Legal Process and Social Work
Introduction
The law forms an integral component of good social work practices. As such, knowing what the law says is an essential element for social work practitioners. Johns (2014) suggests that the law plays a central role concerning different aspects such as the promotion of people’s rights, informing what social workers are allowed or prohibited to do, and offering individual protection against discrimination. According to Johns (2014), a significant proportion of social workers in Britain work in organizations that are required to be publicly accountable. Examples of such organizations include local agencies and authorities. Moreover, Preston-Shoot (2002) opines that social workers spend a significant proportion of their life providing service to individuals who are in need of them. They also intervene on issues involving people to protect them from either other themselves or other people.
In light of the above, an argument may be held to the effect that social workers are extensively involved in issues relating to diverse issues pertaining to people’s rights. Examples of such rights include rights and entitlement to services, right of access to information, and rights to be protected from harm (Skolnik 2016). The scope within which a social worker can offer protection or service to a party is based on the social worker’s dependence on some framework, which is the law (Madden 2003). Thus, social workers should be knowledgeable of the law. Braye and Preston-Shoot (2016) emphasize that social workers must be conversant with the powers and duties necessary in intervening in the lives of adults and children at risk as stipulated by the primary legislation, case law, and statutory guidance.
In exercising their roles, social workers must ensure that they act in a fair manner. Additionally, they must also exercise honestly, act with respect, benevolence, and humility based n line with their level of competence. Social workers should have a by a high degree of predictability and should have an attitude that is accessible and relational. It is also imperative for social workers to act in good faith under the powers accorded to them. They should not exceed the limits of the powers given under the law. These principles, which are codified by legal rules closely related to social work values (Preston-Shoot 2001). While social work is entrenched in legal rules that govern the value-based practice, there are instances when the law can be a hindrance to social work. This essay entails a critical and reflective response to the above claim.
Use of law in social work
Law forms an essential role in social work practice. A majority of social work clients are in one way or another involves in the legal system, for example, mental health, criminal or administrative justice, and child protection. Social workers should, therefore, be knowledgeable of the laws that govern each system. The possession of legal knowledge enhances the social workers assist their clients in navigating through the system effectively. Possession of legal knowledge can further provide social workers insight on how to advocate for legal reforms hence improving the socio-legal environment (Braye & Preston-Shoot 2016).
The centrality of law in social work is underlined by the fact that it enhances the effectiveness with which the social workers balances diverse relationships involved in social work. Examples of such relationships include employer-employee, parent-child, spouses, landlord-tenant, and patient-physician relationships (Stein 2004). Social workers are obliged to avoid discrimination to succeed in establishing and maintaining the relationship. For example, in cases involving vulnerable adult and child protection, social workers are obliged to apply legal evidence-informed practice because of the protective nature of the cases.
The rationale of establishing balance in such cases is based on the possibility of tension and competing interests amongst the parties involved. Slater and Finck (2012) note that in some instances, the social worker may be handling a case on protective proceedings involving a party who has committed an act of abuse on a child or adult. Alternatively, in cases involving commitment hearing or guardianship, the social worker may be required to work with an entire family whose family members have adopted divergent positions on how the issue should be resolved. Under such circumstances, the social worker needs to be conversant on how to establish a balance between the rights of different parties, that is, the family, the individual, and the state. Knowing what the law says is, therefore, essential for social workers because they are, in most cases, put in a position that requires them to balance between the values of protection and autonomy (Slater & Finck 2012). Thus, the law provides social work practitioners with a concrete understanding of their responsibilities and their client’s rights.
The law also forms an integral element in practising social work, for example, in promoting human rights, which is an essential element in practising social work. There are different legislation relating to human rights that are integral in social work. Among such legislations include the 1989 United Nations Convention on the Rights of the Child, the Convention on Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities (Johns 2014). Under the HRA 1998, legal advisors involved in social work may be held legally accountable for their practices. There are different grounds under which the courts have, in the past, provided social service users redress on the grounds of human rights for actions by the social workers.
Notable grounds include the right to liberty of individuals detained in care settings (Hillingdon LBC v Nearly and Others [2011]), psychiatric hospitals (R (KB and Others) v MHRT and Another [2002]), or the removal of people from care homes in the case of G v E and Others [2010]. The law further enhances individual rights in social work by ensuring that the users of social work services are accorded the right to a fair hearing. It is evident in the Las consultation procedures concerning the closure of residential homes, as illustrated in the case of R (Madden) v Bury MBC [2002]. The law also protects asylum seekers from degrading and inhuman treatment. In addition to the above issues, the law is also essential in ensuring that the rights of social workers are protected (Braye & Preston-Shoot 2016).
