In this blog, our Director of Scrutiny and Quality, Mark Stobbs explains more about why we carried out our review of Social Work England's use of accepted outcomes and some of our key findings.
Background to our review
We have just published our report on Social Work England’s (SWE) ‘accepted outcome’ process. This is a new process for dealing with fitness to practise cases which aims to avoid the delay and expense of panel hearings by allowing the regulator to accept an outcome proposed by SWE’s case examiners.
Under the current process applying to most regulators, a fitness to practise matter is dealt with by a panel that considers charges, decides whether they are proved and, if so, whether they are serious enough to be considered misconduct and, if so, whether the registrant’s fitness to practise is impaired either because they pose a risk to public protection or because a finding is required to uphold standards or maintain public confidence. The panel then decides what sanction is appropriate – these can range from no action to a removing the registrant from the register.
The process is lengthy, costly and stressful.
SWE and use of accepted outcomes
Under SWE’s process, their case examiners (one social worker, one lay person) look at the case on the paperwork provided. The case examiners decide whether there is a reasonable prospect of the facts being proved and of misconduct and then impairment being found. They can then propose a sanction (short of removal from the register) which they consider addresses the concerns and, if the social worker accepts this, the case is resolved.
In a consultation currently underway, the Government is proposing to extend the use of ‘accepted outcomes’ to all the health and social care regulators. We thought it was important to look at how the process has worked for SWE and to see if there was any learning to take away from it. We examined all 41 cases decided by SWE’s case examiners in 2020.
The first point I’d like to make is that SWE showed itself to be a responsive and thoughtful regulator. We relayed a large number of comments about the cases to SWE and these were considered carefully, thoughtfully and taken on board in later cases. SWE had a clear appetite to learn and get things right, which we found hugely encouraging.
It’s also important to bear in mind that this was a new process. There were likely to be teething troubles. In these matters there is also room for debate about exactly what sanction is appropriate for what conduct. Most cases presented an opportunity for learning, but this didn’t suggest that the decision did not protect the public.
We also saw a number of cases where the system worked well: the decisions were clear, the outcome obviously suitable to protect the public and considerable time had been saved.
A solution for simple cases
We found that this applied particularly to cases involving the social worker’s health or where a criminal offence had been committed, but the system is plainly suitable for cases where there is clarity about what happened and the matters are accepted by the social worker.
Points of concern
We did, however, have concerns about some of the agreed outcomes and believed some might not have been sufficient to protect the public. These arose from the limitations of the process: Case Examiners only have access to paperwork and cannot resolve disputes of fact, nor can the see the social worker or take judgements about insight directly from what the registrant tells them (though we agree that it is often possible to do so from the papers).
In some cases, it wasn’t clear that the social worker did agree with the facts (and we recognise that it will not be necessary for every detail to be agreed all the time and that some will make little difference). However, if there’s ambiguity about the facts, it will be difficult for a reviewing panel to assess whether the concerns have been remediated. It also leads to doubts about how far the social worker has insight and, therefore, the basis on which it was sufficient to impose, say, a Warning for a very serious piece of misconduct. We also saw cases where we doubted whether the registrant had in fact demonstrated the insight that the Case Examiners thought justified a minor sanction.
One of these cases was potentially serious. It appeared to us to be insufficient to protect the public. We thought that a panel should have made a decision on what had happened and, in the light of that, assessed the registrant’s insight and the right sanction. This was a case where the social worker had every incentive to agree to a relatively minor sanction.
In other cases, we considered that social workers might have agreed to sanctions that were quite serious where, had they gone before a panel, they might have received no sanction at all. In fact, this did happen in one case we examined: one registrant took their case to a panel and received no sanction. It will obviously cause problems for the system if social workers perceive Case Examiners’ decisions as likely to be harsher than a panel’s.
Addressing our concerns
Many of our concerns can be addressed by improved training and guidance. We also think it would be useful to provide extra guidance for registrants. We know that SWE will be following up on this. However, guidance and training cannot always prevent Case Examiners (or panels) reaching wrong decisions in some cases – they are after all human.
Many of these cases were serious and the decisions need to be as robust as those of panels for credibility both with the public and the profession. This is particularly important since there is no current mechanism for decisions made using ‘accepted outcomes’ to be challenged or overturned.
You can read the full report or a summary of our findings.