Learning, teaching and assessment of law in social work education
Innovation in learning, teaching and assessment of law in social work education: What should the content of law teaching be?
It is not the purpose of this guide to prescribe law curriculum content. Indicators of the range of legislation and other aspects of practice in applying law that might be included are covered in Section 1 (and may be found in further detail in the knowledge review itself; see Braye and Preston-Shoot, et al, 2005). Here we have highlighted aspects of the curriculum that are being newly developed in response to developments in the legal framework, or ideas for raising the profile of skills in using the law.
Developing the human rights content of law teachingOpen
The incorporation of the ECHR into the UK legal framework (through the Human Rights Act 1998) has enormous importance for social work. It merits specific and detailed focus in law teaching.
Human Rights Act 1998 - University of Manchester
Please work individually on the tasks below. By the end of the three-week period of guided study you should have a reasonable understanding of the Human Rights Act and the way in which it is judicially applied under particular circumstances.
Go to www.dh.gov.uk/PolicyandGuidance/EqualityandHumanRights/ HumanRights/fs/en and click on 'Questions and answers’. Read the text and consider the relationship between the Human Rights Act and the ECHR.
Follow some of the links provided to explore the Act further. In particular you should visit 'Human Rights case studies’, which details some important European and domestic cases. You will find further detail on the cases at www.echr.coe.int/ (European Court of Human Rights). Of particular interest in relation to child care and protection is Z and Others versus United Kingdom, 10 May 2001 (Application No 29392/95).
You can read the Human Rights Act 1998 at www.hmso.gov.uk/acts/ acts1998.htm
In the newspaper database in the library, find the article titled 'Law, the rights stuff’ by Clare Dyer in The Guardian, 2 October 2001, p 16. What does the article tell you about the impact of the Strasbourg Court on domestic law?
Again in the newspaper database, find 'Society: Social care: free thinking’ by Matthew Brown in The Guardian, 7 February 2001, p 11. What conclusions does the article draw about the potential impact of the Act?
You might also find it useful to look at one of the following texts: Hegarty, A. and Leonard, S. (eds) (1999) Human rights: An agenda for the 21st century, London: Cavendish Publishing; Swindells, H., Neaves, A., Kushner, M. and Skilbeck, R. (1999) Family Law and the Human Rights Act, Jordans Limited.
From your research, can you think of any potentially negative implications of the Human Rights Act?
Now try and answer the questions below. We will discuss what you have learned in a whole group session at the end of this period.
- When was the Human Rights Act 1998 implemented?
- Has the Act been implemented fully or only in part?
- The Act is designed to protect human rights. Where are these rights identified?
- What does Section 3 of the Human Rights Act say?
- What action can someone take under the Act if they think one or more of their rights has or will be violated? Does the Act cover violations of human rights by any action of the Houses of Parliament?
- What remedies are available under the Act for someone whose rights have been or will be violated by the actions of a public authority? What is the relevant section of the Act governing remedies?
- What rights does Article 6 protect?
- What rights does Article 8 protect?
- What rights are particularly relevant to social work intervention?
- Think of some examples where social work intervention might be in danger of violating an individual’s human rights.
- Is the Children Act 1989 compatible with the rights protected by the Human Rights Act? What would a court do if it decided part of the Children Act was incompatible?
- Can a court be called to account for the violation of someone’s human rights?
