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The procedural fairness limitations of fitness to practise hearings: a case study into social work

  • Richard Kirkham (a1), Jadwiga Leigh (a2), Kenneth McLaughlin (a3) and Aidan Worsley (a4)

Abstract

The norm in fitness to practise proceedings (FTPP) is that where sanctions might be imposed procedural fairness requires a court-like hearing. This paper questions that paradigm, using empirical research to focus on the FTPP to which social workers must account. Procedural fairness is a multi-faceted legitimising concept used to justify the design of decision-making processes. With FTPPs, the major justification is an ‘instrumentally’ focused model of procedural fairness which prioritises making decisions that look right, a goal which is delivered in the context of social work. But other justifications for procedural fairness are inadequately fulfilled, with in particular a ‘dignitarian’ respect not achieved due to the high levels of non-attendance by registrant social workers. Further, procedural fairness as ‘public accountability’ is undermined due to the relative lack of engagement of FTPPs with the perspective of the social work community. These findings hint that in the context of a poorly organised and resource-poor profession other hybrid forms of FTPP might have a stronger claim to procedural fairness than the court-like model.

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*Corresponding author. E-mail: r.m.kirkham@sheffield.ac.uk

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The authors express their gratitude to the feedback they received from colleagues, in particular Joe Tomlinson and that provided by the referees.

Footnotes

References

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1 L Stevenson ‘Social worker sanctioned for supervision failures despite “heavy caseload, poor working conditions”’ Community Care (3 January 2018), available at http://www.communitycare.co.uk/2018/01/03/social-worker-sanctioned-supervision-failures-despite-heavy-caseload-poor-working-conditions/ (accessed 8 February 2019).

2 Eg see Dr Bawa-Garba v General Medical Council [2018] EWCA Civ 1879; D Cohen ‘Back to blame: the Bawa-Garba case and the patient safety agenda’ (2017) BMJ 359.

3 See McLaughlin, K, Leigh, J and Worsley, AThe state of regulation in England: from the General Social Care Council to the Health and Care Professions Council’ (2016) 46(4) British Journal of Social Work 825; Leigh, J, Worsley, A and McLaughlin, KAn analysis of HCPC fitness to practise hearings: fit to practise or fit for purpose?’ (2017) 11(4) Ethics and Social Welfare 382; Worsley, A, McLaughlin, K and Leigh, JA subject of concern: the experiences of social workers referred to the Health and Care Professions Council’ (2017) 47 British Journal of Social Work 2421.

4 P Case ‘The good, the bad and the dishonest doctor: the General Medical Council and the redemption model’ of fitness to practise’ (2011) 31 LS 591.

5 Department of Education and Department of Health and Social Care Social Work England: Consultation on secondary legislative framework (London: TSO, 2018).

6 Department for Health Promoting Professionalism, Reforming Regulation: A paper for consultation (London: TSO, 2017) p 9.

7 Eg Medical Act 1983, s 1(1A).

8 Bolton v Law Society [1994] 1 WLR 512 at 517–519; Gupta v General Medical Council [2002] 1 WLR 1691 at [21]; Khan v General Pharmaceutical Council [2016] UKSC 64, [2017] 1 WLR 169 at [36].

9 Ibid, Bolton at 519.

10 Eg Fuller, LThe forms and limits of adjudication’ (1978) 92 Harvard Law Review 353 at 405–409.

11 National Health Service Reform and Health Care Professions Act 2002; Health Professions Order 2001, SI 2002/254 (as amended), enacted under s 60 of the Health Act 1999. Under the Children and Social Work Act 2017, s 44, the housing of the FTPP process is currently under review, see Department of Education and Department of Health and Social Care, above n 5.

12 Health Professions Order 2001, arts 23 and 24.

13 See Ireland & Another v Health and Care Professions Council [2015] EWHC 846 (Admin) at [28].

14 Health Professions Order 2001, art 26.

15 Ibid, art 27. From 21 December 2017 this process has been managed within the HCPC through an arms' length body, the ‘Health and Care Professions Tribunal Service’.

