Social work and the law in Scotland
Social work and the law in Scotland

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Social work and the law in Scotland

4 Why do social workers need to know about the law?

From our discussion of social work and the meaning of law you will already have some answers to this question. We will now bring them together and relate them to wider debates about the content of the social work curriculum.

We have seen that there are few right answers in social work. However, if practitioners do not know where they stand legally they cannot begin to do their job properly because they will not be able to give appropriate advice and support to service users. They will also not be able to work effectively if they are unaware of the legal requirements and options in a given situation and the different consequences attached to pursuing each of those options. Some legislation places direct statutory responsibilities on social workers while in other areas, such as housing and welfare benefits, the responsibility is more one of advocacy and advice.

It is also important to recognise that social workers are not lawyers. They need to know when to call on professional legal opinion to guide their own actions and when to advise service users and others to seek expert advice.

Since the mid 1980s there has been much discussion and debate about the nature and quality of legal knowledge needed by social workers (see SCIE, 2005). Historically, social work education programmes tended to regard law as a discrete body of knowledge imported from another professional discipline without first being distilled through the value base of social work practice. Social workers were therefore encouraged to believe that they should have a fairly detailed knowledge of the legal content of their work, without necessarily having an understanding of the context of legal rules. They were encouraged to absorb legal facts in the abstract, which contributed to the view that the law was difficult to understand and not always relevant. In part this debate had been fuelled by the inquiry reports into child abuse scandals where the criticism of social workers had taken one of two forms: either they were viewed as having an inadequate knowledge of the statutory powers available to them (e.g. Blom-Cooper, 1985) or they were criticised for having adopted a heavy-handed approach and putting their statutory powers before other social work considerations (e.g. Butler-Sloss, 1988; Clyde, 1992).

So while the law provides the mandate for practice, in the sense that it vests social workers with legal powers and duties to take appropriate professional action, it is also the case that the law does not automatically provide the answer or solutions to practice dilemmas. Thus the relevant legal rules do not, by themselves, provide a clear, consistent and comprehensive guide to practice. The missing ingredient is a commitment to good or ‘ethical’ practice. An ethical approach is one where the social work relationship with the legal framework takes account of social work skills and values. The existence of the legal framework does not mean that there is no need to exercise professional judgement and discretion. Such judgement is key and must be informed by the wider knowledge base, values and skills of social work practice (Stevenson, 1988).

Braye and Preston-Shoot describe social work law as being comprised of three distinct but interrelated strands:

Legal powers and duties which provide social workers with a mandate to practise; ethical and professional values which guide practice, some of which are incorporated into statutory provisions; and aspects of administrative law, such as judicial review, which scrutinize the actions of organisations within which social work is predominantly located.

(Braye and Preston-Shoot, 1997)

These elements are reflected in the Standards in Social Work Education (SiSWE) requirements for the social work degree in Scotland, which emphasise the importance of law in social work education and the ethical context of social work practice (Scottish Executive, 2003b). The specific professional requirements in relation to law are outlined in Box 4, but these are integrated into a broader educational framework which places them within guiding ethical principles and accepted codes of professional conduct.

Box 4: Extracts from the social work degree framework

Students are expected to understand:

  • legal bases for intervention;

  • social workers' roles as statutory agents with duties and responsibilities to protect the public and uphold the law;

  • the concepts of rights, responsibility, freedom, authority and power associated with the practice of social workers as moral and statutory agents;

  • up-to-date legislation defining the rights of people, especially measures designed to tackle all forms of discrimination;

  • the significance of legislative and legal frameworks, service standards, practice guidelines and codes of practice;

  • the nature of legal authority;

  • the application of legislation in practice;

  • statutory responsibility and conflicts between statute, policy and practice;

  • knowledge of equal opportunities and anti-discriminatory legislation and policy;

  • the relationship between agency policies, legal requirements, ethical principles and professional boundaries in shaping the nature of services;

  • legal requirements relating to data protection and the rights of citizens to have access to information held about them.

The aim of the SiSWE requirements is to ensure the qualification of competent practitioners who, according to Preston-Shoot (2000), should be ‘confident, credible, critical and creative’:

  • confident to challenge inappropriate interpretations or use of the legal rules

  • credible when presenting the rationale for their decision making

  • critical to make their professional practice and the legal rules accessible to those with whom they work, to assess the impact of policies on people's lives and to navigate through questions of ethics, rights and needs

  • creative in order to exploit the opportunities that the legal rules present and to manage the practice dilemmas and conflicting imperatives that the interface between law and social work practice generates.

(SCIE, 2005, pp. 17–18)

A study of law for social workers, therefore, involves much more than knowing the legislation. In order to feel competent and confident in their engagement with service users, social workers need to understand the link between law and practice, between legal values and social work values. We have seen that acquiring these skills can also be of benefit to service users, who may be empowered by knowledge of law and a wider appreciation of the social work practice context.

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