Fewer hearings, less stress and more social work involvement: how new regulator is reforming fitness to practise

Under the HCPC, inquiries into practitioners' competence and conduct have drawn criticism from the sector. Can Social Work England do better?

Photo: alex.pin/Fotolia

By Luke Haynes and Alex Turner

On 2 December, Social Work England is due to take over responsibility for regulating England’s almost 100,000 social workers.

Much of its remit, such as registration processes and practice standards, will affect all practitioners. But an area that only applies to a minority, the fitness to practise (FtP) system, will be watched with particular interest.

Under the Health and Care Professions Council (HCPC), the outgoing regulator, which took over responsibility for social work in 2012, FtP has had a troubled history.

The HCPC has been accused of a legalistic and punitive approach, which has not been sensitive enough to the management and resourcing context – exacerbated by recent years of cuts – within which alleged failings take place.

Social Work England’s chief executive, Colum Conway, and chair Lord Patel have pledged to improve fitness to practise by making the process faster and more transparent.

With its 2 December start date nearing, Community Care asked the new regulator’s executive director for fitness to practise, Jonathan Dillon, about the new model’s key features and how social workers’ expertise will be drawn on. We also asked sector experts for their thoughts on how things look to be shaping up.

Wellbeing fears

Social workers feature in a disproportionately high share of FtP tribunals under the HCPC, which regulates 16 professions – one of the reasons a new specialised body is popular.

In 2017-18 social workers made up 27% of HCPC registrants but accounted for 51% of concerns raised with the regulator, the same proportion of final hearings heard by FTP panels, and 54% of striking-off or suspension orders.

Research published in the British Journal of Social Work (BJSW) in 2017 found the HCPC’s FtP investigations placed social workers under “considerable” stress. Shockingly, five of eight people with experience of hearings interviewed for the study said they had considered taking their own lives.

The length of investigations has also been highlighted as an issue, with some practitioners reporting waits of up to two years for a final decision. A report to the HCPC’s governing council meeting on 4 July revealed that the average length of time to conclude a case at final hearing from receipt of an allegation was 101 weeks.

A statement provided by the outgoing regulator to Community Care said the HCPC was “very conscious” of FtP’s emotional impact and offered mental health support to people involved in procedures.

“Within the bounds of our legislation, [we] have delivered a significant programme of work to make the process more efficient, reducing the time and stress for both registrant and complainant.” it added.

Expanded triage process

As with the current system under the HCPC (see box), any FtP concerns reported to Social Work England will pass through an initial triage stage before being taken forward. Some cases will be filtered out at the very start of this, with instances of registration fraud set to be passed to a different team, while social workers convicted of serious ‘listed offences’ will be automatically struck off.

But for the remainder, Dillon says, there will be a more expansive initial process than is currently the case. Instead of simply establishing whether a concern falls within the regulator’s remit, the new body’s rules set out criteria it must apply to determine if there are reasonable grounds for an investigation.

These include its seriousness, the likely availability of sufficient evidence to support an allegation of impaired fitness to practise, and whether the social worker has taken any remedial action in respect of the concern.

Under the HCPC, Dillon says, this sort of information would commonly be collected during the mid-stage of an FtP procedure, at three to six months into the investigation.

The HCPC system

Under the HCPC fitness to practise model, an initial investigation takes place to obtain relevant information about a concern. A threshold test is then applied to see whether the concern amounts to an allegation that the registrant’s fitness to practise may be impaired.

If the regulator considers the threshold to have been met, the concern is then referred to an Investigating Committee Panel (ICP) where it is decided if the concerns meets the HCPC’s test of there being a realistic prospect of the registrant’s fitness to practice being impaired. If a case meets this test, it is referred for preparation and presentation in front of a separate Conduct and Competence or Health Panel (CCHP), which decides on sanctions.

As with Social Work England’s proposals, registered practitioners – currently numbering 35, according to the HCPC – sit on both ICPs and CCHPs.

One key concern with the process is that social workers are often left in the dark in between stages of the process, and are not enabled to contribute their version of events until months down the line.

According to Social Work England’s Jonathan Dillon, the existing system inevitably contributes to “defensive” responses from the subjects of allegations, and does not help investigators gain the level of information needed to fully understand situations.

“We will be trying to collaborate with the social worker, with the employer and with the informant at the outset and using both our professional advisers and our local engagement officers where we need information from employers to do that effectively,” he says.

