what went wrong after the incident, to prevent risk of repetition. However, decision makers should also assess how much control the social worker has over the risk of repetition. For example, if the risk of repetition is primarily because of insufficient staffing levels, it is not a factor that brings the social worker’s fitness to practise into question.

Previous history: does the social worker have any previous history?

25. Previous history is an adverse decision relevant to the social worker which has been made by [9] (any of the following):

• Social Work England
• a previous social work regulator (such as the HCPC)
• another relevant body [10]
• criminal court of law either in the UK or elsewhere

26. An adverse decision means that one of the above bodies has found fault in the social worker’s acts (things they have done) or omissions (things they have failed to do).

27. At any time, decision makers may take into account any previous adverse decisions against the social worker. They may do this if they are satisfied that it is fair and relevant to do so (in relation to the current concern) [11]. Previous history will be most relevant when considering the question of impairment and sanction. [12]

28. Previous adverse decisions may raise concerns about the willingness or capacity of the social worker to observe their professional duties. Decision makers should pay particular attention to patterns of similar behaviour. This may highlight a risk of repetition or a lack of reflection and learning from past concerns.

29. If there are no patterns in the social worker’s behaviour but they still have a history of multiple adverse decisions this may show the social worker has a persistent lack of regard for the professional standards.

30. In some cases, further concerns may arise while the social worker is still subject to a previous sanction. Decision makers may view this particularly seriously.

[note 9] Rule 35(a) of the Fitness to Practise Rules 2019 (as amended)

[note 10] Regulation 7 of the regulations

[note 11] Rule 35(b) of the Fitness to Practise Rules 2019 (as amended)

[note 12] In general adjudicators may not receive information about previous history before they determine disputed facts. However, they can take this into account at facts stage if there has been an application made by a party and the adjudicator consider it fair and relevant to take this into account at facts stage (rule 35(c)(i) and (ii) of Fitness to Practise Rules 2019 (as amended))

Insight: has the social worker correctly recognised and fully acknowledged what they did wrong?

31. There is a greater risk of repetition if the social worker fails to fully understand what they have done wrong (and why it is wrong).

The social worker can demonstrate their insight through (any of the following):

• their engagement with the process
• their submissions during the investigation and prior to a hearing
• any remediation or reflection they have done regarding the concerns
• anything they may set out in written submissions or say at a hearing

Demonstrating complete insight will help to assure decision makers that there is minimal risk of repetition.

32. Decision makers should be aware that a person’s culture or background may sometimes affect how insight is expressed.

33. Decision makers should consider different aspects of insight, such as (all of the following):

• whether the social worker understands what led to the events which are the subject of the concern
• whether the social worker recognises what went wrong
• whether the social worker accepts their role and responsibilities in relation to the events
• whether the social worker appreciates what could (and should) have been done differently
• whether the social worker has addressed how they might act or react differently if the same circumstances were to happen again (to avoid reoccurrence of similar concerns)

34. Decision makers must take care to assess the quality of any insight. A social worker may accept they have acted wrongly. However, simply asserting this is unlikely to be enough to demonstrate genuine insight. Decision makers must carefully look for and assess any objective evidence that might confirm the social worker’s insight. For example, reports from employment.

35. Offering an apology that includes an acceptance of personal responsibility may be evidence of insight. However, the decision makers must not treat this alone as an admission of facts or impairment. Expressions of remorse may be evidence of insight if the social worker demonstrates a genuine understanding of the impact of their actions on others, and the profession. If the social worker only expresses remorse due to the impact it had on themselves, this is unlikely to be evidence of insight.

36. A social worker may demonstrate insight by making full and early disclosure about what has happened to (all of the following):

• those impacted
• current employer
• future employers

This includes full cooperation with any subsequent investigations and enquiries into the events. Starting relevant remediation early may be good evidence of insight. This is true even if other elements of insight are absent.

37. Decision makers should keep in mind that social workers are required to adhere to the professional standards. This includes professional standard 6, “to promote ethical practice and report concerns”. A social worker should (do all of the following):

• tell the relevant person (or people) when something has gone wrong
• explain what has gone wrong and the potential consequences
• involve the affected person (or people) in deciding on an appropriate response
• remind the person (or people) of their right to complain [13]

38. The social worker must also cooperate with any subsequent investigations into what went wrong. This is a requirement of the professional standards [14]. As such, decision makers should be wary of giving excessive credit to a social worker for meeting their obligations under the professional standards. However, if a social worker has not cooperated, decision makers should consider whether or not this is intentional. There could be reasons which may explain why the social worker was unable to engage with the relevant investigation. For example, a significant mental or physical health condition.

39. Decision makers should carefully consider insight that has only emerged after investigations and enquiries have been completed. Insight should be rooted in the social worker’s personal reflection and assessment of how they have fallen short of the professional standards. This should ideally take place as soon as possible after the incident or events. Insight may carry less weight if it is led by or dependent on the conclusions and directions of others. Decision makers should assess insight in accordance with the individual circumstances of the case and social worker.

40. Decision makers should not assume that a social worker has developed insight. There must be evidence that they can set out in their reasoning.

[note 13] See Social Work England’s professional standards guidance, duty of candour

[note 14] See Professional Standard 6.7 which requires the social worker to co-operate with any investigations in relation to their fitness to practise, by their employer, Social Work England or another agency

Remediation: has the social worker put right any deficiencies or shortfalls in their practice, or the behaviour that led to the concerns?

41. Remediation is best shown by objective evidence. For example (any of the following):

• successful completion of education or training courses
• satisfactory performance appraisals
• other positive feedback in relation to their professional practice

42. Remediation can include steps the social worker has taken to make things right, such as apologising.

43. In some cases, the concerns may relate to the social worker’s character. If so, it can be more difficult to evidence remediation that has reformed their character. For example, if the concerns relate to dishonesty, breaches of trust or abuses of position.

44. A finding of personal impairment is usually not needed if (both of the following):

• the social worker has understood the causes of and learnt from any mistakes or misjudgements
• there is no risk of repetition

However, a finding of public impairment may be required. See ‘public impairment’ below.

What if there is no evidence of remediation, or the remediation is incomplete?

45. The social worker may be incapable of successful remediation until they develop insight first. A social worker may also lack the skills to successfully complete remediation.

When did insight and remediation start?

46. The social worker should immediately start to review what has gone wrong after the events have taken place. They should also review what they need to do to prevent repetition. Ideally, insight and successful remediation should take place as early as possible. The earlier it takes place, the greater weight it will carry when the decision makers are making a decision as to impairment.

Admission of alleged facts

47. Social Work England is responsible for proving the case against the social worker.

48. The social worker has a professional duty to cooperate with investigations into their fitness to practise [15]. However, the social worker also has a legal right to deny any allegations made against them. Exercising this right does not make a concern more serious. Likewise, a social worker admitting the facts does not necessarily make a concern less serious.

49. In some cases, the adjudicators may decide that a social worker denied a fact that has been proven. If so, the adjudicators may take this into account when reviewing insight and remediation.

