Wales

Under Regulation 35(2) a person is stated to be not fit to work in a service unless she or he is of suitable integrity and good character; has the qualifications, skills, competence and experience necessary for the work she or he is to perform; is healthy enough to perform the relevant tasks properly (subject to [reasonable adjustments]); and has provided ‘full and satisfactory information or documentation’, which must be held at the service for inspection by the service regulator. This information and documentation is:

• photographic proof of identity,
• a copy of a criminal record certificate and a [DBS certificate] (where these are required),
• a copy of an enhanced criminal record certificate and any suitability information relating to vulnerable adults (where these are required),
• two written references, including a reference from the last employer (if any),
• verification of the reason that any previous employment with children or vulnerable adults ended (so far as this is reasonably practicable),
• documentary evidence of any relevant qualification,
• documentary evidence of registration with Social Care Wales (where relevant).
• a full employment history and a satisfactory written explanation of any gaps in employment;
• evidence of satisfactory linguistic ability for the purposes of providing care and support,
• details of registration with or membership of any professional body.

Regulation 35(3) states that the service provider must apply for the DBS certificate on appointing an individual and at three-yearly intervals subsequently. If the person is registered with the DBS update service, the provider must check the person’s DBS status on appointment and on an annual basis.

If a person is barred from engaging in certain ‘regulated activities’ under the Safeguarding Vulnerable Groups Act 2006, including the provision of personal care and other assistance to older or disabled adults, it is a criminal offence for them to undertake such work, or to seek or offer to do it. It is also an offence for a service provider to permit a barred individual from undertaking activities from which they are barred and for an employment agency to provide a barred person to a service provider, in order to work in an activity from which they are barred.

Recruitment is key to ensuring that ‘fit’ persons are employed. The Guidance issued by the Welsh Government creates a number of expectations. Among other things, it states that providers are responsible for deciding whether a person has the ‘necessary skills, qualifications and good character’ to carry out their role and should have ‘rigorous selection and vetting systems in place’ which includes checking the veracity of the information set out above. Critically, the guidance states that agency staff should be subject to the same checks as those who are permanently employed and that providers must obtain evidence of this. Providers must check that staff are registered with professional regulators (or voluntary registers) as appropriate, and that all workers who are not required to register meet the standards of fitness set out in Regulation 35(2).  The Guidance also expects service providers to give ‘positive consideration’ to involving service users in staff recruitment.

The requirement to ensure the fitness of employees is an ongoing one. If a person is no longer fit to work at the service, the provider must take ‘take necessary and proportionate action’ to ensure compliance with the regulatory requirements.

Action suggested in the Guidance includes coaching and mentoring, the provision of additional training and supervision and the use of disciplinary procedures.  The Guidance emphasises that if there are concerns that ‘a member of staff has abused an individual or placed an individual at risk of abuse’ the DBS and ‘relevant professional body’ must be notified ‘without delay’.

Welsh Government Statutory Guidance on Parts 3 to 20 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017.

Under Regulation 39, service providers must establish and operate a disciplinary policy which must include two specified provisions:

• for suspension and action short of suspension where it is in the interests of the safety or well-being of service users;
• that where an employee fails to report abuse (or suspected abuse) to an appropriate person (such as their employer, the CQC or the police) there are sufficient grounds for the instigation of disciplinary proceedings.

The Guidance provides substantial further detail. It states that the disciplinary procedure should contain ‘information about what is acceptable and unacceptable behaviour and arrangements for staff suspension or transfer to other duties during investigations. Providers are expected to ensure that staff are aware of and understand the disciplinary (and grievance) procedures. If an employee leaves their employment while disciplinary proceedings are in progress, the provider is expected to consider a referral, if appropriate, to the DBS, the police, and relevant professional bodies. This Regulation pertains specifically to ‘employees’ – defined under the Regulations as someone who ‘has entered into or works under … a contract of employment’.  For the employment of care workers as ‘workers’, for example on a zero-hours contract, it is unlikely that Regulation 39 is pertinent.

Click here to read more about safeguarding or here for a rundown of Welsh safeguarding law.

Welsh Government Statutory Guidance on Parts 3 to 20 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017.

Regulation 12 (Requirements to provide the service in accordance with policies and procedures) makes specific reference to a requirement for policies and procedures on ‘staff discipline’ and refers to Regulation 39. While regulation 39 covers ‘employees’, the way ‘staff’ is defined in the Regulations extends the policy to workers, self-employed individuals and agency workers. Regulation 12 states that all policies must be consistent with the [statement of purpose] of the service, appropriate to the needs of individuals and in line with ‘current legislation and national guidance’, which would include employment legislation. The Guidance also expects both staff and individuals using the service to ‘have the opportunity to be involved in developing policies and procedures’.

