Sample Chapter 5: Applying law in practice

The final extract from ‘Innovations in Practice Learning‘ is taken from Chapter 5: ‘Applying law in practice: Weapon, tool, manual or barrier?’ written by Allan Norman.

It’s not all about law: Let’s not kill all the lawyers

An understanding of law is compulsory for the social work student. The requirement has arisen out of historic concerns arising out of research (Ball et al, 1988) and service failures, that social workers have failed to demonstrate an adequate understanding. When the Diploma in Social Work was introduced, legal knowledge was the one area where there was specific and detailed guidance about what should be covered and how it should be assessed (CCETSW, 1995). Recent social work standards documents explicitly refer to the requirement to have an understanding of the law.

In particular, the Standards of Proficiency for Social Workers in England (HCPC, 2017) require at Standard 2 that social workers are ‘able to practise within the legal and eth- ical boundaries of their profession’, which includes the following:

2.1 understand current legislation applicable to social work with adults, chil- dren, young people and families

  • be able to manage and weigh up competing or conflicting values or interests

to make reasoned professional judgements

  • be able to exercise authority as a social worker within the appropriate legal and ethical frameworks and boundaries
  • understand the need to respect and so far as possible uphold, the rights, dig- nity, values and autonomy of every service user and carer
  • recognise that relationships with service users and carers should be based on

respect and honesty

  • recognise the power dynamics in relationships with service users and carers,

and be able to manage those dynamics appropriately

My selection of these parts of that standard is intended to reflect that the require- ment to understand law is interwoven with an understanding of the nature of profes- sional judgement, of power and authority, of ethics, and of rights, among other things. The priority given to the different parts of this Proficiency Standard may well affect whether law becomes weaponised, seen neutrally as a tool or manual, or perceived negatively as a barrier.

The reference in the opening of this chapter to ‘authority generally, and to legal authority in particular’ reflects that when I introduce students to law, I start not with the idea of the law, but the concept of legal authority. This can convey both that it is a characteristic of law that it carries some kind of authority, and also that the law is not alone in possessing that characteristic. In turn, to view law as carrying some kind of authority invites thinking about the nature of law, and indeed critical thinking about whether and why the law should carry authority.

Rodriguez-Blanco (2014, p 11) observes:

Law transforms our lives in the most important way: it changes how we act and because of this it gives rise to fundamental questions. One such question concerns legal authority and individual autonomy and asks: if we are autonomous agents how do legislators, judges and officials have legitimate authority to change our actions and indirectly change how we conduct our lives?

This question, posed in respect of the relationship between law and the individual, takes on an added piquancy when revisited in the context of the relationship between law and social work: is social work an autonomous profession if its actions are tightly bound within the four corners of a restrictive legal framework?  Ife  (2012,    p 12) observes that the social work role manifests itself in different ways throughout the world, but that:

In societies such as that of the United Kingdom, social work has been seen as the implementation of the policies of the welfare state through the provision of statutory services …

Social work in the United Kingdom is thereby singled out as an example of a model constrained within the legislative framework and purpose. Social workers and students will need to be particularly astute to understand the framework of legal authority which governs their role.

One approach to opening up the different kinds of authority which the social work student will encounter is to consider the different types of question that might invite reflection in a practice situation. Table 5.2 introduces, alongside legal authority, some of the other kinds of questions that the law is not appropriately placed to address.

 

Table 5.2 Different sources of authority

 

Law What am I allowed or required to do?
Ethics What is the right thing to do?
Research/Evidence-Based Practice What has been observed to happen? What works?
Professional Standards and Codes What is considered professional behaviour?
Comparative Practice How is it done elsewhere?
Government Policy What does the government want me to do?
Policies and Procedures What do other people want me to do?

 

Students arriving on placement may have been taught law in a variety of different ways. In some institutions, legal knowledge and understanding is integrated throughout the course; in others, it is a discrete element of the course (Braye and Preston-Shoot, 2005, pp 23–4). In some institutions, law is taught alongside ethics (Braye and Preston-Shoot, 2005, p 66). In others – and indeed within the pages of this book – law and policy are grouped together. Sometimes, law is compartmentalised, with the law relating to different areas of social work practice separated out.

Table 5.2 invites certain reflections on the law with which the student arrives equipped on placement. If law and ethics for example are answering different kinds of question, then they might not point towards the same conclusion as to the right way for the social work student or practitioner to act. Practitioners cannot always avoid such dilemmas. Take, for example, the Withholding and Withdrawal of Support Regulations 2002. As their name hints, these regulations require social workers to withhold or withdraw social services support from certain categories of individuals on the basis of their immigration status. This is legislation, but there is good reason to think that there might be some conflict between such a legal obligation and one’s eth- ical or professional obligations. Humphries (2004) powerfully articulates that social workers operating such laws:

 

… have not resisted the gate-keeping and inhumane role thrust upon them. It is no wonder they are despised and feared by the people they purport to help. We can safely regard the rhetoric about anti-oppressive and anti-racist practice as harmless delusion.

If, however, law is no more than a manual telling you how to perform the social work role, then there might be no critical engagement between legal and other forms of authority such as professional and ethical authority.

A similar point might be made in relation to research into the effectiveness of different forms of intervention: the fact that a particular form of intervention is shown to be effective does not necessarily mean that it is ethical, nor that it is lawful.

Law and policy are so frequently elided that it might be surprising within Table 5.2 to see the suggestion that they are answering very different kinds of questions, and indeed that policies seem to be held out as having little authority. That, however, is an important point for the student to grasp. Policies and procedures play a prominent role within many agencies in shaping practice. Sometimes they are indeed conflated with the law in the practitioner’s imagination. However, the critical and reflective prac- titioner will understand that policies do not in themselves have any legal authority, and will reflect on issues of ethics, professional role, rights etc rather than turning uncritically to an agency policy as a manual determining how to act.

We hope you’ve enjoyed reading these sample extracts from ‘Innovations in Practice Learning! For more information or to purchase your copy of this book click here.

 

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