by Allan Norman
One of the clauses in the Children and Social Work Bill, in a chapter headed “Social Worker Regulations” paves the way for new criminal offences.
Community Care headlined its story on these offences ‘Government Bill paves way for criminal offences for social worker misconduct’. Isabelle Trowler, the chief social worker for children in England, questioned the headline, and went on to say, “[Social workers] have been subject to these offences (or similar) since we had a protected title. Not new. Read the Bill.”
As it happens, both the headline and the response are wrong. Community Care because these are regulatory offences that could be committed by anyone, not specifically to do with criminalising misconduct in social work practice. And the chief social worker because additionally, social workers have been subject to these offences only since HCPC regulation from 2012, not since we had protected title.
My first reaction to the proposed offences, meanwhile, was bafflement. Criminal law targets the most serious types of misbehaviour in society with criminal sanctions. Professional regulation sets far higher standards of behaviour, but imposes these standards only on a small group in society which submits to being regulated in return for being professionals, and they are regulated to the civil standard. So what is the point of creating specific criminal offences for regulated professionals?
It turns out I had missed the point too.
Protection of Title is a helpful starting point though. It was indeed the first criminal offence linked to social work registration. It is a crime to hold yourself out as a social worker if you’re not registered and regulated. But note this: the one group in society which cannot commit that crime is those who are registered and regulated. So this criminal offence is targeted at everybody else rather than at the regulated profession. Which is why it has to be a criminal offence, and can’t be dealt with by professional regulation – you can’t remove from the register someone who isn’t on it.
But this new Bill proposes a whole list of other criminal offences. Are they novel, and who are they targeted at? Actually, there have been equivalent offences, though only for the last four years, since the HCPC took over regulation. Why are there criminal offences for not co-operating with the HCPC? It is important to appreciate that the HCPC is an independent self-funding regulator, and the criminal offences reinforce that it nonetheless has teeth, and is not lightly to be ignored. Those offences are also not primarily targeted at regulated professionals, although again everyone is subject to them.
One particular area of speculation has been an offence of a failure to attend and give evidence. Actually there is an existing offence, though it is very obscure: Article 39(5) of the Health and Social Work Professions Order creates an offence by cross-referencing Rules made under Article 22(2)(m), which cover “empowering the Committee to require persons other than the person concerned to attend and give evidence or to produce documents” – I said it was obscure! Might the new Bill extend the offence to people who don’t give evidence at their own hearings? I doubt it – to criminalise a social worker in such circumstances would be a truly seismic shift from the general principle that “it is for the person who alleges a case to prove it”. I would be confidently predicting that it is the existing offence that would be transferred over.
It is fair to say then, that the new offences that are permitted under the Children and Social Work Bill are not those “let’s-imprison-social-workers-for-5-years-for-failing-to-protect-children” offences that have been threatened, but rather largely transfer over the offences in relation to the HCPC to the new regulator.
But therein lies their real significance. The secretary of state, or their appointee, is to be the new social work regulator. This includes the regulation of standards, the regulation of training, and the creation of new disciplinary offences for social workers. As I indicated at the outset, these proposed new criminal offences fall within the chapter on “Social Worker Regulations”, by which all of these changes are to take effect.
What we will have, therefore, is new criminal offences relating to a failure to co-operate with the secretary of state’s vision for social work regulation. Since that vision puts the future of the regulated profession firmly in the government’s control, and reintroduces discipline which was abandoned with the move to the HCPC fitness to practice model, this is in fact something wholly new.
So, we have not been subject to these offences since Protection of Title, only since the move to the HCPC fitness to practice model in 2012. In fact, since the same time as we moved away from a misconduct model of regulation. Now we are looking to continue with criminal offences that came in only in 2012, but to reinstate a misconduct model that was abandoned on the same date.
Ray Jones in Community Care has written that the “government’s new legislation will strip social workers of our independence”; Steve McCabe in Parliament suggested the bill is “trying to reduce social workers to the state of some kind of functional technicians”. These new offences in isolation aren’t much of the story. But in the wider context of the story of this Bill, they are an important and concerning twist, and not a distraction from the main story.