Introduction

Think about the following questions – refer back to Evelyn's case study if necessary.

  1. In your practice, have you encountered situations where your agency's resource position has made it difficult for you to give the response you wished?
  2. In Evelyn's case can you see a possible conflict between needs and resources?
  3. In your practice have you encountered situations where there has been a tension between upholding an individual's rights and considering the risks that they face?
  4. In Evelyn's case can you see a possible conflict between autonomy and protection, between rights and risks?
  5. In your practice have you encountered situations where there has been a tension between care and control as a basic approach to a case?
  6. In Evelyn's can you identify points where there might be a dilemma between care and control?

Eveyln's Case study

Evelyn was diagnosed with multiple sclerosis six months ago. She is 33 and a single parent with two daughters, Sophie (13) and Celeste (10). Her reduced mobility means she now probably requires a wheelchair. She finds it very difficult to get up the stairs to use the bathroom and toilet and has moved her bedroom downstairs. She is having difficulty managing her job as an administrative officer in a local firm.

Sophie and Celeste do all they can to help, but Evelyn cannot do everything she would wish as a parent. Her own elderly parents live nearby but offer only limited help because their health is deteriorating. They are worried they will soon be unable to help Evelyn and to adequately care for themselves. Before her illness Evelyn provided a substantial amount of domestic assistance for her parents.

Social workers often face dilemmas and can feel as though they are between a rock and a hard place - damned if they act and damned if they do not act, with no obvious ‘right’ way forward, yet where decisions have to be made. It would be surprising if, as a practitioner, you have not faced situations where you felt restricted by the system in how you could help an individual or family, or where you had to think very carefully about whether to support an individual’s autonomy, even though they were running risks.

Take Evelyn’s situation. Evelyn already appears to require community care services to enable her to live as independently as possible and to exercise her right to be a parent and carer. However, the local authority might have tight eligibility criteria, which might restrict her access to provision or limit the choices open to her. Similar dilemmas relating to needs and resources might affect Evelyn’s parents. There are also Sophie and Celeste to consider, which means that social workers might have to work across and bring together two departments, children and families, and adult services, negotiating through their different procedures, policies and thresholds.

Evelyn and her parents might wish to remain as independent as possible yet social workers might be conscious of the risks they will face. This is a choice point between autonomy and protection. In Evelyn’s case Sophie and Celeste must also be considered – their right to family life against the need to protect them from neglect. This requires a fine balance between care and control in approaching their needs.

Social workers need the knowledge and skills to manage these dilemmas. They also need good supervision. The legal rules comprise one source of knowledge in order to do things right. However, to manage the landscape in Evelyn’s case, technical competence in the legal rules must be coupled with ethical goals, locating the law in professional morality in order to do ‘right things’. Finally, the law and values need to be joined by practice informed by social justice and human rights. This critical understanding might be termed ‘right thinking’.

So, practice is full of dilemmas. Let’s look in detail at some of these dilemmas.

Legal points

The GSCC Code of Practice recognises that a balance needs to be struck in each case. Thus, social workers must promote the independence of service users and carers while protecting them as far as possible from harm. They must respect the rights of service users while seeking to ensure that their behaviour does not harm themselves or other people. They must recognise that service users have the right to take risks and help them to identify and manage the risks to themselves and others.

The right to respect for private and family life (article 8 of the European Convention) may be qualified by public organisations providing that they intervene according to law and that their intervention is necessary and proportional.

Supporting references

Braye, S. and Preston-Shoot, M. (2006) Resource Guide; Teaching, Learning and Assessment of Law in Social Work Education. London: Social Care Institute for Excellence.
Braye, S. and Preston-Shoot, M. (2006) ‘The role of law in welfare reform: critical perspectives on the relationship between law and social work practice’. International Journal of Social Welfare, 15, 19-26.

Explore practice dilemmas

Practice is full of dilemmas. Choose which tricky issue you want to explore:

Accountability

Click on one of the characters to see their viewpoint and read the legal points involved.

Manager

"The volume of work is such that assessments have to be completed in a timely fashion. Whilst in an ideal world social workers would spend time building up a relationship, current workloads do not allow this and assessment frameworks provide a clear idea of the areas that must be covered when assessing need. What is important here is that the authority meets its targets in respect of the management of referrals.

I expect social workers to follow the procedures and policies laid down by the authority. That should be their reference point."

Dilemma

So, when working here what will be your reference point? The authority's own procedures? The framework contained in the policy and practice guidance?

Evelyn's parents

"We have heard stories of how social workers visit people but take no notice of what they hear. They are in and out so quickly, it is almost that they have made up their minds before visiting. We feel that we are the best people to understand our own situation so we will expect you to stay long enough and come often enough to appreciate how we see our position. So, what will you do if your bosses expect you to conclude our case quickly?"

Dilemma

Stick to the timetable imposed by your employer? Continue to visit until you have a full understanding of our needs?

How do you balance the need for relationship-building with the demands of performance management?

Evelyn

"If we are going to work together I want to know that you will be there for me. If that means that you will have to disagree with how your organisation wants you to approach my case, I want to know that you will be on my side."