The law is also crucial in relation to social work in that it sets the boundaries on the practice of social work. Social workers are restricted by law from exceeding the limits of their statutory authority. For instance, in the case of R (G) v Nottingham CC [2008], the court held that social workers must only remove a child from school with judicial permission or the active approval of an individual who has parental responsibility. In light of this, a social worker who contacts the school without the consent of the child’s parents to initiate a child protection investigation commits an offence as was held in the case of R (AB and CD) v Haringey LBC [2013](Preston-Shoot 2002). The parents of the child in question were themselves qualified social workers. The local authority ruled that an enquiry into their conduct be instituted. This prompted the parents to initiate legal proceedings. The local authority had conducted data gathering without the parents’ permission, and this was deemed unlawful.
Law-social work relationship
The law and social work are related to a considerable degree. First, the law provides social workers with the legal ground under which they practice social work concerning different aspects, for example, child protection and intervening in family life, following the local authority (Long, Roche & Stringer 2010). In spite of the law being an integral element in social work, the effectiveness with which the social worker executes his/her role and responsibility is not just limited on his or her knowledge of the law. On the contrary, the social worker must leverage his or her knowledge of social work values, practise wisdom, and theoretical knowledge. Among the social work values that the social work practitioners should integrate while applying the law include observing the rights of their service users.
The social workers understanding of the law is also essential to their practice. Long, Roche and Stringer (2010) suggest that a significant proportion of professional social workers perceive the law as complicated while the courts are considered unwelcoming, and an inappropriate environment for resolving complex human issues encountered in social work. Moreover, the social workers are of the view that the courts stand in the way in the way for decision making in social work. Since social workers are required to work in collaboration with the courts in their practice, social work professionals usually consider such a working relationship uncomfortable. Such collaboration is hover essential because the bottom line is to ensure the interest of service users are upheld (Burry et al., 2011). However, the social worker service user considers the court essential in enhancing legal accountability amongst social workers. For example, the law creates an opportunity for social work users to raise a complaint on a service that he or she believes was entitled to or in reversing a decision that may have been made by a social worker.
The ethical duty of care forms an integral component in social work. Dickens (2012) opines that the term ‘duty of care’ carries a distinctive legal meaning. Under the common law, the term duty of care means that individuals are obliged to do well. According to Parrott (2014), social workers further have a duty to act in a manner that is fair to the service users.
Proper application of the law in social work as an indication of competence
Social workers occupy a central role in that they create a link between the vulnerable members of the society and the state. Johns (2014) asserts that social work, in most cases, involves making significant decisions that may result in far-reaching consequences for individuals and families. Under such circumstances, there must be a reliable and valid measure of public accountability. The law provides social workers different powers and duties that have, in some instances been described as ‘draconian’ and hence may demand intervention in family life (Davies 2013). Nevertheless, there are instances in which the law has been effectively applied concerning social work. There have been extensive legislative reforms that have resulted in the effective application of the law hence strengthening social work.
The legislative reforms have resulted in improvement in child welfare, for example, through the enactment of the Children and Adoption Act 2006, which resulted in improvement of contact between children and parents. The non-compliant parents can be sanctioned under the Children and Adoption Act 2006. Conversely, the Children Act 2004 has appreciated the need for taking into consideration the diverse variables involved in raising children. Due to its broad approach, CA 2004 has resulted in the delivery of justice to children.
Limitations of law in social work
Despite the law being an integral part of social work, there are certain instances in which the law has been a significant obstacle in the operationalization of the value-based practice. One of the fundamental limitations relates to lack of clarity in the application of specific legal provisions, and or meanings. Braye and Preston-Shoot (2016) argue that in some situations, the law is considered the main form of admissible knowledge. Nevertheless, the law may be inadequate in helping social workers deal with the inadequacies that they may face.
The law may create an impression that it provides a clear roadmap on the promotion of the party’s welfare (Long, Roche & Stringer 2010). However, the law only provides a set of regulations, statutes, court decisions and guidance that are progressively or regularly re-drawn. The statutes, regulations, court decisions and guidance’s may in some instances, be inconsistent with the social issues faced. Thus, the application of the law in social work is neither unproblematic nor straightforward (Braye & Preston-Shoot 2016).
Another hurdle inherent in the application of the law in social work is underlined by the fact that the legal clauses are usually discretionally, which means that they are open to interpretation. In light of this, the application of the legal provisions may result in contested judgment. This assertion is underlined by the ruling in the case of Re H and R (Child Sexual Abuse: Standard of Proof) [1996]. In this case, the House of Lords arrived at a split decision on whether the probability of significant ham had been duly established based on the case facts provided on the balance of probability rather than relying on the mere possibility (Standley & Davies 2013). Moreover, the available laws may not be up-to-date with social work practice developments. For example, the 1976 Adoption Act failed to factor in the element of openness to adoption, while the 2002 Children Act factored in contact.
