21 October 2021

Social Workers in Scotland will be familiar with their Regulator’s statutory duty to protect the public and uphold public confidence in the profession. To do so, the Scottish Social Services Council (SSSC) investigates concerns about workers, often holding a hearing at which it considers whether the worker’s fitness to practise is impaired and, if so, imposes sanctions on their registration (if required).

However, workers should be aware that from 1 July 2021, the SSSC introduced opt-in hearings meaning it will now only hold a hearing if a worker disagrees with the outcome of the SSSC’s investigation and proposed sanction and asks for a hearing, or where there are exceptional circumstances i.e. it is in the public interest to hold a hearing. This is a shift away from the old procedure where a sanction could only be imposed by an independent panel following a hearing or with the express consent of the worker.

Reasons for change

The SSSC has indicated that the reasons for this change include the following:

• It will allow them to focus on cases where there is a disagreement about the outcome of the investigation. The SSSC want to be able to put more resources into improving support for workers who disagree with the outcome of its investigation in the hope of being able to resolve those cases more quickly.
• It will avoid witnesses having to come to hearings where there is no disagreement about the outcome of the investigation. The SSSC suggest giving evidence is a difficult process for witnesses and has an impact on services (often services that are already overstretched) that have to release staff to attend.
• The SSSC was having to hold a substantial number of hearings where workers were not engaging.
• In 94% of cases, the sanction imposed by an independent panel was the same as the sanction recommended by the SSSC following investigation. (Although it is noteworthy that this percentage dropped where the worker engaged in the hearing process and dropped even further when the worker was represented).
• The changes will allow time and resources to be better allocated.

Implications

The SSSC appreciated that responses to the consultation demonstrated concerns around how workers will be protected under this new procedure, but provided the following reassurances:

• The SSSC will make sure there are no barriers to asking for a hearing if workers disagree with the outcome of its investigation. Any worker who wants a hearing will be able to have one.
• It will publish clear guidance and information and publish decisions on its website.
• It will continue to provide detailed notices explaining its decision to workers and employers.
• It will have a rigorous quality assurance process which scrutinises each decision.
• The worker will have the right to appeal the SSSC’s decision.

Although it is positive that workers will be able to ask for a hearing if the panel is considering imposing a sanction, there will still be workers who do not engage at this stage for a number of reasons. It could be the stress of the process, lack of understanding or personal circumstances.

Additionally, the sanction imposed can have serious implications on a worker’s professional and personal life. The SSSC can restrict workers’ practice by imposing conditions, suspension or even erasure which could affect a worker’s finances. This may also affect any internal investigation being carried out by a worker’s employer alongside the fitness to practise process. After all, if workers don’t ask for a hearing, then the SSSC will impose the sanction and send the final notice of decision to the worker’s current or most recent employer or higher education institution and/or any other person or body they think should be informed of their decision, if they consider it necessary for the protection of members of the public, or otherwise in the public interest.

Finally, the worker may have a right of appeal against a decision of the SSSC, but in many of the appeal cases the courts have been reluctant to intervene in the decision of a regulatory body. Thus, the right of appeal may not be as useful as it appears.

The question then is whether the change to opt-in hearings is proportionate. The worker’s right to a fair trial and the significant impact any sanction could have on their practice must be weighed against the inconvenience and pressures caused to the SSSC and other parties. The SSSC’s own finding that the correlation between their fitness to practise department’s initial proposal and the decision of the fitness to practise panels weakens when workers engage in the investigation process and weakens even further when they are legally represented, indicates the importance of engaging.

Advice for workers

It is very important that workers engage with their regulator and obtain legal advice early on. This is the case for all registrants referred to their regulator.

If you are a social worker or other professional with queries around fitness to practise procedures, please do not hesitate to contact a member of BTO’s Professional Discipline Team.

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939