Law and the Social Work Practitioner

Rodger White, Keith Brown, Graeme Broadbent

• Publisher: Learning Matters
• Year: 2009
• Print ISBN: 9781844452644
• eBook ISBN: 9780857252173
• Edition: 2
• Topic: Social Sciences
• Subtopic: Social Work
• Index: Social Sciences

This book explores the main areas of social work law, including children, mental health and community care. By investigating the meaning of law and some of its underlying value assumptions, it encourages practitioners to reflect on their actions and beliefs, helping them to avoid being a mere ?technician?, and instead, become a competent practitioner. This new text supports busy social workers studying for Post-Qualifying Awards. Each chapter begins with an overview of the rationale for the teaching material provided and sets out clear learning objectives. Case studies, exercises and recommendations for further reading can be found throughout the book.

Chapter 1

Understanding law

Overview

It is essential that you, as a student and as a practitioner, take a critical view of social work practice. You will already be aware that there are contested perceptions of what social work is ‘for’ and how it should best be done, or even whether it should be done at all. Social work law is an important part of that contested terrain.

The purpose of this chapter is to take you the first few steps towards developing a sceptical, but also constructive, approach to law in social work practice. We do this, not by instructing you about particular aspects of the legal system, or bits of substantive law; instead we ask you to investigate the meaning of law and some of its underlying value assumptions. There is some useful reading you can do (see below) but firstly there is a brief exercise for you to complete, in your own time.

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ACTIVITY 1.1

Very quickly, without thinking about it too much, jot down below the first five words or phrases that come to mind when you hear the word ‘law’.

My five words/phrases are:

Once you have done this, don’t then simply forget about it. Reflect on what the words mean to you and why you put them there.

Also, remember to look back at them, as your studies and your practice progress, and reconsider their meaning to you and whether you would amend them.

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Objectives

In order to reach the following objectives you should:

• read through this section and complete the exercise in it
• take part in the relevant teaching session
• begin some of the essential reading.

After doing this you should be able to:

• critically discuss the notion of ‘conflicting imperatives’ in law
• begin to evaluate the practice-related implications of key value assumptions in law
• give an outline of what is meant by the ‘rule of law’.

FURTHER READING

Two texts which deal with the highly political, professionally contentious and value-laden nature of social work law are:

Braye, S. and Preston-Shoot, M. (1997) Practising Social Work Law (2nd ed). Basingstoke: Macmillan

Dalrymple, J. and Burke, B. (2006) Anti-Oppressive Practice: Social Care and the Law (2nd ed.). Buckingham: Open University Press

You are strongly recommended to read these two books.

You are also recommended to read:

Cull, L.A. and Roche, J. (eds) (2001) The Law and Social Work: Contemporary Issues for Practice. Basingstoke: Palgrave

Also see the following general texts on social work law:

Ball, C. and McDonald, A. (2002) Law for Social Workers: An Introduction (4th ed.). Aldershot: Ashgate

Brammer, A. (2009) Social Work Law (3rd ed.) Harlow: Longman

Brayne, H. and Broadbent, G. (2002) Legal Materials for Social Workers. Oxford: Oxford University Press

Brayne, H. and Carr, H. (2008) Law for Social Workers (10th ed.). Oxford: Oxford University Press

Johns, R. (2007) Using the Law in Social Work (Transforming Social Work Practice) (3rd ed.). Exeter: Learning Matters

FURTHER READING

All social work law texts contain at least implicit assumptions about values. Many discuss them explicitly. Increasingly many ‘traditional’ general texts on law acknowledge that there are competing perspectives. An example is:

Fox, M. and Bell, C. (1999) Learning Legal Skills (3rd ed.). Oxford: Oxford University Press (Ch.1)

There is also an important and growing body of academic work, often referred to as ‘critical legal theory’, whose project is to investigate and contest the power relationships in law practice. This is interesting, but definitely not easy reading. An introduction to this body of work is provided in:

Mansell, W., Meteyard, B. and Thomson, A. (2004) A Critical Introduction to Law (3rd ed). London: Cavendish

Understanding law: values, principles and contradictions

All of us have ideas about ‘law’. It is important that those who are required to put law into practice, including social workers, examine and reflect on these ideas; if we fail to do this, we run the risk of being merely ‘technicians’, rather than competent and reflective practitioners.