Students can be expected to access material through use of web-based resources that will maintain an up-to-date perspective, for example:
Websites useful for human rights material
- Human Rights Unit (www.humanrights.gov.uk): government unit set up to ensure the successful implementation of the Human Rights Act 1998
- Northern Ireland Human Rights Commission (www.nihrc.org): raises awareness about human rights in a Northern Ireland context and seeks to promote and protect human rights in law, policy and practice
- United Nations (www.un.org): an international organisation formed to promote peace, security and cooperation
- United Nations Children’s Fund (www.unicef.org): gives assistance particularly to developing countries in the development of child health and welfare services
- International Federation of Social Workers (www.ifsw.org): a global organisation striving for social justice, human rights and social development through social work and international cooperation between social workers and their professional organisations
- International Council on Social Welfare (www.icsw.org): an international, non-governmental organisation operating for the cause of social welfare, social justice and social development, working actively with the United Nations
- International Consortium for Social Development (www.iucisd.org): an organisation of practitioners, scholars and students in the human services, seeking to develop conceptual frameworks and effective intervention strategies geared at influencing local, national and international systems
- Conference of Non-Governmental Organisations (NGOs) in Consultative Relationship with the United Nations (www.ngocongo.org): an international, not-for-profit membership association of NGOs, facilitating the participation of NGOs in United Nations debates and decisions
- Child Rights Information Network (www.crin.org): works to improve the lives of children by meeting the information needs of organisations and individuals who are working for children’s rights, supporting the implementation of the United Nations’ Convention on the Rights of the Child
- Global Movement for Children (www.gmfc.org): formed to facilitate citizen action and obtain the commitment of key actors in all sectors of society to make a real difference in the fulfilment of children’s rights
- British Institute of Human Rights (www.bihr.org): an independent charity that raises awareness and understanding about the importance of human rights
Human rights analysis can be usefully developed through guided study of legal cases.
Legal case analysis - University of Manchester
Students are asked to read the following case commentary in preparation for the class:
Smith, C. (2002) 'Case commentary: human rights and the Children Act 1989’, Child and Family Law Quarterly, vol 14, no 4, pp 427-45.
Students are then asked to discuss in small groups one of a range of questions:
- What were the legal and 'care’ issues informing relationships between local authorities and the courts that provided the context for these appeals? (Group 1)
- What were the grounds of appeal to both the Court of Appeal and the House of Lords in these cases? (Group 2)
- What do the appeals tell us about the judicial interpretation of human rights as these are identified in the ECHR and protected by the Human Rights Act? (Group 3)
- What did the Court of Appeal do in relation to these cases and arrangements to protect relevant human rights more generally? (Group 4)
- How did the House of Lords respond to the case(s) and to the decision in the Court of Appeal, and what were the grounds for its reasoning? (Group 5)
- Consider the reasoning in these cases and see if you can identify situations involving adult service users where the law might be informed by similar principles and decisions. (Group 6)
Other examples of fruitful cases studies appear below, but again it is important that cases used are as up to date as possible.
Mabon versus Mabon and others  WL 1185500 EWCA 634. A case that established that children of sufficient age and understanding can have representation separate from the children’s guardian.
JD (FC) (Appellant) versus East Berkshire Community Health NHS Trust and others and two other actions (FC)  UKHL 23. A case that by a majority decision determined that a duty of care is owed to children but not to parents in child protection investigations.
W and Others versus Essex CC and Another  2 AllER 237. A case that established that local authorities could be sued for negligence and that, in exceptional circumstances, individual social workers might also be liable where their practice significantly departed from what a reasonable practitioner would have done.
Z and others versus UK  2 FLR 612. A case that found breaches of Article 3 and Article 13 of the European Convention by a local authority failing to protect children from abuse and neglect.
R (SSG) versus Liverpool CC and Secretary of State for the Department of Health and LS (interested party)  5 CCLR 639. A case that resulted in a change to the Mental Health Act 1983, as a result of Article 8 of the ECHR, so that the nearest relative rules did not discriminate against same gender partnerships. R versus North and East Devon Health Authority, ex parte Coughlan  2 CCLR 27. A case that outlines the procedures to be followed by authorities when they are seeking to close residential and nursing care homes. The case also clarifies the relationship between rights under Article 8 of the ECHR and decisions about care provision.
Teaching students how to reason and advance a legal argumentOpen
Rarely in social work will there be a single 'right’ answer in a given situation. Instead, social workers will be bringing together evidence that points to one course of action or another, and weighing this in the balance - such is the nature of professional judgement. The law will not give prescriptive answers, but can nonetheless contribute to constructing a sound rationale for whichever course of action is chosen, as recognised in this module outline.
