Key points

• Regulator’s guidance must not be “slavishly” followed and that regulatory decisions must be made based on the individual merits of the case and taking into account all the relevant matters.
• Taking into account all the relevant matters and information, the regulatory tribunal should consider the need and level of insight and remediation because not all cases would call for evidence of insight and remediation.
• This is relevant because a proper assessment of the need for insight and remediation would ultimately affect the decision on the appropriate level of sanction, if any.
• Whilst this was a SWE case, the discussion and implications apply equally to all the other health and social care regulators.

The High Court recently re-affirmed that guidance must not be “slavishly” followed, and that regulatory decisions must be made based on the individual merits of the case and taking into account all the relevant matters.

Gleeson v Social Work England

In Gleeson v Social Work England, the appellant (Ms Gleeson) is a social worker, first registered in 2012 and first employed by Wigan Council (“Wigan”) in 2014. She was the subject of fitness to practise proceedings brought by the professional regulator, now Social Work England (SWE), which were heard by a fitness to practise panel (“the panel”) over 9 days.

The allegations put before the panel related to the appellant’s personal life during the period of her regulation as a social worker and, specifically: (i) particular aspects of her alleged conduct during successive relationships with two persons (known below as Person A and Person B); and (ii) social media postings made by her following her suspension by Wigan after complaints made by Person B.

This process resulted in a finding that her fitness to practise was impaired by reason of misconduct and a finding that the appropriate sanction was a removal order.

Admissions, Insight & Sanctions

It is important to note that the appellant denied the allegations throughout, and on appeal, argued that the denial of the allegations were held against them which accounted for the higher sanction of erasure when a lower sanction should have been considered.

For its part, SWE argued that this was not the case, but that “it does make it more difficult for a practitioner to demonstrate insight and persuade a disciplinary tribunal that the relevant conduct will not be repeated.” 

It further argued that “the absence of an admission, it was incumbent on Ms Gleeson to demonstrate by other means that she had understood the seriousness of the allegations and had taken steps to ensure that similar conduct would not occur in the future. She did not do so and, in the absence of any meaningful evidence of insight, the panel were right to find that (a) there was a risk of repetition and (b) the only appropriate sanction was a removal from the register.”

Whilst Davies J accepted the SWE argument in general terms, he expressed specific concerns over the tribunal “loyally but inflexibly” following its own sanctions guidance. 

In relation to sanctions, the SWE guidance states:

137. Suspension may be appropriate where (all of the following): 

• the concerns represent a serious breach of the professional standards
• the social worker has demonstrated some insight
• there is evidence to suggest the social worker is willing and able to resolve or remediate their failings 

138. Suspension is likely to be unsuitable in circumstances where (both of the following): 

• the social worker has not demonstrated any insight and remediation
• there is limited evidence to suggest they are willing (or able) to resolve or remediate their failings

For a number of reasons, the case against the appellant dates back to 2019.  Davies J noted in his criticism that, in relation to the appellant, there was:

“… positive evidence as to the social worker’s performance of her professional duties; the absence of any cross-over from her personal life to her professional life; and the relatively limited nature of the allegations found proved over an extended period from 2012 to 2019, when compared with the complete absence of any evidence of repetition since 2019.”

Davies J made the point that the guidance in relation to the necessity and level of insight and remediation, should not be “loyally” and “inflexibly” followed but should consider the individual merits of the case and taking into account all the relevant matters (as specified above), saying:

“… the absence of sufficient evidence of insight and remediation may mean that, in a case which is otherwise suitable for suspension, the sanction is almost inevitably removal even if, taking everything into account, that would not otherwise be justified.”

The point Davies J was making is that, taking into account all the relevant matters and information, the tribunal should consider the need and level of insight and remediation because not all cases would call for evidence of insight and remediation.  This is relevant because a proper assessment of the need for insight and remediation would ultimately affect the decision on the appropriate level of sanction, if any.