Four years ago it was probably difficult to find a social worker willing to say a good thing about the General Social Care Council (GSCC), the regulator at the time for all social workers in England.
But that was before it was abolished as part of the so-called “bonfire of the quangos” by the coalition government when they took power. The regulation of social workers was handed over to the Health Professions Council, renamed the Health and Care Professions Council (HCPC) to take account of its wider remit.
Now the HCPC is being accused of acting outside its remit and breaching social workers’ human rights, particularly the Article 8 right to a private life.
While a regulator is entitled to take account of the private life of a professional, many commentators, including Unison and the Law Commission, believe the HCPC is crossing the line and sanctioning social workers for issues that should be dealt with internally, such as poor recording and difficulty managing caseloads.
Changes to the appeal system
In 2010, the government claimed the move to the HCPC would have the advantage of bringing social care in line with other regulation structures, such as those for doctors and nurses. One of the key differences at the time was the recourse to appeal.
All decisions made by the GSCC were subject to appeal in a first tier tribunal, the Care Standards Tribunal. In Wales this route is still open to social workers appealing against the decisions of the Care Council for Wales.
The HCPC’s judgements, on the other hand, can only be appealed in the High Court, a prohibitively expensive route which is beyond the reach of most social workers.
Allan Norman, a dual qualified social worker and lawyer, points out that although the GSCC had wanted to set itself up as a tough regulator, over time it had been forced to take account of tribunal decisions. These included, in particular, giving more weight to mitigating circumstances such as the working conditions imposed by employers.
“The GSCC eventually had to pull itself in line with what its appellant body was telling it, but when it comes to the HCPC that’s not the case because its appellant body is telling it nothing.”
Since the HCPC came into existence in August 2012, there have been nine appeals made to the High Court out of 471 hearings. Under the GSCC, appeals were fairly commonplace, including in the case of Lisa Arthurworrey, the social worker involved in the Victoria Climbié case, whose striking off order was overturned.
Differences between social work and other professions
Norman points out that although the General Medical Council and the Nursing and Midwifery Council have a similar appeal route through the High Court, doctors have professional insurance should they need to bring a High Court appeal.
Meanwhile the Royal College of Nursing, the professional body for nurses, actively funds and pursues challenges to the High Court on a regular basis. A recent appeal was awarded in a case brought by the RCN which established that articles 6 and 8 of the European Convention on Human Rights – the right to free speech and the right to a private life – should have been engaged in relation to how you regulate a professional.
“It’s been something of a frustration to me to see that some of the developments that would really help social workers in terms of test cases in the High Court were brought by the Royal College of Nursing,” Norman says.
“But social workers don’t have the wealth, professional insurance or representation to bring appeals.”
This causes a vicious cycle because only High Court cases are capable of setting a precedent that would then be heeded by the HCPC in its panel findings.
Review of adversarial system needed
Unison national officer Sam Oestreicher says that although the union would back a social worker’s appeal if it was felt the case merited it, it had to be conscious of expense.
“An appeal is not something we would take lightly.”
Oestreicher, deeply critical of the HCPC’s performance as a regulator for social workers, says there should be a return to a two-tier system where decisions can be appealed before an independent tribunal judge.
But he also points out that the fitness to practise process itself needs to be reviewed.
“When it comes to practice issues, the adversarial fitness to practise process is too daunting to be constructive to practitioners, particularly when problems might easily be remedied by extra training and support.”
This is something the HCPC says it is already looking at with a current pilot project to deal with cases without requiring an adversarial hearing – such as via consent and mediation.
Managers not being held to account in the same way as social workers
A spokesperson says the regulator is constantly trying to “balance the rights of the registrant with our role in ensuring public protection”.
“We also continue to work with those that represent registrants, including Unison, and have established partnership forum to discuss issues of concern to those that represent registrants.
“Our standards of conduct, performance and ethics are clear that you must keep high standards of personal conduct, as well as professional conduct. However if you make informed, reasonable and professional judgements about your practice, with the best interests of your service users as your prime concern, and you can justify your decisions if you are asked to, it is very unlikely that you will not meet our standards.”
However, retired social worker, Phillip Measures, who has taken a personal interest in the issue, points out that managers, who are often putting social workers under intolerable pressure and expectations, are not being held to account by the HCPC in a similar manner.
