Learning, teaching and assessment of law in social work education
Innovation in learning, teaching and assessment of law in social work education: Why teach law?
Helping students engage with law as a component of social work educationOpen
Law is a prescribed element of the curriculum (DH, 2002). However, in presenting to students the rationale for law learning, educators can include a broader range of factors than merely those relating to technical knowledge.
Discussion with social workers and students has identified that in practice the legal rules are open to manipulation, abuse and unlawful interpretation. Preston-Shoot (2000a) has provided some examples. Instances of this provided by experts by experience include:
- social workers exploiting people’s lack of knowledge to deny them access to assessment, services (such as direct payments) and complaints procedures
- managers providing misleading advice and direction about when and how an agency can balance resource considerations against need, or about what particular legislation mandates, requires or enables
- an agency’s refusal to listen to another’s concerns about risk to a young person or adult
- agencies failing to connect child care with adult services legislation in respect of disabled parents
- agencies enforcing blanket policies and practitioners being uncertain whether and how these can be challenged
- uncertainty about what information can be shared and with whom, for instance about sex offenders or people who have been investigated but not prosecuted.
It is important not to underestimate the space created by the legal rules for practitioners to promote individual and social change. For instance, there are few absolute duties in social work law. Most are discretionary and the key task is to ensure that students and social workers know how that discretion should be exercised, drawing on values, knowledge and statutory guidance, and are skilled in its use to support sensitive, innovative and informed practice. The legal rules can be used to promote social inclusion, human rights and citizenship, to enhance human caring and to counteract discrimination and exclusion, providing this discourse is revealed in learning about the shape, content and application of the legal rules. This understanding can help students to understand the complexity of the relationship between law and social work.
Why study law?
- Law can both enshrine and curtail rights, and is therefore an important component of ethical practice
- Law is a core mandate for social work practice, and as such demands critical analysis and understanding
- Law is a social construct reflecting society and culture
- Law is an outcome of politics and ideology
- Social work should be commenting on social conditions from which legal rules emerge or change
- Legal knowledge and skills enable social workers to work alongside service users, to help them secure their rights and achieve positive outcomes
- Legal knowledge enhances negotiating powers and helps promote lawful agency practice
- Social workers need to engage authoritatively with legal practitioners and settings
- Knowledge can decay over time and practitioners need skills in updating their legal understandings
- Practice in agencies is influenced by other imperatives that can lead to practice that is, knowingly or unconsciously, unlawful
- Practice can be lawful but unethical, and practitioners need to be able to engage with the interface between law and ethics
Objectives for law learning
- To acquire technical knowledge of the legal rules and skills in researching law
- To locate law learning and practice in an ethical base
- To locate law learning and practice in a rights-based framework
- To acquire knowledge and skills to critique the use of legal rules
Understanding the purpose of legal knowledgeOpen
The social work law curriculum is, in part, about enabling knowledge acquisition. However, knowledge for what? By applying one model (Shaw et al, 2004), which conceives of four uses of knowledge to social work law learning, the purpose of learning might be presented as:
To develop understanding How do the legal rules strike a balance between conflicting imperatives, such as autonomy versus protection and rights versus risks, which social workers must routinely navigate? To develop, analyse and review policy How is judicial interpretation of human rights legislation impacting on policy? To develop, analyse and review practice How do organisational policies, procedures and cultures compromise lawful and ethical practice? How can practitioners draw on legal knowledge, such as policy guidance, to support ethical practice? To develop research- mindedness How can legal research skills be used to identify and update relevant knowledge? What research evidence exists on the outcomes of action using legal powers and duties?
Such knowledge, applied in practice situations, might challenge lack of confidence, for example when working alongside legal practitioners, and assist practitioners in negotiating difficult encounters with service users. So, taking the impact of restrictive organisational policy on practice as an example of a dilemma encountered by social workers, learning might focus on the legal rules relating to employer/employee relations, professional registration, whistle blowing and accountability/duty of care, how they contribute to understanding, policy analysis and practice development and where research effort might focus to uncover helpful sources.
