Self-represented social workers at fitness to practise hearings

Last updated: 16 December 2022

• About this guidance
• Self-represented social workers
• Guidance for the panel of adjudicators
• The order of proceedings in a hearing
• The role of the legal adviser
• The role of a McKenzie friend

About this guidance

This guidance applies to hearings in which a social worker is representing themselves.

This guidance is for (both of the following):

• the panel of adjudicators
• legal advisers

It may also be helpful if you are a self-represented social worker. It can help you understand what to expect at your hearing.

This guidance sets out (all of the following):

• what a self-represented social worker is
• the role of the panel of adjudicators, and how they should interact with a self-represented social worker during a fitness to practise hearing
• how a fitness to practise hearing progresses when a social worker is self-represented
• the role of the legal adviser
• the role of a McKenzie friend (if applicable)

Self-represented social workers

A social worker may bring legal representation to the hearing. Or, they may choose to present their own case. We call this being ‘self-represented’. It may also be referred to as being ‘unrepresented.’

Social workers can often benefit from having legal representation. However, it is not essential for participating in the hearings process. We have designed the process to enable self-represented social workers to present their case.

Guidance for the panel of adjudicators

The role of the panel of adjudicators

During fitness to practise hearings, the panel of adjudicators must conduct their proceedings fairly. Social Work England are responsible for proving the factual case against the social worker.

The panel of adjudicators must balance the needs of (both of the following):

• public protection (by determining whether the social worker is fit to practise)
• each party in the hearing (by ensuring they have a reasonable opportunity to present their case)

A self-represented social worker may be anxious and unfamiliar with the hearings procedure and with the law. The adjudicators and the legal adviser should ensure the social worker is not disadvantaged by a lack of understanding.

Any allowances the adjudicators make for the social worker (such as extra time or further explanation of the process) should not be at the expense of managing the hearing. The adjudicators and the legal adviser must remember that it is entirely the social worker’s responsibility to present their case.

At the start of the hearing

What the social worker should know and have

At the start of a hearing, the panel of adjudicators should make sure that the social worker knows (all of the following):

• who the panel of adjudicators are, and the function of the panel
• the identity and role of others in the hearing (excluding any observers)
• the grounds on which the social worker can request all or part of the hearing to be in private. For example, if the hearing will discuss details about their health. The adjudicators should explain how a private hearing works. Observers will be asked to leave, and the information won’t feature in the public determination or public transcript

The adjudicators should also confirm the social worker has received the necessary documents (all of the following):

• the final statement of case (which will include the social worker’s response, if provided)
• final hearing bundles

The final hearing bundles will usually include:

• witness statement bundle
• exhibit bundle (the documents that are referenced in the witness statements)
• response bundle (documents containing the social worker’s response or other documents they wish to rely on)
• supplementary bundle (if applicable) (any additional documents that have been received since the bundles above were created)
• service bundle (if applicable) (this will include the notice of hearing and documents that prove it has been sent to the social worker)

The adjudicators should check that the social worker is content that their response or documents are included in the bundles.

All parties should have the same pagination on their bundles. The adjudicators should check to confirm this.

The adjudicators should then identify if either Social Work England or the social worker have any preliminary issues or applications they wish to be heard.

Confirming the hearing timetable

The adjudicators should confirm the proposed hearing timetable with the parties. This includes identifying whether they may have any issues complying with the timetable.

Social Work England will have invited the social worker to contribute to this timetable, during the pre-hearing case management process. The timetable will already take account of the social worker being self-represented. As such, providing additional time for the social worker to read documents should not be necessary.

If possible, the adjudicators should agree with both parties at the start of each day or session (both of the following):

• what’s expected to happen, and in what order
• how far the parties expect the case to progress in that day or session

Reasonable adjustments

Any party participating in the hearing, such as the social worker, a witness or the adjudicators, may require reasonable adjustments. More information is available in our guidance equality and diversity – reasonable adjustments. These may have been identified before the hearing (through case management or case investigation), but the adjudicators should check again before the hearing starts to help to put all participants at ease.

During the hearing

Ensuring understanding

During the hearing, the adjudicators and/or the legal adviser should check that the social worker understands what they have been told. They may do this by breaking down information into smaller pieces, or taking short breaks to explain the process throughout the hearing.

The social worker should tell the adjudicators if they do not understand any of the process, so it can be clarified. If the social worker seems uncertain, the adjudicators and/or the legal adviser should remind them that they can do this.

It may be necessary for the adjudicators to raise issues with the social worker where they have concerns about how they are conducting their case. This may be appropriate if, for example, a question they’ve asked of a witness is not relevant to the case, or is not one the witness can reasonably answer. If this is necessary, the adjudicators should clearly explain the reasons for the direction, and check the social worker has understood them.

