“Social work and the law” refers to the
interface between the practice of social work and the legal system,
including statutory
law, case law, legal institutions (courts, prisons, etc.), and
legal professionals (attorneys, judges, paralegals, forensic
experts, and alternative dispute resolution professionals). Law
plays a number of important roles in the practice of social
work. First, from an ecological perspective, the legal system is a
vital part of a client’s social environment. Many social
work clients are involved in legal systems, such as child
protection, criminal justice, or mental health. Social workers need
to be aware of the laws that regulate each system in order to help
clients navigate their way through these systems more effectively,
and to be able to advocate for law reform to improve the goodness
of fit between clients and their socio-legal environments.
Laws also govern many relationships of interest to social work
clients, including landlord/tenant, employer/employee,
physician/patient,
vendor/purchaser, spouse/spouse, and parent/child relationships.
Thus, knowledge of the law should provide practitioners with
a practical understanding of their clients’ rights and
responsibilities in a broad range of social relationships. Second,
hospitals, schools, social assistance, correctional institutions,
mental health facilities, and other social agencies are
regulated by organization-specific laws. Organization-specific
laws may dictate who is eligible for services, standards for
record keeping, confidentiality, and other client rights. Social
workers need to understand these laws in order to ensure
that their agencies comply with the laws, and to be able to
advocate for changes in the law to promote greater social and
economic justice. Third, the profession of social work itself is
regulated by various laws. Most states have licensing or
accreditation laws that regulate the practice of social work,
including who may practice and what standards of practice are
legally enforceable. Social workers should also be aware of
malpractice (tort) laws that identify when a social worker may
be legally responsible for causing harm to a client if they
perform their professional duties in a manner that falls below
a reasonable standard of care. Finally, some social workers
practice in forensic settings, providing investigations, evaluation,
expert testimony, and treatment for clients involved in court or
other legal systems. Such settings include probation, parole,
prison, child custody evaluation, and involuntary committal to
mental health institutions.
Introductory Works
The resources listed here provide overall introductions to social
work and the law, as well as to law and the legal system
more generally. For basic overviews and explanations of legal
terms, some of the older materials may be sufficient. For specific
laws and how they apply in specific circumstances, readers should
refer to the most current sources.
Madden 2003 and
Alexander 2003 provide two of the more recent and comprehensive introductions to social work and the law.
Stein 2004 offers one of the most accessible introductions to the legal system and the philosophy of law.
4 Why do social workers need to know about the law?
From our
discussion of social work and the meaning of law you will already have
some answers to this question. We will now bring them together and
relate them to wider debates about the content of the social work
curriculum.
We have seen that there are few right answers in
social work. However, if practitioners do not know where they stand
legally they cannot begin to do their job properly because they will not
be able to give appropriate advice and support to service users. They
will also not be able to work effectively if they are unaware of the
legal requirements and options in a given situation and the different
consequences attached to pursuing each of those options. Some
legislation places direct statutory responsibilities on social workers
while in other areas, such as housing and welfare benefits, the
responsibility is more one of advocacy and advice.
It is also
important to recognise that social workers are not lawyers. They need to
know when to call on professional legal opinion to guide their own
actions and when to advise service users and others to seek expert
advice.
Since the mid 1980s there has been much discussion and
debate about the nature and quality of legal knowledge needed by social
workers (see SCIE, 2005). Historically, social work education programmes
tended to regard law as a discrete body of knowledge imported from
another professional discipline without first being distilled through
the value base of social work practice. Social workers were therefore
encouraged to believe that they should have a fairly detailed knowledge
of the legal
content of their work, without necessarily having an understanding of the
context
of legal rules. They were encouraged to absorb legal facts in the
abstract, which contributed to the view that the law was difficult to
understand and not always relevant. In part this debate had been fuelled
by the inquiry reports into child abuse scandals where the criticism of
social workers had taken one of two forms: either they were viewed as
having an inadequate knowledge of the statutory powers available to them
(e.g. Blom-Cooper, 1985) or they were criticised for having adopted a
heavy-handed approach and putting their statutory powers before other
social work considerations (e.g. Butler-Sloss, 1988; Clyde, 1992).
So
while the law provides the mandate for practice, in the sense that it
vests social workers with legal powers and duties to take appropriate
professional action, it is also the case that the law does not
automatically provide the answer or solutions to practice dilemmas. Thus
the relevant legal rules do not, by themselves, provide a clear,
consistent and comprehensive guide to practice. The missing ingredient
is a commitment to good or ‘ethical’ practice. An ethical approach is
one where the social work relationship with the legal framework takes
account of social work skills and values. The existence of the legal
framework does not mean that there is no need to exercise professional
judgement and discretion. Such judgement is key and must be informed by
the wider knowledge base, values and skills of social work practice
(Stevenson, 1988).