Staging students’ learning and building critical competence as a learning objectiveOpen
In two and three-year programmes, educators have an opportunity to visit and revisit law in different ways. Learning outcomes should enable students to acquire and build on knowledge and skills in a developmental way as they progress through a programme, and from one (undergraduate) programme to another (postgraduate). This necessitates a phased approach to the introduction of critical perspectives on the core knowledge base as students develop their subject-specific understanding and their generic intellectual skills. The example below illustrates how differentiation is preserved between two different undergraduate levels, incorporating critical reflection as students progress from level 1 to level 2, while still leaving potential for further development at postgraduate (M) level.
Staged learning - Liverpool John Moores University
Level 1: Introduction to Social Work Law
This module aims to provide a general introduction to the English legal system and to key areas of social work law, and a consideration of legal rights and values. After completing the module students should be able to:
- demonstrate an understanding of the legal system
- access and use legal resources
- discuss ways in which the law can provide and protect rights, and counter discrimination
- demonstrate an understanding of the key principles of child care law, community care law, mental health law and criminal justice.
The module is assessed through a two-hour, seen exam, consisting of case studies for which students are able to gather relevant legal information and plan their answers.
Level 2: Law for Social Work Practice
This module aims to build on existing knowledge of social work law, to provide a greater insight into the legal context of social work practice and thus help provide the legal skills and understanding expected of a social worker. After completing the module students should be able to:
- demonstrate an ability to apply relevant law in social work practice and have a critical and analytical understanding of service delivery standards and the powers and duties of social workers
- demonstrate a working knowledge and understanding of key areas of welfare law that are significant to service users
- analyse the tensions and dilemmas that arise in the implementation of the law in social work practice
- demonstrate a commitment to the anti-oppressive practice of social work law.
The module is assessed through coursework consisting of two case studies of 1,500 words.
Level 4: Law for Social Work Practice
In this module students critically examine current social work law and its underlying principles and values, to evaluate the legal context of social work practice and thus help provide the legal skills and critical understanding expected of a social worker. After completing the module students should be able to:
- demonstrate expertise in knowledge and understanding of the significance and limitations of the law in providing and protecting rights and countering discrimination, and the ways in which the law might be used to promote anti-oppressive social work practice
- display competence in handling a complex area of legal knowledge and skills; display understanding of the key principles and legal framework for child care law, community care law, mental health law, criminal justice law and key areas of welfare law that are significant to service users; apply relevant current law to social work practice, and know how to independently update and research legal knowledge and understanding
- critically analyse the tensions and dilemmas that arise in the implementation of the law in social work practice.
Helping students to develop a critical perspective on lawOpen
If we accept that students should be critical thinkers as well as plumbers, how might critical perspectives on law be reflected in learning and teaching? One way is to provide a conceptual frame for understanding the complexity of the relationship between law and practice.
It is not uncommon for law to be presented as the clear map which should, above all else, guide social work practice. Students can be introduced to a critique that interrogates this assumption (explored in greater detail in Braye and Preston-Shoot, 2006b).
- Library exercises and quizzes can be used to illustrate how law is drawn from a range of sources, such as government guidance and judicial decisions. Such research should cause students to look beyond statute (an example of a quiz follows later in this section).
- The redrawing of the legal maps, through the evolution of the legal framework, can be demonstrated by comparing and contrasting different areas of law. The development of youth justice law since 1991, for example, can be juxtaposed with the evolution of provision for children in need since 1989. A time line can be drawn to show what factors contributed to the framing and subsequent reform of a legal mandate. For instance, significant research studies, policy imperatives, critical incidents, inquiry reports and practice evaluations have all impacted at various times on the development of the Children Act 1989 and subsequently the Children Act 2004.
- The contradictory nature of legal maps may be illustrated by reference, for example, to definitions of disability (National Assistance Act 1948 and Disability Discrimination Act 1995), or by contradictions in the extent to which children and young people may exercise choice over medical assessment and treatment.
- Anti-discrimination legislation provides an example of an incomplete legal map, with only very recent additions under European Directives on age and sexuality adding to longer-standing UK statutory provision on discrimination on grounds of 'race' or gender. Equally, many aspects of social work practice stand outside any obvious legal mandate.
