Clause 200

Health and Social Care Bill – in a Public Bill Committee at 11:45 am on 29th March 2011.

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Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health) 11:45 am, 29th March 2011

I beg to move amendment 647, in clause 200, page 171, line 34, leave out

High Court of Justice in England and Wales’ and insert

‘First Tier Tribunal (Care Standards)’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment 648, in clause 207, page 177, line 40, leave out

High Court of Justice in England and Wales’ and insert

‘First Tier Tribunal (Care Standards)’.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

Amendments 647 and 648 deal with the same concern. As Committee Members are presumably aware, given our debates this morning, the Bill heralds a significant change for social workers who are presently registered under the GSCC but will in future have to register under the Health and Care Professions Council. The question is about the right of appeal. The change is that the right of appeal will be only to the High Court, rather than to the first-tier tribunal for care standards. Such a detrimental change is causing great disquiet among social workers because the permissible grounds for appeal will be narrower and less responsive to the complexities of social work cases. It will be more difficult to appeal, and pursuing an appeal will be more expensive and risky.

The Bill seems to have been drafted without a proper understanding of the real nature of social work. Unlike other health professionals, social workers often work with people who do not want to work with them. Such people can be hostile and resistant to social workers’ interventions into their lives. They do not want to be seen with social workers, and feel that social workers are doing things to them and their family that they do not want. Social workers must therefore exercise fine judgment in complex situations. There can be either deliberate or real misunderstandings between social workers and those whom they are attempting to look after.

To make life even more difficult, there are well-established staff shortages, excessive case loads, chaotic systems and widespread use of agency staff in many social work departments. It is the experience of Unison and many others that social workers frequently do not receive the necessary supervision and support from their employer to be able to practise safely and effectively. Given the cuts that are now taking place as a result of this Government’s reckless behaviour towards the economy, it appears that there will be even greater pressure on social workers over the coming years, so things can only get worse—[Interruption.]

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Order. Hon. Members should calm down.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

Thank you, Mr Hood.

There is great concern that the new system will reduce access to justice, as parties have to instruct barristers and solicitors, which involves higher costs, and social workers who pursue appeals run the risk of having costs awarded against them. That will act as a deterrent to social workers. The care standards tribunal has proved itself to be accessible, efficient and cost-effective in ensuring fair outcomes for social workers. Does not the Minister agree with that? What has he got against the existing system? If he does not agree with it, will he please give a full critique of the perceived problems? In the opinion of many staff, the system is not broken and certainly does not need fixing.

I have a couple of examples of first-tier tribunal decisions for the edification of the Committee. They demonstrate decisions that could not have been made by the High Court, and yet are just and fair decisions for the social worker involved. Given that appeals to the High Court may be brought only on very narrow points of law, or on a finding of fact, it will be difficult in some circumstances for social workers to appeal at all, leaving aside the cost, difficulty and, frankly, intimidation of needing to go to the High Court. The existing first-tier tribunal on care standards provides a valuable service. If I may cite my two examples, I believe that I will persuade the Committee that the changes are unfair.

The tribunal accepted the factual basis of an incident in the case of Forbes v. General Social Care Council, but it formed the view that the sanction imposed was too severe. The tribunal was concerned by the

“apparent chaos within the team; a suspended manager, an interim manager and an apprentice deputy team manager should have triggered higher management action to ameliorate the inevitable pressures bearing upon the front-line staff… In terms of public protection we accept that the Appellant has learnt her lesson and that there is very little risk of her acting in such a way again. With respect to public confidence in the services we find that in the context of what happened and the Appellant’s role in it, that an alternative sanction would have been appropriate and proportionate.”

The tribunal can step in to say that a penalty is too far and set aside an appeal. Instead of a social worker losing their job, there are alternative ways of dealing with circumstances in which they are overworked, under-helped, undermanaged and given insufficient support.

May I give the further example of LA v. General Social Care Council, which is case 985.SW from 2007? The tribunal had to bear in mind the professional environment in which the social worker was operating. The department was chaotic, she had no detailed supervision and there was no obvious benchmark against which she could self-assess. The tribunal assumed that there was no appraisal scheme in place. The tribunal decided that the case against Ms A’s good conduct was not made out. On issues of competence, the tribunal arrived at a similar conclusion in favour of Ms A. For instance, on failing to challenge a medical opinion, the tribunal said:

“Casting our minds back to 1999 we wonder whether it would have been accepted as appropriate for a junior social worker to question the opinion of at least 2 consultant paediatricians”.

On other poor practices, the tribunal found that there was a lack of

“supportive and competent managers giving LA the guidance she needed.”

Again, Ms A’s appeal was allowed, and I am sure that the Committee will agree that the result was just. However, such an appeal would not be available if the tribunal was abolished, as under the Bill, and people instead had to go to the High Court with representation from a barrister and solicitors, and the attendant costs and difficulties associated with that.

It is for those reasons that I have tabled the amendments, and I shall be interested to hear the Minister’s reply. If he is not able to reassure me sufficiently, I shall press amendment 647 to a Division.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health

I am grateful to the hon. Lady for airing those issues. It is important that we speak to the profession’s concerns about the changes, so I am grateful for the opportunity to address some of those.

