Forum on HEI Procedures for Suitability for Social Work Legal Perspectives

1. Forum on HEI Procedures for Suitability for Social WorkLegal Perspectives London House, Goodenough College Monday, 3 November 2008

2. Introduction • Professional suitability touches on a number of different areas of the law and institutions will be exposed to a number of different potential liabilities when discharging their obligation to assess professional suitability • Focus on potential risk areas • Practical guidance on the implementation of suitability procedure

3. Suitability procedure • Allegation in relation to suitability • Initial investigation of allegation • Attempt to resolve at informal stage • Formal stage comprised of hearing before panel or committee • Decision • Appeal

4. Potential risks • Contract • Terms of suitability procedure are terms of the student contract • Failure to adhere could constitute breach of contract • Legal proceedings • Usual civil remedies apply e.g. damages for loss resulting from that breach • Costs risk, but legal aid • OIA/Appeal

5. Potential risks • Public law • Principles of natural justice, fairness and Human Rights Act • Apply to suitability process eg: • Right to fair hearing, • Right to adequate notice of case being met, • Right to be given reasons for decision • If procedures are not compliant, it may be necessary to make adjustments • Judicial review of decision but usually no damages • Overlap with contract

6. Potential risks • Discrimination • Age, Sex, Race, Religion (ignore differences) • Disability (recognise differences and take positive steps to neutralise differences) • Victimisation • Usual civil remedies plus damages for injury to feelings • Equality and Human Rights Commission • Investigation and notice of unlawful acts • Application to court for interim injunction to prevent unlawful acts • Legal assistance to individuals • Institution of, or intervention in, judicial review proceedings

7. Potential risks • Defamation • A statement will be defamatory if it could be said to lower a person's reputation in the estimation of "right thinking" members of society. • Allegation of professional misconduct or professional unsuitability likely to be defamatory • Strict liability, but defences (fair comment, qualified privilege, justification) • Civil remedies • Confidentiality • Implied term of the student contract • Overlaps with defamation and DPA • Civil remedies.

8. Potential risks • Data Protection • DPA protects personal data and sensitive personal data • HEI likely to be processing sensitive personal data e.g. Information about criminal convictions, disability etc. • Processing of the data must be fair and lawful. • Restrictions on disclosure of data • A breach of the DPA could result in a fine or liability for damages in legal proceedings, although the level of any damages is likely to be low • Enforcement by Information Commissioner

9. Implementation • Early identification of decision making body • Mitigate risks of conflict issues • Information barriers • Maintain impartiality of decision making body • Independent legal advice to decision making body • Document control • FOI/Subject Access • Disclosure • OIA

10. Implementation • Focus on suitability • Courts reluctant to usurp academic or pastoral judgment • Primary facts from which secondary findings are made should be more cogent depending on the seriousness of secondary findings • Process not concerned with complaints or claims arising out of process • May need to consider legal arguments which impact on question of suitability e.g. failure to make reasonable adjustments • Simultaneous proceedings • Findings of fact by alternative tribunal • Appeal

11. Implementation • Apply internal procedures carefully • Easiest to slip up on procedure • Seek guidance from Registry / advisors where unsure • Student right to legal representation • Reasonable adjustments • Panel’s handling of hearing • Proactive in relation to the collation and consideration of evidence • Exercise caution in relation to procedure and appear reasonable • Witnesses • Written decision

12. Julian Sladdin, Senior Associate & Chris Breen, AssociatePinsent Masons LLPwww.pinsentmasons.com Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) and regulated by the Solicitors Regulation Authority.  The word 'partner', used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who has equivalent standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP's registered office: CityPoint, One Ropemaker Street, London EC2Y 9AH.  We use 'Pinsent Masons' to refer to Pinsent Masons LLP and affiliated entities that practise under the name 'Pinsent Masons' or a name that incorporates those words. Reference to 'Pinsent Masons' is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. For important regulatory information please visit: www.pinsentmasons.com/regulatory.