Practising Social Work Law

Suzy Braye, Michael Preston-Shoot

• Publisher: Bloomsbury Academic
• Year: 2017
• Print ISBN: 9781137560292
• eBook ISBN: 9781350313606
• Edition: 4
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

This fully revised fourth edition of a well-respected textbook seeks to build social workers' confidence in legal interpretation and implementation - practitioners must not only know the law; they must also have a critical appreciation of its implications for human rights, civil liberties and social justice. With a focus on promoting knowledge and skills in recognising, locating and articulating legal issues, it also demonstrates how the law can be used to inform practice standards and deliver positive outcomes for service users. This is essential reading for social work law modules at undergraduate and postgraduate level. Practitioners and educators will also find it an invaluable resource to guide them through a complex, yet vital, aspect of their work.< New to this Edition:
- Combines up-to-date statute, case law and guidance with extended practice examples and questions for reflection

CHAPTER 1

TOWARDS PRACTISING SOCIAL WORK LAW

Social workers in training and experienced practitioners alike often appear apprehensive and lacking in confidence about working in the legal arena. Students anticipate their law learning with a variety of emotions, including anxiety (even fear), and feel overwhelmed by the breadth and depth of learning required (Braye et al., 2011; Preston-Shoot and McKimm, 2012a). There is ambivalence too. The very idea of law being part of social work may be questioned, with concern that its coercive powers are antithetical to social work values. Legal language is perceived as inaccessible and the interface between law and social work as complex and fluid; there is disappointment when the clear boundaries expected from the legal rules are not apparent. Practice teachers appear daunted by their responsibility for teaching and assessing social work law and express reservations about their own legal competence (Preston-Shoot et al., 1997; Braye et al., 2007). Nonetheless, a positive perception of law exists too as a source of legitimate authority, and a resource in advocating for and promoting equality and human rights. Despite its challenges, social work students have long expressed enthusiasm for their law learning (Ball et al., 1995; Marsh and Triseliotis, 1996; Lyons and Manion, 2004; Braye et al., 2011) and law learning significantly impacts upon knowledge and confidence, and changes attitudes about synergy between legal rules and social work values (Braye et al., 2014a; Preston-Shoot and McKimm, 2012b; Preston-Shoot et al., 2013).

There are, however, challenges in transferring law learning into qualified practice. Echoing earlier findings of a lack of confidence among newly qualified practitioners (Marsh and Triseliotis, 1996; Drury-Hudson, 1999), half of Mathias-Williams and Thomas’s (2002) student respondents recognized that complying with legal rules was a key task but believed that by the end of their initial qualification programme they had insufficient knowledge of relevant legislation. A longitudinal study (Preston-Shoot and McKimm, 2012b; Preston-Shoot et al., 2013) reported high levels of anxiety about using the law in practice and keeping up to date. Despite positive shifts in confidence in both legal knowledge and skills for law-informed practice, under half of qualifying students were reasonably or fully confident about their knowledge of child protection and adult safeguarding law, and over half reported difficulties in challenging agency interpretation of legal rules. More experienced practitioners had gaps in their knowledge (McDonald et al., 2008) and found legislation complicated and difficult to use (Drury-Hudson, 1999; Perkins et al., 2007; Pinkney et al., 2008). Ignorance of, or uncertainty about, the legal rules features in serious case reviews in adult safeguarding (Braye et al., 2015a; 2015b) and in child protection enquiries (Laming, 2009).

Perhaps these findings should not surprise. Where legislation is complex and labyrinthine, problems of assimilation and comprehension will follow (Bingham, 2011). The volume and style of the legal rules do not necessarily well serve the rule of law.

Engagement with law in professional practice appears to some extent dependent on the context. Some practice environments may offer limited opportunities to develop and update knowledge and skills for interacting in the legal arena. Willis (2002) found respondents critical of management support and of their lack of training, for example on court skills and legal proceedings, which created difficulties when working with lawyers. Carers considered social workers to be ill-equipped with legal skills (Barnes, 2002) and Braye et al. (2013) found that qualified, experienced practitioners in adult social care did not use legal knowledge as a key reference point. However, in the more specialist work of Approved Mental Health Professionals, the legally defined role and the authority inherent within it were key elements of professional identity (Bailey and Liyanage, 2012; Buckland, 2014) and in best interests assessments for the purpose of deprivation of liberty, case law was explicitly drawn upon in the process of decision-making (Carpenter et al., 2014). Thus professional role and agency context can be influential in determining how far law is seen as a significant feature of practice. Practice that is driven by agency procedures, which render law less visible (Braye et al., 2007), may reflect a distorted interpretation of the legal rules. Competence depends not just on practitioners taking responsibility for their continuing professional development but also employers providing regular legal updates and clear information that is not mediated through agency interpretation.

