Evidence to the Children, Schools and Families Select Committee Inquiry into Training of Children and Families Social Workers

Submission from:

Professor Michael Preston-Shoot (Dean, Faculty of Health and Social Sciences, University of Bedfordshire)

Roger Kline (on behalf of Aspect, the Association of Professionals in Education and Children's Trusts)

Summary

At both qualifying and post-qualifying levels in academic curricula, students are taught the standards of decision-making required by administrative law, powers and duties in legislation and amplified in government guidance, and human rights.

Research evidence in social work (as in the health service) indicates that practice assessors and managers often attach greater importance to agency policies and procedures, rather than legal and moral duties.

Pressure on resources leads managers and staff to constantly seek to adjust service provision to inadequate funding, often at the expense of the requirements for public involvement and accountability built into government policy. In so doing, they undermine legislation and guidance, service user needs, and compliance with the GSCC Code of Practice.

Practical steps to ensure a change of culture linked to robust supervision arrangements are required since the current processes, including whistleblowing, are ineffective, notably for newly qualified social workers.

Introduction

We welcome this opportunity to present evidence about social work education and practice to the Committee. It is derived from our experience as a social work practitioner, educator and researcher (MPS) and as a trade union official representing professional staff (RK). It should be read in conjunction with submissions from the Joint University Council Social Work Education Committee and the Association of Professors of Social Work. One of us (MPS) is a member of both organisations and Immediate Past Chair of the former. Our focus here is that, when considering the outcomes of social work education and practice, a key aspect of the practice context is often overlooked, which provides half of the qualifying degree. In seeking to improve outcomes for vulnerable adults and for children in need or at risk, searching questions should be prompted by judicial review evidence, Ombudsman and other inquiries and narratives from service users and carers.

Messages from the NHS

1. Professor Ian Kennedy has described the culture that drove the sole Bristol Royal Infirmary whistleblower to emigrate to Australia:

"If the culture of openness between the NHS and the public has to change, so too does the internal culture within the NHS, so as to allow for greater openness with and between staff. Currently, there continues to be a sense among the workforce that they cannot discuss openly matters of concern relating to the care of patients and the conduct of fellow workers. There is a real fear among junior staff (particularly amongst junior doctors and nurses) that to comment on colleagues, particularly consultants, is to endanger their future work prospects. The junior needs a reference and a recommendation; nurses want to keep their jobs. This is a powerful motive for keeping quiet." (1)

2. The Public Interest Disclosure Act 1998 sought to give statutory protection to whistleblowers. Each NHS employer is required to have an internal Freedom of Speech procedure to enable staff to whistleblow. The Healthcare Commission was established as a new powerful inspectorate. Research evidence questions the Act's effectiveness. (2)

3. The professional regulatory bodies, notably the GMC and NMC, explicitly require registrants to draw attention to concerns about the environment of care in terms that are similar to those of the General Social Care Council Code of Practice.

4. Yet, despite this framework, patients died at Maidstone Hospital NHS Trust and at Stafford General Hospital. The Healthcare Commission report on Stafford General reported deficiencies at "virtually every stage" of emergency care as managers pursued targets to the detriment of patient care. At Maidstone Hospital, the Commission said a "litany" of errors in infection control had caused the "avoidable tragedy", with nurses too rushed to wash hands and leaving patients to lie in their own excrement.

4. There have been no reports of whistleblowers triggering either the Maidstone or Stafford investigations. The NMC has been unable to tell Aspect if any nurses or managers have faced fitness to practise charges as a result, (3) but did not hesitate to remove from the NMC register Susan Hayward, one of the few nurses in recent years who have publicly raised concerns as they are required to.

6. Whistleblowers were also absent when in 2007 the Healthcare Commission audit of services for people with learning difficulties found that:

".......most services for people with learning difficulties provide poor standards of care and there are unacceptable variations in the quality of services throughout the country.

"The Commission said that while services are driven by committed staff working in difficult environments, significant institutional failings are depriving people with learning difficulties of human rights and dignity in many instances. It said services operated off the radar of the healthcare system, with poor leadership, poor training and no framework to measure the performance of services." (4)

7. Social work faces similar problems, despite a framework whose purpose is supposedly to ensure staff can raise concerns about unsafe or inappropriate practice.

The Local Authority experience

8. Local Authority social services are required to have in place:

"appropriate whistle-blowing procedures, and a culture that enables issues about safeguarding and promoting the welfare of children to be addressed" (5)

8. The CQC (formerly Commission for Social Care Inspection Guidance) states:

 

"Care service providers know how internal whistleblowing arrangements can help safeguard the interests of people using their services.

 

"Staff in regulated care services know they can make whistleblowing disclosures to CSCI if they need to and CSCI responds appropriately when they do.

