Insight, Remediation and Sanctions

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.

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.

Is legal representation the answer?

It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.

What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious.  Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.

Research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases, stating:

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

 A compassionate approach to legal representation

The right legal advice and representation is not just about the legalities and technicalities of a case.  Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.

We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We never lose sight of the human aspects of FtP investigations and hearings.  We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.

“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL

Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR

A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel

I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ

What you can Expect when Instructing Kings View

All clients are entitled to an initial, no obligation and free telephone consultation about their case.  During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.

We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates.  We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.