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Social workers must document all decisions made during COVID to prevent future claims

Contemporaneous and comprehensive social care records evidencing all interactions with children and families outlining the decisions and steps taken are vital for social workers to protect against future claims, Plexus Law has warned.

In a briefing, Plexus Law highlighted that over the next one to three years, local authorities can expect to see more human rights challenges arising out of social work decisions.

“These could be presented either as claims for judicial review or as standalone civil claims. The Supreme Court decision in CN v Poole UKSC 2018/0012 has led to an increase in claimant lawyers alleging breaches of the Human Rights Act 1998 (HRA) alongside allegations of social work negligence, as attempts are made to distinguish cases from CN. This approach is likely to continue as the initial tranche of decisions interpreting CN and, in turn, what amounts to an assumption of responsibility begin to filter through the first instance courts and the landscape becomes more uncertain for claimants – see HXA v Surrey CC [2021] EWHC 250 (QB),” said the briefing.

The document contextualises the threat of legal action by outlining the many pressures that local authorities and social workers have had to face during the pandemic.

The briefing states that social workers and local authorities should be mindful of their duties under the Human Rights Act 1998 and European Convention on Human Rights while providing services during the coronavirus pandemic.

Plexus Law predicts that the following areas will offer potential causes of action for claimant lawyers:

- Article 3 – prohibition on inhuman treatment and torture - where social workers have been restricted in their ability to visit and investigate cases, where there are shortages of staff/resources/ normal services, and where social workers may not have access to complete files and case notes, the potential for serious errors and systemic failings increases, the briefing states.

- Article 4 – prohibition on slavery – the difficulties social workers have faced during lockdown pose practical difficulties in identifying those at risk of exploitation and trafficking, referring them into appropriate services and ensuring their availability of services and encouraging engagement with the same.

- Article 8 – right to respect for private and family life – it is possible that withdrawing or changing the services being provided to people in need could give rise to an actionable breach of Article 8 rights. This will particularly be the case for people with serious physical and mental health issues who may rely on services to meet their immediate needs.

- Negligence – in the longer term, local authorities could see an increase in social worker negligence/failure to remove claims.

- Claims by staff – social workers are likely to be experiencing difficult working conditions and high levels of stress.

“All of the above is tempered by the fact that none of us know what the landscape for local authority claims is going to look like in the future. The years leading up to the Supreme Court decision in CN v Poole demonstrates the speed and nature of this developing area of the law,” says the briefing.

The briefing outlines practical guidance for areas in which local authorities and social workers can focus on to protect themselves from future claims and provide the best possible chance of defending claims that do arise.

1. Staff wellbeing - Keeping staff healthy, happy and engaged with their local authority is therefore of crucial importance to defending claims.

2. Documents, documents, documents – the most important tool in defending any claim relating to alleged social work negligence is contemporaneous and comprehensive social care records evidencing all interactions with a family/child and explaining the decisions and steps taken.

3. Get documents in order now – where record keeping has suffered due to lockdown, it is not too late for this to be addressed now. Managers should be encouraged to audit and review files as soon as possible to ensure that records are up to date and record the impact of the pandemic.

4. Virtual visits and assessments – social workers should ensure they document virtual assessments to include recording whether it was possible to see the child alone and if not, the reasons for this, given their legal obligations under the Children Act 1989.

5. Repository of changing pandemic guidance – in addition to keeping files up to date with the most recent guidance and restrictions, local authorities would be well placed to keep a central repository of changing coronavirus guidance, this is particularly important for the period May 2020 to January 2021 when different areas had restrictions lifted and imposed at different times.

6. Evidencing the impact of the pandemic – social workers should clearly record why any visits have been cancelled (e.g. was this due to staff shortages or was this due to the family/ vulnerable person). If this was due to staff shortages/illness, was there anyone else who could have carried out the visit? If it was due to the family/vulnerable person, what alternatives were considered?

7. Availability of services – social workers should document any changes to the services being provided to individuals and explain why this has happened and what alternative services are available or can be accessed.

8. Schools and social workers – it is vital that local authorities have in place effective systems of identifying (and in some cases re-engaging with) vulnerable individuals. Schools and teachers are key in identifying vulnerable children and referring them into social services.

9. Paperless future – to avoid the risk of mistakes and uninformed/incomplete decisions local authorities should ensure that social workers have access to complete case notes wherever they are (preferably in paperless form). This could help to protect local authorities against the type of serious and systemic failings which could give rise to judicial review and claims under the Human Rights Act 1998.

10. A pre-emptive strike – it would be an excellent discipline to engage with RMP to assist in taking a detailed statement of all the disruptions to services, changing guidance and steps the local authority took to fulfil its statutory duties in these most challenging of times.

“Social worker procedures and practices will inevitably require adaptation to respond to these challenges. Our advice to local authorities and those providing front-line safeguarding is to ensure all decisions are documented and supported by relevant risk analysis and justification. These risk assessments will need to be kept under regular review and should be appropriately peer reviewed,” said the briefing.

“Even when the world returns to a new ‘normal’, these challenges are unlikely to immediately diminish: increased volumes of work, on-going challenges with social distancing and intolerable pressures on families who have struggled during the pandemic are all factors that are likely to impede social worker practice in the immediate future. As the pandemic continues to unfold and a new sense of normal emerges, all any professional can be expected to do is follow statutory and regulatory guidance, risk assess and record all of the decision-making processes,” it concluded.

Social care resilience – Planning beyond the pandemic with context and guidance

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