Regulation 12 states that all policies must be consistent with the [statement of purpose] of the service, appropriate to the needs of individuals and in line with ‘current legislation and national guidance’, which would include employment legislation. The Guidance also expects both staff and individuals using the service to ‘have the opportunity to be involved in developing policies and procedures’.

Welsh Government Statutory Guidance on Parts 3 to 20 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017.

Regulation 60(1) states that the provider must notify the Care Inspectorate Wales of certain events or matters which relate to their ability to provide the service safely.

These include ‘Any allegation of misconduct by a member of staff’ (emphasis added).

Misconduct is not defined in either the Regulation or the Guidance.

In Wales, domiciliary care workers must be individually registered with Social Care Wales (SCW). The register has been open to domiciliary care workers on a voluntary basis but from April 2020 registration is mandatory. The register opens on a voluntary basis to care workers in residential homes from April 2020. Once registered, social care workers are required to attain and maintain conduct, skill and training, as per a professional code of practice. If their ‘fitness to practise’ is or may be impaired, they may be referred (or may refer themselves) to SCW, which may investigate. If a breach is found, SCW has the power to impose various sanctions, up to and including removing a person from the register.

Registration with SCW requires careworkers to follow the Code of Professional Practice for Social Care (‘the Code’), produced by SCW under s112 of the Regulation and Inspection of Social Care (Wales) Act 2016. The Code sets out the standards that social care workers are expected to meet. The onus is on social care workers themselves to meet these standards. The Code states: As a social care worker you are responsible for making sure that you work to the standards in the Code. You must ensure that your conduct and practice do not fall below the standards, and that no action or omission on your part harms the well-being of individuals’. The Code also contains a focus on self-improvement and reflexivity, stating: ‘You are encouraged to use the Code to examine your own conduct and practice and to look for areas in which you can improve’.

Social Care Wales, ‘Code of Professional Practice for Social Care’ (2017).

The Code places a number of obligations on care workers which form the ‘fitness to practice’ requirements for registered social care workers.  They include:

1. ‘respect the views and wishes, and promote the rights and interests, of individuals and carers’;
2. ‘strive to establish and maintain the trust and confidence of individuals and carers’;
3. ‘promote the well-being, voice and control of individuals and carers while supporting them to stay safe’;
4. ‘respect the rights of individuals while seeking to ensure that their behaviour does not harm themselves or other people’;
5. ‘act with integrity and uphold public trust and confidence in the social care profession’; and
6. ‘be accountable for the quality of your work and take responsibility for maintaining and developing knowledge and skills’.

Careworkers responsible for managing or leading staff must also ‘embed’ the Code in the work of those they lead.

Under each of these points, there are specific detailed requirements on careworkers that relate to both their professional skills and their conduct.

The Code requires careworkers to uphold certain values. Most particularly these are values relating to outcomes for individuals to whom they provide care and support. For example, careworkers are required to:

• work with individuals in ways that maximise their well-being and active participation and balances their rights and responsibilities (3.1);
• promote the well-being, voice and control of individuals and carers (3.2);
• work with individuals and carers to keep themselves safe (3.3);
• recognise the power that comes from work with individuals and carers and use and use this power sensitively and responsibly (3.4);
• actively support individuals and carers to communicate their views and preferences using their preferred method and language (2.3);
• respect confidential information and explain policies about confidentiality to individuals and carers (2.4|).

In addition, careworkers are expected to adhere to values of non-discrimination, equality, diversity and inclusion.

The Code imposes strong requirements on careworkers to take responsibility for gaps in their skills or limitations in their professional ability. The Code states that careworkers must:

• honour work commitments, agreements and arrangements and, explain why this has not been done to individuals and carers if it is not possible to do so (2.6);
• inform their employer or the appropriate authority about any personal difficulties that might affect their ability to do their job competently and safely (6.4);
• seek assistance from their employer or the appropriate authority if they do not feel able or adequately prepared to carry out any aspect of their work or are not sure about how to proceed in a work matter (6.5).

