Introduction.

1. This Code sets out the rights and responsibilities of staff when raising issues of concern about Social Services matters. The Code is complementary to guidance on statutory complaints procedures and it does not change or replace any nationally or locally agreed terms and conditions of employment which give employees freedom to speak and write.

2. The Code complements professional or ethical rules, values, guidelines and codes of conduct/practice relating to freedom of speech, such as, for example, the British Association of Social Worker's Code of Ethics, CCETSW guidelines on core values in social work, the Social Care Association Code of Practice, and the British Association of Counselling Code of Ethics. It is not intended to restrict the publication of professional or scientific research findings, Annual Reports by independent and voluntary organisations or any local authority publications.

Purpose of the Code.

3. This Code aims to make plain that:

(i) Individual members of Social Services staff have a moral obligation, a right and a duty to raise with their employer:

1. Any instance of malpractice, negligence, or unprofessional behaviour. That is: any situation where the service user is being abused or their rights and dignity are being, or have been, disregarded or over-ruled or where decisions are taken which are clearly not in their interests and put them at risk of abuse, exploitation, oppression or discrimination.
   
   
2. Any matters of concern they may have about social care, health care or education policy and practice issues concerned with the delivery of care to service users or carers in their authority, Trust, agency or unit which are detrimental to service users' and carers' interests.
   
   
3. Any circumstances arising to do with the employment environment, employment conditions or employers' practices that could place colleagues at risk.
   

Key Principles - Putting Service Users and Carers First.

4. Social Services exist to meet the needs of service users and carers. The key principle of this Code is that their individual interests must be paramount. Of course Social Services managers (and in particular circumstances practitioners i.e. Approved Social Workers) have ultimate responsibility for the meeting of statutory requirements and the quality of care for service users. Of paramount importance is the common law `duty of care' which all employers and employees have. In exercising that duty, the employer and each employee has a responsibility to draw attention to any matter they consider to be damaging to the interests of a service user, carer, or colleague, to put forward suggestions which may improve the quality of service and to correct any statutory omissions, or prevent malpractice. In this context this guidance recognises advocacy as a key function in social work and all employers should validate that task. In the case of a service user detained under the Mental Health Act 1983 and comparable legislation as it applies to Scotland, the Isles of Scilly, the Isle of Man and Northern Ireland, staff can also raise concerns with the Mental Health Act Commission in England and Wales and the Mental Welfare Commission in Scotland.

5. For the employer, it is recognised that the promotion and encouragement of the free expression of staff concerns can become ambiguous in relation to the employers' accountability for the protection of service users', carers' and employees' rights; accountability for services and health and safety regulations. There can also be difficult conflicts between the employers' responsibilities towards the needs of their own services and organisations and the professional ethics and practices of their employees. There are statutory obligations, for example, to take action for the protection of children, for the promotion of the social welfare of persons in need (Scotland) and some employers (and employees) are answerable to bodies external to their own organisation, such as the Mental Welfare Commission (Scotland), the Mental Health Act Commission, various Ombudsmen and Inspectors of Social Services. Some are answerable to their own elected committees. However, they are expected to, and have statutory obligations to, provide high standards of care and to put to rights any deficiencies brought to their attention. In these terms, an open culture and an effective policy for the free expression of concerns can only be constructive. This code then urges central government to recognise these guidelines and incorporate them in new legislation encompassing health and social services.

6. The normal working culture of Social Services should foster openness. Staff should be encouraged freely to contribute their views on all aspects of social services activities, especially about delivery of care and services to service users and carers. Free expression of these views can contribute to improving services for service users and carers in the future. Social Services Managers are therefore expected to ensure that all staff are given every opportunity to make their contribution. Moreover, they must feel that their legitimate views will be welcomed, appreciated and, where appropriate, acted on positively. This Code recommends that bodies having an inspectorate role in Social Services take on the monitoring of this Management task.

7. UNDER NO CIRCUMSTANCES ARE EMPLOYEES WHO EXPRESS THEIR VIEWS ABOUT SOCIAL SERVICES ISSUES IN ACCORDANCE WITH THIS CODE TO BE PENALISED IN ANY WAY OR SUFFER ANY ADVERSE CONSEQUENCES INCLUDING INFORMAL PRESSURES FOR DOING SO.