50. The risk of repetition is likely to be higher if the social worker shows little or no understanding of why the evidence amounts to impairment. However, a social worker may deny the facts and still demonstrate understanding of (both of the following):

• why the public would be concerned by their behaviour
• how to reduce the risk of repetition

51. Decision makers should take care to distinguish between (both of the following):

• the social worker’s acceptance of the facts
• their understanding of the implications if they were to behave in the same way in future

[note 15] See professional standard 6.7 which requires social workers to ‘cooperate with any investigations by my employer, Social Work England, or another agency, into my fitness to practise or the fitness to practise of others’

Testimonials

52. Testimonials that provide up to date, credible information about the social worker’s current practice can be relevant when exploring current impairment. The social worker will have an opportunity to provide any testimonials when responding to the regulatory concerns. Testimonials can be submitted by anyone. However, they are most helpful when they come from people with knowledge of the social worker’s practice or character.

53. Testimonials should include (all of the following):

• what the author knows of the concerns that have been raised
• an explanation of the author’s relationship to the social worker
• any declarations of conflict of interest
• whether the author is willing to give evidence in-person in support of the testimonial

54. Decision makers should give little weight to testimonials from persons not aware of the fitness to practise proceedings or the actions behind them.

55. Decision makers should be aware that there are many reasons why the quality and quantity of testimonials may vary. These reasons may be beyond the social worker’s control. For example, because a case is not in the public domain at case examiner stage, a social worker may be unable to disclose any specific details to the person providing the testimonial.

56. There may be reasons why some social workers may be reluctant to seek testimonials. For example, discussing the facts of the investigation may have professional consequences or adversely impact their private life. Decision makers should scrutinise the reasons provided for why a social worker has not sought or obtained testimonials.

57. Some social workers are new to the profession. They may find it harder to produce testimonials from colleagues than someone with an established career would.

58. Decision makers should assess the content of each testimonial based on their knowledge of any relationship between author and social worker. It should also be based on (all of the following):

• whether the content is relevant to the specific findings in the case
• the extent to which the views are consistent with other available evidence
• how long the author has known the social worker
• the extent to which the testimonial offers a current view of the social worker’s fitness to practise

59. A social worker may offer testimonials at the fact finding stage of decision making. These testimonials may address the likelihood of the social worker having acted in the alleged way. Whether such testimonials are admissible at the facts stage (and the weight decision makers should give to them) are complex questions. Decision makers may seek submissions from the parties and legal advice.

Public impairment

60. Decision makers must also consider public impairment. In doing so they should weigh (both of the following):

• the factors for personal impairment (as set out above)
• the public interest in upholding professional standards and maintaining confidence in the profession

Decision makers may decide that even though the social worker is not personally impaired, a finding of impairment is still in the public interest.

61. Some concerns are so serious that if proven, a finding of impairment is likely. This is because in these cases, a failure to make a finding of impairment may (do one or more of the following):

• undermine public confidence in the profession
• fail to maintain the professional standards expected of social workers

62. Examples of cases that are likely to be viewed as serious include (all of the following):

• sexual misconduct
• violence
• dishonesty
• abuses of trust
• discrimination involving a protected characteristic

There is more information about specific types of serious concerns later in this guidance (see ‘further guidance on types of concerns’).

63. We publish most decisions, to achieve public protection and satisfy the public interest. Decision makers should keep in mind that we will publish a decision where (any of the following):

• the case examiners have found a realistic prospect of impairment [16]
• the adjudicators have made no finding of impairment
• the adjudicators have made a finding of impairment

[note 16] This decision will be published if there is an accepted disposal proposed and consented to by the social worker. If the case is referred to a hearing the decision won’t be published, but the allegations will be published before any hearing takes place. See publications policy

Sanctions

What is a sanction?

64. A decision maker imposes a sanction on a social worker to ensure (either or both of the following):

• public protection (where there is a direct risk of harm to others, including service users, colleagues or members of the public)
• public interest (to maintain confidence in the social work profession)

65. The decision makers who may impose a sanction are (either of the following):

• the adjudicators (at the conclusion of a hearing, when a finding of impairment has been made) [17]
• the case examiners (under the accepted disposal process, when there is a realistic prospect of the adjudicators finding impairment) [18]

66. The sanctions available to decision makers include (any of the following):

• no further action
• advice
• warning order
• conditions of practice order
• suspension order
• removal order

67. There are also outcomes available to decision makers if there is a finding of no impairment. These include (any of the following):

• no further action
• advice
• warning

Although not technically a sanction, we have included these outcomes in this sanctions guidance to assist decision makers.

[note 17] Schedule 2, paragraph 12(3) of the regulations

[note 18] Schedule 2, paragraph 9(2) and (3) of the regulations

General principles

68. The events leading to a concern will inform any decision about current and future risk to the public, however the purpose of the fitness to practise process is not to blame or punish for past mistakes or poor behaviour.

69. Decision makers must select the least restrictive sanction necessary to protect the public and the wider public interest.

70. Decision makers may still issue warnings or advice even if they do not consider the concern serious enough to amount to impairment. They may do this if they feel that the concern (if repeated) could lead to future impairment.

71. If personal impairment is found, a sanction restricting or removing a social worker’s registration will normally be necessary to protect the public. This may include requiring a social worker to comply with specific conditions or suspend them from practising whilst they address the issues that led to the concern or until their fitness to practise is no longer impaired. However, after considering the social worker’s mitigation, decision makers may resolve some cases with a warning or advice.

72. Decision makers should make sure the sanction is appropriate and proportionate. However, they should also consider the relevance of confidence in the profession as a factor in determining sanction. This principle is set out in the case of Bolton v Law Society [1994] 1 WLR 512:

"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."

Working through the sanctions

73. The sanction imposed should be the minimum necessary to protect the public (including the wider public interest). Decision makers must (follow this process):

• a) start with the lowest sanction
• b) move through all the available sanctions in ascending order of seriousness
• c) identify the sanction that is sufficient to protect the public and maintain confidence in the profession and uphold professional standards

74. A sanction may have punitive or negative consequences that impact a social worker’s personal circumstances. However, this should not usually affect the assessment of the minimum sanction necessary to protect the public.

75. Decision makers should ensure their reasoning on sanction is consistent with their decision on impairment. The following are examples of inconsistent decision making:

• the decision makers may find that the social worker’s persistent dishonest acts are an aggravating factor at the impairment stage. It would be inconsistent if the decision makers, when considering an appropriate sanction, then found that the dishonesty was isolated and represented a low risk of repetition
• at the impairment stage, the decision makers may find that the social worker is a risk to the public if they continue to practise. It would be inconsistent to then impose a warning order, which would not restrict practice unlike a suspension or conditions of practice order

76. In some cases, the decision makers may determine that the social worker’s impairment poses a current risk to public safety. If so, it may be reasonable to move beyond the lower sanctions (no action, advice or a warning) on this basis alone. This is because these outcomes will not address the risk to the public as they do not restrict the social worker’s practice.

77. Decision makers should test the appropriateness and proportionality of a proposed sanction. It is good practice to do this by considering all other available sanctions. They should take into account their findings at earlier stages. It is particularly important the decision makers do this test when considering advice or a warning as an outcome. This is because these outcomes do not restrict the social worker’s practice.

