3.5 The language of law
A potential barrier to understanding, which those new to law can find off-putting, is the use of specialist terminology. This contributes to the perception of law as an elitist and difficult area of study and is something that requires further explanation. Many professions (and social groups) develop their own forms of language to communicate effectively and, in some cases, to signify group membership. In this sense legal language is not unique, but is does have a formal character which can seem threatening and impenetrable. Latin terms, for example, are sometimes used as shorthand to describe particular legal rules or concepts, but although the language of law owes much to tradition, lawyers (and law makers) place importance on precision in the use of language for a reason. We have seen that legal rules require clear definition in order to provide some certainty to the extent of their application. The words in statutes are subject to interpretation, and the more precise they are, the more likely it is that they will have their intended effect.
There are a number of practical skills which you will need to acquire to locate and interpret the law in Scotland, to work effectively within the legal system and to apply your legal knowledge. An understanding of legal terms is one of these skills. Throughout this course you will be provided with explanations of key terms and there is a ‘Glossary’ given below to assist you. Learning legal language, however, has a value beyond increasing your knowledge of law. Good communication is essential in social work and studying the law can enhance these skills by developing your sensitivity to language and meaning.
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There are four legal concepts which are often given in answer to the question ‘What is law?’ and require further clarification: duties, powers, rights and responsibilities. These are words which in everyday use have a variety of meanings; for example you may feel someone has moral duties or rights according to your own personal values. The law, however, will not always reflect these values. It is therefore important to distinguish between these terms in law and their use elsewhere. Box 3 provides a brief definition of each in the context of social work.
Box 3: Duties, powers, rights and responsibilities
A duty is something which local authorities are required by law to carry out. They must act in a particular way or provide certain services. Duties can be specific or they may give the decision maker discretion as to how to meet the duty. They must, however, always be fulfilled. An example is the duty on local authorities to provide care and support services to anyone who has, or has had, a mental disorder (s25 Mental Health (Care and Treatment) (Scotland) Act 2003).
A power gives legal authority to do something, but allows the decision maker to exercise choice in its use, depending on the circumstances. Social workers have many powers of intervention and have considerable discretion over when to use them. Local authorities also have powers to provide a range of services but, in the absence of a statutory duty, they do not have to offer these.
A legal right is an enforceable claim either to something (such as the right to receive a service) or from something (such as freedom from interference in your privacy). These are referred to as positive and negative rights. Legal rights can be acquired by statute, either directly (for example, service users could be given participation rights in decisions made about services) or indirectly (by giving a duty to another to provide a service to you, you have a right to that service). Other rights are constitutional, in the sense that they limit the powers of the state, are possessed by all and can only be removed with valid legal justification. For example, the Human Rights Act 1998 allows for enforceable claims by individuals against public authorities who breach certain rights enshrined in the ECHR.
Legal responsibility is imposed on all autonomous actors, that is, people who have the ability (or, in legal terms, capacity) to make decisions about how they act. If we break legal rules we can therefore be held responsible because, in theory at least, we did so out of choice. Local authorities, voluntary bodies and social workers are all legally responsible for their actions and may be required to account for them. In addition they have specific responsibilities imposed on them by statute or through contract, and must carry out their duties and exercise their powers in accordance with the law.
The relevance of duties and powers to social work has already been considered in Activity 7. The next activity asks you think about the relationship between rights and responsibility in social work practice.
Activity 8: Rights and responsibilities
A concerned neighbour has contacted social services about Callum, aged 45, who is known to be suffering from depression following the death of his wife. He refuses to answer the door, but has told his neighbour that he has nothing to live for and wants to be left to die in peace. A mental health officer (MHO – a local authority social worker with particular responsibilities under mental health legislation) visits Callum's flat to inquire about his welfare and is told to go away.
Look again at the definition of rights and responsibilities in Box 3 and read Articles 2, 5 and 8 of the ECHR by using the web links below. Then consider the following questions:
Does Callum have the right to reject offers of help, and if he wishes, to take his own life?
Does your answer depend on whether Callum is responsible for his own actions?
Could the MHO argue that he needs to act to protect Callum's rights?
How would you find out if the MHO has any responsibility towards Callum?
There is no easy answer to how a mental health officer should respond in this situation and you have not been given enough information about the law to give a detailed legal response. You should have been able to recognise, however, that there is a relationship between the rights and responsibilities of Callum and his social worker and that these legal principles can conflict.
Callum has a legal right to respect for his privacy and freedom from interference in his home under the ECHR. But does this apply in all circumstances, and does he have the right to take his own life or is this prevented by another article of the convention? It is clear that the rights enshrined in the ECHR are far from straightforward, and like other legal principles are open to interpretation.
As an adult, Callum is deemed responsible for his actions and therefore has the freedom to act as he chooses, within the law. But does the fact that someone is suffering from a mental disorder affect their responsibility and therefore compromise their rights? Does this depend on whether he has lost the capacity to make decisions about his welfare or does he retain the autonomy to refuse to consent to assistance even though he is depressed?
We have seen that social workers have a responsibility under the SSSC Code of Practice to ‘protect the rights and promote the interests of service users and carers’. This includes the right to protect life under the law and if necessary to detain ‘persons of unsound mind’ for the protection of their health and welfare. The detail of these responsibilities can be found by consulting the statutory duties imposed on local authorities and MHOs under mental health legislation. MHOs have duties to inquire into the mental health and welfare of individuals and in certain circumstances have powers to obtain access to property and take people to a place of safety without their consent. How do these responsibilities square with the rights of an adult to autonomy, privacy and self-determination? Who should have the power to decide what is in the interests of Callum? Should it be the social worker or Callum himself?
This activity demonstrates why issues of rights and responsibilities are central to the social work task and why an understanding of law is important in resolving the dilemmas which arise in social work practice. Social workers have key responsibilities for the welfare of vulnerable children and adults, and they are also required to respect their rights. These responsibilities may coincide, where individuals actively seek services or consent to their protection, but they can also conflict, where the service user's interpretation of their own ‘best interests’ does not coincide with the professional's view. It is in these situations that the discretion and power of social work is most apparent and the rights of service users must be taken into account.
If we consider the promotion of the principles of empowerment and partnership, then social workers need to think of ways in which these principles can be embodied in practice that embraces power sharing and makes accountability to the service user meaningful.