Overview of SWE’s “accepted disposal” process, the outcome of the PSA review and discussion on the fairness of this process.
What are “accepted disposal”?
Under this process (also referred to as “accepted outcomes”), Social Work England (SWE) Case Examiners can decide that the facts of a case are likely to be found proved by a panel of adjudicators, that those adjudicators are also likely to find that the facts amount to misconduct and that the social worker’s fitness to practise is impaired. The case examiners can then invite the social worker to accept a sanction which addresses the impairment without the matter being heard in public by a panel.
It is widely accepted that public hearings are adversarial, legalistic and stressful for registrants and complainants. This process, similar in principle to consensual disposals, therefore seeks to resolve cases without the need for a contested hearing.
Accepted Disposal and Consensual Disposal
Before looking at accepted disposal in more detail, it might be helpful to highlight the differences between an accepted disposal and consensual disposal.
Consensual disposal is also the means by which regulatory panels and registrants can avoid the need for a contested hearing by reaching agreement to conclude cases by deciding in private the outcome that the panel would most likely have reached if hearings were to be contested and held in public.
The registrant must accept the facts of the allegation and that their fitness to practise is impaired. The regulator will then agree what the appropriate level of sanction is. This is then presented to the appropriate fitness to practise committee to consider the agreement. The panel makes the final decision about the outcome of the case.
The accepted disposal process is different from consensual disposal because the final decision-making rests with Case Examiners not a fitness to practise committee and there is no review process in relation to accepted disposals.
The accepted disposals process is new and currently only used by Social Work England as part of its fitness to practise process. A recent review of SWE’s accepted disposal process was undertaken by the Professional Standards Authority (PSA). The outcome of this review found, amongst other things, that:
- In some cases, social workers might have been better advised to seek a determination by the adjudicators (or fitness to practise panel) either because the Case Examiners’ assessment that the facts were likely to be proved was correct, or because the social worker might have been better able to demonstrate insight by giving live evidence to the panel.
- Following on from the point made above, Case Examiners’ decisions are final and there is no means of review. On the face of it, this makes sense because the registrant would have had to “accept” (in other word admit to the misconduct) the finding and the consequential sanction(s). However, this is only acceptable if the process was fair, facts were absolutely clear ad uncontested. If not, the registrant is strongly advised to seek legal advice prior to accepting any facts and sanctions.
The outcome of the PSA review clearly identified that the accepted disposals process is most appropriate in simple cases where the facts are clear and uncontested. This is not the same for cases where there are disputes of fact or doubts about the level of insight.
For example, the PSA found cases where it was not satisfied that the social worker did accept serious allegations which the Case Examiners had found likely to be proved or that the reflections shown by the social worker really showed a level of insight which justified the sanction. These cases involved serious concerns about confidentiality and abuse of position and the PSA “doubted” that the decisions taken there were sufficient to protect the public.
“Accepted disposals” – why does it matter?
Although the acceptable disposals process is limited to Social Work England, Government proposes to enable the other Health and Social Care regulators to have similar powers.
The Department of Health and Social Care (DHSC) is currently consulting on reforms to fitness to practise including proposals that “regulators should have broadly equivalent powers to maintain a level of consistency and effective public protection”.
Amongst these “broadly equivalent powers” are plans to introduce a standard three step fitness to practise process.
Insofar as these proposals relate to Case Examiners, the DHSC is proposing to give Case Examiners the “full suite of measures available (including applying conditions to a registrant’s practice, suspending their registration, or removing the registrant from the register) with which they can conclude a case but only through an accepted disposal.”
Legal Advice and Representation
The PSA’s review concluded that there is a danger that registrants who are not represented may agree to more serious outcomes than would have been the case if they had had the matter heard by panels.
This was supported by a case where a social worker who had refused an agreed disposal achieved a finding of ‘not impaired’ and was able to practise without restriction or any current finding on their record.
It would appear that the role and powers given to Case Examiners is set to become increasingly important in fitness to practise proceedings in the future. The PSA’s review concluded that, in some cases, acceptable disposal could be appropriate but this will not be the case in many other fitness to practise cases.
Registrants are strongly advised to carefully consider accepting a disposal without the need for a contested hearing because the consequences could be more severe than the circumstances dictate without the right of a review.
Kings View Chambers are leading and specialist fitness to practise barristers with a proven and excellent track record. If you are subject to fitness to practise proceedings or investigation, contact us for a no obligation and free initial case assessment.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.