78. The decision makers must fully explain the reasons why each sanction has been rejected or directed in the decision.

79. The factors that decision makers should take into account when considering sanction are set out in detail below.

Mitigating and aggravating factors

80. The decision makers should consider mitigating and aggravating factors when considering which sanction may be appropriate or proportionate.

Mitigating factors

81. Potential mitigating factors include, but are not limited to (any of the following):

• evidence of the social worker’s insight, remorse and understanding of the problem, and their attempts to address it. This may include (any of the following):
  • early admission of the facts
  • full engagement with investigations
  • apologies to anyone affected
  • any efforts to prevent behaviour recurring
• evidence that the social worker has done remediation which addresses the deficiencies that led to the concerns. This may include (any of the following):
  • the successful completion of education or training courses
  • satisfactory performance appraisals
  • other positive feedback in relation to their professional practice
• personal mitigation such as (either of the following):periods of stress or illness
  • personal and financial hardship
  • absence of previous fitness to practise history
• evidence of good character in the form of character references and testimonials
• contextual factors which are relevant and material to the events that raised the concerns. For example (any of the following):
  • the level of experience of the social worker at the time
  • the level of support the social worker received (such as training and/or supervision at work)
  • evidence of wider or systematic issues in the workplace

Aggravating factors

82. Potential aggravating factors include, but are not limited to (any of the following):

• repetition of concerns or a pattern of behaviour
• relevant previous history
• lack of insight or remorse
• lack of remediation
• harm or risk of harm to people who use social work services

Multiple sanctions

83. A social worker may be subject to more than one sanction at a time. This may happen where there are (either of the following):

• unrelated cases progressed separately through the fitness to practise process (which have resulted in separate outcomes)
• related cases that have progressed through the fitness to practise process at different times (and resulted in separate outcomes)

84. In some cases, a social worker may already be subject to a sanction from a previous case when the decision makers are considering imposing a new sanction. If so, the decision makers must consider the impact of the existing sanction when making their decision. For example, they should make clear in the decision that imposing a new warning does not affect an existing conditions of practice order. On the other hand, imposing a suspension has the effect of overriding a conditions of practice order.

Findings of no impairment

No further action

85. If there is insufficient evidence to support the allegations, then usually no further action is necessary. If the adjudicators reach a finding of no further action, we will publish the written decision for 1 month after the conclusion of the hearing.

Advice or warnings

86. In some instances, advice or a warning may be appropriate even when there has been a finding of no impairment.

Advice

87. Decision makers may offer the social worker advice related to how the concern arose. For example, if we receive a concern about the professional practice of a social worker which resulted due to a misunderstanding. The decision makers might consider issuing advice reminding the social worker of the professional standards, which require effective and appropriate communication.

Warnings

88. Decision makers may give a warning where there has been a breach of the professional standards, guidance or procedures. A warning may be appropriate where the breach (meets both of the following criteria):

• is not serious enough to amount to impairment
• could amount to impairment if the social worker repeats it in the future

The warning will note that repetition of the behaviour could amount to impaired fitness to practise.

89. The decision makers may give a warning if a case relates to lack of competence or capability. This may also happen for cases of ill health. For example, where the social worker has recovered from the illness, but did not self-manage to protect the public when the illness first presented.

90. In some cases, decision makers may decide that the conduct is serious, but that there is no realistic prospect of finding impairment (unless the actions are repeated). In these situations, decision makers may decide to issue a warning. These situations may include (any of the following):

• errors or failings in practice which the social worker has addressed (so that there is minimal risk of repetition)
• incidents which might affect the public confidence in social workers
• minor offending resulting in criminal convictions or cautions

Discontinuance

91. In some cases, the adjudicators will decide that a social worker’s fitness to practise is not impaired, as a result of a full discontinuance application. In this scenario, the adjudicators can issue advice or a warning. The same considerations (as set out above) will apply in these circumstances. For more information on the discontinuance process, please see the discontinuance guidance.

Publication of advice and warnings

92. If the adjudicators make a finding of no impairment and impose advice or a warning, we publish the written decision for 1 month after the conclusion of the hearing. The outcomes are not recorded on the public extract of the register as a sanction however, we can consider previous advice and warnings if further fitness to practise concerns are received. This is particularly relevant if those concerns are similar in nature.

Findings of impairment

93. A finding of impairment will likely mean the social worker is not suitable to be registered without restriction. The exceptions to this are (the following outcomes after a finding of impairment):

• no further action
• advice or warning

These outcomes do not restrict the social worker’s practice. They may only be appropriate where there are mitigating factors, which show that a social worker can still practise without restriction.

No further action

94. This outcome means there is no restriction on the social worker’s practice. The social worker’s fitness to practise is impaired at the point the decision is made, but the finding of impairment has no duration. The social worker is regarded as fit to practise at the end of the proceedings.

95. Where our decision makers find impairment, an outcome of 'no further action' is rare. However, this could be possible in cases where the finding of impairment itself is enough to protect the public or address the public interest. For example, where the social worker has accepted a caution.

96. Bearing in mind that the purpose of the regulatory proceedings is not to punish for a second time, a finding of impairment may be sufficient to protect the public or address the public interest without the need for any further action. The decision makers should clearly set out (both of the following):

• the factors they have considered to justify taking no further action
• why these factors are exceptional in nature

97. This outcome will not be appropriate where there is any continuing risk to the public of the social worker behaving in the same way again.

98. We will record a finding of impairment with no further action on the public extract of the register. The written decision will be published on the website for 1 year from the date of the finding.

Advice or warning

99. An outcome of advice or warning does not directly restrict practice. Therefore, these outcomes are not appropriate where the social worker poses a current risk to the public.

100. We will publish the written decision setting out the advice or warning on our website. We will also record it on the social worker’s public extract of the register. The recording remains on the public extract of the register for the period identified by the decision maker (1, 3 or 5 years). This ensures anyone who accesses the public extract of the register or the website is aware of the advice or warning. This includes those directly involved with a social worker.

Advice

101. The decision makers should consider giving advice before considering a warning.

102. The advice should set out the steps the social worker should take to avoid repeating the conduct that contributed to the concern.

Length of advice

103. Where decision makers give advice after a finding of impairment, they should consider (both of the following):

• the appropriate length of time for the social worker to apply the advice to their conduct
• how long the advice will remain on the public extract of the register (this can be 1, 3 or 5 years)

104. Decision makers must consider imposing the minimum action necessary to protect the public and uphold confidence in the profession. They should start by considering advice for 1 year, and only move on to the longer periods if they feel this is insufficient.

105. Decision makers should consider each case on an individual basis. They should clearly set out in their reasoning why the length of the sanction is appropriate and proportionate.

106. Decision makers should keep in mind that the advice cannot be reviewed before it expires unlike final orders (warnings, conditions of practice and suspension orders). [19]

[note 19] Schedule 2, paragraph 15(1) of the regulations only requires the regulator to review suspension and conditions of practice orders before they expire. Schedule 2, paragraph 15(2) of the regulations allows the regulator to review final orders where new evidence becomes available or when requested by the social worker. A warning is included in the definition of ‘final orders’ under schedule 2, paragraph 13(1) of the regulations

Warning orders

107. A warning order shows clear disapproval of the social worker’s conduct or performance. A warning order is a signal that the social worker is highly likely to receive a more severe sanction if they repeat the behaviour.