“[The new system] will allow us to determine whether, broadly speaking, the regulator is ever likely to get sufficient evidence to progress the matter and, if so, whether it was ever likely to indicate that a social worker’s current fitness to practice was impaired,” he says.

Dillon adds that painting a more complete picture of the situation at an earlier stage will lead to the regulator making more proportionate decisions, while dealing with concerns more quickly.

Local action

Another major aim of the new social work regulator is reducing the number of concerns that have to go to hearing, by operating in a more “consultative” manner.

In 2017-18, there were 222 final hearings involving social workers – the highest number of any HCPC-regulated profession. Meanwhile, over half (51%) of social workers did not attend their hearing.

One option Social Work England is pursuing will be using its triage mechanism to explore which concerns can be resolved locally, without having to enter formal fitness to practise mechanisms.

Eight regional engagement leads – most of whom have been appointed – overseen by one head officer will be responsible for overseeing remediation at local level, as part of roles designed to link local authorities and regulator. Their presence is also intended to mitigate any extra burden that dealing with concerns in-house may place on hard-pressed council departments.

As registered and practising social workers, regional leads will monitor employers’ enforcement of plans made for practitioners by Social Work England, and if necessary report back to the regulator to discuss whether further measures are necessary.

Social workers at each stage

The regional engagement leads are one example of what Dillon claims has been a mission to deploy registered social workers at every stage of the fitness to practice journey, to ensure inquiries are “brave and robust”.

In the early stages, following reports of concerns, professional advisers – who will be experienced practitioners – will provide advice to triage officers as they conduct initial reviews and risk assessments.

A diagram of Social Work England's new fitness-to-practise process

A diagram of Social Work England’s new fitness to practise process

“This will mean officers investigating complaints are able to ask those difficult questions early on, and make the best assessment possible to see whether the evidence we have speaks to a serious issue,” Dillon says.

For cases that move into a formal investigation, two or more officers will be appointed to obtain all relevant information that enables a decision to be taken over whether to proceed towards a possible sanction. They will be required to source basic data, such as employment details, within seven working days and then have a further 14 to gather and report on information relating to the concern itself.

Dillon says these investigators will be from “a range of different backgrounds”, and there is no requirement for them to be social workers. But Social Work England says social workers have been encouraged to apply for the 15 roles, which will involve close work with regional leads and professional advisers.

‘Vastly reduced’ hearing numbers

Registered social workers also feature heavily towards the sharp end of the investigation process. They will make up six of the 10 new ‘case examiners’, who make a final decision as to whether cases go to panel.

Case examiners will be empowered to resolve cases themselves, in circumstances where a social worker accepts the concern and demonstrates they have taken measures to improve their practice. Via this mechanism, known as ‘accepted disposal’, case examiners will be able to issue warnings, suspensions and conditions of practice – though they will not be able to remove someone from the register.

Dillon acknowledges that the success of this new mechanism will hinge on the level of engagement from practitioners. But he says the potential is there to “vastly reduce” the number of cases that need to go before a panel.

When it initially consulted on the new FtP procedures, Social Work England floated the possibility of there being no social worker representation at tribunals – something Dillon says was based on making them easier to schedule.

“The availability of the lay member is usually very good and our case examiners, who will be employees of the organisation, will appoint our lay decision makers on a full-time basis,” he says. “With social workers, we want them to still be active within the profession, and because of that, their availability to assist the decision making is usually reduced.”

But the proposal met strong pushback from the sector, and as a result the need for one panel member – a role now called an adjudicator – to be a registrant was reinstated when Social Work England’s final standards were published in late July. A plan that some hearings could be held without legal experts present was also dropped.

‘It’s about understanding the real world’

Those two tweaks receive a measured response from Aidan Worsley, a social work professor at the University of Central Lancashire who co-authored the 2017 BJSW study referred to above and has studied FtP extensively.

Worsley says he’s pleased Social Work England has reversed its position around convening panels without social workers. But, he notes, reiterating Dillon’s point, the fact someone is registered doesn’t automatically underwrite their ability to adjudicate.

“The HCPC had social workers on their panels, but when we interviewed people who had been through the process one of the things that came back was that it was often people who had been out of practice for a while and didn’t understand the current state of social work,” he says. “It’s one thing to have a registrant on the panel but it’s about what they understand about the real world.”

