The General Social Care Council’s review of the conduct system finds areas for improvement. Here, Sally Gillen asks experts how the council is faring in its role.
The legal view: Ed Mitchell, solicitor, editor of Social Care Law Today and Community Care’s legal expert
The GSCC has adopted a largely principles-based conduct scheme rather than a more prescriptive rules-based scheme.
This may explain the wide variation of opinion as to what is and is not acceptable when it comes to social workers’ personal relationships as revealed by the Community Care research. Principles-based schemes have their benefits but the greater their role in a regulatory scheme, the more difficult it is to predict its application. The GSCC may not have had the balance quite right.
The legal structure
The GSCC’s rules set the threshold for regulatory action at the point where a social worker is guilty of misconduct “which calls into question” a person’s “suitability” to be registered as a social worker.
Little flesh is added to these bare regulatory bones by the statutory code of practice. The code includes the statement that a social worker must not “form inappropriate personal relationships with service users” but does not offer any indication as to what might be “inappropriate”.
However, several decisions of the Care Standards Tribunal give authoritative rulings on appeals against GSCC decisions.
● McNicholas v GSCC concerned a social worker who, when drunk, rang and sexually propositioned a client. Although not at the “severe end of the spectrum”, the client, a user of mental health services, was particularly vulnerable and the social worker had denied the allegations for many months exacerbating the client’s distress. In the circumstances, therefore, it was serious misconduct, and the tribunal upheld the decision to remove from the register.
● DSH v GSCC concerned a mental health social worker who formed a sexual relationship with a service user. She was not a client, but they met when the social worker was visiting a day centre. Having taken into account the social worker’s exemplary service and genuine remorse, the tribunal, while critical of his actions, decided that the GSCC had acted too harshly and should register him.
● Bradford v GSCC involved a social worker who had a six-week sexual relationship with a client who was suffering from depression. The tribunal held that this misconduct was “so serious” that it upheld the GSCC’s decision to impose an interim suspension order that prevented the worker from practising until the GSCC had conducted its enquiries.
● YD v GSCC involved a social worker who was advertising as an escort. It is useful because the tribunal set out its thinking on registration – behaviour that undermines that purpose is likely to be treated more severely. The tribunal said: “Vulnerable clients…need to trust the professional working with them. Any action that undermines that trust must call into question the suitability of an individual to work in social care.”
Service user view: Simon Stevens, independent disability trainer and consultant
“Social workers have huge amounts of power over a service user’s quality of life and this often ad hoc relationship can be brilliant or a living hell. This report seems to question the service user’s ability to make valid complaints. While some complaints made by service users may not warrant action, they must feel they have been listened to.
“When faced with a simple form, service users will simplify and dramatise their concerns. This is because when you are in a deep hole it is difficult to be rational about a situation and so it is easy to polarise a complaint and feel what has happened is personal when it’s not. It’s a normal reaction to simplify matters especially in writing. For this reason face-to-face interviews at an early stage may help to draw out real issues or concerns. If the complaint looks unclear or complex there should be a telephone interview. Local authority complaints staff could be asked to do this on behalf of the GSCC.
“Having an independent screening panel is a good idea but its membership should be made public and service users should be on it, given training and paid to make a contribution.
“As well as the normal sanctions, the GSCC should have the ability to add notes to a social worker’s record if a complaint warrants it. Service users have the right to know about them and their past. After all they could be making decisions on £30,000 support packages that may be life or death for service users. I would like to know if any previous complaints against them have been acknowledged or upheld. More information should also be made available about individual social workers, such as where and when they qualified, their current role and even service user comments. At the moment the only interesting piece of information available on the register is their middle name.”
Campaigner’s view: Jonathan Coe, chief executive of charity Witness
“The number of social workers found guilty of professional boundary violations comes as no surprise to Witness. In fact, all the evidence is that, in common with sexual abuse cases generally, incidents are significantly under-reported. While we think most decisions have been appropriate, there have been occasional cases involving serious boundary violations where mitigation has been allowed to lead to admonishment rather than suspension.
“Health regulators have a wider range of sanctions available to them and we would support moves to provide ‘conditions of practice’ orders that would mean that either practitioners have to prove they are working within their competence or that they have learnt lessons well enough to be allowed back on the register after a period of suspension.
“It is very positive that the council is to commission research into professional boundary issues – we think there is a strong need for specific guidance alongside the code. The code itself remains somewhat ambiguous, talking as it does about not forming ‘inappropriate relationships with service users’. This leaves the way clear for defence counsel to argue over the meaning of inappropriate or relationship and even of service user. We’d like to see a ban on sexual contact between practitioners and current clients, as a sexual relationship with someone you are providing a service to is always a breach of trust and professional boundaries, even where there is apparent consent.
“The purpose of regulation is to protect the public and that is where the focus must remain. Most regulators receive far more complaints than they investigate. There are a range of reasons for this – many are inappropriate and concern matters that do not meet the standard for possible misconduct. Independent scrutiny of decisions not to proceed is a far-sighted move, and will do much to maintain the confidence of people who report their concerns. We would, however, be in favour of this approach for all reports as it is the seriousness of the reported misconduct that is the critical factor. Including people with experience of using services as members of the independent screening panel would be a great move but there will inevitably be some logistical issues to resolve, around the make-up of the panel and the balance of ‘experts,’ professionals and lay or user members.”
Social worker view: Bridget Robb, professional officer England at the British Association of Social Workers
“I am delighted to see them looking at the responsibility of employers to support social workers and welcome the proposal to put the code for employers on a statutory footing. My only concern that it will increase the pressure by employers on qualified workers whose job title is not ‘social worker’ to try not to register with the GSCC. This loophole needs to be addressed at the same time.
“We are concerned about the boundaries of acceptable behaviour being breached. However, we are aware that in the drive for the personalisation of services, workers are being expected by some employers to break down the barriers between work, home and personal life, for instance by encouraging service users to visit the worker’s own home. We welcome the GSCC’s intention to undertake research and hope this focuses on the challenges and opportunities of emerging practice.
“The purpose of the social care register is to protect the public. The clearest response to a concern about professional misconduct is to remove the registrant from the register. It is also right that there be an interim suspension order (ISO) while this is being investigated, though there should be maximum time limits for ISOs.
“When it comes to sanctions, suspension orders are only useful if linked clearly to an education requirement and re-registration should only be allowed if the required assessment standard is reached. I would like to see admonishments become the private written warning for registrants as to what they will have to demonstrate when they are next applying for re-registration. My rationale is that the public register should only be of people who meet the required professional standing, supported by the list of those who are suspended and subject to further assessment, and those who are not allowed on the register.”
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