The Code also requires careworkers to report to their employers or other authorities instances of inadequate working practices or inappropriate behaviour by colleagues. The Code states, for example, that careworkers must:

• use relevant processes and procedures to challenge and report dangerous, abusive, discriminatory or exploitative behaviour and practice (3.7);
• support individuals and carers to express concerns or make complaints, take complaints seriously and respond to them or pass them to the appropriate person (3.5);
• report resource or operational difficulties that potentially impact on the delivery of safe social care and support to their employer or the appropriate authority (3.9).
• raise concerns with their employer or an appropriate authority if work by colleagues or other professionals may be unsafe or adversely affect standards of care and support (3.8).

The Code implies a level of collegiality among careworkers, requiring them to:

• work in partnership with colleagues and other professionals to promote the well-being, voice and control of individuals and carers (3.2)
• work openly and co-operatively with colleagues and treating them with respect (6.6)
• contribute to the learning and development of colleagues (6.9).

SCW has also produced a Code of Practice for Employers (‘the Employer Code’), which complements the Code for workers. Regulation 37 of the 2017 Regulations states that service providers must ‘adhere’ to this Code.

The Employer Code is set out in five sections. These include:

• Make sure that those seeking to enter the social care workforce are suitable and that they understand their roles and responsibilities (section 1);
• Have policies, systems and practices in place to enable social care workers to meet their Code of Professional Practice for Social Care (section 2);
• Provide and support learning and development opportunities to enable social care workers to develop their knowledge and skills (section 3);

Promote the Code of Professional Practice for Social Care and co-operate with Social Care Wales’ proceedings (section 5).

Under the Code of Practice for Employers, employers must support careworkers to meet the standards in their own Code and any other professional Code where relevant. They are required to report workers whose fitness to practise may be impaired (taking account of the Code in making this decision), provide support to workers in this situation and give ‘clear guidance about any limits on their work while they are receiving support’. In such situations, the safety of individuals using the service is the stated priority. Employers are also required to cooperate with SCW investigations, including through the provision of information and attending hearings, and to respond appropriately to SCW findings and decisions.

The Code of Practice for Employers reinforces the requirements on care providers to ensure that ‘those seeking to enter the social care workforce are suitable and that they understand their roles and responsibilities’. It requires employers to:

• Use rigorous recruitment policies and processes to make sure that only suitable people with appropriate knowledge, skills, values and potential enter the workforce (where relevant, this includes making sure that people hold the qualification and professional registration required for their post) (1.1);
• Check criminal records, relevant registers any gaps in employment history and legal entitlement to work in Wales, before an appointment is made (1.2);
• 3 Seek and provide accurate and appropriate references about a person’s suitability to work in social care and in a specific role (1.3).

Establishing ‘suitability’ is left to the providers, specifically the person undertaking recruitment processes, who is likely to be a service manager. An offer of employment is therefore contingent on managers’ discretion with regard to the personal attributes they consider make a person ‘suitable’ to work in a care setting.

The Employer Code contains many requirements that relate to workers’ fitness. In particular, it requires employers to:

• Make it clear to workers that bullying, harassment or any form of discrimination is not acceptable and take action to deal with such behaviour (4.4);
• Have procedures for workers to report dangerous, discriminatory, or abusive behaviour and practice and deal promptly, effectively and openly with reports (4.5);
• Make it clear to workers, individuals and carers that violence, threats or abuse are not acceptable (including through having clear policies and procedures for reducing the risk of violence and managing violent incidents) (4.6).

All of these points could also apply to the protection of staff from such behaviours by individuals using the service.

SCW has also created practice guidance in certain areas of work, including domiciliary care work. This is intended to support careworkers in meeting the standards in the Code. This guidance includes sections on good communication, confidentiality, working with family members and carers, professional boundaries, ‘knowing your limits’, comments and complaints, safeguarding, contributing to service improvement and good conduct.  The onus is on the worker to follow the guidance (seeking advice from managers or colleagues if needed), although there are also expectations on employers. The guidance states that careworkers ‘must use the [Code of Practice] to reflect on your conduct and practice and identify areas you can continue to improve’ (sic). This is a stronger requirement than that in the Code itself.

The Practice Guidance draws attention to the skill required of each domiciliary care worker in managing their relationships with the individuals to whom they provide care and supports. It states that ‘the quality of your relationship with the individual is very important’ but that this relationship can ‘blur professional boundaries and create difficulties’. The Practice Guidance also notes that person-centred care and support requires ‘a strong commitment to an individual’s human rights’ and the ‘social care values of respect, compassion and dignity’.

If the fitness to practise of a registered social care worker is called into question, the SCW investigates and may refer the case to a Fitness to Practise Panel. If the Panel finds that the worker’s fitness to practise is impaired, they may impose one or more sanctions, including warnings, conditions on registrations, suspension of registration, or removal from the register.