16 Ibid, art 22

17 Health and Social Care Act 2008, s 112.

18 Health Act 1999, s 60A.

19 Health Professions Order 2001, art 29(5).

20 Eg Davies, MThe future of medical self-regulation in the UK: renegotiating the state–profession bargain?’ (2015) 14 Medical Law International 236.

21 See O'Brien, N and Seniveratne, M Ombudsmen at the Crossroads: The Legal Services Ombudsman, Dispute Resolution and Democratic Accountability (London: Palgrave MacMillan, 2017).

22 Eg Ogus, ARethinking self-regulation’ (1995) 15(1) Oxford Journal of Legal Studies 97.

23 Eg Schon, DThe crisis of professional knowledge and the pursuit of an epistemology of practice’ in Raven, J and Stephenson, J (eds) Competence in the Learning Society (New York: Peter Lang, 2001).

24 Eg Care Standards Act 2000.

25 Department for Health The Regulation of Non-Medical Healthcare Professionals (London: TSO, 2006).

26 Eg Blom-Cooper, L A Child in Trust: The Report of the Panel of Enquiry Into the Circumstances Surrounding the Death of Jasmine Beckford (Wembley, Middlesex: London Borough of Brent, 1985); Laming, Lord The Victoria Climbié Inquiry Cm 5730 (London: TSO, 2003).

27 Kirwan, G and Melaugh, BTaking care: criticality and reflexivity in the context of social work registration’ (2015) 45 British Journal of Social Work 1050.

28 Healy, K2015 Norma Parker address: being a self-regulating profession in the 21st century: problems and prospects’ (2016) 69 Australian Social Worker 1.

29 National Health Service Reform and Health Care Professions Act 2002; Health Professions Order 2001, SI 2002/254.

30 Haney, J Regulation in Action (London: Karnac Books, 2012).

31 The British Association of Social Workers (BASW) was formed in 1970 by amalgamating disparate representative groups, but it has only relatively recently (October 2011) established trade union functions to enable representation at disciplinary tribunals.

32 Even in the proposals for the introduction of a new regulator, Social Work England, whilst the pursuit of quality is part of new body's remit, its primary concern is with ‘threshold’ standards rather than ‘quality’ standards.

33 Leigh et al, above n 3.

34 Section 36. This body will be called Social Work England, see Department of Education and Department of Health and Social Care, n 5 above.

35 Eg Department of Health Regulation of Health Care Professionals. Regulation of Social Care Professionals in England. Cm.8995 (London: TSO, 2015) at para 5.7.

36 Eg Lloyd v McMahon [1987] AC 625 at 702–703 per Lord Bridge; R v Home Secretary, ex p Doody [1994] 1 AC 531.

37 Eg Hovell, D The Power of Due Process: The Value of Due Process in Security Council Sanctions Decision-Making (Oxford: Oxford University Press, 2016).

38 Galligan, D Due Process and Fair Procedures (Oxford: Oxford University Press, 1996).

39 Ibid, 70.

40 Eg Mashaw, J Due Process in the Administrative State (New Haven: Yale University Press, 1985) 104155.

41 Hovell, above n 37, p 76.

42 Korsgaard, M, Schweiger, D and Sapenza, HBuilding commitment, attachment, and trust in strategic decision-making teams: the role of procedural justice’ (1995) 38 Academy of Management Journal 60 at 68.

43 Rosanvallon, P Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton: Princeton University Press, 2011); TRS Allan ‘Procedural fairness and the duty of respect’ (1998) OJLS 497 at 510.

44 Hovell, n 37 above, p 7.

45 Mashaw, J Bureaucratic Justice: Managing Social Security Disability Claims (New Haven and London: Yale University Press, 1983) p 45.

