Supporting vulnerable witnesses

Last updated: 29 July 2022

• About this guidance
• Vulnerable witnesses
• Special measures
• Cases of a sexual nature
• Other ways to support witnesses
• Apply for special measures

About this guidance

This guidance is for anyone involved in fitness to practise proceedings, in particular:

• adjudicators
• vulnerable witnesses
• social workers and their representatives
• Social Work England

The guidance sets out the process of obtaining special measures that may need to be put in place if a witness is identified as vulnerable.

When deciding if and what special measures to use, the regulator or the adjudicators should consider (both of the following):

• whether the witness should be identified as a vulnerable witness
• decide what measures (if any) they consider are required to enable the adjudicators to receive evidence from the witness

Vulnerable witnesses

Giving evidence at a hearing can be very stressful for witnesses. As well as stress, a witness can experience other barriers that stop them from giving their best evidence. For example, if they are vulnerable.

There is no definition of when a witness will be considered a ‘vulnerable witness’ in the Social Workers Regulation 2018 or in Fitness to Practise Rules 2019 (as amended).

Circumstances where a witness may be considered as vulnerable include (but are not limited to) where:

• they are under 18 (at the time of the hearing),
• the quality of their evidence is likely to be diminished because they have a:
  • mental disorder (as defined in the Mental Health Act 1983)
  • significant impairment of intelligence and social functioning
  • physical or mental disability and need assistance to give evidence
• they are the alleged victim in a case involving an allegation of a sexual nature, or
• they are complaining of intimidation.

Witness with disabilities

If a witness has a disability it does not necessarily mean that they are vulnerable. Many people with disabilities do not want to be regarded as vulnerable.

When deciding whether a witness with a disability is vulnerable, the adjudicators should consider (both of the following):

• the nature of the witness’s disability
• whether it affects their ability to perform the role of a witness

Adjudicators (and other people involved in the proceedings) should also recognise that while some disabilities are obvious, others are hidden. Witnesses may also have a combination of disabilities.

Special measures

If a decision is made that a witness is vulnerable, a further decision must be made as to how they will give evidence. These changes are usually called ‘special measures’ and aim to help the witness overcome any barriers to giving evidence.

When deciding whether to use special measures, considerations should include (both of the following):

• the views of the witness
• whether the quality of their evidence is likely to be diminished without measures being put in place

A decision about whether to use special measures will either be made prior to the hearing during the pre-hearing case management process (Fitness to Practise Rules 2019 (as amended), rule 25(a) and rule 27(g)), or at the hearing itself. 

Use of special measures and fairness

Decisions about whether to use special measures must be fair to:

• the witness (giving evidence)
• the social worker (who is defending the allegation that their fitness to practise is impaired)
• Social Work England (bringing the case)

Adjudicators must also consider the public interest in the efficient and fair disposal of the fitness to practise hearing.

Special measures may not be required in every case, even if a witness is vulnerable.

If a witness is allowed to give evidence with special measures in place, the social worker may worry that the adjudicators:

• have pre-judged the witness’s evidence
• will treat the witness more favourably because of the use of the special measure

Adjudicators should address any concerns of this nature. They should explain that they are only using special measures to:

• put the witness at ease
• make sure they give their best evidence

What special measures are available?

There are no specific special measures set out in the Social Workers Regulations 2018 or the Fitness to Practise Rules 2019 (as amended).

Special measures which can be considered include (but are not limited to):

• use of screens - to make sure the social worker cannot see the witness, or where anonymising the name of the witness is not enough to protect their identity from the public (at in-person hearings)
• making the social worker and/or the witness turn their camera off (at remote hearings)
• use of interpreters, signers or other intermediaries;
• allowing the witness to pre-record their main evidence (provided they are available at the hearing for cross examination and questioning by the adjudicators)
• hearing the evidence in private session (read ‘hearing evidence in private’ below)

A combination of special measures can be used (if appropriate). For example, the adjudicators could use special measures that allow a vulnerable witness to:

• have an interpreter to translate their language into English; and
• give evidence from behind a screen.