108. A warning order is likely to be appropriate where (all of the following):

• the fitness to practise issue is isolated or limited
• there is a low risk of repetition
• the social worker has demonstrated insight

Decision makers should consider issuing a warning order where (both of the following apply):

• they cannot formulate any appropriate or proportionate conditions of practice
• a suspension order would be disproportionate

Length of a warning order

109. Decision makers must direct how long the warning will stay on the social worker’s entry on the public extract of the register. This can be 1, 3 or 5 years. The decision makers should impose the minimum sanction required to protect the public and maintain public confidence in the profession. They should first consider imposing a 1 year warning, and then move on to consider the longer periods.

110. When deciding on the proportionate duration of a warning, decision makers should consider (all of the following):

• 1 year may be appropriate for an isolated incident of relatively low seriousness. In these cases, the primary objective of the warning is to highlight the professional standards expected of social workers
• 3 years may be appropriate for more serious concerns. This helps to maintain public confidence and highlight the professional standards. The period also allows more time for the social worker to show that they have addressed any risk of repetition
• 5 years may be appropriate for serious cases that have fallen only marginally short of requiring restriction of practice. This helps to maintain public confidence and highlight the professional standards. A social worker should ensure there is no risk of repetition throughout this extended period. If successful, there will be no further fitness to practise findings (in relation to similar concerns)

111. Each case should be considered on an individual basis. Decision makers should clearly set out in their reasoning why the length of the warning order is appropriate and proportionate (and why other lengths were insufficient).

112. A warning is not subject to mandatory review. However, the adjudicators can review it if new evidence relevant to the warning order becomes available after the decision makers have issued the warning order. [20] This may include when new concerns are raised or (in limited circumstances) if the social worker requests a review.

[note 20] See schedule 2, paragraph 15(2) of the regulations

Conditions of practice orders

113. A conditions of practice order allows a social worker to practise while they are subject to restrictions. Conditions of practice orders protect the public while the social worker takes necessary steps to remediate their fitness to practise. In addition to any protective restrictions, the conditions may include remedial steps that the social worker must take as a minimum to regain fitness to practise. For example, successful completion of relevant education or training.

When a conditions of practice order may be appropriate

114. Conditions of practice may be appropriate in cases where (all of the following):

• the social worker has demonstrated insight
• the failure or deficiency in practice is capable of being remedied
• appropriate, proportionate, and workable conditions can be put in place
• decision makers are confident the social worker can and will comply with the conditions
• the social worker does not pose a risk of harm to the public by being in restricted practice

115. Decision makers commonly apply conditions of practice in cases of lack of competence or ill health. Conditions of practice may be appropriate where (both of the following apply):

• public protection can be delivered by some restriction of practice
• it is not necessary for public protection (or public confidence in the profession) to suspend the social worker’s registration

116. When considering public protection, decision makers must fully assess insight and the social workers past engagement with the regulator and any employer. This should help to determine whether the social worker can comply with conditions of practice.

117. Decision makers must also be satisfied that the social worker is willing to (and capable of) complying with the conditions. Previous breaches of guidance or protocols may raise significant doubt about whether the social worker can (or will) comply with conditions. This is especially true where breaches were deliberate. On the other hand, early engagement with retraining and remediation may indicate that conditions are appropriate and workable.

When a conditions of practice order may not be appropriate

118. Conditions of practice are less likely to be appropriate in cases of character, attitude or behavioural failings. They may also not be appropriate in cases raising wider public interest issues.

119. For example, conditions are unlikely to be appropriate in cases of (any of the following):

• sexual misconduct
• violence
• dishonesty
• abuses of trust
• discrimination involving a protected characteristic

Length of conditions of practice order

120. We can impose conditions of practice on a social worker’s registration for up to 3 years at a time. [21] Decision makers should consider all information available and decide on an appropriate and proportionate length of the order. The length of time conditions of practice orders are in place should be long enough for the social worker to complete any necessary remediation. The decision makers should clearly set out their reasoning for deciding on a particular length of the order.

121. The adjudicators must review the conditions of practice order before it expires. [22] They can then (do any of the following):

• extend the order (if the social worker is still not fit to practise)
• replace it with a different order (if the social worker is still not fit to practise)
• revoke the order

122. The order can also be reviewed early (well ahead of its expiry date). The adjudicators will do this if there is new information, which suggests the order is no longer appropriate or proportionate in the circumstances. [23]

[note 21] Schedule 2, paragraph 13(3) of the regulations

[note 22] Schedule 2, paragraph 15(1) of the regulations

[note 23] Schedule 2, paragraph 15(2) of the regulations

Considerations for formulating conditions

123. Decision makers should use the fitness to practise conditions bank and glossary of terms to assist them in drafting appropriate conditions of practice.

124. Conditions of practice must be proportionate and workable. In determining whether a condition is workable, the decision makers should make reference to (all of the following):

• the social worker and their working environment
• any practical implications for employers

For example, the conditions of practice may involve a high level of supervision. If so, the decision maker should consider whether it’s reasonable to expect an employer to provide this level of supervision.

125. Social Work England should be able to monitor, measure and verify compliance with the conditions. This could be achieved by requesting regular reports from a social worker’s line manager or a workplace supervisor.

126. When setting a condition, decision makers must remember that the primary objective is to protect the public. It is not the role of the regulator to take responsibility for directing how the social worker remediates. It is the social worker’s professional responsibility to regain their fitness to practise. Part of any assessment of successful remediation will be how the social worker has managed these concerns, and what action they have taken to mitigate them.

127. Conditions of practice should not normally be so restrictive as to amount to suspension. They should be achievable and proportionate.

Examples of conditions of practice

128. Some cases may relate to ill health. If so, it may be reasonable to include a condition that the social worker must cease practice if advised to do so by their treating medical professional. This enables the social worker to practise when fit enough to do so, but protects the public should the social worker suffer a relapse of ill health. This will only be appropriate where the decision makers are satisfied that the social worker (both of the following):

• will fully engage with their treating medical professional
• has insight regarding their health

129. Some cases may relate to a social worker not having the necessary knowledge of English. If so, a reasonable condition might be that the social worker must not work until they have passed an assessment of their English language skills. This effectively prevents the social worker from practising until they have passed the assessment. However, this is likely to be insufficient if the social worker has previously practised when knowingly deficient in English language skills.

The role of the case review team

130. The case review team support social workers who have a conditions of practice or suspension order imposed on their registration. They monitor compliance with those orders.

131. If the decision makers are considering imposing conditions of practice, they may seek the input of the case review team. The case review team is responsible for the monitoring of conditions once they are in place. They are often best placed to advise on whether it is possible for the regulator to monitor compliance with conditions of practice.