8. An important principle of this Code is that it should be for local management in consultation with all staff and local staff representatives to implement it in a way that is appropriate to local circumstances. They will wish to consider how best to promote a culture of openness and dialogue which at the same time upholds service user and carer confidentiality, does not unreasonably undermine confidence in the service and meets the obligations of staff to their employer.

Confidentiality to Service Users, Carers and Employers.

9. All Social Services Staff have a duty of confidentiality to service users, carers and staff. Unauthorised disclosure of personal information about any service user, carer or member of staff will be regarded as a most serious matter which will always warrant disciplinary action. However, disclosure in relation to those clauses relating to confidentiality contained in professional codes of ethics (e.g. para 10 xi of the BASW Code of Ethics) can be considered "authorised" disclosure, that is, recognised and protected under clause 7 of this Code. This Code also recognises that service user and carer confidentiality is often held within a professional group i.e. a multidisciplinary team.

10. Employees also have a implied duty under common law, to respect restricted information about the employing organisation and an implied duty under common law, of loyalty to their employer. It is possible for breach of these duties to result in disciplinary action. The contract of employment may also expressly prohibit disclosure of restricted information. Such contracts should be framed in accordance with the recommendations of clause 12 of this Code.

11. The duty of confidence to an employer is not absolute, however, and should be balanced against the employee's common law `duty to care'. In any case involving disclosure of confidential information, it may be claimed that the disclosure was made in the public interest. Such a justification might, in a disputed case, need to be defended and so should be soundly based. As a matter of prudence then, any employee who is considering making a disclosure of confidential information because they consider it to be in the public interest, should first seek specialist advice. This could be, for example, from one of the representative or regulatory organisations mentioned in clause 24 et seq.

12. Any explicit confidentiality provision in an individual staff employment contract must be set out so as not to conflict in any way with the principles and advice set out in this Code.

Establishing Local Procedures for Dealing with Staff Concerns.

13. All Social Services employers should establish procedures locally - after full consultation with staff, staff representatives (including trades unions and professional associations), and service users and carers - for handling staff concerns about social services issues, other than those to which the statutory complaints procedures apply, or which fall to established grievance procedures. Such local procedures may parallel existing grievance procedures, not as part of the grievance but utilising the framework.

14. The local procedures should address in more detail any aspect of this Code, provided that, in doing so, they do not conflict with the principles and advice set out in it. The procedures should allow for staff concerns to be considered at the highest levels of local management, including the Director, Chair of the Social Services, or Social Work Committee, General Manager or Chief Executive of the employing authority or Trust. Procedures should include clear and reasonable time limits for dealing with staff concerns. These time limits should encompass a range from first level responses with the employing body to the appropriateness of issues being taken beyond the confines of the employing authority or Trust.

15. Local procedures should establish at which stage the local inspection/ registration/standards unit should become involved and set clear steps for the referral of appropriate issues to external inspection bodies.

Informal Procedures.

16. Effective organisation through a system of clear and positive policies, appraisals, inspection, supervision and reviews will reduce the need for procedures for the expression of staff concerns. Research by "Public Concern at Work" though, indicates that major instances of abuse which have resulted in public inquiries could have been prevented had staff concerns been listened to by management. This underlines the fact that formal and informal procedures are necessary but the aim should always be for staff concerns about Social Services issues to be resolved informally - between the individual and his or her line or professional managers. Managers should always:

• take concerns seriously; and
  
• consider them fully and sympathetically; and
  
• recognise that raising a concern can be a difficult experience for some staff; and
  
• seek advice from Social Services professionals and service users and carers where appropriate.
  

Formal Procedures.

19. Where this informal approach proves inappropriate or ineffective, local procedures should provide for the matter to be referred up formally through the employee's management line. Where there are a number of management levels, each level of management should give the same thorough and fair consideration to the issue and advise the member of staff promptly, by the means set out in clause 16, of the outcome, within an agreed timetable. Again, the arrangements will need to be slightly different for staff not in a direct line management relationship - see clause 17 above.

20. Local procedures should make it plain that the employee has the right to be accompanied or represented by his or her professional organisation or trade union representative, or other person of his or her choice during this process if they so wish. That representative or other person has the same duty of confidentiality, as set out in this Code, as the employee.

