Memorandum of Understanding: Scottish Social Services Council

A memorandum of understanding between the Scottish Workforce Specialist Service and the Scottish Social Services Council

February 2021

Purpose

1. The purpose of this memorandum of understanding is to set out a framework between the Scottish Social Services Council (SSSC) and the Scottish Workforce Specialist Service (SWSS) to ensure that effective channels of communication are maintained between the SSSC and SWSS.

2. This memorandum relates to the areas of interface between the SSSC and SWSS, clarifies respective roles and responsibilities and outlines mechanisms in place to promote effective liaison.

3. The agreement does not affect existing statutory functions or amend any other policies or agreements relating to the activities of the SSSC and SWSS.

Functions of the SSSC and SWSS

The Scottish Social Services Council

4. The Scottish Social Services Council (SSSC) is a statutory body responsible for regulating the social service workforce in Scotland. Its purpose is to protect the public by registering social service workers, setting standards for their practice, conduct, training and education and by supporting their professional development.

5. The SSSC has statutory powers under the under the Regulation of Care (Scotland) Act 2001 to regulate social service workers and to promote their education and training. Where people fall below the standards of practice and conduct the SSSC can investigate and take action.

The Scottish Workforce Specialist Service

6. The Scottish Workforce Specialist Service (SWSS) is a free, confidential NHS service for regulated staff working in NHS Scotland and social care in Scotland. The Scottish Workforce Specialist Service will provide advice, assessment, treatment and case management services. Where necessary, they will arrange onward referral to specialist services. Practitioner accessing the Scottish Workforce Specialist Service will have health concerns that relate to:

a. a mental health or addiction problem (at any level of severity).

7. The Scottish Workforce Specialist Service is a national NHS Scotland service and commissioned by the Scottish Government and is a self- referral service. Health care organisations may seek advice or make referrals.

Interpretation

8. The SSSC and SWSS have their own terminology for things which mean the same thing.

9. For the purposes of this agreement any reference to ‘practitioner’ means ‘worker' and vce versa.

Confidentiality

10.The SSSC has a statutory power under Section 57 of the Regulation of Care (Scotland) Act to make rules which govern the process for publishing, in such a manner as it sees fit, a range of decisions by fitness to practise panels, or any sanctions consented to by the practitioner.

11.The SSSC does not publish information relating solely to a practitioner’s health. It treats this information as confidential. This means it does not publish the details of conditions or other sanctions that directly relate to a practitioner’s health. Where details regarding a practitioner’s health are disclosed during any part of a hearing which is held in public, by any party, this information is redacted from the published decisions.

12.Practitioners approaching the Scottish Workforce Specialist Service for help need to be assured that they have the same rights to confidentiality as any other patient. To this end, the Scottish Workforce Specialist Service has devised a confidentiality policy for practitioners which will be found on the Wellbeing website via the Scottish Workforce Specialist Service page.

Potential areas of communication

13. Communication between the SSSC and the Scottish Workforce Specialist Service is based on an overriding duty to protect users of services while, as far as possible, being fair to practitioners and protecting confidential health information about individual practitioners. Areas of potential communication between the SSSC and the Scottish Workforce Specialist Service include the following (the list is not intended to be exhaustive):

a. Pre-referral discussion:

i. ‘in principle’ about how best to manage concerns about a practitioner and whether or not the SSSC would need to be informed on an anonymised basis, or

ii. discussions about individuals who have been referred to either organisation, where there are concerns about public protection or the safety of patients under the care of the practitioner, on a named practitioner basis.

b. Post-referral discussion – to coordinate activity where appropriate.

14. Each of these areas is further explored in the following paragraphs.

Pre-referral discussions ‘in principle’ or about named practitioners

15.Both the Scottish Workforce Specialist Service and the SSSC are approached for advice by organisations which have concerns about the health of particular practitioners; the purpose of these discussions is to determine whether the organisation should take further steps locally, refer to the SSSC, or refer to the Scottish Workforce Specialist Service.

16.Although in most cases it will be clear what advice should be given to the enquiring organisation at this stage, it may sometimes be appropriate for the SSSC and Scottish Workforce Specialist Service to liaise in order to clarify the issues raised.

17. In these cases the SSSC or Scottish Workforce Specialist Service will discuss the matters raised by the enquiring organisation. Consent should be sought before doing so and if not provided there should be an assessment of whether the risk is such that the information should be disclosed without consent. If the nature of the risk is not such that it would be appropriate to disclose the information without consent, the enquiring organisation should be offered appropriate contact details for both bodies so they may conduct their own discussions. Should Scottish Workforce Specialist Service need to provide contact details for the SSSC, they should give the enquiring organisation the details for the operational contact identified at Annex A.

Post-referral discussions about individual practitioners

18. The SSSC and Scottish Workforce Specialist Service recognise that there will be times where they both have a case open about a named practitioner. They will work together to ensure that appropriate channels of communication exist.