132. The case review team may recommend amendments to the draft conditions. They may do so when (either of the following):

• specific conditions do not appear to be measurable or verifiable
• the conditions of practice contain typographical, grammatical or formatting issues

133. The case review team must not do (any of the following):

• amend the decision maker’s draft decision
• give any opinions to the decision makers on their assessment of a case
• give any opinions to the decision makers on the evidence available
• give any opinions to the decision makers on their decision to impose a conditions of practice or suspension order

134. The decision makers do not have to accept any recommendations from the case review team.

Suspension orders

135. A suspension order prohibits a social worker from practising their profession in England for a period of time.

When a suspension order may be appropriate

136. Suspension is appropriate where (both of the following apply):

• the decision makers cannot formulate workable conditions to protect the public or the wider public interest
• the case falls short of requiring removal from the register (or where removal is not an option)

137. Suspension may be appropriate where (all of the following):

• the concerns represent a serious breach of the professional standards
• the social worker has demonstrated some insight
• there is evidence to suggest the social worker is willing and able to resolve or remediate their failings

When a suspension order may not be appropriate

138. Suspension is likely to be unsuitable in circumstances where (both of the following):

• the social worker has not demonstrated any insight and remediation
• there is limited evidence to suggest they are willing (or able) to resolve or remediate their failings

Length of suspension order

139. Suspension orders can be imposed for up to 3 years at a time. [24] Decision makers should ensure the length of the suspension they impose is necessary and proportionate. They should remember that the purpose of the proceedings is not to punish.

140. In deciding on the period of suspension, decision makers should balance (both of the following):

• the need to protect the public and the wider public interest
• the risk that prolonged suspension may result in a social worker’s skills declining (or ‘deskilling’)

141. It is in the public interest to support a trained and skilled social worker to return to practice (if this can be achieved safely). This means the risk of deskilling is a public interest consideration. However, decision makers should also take into account that suspension orders are automatically reviewed before expiry. If the suspension period is too short, this may not allow the social worker to meaningfully demonstrate their improvement prior to the review.

142. Suspension up to one year may be appropriate if the suspension’s primarily aim is (one or both of the following):

• maintaining confidence in the profession
• ensuring the professional standards are observed
  

143. In some cases, there is no reasonable prospect of the social worker regaining fitness to practise in the short term. If so, it may be appropriate to impose a longer period of suspension. For example, where the social worker is subject to a criminal sentence and the suspension is imposed to cover the period of the sentence.

144. There may be instances where the social worker does not intend to remediate or practise in the short term but wishes to do so later. This could include cases of chronic ill health. If so, it may be in the interests of the social worker to impose a longer period of suspension. This avoids the stress for the social worker of a review hearing before they have recovered to full health. If the social worker makes an earlier recovery, Social Work England can schedule an early review hearing to consider (either of the following):

• revoking the suspension
• allowing a phased return to practice through conditions

[note 24] Schedule 2, paragraph 13(3) of the regulations

Setting recommendations

145. Where decision makers impose a suspension, they should be clear in their written decision that adjudicators reviewing the order will expect to see improvement at the next review. It is good practice for the decision makers to set out recommendations. These are not the same as conditions because compliance is not mandatory. They are suggested steps that the social worker can voluntarily take to evidence improvement at the review hearing. For example, doing further training or gathering testimonials.

146. In the absence of improved insight or other remediation upon review, a removal order may be an appropriate sanction. This is subject to the section ‘when a removal order cannot be made’.

Removal orders

147. A removal order prohibits the social worker from practising their profession in England. A person subject to a removal order may only apply to be restored to the register 5 years after the date the removal order took effect. [25] The adjudicators will decide whether to restore a person to the register. [26]

[note 25] Regulation 15, paragraph 15(4) of the regulations

[note 26] Regulation 15, paragraph 15(3)(a) of the regulations

When a removal order may be appropriate

148. A removal order must be made where the decision makers conclude that no other outcome would be enough to (do one or more of the following):

• protect the public
• maintain confidence in the profession
• maintain proper professional standards for social workers in England

The written decision should explain why lesser sanctions are insufficient to meet these objectives.

149. A removal order may be appropriate in cases involving (any of the following):

• abuses of position or trust (see section ‘abuse of trust’)
• sexual misconduct (see section ‘sexual misconduct’)
• sexual abuse of children or offences involving child sexual exploitation material (see section ‘convictions for sexual offences’)
• dishonesty, especially where persistent and/or concealed (see section ‘dishonesty’)
• criminal convictions for serious offences (see section ‘criminal convictions and cautions’)
• violence
• persistent lack of insight into the seriousness of their actions or consequences
• social workers who are unwilling and/or unable to remediate (for example, where there is clear evidence that they do not wish to practise as a social worker in the future)

When a removal order cannot be made

150. Removal orders are not available in (cases involving any of the following grounds):

• adverse physical or mental health
• lack of competence or capability
• not having the necessary knowledge of English

This is unless (both of the following):

• the social worker’s registration has already been subject to a final order of suspension or conditions of practice (or a combination of both) on these grounds
• these orders have applied continuously for at least 2 years leading up to the making of the removal order. [27] The time a social worker has spent subject to an interim order does not count towards this time period
  

[note 27] Schedule 2, paragraph 13(2)(b) of the regulations

Further guidance on types of concerns

Lack of competence or capability cases

151. Lack of competence or capability is a separate and distinct category of impairment from misconduct. [28] Lack of competence or capability suggests a standard of professional performance which is unacceptably low. It demonstrates that the social worker may lack the knowledge and skills to carry out their role in a safe and effective manner.

152. Usually, Social Work England must demonstrate lack of competence or capability over a fair sample of a social worker’s work. There is no set definition of ‘fair sample’. It suggests a sample sufficient to show the social worker’s usual standard of work over a period of time.

153. Single episodes or incidents do not normally suggest a social worker lacks the knowledge or skills to be competent. In exceptional circumstances, a single episode or incident can happen because of a lack of knowledge or competence in a fundamental aspect of social work. This may raise a wider issue of concern for public safety. However, the single episode or incident would need to be very serious. In such cases, a decision maker may make a finding of impairment and decide to place a sanction on the social worker’s practice and registration.

[note 28] See Calhaem v GMC [2007] EWHC 2606 (Admin), paragraph 39 which sets the difference between deficient performance and serious misconduct, and the thresholds for each

Abuse of trust

154. Social workers hold privileged positions of trust. Their role often requires them to engage with vulnerable people. It is essential to the effective delivery of social work that the public can trust social workers. Any abuse of trust by a social worker is a serious and unacceptable risk in terms of public protection and confidence in the profession.

155. A social worker may abuse their professional position in a number of ways, for example (by doing any of the following):

• crossing professional boundaries by engaging in inappropriate personal relationships
• financially exploiting a service user, their relatives or carers
• inappropriately accessing confidential information without professional reason

156. Personal relationships with former service users may also be inappropriate depending on (all of the following):

• the nature of the previous professional relationship
• the length of time since the professional relationship ended (social workers should not end a professional relationship with a service user solely to pursue a personal relationship with them)
• the vulnerability of the service user
• whether the social worker is providing professional support to other members of the service user’s family

157. The more recently a professional relationship with a service user has ended, the less likely it is that beginning a personal relationship is appropriate. The duration of the professional relationship may also be relevant. For example, a relationship with a former service user with whom a social worker professionally engaged with over many years is more likely to be inappropriate. On the other hand, a relationship with a service user with whom the social worker only had a single professional interaction is less likely to be inappropriate.

