Commentary on Sections Part 6 –Social Care Workers: Fitness to Practise Chapter 1 – Grounds of impairment Section 117 - Fitness to practise
168.This Part sets out the framework for the investigation of allegations of impaired fitness to practise of registered persons and the framework governing fitness to practise hearings. Section 164 sets out the meaning of registered person and confirms that it means a person who is registered in the social worker part, an added part or the visiting European part of the registers. Part 6 of the Act therefore applies only to social care workers who are required to register, for example social workers. It does not apply to unregistered social care workers.
169.Fitness to practise panels will make decisions about whether a registered person’s fitness to practise is impaired. These panels also decide what sanctions are appropriate following consideration of a case (see section 174 for provision requiring SCW to establish fitness to practise panels and the explanatory note which accompanies sections 174 and 175 for an explanation of the constitution and procedures of panels).
170.Section 117 provides that a person’s fitness to practise is to be regarded as impaired by reason only of one or more of the grounds specified in subsection (1).
171.In subsection (1)(a), evidence of “deficient performance as a social care worker” is likely to include failures to comply with the standards of conduct and practice expected of social care workers set out in the codes of practice issued by SCW under section 112, although persons evaluating a social care worker’s performance will not be limited to just considering compliance with codes. This ground is intended to capture serious or persistent failures to follow the standards of conduct expected of practising social care workers. Therefore a single instance of negligent treatment could constitute deficient performance, as could persistent technical failings or other repeated departures from good practice.
172.In subsection (1)(b), serious misconduct refers to conduct which may or may not be related to the exercise of professional skills, but which brings disgrace upon the registered person and thereby prejudices that person’s ability to practise safely and the reputation of the profession. Therefore behaviour that takes place outside a social care worker’s professional practice may lead to action where public confidence in social care workers might be undermined if action was not taken.
173.In subsection (1)(c), “barred list” refers to a list of individuals who have been deemed unsuitable to work with children or vulnerable adults. In England, Wales and Northern Ireland this list is maintained by the Disclosure and Barring Service under the Safeguarding Vulnerable Groups Act 2006. In Scotland the list is maintained by Disclosure Scotland under the Protection of Vulnerable Groups (Scotland) Act 2007. Typically persons are barred because they have committed criminal offences which relate to the ill-treatment or abuse of children or vulnerable adults.
174.Determinations by a relevant body are determinations made by equivalent regulators of social care workers and the nursing and midwifery regulator for the United Kingdom: the NMC. If for example the regulator for social workers in England, the Health and Care Professions Council, made a decision that a social worker is not fit to practise, the registrar could rely on that decision to refuse that social worker’s application to register with SCW. This will prevent persons from circumventing the decision of one regulator by registering with another. Similarly, findings made in the Welsh context about a registered person’s fitness to practise may inform decisions in relation to registers maintained by other regulators in the United Kingdom and further afield.
175.In respect of subsection (1)(e), SCW will not ordinarily need to be involved merely because a social care worker suffers from an illness. This ground should be relied upon only if a social care worker has a medical condition (including an addiction to drugs and alcohol) that is affecting his or her ability to practise to an acceptable standard.
176.Not every finding of impairment under subsection (1) will automatically mean the registered person’s fitness to practise is impaired. Other relevant factors will be taken into account, including for example in a case involving deficient performance, whether the issues in question are easily remediable or whether action has been taken to address the problem.