This first section of the learning object explores the importance of the law in both the personal and professional lives of social workers.

You will work through a series of questions that ask you to give your opinion on how you think the law functions or operates and for each question to choose between two possibilities. Don't worry if you would like to choose both - there is never a 'black and white' response to them. After you have seen feedback on your chosen response, you will be able to explore the response you didn't choose.

Do you think the law is most likely to...

  1. Affect you personally?
  2. Affect you professionally?
  3. Back

The law can affect us personally. You may have experience of:

Being involved in legal proceedings:

  • getting divorced
  • giving evidence in a criminal case
  • taking someone to court because they have done you wrong
  • acting as a juror

Being involved in the law relating to social work:

  • being a carer for an older or disabled adult or a foster carer for a child
  • having been in foster or residential care as a child
  • having been an adopted child
  • being a disabled person or having experienced mental distress

It will be important to reflect on these personal experiences as you progress through your learning. However, as a social worker the law will also affect you professionally.

The law certainly affects us professionally:

Legal rules govern much social work intervention, and must be observed by those providing services of all kinds.

  • Assessment of eligibility for community care services
  • Provision of support to families
  • Mental health service provision
  • Child protection

The legal rules are a reflection of how social issues are constructed, become politicised and are publicised through the media. The law is drawn into debates about how society should manage difficult and contested issues.

  • Asylum and immigration
  • Entitlement to welfare benefits
  • Offenders with severe mental distress
  • Domestic abuse

As a social worker you may find some legal rules in tune with professional goals and values, and others less so. How you use your legal knowledge will be affected by professional goals and values, as well as by your legal skills and awareness. However, as a social worker the law will also affect you personally.

Law can help to promote rights

Civil and political rights are enshrined in the European Convention on Human Rights:

  • The ECHR is incorporated into the UK legal system by the Human Rights Act 1998
  • Some rights are absolute (e.g. the right to life). Others may be limited by statute in national jurisdictions (e.g. the right to liberty), and others are qualified (e.g. the right to respect for private and family life) and may be lawfully infringed in certain circumstances

Social and economic rights are less well enshrined in law, although certain welfare provisions can be seen as conferring rights:

  • s.4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 effectively gives disabled people a right to assessment on request
  • s.1 of the Carers (Recognition and Services Act) 1995 providing for assessment of a carer's needs - a provision further strengthened by the Carers and Disabled Children Act 2000 and the Carers (Equal Opportunities) Act 2004

However, there are ways in which law also actively curtails rights.

There are aspects of law that provide for the restriction of people's rights:

This might be through statute that allows coercive action, or prevents actions taking place.

  • Powers under the Mental Health Act 1983 to carry out compulsory admission to psychiatric hospital
  • Prohibitions under the Immigration and Asylum Act 1999 on access to publicly funded support for people subject to immigration control

Some European Convention rights can be limited or qualified

  • Governments can specify circumstances in which they will restrict, for example, the right to liberty
  • Circumstances can warrant interference with rights, although the interference must be proportionate to the circumstances - i.e. it would not be lawful to take a sledgehammer to crack a nut

However, there are ways in which law promotes rights.

Law is often portrayed as providing clear instruction to professionals on how they should respond to situations encountered in practice.

There are a few examples of where law does provide guidance:

  • s.13 of the Mental Health Act 1983, for example, requires an Approved Social Worker to "interview the patient in a suitable manner" prior to making a decision on whether compulsory admission to hospital is warranted
  • Judges' decisions in cases can provide guidance on what constitutes good practice in particular circumstances (emphasising, for example, duties to consult with service users before key decisions are made)

However, whilst law confers powers and duties (usually on local authorities), there is often a large element of discretion remaining on how these are exercised:

  • Criteria such as 'significant harm' (Children Act 1989) are not well defined, and must be interpreted in the light of circumstances relating to each individual child
  • Criteria such as 'in need of care and attention not otherwise available' (National Assistance Act 1948) can only be applied once individual circumstances have been identified

Thus more often the law leaves discretion to professional judgement.

Most of the time, law leaves the final decision to professionals:

Law provides a range of options for action that may be taken but it does not offer clarity on exactly which option should be taken when and with whom:

  • A child who is at risk of significant harm may be protected in a number of different ways, and the power to remove a child from home does not mean that this is what will happen in an individual case
  • Identifying that the lawful grounds exist to admit someone compulsorily to psychiatric hospital does not necessarily result in this course of action

Law provides permissions to act in certain ways, but leaves the final decision to professional judgement.

