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Fewer hearings, less stress and more social work involvement: how new regulator is reforming fitness to practise

Posted on 5/09/2019 by Billy Fagg

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Fewer hearings, less stress and more social work involvement: how new regulator is reforming fitness to practise

Under the HCPC, inquiries into practitioners' competence and conduct have drawn criticism from the sector. Can Social Work England do better?

On 2 December, Social Work England is due to take over responsibility for regulating England’s almost 100,000 social workers.

Much of its remit, such as registration processes and practice standards, will affect all practitioners. But an area that only applies to a minority, the fitness to practise (FtP) system, will be watched with particular interest.

Under the Health and Care Professions Council (HCPC), the outgoing regulator, which took over responsibility for social work in 2012, FtP has had a troubled history.

The HCPC has been accused of a legalistic and punitive approach, which has not been sensitive enough to the management and resourcing context – exacerbated by recent years of cuts – within which alleged failings take place.

Social Work England’s chief executive, Colum Conway, and chair Lord Patel have pledged to improve fitness to practise by making the process faster and more transparent.

With its 2 December start date nearing, Community Care asked the new regulator’s executive director for fitness to practise, Jonathan Dillon, about the new model’s key features and how social workers’ expertise will be drawn on. We also asked sector experts for their thoughts on how things look to be shaping up.

 

Wellbeing fears

Social workers feature in a disproportionately high share of FtP tribunals under the HCPC, which regulates 16 professions – one of the reasons a new specialised body is popular.

In 2017-18 social workers made up 27% of HCPC registrants but accounted for 51% of concerns raised with the regulator, the same proportion of final hearings heard by FTP panels, and 54% of striking-off or suspension orders.

Research published in the British Journal of Social Work (BJSW) in 2017 found the HCPC’s FtP investigations placed social workers under “considerable” stress. Shockingly, five of eight people with experience of hearings interviewed for the study said they had considered taking their own lives.

The length of investigations has also been highlighted as an issue, with some practitioners reporting waits of up to two years for a final decision. A report to the HCPC’s governing council meeting on 4 July revealed that the average length of time to conclude a case at final hearing from receipt of an allegation was 101 weeks.

A statement provided by the outgoing regulator to Community Care said the HCPC was “very conscious” of FtP’s emotional impact and offered mental health support to people involved in procedures.

“Within the bounds of our legislation, [we] have delivered a significant programme of work to make the process more efficient, reducing the time and stress for both registrant and complainant.” it added.

 

Expanded triage process

As with the current system under the HCPC (see box), any FtP concerns reported to Social Work England will pass through an initial triage stage before being taken forward. Some cases will be filtered out at the very start of this, with instances of registration fraud set to be passed to a different team, while social workers convicted of serious ‘listed offences’ will be automatically struck off.

But for the remainder, Dillon says, there will be a more expansive initial process than is currently the case. Instead of simply establishing whether a concern falls within the regulator’s remit, the new body’s rules set out criteria it must apply to determine if there are reasonable grounds for an investigation.

These include its seriousness, the likely availability of sufficient evidence to support an allegation of impaired fitness to practise, and whether the social worker has taken any remedial action in respect of the concern.

Under the HCPC, Dillon says, this sort of information would commonly be collected during the mid-stage of an FtP procedure, at three to six months into the investigation.

“[The new system] will allow us to determine whether, broadly speaking, the regulator is ever likely to get sufficient evidence to progress the matter and, if so, whether it was ever likely to indicate that a social worker’s current fitness to practice was impaired,” he says.

Dillon adds that painting a more complete picture of the situation at an earlier stage will lead to the regulator making more proportionate decisions, while dealing with concerns more quickly.

 

Local action

Another major aim of the new social work regulator is reducing the number of concerns that have to go to hearing, by operating in a more “consultative” manner.

In 2017-18, there were 222 final hearings involving social workers – the highest number of any HCPC-regulated profession. Meanwhile, over half (51%) of social workers did not attend their hearing.

One option Social Work England is pursuing will be using its triage mechanism to explore which concerns can be resolved locally, without having to enter formal fitness to practise mechanisms.

Eight regional engagement leads – most of whom have been appointed – overseen by one head officer will be responsible for overseeing remediation at local level, as part of roles designed to link local authorities and regulator. Their presence is also intended to mitigate any extra burden that dealing with concerns in-house may place on hard-pressed council departments.

As registered and practising social workers, regional leads will monitor employers’ enforcement of plans made for practitioners by Social Work England, and if necessary report back to the regulator to discuss whether further measures are necessary.

 

Social workers at each stage

The regional engagement leads are one example of what Dillon claims has been a mission to deploy registered social workers at every stage of the fitness to practice journey, to ensure inquiries are “brave and robust”.

In the early stages, following reports of concerns, professional advisers – who will be experienced practitioners – will provide advice to triage officers as they conduct initial reviews and risk assessments.

 

A diagram of Social Work England's new fitness-to-practise process

A diagram of Social Work England’s new fitness to practise process

“This will mean officers investigating complaints are able to ask those difficult questions early on, and make the best assessment possible to see whether the evidence we have speaks to a serious issue,” Dillon says.

For cases that move into a formal investigation, two or more officers will be appointed to obtain all relevant information that enables a decision to be taken over whether to proceed towards a possible sanction. They will be required to source basic data, such as employment details, within seven working days and then have a further 14 to gather and report on information relating to the concern itself.