Worsley adds that he felt Social Work England’s original proposals around not always needing legal experts to be present at panels were sound because of this meaning that registrants would not need to fund their representation in some cases.

“The costs of representing yourself run in to tens of thousands of pounds,” he says. “I’m really keen to make sure we reverse the issue of fewer social workers attending hearings. This worries me.”

Broadly speaking though, Worsley says Social Work England – whose task he likens to having a “big tanker to turn around” – has taken positive steps, in particular around triage and other measures, such as accepted disposals, that reduce hearings. “It will need to learn as it goes along,” he says, pointing to potential challenges that regional leads may face in working with under-pressure councils, and adding that he hopes mediation techniques can be put to use to help resolve some cases.

Time is of the essence

Worsley’s cautiously optimistic tone is largely echoed by other sector experts we spoke to.

Lien Watts, the head of the advice and representation service at the British Association of Social Workers (BASW) and Social Work Union (SWU), describes the new focus on coming to timely decisions as a “real positive”.

“A major issue now is the length of time it takes cases to reach a final hearing,” she says. “[There is] huge stress and often personal financial disaster for social workers who may have been suspended or unable to obtain work during the very long investigation processes.”

Social Work England’s efforts to employ registrants at the various stages of the FtP process is an “essential” component in terms of helping to shift practitioners’ negative perceptions, she adds.

Beverly Latania, adults’ and mental health principal social worker at Newham council and co-chair of the Adult PSW network, makes similar positive remarks. But, she adds, some extra clarity would be welcome in a few areas.

“There is some confusion about timescales throughout the new standards, and I’m not clear on how the process will be completed in a timely manner if a social worker wishes to have their case heard through a panel,” she says. “I am also not convinced as to how the outcome will be fed back to the employer, who is often left in limbo with an employee on suspension.”

Ongoing consultation

At the time of writing, some of the details around how cases proceed to panel were still open to consultation. Social Work England has published three new guidance documents – around pre-hearing case management, triage and sanctions – which it is seeking feedback on until 11 October.

In the meantime, the new regulator still has work to do getting staff in place to populate its new FtP structures – with the low number of social work applicants for adjudicator roles a particular issue.

Social Work England wants to employ 30 registrants in these positions, and would like a pool of 90 applicants from which to draw. So far only 68 have registered an interest, with Dillon citing a few possible reasons, including the organisation’s newness, the change in terminology from ‘fitness to practise panellist’ to adjudicator and – at the time the vacancies were advertised – the lack of a solid go-live date.

With that handover deadline now confirmed up and looming, the debates around Social Work England’s documentation can soon begin to move onto scrutiny of its actions.

“Social work practice is complex and operates in a rapidly changing landscape,” observes Claudia Megele, head of quality assurance at Hertfordshire council and chair of the Principal Children and Families Social Worker Network. “The challenge for the regulator is to strike a balance between the aspirational and practical, guided by social work values, and in a manner that is relevant, fair and transparent.

“[Social Work England’s] professional standards are an important step in that direction,” Megele adds.

The steps that follow – in particular around the handling of fitness to practice concerns – will be even more crucial ones.

Practitioners can get an understanding of Social Work England’s plans for the profession by attending its session at this year’s Community Care Live. The regulator will explain its plans for registration, fitness to practise and professional and educational standards at the event in London, from 15-16 October. Register now for your free place, which gives you access to over 30 seminars on the most pressing issues in social work practice.

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15 Responses to Fewer hearings, less stress and more social work involvement: how new regulator is reforming fitness to practise

  1. Daisy September 5, 2019 at 10:10 pm #

    The HCPC tribunal process is biased towards accepting the Local Authority’s version of the alleged offences and disregarding most of the mitigating factors that the social worker may raise. They refuse to accept there is entrenched bullying within a lot of LA’s, particularly within front line Children’s Services, and that some LA’s use the HCPC to dispose of workers that don’t fit their mold or don’t join bullying cliques, amongst other reasons.

    Many cases take much longer than 100 weeks, mine took 4 long years during which time I considered suicide, almost lost my home, fell into debt and suffered serious stress induced ill health.

    I sincerely hope the new regulators ensure a thoroughly transparent and equitable process replaces the old biased and punitive one.

    • Eco-Social Worker September 6, 2019 at 3:01 pm #

      That sounds horrendous Daisy, but not unusual.

      There have been plenty of cases before the HCPC where managers were aware of what the Social Workers were doing, and were criticised by the HCPC for their leadership and management, and yet the HCPC still felt all the blame should fall on the Social Worker.