Braye and Preston-Shoot describe social work law as being comprised of three distinct but interrelated strands:
Legal
powers and duties which provide social workers with a mandate to
practise; ethical and professional values which guide practice, some of
which are incorporated into statutory provisions; and aspects of
administrative law, such as judicial review, which scrutinize the
actions of organisations within which social work is predominantly
located.
(Braye and Preston-Shoot, 1997)
These
elements are reflected in the Standards in Social Work Education
(SiSWE) requirements for the social work degree in Scotland, which
emphasise the importance of law in social work education and the ethical
context of social work practice (Scottish Executive, 2003b). The
specific professional requirements in relation to law are outlined in
Box 4,
but these are integrated into a broader educational framework which
places them within guiding ethical principles and accepted codes of
professional conduct.
Box 4: Extracts from the social work degree framework
Students are expected to understand:
- legal bases for intervention;
- social workers' roles as statutory agents with duties and responsibilities to protect the public and uphold the law;
- the
concepts of rights, responsibility, freedom, authority and power
associated with the practice of social workers as moral and statutory
agents;
- up-to-date legislation defining the rights of people, especially measures designed to tackle all forms of discrimination;
- the significance of legislative and legal frameworks, service standards, practice guidelines and codes of practice;
- the nature of legal authority;
- the application of legislation in practice;
- statutory responsibility and conflicts between statute, policy and practice;
- knowledge of equal opportunities and anti-discriminatory legislation and policy;
- the
relationship between agency policies, legal requirements, ethical
principles and professional boundaries in shaping the nature of
services;
- legal requirements relating to data protection and the rights of citizens to have access to information held about them.
The
aim of the SiSWE requirements is to ensure the qualification of
competent practitioners who, according to Preston-Shoot (2000), should
be ‘confident, credible, critical and creative’:
- confident to challenge inappropriate interpretations or use of the legal rules
- credible when presenting the rationale for their decision making
- critical
to make their professional practice and the legal rules accessible to
those with whom they work, to assess the impact of policies on people's
lives and to navigate through questions of ethics, rights and needs
- creative
in order to exploit the opportunities that the legal rules present and
to manage the practice dilemmas and conflicting imperatives that the
interface between law and social work practice generates.
(SCIE, 2005, pp. 17–18)
A
study of law for social workers, therefore, involves much more than
knowing the legislation. In order to feel competent and confident in
their engagement with service users, social workers need to understand
the link between law and practice, between legal values and social work
values. We have seen that acquiring these skills can also be of benefit
to service users, who may be empowered by knowledge of law and a wider
appreciation of the social work practice context.
The law and social work practice
Why Do Social Workers Need To Know The Law?
“I want to be a social worker, not a lawyer” (Robert Johns p.1)
The aim of this assignment is to consider the importance of law for
social workers and discuss the professional skills and values which
underpin social work practice in England and Wales today.
I will firstly look at how law frames social work practice
The relationship between the law and social work practice is complex.
Although an in-depth understanding of how the law affects every day
social work practice is essential, it also involves much more than just
learning the legal rules. “Constant reflection and critical analysis of
your own values and practice of social work are required to be an
effective practitioner” (block 1 p130).
However, Jeremy Roche argues that although the law provides a
framework it cannot tell social workers what to do in every
circumstance. The law cannot always resolve the dilemmas and tensions
that face social workers everyday. “Above all, the law cannot substitute
for sound professional practice”
How The Law Is Made
The Law provides a framework for practice which grants the social
worker with powers to take appropriate action. A starting point for
understanding the legal framework is Statute law which is one of the
main sources of law and is contained in an Act of Parliament. The
Children Act 1989 is an example of statute law.
The language of statutes can sometimes appear confusing - for example
the meaning of ‘significant harm' is not described in detail in the
Children Act 1989 and can therefore be open to interpretation. A social
worker will therefore have to provide evidence that the child is likely
to suffer from significant harm and such decisions will be made jointly
with legal advisers and managers (block 1 p.51)
Case law is the second source of law which is developed by the courts
from judgments made on cases brought before them (block 1 p.51). An
example of case law that has an impact on society is the case of Diane
Pretty who had a terminal illness causing a physical disability and she
wished to have the right to choose when to die with the help of her
husband. Diane's argument was that “the right to life contained within
Article 2 of the European Convention on Human Rights (ECHR) also implied
a right to die” (block 1 p.52). However, her application was rejected
by the court who stated that Article 2 was not concerned with the
quality of life. (block 1 p.52.