“The HCPC should not be involved in failings like poor recording or difficulty managing caseloads unless the employer can say hand on heart they have done everything they can to help that social worker.
“It’s a shared responsibility, but it’s always the individual social worker who is gone after and whose career is ruined,” he said.
In a three-month period, out of 68 fitness to practise hearings, only one has been brought against a manager for failing to provide proper support to his staff.
Lack of consistency
Measures is also deeply worried about the lack of consistency in HCPC findings.
“Fitness to practise hearings are largely a kangaroo court. Each individual panel can make its own findings, its own decisions and its own punishment for social workers.”
He says some social workers are being dealt very harshly for minor transgressions, while other sanctions seem too lenient.
The HCPC says there is a number of processes in place to monitor and assure their work, including the Professional Standards Authority (PSA), which produces an annual audit of judgements and shares learning points with the regulators.
However, a PSA spokeswoman told Community Care they would only intervene in judgements that were seen as unduly lenient, and not those that were unduly harsh.
Two cases with two different outcomes
David was an experienced CAMHS social worker, qualified in family therapy and specialising in self-harm intervention. He had been seeing a 15-year-old girl who repeatedly self-harmed and took overdoses.
He embarked on a slightly unorthodox intervention with the consent of the girl and her mother, instructing her that if she was going to continue self-harming, she could do so only on the condition that when she did, she would show her mother, who would treat her wounds and agree not to interrogate her.
This course of action was designed to prioritise the girl’s safety and to allow her to wordlessly express her distress. David was confident enough in his decades of experience and good outcomes with service users to carry out this intervention, but his employer didn’t agree with it. Rather than having a conversation with him or opening up an internal process, his employer suspended him and immediately referred him to the HCPC. Meanwhile, the intervention had worked and the girl stopped self-harming.
David fought a legal battle against his employer, which resulted in the allegations not being proved. But the HCPC continued to pursue him, revising their allegations twice in order to bring a fresh fitness to practise case against him, despite his written rebuttals which had stood up in court.
“They changed the allegation along the child protection route, even though my line manager at the local authority was the safeguarding development manager and if there had been any safeguarding or child protection issues, surely the local authority would have charged me with that,” he says.
“In my opinion, the HCPC is either incompetent or it is abusive.”
The fitness to practise case is still going on now.
Carrie* was employed by Cafcass when she accused a father of sexually abusing his daughter in front of her during a home interview, resulting in him being arrested and separated from his daughter. She later admitted the abuse had not happened and Cafcass was forced to pay the father £86,000 in compensation. The social worker was found not to have been dishonest, and was given a caution.
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I think as part of the discussion people also need to be aware of the DBS service. They have an ability to record unsubstantiated allegations and put them together with later material and Police ‘soft intelligence’. There are many processes which potentially undermine the rights of workers on the care sector to engage in employment.
I don’t know why we are surprised by this, a government approved body that we all have to pay into that provides no support for those who need it most.
As a qualified social worker I work in the voluntary sector, my employer is not bothered about this registration as it is not a requirement of the job, I register for myself and to protect the title I have earned. However any action by the HCPC taken against me would have little or no impact on my job.
The fact we don’t have a credible appeals procedure is just a joke that highlights the weaknesses of the HCPC as a body , I certainly cant afford to employ a barrister to attend the high court to appeal a decision. Where does the money i spend on registration go and what does it do for me and my fellow social workers, an answer would be nice.
This is a highly important piece of Research that Rachel Schraer has conducted and highlights the extremely serious concerns that I and others share about the HCPC and the very limited rights of Registrants.
It is now time that BASW; UNISON; NAPO; NAGALRO etc. got together and agreed to bring relevant Cases to the High Court to test out the validity of some of these HCPC decisions. They can find people guilty of dishonesty when there is little evidence but, equally, not guilty of it when there is evidence. Would CAFCASS, for instance, have paid out £86,000 for a ‘simple’ mistake?
The HCPC ‘prosecutes’ but has no right of Appeal against Fitness to Practise Panel decisions – even when they patently disagree with them! It is ludicrous; unfair and unjust.
This organisation was never fit for purpose. Fees are ridiculous and value limited. No right of appeal is the worst of quango behaviour. For all its faults at least GSCC was the profession regulating practice this rag bag organisation is not worthy.
Worst of all it makes the credibility of comprehensive registration – carers, PA’s etc. far less likely.
Great shame – Another bonfire due?