46 Ibid, p 24; Adler, MA socio-legal approach to administrative justice’ (2003) 25(4) Law & Policy 323.

47 Galligan, above n 38, p 15.

48 Eg Gee, G and Weber, GRationalism in public law’ (2013) 76 MLR 708.

49 Eg Cortes, P (ed) The New Regulatory Framework for Consumer Dispute Resolution (Oxford: Oxford University Press, 2016).

50 Cappelletti, MAlternative dispute resolution processes within the framework of the world-wide access-to justice movement’ (1993) 56 MLR 282.

51 Mashaw, above n 45, p 24.

52 Eg Beetham, D The Legitimation of Power (London: Macmillan, 1991); Easton, D A Framework for Political Analysis (Englewood Cliffs: Prentice-Hall, 1965).

53 Osborn v Parole Board [2014] AC 1115.

54 Eg Chamberlain, JMalpractice, criminality and medical regulation: reforming the role of the GMC in fitness to practise panels’ (2017) 25(1) Medical Law Review 1.

55 The Professional Standards Authority has power to bring appeals against decisions of FTPPs if it views them as too lenient. It also has a place on the Advisory Board for Social Work England, see https://www.professionalstandards.org.uk/home.

56 Eg R Thomas ‘Administrative justice, better decisions, and organisational learning’ (2015) Public Law 111.

57 Full details of the research can be found in Worsley et al, above n 3.

58 Of the eight social workers, interviewed three were found to have No case to answer/No further action, a further three received either a caution/warning/or conditions of practise, and two were struck off the HCPC register. By way of comparison, the HCPC figures show that of the 155 cases where social workers were taken before a FTP hearing that year (1 April 2014–31 March 2015) approximately 25% received a caution or conditions of practise, 32% had no further action/no case to answer and 43% were either struck off or suspended: HCPC Annual Fitness to Practise Report (London: TSO, 2015).

59 Beresford, PThe role of service user research in generating knowledge-based health and social care: from conflict to contribution’ (2007) 3(3) Evidence and Policy 329.

60 Leigh et al, above n 3.

61 Braun, V and Clarke, VUsing thematic analysis in psychology’ (2006) 3 Qualitative Research in Psychology 77; Carey, M Qualitative Research Skills for Social Work (Farnham: Ashgate, 2012).

62 HCPC Fitness to Practise, Annual Report 2016/17 (London: TSO, 2017) 11.

63 HCPC Annual Report: Key Financial Information 2016/17 (London: HCPC, 2017) 89.

64 HCPC, above n 62, at 14.

65 Ibid, 16.

66 Bisell, G Organisational Behaviour for Social Work (Bristol: Policy Press, 2012).

67 HCPC, above n 62, at 42.

68 According to the HCPC reports over the 2012–17 period there were 1522 decisions of which 1121 resulted in some form of sanction, HCPC Annual Fitness to Practise: Key Information Reports, 2013–2017, available at http://www.hcpc-uk.org/publications/reports/index.asp?id=710 (accessed 8 February 2019).

69 Not all of these cases are available online, but published cases in the equivalent period include: Clery v HCPC [2014] EWHC 951 (Admin); Levett v Health And Care Professions Council [2015] EWCA Civ 580 (plus preceding HC case); Goodwin v Health and Care Professions Council [2014] EWHC 1897 (Admin); Ireland & Another v Health and Care Professions Council [2015] EWHC 846 (Admin); Leeks v Health and Care Professions Council [2016] EWHC 826 (Admin); Chigoya v Health and Care Professions Council [2015] EWHC 1109 (Admin); David v Health and Care Professions Council [2014] EWHC 4657 (Admin); David v Health and Care Professions Council [2015] EWHC 4082 (Admin); Falodi v Health and Care Professions Council [2016] EWHC 328 (Admin); Davies v HCPC [2016] EWHC 1593 (Admin); Redmond v Health and Care Professions Council [2016] EWHC 2490 (Admin); Estephane v Health And Care Professions Council [2017] EWHC 2146 (Admin); McDermott v HCPC [2017] EWHC 2899 (Admin).