Dilemma

So, where do your loyalties lie? With Evelyn? With the employer? With the Code of Practice? With yourself?

Lawyer

“The law is one tool for accountability. It sets the territory for professional practice, which must be lawful. It provides channels through which accounts must be given and redress can be sought. It establishes a framework for promoting human rights and achieving social justice. Where an employer sanctions unlawful or unethical practice, the legal rules now clearly uphold the practitioner’s code of practice as the primary reference point.”

Legal points

The Code of Practice is clear that social workers are accountable for their work and that this means working in a lawful and effective way. The parallel code for social care employers requires that agencies have and promote procedures for reporting and tackling dangerous practice. Case law is clear also that employers must not require or encourage their employees to act unlawfully. Moreover, in the relationship between an employer and employee is a contract that the employee will draw on their professional values, knowledge and skills and the employer will not require the employee to practise in a manner contrary to them. The benchmarks here are the Code of Practice since it is the registration of the individual social worker that is open to challenge, the statutory mandate, and best practice defined as being how a reasonable professional would have acted.

Supporting references

Preston-Shoot, M. (2000) ‘What if? Using the law to uphold practice values and standards.’ Practice, 12 (4), 49-63.

Braye, S. and Preston-Shoot, M. (2001) ‘Social work practice and accountability’, in L.A. Cull and J. Roche (eds) The Law and Social Work. Basingstoke: Palgrave.

Practice standards

Click on one of the characters to see their viewpoint and read the legal points involved.

Manager

"Resources are very tight, that is why we have set high thresholds for access to services. We have to live within the budget handed down to us and I expect social workers to accept that. It would be great if we could prioritise early intervention but all we can afford is to respond to high level risks. Is that not reasonable after all?"

Dilemma

How can needs be met when resources are limited?

Legal points

Just how then should social workers respond to the dilemma of needs versus resources? The Code of Practice requires that social workers bring to the attention of their employer or an appropriate authority resource or operational difficulties that interfere with the provision of safe care. They must also inform their employer or appropriate authority where the practice of colleagues may be unsafe or adversely affecting standards of care.

Evelyn's parents

"We read in the newspapers that local authorities are short of money and that people who should be receiving help are being turned down. We are not asking for much but we cannot manage without some assistance, especially now that our daughter is ill herself. Yet we know of people like us who have been turned down. So, can we know how you will decide whether or not to help us?"

Dilemma

What criteria should be used when judging whether needs should be met?

Legal points

Just how then should social workers respond to the dilemma of needs versus resources? The Code of Practice requires that social workers bring to the attention of their employer or an appropriate authority resource or operational difficulties that interfere with the provision of safe care. They must also inform their employer or appropriate authority where the practice of colleagues may be unsafe or adversely affecting standards of care.

Evelyn

"Social workers have heavy workloads and each case is different. However, they need to get the law right and they must have skills in managing their workload. I have heard so many stories about bad practice, where social workers have got things seriously wrong. How do I know what standards to expect and to insist on? I know what I will value in working with a social worker – someone who gives me time, who builds a relationship with me, and who is open and honest. Is that what I have a right to expect?"

Dilemma

What practice standards should be applied - the expectations of service users, the principles of the profession, or the targets set by performance indicators?

Lawyer

“The law is one tool for promoting good practice and for challenging poor agency practice. The standards of practice that Evelyn and her family can expect have begun to be spelled out through the legal rules. Social workers should be challenging resource-dominated practices and arguing authoritatively for decisions that have a reasonable chance of meeting assessed needs.”

Legal points

Just how then should social workers respond to the dilemma of needs versus resources? The Code of Practice requires that social workers bring to the attention of their employer or an appropriate authority resource or operational difficulties that interfere with the provision of safe care. They must also inform their employer or appropriate authority where the practice of colleagues may be unsafe or adversely affecting standards of care.

The Code of Practice for social care employers requires that agencies have policies on confidentiality, equal opportunities and record keeping. They must have systems to enable reports to be made of inadequate resources or operational difficulties that are impeding the provision of safe care, which must then be addressed.

A failure to meet assessed needs or where there are unreasonable delays in doing so, can infringe Article 8 rights to respect for private and family life. Indeed the Human Rights Act 1998 has meant that courts are now prepared to hold public organisations accountable for damages arising from negligence. Cases involving social services have included the provision of misleading or incomplete information on which service users had relied and the failure to investigate thoroughly complaints about the standard of care.

On resources, local authorities may take their financial position into account when setting eligibility criteria, as long as these are not operated so restrictively to deny any consideration of what an individual might need. They may also take resources into account when deciding what services to provide but the financial position must not become so dominant in decision-making that a plan of intervention has no realistic prospect of meeting the needs identified.

Supporting references

R (Bernard and Another v Enfield LBC [2002] 5 CCLR 577.

Barrett v Enfield LBC [1999] 3 All ER 193.

W and Others v Essex CC and Another [2000] 2 All ER 237.

Confidentiality & Data protection

Click on one of the characters to see their viewpoint and read the legal points involved.

