Unfair, unreasonable and damaging to mental health
Regulation is essential for any profession where the public’s wellbeing and safety could be at risk. However, the systems also need to have a degree of proportionality and balance that is too often not seen when examining both overall performance in the fitness to practise (FtP) processes and the handling of individual cases.
In this first article, our focus is on the approach to FtP by England’s regulator – Social Work England. We have observed over recent times an increasing level of distress among social workers caught up in the FtP process. While it is inevitable that anyone who is referred to a regulator because of concerns regarding their practice is going to feel uneasy about that, our sense is that this is now disproportionately impacting upon social workers, not because of their practice but because of the approach and performance of the regulator.
We believe this is made far worse by a basic and intrinsic unfairness in the process (inequality of arms); by unfeasibly long delays in the process and by an apparent unwillingness on the part of the regulator to review their approach other than to call for greater resources to do more of the same.
It is our view that from the beginning of Social Work England’s responsibility for FtP, their approach has been one in which each stage of the process has lacked sufficient effectiveness.
The system has distinct stages: referral, triage, investigation, case examination, hearing. In our experience registrants can often experience difficulties at each stage, meaning these are compounded as they progress through the process.
Delay
FtP can be a complex process, taking time to complete. However, there is a point where delay becomes unreasonable and can interfere with fairness and justice. It is our view that far too frequently we witness delays that are well beyond any notion of ‘reasonableness’.
For those cases that progress to a hearing it is not uncommon for them to have been in the system for over three years. Many take much longer. One ‘legacy’ case – defined as having been inherited from the Health and Care Professions Council at the time of handover of regulatory responsibility in 2019 – we dealt with recently was due to be heard in early summer 2024, after considerable delay. The social worker concerned received correspondence in March postponing the six-day hearing to an as yet unnamed date in mid-2025. When that case is eventually heard (assuming it goes ahead in 2025) it will be eight years from the date of the initial incident that led to the matter being referred. We know of several others with timescales exceeding six years from referral to potential hearing.
If this was not already unacceptable, the delay is getting worse, not better.
Recent communication from Social Work England outlined their current resourcing difficulties. It identified three main reasons for FtP hearing scheduling difficulties. The regulator has indicated that without additional funding from central government it will not be able to list any new hearings for around a year.
Not only are new hearings not being scheduled but, as the case above illustrates, those already listed are being postponed. The impact of these measures and nonsensically long delays upon individual social workers is dreadful to witness. The mental and physical health and wellbeing of a significant number of people caught up in this, as well as their families, including children, is very badly impacted. People often talk of experiencing suicidal ideology because of the terrible delays and uncertainty. For many, they are unable to work either because of restrictions or they simply cannot secure work in a profession that tends to avoid employing anyone under investigation.
Justice and inequality of arms
It is a tenet of justice that there is in principle an ‘equality of arms’ where legal processes are involved. This means giving a fair balance of opportunity to both parties involved. It appears that this is not a concept that stretches to FtP processes. The consequence for a registrant social worker can be very grave. Ultimately, they can face suspension from the register for a period of time, or permanent erasure. These social workers are not allowed to practise, losing their earning capacity.
All of us would want any social worker whose FtP was impaired and potentially a risk to the public to be prevented from practicing, but those decisions should be made after a relatively speedy process in which registrants are properly enabled to defend allegations made against them. This, however, is far from the case.
The regulator has substantially greater resources than registered social workers. The perception we have developed over time is that, despite Social Work England’s endeavours to improve triage processes and prevent cases unnecessarily entering the FtP process, we still see too many cases that we believe do not need to enter the next stage of the process at all. If these do enter the system it is detrimental for the social workers involved and also detracts resources and focus from cases that do need further investigation.
In respect of inequality of arms, we have greater concerns when cases arrive at the investigation stage. If a case passes triage, preliminary allegations are drawn up. All too often investigators interpret their role as obtaining evidence (most often from past employers, though it can be from others) to prove the allegations formed at triage. This is not an appropriate investigation model.
As investigators of practice, the regulator has statutory powers available to them. Employers are required to cooperate and provide the evidence requested. Social workers share no such power. Any efforts they may make to obtain evidence they believe their former employer may hold (emails, case records, phone records etc) are likely to be resisted and refused. Thus a social worker is completely reliant on investigators adopting an approach where comprehensive evidence that gets to the complete truth of events is secured, not partisan evidence supporting the allegations.
An explanation for delays very frequently offered by Social Work England is that they are waiting for former employers to reply to their requests with the information they have sought. We have no doubt this is an issue and we have seen examples of employers taking a year or more to reply. However, even in these cases, the regulator still appears remarkably reluctant to escalate their requests using the legal powers they have. It appears they are far more inclined to tread softly with employers, regardless of the impact the delay has on social workers.
Lastly on equality of arms, Social Work England has significant levels of professional legal input into its casework. If a case does progress to a hearing, a firm of solicitors is instructed to prepare the case, including procuring witness statements and instructing counsel (a barrister) to present the case to a panel. In most cases, social workers do not have access to the equivalent representation. From the beginning of the FtP process to the end, social workers are disadvantaged by a playing field that is anything but level.
Misuse of FtP by employers
Social workers, especially agency and self-employed social workers, tell us that some managers use the threat of referral to the regulator as a ‘disciplinary tool’ to ensure social workers conform to tasks they have been requested/required to do. This is outrageously bad practice. If there are practice issues, they either reach a point where they should be referred to the regulator or they do not. It is ironic that in behaving in this way, those managers who are registered social workers themselves are in breach of social work standards.
This is compounded by the systemic failings within social work relating to the wider context of inadequacy of management support, supervision and training, compounded by the lack of staffing resources and the increasing caseload pressures for frontline practitioners.
See BASW, SWU and Unison's joint statement calling for action on fitness to practise delays and letter to Social Work England