Experts by experience expect social workers to have up-to-date legal knowledge and to be technically competent in its use. However, they also expect practitioners to be critically competent (Braye and Preston-Shoot et al., 2005). Critical thinking here refers to being able to articulate legal knowledge, debate the relationship between law and professional practice, share ethical dilemmas and options for their resolution, and explain decision-making. It includes commitment to tackling discrimination and oppression alongside individual need, responding to the impact of the law on people’s lives, and taking action when the law disadvantages particular social groups. As one experienced judge has commented, to promote a caring society based on shared concern, formal legal structures must be infused with grace and compassion (Sachs, 2009).

Thus, law is something to be both excited and careful about, its authority creating a powerful resource when practitioners embrace both its technical detail and its transformative potential. Crucially, then, what is written and taught about social work law must leave practitioners certain in relation to ‘knowing what’ and ‘knowing how’. It must also enable them to question the roles prescribed for them in law and to debate how legislation defines problems and solutions. Finally, it must provide understanding of the relationship between law and practice, and facilitate confidence in working at that interface.

The contested relationship between law and social work

There has been long-standing concern about apparent deficiencies in social workers’ knowledge and use of legislation, and their unease when acting as statutory agents. During the 1980s reports into child abuse tragedies criticized the failure of practitioners to identify and observe their legal duties, and to use their available legal powers (DHSS, 1982; Blom-Cooper, 1985; London Borough of Greenwich, 1987). They suggested that social workers disliked the authoritarian role of legal intervention. By contrast, other reports criticized social workers for being overzealous and ill-advised in their use of the law, and found that using statutory controls can be counterproductive to risk management and decision-making in childcare (DHSS, 1985; Butler-Sloss, 1988). The paradox was stark: social workers used too little law, too late, or they used too much, too soon. A report fiercely critical of law teaching in social work education (Ball et al., 1988) prompted calls for legally competent practice (Vernon, Harris and Ball, 1990).

The paradox has continued, however, with social work caught in a pendulum that swings between a coercive, child protection-focused approach to family assessments, and a more supportive, preventive framework (Devine, 2015). Following introduction of the Children Act 1989 (CA 1989), social workers were initially criticized (DH, 1995) for focusing more on child abuse and child protection than on the support needs of children and families. An increased emphasis on preventive services was advocated, without indicating how an apparent preoccupation with abuse was to be modified, thereby failing to address the roots of the paradox in the legal mandate and its relationship with social work. Other research (Hunt and Macleod, 1998) found social workers refocusing risk assessment and supporting families through partnership but concluded that some cases entered the court system too early and others too late. In the early years of the 21st century, the preventive agenda dominated: “identifying risk factors and intervening early provided the major strategy for overcoming the social exclusion of children and avoiding problems in later life” (Parton, 2011, p863). However, simultaneously the paradox was further reinforced by the Laming Report (2003), which urged social workers to adopt a more suspicious approach towards families, despite the risk of jeopardizing preventive and collaborative work (Sinclair and Corden, 2005). This swing back to protection was given further impetus by the death of baby Peter Connolly in 2008, and Laming (2009) advocating measures to strengthen responses to children at risk of significant harm. A government-commissioned independent review of child protection (Munro, 2011) advocated reforms that would free social work to achieve an effective balance between child protection and early intervention, preventive work. Nonetheless, others have described the “unholy alliance of early intervention and child protection” as creating a “perfect storm” of failure to recognize the pernicious effect on families and children of inequalities within a neoliberal regime (Featherstone et al., 2014, p1735), and deflecting social work’s attention from “wider appreciation of what harms children, how their welfare might be improved and how such issues are related to wider social and economic forces” (Parton, 2014, p2053).