Protecting witnesses

Witnesses are entitled to protection from questioning that is unreasonable, irrelevant or confrontational. These rights apply regardless of the social worker’s representation. The adjudicators should be careful not to allow more leeway to self-represented social workers.

As such, self-represented social workers are expected to conduct themselves in an appropriate manner when engaging with witnesses.

Following the hearing timetable

The adjudicators should be clear at all times about the importance of following the hearing timetable. They should not allow hearing sessions to go on for an excessive length of time.

The adjudicators should consider offering breaks at key points during the hearing. This may be appropriate, to allow the social worker to (either of the following):

• reflect on what questions they want to ask a Social Work England witness
• prepare their closing submissions at the end of each stage

The hearing timetable should have allowed extra time for the self-represented social worker. This time is for them to consider the evidence and submissions, and to prepare their responses, as the case progresses.

Social Work England’s advocate and the social worker should indicate, as the hearing proceeds (both of the following):

• how long they expect to speak to each witness
• how long they need to make their submissions to the adjudicators

The order of proceedings in a hearing

1. The hearing officer will read out the allegations against the social worker.
2. The panel of adjudicators will ask the social worker whether they admit or deny each allegation. The adjudicators will find those facts admitted by the social worker proved.
3. Social Work England will present their case first, on the disputed facts. The Social Work England advocate will call witnesses to give evidence. Each witness will generally adopt their witness statement. This means that they do not need to read their witness statement (or the evidence contained in their witness statement) aloud. The advocate may ask further, supplementary questions of each witness.
4. After each witness gives their evidence (including answering any questions from the advocate), the social worker will have the opportunity to ask them questions. This is known as ‘cross-examination’. When asking questions, the social worker should put their version of disputed events to the witness to allow the witness to comment. Again, through questioning, the social worker should also raise any issues that support their case, if they were not addressed by the witness in their witness statement or oral evidence.
5. The Social Work England advocate may then ask the witness further questions. This is known as ‘re-examination’.
6. The panel of adjudicators and/or legal adviser may then ask any questions they have of the witnesses.
7. Social Work England will formally close their case. Then, it is the social worker’s turn to present their case.
8. The social worker will have the opportunity to give sworn evidence under oath or affirmation. Sworn evidence is given more weight than evidence not given under oath or affirmation. However, social workers do not have to give evidence if they do not want to. If they choose to give sworn evidence, they may be cross-examined by the Social Work England advocate. The panel of adjudicators may also ask questions of the social worker.
9. The social worker then has the opportunity to call their witnesses (if any) to give sworn evidence. The social worker can ask each witness to adopt their witness statement, and ask any additional questions. Social Work England’s advocate can then cross-examine the witness. The panel of adjudicators can also ask questions of the witness.
10. The panel of adjudicators will ask the social worker to formally close their case. This will happen after the social worker has given all their evidence, and called all their witnesses. This confirms that they will not be calling any further evidence or witnesses at that stage.
11. Social Work England’s advocate will then make submissions to the panel of adjudicators on any disputed facts. We refer to this as the ‘facts stage’. Submissions should not contain any new evidence or information. The purpose of the submissions is to highlight to the adjudicators, how the evidence demonstrates that the facts should be found proved.
12. The social worker will then have the opportunity to respond and address the panel of adjudicators in submissions. They should highlight the evidence which supports their case, or which undermines Social Work England’s case.
13. The legal adviser will give legal advice to the panel of adjudicators. The adjudicators will then determine whether the facts of the allegation are proven or not. The other parties will not be present for these deliberations. The adjudicators will then return a written decision.
14. If the adjudicators find that none of the facts are proven, they will determine that the case is not well founded and the hearing will conclude. If the panel of adjudicators decides that some or all of the facts are proven, then the case moves to the ‘statutory ground and impairment stage’. At this stage, Social Work England and the social worker can call further evidence and make submissions. This works in a similar way to the facts stage (see paragraph 11). However, the evidence and submissions should be about determining whether the social worker’s fitness to practise is impaired. Both parties may address the adjudicators. First, they should state whether they believe facts found during the hearing have met the threshold for the statutory ground of impairment. The submissions will then address whether the social worker’s fitness to practise is currently impaired.
15. The legal adviser will provide legal advice to the panel of adjudicators. This advice will relate to the issues raised during the statutory ground and impairment stage. The adjudicators will then make their decisions on whether the statutory ground is made out, and whether the social worker’s fitness to practise is currently impaired. The other parties will not be present for these deliberations. The adjudicators will then return a written decision.
16. If the adjudicators do not find either the statutory ground or impairment made out then the hearing will conclude. If the panel of adjudicators finds the social worker’s fitness to practise is impaired, Social Work England and the social worker will both have opportunity to address the panel of adjudicators on sanction. First, Social Work England will make submissions on sanction. This means the advocate will propose a sanction that Social Work England consider appropriate – namely the least restrictive sanction required to protect the public. Then, the social worker will have an opportunity to make submissions on sanction. They may wish to comment on the proposed sanction, or propose an alternative sanction.
17. The panel of adjudicators will then make their final decision about sanction. The other parties will not be present for these deliberations. The adjudicators will return a written decision.
18. Depending on the outcome, the panel of adjudicators will then consider whether to impose an interim order to cover any appeal period. These are most common in cases which result in conditions of practice, suspension, or removal.