Although the language of statutes can be difficult to understand,
there are two words which will help social workers to interpret statutes
and they are ‘duties' and ‘power'.
Legislation provides social workers with certain powers as well as
duties that social workers are legally bound to fulfil. An example of
this is shown in the case study of Masie when her need for a service
requires as assessment as decisions will be influenced by not only the
social worker's commitment to values and best practice but by the legal
duties and powers. However, it can be frustrating when it is clear that a
service is needed for a service user but there is insufficient money to
provide that particular resource.
A further example of the importance for social workers to have a
thorough knowledge of the law in order that they can make decisions on
appropriate legislation is shown in the case study of the Clarke family
(p 82 of block 1 book) where the social worker attends the family home
on an arranged visit and finds Emily (mother) under the influence of
alcohol while the children were playing with cutlery in the kitchen.
This is clearly an issue of child protection as the children are likely
to suffer significant harm if they remain in the care of their mother.
It therefore makes it a duty for the local authority to investigate and
provide services as well as having the power to protect the children.
How The Law Underpins Social Work Practice:
The law which underpins social work practice was radically redrawn in
the 1980's following a series of scandals - for example the events in
Cleveland where social workers were accused of an over-readiness of
taking children into care and the fact that the parents felt totally
undermined and were not afforded proper rights to present their views.
Interestingly the Cleveland Report also acknowledged the dilemma of
child protection work “namely that social workers are “damned if they
do, and damned if they don't” (Robert Johns p.10)
As a consequence of the events in Cleveland, many key principles such
as the accountability of social workers to the law are now enshrined in
the Children Act 1989, and according to Robert Johns, social workers
welcomed the clarity this would have (word better)
Values & Principles
Throughout my reading and my experience as a social work student I
have learnt that before we can even think about working
anti-oppressively within the law we need to look at our own experiences.
Everyone has values and principles which shape our behaviour and
perceptions of the world and it therefore important that social workers
reflect on their values as their decisions will have a direct affect on
the services they provide when practicing. (p126 block 1)
Although social work values underpin decision making when working
with service users, there are also values embedded in legislation which
support social work values. However, there maybe areas of conflict or
tension between legal values and social work values, particularly when a
service user is deemed to be entitled to certain community services
look at page 129 and expand………………….
There are also areas of the law that social workers may find
difficult to address, for example, the Diane Petty case which I
discussed earlier, where a commitment to social work values could mean
respecting Diane's wishes.
In order to demonstrate my own professional development as a social
work student, I will briefly look at how the legislation underpins the
assessment of children in need and discuss the importance social work
values while completing an assessment.
A child in need assessment should provide a clear understanding of
the child's needs and is based on the provision of the Children Act 1989
and 2004, the principle that underpins the Framework for the Assessment
of Children in Need and their Families (Department of Health, et al
2000), Working Together (Department of Health, 1991), and Every Child
Matters which provides the legislative foundation on which policy and
guidance has been built to inform social work practice in assessment.
The social worker's knowledge of the law and service provisions can
be critical in empowering service users (Block 1 p20). It is essential
for the social worker to work in a way that is both anti-oppressive and
which recognises cultural perspectives. Anti-oppressive practice means
“recognising power imbalances and working towards the promotion of
change to redress the balance of power”. (Dalrymple and Burke 2003,
p.15).
Social workers have to make decisions in their everyday practice
based on their own values and good practice is about involving service
users through all stages of the assessment, inviting them to meetings,
informing them of their rights and options as well as working in a way
that is accountable (Thompson 2006). This would also support social work
value D “Value, recognise and respect the diversity, expertise and
experience of individuals, families, carers, groups and communities”
(GSCC, 2002).
It was interesting to note that Jane Aldgate (in Law and Social work
book) looks at both the strengths and weaknesses of the assessment
framework and although acknowledges that the shared language between
professionals is undoubtedly a strength, Calder and Hackett, 2003 (in
law in social work) criticise that the omission of risk as a separate
category can lead to professionals underestimating risks when completing
an assessment.
Conclusion
The law provides a framework to guide and assist social workers in
making crucial decisions and preventing anti-discriminatory practice as
well as providing a framework of legal rights for service users.
Principles of social justice and human rights are fundamental to social
work and without an in-depth understanding of the law and how it affects
social work practice, it would be impossible to practice effectively.
Throughout my experience as a social work student together with my
research and reading for this assignment it has become clear that in
order to comply with the General Social Care Council Codes of Practice
(2002) social workers must view the law as an integral part of their
role.
