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Special measures for witnesses

If you’re a witness in a hearing and you think you may need special measures, you should raise this with the party that has asked you to appear as a witness. This will either be the social worker who is the subject of the case or Social Work England.

Supporting witnesses (special measures)

Last updated: 5 December 2019


About this guidance

When adjudicators (the panel) consider a case about a social worker’s fitness to practise, it’s essential they get as complete a picture as possible of all the relevant information and evidence brought by the social worker and by Social Work England. This may include hearing from a number of witnesses.

Giving evidence at a hearing can be very stressful for witnesses. As well as stress, there can be other obstacles that prevent witnesses from giving their best evidence. These might be that a witness is vulnerable, or because of practical difficulties such as whether or not the witness can attend the hearing in person.

Special measures can help to overcome these obstacles. In general, adjudicators can best assess the quality of witness evidence if that evidence is given in person at the hearing for everyone to see. This means that special measures will not be appropriate in every case. Decisions about if and how special measures might be used must be fair to all the parties: to the social worker defending the charge of impaired fitness to practise and to Social Work England in bringing the case.

Fairness also includes the public interest in the case being heard as soon as is reasonably practical. This guidance sets out how decisions about special measures are made and what special measures may be available.

How to apply for special measures

An application for special measures should be made by either Social Worker England or the social worker through the case management procedures before the hearing, however the adjudicators may also suggest that at a witness should be considered as vulnerable.

If you’re a witness in a hearing and you think you may need special measures, you should raise this with the party that has asked you to appear as a witness. This will either be the social worker who is the subject of the case or Social Work England.

An application for special measures should set out the reasons why the witness may be considered vulnerable and the special measures that are said to be needed. Both parties in the case should be given an opportunity to comment and to give reasons for any objection to the use of special measures.

Because an application concerns how evidence will be heard by the adjudicators, applications for special measures will not normally be considered by the hearing case managers and will instead be considered by the adjudicators. Hearing case managers will facilitate this through the pre-hearing case management process. Any applications not made to the case manager before the hearing must be made to the panel of adjudicators at the hearing.

The adjudicators will consider the fairness to both parties of the application, taking into account any potential disruption to the progress of the hearing. It’s very important that parties apply before the hearing for special measures whenever possible so this can be built into the hearing timetable, and that appropriate preparations can be made for the giving of evidence.

If the application is not made in advance, the applying party should explain why it was not possible to make the application earlier.

Vulnerable witnesses

There is no definition of vulnerable witness, however examples of when a witness maybe vulnerable are that:

  • they’re under the age of 18 at the time of the hearing
  • they have a mental disorder
  • they have a physical or mental disability requiring assistance to give evidence
  • they’re the alleged victim in a case involving an allegation of a sexual nature

Cases of a sexual nature

Social Work England’s fitness to practise rules state that an unrepresented social worker cannot cross examine the alleged victim in a case based on facts of a sexual nature, unless the alleged victim consents in writing before the hearing (rule 42 of the fitness to practise rules 2019).

If no consent is given, the social worker must appoint a legally qualified person to conduct the cross examination on their behalf and must make the appointment of a lawyer at least 7 days before the hearing.

What special measures may be directed?

Special measures may include (but are not limited to) the following:

  • Use of screens to keep the witness out of the line of sight of the social worker, or where anonymising the witness is not enough to protect their identity from the public.
  • Use of interpreters, signers or other intermediaries.
  • Going into private session (see ‘hearing evidence in private’ section below).
  • Use of video or phone link.

What else may help a witness?

Some witnesses may need frequent breaks, while others may prefer to complete their evidence as efficiently as possible. There is no need to apply for such steps as special measures, though.

If possible, it should be built into the estimated time in the hearing timetable for the witness to give their evidence. Panels should check with witnesses about their preferences and should accommodate these as far as they can within the agreed hearing timetable.

Hearing evidence in private

Usually, unless the case is about the health of the social worker, hearings are held in public. This is so the public can be confident in how Social Work England hears and adjudicates on whether social workers are fit to practise.

