Critical Issues in Social Work Law

Alison Brammer, Jane Boylan

• Publisher: Bloomsbury Academic
• Year: 2016
• Print ISBN: 9781137541505
• eBook ISBN: 9781350313002
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

Written by a team of leading authorities in the field, this collection provides a critique of the law as it applies to social work practice, and identifies key contemporary issues for social work. Tackling topics such as trafficking, youth justice and child protection, the book is a valuable contribution to the debates in social work law.

1

SOCIAL WORK VALUES, THE LAW AND THE COURTS

Jonathan Dickens

The relationships between the law, individual values and society’s values have long been matters of intense debate for politicians, judges and philosophers. And social workers, although they may well be seen to lack the professional power or social status of those other groups, find themselves firmly in the middle of those debates – or, as it may be better to put it, at the sharp end. Think of the sort of questions that social workers have to address as part of their everyday job. How much support should be offered to parents to help them care for their children, or when should the children be placed in a different family? When should an individual be detained in a hospital or a care home, without their own agreement? How much money should be spent to help an individual remain living in their own home in the way that they choose, when budgets are limited and demand is high? The law provides one framework for thinking about these difficult matters – what is required and what is allowed, what isn’t allowed, what legal processes have to be followed. But the legal provisions have to be seen in the context of wider societal values about family life, the role of the state and the powers of the court; and social workers will also have their own personal beliefs about these matters. Furthermore, social workers have to take account of their organisation’s priorities, policies and resources; the service user’s wishes, in the light of the person’s mental capacity and understanding; and their own professional knowledge, skills and values. Holding these different poles together is what makes social work a profoundly intellectual and ethical profession, as well as a practical one (Dickens, 2016).

In this chapter I want to think more about the relationships between the law, the courts and social work, to explore their different roles and the ways that they interact with one another. At times their values and aims coincide and reinforce one another, and other times different functions and approaches come to the fore, bringing tension and conflict. I shall take two particular issues to illustrate the themes: judgement and justice. Both words have powerful reso-nance for lawyers and social workers, but the meanings and practical implications are complex and at times contradictory. Social workers are required to exercise professional judgement, but one of their core professional values is not to be judgemental; the courts deliver judgements all the time, and sometimes in ways that are highly critical of social workers. What are the underlying issues here, and the implications? And how does social work’s approach to justice square with the formal, legal justice of the courts, and what does it mean for social work’s relationship with the law?

The law and the courts have come to play dominant roles in social work in the UK, but it is not certain that this always helps the people who use social work services. Their increasing importance chimes with other trends and forces that have given social work in England a highly regulatory character (Social Work Task Force, 2009; Munro, 2011). That is to say, it is tightly regulated itself, but also regulatory in its interactions with service users – highly procedural, often focused on rationing services and assessing and managing risk. But the legalistic approach distorts social work in two senses: it is not always a realistic or fair view of what actually happens, and it pushes social work in certain directions that can be unhelpful to workers and, most importantly, to service users. But things do not have to be like that, and there are examples of more collaborative working between social work and the courts that can help to produce better outcomes for service users. Some forms of independent scrutiny and adjudication will always be necessary, but new approaches to review, challenge and learning are likely to be more productive for longer-term constructive change. But first, we need to define our terms.

Values and ethics in social work

For many social workers, their values are at the heart of their professional identity. They are what motivate them in their day-to-day work, and what make their profession distinctive (e.g. Bisman, 2004; Barnard et al., 2008). A social worker’s values – say, to treat people fairly, to respect people’s choices, to avoid being judgemental or blaming, to empower people to live their lives as independently as possible – will be grounded in their personal beliefs, their professional duties and the wider expectations of their society. Studying the reasons why someone might hold any particular value or set of values, how those values link together, how defensible they are and what their limitations may be takes us into the realm of ethics – reasoning about values.

There are many different schools of thought about the underlying principles behind social work values. Four principal schools of ethical thinking are Kantian-ism (duty-based approaches: one must do one’s duty, categorically, regardless of the consequences); utilitarianism (one’s duty is to do the thing that brings the greatest good for the greatest number); virtue ethics (it’s a question of character, one must train oneself to become the sort of person who makes the right decisions for the right reasons); and care ethics (the important thing is to respond to other people in caring ways, not to be tied to inflexible rules). All of these have direct implications for social work, in thinking about why a worker should act in a certain way, what makes something ‘the right thing to do’; and (as we shall see later) there may sometimes be tensions between them (Dickens, 2013).

There are other understandings of what social work is really about, or should be about. In particular, in the current context in England, where social work has become so tightly regulated and regulatory, two powerful counter-trends have emerged. Both seek to recover older, traditional strands of social work and give them a new lease of life. First, there are those who call for a rediscovery of social work’s radical edge, its social critique and activism. There has been a resurgence of books with the word ‘radical’ in the title (e.g. Ferguson and Woodward, 2009; Lavalette, 2011; Ferguson and Lavalette, 2013; Turbett, 2014), the launch of a journal called Critical and Radical Social Work and the creation of the Social Work Action Network, ‘SWAN’. Second, there has also been a revival of relationship-based approaches, those arguing that social work best achieves change not through procedural compliance or political action but through skil-ful (helpful and realistic) interpersonal helping relationships (e.g. Howe, 2008; Ruch et al., 2010; Munro, 2011; Wilson et al., 2011). It is clear that there are significant differences between the two approaches, and they could well give different answers to what is the right thing for a social worker to do in a certain situation; but Payne (2006) has argued that one of social work’s distinguishing features is that it tries to reconcile these two strands, to bring about social change through work with individuals.