    • Big Fa September 9, 2019 at 6:30 pm #

      I am sorry that you went through such a tough time.

      Do you think the focus on local resolution is a bad thing, given your experience and perception of local authorities?

    • Jim Greer September 9, 2019 at 8:27 pm #

      I currently serve as an HCPC Social Work Panel member on tribunals and ICP cases. I can assure you that the evidence given from all sources is carefully weighed. Witnesses from local authorities and other employers are rigorously cross examined. I am well aware of the existence of bullying and scapegoating in some social work settings, just as bullying exists in all forms of employment. Sadly the process does not allow panels to raise criticisms of employers or make recommendations to them for improving their treatment of staff and procedures as the process is solely focussed on the registrants. However, it is difficult to see how a new process which involves fewer tribunals- and therefore less cross examination of employer witnesses- will be any better at uncovering situations where staff have not been adequately supported. Faster disposal means fewer opportunities to examine evidence in detail.

      • Big Fa September 10, 2019 at 8:12 am #

        A process that did allow Panels to criticise employers and make recommendations on how to improve treatment of staff would not be straightforward for a number of reasons. Firstly, and at a high level, it is a rare thing when increasing the scope of business results in quicker resolutions – which is one of the main objectives SWE are trying to achieve. Secondly, the Panel are chosen for their expertise in relation to deciding whether Fitness to Practise is impaired. It doesn’t necessarily follow they have the expertise to make recommendations to huge employers about complex areas of staff management. Suitable expertise would be required were Panels empowered to engage in quasi regulation of employers. Thirdly, the point made about scrutinising evidence is crucial. Scrutinising the evidence required to determine if an employee has a policy/culture issue will often require a bigger sample size of evidence than one individual’s case. Finally, at the very least, the legal principle of Maxwellisation would entitle an employer to a right of reply before coming under public criticism. That would lead to a delay in resolving the case about the individual. That’s the very least. There would be strong arguments they should be more involved in the process so that any criticism was properly arrived at after they had had a chance to provide detailed evidence in rebuttal. More documents, more evidence, more witnesses, more findings = more delay, worry and expense for the worker.

        In regulation I often feel there are two irreconcilable tensions; greater and wider scrutiny of surrounding issues is often wished for but quicker resolutions are also wished for.

        Personally, I feel the current balance where employer failings can be taken into account in mitigation (or in extreme cases, the consideration of misconduct) without the need for a separate enquiry strikes the right balance.

  2. Anon September 7, 2019 at 2:32 am #

    HCPC process is debilitating and extremely traumatic.

    The judgements they have handed out are disproportionate, it has made me wonder was the offence so grave to hand out 2 years suspension when that worker because of HCPC cumbersome delay process, has already been off work for nearly two years. When they give 2 year suspension, they in reality prohibit the worker for 4-5 years. It takes them nearly three years to hear the case.

    They have disregarded severe bullying that is prevalent and that can affect anyone’s confidence, leave alone social workers.

    HCPC have colluded with the Local Authority, thereby ratifying, rewarding and entrenching that bullying culture. It is known that managers target and refer the workers who they have issues with. The same referral identifies the lapses of the manager that of not acting on the social workers request or that the manager unnecessarily authorised invasive child protection medical, but HCPC would not do anything about that.

    Those managers far serious lapses compared to the workers referred are overlooked by the HCPC.

    HCPC in effect have done disservice to Social Care by not regulating the practices of these managers.

    Even if they recognise mitigating factors for practice issues, they fail to take that into account when passing their judgements.

    I cannot imagine anything worse than HCPC so on that basis, I am cautiously optimistic of the new regulatory body.

  3. Jackie Jackson September 7, 2019 at 3:57 pm #

    It truely sounds horrendous that Daisy had to suffer in such a way for 4 long years to the point of ill health, stress, financial debt and suicide. This is All because the HCPC are very punative towards social workers and it would appear they do turn a blind eye to mitigating circumstances, working conditions, bullying and cleeks to say the least. I know this from my own personal experience quite similar to Daisey’s. Her comments are a reality that continues to happen within local authorities to date. It’s a crying shame considering the constraints social workers face. So glad HCPC is going however sadly I’m finished with social work due to this very reason. I loved being a social worker and still have a real heart for the profession.