"The law requires care service providers to have in place measures to safeguard people using their services from harm or abuse and to promote their rights and welfare. National minimum standards expand on this requirement and call upon care service providers to have whistleblowing arrangements."(6)

10. When an Ofsted whistle-blower hotline was finally established on April 1st 2009, no one used it in its first month (April 2009).

11. The GSCC Staff Code of Practice requires all social care staff to comply with the Code by:

"Bringing to the attention of your employer or the appropriate authority resource or operational difficulties that might get in the way of the delivery of safe care." (Para 3.4)

12. Despite the GSCC Code of Practice requirements, workplace whistleblowing procedures, and the Public Interest Disclosure Act, CSCI's Chief Inspector explained their role as follows, in 2005:

"The Commission for Social Care Inspection's (then) chief inspector David Behan sees whistleblowing as a key weapon in improving standards in social care services, and wants more employees to tell the commission of their concerns.

"A lot of people will be reluctant to go to their employer so they can come straight to us," a CSCI spokesperson said. (7)

13. In response, the view of Public Concern at Work was that:

"the sector (social care) was a long way behind even the health service. "The important thing is to try to develop a culture of accountability where people are more likely to speak out.'

The human cost to staff

14. Despite the Public Interest Disclosure Act, a large number of whistleblowers have lost their jobs or suffered detriment. The very first whistleblower (Bryan Bladon) to go to court to use its provisions worked in a private nursing home. He won his case but lost his job.

15. Twenty years ago, social worker Alison Taylor raised concerns about apparent abuses in a North Wales children's home. A decade later the government set up a public inquiry. By then she had been sacked. Though she won damages for unfair dismissal, she suffered stress and ill health, and never worked again as a senior residential social worker.

16. Susan Machin was a social worker at Ashworth special hospital on Merseyside, the subject of a 1992 inquiry into alleged abuses of patients. She was the only social worker to give evidence. A year later she was suspended and subsequently sacked for helping patients keep records of alleged ill treatment. In 1995, an industrial tribunal awarded her compensation for wrongful dismissal. She suffered a nervous breakdown, ill-health, and her marriage broke up. She has not worked in social services since.

17. More recently, Community Care reported:

"Haringey Council has launched a counter-offensive against a senior social worker who won an employment tribunal against by default last week. Nevres Kemal had claimed that seven children had been put at risk by being left with an alleged abuser, that the council did not act on her concerns when she raised the alarm, and she was then treated unfavourably. Haringey is appealing against the tribunal's decision claiming it was not served papers in time. It described Nevres' allegations as "spurious and incorrect". "Haringey hits back at child protection whistleblower". (22 Feb 2007)

However, fourteen months later the same journal reported:

"Haringey council this week agreed to pay a senior social worker who had claimed children were being left at risk an undisclosed sum". (April 18 2008,)

Nevres Kemal has been unable to get work as a social worker since.

Why is this?

18. Firstly, professionals experience the employment relation as much more powerful than that of external professional accountability. Despite what they are taught at qualifying and post-qualifying levels in academic curricula, which includes standards of decision-making required by administrative law, powers and duties in legislation and amplified in government guidance, and human rights, research evidence indicates that practice assessors and managers often foreground for students and staff agency policies and procedures rather than legal and moral duties. (8) The requirements within the Code of Practice for registered social workers need a far higher profile within employment contracts. In particular, social workers must interrogate agency policies for accuracy in interpretation of the legal rules. They must also challenge, in ways that the Ombudsman and judicial reviews have exposed, where decision-making is not evidence-based, research-informed or defensible in terms of values and professional knowledge. Education for professional practice and the management of that practice must embed the skills to introduce legal, ethical and other forms of knowledge for child care and child protection practice into decision-making.

19. Secondly, without more public involvement in the development and scrutiny of services, other pressures are often more pressing and immediate. In Stafford, the Regional Health Authority, the Healthcare Commission, the GMC and the NMC all professed to know nothing of what was happening, yet a high profile local patients campaign was repeatedly raising concerns without any contact from these bodies.

20. There are requirements for public involvement and accountability built into government policy, legislation and guidance, and at the heart of the public sector equality duties and within staff codes of conduct, yet none had the desired effect. Indeed, complaints to the Ombudsman routinely feature grievances regarding the management of complaints procedures. Recent case law has shown how disability and race equality duties are not always considered by local authorities.

21. Thirdly, the inexorable pressure on resources, linked to a large degree of discretion in the provision of services, means that managers and staff are constantly seeking to adjust service provision to inadequate funding, often at the expense of service user needs. The influence of this context should not be underestimated when reading judicial review decisions and Ombudsman investigations.

