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.