- The reliance on law to overcome perceived shortcomings in practice indicates the extent to which other maps for practice may be overlooked. Professional values and ethics arguably provide an equally important map, which at times may lead practitioners to oppose legal rules, such as those on asylum and immigration.
- In practice, legal rules must compete with other features of the professional landscape - the reality of daily lives that do not neatly fall into boxes, the conflictual nature of claims to rights and allocations of responsibilities, the impact of organisational resources and priorities.
The process of exploring critical perspectives with students involves challenging assumptions about the law's clarity, while also encouraging students to see this feature as an opportunity (for rights-based interpretations) rather than as a constraint.
Helping students to identify the links between law and ethicsOpen
In the early stages of learning, it is useful to engage interest in the relationship between law and ethics through the use of examples with which students may already be familiar, perhaps as a result of press coverage. Asking students to discuss the ethical dilemmas inherent in such a case assists in illustrating that the law has as many shades of grey, and therefore potential for debate and critical analysis, as any other aspect of the social work curriculum. Some high profile examples are given below, but it is recommended that the content of this type of exercise be made as topical as possible.
Introductory case discussions
Diane had motor neurone disease. She had little movement and no mobility, and was dependent on 24-hour support for all her physical needs. She was aware of the terminal prognosis for her condition, and wished to end her own life before she entered the final stages, in order to avoid the inevitable distress to herself and her husband, who cared for her. She did not, however, have the physical capability to take her own life, but her husband was willing to assist her suicide. She asked the court to guarantee that her husband should not be prosecuted after her death, claiming that the right to life (Article 2 of the European Convention on Human Rights [ECHR]) implied also a right to die, and that preventing her from exercising this right was in breach of her right to protection from inhuman and degrading treatment (Article 3, ECHR). The court ruled against Diane’s application.
Babies Jodie and Mary were conjoined twins. Mary, the weaker twin, was reliant on Jodie’s heart to keep her alive. If the twins were separated, Mary would die. Jodie was in better health, but Mary’s dependence on her was sapping her strength. If the twins were not separated, Jodie’s heart would keep both of them alive for a while, but the strain would eventually overtax her system and they would both die. Their parents argued against medical intervention on religious grounds. The doctors responsible for the babies’ care asked the court to rule on how they should proceed. The court ruled that the twins should be separated.
- What rights and responsibilities do you think the people involved here have?
- What principles might you use to balance the competing claims?
- Why do you think the judges made the decisions they did?
Similarly, examples may be drawn from literature. 'The Caucasian Chalk Circle’, a play by Bertolt Brecht, dramatises the judgement of Solomon, describing a process of decision making about disputed 'ownership’ of a child. Written at a time of intense disillusion with how justice was expressed, the text engages the audience with tough questions about the ethics of legal decision making.
Exploring the development of students’ knowledge and attitudesOpen
The prospect of studying law commonly provokes anxiety among social workers in training. This self-audit invites them to focus on their images of law and legal practitioners, and on their knowledge and skills for practising social work law. Selfaudits are a useful beginning for reflecting on the interface between law and social issues, for highlighting connections between law, values and professional practice, and for facilitating discussion of experience and feelings. They also provide a baseline against which learning can be reviewed and change in perception can be mapped as the self-audit is used during, on conclusion and after formal learning (Preston-Shoot, 2000b).
Images of law(yers) Strongly agree Agree Disagree Strongly disagree Law can be used to achieve social change Law is unsuitable for resolving welfare issues My anxiety increases when using the law Law endorses social work values Law protects vulnerable people and meets their needs Law provides redress and promotes accountability Lawyers have a low opinion of social work(ers) I am anxious about how to keep up to date Law is more punitive than helpful for disadvantaged people Law compounds inequality Legal rules can be used creatively
Skills for practising social work law Not difficult A little difficult Moderately difficult Considerably difficult Identifying legal rules in Acts, regulations and guidance Applying these legal rules Recording Report writing Managing the relationship between law and social work values Making decisions - when, why and how to act Instructing lawyers Consulting lawyers Assessing risk and needs Reviewing risk and needs Using evidence - advoca Using evidence - taking protective action Working in partnership Using authority in an antioppressive way Maximising people’s rights Challenging your agency Challenging other organisations Using coercive aspects of law, against the wishes of service users