A note on interim orders

If the social worker already has an existing interim order and they attended the hearing, Social Work England will ask them to waive their rights to notice. Social Work England will then invite the adjudicators to revoke the interim order and replace it with an interim order for the appeal period. The existing interim order will not be continued.

If the social worker doesn’t wish to waive their rights to notice or did not attend the hearing, Social Work England will still invite the adjudicators to impose an interim order to cover the appeal period. The adjudicators may need to review the original interim order at a later date and will be invited to revoke it.

A note on the cross-examination of witnesses

On some occasions, special measures may be required when cross-examining witnesses. More information can be found in our guidance about special measures for witnesses.

The role of the legal adviser

The role of the legal adviser is to provide advice and guidance on law and procedure to the panel of adjudicators.[1] They are independent of the panel of adjudicators, and do not take part in the decision making.

They can also assist the self-represented social worker, by explaining procedures and giving guidance. However, the legal adviser will not be able to give the social worker legal advice. This means that the guidance that the legal adviser gives cannot extend to (either of the following):

• what specific evidence the social worker might produce
• the content of the submissions the social worker might make

The legal adviser cannot act for a self-represented social worker. For example, a legal adviser cannot construct a defence on the social worker’s behalf.

The legal adviser can help the social worker to form or rephrase questions, so that they are appropriate for witnesses. For example, they might suggest turning a comment into a question. The legal adviser may also ask questions of the social worker, with the permission of the chair of the panel of adjudicators.[2]

A self-represented social worker may benefit from guidance outside the physical or remote hearing room. The legal adviser (or legally qualified chair) may give this guidance. They should give this guidance in the presence of Social Work England’s advocate and the hearings officer (or hearing support officer). This is so that there can be no doubt about what guidance they have offered. The legal adviser should give a summary of this discussion in open session. They should then ask the parties if they agree with that summary.

The legal adviser will give legal advice to the panel of adjudicators, during the adjudicators’ private deliberations. The legal adviser should also repeat this advice in open session, so it can be formally recorded. This also ensures the social worker and Social Work England will be able to comment, should they disagree with the advice given.[3]

[note 1]:  R. (on the application of Roomi) v General Medical Council [2009] 2188 (Admin) ; Libman v General Medical Council [1972] A.C. 217; Haikel v General Medical Council [2002] UKPC 3 

[note 2]: Daly v General Medical Council [1952] UKPC 24

[note 3]: Nwabueze v General Medical Council [2000] 1 WLR 1760 

The role of a McKenzie friend

A lay person may assist the social worker during the hearing. This person is sometimes called a ‘McKenzie friend’. A McKenzie friend is not a representative [4]. This means the social worker is still regarded as being self-represented.

A McKenzie friend can assist the self-represented social worker, by (any of the following):

• Providing moral and emotional support
• Prompting the social worker
• Taking notes
• Quietly giving advice to the social worker

A McKenzie friend cannot (any of the following):

• Speak on the social worker’s behalf
• Ask questions to witnesses
• Address the panel of adjudicators [5]

Social Work England or the adjudicators are able to exclude anyone from the hearing, including the McKenzie friend. They can exclude anyone who, in their opinion, is likely to disrupt the orderly conduct of the proceedings [6]. All parties should be aware of the McKenzie friend’s role, and understand that their involvement must not disrupt proceedings.

The social worker should have informed Social Work England in advance if they wish to have a McKenzie friend with them at the hearing. The hearings officer will bring this to the adjudicators’ attention in advance of the hearing. Usually, the McKenzie friend will not be allowed to remain during private session however, the social worker should remember that if they choose to have someone with them, that person will hear what is said at the hearing.

[note 4]: Rule 40 - Fitness to Practise Rules 2019 (as amended) – outlines those who may represent the social worker. A McKenzie friend should be distinguished from someone who falls under Rule 40(c) such as a family member or any other suitable person as a representative is entitled to speak on behalf of the social worker, put questions to witnesses and address the panel on their behalf. A representative falling under the remit of Rule 40(c) does so at the discretion of the regulator or the adjudicators conducting the hearing. 

[note 5]: The civil and family courts have issued a Practice Note setting out in further detail the role and remit of the McKenzie friend, which may assist adjudicators: Practice Note (McKenzie Friends: Civil and Family Courts) [2010] 1 W.L.R. 1881

[note 6]: Rule 38(d) - Fitness to Practise Rules 2019 (as amended)