70 David, above n 69.

71 Additionally, in McDermott, above n 69, the court replaced a suspension order with a conditions of practise order.

72 Falodi, above n 69; Lindblom J in Rice v Health Professions Council [2011] EWHC 1649 (Admin) at [11]–[17].

73 Fish v GMC [2012] EWHC 1269 (Admin) at [28] and Redmond, above n 69 at [7]–[8], HHJ David Cooke.

74 CPR 52.11.3 and Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, at [34], Lord Millett.

75 An exception is Reyburn v The Health Professions Council [2008] EWHC 476 (Admin) (failure to hear the oral evidence of key witnesses).

76 Ryell v Health Professions Council [2005] EWHC 2797 (Admin); Brennan v Health Professions Council [2011] EWHC 41 (Admin); Levinge v Health Professions Council [2012] EWHC 135 (Admin) (insufficient evidence to ground decision); David, n 69 above (applied the wrong test for dishonesty).

77 R (on the application of Howlett) v Health Professions Council [2009] EWHC 3617 (Admin); Levinge above n 76; McDermott, above n 69.

78 R (on the application of Azam) v Health Professions Council [2005] EWHC 1129 (Admin); Muscat v Health Professions Council [2009] EWCA Civ 1090.

79 A process required by the Health Professions Order 2001, art 30(7).

80 Case, above n 4.

81 For details see Leigh et al, above n 3.

82 Ibid, at 388.

84 Ibid, at 391–394.

85 Case, above n 4, at 611.

86 Leigh et al, above n 3, at 391.

87 Ibid, at 389.

88 Wiles, FBlurring private–professional boundaries: does it matter? Issues in researching social work students’ perceptions about regulation’ (2011) 5(1) Ethics and Social Welfare 36.

89 McLaughlin, KThe social worker versus the General Social Care Council: an analysis of care standards tribunal hearings and decisions’ (2010) 40(1) British Journal of Social Work 311 at 314.

90 Azam, above n 78.

91 HCPC, above n 62, at 44.

92 Leigh et al, above n 3.

94 McLaughlin, above n 89.

95 Worsley et al, above n 3, at 2429.

96 See for instance David, above n 69, where the legal cost order imposed on the appellant was £10,000.

97 Worsley et al, above n 3, at 2429–2431.

99 Professional Standards Authority Annual Report and Accounts and Performance Review Report 2012–2013, Volume II Performance Review Report 2012–13. HC 305-II (SG 2013/93), at 24.

100 Research works Public Response to Alternatives to Final Panel Hearings in Fitness to Practise Complaints (St Albans: Research Works, 2013) available at https://www.professionalstandards.org.uk/docs/default-source/publications/research-paper/public-response-to-alternatives-to-final-panel-hearings-2013.pdf?sfvrsn=6 (accessed 8 February 2019).

101 HCPC, above n 62, at 37.

102 Worsley et al, above n 3, at 2433.

103 Worsley et al, above n 3.

104 McFadden, P, Campbell, A and Taylor, BResilience and burnout in child protection social work: individual and organisational themes from a systematic literature review’ (2015) 45 British Journal of Social Work 1546.

105 Furness, SConduct matters: the regulation of social work in England’ (2015) 45 British Journal of Social Work 861 at 870.

106 Leigh et al, above n 3.

107 Ibid, at 391.

108 Ibid.

109 Ibid.

110 Beddoe, ESurveillance or reflection: professional supervision in the “risk society”’ (2010) 40(4) British Journal of Social Work 1279.

111 Munro, E The Munro Review of Child Protection: Final Report – A Child-centred System (London: Department for Education, 2011).