In adult social care, the law–social work relationship has had a different trajectory, with legal rules sometimes conspicuous by their absence. Adult safeguarding in England only developed under policy guidance (DH, 2000a) shaping engagement with adults at risk of abuse and neglect. It is only with the Care Act 2014 (CA 2014) that a statutory duty to make enquiries in such circumstances has been introduced. Series and Clements (2013) observe that the introduction of Resource Allocation Systems, which have impacted dramatically on social work decision-making, has occurred without any statutory change at all. The policy of personalization, envisaging independence, choice, and control for adults with care and support needs, with high quality, flexible services designed to promote wellbeing, has created a sea change in the welfare system and radically changed social workers’ role and task, even in the absence of a statutory mandate for such change. Again only in 2014 did the CA 2014 create a clear legal framework for more user-focused services, embedding in statutory measures principles that support personalization. The Act’s definition of wellbeing includes “control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)” (section 1.2(d)); and the list of factors that local authorities (LAs) must consider (section 3) include the assumption that the individual is best-placed to judge their own wellbeing, and the importance of their views, wishes, feelings, and beliefs, and of their participation in decisions. Arguably such developments strengthen the synergy with social work’s goals and values, although the philosophy of personalization that underlies the choice and control mandate is a contested one, about which social work is advised to be cautious (Ferguson, 2007; Lymbery, 2010).

Paradox is reflected too in ambivalence about how legal rules frame social workers’ authority. Only qualified social workers can become independent reviewing officers, monitoring how LAs implement plans for looked-after children (Adoption and Children Act 2002) and they have a lead role in core assessments to safeguard and protect young people (HM Government, 2015a). However, social work has lost its former pre-eminence in decision-making on admissions to psychiatric hospital or guardianship (Mental Health Act 2007 (MHA 2007), amending the Mental Health Act 1983 (MHA 1983)), with the newer role of Approved Mental Health Professional now shared with practitioners from other disciplines.

Another discourse identifies implementation failure in frontline practice. One version attributes it to personal failures (unprofessional performance) and systemic problems (organizational malaise), reserving special criticism for how law is interpreted and implemented (Laming, 2003). In a later commentary under similar circumstances – the death of a child attributed to a failure of child protection – Laming (2009) repeated the emphasis on professionals fully understanding their responsibilities under the legislative framework. An alternative version attributes it to undue emphasis on rules and procedures rather than outcomes, acknowledging that despite more legislation the system has not helped social work (Munro, 2011; DfE, 2011a). Judgements have to be reached within a legal framework but the intricacies of decision-making require professional expertise to work with children and families, to manage uncertainty and evaluate risks (Munro, 2011). How the pendulum swings between these two perspectives depends significantly on political and public attitudes (Parton, 2012).

Unsurprisingly, then, prescribed remedies for this ‘malaise’ in the law–social work relationship differ fundamentally. The inquiry into the death of Jasmine Beckford (Blom-Cooper, 1985) argued that social work should only be defined in terms of the functions required of its practitioners by their employing agencies operating within a statutory framework. Law is seen as social work’s core mandate, the pivot for practice, legal knowledge as offering direction in an uncertain and confusing world, as if it is somehow obvious when and how practitioners must act. What is required, therefore, is a higher degree of proven competence in relation to statutory duties, and an ability to interpret and exercise those duties correctly (Blom- Cooper, 1985). This legalistic model is reflected in moves to award legal knowledge the central position in social work (Ball et al., 1988). It is seen in the faith placed in the legal rules to shape aspects of practice such as interagency working, information sharing, and monitoring children (Children Act 2004 (CA 2004); DfE, 2015a) without questioning their feasibility and effectiveness in enhancing children’s safety, or their impact on necessary relationships with families (Sinclair and Corden, 2005). It is seen in the continuing presence of law as a core element of social work education and continuing professional development (HCPC, 2012a; TCSW, 2012).

An alternative pivot for practice was offered by Stevenson (1988): an ethical duty of care. Here the law is but one framework, alongside key social work values and skills, including user self-determination, professional judgement, assessment, and working for individual and social change. ...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Acknowledgements
• Table of Legal Rules
• Abbreviations
• Table of Cases
• Preface to the Fourth Edition
• 1 Towards practising social work law
• 2 Social work law: Critical perspectives
• 3 Beyond dilemmas to decisions
• 4 Care and support to adults
• 5 Using the law to work with children, young people and their families
• 6 Frameworks for decision-making and accountability
• 7 Frameworks for partnership work
• 8 Making sense of practice
• References
• Author index
• Subject index