  • Professional judgement must be exercised rationally and result in actions that in themselves are reasonable and lawful
  • Professionals (and agencies) can be held accountable for how they have exercised their professional judgement

However, there are times when law gives clearer mandates on how professionals should act.

It is commonly assumed that everyone is equal before the law

Administrative law enshrines principles of fairness in respect of individuals who are subject to professionals' decisions.

The law also recognises inequalities in society, and a range of anti-discrimination legislation attempts to offer individuals protection. Examples include:

  • Race Relations Act 1976
  • Race Relations Amendment Act 2000
  • Sex Discrimination Act 1975
  • Disability Discrimination Acts 1995 and 2005

But legal judgements are usually confined to the fair and lawful treatment of individuals seen in isolation, rather than notions of equity between individuals. It is less willing to engage with questions of how scarce resources should be distributed when competing claims are made. For example:

  • The judgement in R v Gloucestershire CC and Another ex p Barry [1997] 2 All ER 129 confirmed that the local authority may take resources into account when assessing the needs of a disabled person and deciding how those needs will be met
  • The court refused to overrule a health authority's decision not to allocate funding for treatment of a child with life-limiting leukaemia (R v Cambridge DHA ex parte B [1995] 2 All ER 129)

There is evidence also that the law in practice privileges some people over others.

There is evidence to show that some groups are privileged over others:

This can be through discrimination built into the legal provision itself

  • Some people with mental health problems are excluded from access to direct payments
  • Married birth fathers automatically have parental responsibility under the Children Act 1989, whereas unmarried birth fathers must be named on the child's birth certificate or apply for parental responsibility, and can lose it more easily

It can also arise through how the law is applied in practice

  • Some groups of people are more likely to receive coercive interventions - e.g. black people are more likely to be admitted to psychiatric hospital under the Mental Health Act 1983
  • Some groups of people are less likely to receive supportive or protective interventions - e.g. disabled children are less likely to be recognised as being abused

Law may certainly be seen as a social construct, reflecting dominant norms and values

This may result in outdated provision or gaps in the legal framework in relation to minorities' interests

  • The list of services that may be provided to disabled people under the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970 reflects a dominant medical model of intervention out of keeping with contemporary social models
  • Only since 2005 have gay and lesbian couples been able to create legal civil partnerships

Law may reflect how policy objectives are pursued by government, driven by ideology about how society should be organised

  • The NHS and Community Care Act 1990 was intended to introduce a mixed market economy for the welfare of adults needing support
  • Provision for Anti-Social Behaviour Orders in the Crime and Disorder Act 1998 responds to pressure on the then new New Labour government to be seen to deal effectively with challenging behaviour that was of concern within communities

However, law can also lead or change norms and values.

There are times when law can take a proactive approach to changing or developing norms and values

It may promote the interests of excluded or minority groups

  • The Disability Discrimination Act 1995 has provided much needed levers to combat the exclusion of disabled people. It has been later strengthened by the Special Educational Needs and Disability Act 2001 and the Disability Discrimination Act 2005
  • The Adoption and Children Act 2002's requirement that children have access to advocacy services helps to address the long-standing exclusion of children's views from decision-making about their care and support

It will take a position on a contested and contentious issue of the day

  • The Abortion Act 1967 made abortion lawful in certain circumstances
  • The Mental Capacity Act 2005 requires advance decisions on life-saving treatment to be respected

The law does give some support to the notion of choice and autonomy

It provides ways in which service users can make independent decisions

  • The Direct Payments Act 1996 makes it possible for service users to receive money with which they can independently purchase services to meet their assessed needs
  • The Mental Capacity Act 2005 provides for advance decisions to refuse treatment, which must be respected if later the individual loses capacity to make decisions

It requires social workers to work in partnership and to consult over decisions they make

  • Guidance to the Children Act 1989 requires practitioners to work in partnership with parents and to take into account the wishes and feelings of children
  • Service users must be consulted over proposals to change the way in which services are provided to them (e.g. when residential homes are to be closed)

More commonly, however, the law gives social workers and other professionals power to make decisions that are 'in the best interests' of the service user.

Law most commonly mandates social workers to make decisions that are in the 'best interests' of service users. This is not necessarily the same as implementing service users' own choice or preference.

