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.
|Rational/ Technical orientation||Moral/Ethical orientation||Rights- based/Structural orientation|
|Views law as…||A set of rules to be applied, a toolkit||Part of the professional toolkit||A resource for service users|
|The driver for practice is…||Legal mandates||Ethical goals||The search for social justice and human rights|
|Practitioners need...||Technical legal knowledge||To locate law within their professional morality||Critical understanding of law|
|The key practice question is…||Are the criteria for legal intervention met?||How does lawcontribute to achieving ethical goals?||How can law confront exclusion and oppression?|
|The emphasis is on…||Procedurally correct practice - "doing things right”||Negotiating dilemmas - "doing right things”||"Rights thinking”|
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.
Broadening the vision
Developing rights-based practice in social work law
A wider definition of technical legal knowledge
- Looking beyond the national context for legal frameworks
- Observing international conventions and protocols
- Emphasising the impact of case law, policy and practice guidance in addition to statute and regulations• Emphasising mechanisms through which practitioners owe accountability and service users may seek redress
A more critical perspective
- Engaging in critical reflection on the purposes of law
- Engaging in critical reflection on its ability to empower and to oppress
- Incorporating the perspectives of service users and carers
Viewing law as a means of
- Addressing widely defined needs and risks, beyond those of individual need and protection
- Securing beneficial resources across a range of services
- Challenging the erosion of rights
- Addressing the social, economic, political and cultural contexts of people’s lives
Emphasis on the law/ethics relationship
- Setting legal rules alongside moral rules
- Exploring how practitioners can handle practice dilemmas
- Challenging unethical legal frameworks
- Engaging with international ethical codes
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.
|Values||Rights||Legal provisions||Practice dilemmas|
|Self-determination||Right to liberty Right to respect for private and family life||Human Rights Act 1998 Children Act 1989 (no order principle) Community Care (Direct Payments) Act 1996||Principles and rights are conditional - courts and local authorities have discretion to overrule the wishes of 'clients’ but, when doing so, must act proportionately|
|Partnership||Right to involvement in decision making||Data Protection Act 1998 National Assistance Act 1948 Choice of Accommodation Directions 1992 Children Act 1989||Emphasis in youth justice provisions on the responsibility of, rather than partnership with, parents and children Obtaining redress is difficult|
|Openness and transparency||Right to a fair trial||Human Rights Act 1998 Case law on duty of care in adoption and child protection||Obtaining redress is difficult|
|Confidentiality||Right to respect for private and family life||Data Protection Act 1998 Human Rights Act 1998 Children Act 1989 Children Act 2004 Working Together (2006)||Principles and rights are conditional - other values and principles such as the welfare of the child might prevail; one person’s right must be balanced against another’s|
|Respect for persons||Right to protection from abuse Right to a fair hearing||Human Rights Act 1998 Public Interest Disclosure Act 1998 PACE 1984 (appropriate adult provisions) Mental Health Act 1983 (Section 13(2) assessment standard)||Images of competency and behaviour can act as barriers. Provisions in social work law to protect vulnerable adults limited|
|Equal opportunities||Right to live free of discrimination Right to express views freely and to have them considered||Mental Health Act 1983 (least restrictive alternative) Human Rights Act 1998 Children Act 1989 (competent young people can request orders and refuse assessment) Race Relations Act 1976 (duty to avoid discrimination and powers to develop provision)||Children’s standing conditional on the views of courts and professionals Focus on individuals rather than systems Images of competence a barrier|
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.