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Regulation and Inspection of Social Care (Wales) Act 2016

Chapter 2 - Preliminary procedures
Sections 118124 - Preliminary consideration of allegations etc.

177.This chapter sets out the framework for the investigation of allegations of impaired fitness to practise made to SCW in respect of a registered person; the chapter also applies where SCW has other grounds for believing that a person’s fitness may be impaired (for example, if SCW became aware through a report in the media that a social worker had been arrested or sacked).

178.Preliminary consideration refers to the process of considering allegations or information to determine whether or not a case should proceed to be given further consideration. It will be SCW’s process for screening such allegations and information; and this process could be carried out by a member or members of SCW’s staff or by other persons appointed for that purpose. SCW can treat any information which comes to its attention as a potential allegation and there are no particular requirements as to the form of allegations (section 118).

179.The purpose of preliminary consideration is to decide whether the matter merits further investigation or, because of its severity, a direct referral to a fitness to practise panel. Section 120 sets out the criteria for eligibility for onward referral for investigation or immediate panel consideration.

180.If a matter is eligible for onward referral it must be referred for investigation or directly to a fitness to practise panel. SCW must refer allegations concerning convictions for offences in respect of which a custodial sentence was, or could have been, imposed directly to a fitness to practise panel and will have powers to specify in rules any other categories of cases that must be referred directly. This is because there is no need to investigate the facts giving rise to convictions of this nature and SCW will need to be able to act quickly to deal with registered persons convicted of serious offences.

181.At any stage in the fitness to practise process, including preliminary consideration, a registered person’s case can be referred to an interim orders panel. Interim order panels consider if any immediate measures are needed to protect the public or the registered person while matters are being considered and investigated. These measures could include restricting the range of activities the registered person is permitted to carry out, or suspending the registered person’s registration; the detailed provisions dealing with interim measures appear in Chapter 4 of this Part and are explained below.

Sections 125130 – Investigation

182.Sections 125-130 provide for allegations of impaired fitness to practise to be investigated by SCW, or investigated by persons acting on SCW’s behalf. SCW could for example provide that all or particular kinds of investigations are to be carried out by staff members or by other individuals appointed for that purpose. Alternatively, it could establish an investigation committee for conducting investigations. SCW will also be able to appoint advisors such as health advisors. This might be necessary when investigating allegations that a registered person’s fitness to practise may be impaired due to a health condition and an understanding of the condition is required or an assessment of their capacity.

183.Upon the conclusion of the investigation, SCW must refer the matter to a fitness to practise panel if the matter satisfies the realistic prospect test in section 126(2)(a) and it is in the public interest to refer the matter.

184.Where a case is not referred to a fitness to practise panel, SCW will have a range of options available to it to dispose of the case; these are set out in section 126. Where SCW decides that warning the registered person about their behaviour may be appropriate, the registered person has a right to request an oral hearing. This is to provide the person with an opportunity to make representations if they feel that a warning is not appropriate: a warning that has been issued can be recorded on the entry in the register relating to that person. SCW can also agree undertakings with registered persons. This could be, for example, an agreement that the registered person must complete a training course where the investigation has revealed that he or she may benefit from additional training.

185.There is provision in section 130 for introducing mediation as a means of disposing of cases referred for investigation. Mediation can be introduced only if provision is made by regulations made by the Welsh Ministers. Mediation could, for example, be beneficial in cases where allegations do not amount to impaired fitness to practise but there is a need to resolve issues between the registered person and the complainant which are likely to have an ongoing and detrimental effect to an ongoing relationship. If mediation were to be introduced a draft of the regulations would need to be approved by the National Assembly before being made (see section 187(2)).

Sections 131133 - 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.

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Explanatory Notes

Text created by the Welsh Government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of the National Assembly for Wales.


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