Learning, teaching and assessment of law in social work education
Organising law knowledge, skills and values in education practice
Linking law learning with other sources of knowledge to create integrated understandings
Law, knowledge and values are all required because:
- Research sometimes finds little evidence of any clear and transparent application of legislation, rules and guidance (Bradley, 2003), and variable attitudes towards and use of discretion.
- Commitment to values appears insufficient to ensure ethical behaviour.
- Knowledge helps practitioners to determine how to frame issues presented by cases.
- Values and knowledge can help to counter a technical approach that emphasises managerial and gatekeeping procedures.
All three elements are required when responding to individual and collective needs because faith in one alone is misplaced. This is because:
- Codes of practice and values have had limited success in guaranteeing that professionals will undertake their ethical responsibilities, especially when codes are ill-defined or lacking in sanctions (France, 1996).
- Research evidence has found that practitioners sometimes collude with organisational misuse of power and authority, and that organisational processes can compromise employees and the legal rules (Machin, 1998; Horwath, 2000; Preston- Shoot, 2001).
- Rights can fail to address the nature of social power in society and how certain groups are excluded by its exercise (France, 1996).
- It is difficult to enforce social rights that have no clear underlying basis in civil rights (Rummery and Glendinning, 1999). The European Convention on Human Rights and Fundamental Freedoms, which is integrated into United Kingdom law, is limited to civil and political rights. United Nations’ Conventions, which are not integrated into United Kingdom law, are more expansive in their scope, including social and economic rights.
- Legal rules can be transformative but can also perpetuate power relations or prove to be a blunt instrument (Charlesworth et al, 2000).
- Social work law and social welfare law can focus on social issues, such as human rights and discrimination, and the wider systems that impact on experts by experience, but more usually focuses on individuals, their needs and the risks they present to themselves and to others. Many of the legal rules are residual in their scope and contain discretion as to when they are triggered.
- Legal entitlements can be seriously compromised by managerial and professional processes (Rummery and Glendinning, 1999).
- The track record of law is hardly commendable on people’s rights (Swain, 2002).
Reading the national occupational standards (TOPSS, 2002) and the social work benchmark (QAA, 2000) finds endorsement for the tripartite linkage of law, rights and values. Also endorsed is the view, strongly articulated by experts by experience (Braye and Preston-Shoot et al, 2005), that social workers should be 'plumbers plus’, competent technicians and well-rounded critical professionals. Experts by experience want to be involved in determining the issues that require fixing, as well as how and why, but they expect social workers to also have a view on both. They should have practical legal knowledge, a willingness to debate ethical dilemmas with service users, and an ability to defend their judgements. They should demonstrate a keen awareness of how the law impacts on people and they should scrutinise and speak about how the legal rules are constructed and used. Thus, the subject benchmark (QAA, 2000, at paras 2.5 and 2.2.4) urges social workers to think critically, whilst the national occupational standards (TOPSS, 2002, passim) require social workers to understand, critically analyse, evaluate and apply the law.
Moral or ethical orientation; law linked with values
Social work is a moral activity (QAA, 2000, at para 2.4).
Social work engages with service users with openness, reciprocity, mutual accountability and explicit recognition of the powers of the social worker and the legal context of intervention (QAA, 2000, at para 1.12). Social workers exercise authority within complex frameworks of accountability and ethical and legal boundaries (QAA, 2000, at para 2.5).
Rational or technical orientation; knowing the the legal rules
Social work education should enable students to acquire, critically evaluate, apply and integrate knowledge and understanding of the significance of legislation and legal frameworks (QAA, 2000, at para 3.1.2). Social work education includes the relationship between agency policies, legal requirements and legal frameworks (QAA, 2000, at para 3.1.1). Social workers must be able to identify the need for legal and procedural intervention, including the ability to explain to people their rights and the social worker’s powers, and to justify the need for intervention (TOPSS, 2002, at para 4.2). Social workers must be able to implement legal and policy frameworks for access to records and reports (TOPSS, 2002, at para 16.3).