  4. Bionic Woman September 8, 2019 at 7:21 pm #

    What is SW England going to do when the FtP investigation finds that workers are seriously overloaded, as this is very often a major factor when allegations of performance issues are made. This is the default position that managers often seek to deflect the blame on to the SW rather than look at their own poor management practices. Is SWE going to bring the LA/Senior Management team to account and refer the LA to the relevant regulatory body and/or continue with an investigation of the managers’ fitness to practice in order to address such issues? I note the HCPC failed to do any of these things during the whole time that it regulated the profession?

    • Jim Greer September 9, 2019 at 8:35 pm #

      This is a significant issue, and one which I found frustrating at times as a panel member. Unfortunately panels are only empowered to look at the fitness to practice of the registrant though the pressures which staff have been under professionally or personally are taken in to account in reaching a decision. I agree that fitness for practice of employers is something that should be examined but that would require the Government to assign that role to a regulatory body and give them the appropriate powers. There is nothing that I have seen so far that would indicate that this is part of the duties of the new regulator .

      • Big Fa September 10, 2019 at 8:15 am #

        Do the CQC not have a role in regulating employers who provide care services, such a local authorities?

        I’m based in Scotland, where our framework has it’s own quirks but the Care Inspectorate in Scotland assess local authority social work departments.

  5. sw September 9, 2019 at 12:45 pm #

    Well, if the management wants to ruin someone’s career, the easiest option is to refer them to HCPC and that worker’s simply livelihood is taken away.
    This is what’s been happening to me.
    My case started in 2016 and it is still ongoing. By prolonging the case hcpc has made me vulnerable and demoralised, this is such an agonising time for me, it’s impossible to bear.
    However, hcpc would not criticise the management for their lapses that hindered my work. They would not question the management for authorising action that was not required according to the social worker.
    There is no justice and the whole system tends to punish the weak ones regardless.

  6. Big Fa September 9, 2019 at 6:42 pm #

    I wish SWE well in managing a hugely complicated and controversial piece of work. Balancing what the sector wants with what the public wants is not easy.

    A few things which will need to be good for the above to work:

    1. By its nature, the screening the screening exercise is done with an incomplete picture. That will require the external social workers to provide risk appropriate but definitive advice on incomplete information. Calls for the comfort of more information will slow the process down considerably;

    2. The two investigator format at the initial period will need strong powers to compel. Just because two investigators will be making requests of a stretched local authority for information doesn’t mean the local authority will be able to compile the information any faster.

    3. The plea for non defensive answers is interesting. If a person shows early reflection then the likelihood they are impaired diminishes greatly. As much as the profession values reflection, it is hard to put that into practise when the person’s livelihood is at stake and they are (often) carrying baggage that their employer could have provided them better working conditions and if they had they might not be in the situation they are in. A major culture shift in those investigated would be needed along with trust in the regulator to achieve early and open answers. That trust doesn’t occur overnight.

    Good luck to the regulator and all who are regulated be it!

  7. Anon September 10, 2019 at 9:37 am #

    Hcpc scrutinises the practice of the registrant.
    However, when the manager is referred by outside agency, hcpc simply accepts the account of the local authority, management colluding with that particular manager and they do not exercise a robust scrutiny as they would do to the workers.
    Sadly, the system is geared to protect the managers.

    • Anon September 20, 2019 at 12:42 am #

      Hi , I would beg to differ : I am a manager and have been subject to HCPC investigation in the past for nothing more than a set of malicious allegations none of which were true . However the actual process was horrendous and I had to prove they were malicious which took over 6 months . Whilst the process within HCPC was awful and I had to challenge the ever changing case workers as they told me something different each time I called the actual panel were effective , clear and saw that there was no evidence to support the allegations

  8. Anon September 25, 2019 at 12:47 am #

    Allegations were subsequently found to be unfounded through the effective panel process and that process took over 6 months.

    The timescale of 6 months is significantly less compared to workers whose case has dragged on for over two years and sometimes the whole process has carried on for seven years as one reader had commented in this journal.

    The fact that the case was resolved in 6 months for a manager, but for the social worker it takes about 10 months to consider if needs consideration at the next step clearly indicates the disparity.

    If there is survey of referrals/allegations against managers and workers and the outcomes, the figures would be self evident.
    It will become obvious that majority of the managers are protected by the local authorities and cases donot progress to HCPC level or HCPC resolves their cases more swiftly compared to the workers.