When deciding what special measures to use,  it should be considered that witnesses should ideally be visible when giving their evidence. For example, rather than allowing the witness to give evidence over the phone, it is more preferable to either:

• require the social worker to turn their camera off while the witness gives evidence, if the witness does not want to see the social worker, or
• hold the hearing (or part of it) in private, if the witnesses is concerned about being identified by members of the public.

In general, evidence given in-person or via video conferencing software is better than by phone. This is because it may be easier for the adjudicators (and others involved) to assess the demeanour and credibility of a witness when they are visible.

However, recent case law has confirmed that adjudicators should not place significant reliance on demeanour in reaching conclusions about the witness’s credibility. The case law confirms that the adjudicators should always engage with the substance of witness evidence and not just the manner in which it was given (Dutta v GMC [2020] EWHC 1974; Khan v GMC [2021] EWHC 374 (Admin)).

Hearing evidence in private

Hearings are usually held in public. However, hearings will always be heard in private where they relate to an interim order or where they relate to the social worker’s physical or mental health.

Holding a hearing in public means we can be:

• transparent about how the adjudicators make their decisions
• open to public scrutiny

 However, there may be other circumstances where it is appropriate to hold all or parts of the hearing in private and this includes assisting a vulnerable witness in giving evidence. Our fitness to practise rules allow us to hold hearings (or parts of hearings) in private. This includes where it is (both of the following):

• in the public interest including in the effective pursuit of the regulator’s over-arching objective
• due to the vulnerability, interests or welfare of anyone involved in the proceedings

We will still publish these fitness to practise decisions, but we will anonymise or remove sensitive personal details where appropriate.

Cases of a sexual nature

For cases of a sexual nature, we have specific rules that aim to support the alleged victims to give evidence.

These rules state that an unrepresented social worker cannot cross examine the alleged victim unless the alleged victim agrees to this (in writing) before the hearing (Fitness to Practise Rules 2019 (as amended), rule 42).

If the alleged victim does not agree to this, we must appoint a legally qualified person to do the cross examination on the social worker’s behalf. We must make the appointment of a legally qualified person at least 7 days before the hearing.

In addition, special measures can also be directed in these cases, such as giving evidence via video link or pre-recorded evidence.

Other ways to support witnesses

Social Work England, the adjudicators and the social worker (and their representative) should also consider whether vulnerable witnesses might benefit from other, less formal arrangements to help them give evidence.

They should also consider that vulnerable witnesses will likely have different needs. For example, some witnesses might need regular breaks while others prefer to provide their evidence as quickly as possible.

To support vulnerable witnesses, Social Work England, the adjudicators or the social worker (and their representative) should:

• ask witnesses what they prefer, and
• try to accommodate the witness’s wishes as much as possible within the agreed hearing timetable.

However, there is no need to apply for such steps as special measures.

Apply for special measures

Who can apply

Depending on who has asked the witness to attend the hearing, the following parties can apply for special measures (on their behalf):

• the social worker (who is the subject of the case)
• Social Work England (bringing the case)

However, as the adjudicators can regulate their own procedures, they may also decide that a witness should be treated as ‘vulnerable’ even if no one applies for special measures (Fitness to Practise Rules 2019 (as amended), rule 32(b)(v)).

If you are a witness in a hearing and you consider yourself to be vulnerable and therefore may need special measures, you should raise this with the party that has asked you to appear as a witness.

How and when to apply

Applications for special measures should be made to the hearing case manager during the pre-hearing case management process.

An application for special measures must be made as soon as possible (and before the hearing). This is so we can:

• build the special measures into the hearing timetable
• make appropriate preparations for the giving of evidence

If an application is not made to the hearing case manager before the hearing, it must be made to the panel of adjudicators at the hearing. The adjudicators will then consider (both of the following):

• the fairness to both parties of the application
• any potential disruption to the progress of the hearing

The person who applied for special measures may need to explain why it was not possible to make the application earlier.

What information to include in the application

The application should set out (all of the following):

• why the witness may be considered as vulnerable
• explain why the absence of special measures would likely diminish the quality of the witness’ evidence
• which special measures Social Work England or the social worker are requesting
• what the witness thinks about the proposed special measure

Objecting to an application for special measures

Both parties in the case should be given an opportunity to comment on the application for special measures. If anyone objects to the application, they must explain why they object to the treatment of the witness as ‘vulnerable’, and the special measures proposed.