“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.
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:
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.
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’:
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 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”
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.
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)
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.
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.
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)
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.
(SCIE, 2005, pp. 17–18)
- 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.
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.
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