Dillon says these investigators will be from “a range of different backgrounds”, and there is no requirement for them to be social workers. But Social Work England says social workers have been encouraged to apply for the 15 roles, which will involve close work with regional leads and professional advisers.

 

‘Vastly reduced’ hearing numbers

Registered social workers also feature heavily towards the sharp end of the investigation process. They will make up six of the 10 new ‘case examiners’, who make a final decision as to whether cases go to panel.

Case examiners will be empowered to resolve cases themselves, in circumstances where a social worker accepts the concern and demonstrates they have taken measures to improve their practice. Via this mechanism, known as ‘accepted disposal’, case examiners will be able to issue warnings, suspensions and conditions of practice – though they will not be able to remove someone from the register.

Dillon acknowledges that the success of this new mechanism will hinge on the level of engagement from practitioners. But he says the potential is there to “vastly reduce” the number of cases that need to go before a panel.

When it initially consulted on the new FtP procedures, Social Work England floated the possibility of there being no social worker representation at tribunals – something Dillon says was based on making them easier to schedule.

“The availability of the lay member is usually very good and our case examiners, who will be employees of the organisation, will appoint our lay decision makers on a full-time basis,” he says. “With social workers, we want them to still be active within the profession, and because of that, their availability to assist the decision making is usually reduced.”

But the proposal met strong pushback from the sector, and as a result the need for one panel member – a role now called an adjudicator – to be a registrant was reinstated when Social Work England’s final standards were published in late July. A plan that some hearings could be held without legal experts present was also dropped.

‘It’s about understanding the real world’

Those two tweaks receive a measured response from Aidan Worsley, a social work professor at the University of Central Lancashire who co-authored the 2017 BJSW study referred to above and has studied FtP extensively.

Worsley says he’s pleased Social Work England has reversed its position around convening panels without social workers. But, he notes, reiterating Dillon’s point, the fact someone is registered doesn’t automatically underwrite their ability to adjudicate.

“The HCPC had social workers on their panels, but when we interviewed people who had been through the process one of the things that came back was that it was often people who had been out of practice for a while and didn’t understand the current state of social work,” he says. “It’s one thing to have a registrant on the panel but it’s about what they understand about the real world.”

Worsley adds that he felt Social Work England’s original proposals around not always needing legal experts to be present at panels were sound because of this meaning that registrants would not need to fund their representation in some cases.

“The costs of representing yourself run in to tens of thousands of pounds,” he says. “I’m really keen to make sure we reverse the issue of fewer social workers attending hearings. This worries me.”

Broadly speaking though, Worsley says Social Work England – whose task he likens to having a “big tanker to turn around” – has taken positive steps, in particular around triage and other measures, such as accepted disposals, that reduce hearings. “It will need to learn as it goes along,” he says, pointing to potential challenges that regional leads may face in working with under-pressure councils, and adding that he hopes mediation techniques can be put to use to help resolve some cases.

Time is of the essence

Worsley’s cautiously optimistic tone is largely echoed by other sector experts we spoke to.

Lien Watts, the head of the advice and representation service at the British Association of Social Workers (BASW) and Social Work Union (SWU), describes the new focus on coming to timely decisions as a “real positive”.

“A major issue now is the length of time it takes cases to reach a final hearing,” she says. “[There is] huge stress and often personal financial disaster for social workers who may have been suspended or unable to obtain work during the very long investigation processes.”

Social Work England’s efforts to employ registrants at the various stages of the FtP process is an “essential” component in terms of helping to shift practitioners’ negative perceptions, she adds.

Beverly Latania, adults’ and mental health principal social worker at Newham council and co-chair of the Adult PSW network, makes similar positive remarks. But, she adds, some extra clarity would be welcome in a few areas.

“There is some confusion about timescales throughout the new standards, and I’m not clear on how the process will be completed in a timely manner if a social worker wishes to have their case heard through a panel,” she says. “I am also not convinced as to how the outcome will be fed back to the employer, who is often left in limbo with an employee on suspension.”

Ongoing consultation

At the time of writing, some of the details around how cases proceed to panel were still open to consultation. Social Work England has published three new guidance documents – around pre-hearing case managementtriage and sanctions – which it is seeking feedback on until 11 October.

In the meantime, the new regulator still has work to do getting staff in place to populate its new FtP structures – with the low number of social work applicants for adjudicator roles a particular issue.

Social Work England wants to employ 30 registrants in these positions, and would like a pool of 90 applicants from which to draw. So far only 68 have registered an interest, with Dillon citing a few possible reasons, including the organisation’s newness, the change in terminology from ‘fitness to practise panellist’ to adjudicator and – at the time the vacancies were advertised – the lack of a solid go-live date.

With that handover deadline now confirmed up and looming, the debates around Social Work England’s documentation can soon begin to move onto scrutiny of its actions.

“Social work practice is complex and operates in a rapidly changing landscape,” observes Claudia Megele, head of quality assurance at Hertfordshire council and chair of the Principal Children and Families Social Worker Network. “The challenge for the regulator is to strike a balance between the aspirational and practical, guided by social work values, and in a manner that is relevant, fair and transparent.

 

Source: Community Care