The duty to promote best interests may be enshrined in statute

  • The Children Act 1989 offers the principle that the child's welfare is paramount in any decision
  • One of the grounds for compulsory admission to psychiatric hospital under the Mental Health Act 1983 is that it should be necessary in the interests of the person's health or safety

Equally the principle may be confirmed in judges' decisions in specific cases where courts have been asked to rule in cases posing professional dilemmas

  • In community care provision, whilst service users may express a preference for their needs to be met in a certain way (e.g. domiciliary as opposed to residential care), it is for the local authority to decide (R v Lancashire CC ex p Ingham and Whalley [1995] CO/774/95 )
  • Children's wishes about medical treatment have been overruled and in a notable case concerning a proposed termination of pregnancy for a 12-year old girl, the ruling for the operation to proceed was made not because she wanted it but because it was deemed to be in her best interests (Re B [1991] FCR 889)

However, the law does provide some support for service users' views to be influential on decision-making.

The law can be asked to rule on questions of individual service provision

This may be as a result of an unresolved complaint by a service user who seeks judicial review of a decision perhaps to withhold or change services

  • Halving the number of hours of service because two staff were required has been held to be unlawful (R v Birmingham City Council ex p Killigrew, CCLR December 1999)
  • The statutory prohibition (under the Immigration Asylum and Nationality Act 2002) on asylum seekers receiving public support was successfully challenged on the grounds that refusal to meet basic needs could result in breach of article 3 of the ECHR (R (on the application of Q and others) v Secretary of State [2003]AC 6 CCLR 136))

It may be to ensure a degree of oversight of decision-making

  • The requirement for a local authority to present a care plan to court when seeking a care order on a child under the Children Act 1989
  • The clarification of what constitutes continuing health care (which is not charged for) as opposed to social care (for which an individual will make a financial contribution) (R (Coughlan) v North and East Devon Health Authority [1999] AC 2 CCLR 285)

However, on a day-to-day basis the law leaves decisions on service provision to agencies and the social workers they employ.

Generally decisions on individual service provision are left to agencies to resolve.

The courts have been reluctant to 'interfere' in how an authority allocates its resources, provided its decision-making is rational and results in reasonable and lawful decision.

  • In R v Gloucestershire CC and Another ex p Barry [1997] 2 All ER 1 the House of Lords ruled that the local authority may take resources into account in when assessing and deciding how to meet need
  • In R v Cambridge DHA ex parte B [1995] 2 All ER 129 a health authority's decision not to offer a particular treatment to a child with life-threatening leukaemia was upheld

Many duties in law are discretionary duties - something that must be done if, after exercising its discretion, the local authority decides that certain qualifying conditions are met

  • s.47, NHS & Community Care Act 1990 - a local authority must decide whether an individual qualifies for assessment before having a duty to undertake an assessment
  • s.20 Children Act 1989 - a local authority must decide whether a child in need appears to require accommodation before having a duty to provide it

However, the law can on occasion rule on questions of individual entitlement.

The view that law is a core mandate for social work has certainly been expressed

In enquiries into child deaths and apparent failures of the legal and organisational systems for protecting children

  • The Report of the enquiry into the death of Jasmine Beckford in 1985 argued that social work can only be defined in terms of the functions required of its practitioners by their employing agencies, operating within a statutory framework
  • The enquiry into the death of Victoria Climbié resulted in a raft of new legal measures in the Children Act 2004, and in wholesale organisational reform

In relation to practice more generally

  • Law is one of only five subjects that form a compulsory part of the qualifying social work curriculum under guidance issued by the Department of Health
  • Legal requirements can challenge social work ethics and values - as for example in the expectation that children of failed and destitute asylum seekers can be removed from their parents' care (Immigration Asylum and Nationality Act 2002)

However, the importance of ethical codes must also be emphasised.

Ethics and values may be viewed as one of the core drivers for practice.

This is recognised in government guidance

  • Department of Health guidance for the social work qualifying degree, which requires programmes to "ensure that the principles of valuing diversity and equalities awareness are integral to the teaching and learning of students"
  • The General Social Care Council's Code of Practice for Social Care Workers describe the standards of conduct and practice within which they should work, underpinned by ethical principles

It is also recognised in law, which offers protection to practitioners wishing to act in accordance with ethical codes

  • The Public Interest Disclosure Act 1998 protects employees from victimisation if disclosing information about, for example, unlawful, criminal or dangerous practice
  • An employer may not ask an employee to act in a way that is unlawful (Gregory v Ford and Others [1951] 1 All ER 121)

However, there are circumstances in which law is prioritised as a core mandate for practice.