21. The formal procedures should always provide for the employee to raise his or her concern, where necessary, with the highest level of local management. If an issue remains unresolved after it has been referred to all levels of management, The local formal procedures should provide for the individual member of staff to raise his or her concern finally with the highest level of accountable management within the employing organisation - eg the Chair of the Social Services/ Social Work Committee or the Chair of the Trust. The same aforementioned conditions relating to notification and time limits will apply in this instance.

22. The local formal procedures will include a mechanism for appeal to a panel made up of representatives of the employing organisation and, to ensure an independent element, representatives from a trade union or professional association or both plus any other independent persons such as service users if available. This Code agrees with the Manufacturing Science Finance Union that the requirements for this stage of the formal process should be:

• genuine independence;
  
• full investigative powers;
  
• the ability to make judgements on quality of service where these relate directly to the matter under investigation.
  

The Designated Officer.

23. The procedural model set out above could prove unnecessarily cumbersome and time-consuming when dealing with concerns expressed by staff in extended management chains. As an alternative to using all the levels of the management chain, employers might prefer, in consultation with staff, local staff representatives, and service users and carers, to designate a senior officer to whom matters unresolved by immediate line managers could be referred directly by the member of staff concerned. This could, though need not, be the officer designated to receive formal complaints under statutory procedures. Also, as a means of installing an element of independence and linking in with their special responsibilities for quality of service delivery, the
Designated Officer could be a senior officer of the local inspection/standards unit. The employee should then have access to a choice of the matter being dealt with by either the Designated officer or through the management structure.

24. In a case where this procedure has been followed and the individual member of staff remains dissatisfied, the matter will need to be referred to the appeals panel as set out in clause 22.

REFERENCE TO OTHER BODIES.

Representative and Regulatory Organisations.

25. All staff must retain the right to consult, seek guidance and support from their professional association, trade union, solicitor or independent organisations such as `Public Concern at Work' and from statutory bodies such as the Social Services Inspectorate, from the Central Council for Education and Training in Social Work, and from bodies which may be established in the future such as the proposed General Social Services Council. Representative bodies may take issues up directly with the employing organisation on their members' behalf.

26. Managers should encourage staff to consult with representative bodies particularly if an issue seems likely to remain unresolved without reference to the appeals panel.

The Mental Health Act Commission
& The Mental Welfare Commission.

27. Where a Social Services employee has a concern about the care of a service user detained in any hospital or subject to Guardianship under the Mental Health Act 1983, or comparable legislation, he or she can refer the matter to the Mental Health Act Commission in England and Wales or the Mental Welfare Commission in Scotland, if the problem remains unresolved after pursuing it through local procedures. Additionally, some cases may need quick referral to either Commission and this should be done immediately after consultation with the appropriate line manager. Managers should always bear in mind that, under the Mental Health Act 1983, the Approved Social Worker "acts in a personal capacity. The same is true for Mental Health Officers
appointed under the Mental Health (Scotland) Act, 1984. "He should therefore exercise his own judgement and not act at the behest of his superiors, or anyone else" (Richard Jones, the Annotated Mental Health Act 1983, September 1991).

Local Councillors.

28. This Code fully recognises the principles of local democratic accountability and recommends local councillor involvement in its formal procedures. The Code also recognises that this may conflict with existing local authority policies and procedures in some instances. Those conflicts should be reconciled within the establishment of local procedures (clauses 13, 14 & 15).

The Local Government Ombudsman.

29. All staff should be made aware that the Ombudsman may look into complaints on behalf of a service user or carer. Adequate supplies of information leaflets about the Ombudsman's role and the procedures for reference to him should be readily accessible to all staff as well as service users and carers. Whilst there should be every effort to exhaust normal procedures first, it should also be clear that it is a function of the social worker's `advocacy' responsibilities to advise and assist with a complaint to the Ombudsman even if this complaint is against the employing authority. The position of the Health Service Commissioner is different - that Ombudsman "may look into complaints by staff on behalf of a patient, providing that he is satisfied that there
is no-one more appropriate, such as an immediate relative, to act on the patient's behalf". (Guidance for NHS staff on relations with the public and the media).

Reference to Members of Parliament and the Media.