22. Fourthly, workloads and vacancy rates are often too high. One result, apart from high stress levels, is that, Lord Laming pointed out in his 2009 Report:

"in some authorities visited in the preparation of this report over half of social workers are newly qualified with less than a year's experience. Inevitably such staff may be asked to do work that should be done by "experienced" social workers." (9)

23. Fifthly, when concerns are raised, it can be very hard to do so effectively and without consequential detriment for those doing so. The General Social Care Council has had some decisions regarding removal of social workers from the professional register overturned by the Care Standards Tribunal because of inadequate supervision and management structures, performance and support. (10)

A crucial step

24. Local Authority social services should be "learning organisations". Some are. Many social workers and their managers work effectively, a point noted in several High Court judgements. Employers should have in place regular, frequent, formal supervision. Staff should be able, and be expected, to raise concerns in the first instance as an explicit and integral part of social worker supervision. It should not be necessary for staff to take out grievances or trigger a whistleblowing procedure to raise concerns about the range, nature or quality of care being provided (or not provided). Whilst whistleblowing may be a part - and sometimes an essential part - of such a culture, the raising of concerns should be seen as a normal, constructive and essential part of an early warning system that will allow social care organisations to learn from mistakes and to take preventative action to reduce risks to service users and staff. It should be seen as part of a practitioner's and manager's legal and ethical literacy.

25. It is quite unreasonable to expect social care staff to risk their careers without a robust, enforceable, co-ordinated framework in place which enables the GSCC, Ofsted and CQC to ensure that staff who ought to, do raise concerns, and can do so in the knowledge that any attempt to prevent them doing so or to cause them detriment will be dealt with in a robust and timely manner.

Recommendations

26. We therefore recommend the following as a means of helping ensure that social workers are better able to comply with their Code of practice and their duty of care as taught in the social work syllabus:

a. The Code of Practice (GSCC, 2002) to become an express term of the contract of employment for social workers and all social care staff, including agency staff.

b. The Code of Practice for Employers of Social Care Workers to have mandatory force, as requested by the GSCC, endorsed by Lord Laming in his 2009 Report and agreed by the Secretary of State.

c. Social worker supervision must be the cornerstone of the raising of concerns. Ofsted, CSCI and the GSCC should ensure employers have in place protocols and resources which ensure that regular, frequent formal supervision takes place as the cornerstone of making the authority a "learning organisation". Staff should be able, and be expected to raise concerns in supervision. They should not have to resort to using the employer's, let alone an external, whistleblowing procedure.

d. The extent to which staff can raise concerns should become a part of the inspection process of both CQC and Ofsted. To that end all providers of social care are expected to maintain records of all such concerns that have been raised and make them available to inspectors in the same way that complaints from the public are already monitored and made available for inspection. Ofsted inspections require those being inspected to "make sure you have available the record you keep of complaints about the care you provide". (12)

e. Directors should have specific protection to ensure they are able to carry out their statutory duties, including making protected disclosures, without detriment. They are required to ensure that "there are sufficient financial, human and other resources available to discharge the authority's statutory functions and maintain service standards in the future." PIDA regards as a protected disclosure one stating "that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject". The Secretary of State should issue specific guidance to Local Authorities, to make clear that if Directors believe that sufficient resources are not available to meet those statutory duties then any disclosure is specifically protected.

f. Specific advice and protection should be provided to agency and temporary staff to ensure they have the same access to supervision and the opportunity to raise concerns without fear of detriment.

 

 

27. The experience of those who have tried to raise concerns in social services has not encouraged others to do so. It is extremely unusual that a whistleblower of any kind is promoted rather than suffer a detriment. As one small step that would resonate across the sector, Haringey council could reinstate Nevres Kemal thereby showing that whistleblowing is appreciated as one part of the protection of the public.

(1) Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 -1995 Ch 22.28. Command Paper: CM 5207

(2) Hunt, G. (1998). Whistleblowing in the Social Services. Public Accountability and Professional Practice. London: Arnold.

(3) When Aspect asked the Nursing and Midwifery Council whether anyone from Maidstone or Stafford General Hospital had faced fitness to practice proceedings arising from these events they were unable to say since "the NMC records case files by a registrant's name, not by outcome or by health site location. Although the information you seek may or may not be retained in individual case file, it is not easily available." (Letter May 5th)

(4) Healthcare Commission press statement. December 3rd 2007.

(5) DfES. (2006). Working Together to Safeguard Children. A guide to inter-agency working to safeguard and promote the welfare of children Para 2.8. See also DoH. (2000). No Secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. Para 7.5.

(6) CSCI. (2006). Whistleblowing arrangements in regulated care services. Para 3.

(7) Community Care. (3 Feb 2005)

(8) Braye, Preston-Shoot and Thorpe (2007). Beyond the classroom: learning social work in practice; and Preston-Shoot (2000). Using the law to uphold practice values and standards. Practice Volume 12. No.4

(9) Lord Laming. (2009). The Protection of Children in England: A Progress Report. Para 5.2.

(10) See for example LA v General Social Care Council [2007] 985.SW and Tricia Forbes v General Social Care Council [2008] 1267.SW

(11) Ofsted (2007). "Are you ready for your inspection" P.12.