Learning, teaching and assessment of law in social work education

Organising law knowledge, skills and values in education practice

This section will build on the material presented earlier to develop a conceptual frame for approaching law learning that combines three core objectives for students’ learning:

• good technical knowledge of the law and the ability to apply it to situations encountered in practice
• sound awareness of the ethical and moral dimensions of applying the law in practice
• a critical understanding of the role of law in promoting human rights and social justice.

From both aspects of the knowledge review - the research review and the practice survey - there emerged three distinct orientations to law teaching for social work students - orientations that also mirror aspects of the relationship between law and social work practice. These orientations are in effect different ways of organising the necessary knowledge, skills and values associated with effective learning about the law, each prioritising different aspects of the relationship.

They may be viewed as a form of triangulation.

In the centre of the diagram are located the legal knowledge and skills and the professional values that inform and drive practice. Depending on the ways in which these are configured, they give rise to different ways of conceiving the law/social work relationship, represented by the points on the triangle. These orientations demonstrate key differences in what is viewed as the driver for practice (law, ethics or rights), what kind of knowledge students need (technical or critical), and what legal frameworks are taught (those for responding to individual need or those promoting collective rights and justice). Explored in detail elsewhere (Braye and Preston-Shoot, 2006a, 2006b), they are summarised below.

The rational/technical orientation views the law as a clear, uncontested framework for action. Practitioners must have factual knowledge of the 'nuts and bolts’, the powers and duties that provide the mandates for intervention. The process of application to practice is deductive, seeking in situations encountered the signs and symptoms that meet the legal thresholds and trigger action. From the starting point of knowledge of the duty to protect children, for example, what does this mean for a particular child? What features in the child’s circumstances can be recognised as meeting legal criteria? Typically, organisations produce procedural guidance aimed at ensuring that decisions made by individual practitioners are consistent and that intervention is procedurally correct.

The moral/ethical orientation views the law as one of a set of tools available to practitioners in the pursuit of ethical practice. It recognises conflicting imperatives in the legal mandates, and the practice dilemmas that can arise for social workers in balancing rights and risks, needs and resources. Ethical principles, expressed perhaps as professional values, are what guide practice. The law at times will be experienced as supportive of these but at times also oppositional. The process of application to practice is more inductive, starting from awareness of a child’s needs, for example, and reaching to law, among other resources, to secure ways of meeting those needs. Both these orientations are located to a large extent within models of intervention that prioritise the identification of individual need, and seek in law, and elsewhere, remedies at an individual level.

The structural/rights orientation takes both a more rights-based view, and a more collective perspective. It starts from the position that the purpose of social work is to promote social justice and human rights (IASSW, 2002). Accordingly, law may be used to secure resources for individuals and groups, to promote social inclusion, to challenge oppression, to preserve fundamental rights. Thus a wider knowledge base of law is necessary, beyond mandates for social work intervention, to include frameworks for challenging inequality and injustice.

It is important to point out that no one orientation is 'right' while the others are 'wrong'. Arguably, all three are important, and have a contribution to make to practice that is lawful and ethical. On current evidence, however, it appears that the rational/technical orientation is the most dominant in education practice, whereas a stronger emphasis in teaching on the other two orientations would give practitioners a more comprehensive understanding of the law/social work relationship and therefore of the possibilities for action.

It is not a question of dismissing the importance of technical legal knowledge, or of procedural correctness. If practitioners are to promote rights, they need to know the technical aspects of the legal frameworks they use to do this. Equally, professional decision making must be pursued in a way that meets the requirements of administrative law, namely that it is lawful, characterised by procedural fairness, offers reasonable reasons, and is based on a defensible interpretation of the available evidence. But rational/technical practice that is not located within an awareness of structural factors relating to power and oppression leads at best to individualised solutions rather than to social change. It is important to define technical knowledge more widely and approach it more critically. Ethical frameworks can be used to interrogate both the legal framework and the purpose of legal intervention, and to justify one course of lawful action in preference to another. Rights-based notions can also be used to subject law to critical analysis, identifying the extent to which it erodes or supports people’s rights. Similarly, the notion of rights is inextricably bound up with ethical questions, and ethics form part of the fundamental social frames of reference within which rights are promoted or restricted.

The following table highlights the connections that can be made between social work values, rights and sources of law (Preston-Shoot et al, 2001). The reference to practice dilemmas directs social workers to engage with the complexity of evaluating by reference to knowledge bases skilfully applied to a situation, when limits to a values principle should be imposed, how competing rights might be weighed, and what outcomes are being sought. The table clearly reveals that social work law and social welfare law are not necessarily oppositional to social work values or to rightsbased practice. It also demonstrates that values, rights and law cannot be divorced from each other in social work practice.

The examples given in the above table connecting legal provision to social work values have been drawn from England. Some of these examples also apply in Wales, Northern Ireland and Scotland, for example, the Human Rights Act 1998 and the Data Protection Act 1998. In other respects there will be specific legal provision that supports social work values in these nations. Examples in relation to equal opportunities include the Welsh Language Act 1993 and the Fair Employment (NI) Act 1989. In relation to partnership, social workers in Northern Ireland should refer to the Children (NI) Order 1995 and the eight volumes of regulations and guidance issued subsequently. Those in Scotland should refer to the Children (Scotland) Act 1995.