Emancipatory or rights orientation
Social workers must be able to challenge discrimination and to help people regain control, if compatible with their own and other people’s rights (QAA, 2000, at para 2.4). Social work must uphold the law on discrimination (QAA, 2000, at para 3.1.3).
The tripartite connection between law, values and knowledge, skilfully applied to a situation, is also endorsed. Thus, in the subject benchmark (QAA, 2000, at para 2.3 and 3.2) legislation is only one factor when assessing human situations. Resources and service user views are also mentioned in this context. Similarly, the national occupational standards (TOPSS, 2002, at para 3.2) require that assessment of need, risks and options takes into account legal and other requirements. Service users’ needs and preferences are mentioned here.
Thus the invitation to social work educators is to broaden the vision of law teaching, to encompass the three orientations triangulated above, and use these as a means of configuring the legal knowledge, skills and values that form the core of the law curriculum.
Dilemmas - a student’s experience
The necessity of linking legal rules with rights and with values, and of drawing on other knowledge bases in addition to the law, is illustrated by the following case.
When I first started my second year placement I observed my practice assessor, who is an approved social worker, working with a street homeless African- Caribbean 67-year-old man. I was based in a statutory mental health team for the homeless. My practice assessor had been working with the service user for a year. Very little was known regarding the service user’s history and he was refusing all offers of support, for example assistance in gaining accommodation, stating that it was his choice to sleep on the streets and that he was very happy with this. He would often draw attention to other service users whom he felt were in much more need than himself. The service user would, however, happily sit and chat over day-to-day issues. My practice assessor was concerned due to the service user’s vulnerability. This was predominantly related to his age, unclear physical health status and his mental health state, the latter because of concerns that the service user may have been deluded, thought disordered and experiencing auditory hallucinations.
Although the evidence for this was low, there were two meetings which I observed with my practice assessor, a consultant and a senior house officer present, in which the service user’s presentation was considered to be 'possibly psychotic’. The service user stated that he had a higher purpose that was waiting for him after death. This might not be unusual since he was a committed Christian. The service user also stated that he heard tourists singing love songs to him which he wrote down. It was decided to assess the service user under the Mental Health Act 1983. The consultant who was responsible for the ward on to which the service user would be admitted if detained was not prepared to section him because he felt that the service user’s difficulties were more personality and socially related. However, he was prepared to accept the service user on to his ward if another Section 12 approved doctor was willing to section him. As I was leaving my placement an alternative doctor to conduct a second assessment was being sought.
I never felt comfortable with this situation and I raised my concerns with my practice assessor to a limited degree at the time. I was concerned because the service user had survived again the oldest part of the year. He had also not experienced victimisation at the hands of other street homeless individuals, which is fairly common, so I felt that his survival/coping skills were quite high. Although many of the conversations with the service user that I had observed were different, I found very little evidence of psychosis in comparison with the other service users that I met. This does not necessarily mean that the service user would not have benefited from being detained in hospital for further assessment, particularly when considering his age and unknown physical health status. However, would this have justified his loss of rights and choice when he was not a risk to himself or others?
I accept that there may have been an underlying mental health problem. I felt that the most appropriate course of action was to continue with case work and the establishment of a relationship, in order to understand the service user socially and psychologically. Although a relationship did exist, space for reflection and understanding was not being given. This could have been much more effective and supportive of the service user’s rights than an enforced spell on a psychiatric ward. The other reason why I was concerned lay in the options open to the service user after he had been sectioned as it seemed to be a value judgement that this would lead to an improved quality of life.
- What legal knowledge might guide decision making in this case?
- What legal knowledge might provide assessment and service delivery options in this case?
- What knowledge bases might be useful in order to understand the service user’s presentation?
- What ethical frameworks and values might be useful guidance?
- What skills could a social worker in training use when working with the service user and with the other professionals involved?
- How might legal knowledge, ethical models and other types of knowledge be useful in helping a social worker in training to balance competing imperatives and to negotiate dilemmas in this case?