The lack of clarity on meanings on issues relating to social work further presents a major hurdle in the administration of social work. In the case of Yemshaw v Hounslow LBC [2011], the judges differed amongst themselves on the appropriate meaning of domestic violence to apply in deciding over the case. Even though all the judges were in agreement that psychological harm must be evident in cases of domestic violence, they failed to agree on whether domestic violence must be deliberate (Glennon & Gilmore 2018).
The law may also present a hurdle in implementation of values-based practice of social work due to the existence of gaps in the legal framework. Some of the available legal framework that social workers are required to rely on in their work is based on divergent views. For example, the Children Act 2004 recognizes the importance of adopting a broad approach, for instance, by addressing the diverse variables that are associated with the raising of children. Conversely, some legal frameworks, such as the Crime and Disorder Act of 1998, lay the burden of controlling children’s behaviour specifically to parents (Prior& Paris 2005).
The application of diverse legal rules in social work can result in a conflict of interest. Some of the enacted legislations pursue different values. For example, the 1989 and 2014 Children Acts emphasize on the themes of participation and empowerment in the service design and assessment while the Human Rights Act 1998, the Mental Capacity Act 2005, and the Care Act 2005 promote the values of respect for persons, empowerment, self-determination, and openness (Braye & Preston-Shoot 2016). Additionally, some legislation result in discrimination of certain groups of people hence denying the humanity and emphasize on value judgments in respect to their choices, needs, and goals. An example of such legislation relates to immigration and asylum-seeking. Braye and Preston-Shoot (2016) affirm that social workers are increasingly facing a challenge in helping immigrants and asylum seekers, owing to the changing structures that result in the oppression of these social groups.
Even though laws are designed to helping social workers promote individuals’ welfare, the laws are, in some instances, ineffective in achieving this outcome. Laws are, in most cases, not proactive but reactive. As such, they do not anticipate a situation and how to find a solution to it. Instead, the laws are developed after a problem has already emerged. Mandelstam (2013), assert that legal rules are ineffective in preventing unlawful practice and institutional abuses. Although the Health Act 2009 underlines on the importance of healthcare providers to observe critical values amongst them a commitment to quality and care, respect, good governance, and dignity, the Act 2009 did not prevent the occurrence of human rights abuses, such as medical negligence at Stafford Hospital.
Similarly, the requirement for healthcare institutions to be registered with the Care Quality Commission (CQC) did not prevent the occurrence of institutional abuse of ensuring the protection of whistleblowers at Orchid View Nursing Home and the Winterbourne View (Braye & Preston-Shoot 2016). There are some instances in which the courts have been forced to mediate between different social work agencies, such as on matters involving housing children in need, for example, in the c
ase of R(TG) v Lambeth LBC [2011] (Braye & Preston-Shoot 2016). Despite the different legislative reforms that have been undertaken to enhance interagency collaboration in social work, for example, the formulation of the Health Act 1999, the Children Act 2004, and the Health and Social Act 2012, there still exists barriers that hinder collaboration. Such restrictions range from lack of role clarity, resource limitation, stereotyping and competitiveness among agencies, and value and attitudinal differences (Braye & Preston-Shoot 2016).
Conclusion
Social work is a value-based discipline. The law significantly enhances its execution. As such, the law forms an integral component in social work, for example, by establishing the powers and limitations or boundaries that social workers should observe in practising social work. The law is also essential in ensuring that social workers are effective in enhancing protection amongst the vulnerable adult and children. Additionally, the law is critical in enhancing the protection of individuals’ human rights. In spite of its fundamental importance in social work, there are instances in which the law creates hurdle in the execution of social work. Some of the notable limitations of the law in social work include lack of clarity in specific provisions and or meanings of some legal terms, for example, constitutes domestic violence, the existence of gaps in the legal framework, discrimination in the application of laws, for example, and in dealing with migration and asylum-seeking.
The available legal framework does not adequately support social workers in that the laws are not proactive but rather reactive. As such, the available law that social workers are required to deal with does not anticipate situations and how to find solutions to social issues.
On the contrary, the laws are often formulated after the problem has already emerged. The prevalence of the limitations mentioned above may harm the delivery of value-based practice. It is therefore essential for social workers in collaboration with legal practitioners to focus on eliminating the legal limitations. Streamlining these limitations will not only ensure that the social workers are effective in enhancing protection for the vulnerable but will also result in ensuring that the social workers are protected in their roles and responsibilities. For example, eliminating the legal limitations will enable social workers to operate under clear powers and authorities as stipulated by the law.