158. Decision makers must assess each case on its facts and circumstances. They must apply proportionality considering any mitigating or aggravating factors. However, most cases of serious abuses of trust are likely to require suspension or removal from the register. If a decision maker decides on a lesser sanction, they must provide detailed reasoning.

Sexual misconduct

159. Sexual misconduct covers a wide range of conduct. This includes (any of the following):

• criminal convictions for sexual offences
• sexual harassment
• pursuing an inappropriate sexual relationship
• any other misconduct of a sexual nature (such as sexual touching and inappropriate comments)

160. The conduct can be directed at (any of the following):

• people using social work services
• the relatives or carers of people using social work services
• colleagues
• members of the public

161. Decision makers should consider imposing a more serious sanction if they find the social worker impaired because of sexual misconduct. This is because of the seriousness of these types of cases.

162. Serious cases of sexual misconduct may include, but are not limited to (any of the following):

• convictions for sexual offences
• circumstances involving an abuse of professional position by the social worker
• conduct involving children or vulnerable individuals. (Factors contributing to vulnerability may include mental illness, age, disability, lack of capacity, or history of abuse or neglect)

163. In all cases of serious sexual misconduct, it will be highly likely that the only proportionate sanction is a removal order. If decision makers decide that a sanction other than a removal order would be appropriate, they must fully explain why they have made that decision.

Convictions for sexual offences

164. Convictions for the most serious sexual offences will likely engage regulation 26(5). This will require Social Work England to automatically remove the social worker from the register, without a hearing (see section ‘automatic removal’). However, there are still a range of criminal convictions for sexual offences that do not engage automatic removal. In these cases, the decision makers will need to make a decision.

165. Decision makers should always view convictions for sexual offences seriously. This is the case even if the convictions relate to the social worker’s private life. This is because sexual offences undermine public confidence in the profession. However, the more serious convictions will be those involving (either of the following):

• abuse of the social worker’s professional position
• children

166. A social worker being involved in taking, making, sharing and/or possessing an indecent image or pseudo-photograph of a child will be considered extremely seriously. Any conviction related to child sexual exploitation material will clearly undermine public confidence in the profession.

Sexual misconduct involving service users, their relatives or carers

167. Sexual misconduct that involves an abuse of the social worker’s professional position is a serious abuse of trust. For example, pursuing a sexual relationship or engaging in sexual conduct (in any form) with someone who uses social work services, their relatives, or their carers.

168. People who use social work services are not necessarily always vulnerable. However, there is still an inherent power imbalance in the professional relationship between the service user and the social worker. This power imbalance may continue even after the professional relationship with the individual has ended. This means sexual misconduct with service users, their relatives, or carers will likely undermine public confidence in the profession.

169. The most serious sexual misconduct in these instances may include, but are not limited to (any of the following):

• misconduct which took place when the social worker was involved professionally with the person using social work services, their family, or carers
• evidence that the social worker’s professional status was a coercive factor in engaging in the relationship and/or sexual conduct
• misconduct directed towards particularly vulnerable service users. (Factors contributing to vulnerability may include mental illness, age, disability, lack of capacity or history of abuse or neglect)
• misconduct that includes predatory behaviour (such as contacting people using details from case records, or inappropriate use of social media websites to approach a person)

Sexual misconduct involving colleagues

170. Sexual misconduct with respect to colleagues can include a range of sexual behaviour including (any of the following):

• engaging in a sexual relationship and/or sexual contact with a colleague (where there may be a power imbalance or conflict of interest)
• sexual harassment of colleagues in the workplace
• making inappropriate comments of a sexual nature in the workplace

171. Decision makers must take sexual misconduct involving colleagues seriously. This is because it can damage workplace relationships and negatively impact the quality of care and support provided to service users. It can also damage public confidence in the profession.

Dishonesty

172. Honesty is key to good social work practice. Social workers are routinely trusted with access to private spaces (such as people’s homes), and highly sensitive and confidential information (such as case notes).

173. Other organisations also rely on the honesty and integrity of social workers when making important decisions about service users, their relatives and carers. This includes (all of the following):

• the police
• the courts
• local and health authorities
• other agencies

Because of this, dishonesty is likely to threaten public confidence in the social work profession. This is the case both in professional practice and in the social worker’s private life.

174. Concerns that raise questions of character (such as dishonesty) may be harder to remediate. This is because it is more difficult to produce objective evidence of reformed character. Evidence of professional competence cannot mitigate serious or persistent dishonesty. Dishonest conduct is highly damaging to public confidence in social work. Therefore, it is likely to warrant a finding of impairment and a more serious sanction of suspension or removal.

Dishonesty in professional practice

175. The most serious instances of dishonesty in professional practice are those which (do either of the following):

• directly harm service users
• have the potential to put service users at risk

176. This could include (any of the following):

• defrauding people who use social work services, their relatives or carers
• falsifying records (such as falsely recording that a safeguarding referral has been made or a statutory visit carried out)

Other examples of dishonesty in professional practice include (any of the following):

• defrauding an employer
• financial dishonesty (such as theft or fraud)
• submitting inaccurate or misleading information in a CV or job application
• providing inaccurate information to the regulator (such as not disclosing a criminal conviction in a registration renewal application)

177. Financial dishonesty (such as theft or fraud) is particularly serious if it leads to (either of the following):

• losses of public funds that should be used to deliver services
• people who use social work services (and their families) losing their property (such as their belongings)

This is because it may impact the amount of resources available to support people.

178. Dishonesty through misrepresenting qualifications, skills and experience (for example on a CV) is also particularly serious. This is because it may lead to the social worker being appointed to roles and responsibilities that they cannot safely carry out. The public and employers must be able to trust the accuracy of such information provided by social workers.

Dishonesty in a social worker's private life

179. Dishonesty in a social worker’s private life will still likely undermine public confidence and trust in the social work profession. This is true even if people who use services are not directly affected. Examples might include criminal convictions for fraud or providing false statements.

180. Dishonesty is generally recognised as one of the most serious forms of misconduct. However, decision makers should consider that dishonest behaviour is nuanced and can take different forms. They should consider it on a scale of seriousness.

181. Factors that decision makers can consider when reviewing dishonesty include (all of the following):

• the duration of any dishonesty
• whether the dishonesty was an isolated instance, or indicates a larger problem or pattern of behaviour
• whether the social worker admitted dishonest behaviour at an early opportunity, or if they tried to purposefully hide their dishonesty
• whether the dishonesty was for the social worker’s own personal gain
• any other relevant aggravating or mitigating factors

Criminal convictions and cautions

182. Where a social worker has been convicted of a criminal offence, a certified copy of the certificate or memorandum of conviction will be conclusive proof of the conviction. The findings of fact upon which the conviction is based will be admissible as proof of those facts [29]. As such, decision makers should not question the basis of the conviction.

