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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: [email protected]
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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 

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Footnotes

†

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

References

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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.

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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.

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103 Worsley et al, above n 3.

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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).

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139 Data taken from the annual reports of the HCPC.