Commentary on Sections Part 6 –Social Care Workers: Fitness to Practise Chapter 2 - Preliminary procedures Sections 131 – 133 - Review
186.Section 131 provides a mechanism for reviewing certain decisions made upon conclusion of preliminary consideration and investigation. This enables SCW to reconsider decisions to ensure they are properly made or to reconsider decisions in light of new information which was not available at the time the original decision was made. Anyone SCW considers to have an interest in the decision can apply for a review. The review power does not include decisions to refer cases to an interim orders or fitness to practise panel. SCW has a separate power to cancel such referrals in section 134.
187.Section 131 requires SCW to review a decision mentioned in subsection (2) if it appears to SCW that the decision is materially flawed. This might be because of an error made by SCW in the administrative handling of the case which undermines the decision, such as the loss of relevant evidence, or an error of judgement or reasoning by the decision-maker. SCW has a broad rule-making power to determine the process that will apply to reviews under section 131. SCW could for example provide that the registrar makes the final decision.
188.Upon conclusion of an investigation or following consideration by a fitness to practise panel, sanctions can be imposed on a registered person. These include imposing conditions on a registered person’s registration, for example restricting the areas in which they can practise, suspending the registered person for a period of time or requiring the register person to agree to an undertaking (see explanatory note accompanying section 126 and sections 135-155). There is a significant public interest in reviewing sanctions to ensure compliance with sanctions and to assess a registered person’s fitness to practise in light of sanctions imposed. Chapter 5 sets out the system for reviewing conditional registration orders, suspension orders and undertakings. Review hearings are undertaken by fitness to practise panels and there are two ways in which a review can be initiated.
189.The first is a review must take place if this has been directed in the original order or undertaking. For example an undertaking agreed between a registered person and fitness to practise panel to complete a training course requires a review to take place after 6 months to assess compliance with the undertaking. Section 151, subsections (1)-(6), requires fitness to practise panels to carry out reviews where it is a requirement of the undertaking, conditional registration order or suspension order. See the explanatory note which accompanies Chapter 5.
190.Section 133 sets out the second method of initiating a review. SCW is responsible for monitoring compliance with conditions, suspensions and undertakings. Section 132(3) places a duty on SCW to refer cases to a fitness to practise panel to carry out a review if it has reason to believe that a registered person has breached an undertaking or condition. If, for example, SCW became aware that a registered person was failing to comply with a conditional registration order and was practising in an area he or she was prohibited from practising, SCW would be required to refer the matter for review. This information would not be treated as a new allegation and investigated accordingly. It would be referred immediately to a fitness to practise panel to review.
191.SCW is also able to refer matters for review proceedings at any time if it considers that a review is desirable (section 133(2)). This might be because SCW has received an allegation that a registered person subject to a conditional registration order is acting in a way which calls into question their fitness to practise. Once again, this allegation would not be treated as a new allegation rather it would be referred immediately to a fitness to practise panel to review.