Law is complex, value-laden and contradictory. That’s what makes it interesting; but it also means that simply ‘knowing’ the law (e.g. being able to quote what s.17 (1) of the Children Act 1989 says) is not enough: we must be able to understand it and give it meaning in practice.

Some of that understanding will derive from an awareness of contradictions in law. This is what this section is about. Below are some key points to which we will be referring.

Conflicting imperatives in law

By ‘conflicting imperatives’ is meant those matters with which law must be concerned but which do not readily fit together. Examples are:

• needs vs. rights
• welfare vs. justice
• individual rights to autonomy vs. rights of the state to intervene.

You can probably imagine that each of these imperatives and the relationship between them is complex and layered. Here is a brief example:

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CASE STUDY

Mrs D. is 80 years old. Her husband died three years ago and she has no other close relatives nearby. She is physically frail and her eyesight is deteriorating. She is beginning to ‘forget’ to eat. Her next-door neighbour, who used to do some shopping and provide a few meals, will be leaving the area shortly. Others nearby tend to ignore her, or are actively hostile. Mrs D. wants to remain at home but is distressed about her growing inability to manage.

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Some of the ‘imperatives’ mentioned above begin to break down into component parts. For example, how does her ‘need’ to remain at home equate with her ‘need’ to be protected? Can she resist social work intervention even if she is a danger to herself (individual rights to autonomy)? To what extent must she be in ‘danger’ (itself a problematic term) before intervention is inevitable, even if she is resistant? Contained within the question of the ‘rights of the state to intervene’ is the question of the form such intervention should take: one of the defining characteristics of social work is negotiation (perhaps, in this case, leading to home-based and/or daycare services under the range of community care legislation). But social workers are also in a position of authority and are legally empowered to take action which restricts civil liberty; in this case, for example, the use of compulsory powers under the Mental Health Act 1983, or even the little-used, but draconian, powers under s.47 of the National Assistance Act 1948.

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ACTIVITY 1.2

Clearly, law in practice is not straightforward. Can you think of other past, or possible, examples where there are ‘conflicting imperatives‘?

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We now turn to the connected issue of value assumptions in the law. This is presented in terms of:

• images
• functions
• myths.

Value assumptions in the law

The law has a mass of value assumptions embedded in it. These are often unexamined and unspoken (that’s what makes them ‘assumptions‘). The law is spoken of as if it is ‘natural’, or acts of its own volition, without human agency. You will sometimes hear people use ‘common sense’ statements like ‘well – the law’s the law isn’t it’, as if the operation of law is an inevitable and clear-cut process (whether they’re ‘for’ it or ‘against’ it).

On the other hand, people sometimes express highly politicised ideas about law; for example, that it can be used in beneficial ways, to change attitudes and behaviour (the range of ‘equal rights’ legislation has this intention, if not always this effect). Or that it will tend to operate to ‘put down’ certain groups and favour others (we could, for example, compare law and practice in relation to social security ‘scroungers’ and ‘tax dodgers’).

As social work practitioners you will be negotiating with, and even be on the receiving end of, often very strongly expressed views about how fair, useful, confrontational, incomprehensible, etc, ‘the law’ is. Whatever views you are dealing with, it is important to remember that law, including law in social work practice, is only put into operation because of what people do (or don’t do). As social workers, you are part of that and it is therefore important for you to reflect on how law is represented, as well as practised.

Much of this section, including the following comments, is based on Braye and Preston-Shoot, (1997, chs. 2 and 3). Read this for further discussion.

Images in law

What are the images contained in law? Examples include the following.

Competence – for example, whether a child of seven can be a ‘competent’ witness; whether an old person is ‘competent’ to live alone; whether a person with mental health problems is ‘competent’ to manage in the community and be released from psychiatric hospital; etc.

Promoting and preserving rights/controlling and minimising ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Table of legislation
• About the authors
• National Occupational Standards
• Foreword to the Post-Qualifying Social Work Practice series
• Foreword
• Dedication
• Introduction
• 1 Understanding law
• 2 Interpreting rules: a domestic and a statutory example
• 3 The English legal system
• 4 Children’s legislation: principles of law and practice
• 5 Adoption
• 6 Youth justice
• 7 Mental health law: an outline
• 8 Community care law: an introduction
• 9 Decision-making: the legal framework (administrative law)
• 10 Discrimination and the law
• 11 Law and policy on domestic violence
• 12 Housing (homelessness) legislation
• 13 The Human Rights Act 1998
• 14 Miscellaneous
• Appendix
• Recommended reading
• References
• Index