Hostname: page-component-78c5997874-xbtfd Total loading time: 0 Render date: 2024-11-10T15:22:06.031Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  23 April 2019

Richard Kirkham ,
Jadwiga Leigh ,
Kenneth McLaughlin  and
Aidan Worsley
Richard Kirkham*
Affiliation:
School of Law, University of Sheffield, Sheffield, UK
Jadwiga Leigh
Affiliation:
Centre for Child and Family Justice Research, Lancaster University, Lancaster, UK
Kenneth McLaughlin
Affiliation:
Faculty of Health, Psychology and Social Care, Manchester Metropolitan University, Manchester, UK
Aidan Worsley
Affiliation:
Faculty of Business, Law and Applied Social Studies, University of Central Lancashire, Preston, UK
*
*Corresponding author. E-mail: r.m.kirkham@sheffield.ac.uk
Get access Rights & Permissions [Opens in a new window]

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.

Keywords

procedural fairnessprofessionsalternative dispute resolutionsocial workers
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 2 , June 2019 , pp. 339 - 357
Copyright
Copyright © The Society of Legal Scholars 2019 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

†

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

References

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, A ‘The 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 825CrossRefGoogle ScholarPubMed; Leigh, J, Worsley, A and McLaughlin, K ‘An analysis of HCPC fitness to practise hearings: fit to practise or fit for purpose?’ (2017) 11(4) Ethics and Social Welfare 382CrossRefGoogle Scholar; Worsley, A, McLaughlin, K and Leigh, J ‘A subject of concern: the experiences of social workers referred to the Health and Care Professions Council’ (2017) 47 British Journal of Social Work 2421CrossRefGoogle Scholar.

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)Google Scholar.

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

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, L ‘The forms and limits of adjudication’ (1978) 92 Harvard Law Review 353 at 405–409CrossRefGoogle Scholar.

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, M ‘The future of medical self-regulation in the UK: renegotiating the state–profession bargain?’ (2015) 14 Medical Law International 236CrossRefGoogle Scholar.

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)CrossRefGoogle Scholar.

22 Eg Ogus, A ‘Rethinking self-regulation’ (1995) 15(1) Oxford Journal of Legal Studies 97CrossRefGoogle Scholar.

23 Eg Schon, D ‘The 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)Google Scholar.

24 Eg Care Standards Act 2000.

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

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)Google Scholar; Laming, Lord The Victoria Climbié Inquiry Cm 5730 (London: TSO, 2003)Google Scholar.

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

28 Healy, K ‘2015 Norma Parker address: being a self-regulating profession in the 21st century: problems and prospects’ (2016) 69 Australian Social Worker 1CrossRefGoogle Scholar.

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)Google Scholar.

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 5.7Google Scholar.

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)CrossRefGoogle Scholar.

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

39 Ibid, 70.

40 Eg Mashaw, J Due Process in the Administrative State (New Haven: Yale University Press, 1985) 104–155Google Scholar.

41 Hovell, above n 37, p 76.

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

43 Rosanvallon, P Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton: Princeton University Press, 2011)CrossRefGoogle Scholar; 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 45Google Scholar.

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

47 Galligan, above n 38, p 15.

48 Eg Gee, G and Weber, G ‘Rationalism in public law’ (2013) 76 MLR 708CrossRefGoogle Scholar.

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

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

51 Mashaw, above n 45, p 24.

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

53 Osborn v Parole Board [2014] AC 1115.

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

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)Google Scholar.

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

60 Leigh et al, above n 3.

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

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

63 HCPC Annual Report: Key Financial Information 2016/17 (London: HCPC, 2017) 8–9Google Scholar.

64 HCPC, above n 62, at 14.

65 Ibid, 16.

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

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.

83 Ibid.

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, F ‘Blurring private–professional boundaries: does it matter? Issues in researching social work students’ perceptions about regulation’ (2011) 5(1) Ethics and Social Welfare 36CrossRefGoogle Scholar.

89 McLaughlin, K ‘The 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 314CrossRefGoogle Scholar.

90 Azam, above n 78.

91 HCPC, above n 62, at 44.

92 Leigh et al, above n 3.

93 Ibid.

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.

98 Ibid.

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, B ‘Resilience and burnout in child protection social work: individual and organisational themes from a systematic literature review’ (2015) 45 British Journal of Social Work 1546CrossRefGoogle Scholar.

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

106 Leigh et al, above n 3.

107 Ibid, at 391.

108 Ibid.

109 Ibid.

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

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

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)CrossRefGoogle Scholar.

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 1637CrossRefGoogle Scholar.

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

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

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

120 Department of Health Promoting Professionalism, Reforming Regulation: A Paper for Consultation (Leeds: DoH, 2017)Google Scholar. 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, O ‘On the uses and misuses of comparative law’ (1974) 37(1) MLR 1CrossRefGoogle Scholar.

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, B ‘Dispute resolution outside of courts: procedural justice and decision acceptance among users of ombuds services in the UK’ (2016) 50(4) Law and Society Review 985CrossRefGoogle Scholar.

139 Data taken from the annual reports of the HCPC.