It is common for social workers to feel apprehensive about law

Law is seen as very different from social work

  • Law is seen as a technical and challenging subject
  • It is seen as having right and wrong answers, and thus able to catch practitioners out

Law is seen as a source of criticism - "a big stick to beat social workers with"

  • Social workers expect to be aggressively challenged and exercised by legal systems
  • Many practitioners experience court as a hostile environment in which they do not feel comfortable

However, it is possible to see the law as a source of confidence and to use it to promote sound personal and agency practice.

Social workers can draw confidence from their familiarity with legal frameworks and principles

Law can be seen as congruent with social work values

  • Using anti-discriminatory legislation such as the Race Relations Acts 1976 and 2000, and the Disability Discrimination Acts 1995 and 2005, can strengthen moral and ethical arguments for anti-oppressive practice
  • The European Convention on Human Rights, now incorporated in the UK legal framework by the Human Rights Act 1998, enshrines many principles that are familiar from a social work value base and can be used to support ethical practice

Law can support good practice in social work processes.

  • Confidentiality of personal information and data protection
  • Standards of recording

However, there is evidence to suggest that many social workers feel apprehensive about the law.

Do you think learning law for social workers is more about...

  1. Acquiring core technical knowledge?
  2. Developing skills in using knowledge?
  3. Back to Question 9

It is necessary to acquire technical knowledge of relevant areas of law. This can include:

Powers and duties that provide the framework for lawful social work practice, for example:

  • The Children Act 1989
  • The NHS and Community Care Act 1990
  • The Human Rights Act 1998
  • The Mental Health Act 1983

Law that affects the wider resources within society that are available to service users and carers:

  • Housing and homelessness law
  • Education law
  • Welfare rights legislation
  • Anti-discrimination legislation

However, law is like any other knowledge that practitioners draw upon. It can be subject to critical scrutiny, and seen to reflect dominant norms and values in society. It cannot be used unquestioningly, and must be set alongside other frameworks, such as those regulating ethical practice. Thus having the knowledge is not the whole story.

  1. Developing skills in using knowledge?
  2. Summary

Social workers must apply their legal knowledge in complex and difficult situations, in which choices must be made between options that are all less than ideal. There are no right answers, thus skills in using knowledge appropriately are essential:

To handle dilemmas encountered in practice through the exercise of judgement that draws on ethical frameworks, for example:

  • Whether to promote a service user's autonomy and independence, even where this places them at risk
  • Whether it is necessary to remove a child from their family in order to ensure their protection

To enable practitioners to review and update their knowledge:

  • Law changes quickly, particularly through case law, which is not always given high levels of publicity, and legal research skills are important in knowing where to look for up-to-date information
  • Agencies providing services can be subject to a range of competing demands and pressures, particularly upon resources, and it may be necessary for practitioners to identify elements of the legal framework with which they are less immediately familiar, in order to argue strongly for the interests of individual service users in the context of resource restraint

However, these skills must be built on the firm foundation of core knowledge about the ways in which legal frameworks are constructed, and the powers and duties they confer. Thus knowledge is important too.

  1. Acquiring core technical knowledge?
  2. Summary

So, to summarise...

Law...

  • Both promotes and curtails rights, and rights are not always absolute
  • Helps to balance people's rights, responsibilities and interests where these compete
  • Provides mandates for social work action, but leaves much room for professional judgement
  • Sits alongside ethics as one of the core frameworks for practice
  • Is an important component of ethical practice
  • Is both created by and creates social norms, which in turn influence professional practice
  • Acts as one of the 'checks and balances' in the power structures of society
  • Can be interrogated and subject to critique, just like any other source of underpinning knowledge for practice
  • Can give practitioners confidence to make sound professional decisions
  • Can be a powerful friend for social work practice

Final Comment

You will have seen from working through these questions that there are no easy or right answers. There are usually choices to be made, and a balance to be struck between conflicting imperatives. These tensions will underpin your learning, and your resolutions of the resulting dilemmas will underpin your professional development. It is important to see the choices as opportunities for practice which, whilst guided by what is lawful, is also able to take into account a wide range of knowledge to give a sound rationale for actions in the context of a strong professional value base.