How to improve legal literacy in social care

By Hugh Constant, SCIE Practice Development Manager.

Featured article – 3 August 2015

This article first appeared in the July 2015 edition of PS magazine, the magazine of the Private Client Section of the Law Society. See links below for more information.

Photo of Hugh Constant

It’s tempting for social care workers not to want to engage with solicitors. The former can view the latter as a threat; solicitors sometimes only seem to be encountered when something’s gone wrong, or when a letter arrives criticising a worker’s care and support. Add to this some workers’ uncertainty about the legal frameworks underpinning their work, and you could see why the legal aspects of day-to-day practice can be seen as a chore.

But of course the law shapes much that happens in social care.  And there is a lot of legal awareness among social care staff right now.  Just three examples to quote: The arrival on 1 April 2015 of the Care Act; a renewed focus on the Mental Capacity Act (MCA) following the House of Lords report into its implementation; and the March 2014 Supreme Court deprivation of liberty judgement.

At SCIE we research good practice, and use that evidence to guide social care staff – statutory, voluntary and private – and partners such as health workers, on good ways to meet people’s care and support needs.  Two areas that SCIE focuses on are the Mental Capacity Act and the Care Act, and by improving practice - and legal literacy - in these areas, we can help staff to meet their legal duties, and to feel confident using the law effectively to uphold people’s rights.

The MCA Directory

The House of Lords select committee post-legislative report into the MCA identified its “visionary” aim of empowering people to take control of their lives, and supporting them where they genuinely require others to make decisions for them.  It identified too that the Act suffers from a lack of awareness, and paternalistic and risk-averse application by health and social care professionals.    

The Government’s response, Valuing every voice, respecting every right, commissioned SCIE to pull together and review “materials that best provide different MCA audiences … with the information and tools that they require” to implement the act as its drafters intended.  This we have done with the MCA Directory, freely available to people with care and support needs, carers, and any professional who wants to use this important law to support people who may have need of its protections.

The expert panel that decided which of the resources SCIE identified, or were submitted to us, merited a place in the Directory, includes a private client solicitor with expertise in the field, because there is much in the Directory for lawyers.

We have legal blogs from 39 Essex Street, the Small Places, the Court of Protection Handbook and Mental Health Law Online.  We have links to the Law Society’s MCA Case Law Directory, and plenty of information regarding Lasting Powers of Attorney, Advance Decisions to Refuse Treatment and the like.  The Directory also links to SCIE’s huge store of MCA material, recently supplemented by a film and revised at-a-glance guidance about the Deprivation of Liberty Safeguards, and their post-Cheshire West application.

Care Act resources

But naturally the law getting the most attention right now is the Care Act.  New, challenging duties to promote wellbeing, assess eligibility against individualised outcomes, and put people at the heart of decision-making about their own safeguarding all demand a cultural shift among social workers and others.  They demand too that social care staff, who lack the time to absorb 500+ pages of statutory guidance, quickly develop a sound legal understanding of these new responsibilities.

SCIE aims to help with this.  The Department of Health has commissioned us to develop Care Act material on prevention, advocacy, assessment / eligibility, and safeguarding.  We have guidance, as examples, on the legal powers social workers have - given that powers of entry were not granted by the Care Act - to access someone who may be subject to abuse or neglect; on information-sharing duties and constraints; and on what the new law requires when assessing people with care and support needs and their carers.  Our Care Act guidance takes the form of comprehensive but readable reports, and will be updated as practice under the Act develops.

If we can help realise the aspirations of the Care Act – for a more inclusive, preventative and personalised care system – then people with care and support needs may lead better lives, and social care workers will come to see the law as an aid to them and to the people they support.   And for personal client solicitors, our material gives a useful overview of key areas in the Act, and a sense from subject experts of the challenges the social care sector faces as it implements new legislation in austere times.   

Other work that may be of interest includes guidance on accessing the Court of Protection, on councils’ legal responsibilities when there are short-notice care home closures, and a wealth of material on child abuse and neglect and other family matters. 

So have a look, and if you work in the legal world, maybe point your clients to the Directory as well.  For now it’s an opportunity, perhaps, for the legal and social care worlds to engage more for the common benefit of the people that they serve.