So, perhaps one should not overplay the distinction, and think of ‘both/and’ rather than ‘either/or’. We shall return to this in the conclusion. Likewise, one should not overplay the distinction between values and ethics. It is not a rigid or consistent boundary, and the word ethics is sometimes used simply as another term for ‘values’, rather than as a more considered way of thinking about values. Examples of this are the various national ‘codes of ethics’ published by different social work associations around the world, insofar as they tend to set out lists of expectations rather than debate the reasons behind them. There is also an international statement of ethical principles for social work, adopted in 2004 by the International Federation of Social Workers and the International Association of Schools of Social Work (IFSW and IASSW, 2004). National codes are compared usefully in Banks (2012), and it is possible to read a selection on the IFSW website (see their ‘National Codes of Ethics’ webpage).

Social work values in a nutshell

The British Association of Social Workers, BASW, is the largest professional body for social workers in the UK, although membership is not compulsory and the large majority of social workers do not belong to it. In September 2014, total membership in the four countries of the UK was 17,000, the highest in the association’s history (BASW, 2014a: 7). Despite the relatively low numbers, it has been established since the 1970s and has an influential voice in ongoing debates about the role and the future of social work.

BASW first published its code of ethics for social work in 1975. It was revised in 1986, to give greater weight to anti-oppressive values, and again in 2002, to enhance the human rights dimensions. A further revision was published in January 2012, to take account of more recent understandings of social work and the challenges that social workers face. The latest code is a succinct summary of social work values and a good route into thinking about them, but it should not be considered ‘the’ definitive statement. It has evolved over time and will no doubt be revised again in the future; and as noted above, other countries have their own codes, which may use different language and emphasise different aspects of professional activity.

The BASW code draws closely on the IFSW and IASSW international statement, highlighting three ways that ethical dilemmas can often arise for social workers (BASW, 2012: 6):

Dealing with conflicting interests and competing rights

Having a role to support and empower people, alongside statutory duties and other obligations that may be coercive and restrict people’s freedoms

Being constrained by limited resources and organisational policies

The code goes on to describe three key dimensions of social work ethics: human rights, social justice and professional integrity (the international statement uses the term ‘professional conduct’). The BASW code gives five bullet points for each of these headings, and then elaborates on each of them with a further paragraph.

Under the heading human rights, the five points are:

Upholding and promoting human dignity and well-being

Respecting the right to self-determination

Promoting the right to participation

Treating each person as a whole

Identifying and developing strengths

Social workers are unlikely to disagree with any of these general objectives. The challenge, of course, is putting general objectives into practice, in two senses: first, because for every general principle there is likely to be another that conflicts with it, and second because social workers have to implement them in the complex and uncertain realities of service users’ lives and wishes, the worker’s own individual and organisational circumstances and available resources (time, money, services, community and family support).

In terms of conflicting objectives, these are neatly illustrated in the paragraph that expands on the point about self-determination. It reads:

Social workers should respect, promote and support people’s dignity and right to make their own choices and decisions, irrespective of their values and life choices, provided this does not threaten the rights, safety and legitimate interests of others.

(BASW, 2012: 8)

Two very different approaches to ethical reasoning are bolted together in this sentence, without any explanatory comment or recognition of the potential clashes. The first part of the sentence expresses a categorical view about the importance of an individual’s rights to choose and decide about their lives, echo-ing the Kantian tradition; but the second part goes on to qualify this, balancing it against the rights and well-being of others, a more utilitarian approach. So the absolute importance of the service users’ rights to choose, ‘irrespective of their values and life choices’, is restricted by other considerations that take account of wider, longer-term and social consequences.

Under the heading social justice, the five points are:

Challenging discrimination

Recognising diversity

Distributing resources

Challenging unjust policies and practices

Working in solidarity

It is notable here that the requirement on social workers is not simply not to discriminate themselves, but to challenge discrimination. And under the bullet point on challenging unjust policies and practices, the paragraph reads:

Social workers have a duty to bring to the attention of their employers, policy makers, politicians and the general public situations where resources are inadequate or where distribution of resources, policies and practice are oppressive, unfair, harmful or illegal.

(BASW, 2012: 9)

This phrase seems to reflect the radical and campaigning vision of social work. In the current political and economic context, with tightly restricted resources, and policies that seem to be particularly harsh towards people who are poor, unable to work or from other countries, one might expect social workers to be raising issues about resource shortages and unfair policies all the time. But it is important to interrogate exactly what this phrase means, what its implications are for social work as a profession and for social workers as individuals. For a start, there are considerable differences between drawing matters to the attention of one’s employers or to others outside one’s agency, possibly including the general public; and there are differences between situations ‘where resources are inadequate’ and those where practice is ‘illegal’. We return to these issues in more detail later in the chapter.

Under the heading professional integrity, the five points are:

Upholding the values and reputation of the profession

Being trustworthy

Maintaining professional boundaries

Making considered professional judgements

Being professionally accountable

One of the implications of the professiona...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Notes on the Contributors
• Introduction: Critical issues in challenging times
• 1. Social work values, the law and the courts
• 2. Anti-oppressive practice and the law
• 3. Care, vulnerability and the law
• 4. Coercion in social care
• 5. Child protection
• 6. Hastening slowly: Does the law promote or frustrate timely adoption from care?
• 7. The changing face of youth justice
• 8. Vulnerable and intimidated witnesses: Special measures, competence, consent and cross-examination
• 9. Human trafficking and social work law
• 10. Good review? Good question
• Index