by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
The Administrative Appeals Chamber (which hears appeals from the Care Standards Tribunal) has just given judgement in its first case involving the General Social Care Council.
We brought it. We lost. Why does it matter?
1. Why might it not matter?
The decision concerns whether, or when, issues of alleged misconduct can be dealt with as registration issues, without a conduct process.
The decision in favour of the GSCC will probably result in no change to current practices – which means it will only matter if you think, as we do, that there is something wrong with current practices.
The arguments are stated to be “at first sight… somewhat counter-intuitive”, because the appellant actively sought a conduct investigation. Elsewhere, one blogger has described such an action as “utter folly”. So why worry?
2. Why it does matter!
Actually, the judge seems to have been with us on the question of whether any of this matters. There are two strands here, the process and the outcome.
a) The process
In numerous ways, the protections afforded to a registrant accused of misconduct in a Conduct Hearing are vastly superior to those afforded to those in a registration process or before a Registration Committee. Here are some:
- In a Conduct case, it is for the GSCC to prove misconduct; in a registration case, it is for the registrant to prove they are of good conduct. The different burden of proof makes all the difference in finely balanced cases.
- In a Conduct case, there is a duty to particularise the specific allegations. For example, in cases involving doctors it has been held that “it is a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised.” This fundamental principle goes by the wayside in registration cases. Only this month, a social worker was found to have committed a “calculated act of dishonesty” in a registration appeal where there was no particularised allegation of dishonesty;
- In a Conduct case, a person is removed from the register only after consideration of each alternative sanction, starting with the least sanction, so even if misconduct is found, removal is not inevitable – just review the outcomes; in a Registration case, a person is removed by default if they have failed to demonstrate good conduct.
- In a Conduct case, the registrant has a right to attend and receive a transcript of the hearing; there can be no doubt about what happened and why. Registration cases by default are considered without the registrant, and transcripts are not routinely made, making it difficult to find out what happened and why.
- A conduct case has three distinct stages, fact-finding, misconduct, and sanction. This ensures a logical progression where misconduct is not pursued if facts are not proved; or sanction is not considered if misconduct is not proved. There is no such systematic process for a registration case.
Nonetheless, registration committees do consider conduct issues. In order to be registered, you need to prove you are good at things beginning with the letter ‘c’ – of good character, good conduct, compliance with conditions, and competent. Straight away, conduct is explicitly raised as a requirement of registration. And if your alleged poor conduct falls to be considered at a time when, inconveniently, your registration is also up for consideration, it might be considered as a registration issue rather than a conduct issue. Capability or competence issues may also be decided by an employer, and referred to the GSCC, in the language of breaches of the GSCC Codes. Issues of character similarly; and it is worthy of note that good character is to be evidenced by the opinion of an employer.
The judge noted in this case that the superior protections afforded by a conduct process were not in dispute (paragraph 15).
b) The outcome
The judge also acknowledged “the force of the points made” about outcomes (paragraph 41):
“Mr Norman stressed the value for social workers of the due process required by rule 12. He mentioned that he had acted for clients who had been referred to the GSCC by their employers but where the Conduct Committee had found the allegations not proven. A GSCC reasoned decision in the social worker’s favour, whether on the papers at the “real prospect” stage (rule 12(10) or following a full hearing (rule 12(11) and Schedule 2), represented a “valuable currency”, in Mr Norman’s words. It was a document that could be shown to e.g. prospective employers to undo the damage done to an individual’s reputation by adverse findings made in an HEl’s or employer’s internal disciplinary process.“
So why does it matter? Well basically, if you prefer to quietly slip off the register without notice, you will prefer the status quo. But if you want to fight, if you dispute the facts, or misconduct, if you need vindicaton in order to live to fight another day, you are likely to find you are better off with the reasoned decisions and superior protections of a conduct process.
The Appellant would say additionally that it matters because the present structure fails to provide protection to student whistleblowers (see, for example Rodie, S (2008) ‘Whistleblowing by Students in Practice Learning Settings: The Student Perspective’ Ethics and Social Welfare, 2: 1, 95-99 on the issues here); and because, as set out in paragraph 43 the higher education institution (HEI) is not restrained from passing on its own uncontestable view of the student.
3. What did the judge decide?
Of course, recognising why the issues matter is not enough – we had to show that there was a right to have conduct issues proceed in a conduct process.
We argued that was the proper interpretation of the Rules. The judge disagreed. There was agreement that the Rules were not well-drawn in this regard. In order to deal with apparent ambiguities and absurdities in the Rules as drafted, the judge used a technique called “judicial interstitial articulation”. It may be that phrase that prompted you to open this blog. Congratulations on reading this far to find out what it means!
Basically, the judge has inserted additional words that were not originally there in order to deal with the ambiguities and absurdities of the Rules as drafted. And he has chosen to insert them into Rule 12(1) – consistent with current practice – rather than into Rule 12(3) – consistent with our arguments.
The additional words are “which looks like it might be a complaint”. The practical effect of inserting these words is that the General Social Care Council has (kept) a discretion to decide that something does not look like a complaint, and deal with it as a registration issue.
4. What does a complaint look like anyway?
Let’s consider three realistic – common, even – scenarios concerning your registration as a social worker:
- you take very seriously your responsibilities as a professional, and therefore self-report concerns that have been expressed about your practice;
- you don’t really reflect on whether an issue calls into question your suitability until you apply for renewal and have to think carefully about the declaration you are making, at which point you mention the issue;
- you or your employer take on board the GSCC’s injunction to report disciplinary matters, and therefore notify the GSCC of the outcome of an investigation.
Given the newly inserted words, do any of these look like they might be a complaint?
a) self-reported concerns
The problem with self-reported concerns is whether you are intending to complain about yourself! While it is not impossible to do so, even after this ruling, the more realistic interpretation of self-reported concerns is that you are hoping to comply with your obligations without your conduct being scrutinised. What seems to be critical here is timing. If self-reported concerns are pending at a time when there is a registration process open, they may well be dealt with within that process. Otherwise, they may well be considered within a conduct process.
b) issues declared on renewal
These are probably the most problematic. What do they look like? They look like registration issues. The GSCC is likely to regard them as such, and if they call into question your suitability, deal with them without affording you the protection of a conduct process.
c) reporting the outcome of an investigation
This is the closest analogy to the facts of this case. The judge says that this must be capable of being a complaint even if only phrased as being a report of an outcome. But he goes on to say that if the employer (by analogy with the HEI in the case in question) doesn’t wish to pursue it as a complaint, the GSCC might also be entitled not to do so.
Worryingly, it is hard to avoid the logic that if in this case the GSCC was entitled to accept the formal findings, not question them, and remove a registrant in a registration process, it might be entitled to do so following an employer’s disciplinary also.
That is why it matters. And that is what judicial interstitial articulation might mean for you, or indeed any employer or any other registrant.