The hon. Lady rightly talks about the pressures faced by social workers. Those pressures are not new; they have been well documented over many years in this country. She is right to identify that social workers often have to deal with people who do not wish to work with them, but she would be wrong to imply that they are the only professionals who find themselves in that situation, and I suspect that other professional groups would find it odd if she did. The groups that come immediately to mind as facing similar circumstances are probation officers and mental health workers, who might well encounter such difficulties from time to time. Although we should acknowledge the special contribution that social workers make, we should not build a whole argument, as I think the hon. Lady is trying to do, around their being unique in every aspect, when clearly there are other professions that have to confront similar challenges.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

Given what the Minister says, I would be interested to know what the appeal process is for probation officers, for example. Having gone through a first-instance hearing, do they have to take any appeal to the High Court? Is it not the case that other layers of appeal are available to probation officers? Part of my argument is that social workers will have to proceed too quickly to the High Court, which will involve attendant costs, time wasting and intimidation. That is unnecessary if we can keep the first-tier tribunal available.

Photo of Paul Burstow Paul Burstow The Minister of State, Department of Health 12:00 pm, 29th March 2011

Let me come to the hon. Lady’s central argument, which is at the heart of these amendments. Amendment 647 would provide for all appeals against fitness-to-practise decisions that are made by the Health and Care Professions Council, or certain of its committees, in relation to social workers who are registered with it to lie with the first-tier tribunal. Amendment 648 would make changes to the Council for Healthcare Regulatory Excellence’s powers to refer final fitness-to-practise decisions of the regulatory bodies that it oversees to the appropriate court, so decisions relating to social workers in England would instead be referred to the first-tier tribunal.

The Government oppose the amendments because we believe that a flawed understanding lies behind their drafting. Amendment 647 would retain the current position whereby all appeals for social workers would go to the first-tier tribunal. Accepting the amendment would be contrary to two recommendations of the Council for Healthcare Regulatory Excellence’s independent review of the General Social Care Council’s conduct processes, which was published in 2009. That review recommended that

“the relevant legislation should be amended so that appeals against decisions made by the conduct committee are heard by the High Court rather than the Care Standards Tribunal.”

The review further recommended that

“the GSCC and DH should review the current primary and secondary legislation relating to the conduct process and replace it with a fitness to practise process which allows it to assess both competence and conduct.”

The hon. Lady describes the change that I have just set out, which was recommended by the CHRE, as detrimental, but that prompts the question of why Ministers in the previous Labour Government accepted that recommendation. I think that they did so for good reasons, and I want to explain what those reasons are and why we intend to carry through that policy intention in the Bill.

The Health and Care Professions Council’s fitness-to-practise appeal process is, in fact, more flexible in its operation than the General Social Care Council’s conduct appeal process. The Health and Care Professions Council will internally review all appeals to determine whether they should be defended in the High Court. It will also have internal mechanisms to deal with review of suspension orders, conditions on practice orders and striking off orders. The important point to remember is that the Health and Care Professions Council, unlike the General Social Care Council, will be able to give full consideration to the range of social work practice in relation to both conduct and competence. At the moment it can deal only with matters relating to competence.

The Health and Care Professions Council will also not be limited to removing, suspending or admonishing a social worker, as the General Social Care Council currently is. Instead, the Health and Care Professions Council will be able, when appropriate, to support social workers in England to improve their practice, for example through the use of conditions on registration. Under the Health and Care Professions Council’s fitness-to-practise regime, social workers can therefore be confident that their cases will be fully considered and that suitable sanction can be imposed without a frequent recurrence of the need to go to court.

The appeals to the High Court need to be seen as part of the Health and Care Professions Council’s overall fitness-to-practise system, which will look at social workers’ conduct and competence in the round, and include a wide range of sanctions of the sort that I have described. In addition, the council has a number of internal systems to resolve such concerns before any need to go before a court arises. Indeed, in 2009-10, only five appeals were made to the High Court—or the equivalent in the relevant UK country—by registrants of the Health Professions Council following a fitness-to-practise decision. The number of people going to court is relatively small as a result of the process that the Health Professions Council has in place, which was recommended by the CHRE.

Taken as a whole, we accept that the costs of a small number of social workers who appeal to the High Court will increase as a result of the new appeals process. At the same time, however, the cost of appeals for other social workers is likely to decrease. In making this change, it is clear to us that the Health and Care Professions Council processes offer many more advantages than those that are under the General Social Care Council. For those reasons, we do not accept amendment 647.

Finally, I turn to amendment 648. If the Committee accepts that the High Court is the most appropriate court to hear appeals against fitness-to-practise decisions relating to social workers in England made by the Health and Care Professions Council, it follows that the High Court is also the appropriate place to hear referrals by the CHRE of such decisions. For those reasons, and  given the reassurances and explanation of the extended process that will exist in the future, I urge the hon. Lady to agree with the decisions that her colleagues took in government.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

I have listened carefully to what the Minister has said, but I do not intend to withdraw the amendment.

Question put, That the amendment be made.

The Committee divided: Ayes 10, Noes 13.

Question accordingly negatived.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 13, Noes 10.

Question accordingly agreed to.

Clause 200 ordered to stand part of the Bill.

Clauses 201 to 206 ordered to stand part of the Bill.