183. Decision makers should not give any weight to (either of the following arguments):

• a social worker arguing that they are not guilty of the offence
• a social worker arguing that they did not realise what they were admitting to

Decision makers can still consider the background facts and circumstances surrounding the conviction. However, they should not use these to undermine the basis of the conviction.

184. Decision makers should not use a sanction to further punish a social worker for an offence.

[note 29] Rule 35A of the Fitness to Practise Rules 2019 (as amended) 

Automatic removal

185. Under our regulations, adjudication is not required for cases in which a social worker is convicted of the most serious criminal offences. For example, murder, certain sexual offences or slavery [30]. If a social worker has been convicted of these offences, Social Work England can remove them from the register immediately (without a hearing).

186. If there has been an error of fact prior to removal from the register, the social worker can challenge automatic removal at a hearing. [31] For example, if there is evidence that the social worker was not the person convicted of the offence.

[note 30] See schedule 3 of the regulations for the listed offences

[note 31] Regulation 27(1) of the regulations

Other convictions

187. If a social worker has a conviction that does not qualify for automatic removal, decision makers may still remove their registration. This will depend on the nature of the offence.

188. Decision makers must assess the conviction against the available sanctions. They should determine what sanction is necessary to protect the public and the wider public interest. However, decision makers should also note case law. Case law confirms that a social worker convicted of a serious offence should not normally be permitted to return to practice (while they are still subject to a criminal sentence). This includes any suspended custodial sentence or community order [32].

189. Decision makers should be mindful that a criminal sentence isn’t necessarily a reliable guide to the seriousness of the offence. There may have been personal circumstances that led the court to be lenient. For example, a court may have expressed an expectation that the person’s professional regulator will remove their registration.

[note 32] See annex 1: key case law CHRE v Fleishmann and GDC [2005] EWHC 87 (Admin)

Cautions

190. Cautions are issued by police when (both of the following):

• a person has admitted to committing a criminal offence
• the police consider court proceedings to be unnecessary

The issuing of a caution acknowledges an admission of guilt and suggests the offence is of a lower severity. However, decision makers must continue to consider the impact on public protection and the wider public interest when proposing an outcome.

Reasons for decisions being made

191. We publish all fitness to practise decisions which result in a finding of impairment and adjudicator decisions where there has been no finding of impairment, making them available to the public. These will be decisions made by the adjudicators or case examiners.

192. All decisions must be clear about the outcome. This allows anyone to understand the case against the social worker, and how and why the decision was made.

193. The reasons for a decision should include (all of the following):

• a description of the events that led to the fitness to practise concern
• a summary of the key facts that raise a question of impairment
• an analysis of the reliability and credibility of the evidence which supports the key facts. This includes the credibility of witness evidence (where appropriate)
• a summary of where the key facts are contested
• an explanation of how and why the adjudicators have resolved conflicts of evidence over key facts (where appropriate). Case examiners should not normally resolve conflicts of evidence. However, they are entitled to reject challenges to evidence that are clearly unsustainable or without merit
• the factors the decision makers considered when they assessed seriousness and impairment. This includes the relative weight given to each factor. The decision should address and explain each factor
• the reasons for the decision on impairment or sanction. These may include a summary of the facts and the factors as already set out. The reasons should explain the decision makers’ reasoning on (all of the following):
  
  • the current risk to public safety
  • any risk in maintaining public confidence in the social work profession
  • any risk in maintaining the standards of professional performance of social workers

194. If a case examiner offers an accepted disposal, the impairment and sanction determinations will be combined. In hearings, the adjudicators may decide to hear submissions on impairment and sanction together (with input from Social Work England and the social worker, or their representative). This may be appropriate where (either of the following):

• the concern is so serious that the adjudicators believe a finding of impairment is inevitable
• where the social worker has admitted impairment

195. If the social worker denies impairment, it may be necessary for the adjudicators to hear submissions from both parties. They will determine whether or not there is impairment based on these submissions. If impairment is found, they will go on to consider sanction. In such cases, the assessment of seriousness of the case is likely to inform the impairment decision. It is not usually necessary for the decision makers to set out these factors again at point of sanction. This is because their overall decision will explain the submissions made (and the weight they gave to those submissions when making their decision).

Publishing decisions

196. Social Work England will publish a decision where (any of the following):

• adjudicators find the social worker’s fitness to practise is not impaired at any of the 3 decision making stages (facts, grounds or impairment)
• adjudicators find the social worker’s fitness to practise is impaired
• case examiners find a realistic prospect of impairment (and they dispose of the case through accepted disposal)

197. Published decisions in health cases must not include any information that identifies the precise nature of the social worker’s health condition. Decision makers should produce a private version of the decision, which sets out (both of the following):

• the specific health condition
• any health information that was considered by the decision makers

We will provide this version to the social worker, but we will not publish it. The published decision should still cover the issues relevant to the question of impairment. For example, the extent the social worker has shown insight into how their condition impacts their fitness to practise.

198. It is important that published decisions are accessible. Anyone should be able to read and understand them. We publish both case examiner decisions and adjudicator decisions on our website.

199. The following decisions will not be published on the website:

• case examiner decision to refer a case to a hearing
• case examiner decision (or parts of the decision) where they have found there is no realistic prospect of the adjudicators finding impairment

Recording a sanction on the register

While the sanction is in force

200. If decision makers have imposed a sanction, we must include this in the social worker’s public extract of the register (while the sanction remains in force). This includes warnings and advice issued after a finding of impairment [33].

[note 33] Rule 48 of the Fitness to Practise Rules 2019 (as amended)

After the sanction has expired

201. How long a sanction stays on a social worker’s public extract of the register after it has expired depends on the type of sanction. As set out in the rules, these time periods are as follows:

• finding of impairment with no sanction: 1 year from the date of the finding of impairment [34]
• conditions of practice: 5 years from the point the order ends [35]
• suspension orders: 5 years from the point the order ends [36]
• removal order: permanent record that the social worker has been removed from the register [37]

202. In some cases, we will give a warning, conditions of practice or suspension order in relation to a finding of adverse physical or mental health. If so, we will remove the information about the order from the public extract of the register when the order expires.

[note 34] Rule 49(c) of the Fitness to Practise Rules 2019 (as amended)
[note 35] Rule 49(b) of the Fitness to Practise Rules 2019 (as amended)
[note 36] Rule 49(b) of the Fitness to Practise Rules 2019 (as amended)
[note 37] Rule 49(a) and Rule 50 of the Fitness to Practise Rules 2019 (as amended)

Interim orders at final hearings

203. When the adjudicators are considering a case at a final hearing, they may impose an interim order under schedule 2, paragraph 11 of the regulations. They may do this where they (either of the following):

• have not yet made a determination. For example, after facts and impairment have been determined, but the hearing is adjourned before the sanctions stage
• are making a final order

204. The adjudicators may make an interim order where they consider it necessary for (either of the following):

• the protection of the public
• the best interests of the social worker
  

Before a determination

205. Before making a final determination in the case, an interim order cannot be imposed unless the adjudicators have given the social worker the opportunity to make oral or written submissions. [38]

[note 38] Schedule 2, paragraph 11(2) and (2B) of the regulations

When making a final order

206. When the adjudicators make a final order under schedule 2, paragraph 13(1) of the regulations the order does not take effect until (either of the following):

• the expiry of the appeal period
• (if an appeal is made) when the social worker withdraws the appeal, or the Court disposes of it [39]

207. An interim order may be necessary where the adjudicators have decided that a final order is required, which restricts or removes the ability for the social worker to practise. For example, conditions of practice, suspension or removal orders. Without an interim order, the social worker will be able to practise unrestricted until the order takes effect. This goes against our overarching objective of public protection.