112 Case, above n 4.

113 Ibid, at 591.

114 See for example Health Committee 2013 Accountability Hearing with the Nursing and Midwifery Council HC699 (2013–14); Health Committee 2013 Accountability Hearing with the General Medical Council HC 897 (2013–14).

115 Butler, I and Drakeford, M Social Work on Trial: The Colwell Inquiry and the State of Welfare (Bristol: Policy Press, 2011).

116 Warner, J“Heads must roll”? Emotional politics, the press and the death of Baby P’ (2013) 44(6) The British Journal of Social Work 1637.

117 All Parliamentary Party Group Inquiry into the State of Social Work (Birmingham: British Association of Social Workers, 2013), available at https://www.basw.co.uk/resources/inquiry-state-social-work-report (accessed 8 February 2019).

118 Case, PDoctoring confidence and soliciting trust: models of professional discipline in law and medicine’ (2013) 29 Professional Negligence 87. See also Chamberlain, JDoctoring with conviction: criminal records and the medical profession’ (2018) 58(2) British Journal of Criminology 394.

119 Ayres, I and Braithwaite, J Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992).

120 Department of Health Promoting Professionalism, Reforming Regulation: A Paper for Consultation (Leeds: DoH, 2017). Professional Standards Authority Right-touch reform: a new framework for assurance of professions (Nov 2017), ch 3, available at www.professionalstandards.org.uk/docs/default-source/publications/thought-paper/right-touch-reform-2017.pdf?sfvrsn=2e517320_7.

121 Kahn-Freund, OOn the uses and misuses of comparative law’ (1974) 37(1) MLR 1.

122 Department of Education and Department of Health and Social Care, above n 5.

123 Department of Health, above n 35, para 5.8 and Law Commission, Scottish Law Commission, Northern Ireland Law Commission Regulation of Health Care Professionals. Regulation of Social Care Professionals Cm 8839 (London: TSO, 2014) pp 131–134.

124 Department of Health, above n 35, para 5.27.

125 Social Workers Regulations 2018, SI 2018/893, reg 25 and Sch 2.

126 Either the Law Society for Scotland or the Faculty of Advocates.

127 Scottish Legal Complaints Commission Overview of the process for dealing with service and conduct complaints, available at https://www.scottishlegalcomplaints.org.uk/making-a-complaint/complaints-process.aspx (accessed 8 February 2019).

128 Following the decision in Anderson Strathern Llp v The Scottish Legal Complaints Commission [2016] ScotCS CSIH_71, [23]–[29], it is no longer lawful for a complaint to be treated as a ‘hybrid complaint’, ie investigated both by the SLCC (for service matters) and a professional body (for conduct matters).

129 Department of Education and Department of Health and Social Care, above n 5.

130 Law Commission, above n 123, ch 8.

131 Eg R (Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin), [2011] 2 FLR 1399 at [92].

132 Eg R (Nicolaides) v General Medical Council [2001] EWHC Admin 625, [2001] Lloyd's Rep Med 525 at [28]–[32]. This was also the view of the Law Commission, see above n 123, para 8.39.

133 Doody, above n 36.

134 A particular problem is the ability of case examiners to impose interim orders suspending registrants from practising: L Stevenson ‘New fitness to practise process could threaten social workers’ human rights, professional body warns’ Community Care (22 February, 2018), available at: http://www.communitycare.co.uk/2018/02/22/new-fitness-practise-process-threaten-social-workers-human-rights-professional-body-warns/ (accessed 8 February 2019).

135 Social Workers Regulations 2018, Sch 2, para 3.

136 Ibid, Sch 2, para 9.

137 Ibid, Sch 2, para 10(1).

138 Creutzfeldt, N and Bradford, BDispute resolution outside of courts: procedural justice and decision acceptance among users of ombuds services in the UK’ (2016) 50(4) Law and Society Review 985.

139 Data taken from the annual reports of the HCPC.

The authors express their gratitude to the feedback they received from colleagues, in particular Joe Tomlinson and that provided by the referees.

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