Developing professional judgement - University of Wales Institute, Cardiff
The law is not as clear and prescriptive as may be believed. The dilemma for the practitioner is knowing when to apply a piece of legislation. This requires a breadth of knowledge of what legislation may apply in a given practice situation, and the skills to decide what, if any, legislation is the most appropriate. How will the application of particular pieces of legislation impact on the service user? How does the legislation help or hinder the work of the social worker in that particular practice situation? There is not always necessarily one right answer. Each situation is different and what is required of the practitioner is that they are clear and accountable about what legislation they applied, and why they chose to apply it in that particular instance.
The following questions enable social workers in training to critically reflect on practice incidents and then to reason through and advance a social work law argument. The legal rules can be set alongside professional values and knowledge for practice. Skills in presenting practice judgements can be developed. Tensions between agency policy, legal rules, values and knowledge bases, for example surrounding confidentiality or duty of care, can be explored and resolved.
Critical reflection on case studies
- What is the legal status of those involved - what legal definitions might apply to their situation (for example 'child in need’, 'disabled person’)?
- What statutes permit involvement?
- What statutes require involvement?
- What powers and duties are relevant here?
- How do they frame the social work role and task?
- What are the purposes of involvement here, with reference to the law, professional values and knowledge for practice?
- What rights and responsibilities do people involved here have?
- Who has what needs?
- What risks exist?
- What knowledge would be useful and why?
- What are the legal issues here (for example, capacity, evidence)?
- What skills are needed here (for example, advocacy, recognition, analysis, assessment, decision making)?
- What is the agency’s policy here and what issues does this present with reference to the law, professional values and notions of good practice?
- What does the law say about competence, vulnerability, discrimination, childhood, disability etc? How does this compare with professional values and social work’s understanding of good practice? What are the implications for practice here?
- What practice dilemmas may arise and how might they be negotiated with reference to the legal rules, values and knowledge-informed practice?
- What would you do here? What is your justification (law, values, knowledge, definitions of good practice)? What intervention may be appropriate and why? What are the benefits and costs of this intervention, in comparison to others which might be equally feasible and lawful?
Connecting social work law learning with the policy and practice contextOpen
The modernisation agenda has been underpinned by legal rules, together reshaping the organisational context and skills for social work practice. Tracing the connections between government objectives as expressed in policy, the legal rules devised to further those objectives, and the impact on social work practice can help students see the importance of their legal understanding. The following example draws on the English legal system. Different legal contexts can be used here to illustrate the position in respect of all four nations within the UK. For example, if examining the principles of 'quality’ or 'protection of users’ in relation to Northern Ireland, the relevant legal rules would include the Health and Personal Social Services (Quality, Improvement, etc) (NI) Order 2003 and the Protection of Children and Vulnerable Adults (NI) Order 2003. 'Responsiveness and flexibility’ in a Northern Ireland context would include the Carers and Direct Payments Act (NI) 2002.
Tracing the legal rules from social policy to social work practice Modernisation agenda principles Legal rules Impact on social work Protection of users from abuse and poor practice
Public Interest Disclosure Act 1998 Care Standards Act 2000
- Workforce registration
- Registering/inspecting provision
- Registers of people unsuitable for social work
Changing the balance of power between social workers and their employing agencies Authority to challenge unethical, unlawful and unreasonable policies Clarity of role Responsiveness and flexibility in meeting need Quality Protects Community Care (Direct Payments) Act 1996 Promoting choice and independence Coordination
Health Act 1999 Health and Social Care Act 2001 Children Act 2004
- Creation of trusts
- Pooled budgets and staffing
New skill mixes Mandate for multiagency working Consistency of services
Fair Access to Care Services Framework for Assessment of Children in Need Care Standards Act 2000
- National service frameworks
Researching and using current knowledge of best practice Standards for provision Quality
Human Rights Act 1998 Care Standards Act 2000
- Creation of regulatory councils and SCIE Local Government Act 1999
- Best value
Evidence-based and research-informed practice Deciding levels of intervention Managing use of resources Continuing professional development
Identifying the content of the practice curriculumOpen
If opportunities to maintain students’ law learning while on placement are to be maximised, it is important for programmes to give thought to the practice curriculum. Practice learning provides unique opportunities to promote learning, which need to be maximised in relation to law, hitherto often a 'lost element’ of the practice curriculum.