When is somebody going to hold the H.C.P.C. to account.
I have been following their conduct proceedings for over a year.
Firstly on the crude determinant of names it would appear that there is an over representation of ethnic minorities appearing before their conduct panels.
To back this up I submitted a F.O.I. request to establish the ethnic origins of those appearing before them,and the ethnic origins of those who have cases found agai nst them.
I was astounded to receive the reply that they did not record the ethnic background of their members.Iwas of a belief that this was a statutory requirement.
It is time a thorough investigation was carried out on the H.C.P.C. to establish if it is institutionally racist,how about it Community Care?
I tend to agree with previous comments but would also add that many employers will refer to HPC and before that GSWC, inappropriately rather than deal with matters internally.
Employers, especially LA’s, avoid any responsibility themselves and can effectively devastate a social work career as it takes so long to reach a conclusion as to the merits of the referral.
I have also been following the HCPC’s judgement’s in regards to SW’s fitness to practice- it was only about a month ago I stated I think some of the outcomes were quite harsh with many of them resulting in a 12 month suspension for the person’s in question.
Many of those who are suspended are so because of inaccurate records – which I might add that it is well known that SW’s are under pressure with case loads- and is this taken into consideration when making a judgement, no it is not. What do the HCPC expect the suspended social worker do while they are suspended? after having their name plastered over the CC and HCPC website? This makes
As people have pointed out, these types of cases should be dealt with internally and only referred to the HCPC once all other avenues have been explored and depleted, unless the incident is absolutely extreme and has placed SU’s in harms way – it seems to me that managers just cannot be bothered to a) provide support to those who need it whether that is extra training and support or reducing case loads while SW’s get things back on track, and b) take responsibility and stop hiding behind a desk (I wonder how many managers could take on cases themselves but choose not to).
Philip states they can find people guilty of dishonestly when there is little evidence, yet social workers are regularly taking children for adoption on the grounds ‘future emotional abuse’ something no-one can forsee, something not happening at the time and may never happen, yet parents loose their children and sometimes the children do suffer emotional abuse as they do not understand why they have left loving parents. There is no evidence of future abuse, just like there is no evidence of dishonesty If parents try to fight there is no legal aid and no union to pick up the bill So if HCPC make these decisions incorrectly on no evidence it follows that social workers using future emotional abuse on no evidence are also acting incorrectly. Stopping using this excuse for taking children into care would reduce the workload and the social workers could concentrate on case where there is real evidence of abuse
I am in danger of getting side-tracked here ‘vera platt’ but I do have a great deal of sympathy for the point you make and after retiring from social work after some 42 years I never thought that I would live to see parents being able to lose their children to adoption within the 26 week timescale that now exists – I feel that it is little short of criminal.
The Courts are, however, taking a more pro-active stance and beginning to hold social workers much more to account. I am clear that adoption should only occur (if at all) when all possible supports have been made available and failed or where the risks (i.e. history of sexual abuse / violence) are excessive.
I am also clear, getting back to the HCPC and social worker registration, that social workers should be able to also obtain justice which is within their financial remit and that employers be held far to account for their decision-making and support / supervision of social workers.
I used to think I couldn’t get even more angry about the hcpc (I’ve stopped honouring them with capitals – a small gesture I agree but whatever gets you through the day..) but now I’ve discovered in this article some of the details that had previously passed me by I think I can’t read anymore about the hcpc without wanting to do something that would get me deregistered as well as behind bars.
Fortunately for me it’s late at night so a long lie down in a darkened room beckons but tomorrow the letter writing campaign begins.
I totally agree with all that’s been said here. I attended a fitness to practice panel where the social worker with 22 years of unblemished practice, was struck of after being found to be dishonest about her personal life – in her most recent post his particular social worker had recently been commended for her work in child protection, and the local authority in question submitted excellent character references. I was disgusted by the way members of the panel sat rolling their eyes when defence witnesses where giving statements, or when the barrister posed questions. I was disgusted with the outcome, which in reality didn’t match the crime. This was a middle aged single parent, with a mortgage, and yes of ethnic origin.
I believe that there was no consideration for the after affects of being struck-off, of becoming an unemployed and maybe unemployable middle-aged single parent in such a dramatic way. This experience led me not renew my registration with the HCPC
I believe that something needs to be done to help social workers appeal decisions already made by them, especially now people are waking up.