Disclosure of concerns

19. Disclosure should be made to the SSSC where the practitioner’s health raises concerns regarding the possibility of impaired fitness to practise. This will normally be limited to those cases where the practitioner’s condition may affect patient safety and/or the practitioner is not complying with assessment, treatment or monitoring, or heeding advice to remain on sick leave.

20. Disclosure should also be made to the SSSC where there are allegations (at initial assessment or emerging during assessment or treatment) about a practitioner’s performance or conduct which may call into question their fitness to practise.

Cases under investigation/monitoring by the SSSC

21. Whenever the SSSC receives a complaint about a practitioner an initial assessment is conducted. The complaint may include information which indicates the practitioner may be unwell.

22. Where the complaint raises issues which call the practitioner’s fitness to practise into question, the SSSC’s fitness to practise procedures are engaged and an investigation will follow. In these cases, for practitioners who appear to have a mental or physical health concern, the SSSC will ask the practitioner if they are currently undergoing assessment or treatment by Scottish Workforce Specialist Service. If so, it will, with the practitioner’s consent, seek relevant information from Scottish Workforce Specialist Service.

23. Any information provided by Scottish Workforce Specialist Service will be considered by SSSC decision makers and may be disclosed to a Panel in relation to the practitioner’s fitness to practise.

24. Where a practitioner is under investigation/being monitored by the SSSC and is also under the care of Scottish Workforce Specialist Service, the Scottish Workforce Specialist Service will inform the SSSC whether they are acting in a treating capacity or as a support group. If the Scottish Workforce Specialist Service is acting in a treating capacity they will provide a named person with whom the SSSC can liaise.

25.The Scottish Workforce Specialist Service will ensure that any information arising from the monitoring of the health of a practitioner being investigated or monitored by the SSSC that indicates they have breached condition(s) imposed on their registration and/or are not complying with advice on managing their health problem, and/or their health condition appears to pose a risk to their patients, will be shared with the SSSC as soon as possible.

Practitioner being treated/monitored by Scottish Workforce Specialist Service

26. When the Scottish Workforce Specialist Service receives a referral (self-referrals or referrals from an employer/contracting organisation) they will ask the practitioner/referring organisation if the practitioner is currently under investigation/being monitored by the SSSC and perform a registration check to ascertain if restrictions are in place.

27. If the practitioner or referring organisation indicates that the SSSC is currently investigating/monitoring, the Scottish Workforce Specialist Service will seek the practitioner’s consent to contact the SSSC to explain that the practitioner has sought the Scottish Workforce Specialist Service’s intervention. If consent is not forthcoming, the Scottish Workforce Specialist Service will consider whether or not disclosure to the SSSC is required, without consent, using the criteria set out in paragraph 20, 21 and 25.

Thresholds for referral

28. The SSSC Employer Liaison Service comprises locally based senior staff whose role is to support the employers of practitioners on thresholds for referral to the SSSC, the sharing of fitness to practise case related information and the making of revalidation recommendations. The Scottish Workforce Specialist Service should access the contact for the Employer Liaison Service identified at Annex A in order to seek advice on thresholds for referral on an ‘in principle’ or a named practitioner basis.

Lawful exchange

29. The SSSC and Scottish Workforce Specialist Service are subject to a range of legislative duties in relation to information governance, including the Data Protection Act 2018, Human Rights Act 1998, the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002. This document sets out the approach to the routine exchange of information between the two organisations within this legal framework.

30. Nothing in this MoU seeks to create a joint controller or processing relationship between the parties. Each party will ensure that information is shared in accordance with their respective obligations under data protection law.

31. Each party will take responsibility for their own failures to comply with data protection law.

Resolution of disagreement

32. Where any issues arise which cannot be resolved at an operational level, the matter will be referred to the policy leads identified at Annex A to ensure a satisfactory resolution.

Review and Governance arrangements

33. This MoU will have effect for a period of 36 months commencing on the date which it is signed by the Chief Executive of the SSSC and the Medical Director of the Scottish Workforce Specialist Service.

34. Both bodies have identified a MoU manager at Annex A and these will liaise as required to ensure this MoU is kept up to date and to identify any emerging issues in the working relationship between the two bodies.

35. The MoU managers may coordinate a formal review of this MoU at any time for the duration of this MoU. The purpose of such a review will be to consider the operational effectiveness of this agreement in enabling both bodies to fulfil their functions.

On behalf of SSSC

Name: Lorraine Gray
Chief Executive, SSSC
Date: 15 March 2021

On behalf of Scottish Workforce Specialist Service

Name: Dame Clare Gerada
Scottish Workforce Specialist Service Medical Director (interim arrangement via NHS Practitioner Health)
Date: 23rd February 2021

Annex A

The memorandum of Understanding will be managed on behalf of the two bodies by the following contacts:

Managers for the MOU

1. The Scottish Social Services Council

NAME Hannah Coleman
TITLE Regulation Directorate, Scottish Social Services Council

2. The Scottish Workforce Specialist Service, NHS

NAME Lucy Warner
TITLE Chief Executive
Scottish Workforce Specialist Service

Operational contacts