Change to social worker regulation: Investigation of conduct

Change to social worker regulation: Investigation of conduct

Published:

Author: Charlotte Ellis

On 1 August 2012, the regulation of social workers in England changed. Originally regulated by the General Social Care Council (GSCC), they are now regulated by the Health and Care Professions Council (HCPC).

On 1 August 2012, the regulation of social workers in England changed. Originally regulated by the General Social Care Council (GSCC), they are now regulated by the Health and Care Professions Council (HCPC).

At first glance this may appear a simple a change of regulatory body, but there are a number of significant legal implications for practising social workers who will have to meet a wider range of standards set by the HCPC.

Registration at the HCPC opened on 1 August for all social workers practising in England, and a 'Memorandum of Understanding' came into force which states that registration with the HCPC is obligatory for social workers practising in England. The only exception to this requirement is for those registered outside of England who practise in England on a 'temporary' basis.

Thus, all newly-qualified and existing social workers in England, who are not acting on a temporary basis, must now apply (or transfer) their registration to the HCPC.

Governmental belief is that for the public to be protected effectively, professions require independent statutory regulation. The HCPC sets standards for other health and care professionals. The arguable intention of the changes outlined in this article is to streamline the regulation of all healthcare professionals, providing independent statutory regulation for those in practice.

The HCPC approach to regulation is used widely across health and social care, as it enables standards to be set and upheld in a consistent manner, thus ensuring public confidence in the profession and the implementation of the Government's aim.

There are four key changes in how the HCPC now deal with investigating the conduct of social workers compared to the GSCC's approach. The main legislative differences, described in more detail below, are:

  • an 'Impaired Fitness to Practise' model compared to the GSCC's 'Conduct' model
  • six grounds of allegation, rather than one ground used by the GSCC
  • streamlined sanction regimes if a registrant's fitness to practise is found to be impaired
  • the power to demand production of documents/information, something not available to the GSCC

The fitness to practise model

The HCPC adopt a 'fitness to practise' model when investigating registrants. Previously, the GSCC considered complaints against social workers using a 'conduct model', which focused on whether the registrant's behaviour or actions were in breach of the code of conduct and, as a result, whether a sanction should be imposed on the registrant.

There are two main differences between the use of a 'conduct model' and a model based on the registrant's 'fitness to practise':

  • under the new regime, the HCPC can consider concerns in relation to a social worker's competence and/or ill health. The GSCC did not have these powers
  • the test of impairment is a 'current' test, which means HCPC panels deciding whether a social worker's fitness to practise is impaired must consider whether this is the case at the time the decision is being made. This is in line with other regulatory bodies adopting the fitness to practise model, such as the General Medical Council.

As the registrant's fitness to practise is considered in the present, the HCPC looks at the registrant's current situation and make a decision about whether or not the regulator needs to take action against the registrant.
The HCPC process is entirely forward looking; the intent of this approach being to protect the public from those who are not fit to practise and not to punish the registrant for past actions.

Six grounds of allegation

Under the HCPC fitness to practise model, a registrant's ability to practise safely is considered in relation to three essential categories.

The fitness to practise of the registrant under investigation may be deemed to be impaired by reason of:

  • misconduct
  • a lack of competence
  • ill health

Further, the registrant's fitness to practise may also be determined to be impaired by reason of criminal conviction, as a result of a determination by another regulator, or if the registrant is included on a 'barred list', preventing them working with vulnerable adults or children.

The GSCC previously relied on only one ground of allegation, namely an investigation of the social worker's conduct. These six new grounds of allegation provide the HCPC with a far greater level of control, in that findings of impairment of fitness to practise can be made should allegations concerning a social worker's misconduct, competence or ill health be found proved.

Sanctions

The following sanctions are available to the HCPC:

  • a Caution order
  • a Conditions of Practice order
  • a Suspension order
  • a Striking Off order

Previously, the GSCC applied sanctions of Admonishment, Suspension orders or Removal orders.

The HCPC's new Caution order has equivalent status to the previously applied GSCC's Admonishment order. Further, the HCPC Striking Off order is equivalent to the previously applied GSCC Removal order.

Therefore, the important new addition to the sanctions regime is the ability of the HCPC to impose a Conditions of Practice order. The result is that the HCPC has the power to restrict a social worker's practice by imposing conditions upon it. The GSCC did not have the power to impose Conditions in this way.

A further important change relates to Suspension orders. If a registrant's fitness to practise is found to be impaired and a Suspension order is imposed upon his/her registration, the HCPC are obliged to review such an order before it expires. The GSCC did not have to do this.

Production of information/documentation

The HCPC has the power to demand the production of information/documentation if it is relevant to an investigation of a registrant's fitness to practise.

Failure to comply with such a demand from the HCPC may result in the third party committing a criminal offence. This is a new power which the GSCC did not have, and it is anticipated that this will speed up the investigative process.

Contact

Should you wish to discuss your case further, please contact us on 03700 865722 or by email at charlotte.ellis@shoosmiths.co.uk, colin.bailey@shoosmiths.co.uk or at professional.discipline@shoosmiths.co.uk

For further information and advice, visit us at www.shoosmiths.co.uk and follow us on Twitter @Shoosmiths.