Forum on HEI Procedures for Suitability for Social Work Legal Perspectives

1
Forum on HEI Procedures for Suitability for
Social Work Legal 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
• Panels 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.c
om

• 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.