However, Social Work England’s fitness to practise rules allow for hearings or parts of hearings to happen in private where appropriate. This may be due to the vulnerability, interests or welfare of any participant in the proceedings, or to the public interest.

The key objective is for the hearing to be as fair and effective as possible, allowing the adjudicators to hear and take into account all relevant evidence about whether the social worker’s fitness to practise is, or is not, impaired. This serves the public interest in making sure questions about a social worker’s fitness to practise are fully investigated.

If there is a real risk that holding the hearing in public will adversely or negatively impact the quality of the evidence given, then this may weigh in favour of holding some or all of the hearing in private. It’s very much in the public interest for the hearing to be a comprehensive assessment of a social worker’s fitness to practise. But this must be balanced against the public interest in hearings being open to public scrutiny.

All decisions with reasons in fitness to practise hearings must be published and may be anonymised where appropriate.

How do case managers or panels decide if and what special measures should be used?

When deciding if and what special measures to use, case managers and panels should always consider the public interest in the efficient and fair disposal of the fitness to practise hearing.

In general, evidence in person is better than by video link, which in turn is better than by phone. This is because it’s easiest for the panel and the parties to assess the demeanour and credibility of a witness when they appear in person.

Therefore, the more that assessing the demeanour and credibility of the witness is central to the case, the more this weighs towards the witness appearing in person if at all possible.

Vulnerability

If a witness is vulnerable, as described above, then suitable special measures will normally be appropriate. As a matter of principle, it’s best for evidence to be given in person. So, for example, special measures of screens or private hearings will usually be preferable options to allowing evidence by video link.

Extent to which the likely evidence is contested

Usually, the evidence of a non-contentious witness (a witness whose evidence is not being contested by either party) should be agreed between the parties through case management and the evidence put before the panel in the form of an agreed witness statement. If a witness needs to be called in order to clarify some points of detail, for example, it may be reasonable and efficient for them to give evidence by video link or by phone.

However, the more the core issues in the case rely on the credibility of the witness, the more this weighs heavily in favour of the witness giving evidence in person.

Availability

Fairness to all parties and the public interest means that hearings take place at the earliest reasonable opportunity. Sometimes, this can be challenging to arrange, especially in cases with multiple witnesses. If a witness cannot attend in person on proposed dates but could attend by video link or phone, then it may be in the public interest to allow this, provided that it does not impact unfairly on a party in the case.

In this context, unfairness most commonly arises if a party is restricted in their ability to examine or cross-examine a key witness because of the inherent limitations of evidence given remotely.

Impact on others

Requiring a witness to attend in person may impact significantly on others, for example if a witness has caring responsibilities, or where they have professional commitments. Video link or phone may be appropriate provided this can be achieved without unfairness to a party. 

The social worker in the case

If a social worker chooses to attend a hearing by means of video link or phone, further guidance on the technical aspects of arranging a secure video link should be obtained from Social Work England’s adjudication team.

We will not accept responsibility for any technical problems in operating the link provided by the social worker during the hearing. Social workers should also note that if a link fails to work, the adjudicators may decide to proceed on the basis that the social worker has failed to make adequate arrangements to attend the hearing in line with their professional duty.

If the social worker is prevented from attending

In exceptional circumstances, the social worker may be prevented from attending a hearing in person for practical reasons. This may be due to a medical condition, because they’ve moved permanently overseas, or in a conviction case, because they’re serving a custodial sentence, for example.

If a medical incapacity is likely to be time limited, and the social worker wishes to attend the hearing, they may apply for the hearing to be postponed. Provided the application is supported by medical evidence that the social worker cannot participate in the hearing, it will usually be granted.

If the reasons preventing the social worker from attending are unlikely to be resolved during a proportionate postponement, the social worker may apply to attend the hearing by means of video link or phone. In these cases, ‘proportionate’ considering the public interest in the quick and effective disposal of fitness to practise cases. This includes reviews of existing orders which must take place before the existing order expires.

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