208. If adjudicators are considering making an interim order when making a final order, they do not need to give notice to the social worker to impose an interim order. [40]

[note 39] Schedule 2, paragraph 12(5) of the regulations

[note 40] The requirement to provide the social worker with notice as set out in schedule 2, paragraph 11(2) does not apply to interim orders made when making a final order under paragraph 11(1)(b)

Where an interim order is already in place

209. There may be circumstances where an interim order is already in place when the adjudicators are considering a final hearing. For example, the adjudicators may have imposed an interim order under schedule 2, paragraph 8(2) of the regulations. An order made under that provision may still be in effect at the time a final order is made. This is because under paragraph 8(6), the order ceases to have effect (any of the following):

• once the period it was imposed for has expired
• after the expiry of the appeal period of the final order [41]
• (if an appeal of the final order is made) when the appeal is withdrawn or the Court finally disposes of it [42]

210. In circumstances where a schedule 2, paragraph 8(2) interim order is still in effect at the conclusion of the final fitness to practise hearing, Social Work England will usually seek to (do both of the following):

• revoke the existing interim order
• apply to the adjudicators for a new interim order (under schedule 2, paragraph 11(1)(b) of the regulations)

Social Work England consider this to be in the wider public interest. This is because allowing the existing interim order to remain in place could require us to make an extension application to the High Court and the order would continue to need regular review. However, we consider retaining a schedule 2, paragraph 8(2) interim order in these circumstances to an unnecessary expense and use of public resources. [43]

211. To revoke the existing interim order, Social Work England would need to notify the social worker that we are reviewing the order ahead of the hearing. In most circumstances, Social Work England will ask the social worker to waive their right to the notice period (if they attend the hearing).

212. However, in some cases the social worker (either of the following):

• is not at the hearing
• does not waive their right to notice

If so, Social Work England will apply for a new interim order under schedule 2, paragraph 11(1)(b). There is nothing in the regulations to prevent 2 interim orders existing simultaneously.

A review of the interim order imposed under schedule 2, paragraph 8(2) may fall during the 28-day appeal period for the final order. At the interim order review, Social Work England will ask the adjudicators to revoke the original schedule 2, paragraph 8(2) interim order.

[note 41] An interim order will only cease to have effect when a final order takes effect if the interim order relates to the same set of allegations that form the basis of the final order. For example, if the interim order covers two sets of allegations, one of which still needs to be resolved at a separate final fitness to practise hearing, the interim order will remain in place to cover the unresolved case

[note 42] Same as above

[note 43] A schedule 2, paragraph 11(1)(b) interim order does not require regular review.

Reviews

Mandatory reviews

213. We must review a suspension order or a conditions of practice order before it expires. This is set out under schedule 2, paragraph 15(1) of the regulations. This applies whether the order was imposed by the case examiners or the adjudicators.

214. During a review of a social worker’s final order, the adjudicators will look again at (all of the following):

• the overarching objective of public protection
• maintaining confidence in the social work profession
• upholding professional standards

215. If a social worker remains not fit to practise, the adjudicators will make a decision on what order should be imposed.

216. A social worker must not be allowed to resume unrestricted practice unless the decision makers are satisfied their fitness to practise is no longer impaired.

217. The review process should not undermine the original decision made by the case examiners or adjudicators. A review looks at what has happened since the order was put in place.

The purpose of a review is to consider whether (all of the following):

• the social worker has demonstrated remediation, insight and/or remorse
• the social worker has demonstrated they are now safe to practise and/or there is no longer a risk to the public
• the social worker has taken steps to maintain their skills and knowledge
• the social worker's fitness to practise remains impaired (and if so, whether the existing order or another order needs to be in place)
• the adjudicators should consider whether the social worker has sufficiently addressed the concerns raised in the original finding of impairment

The outcome of a review could be to (any of the following):

• extend the period for which the previous order is in place (provided that any extension does not exceed 3 years at a time)
• replace a suspension order with a conditions of practice order
• make an order that case examiners or adjudicators could have made at the time (provided that the order does not exceed 3 years at a time)
• revoke the order in place

218. At a review, the adjudicators will consider any new information available about the social worker since the final order was originally imposed. For example, information about the conduct, performance or health of the social worker. This should be information that was not available prior to the previous decision. This may include whether the social worker has (done both of the following):

• complied with the existing order. For example, complied with the conditions of a conditions of practice order
• taken steps to address the specific failings or other issues identified in the previous decision

Early reviews

219. Under schedule 2, paragraph 15(2) of the regulations, Social Work England can conduct a review of a final order where there is new evidence available. We refer to these reviews as ‘early reviews’.

220. The guidance on early reviews sets out (all of the following):

• why (and on what evidence) we may review an order early
• who decides whether to direct an early review
• how the review is conducted

Annex 1: Key case law

Assessing current impairment

Cohen v GMC [2008] EWHC 581 (Admin)

At the impairment stage the tribunal should take account of evidence and submissions that the conduct:

• a) is easily remediable
• b) and that it has already been remediated
• c) and that it is highly unlikely to be repeated

The Cohen judgment was considered and expanded upon by the subsequent judgment:

CHRE v Grant and NMC [2011] EWHC 927 (Admin)

Para 76: Identified from the Fifth Shipman Report an appropriate test for impairment:

‘Do our findings in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

• a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
• b) has in the past and/or is liable in the future to bring the medical profession into disrepute; and/or
• c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
• d) has in the past acted dishonestly and/or is liable to act dishonestly in the future.’

Relevance of current criminal sentences

CHRE v Fleishmann and GDC [2005] EWHC 87 (Admin)

Para 54: ‘I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence.’

Relevance of confidence in the profession as a factor in determining sanction

Bolton v Law Society [1994] 1 WLR 512

‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.’

Test of dishonesty

Ivey v Genting Casinos [2017] UKSC 67

‘The fact finding tribunal must first ascertain (subjectively) the actual state of mind of the individual’s knowledge or belief as to the facts… When once his actual state of mind as to his knowledge or belief as to the facts has been established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

The difference between deficient performance and serious misconduct, and the thresholds for each

Calhaem v GMC [2007] EWHC 2606 (Admin)

Para 39:

(1) Mere negligence does not constitute ‘misconduct’ within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to ‘misconduct’.

(2) A single negligent act or omission is less likely to cross the threshold of ‘misconduct’ than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission if particularly grave, could be characterised as ‘misconduct’.

(3) ‘Deficient professional performance’ within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute ‘deficient professional performance’.

(5) It is neither necessary nor appropriate to extend the interpretation of ‘deficient professional performance’ in order to encompass matters which constitute ‘misconduct’.