Manager

"In order for the authority to conduct a full risk assessment and needs assessment, it is vital that as much information is collected as possible and, where necessary, shared with those involved. However, we must not promise to keep information confidential in case issues of neglect and abuse arise that must be investigated, although we can protect our sources of information when that promotes the welfare of children. So, we can reassure Evelyn’s parents about not disclosing where concerns may have come from but we cannot undertake to keep confidential what Evelyn might tell us. Is that not right?"

Dilemma

How do you decide what information can be held confidentially, and when it must be disclosed to others?

Evelyn's parents

"We are very concerned about our daughter and grandchildren but they must not know that we have talked to you about these things. Sophie and Celeste are having to do so much for their mother and increasingly are having to look after themselves. There are days when Evelyn is unable to do anything. She is in a lot of pain and gets very down. You will not tell her we said so, will you?"

Dilemma

How far can you agree to Evelyn's parents' request?

Evelyn

"I have heard about social workers. They take children away. If I tell you about the problems I am experiencing at the moment you might think less of me and decide that I am not a fit mother. I have known that to happen to other disabled parents. So can you promise not to tell anyone else what I say?

I would also like to see what you write down about me so that I can check what you really think. I would like to see the notes you keep please. I can, can’t I?"

Dilemma

How far can you agree to Evelyn's request?

Lawyer

“There are clear rules in the Data Protection Act 1998 concerning when and to what degree service users can have access to their files, and when information can be shared between social workers and other professionals. The Human Rights Act 1998 adds an additional dimension here because any interference with an individual’s right to respect for private and family life must have clear goals and the degree of such interference should be just sufficient to achieve the desired objectives.”

Legal points

The Code of Practice requires social workers to respect confidential information and to clearly explain agency policies on confidentiality to service users and carers. This would include the fact that Article 8, the right to respect for private and family life, may be qualified when this is necessary and proportional, and when it is done according to the legal rules. These reside in the Data Protection Act 1998, which lays down the circumstances when information can be shared between agencies responsible for young people and adults who are vulnerable. This Act also lays down the circumstances in which particular types of information can be withheld from Evelyn when she reads her file.

The legal rules in relation to child protection and investigation of abuse of adults also identify the circumstances when information can be shared between agencies responsible for investigation, prosecution and people’s protection.

Case law has established that local authorities can protect their sources of information when investigating the possibility that children may be suffering significant harm.

Supporting references

Statutory Instrument 2000/415 Data Protection (Subject Access Modification) (Social Work) Order 2000.

Department for Education and Skills (2006) Working Together to Safeguard Children. London: The Stationery Office.

Department of Health (2000) No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse. London: The Stationery Office.

Inter-agency working

Click on one of the characters to see their viewpoint and read the legal points involved.

Manager

"Other agencies and professionals are sometimes very reluctant to give us the information we need to complete an assessment. Can we insist on the provision of information? Sometimes it is very clear what responsibilities other agencies have but they refuse to meet their obligations. We cannot force them so we end up having to make provision. That cannot be right, can it?"

Dilemma

How can all the agencies involved be brought together when they work to different norm and standards?

Evelyn's parents

"We avoid doctors when we can. We prefer to manage on our own. You won’t contact the General Practitioner, will you?"

Dilemma

Should you contact their doctor without their consent?

Evelyn

"I have a very good relationship with my doctor, who will tell you what you want to know. Do you want to contact my doctor? I do not want you to contact Sophie and Celeste’s teachers – there are no problems at school. You won’t, will you?"

Dilemma

Should you contact Evelyn's doctor and the schools without her consent? Do you need to talk to Sophie and Celeste about talking to their schools?

Lawyer

“Duties towards children in need under section 17, Children Act 1989, fall on the local authority in whose area the child is present. Arguments should not delay the provision of services. Local authorities must co-operate.

Where there are not concerns about safeguarding and promoting the welfare of children or vulnerable adults, permission from service users should be requested before contacting other professionals involved in a case.

There have been longstanding concerns about inter-professional co-operation. In the field of child care and child protection, the Children Act 2004 and the 2006 revision of Working Together policy guidance are attempts to ensure that there is a co-ordinated policy and practice approach at local level.”

Legal points

Where a need that exists that cannot be met or will not be met by other agencies, despite their legal duties being clear, social services must make adequate provision.

The requirements for inter-agency co-operation in cases involving protection are clearly laid out in policy guidance.

Legal rules for co-operation between health authorities and social services may be found in the NHS Act 1977 and section 46, NHS and Community Care Act 1990. They are phrased in terms of co-operation when reasonable, practical and necessary. In relation to young people, the legal rules are contained in sections 27, 28, 30 and 47, Children Act 1989, and in the Children Act 2004.

Supporting references

R v Northavon District Council, ex parte Smith [1994] 26 HLR 659.

Department for Education and Skills (2006) Working Together to Safeguard Children. London: The Stationery Office.

Department of Health (2000) No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse. London: The Stationery Office.

R (M) v Barking and Dagenham LBC and Westminster CC (interested party) [2003] 6 CCLR 87.

Children Act 2004.