The following diagrams (Braye, 1993) illustrate a student’s learning processes in placement and indicators for how competence to practise social work law develops during practice learning.
First it is important to note that the transition from creating ready-made solutions to 'cases' in the classroom, towards more custom-built solutions based on learning from doing in the reality of the placement context.
Pathways to competence and confidence in using the law are by no means uncomplicated. Students on placement must negotiate a number of challenges in their learning: myths, assumptions and stereotypes about the law; the shift in styles of thinking from deductive application of knowledge to inductive processes based in practice experience; practice dilemmas arising from the lack of clear 'right' answer; value dilemmas arising from the nature of the legal mandate and its impact upon peoples' lives.
Within the familiar processes of gathering information, reflecting, decision-making and intervention, it is possible to integrate legal knowledge and skills, ensuring that this dimension of practice is considered alongside other features of assessment and decision-making.
The outline below identifies the law learning outcomes that might be sought through practice learning (adapted from Ball et al, 1995).
Law learning outcomes for students on placement
Student and agency
- Ability to identify and understand the law that informs the work of the agency
- Ability to identify social work law within agency procedures and to distinguish agency policy from social work law
- Ability to implement the relevant legislative framework and to evaluate its impact
- Skills in recording and report writing, demonstrating awareness of rights of access to records and the purposes of and case law standards for records and reports
Student and service user
- Ability to identify the key legal concepts, areas of law, powers and duties in each work situation
- Ability to consider alternative ways of using available legal mandates in a case and, from this, to negotiate a role with the service users involved
- Ability to use different forms of authority appropriately
- Ability to recognise and manage the dilemmas or conflicts derived from the application of social work law to practice, such as the potential for conflict between autonomy and protection
- Skills in maximising service users’ rights to choice, privacy, confidentiality, autonomy, access to services and participation
- Skills of assessment, decision making and intervention, which demonstrate engagement and working in partnership with service users where the legal mandate requires particular action
Student’s own professional development
- Ability to differentiate between statute, regulations, policy and practice guidance, and case law
- Ability to evaluate social work law critically in relation to anti-discriminatory practice
- Ability to enquire into and explore legal and social work issues and knowledge in relation to work being undertaken
- Ability to understand how social work law contributes to role conflict, uncertainty and ambiguity in practice, with subsequent development of skills in managing the dilemmas and conflicts between different roles and sources of authority
- Ability to question how personal values, beliefs and experiences influence views of law, assessment and options being considered, and interactions with service users
- Ability to identify how legal rules and codes of conduct guide social workers when reviewing the lawfulness and ethics of agency policies, procedures and requirements, with subsequent skill development in presenting arguments to managers
Analysis of critical incidentsOpen
Practice learning arises from cases, group work and community development. Social workers in training can derive law learning from working through scenarios or critical incidents, or from an audit of agency policies and procedures against statute, guidance and case law. Critical incidents might arise, for example, around questions of confidentiality and information sharing, or from questions about the duty of care owed to children and their parents when engaged in child protection investigations, or from intervention to restrict liberty. Practice dilemmas arise, for instance, when investigating older age abuse and can be analysed by reference to legal mandates, professional values, messages from research and inquiries, and different orientations to practice. Irrespective of the content of the learning opportunity, it is important to maximise its law learning potential.
Questions for practice teachers, to facilitate law learning from a practice context (building on Preston-Shoot, 2000b)
- What areas of social work law might be relevant in this critical incident/ case/exercise?
- What areas of social welfare law might also be relevant?
- What professional values might be relevant and how might they interface with the legal knowledge required?
- What legal skills will this learning opportunity require of the student?
- What tensions might arise between the law, professional values and agency policy?
- How will you approach the first and subsequent supervision sessions in relation to integrating law learning with this learning opportunity?
- What resources might the student find useful?
- What would your expectations be of the legal knowledge and skills demonstrated by a first/second year student?