2.1 Rights and responsibilities
You will see that often rights and responsibilities are linked. For example, with the right to a free education in the UK comes the responsibility of a local authority to provide schools and a responsibility placed upon parents to ensure their children attend school.
Rights
‘Rights’ is a word that can be used in many ways. Lawyers use it to indicate that a person has a specific entitlement – for example, the right not to be dismissed unfairly from their job, or the right to sue for damages if they have been injured in an accident that was not their fault.
Other professionals talk about rights in a more general sense. For example, many celebrities claim that they have a ‘right’ to privacy; such ‘rights’ may be recognised in law, but often are not. Another example might be an adult believing that they have a ‘right’ to inherit property or possessions from their parents; in law, however, no such right exists.
In this section, you will find that the idea of rights is used primarily in the sense of legal claims that people can make. For example, people have the right to a private and family life by virtue of Article 8 of the European Convention on Human Rights (ECHR), which was brought into UK law by the Human Rights Act 1998.
However, there are significant debates about whether other ‘moral’ rights should be enshrined in law. Social workers need to be careful when using the language of ‘rights’: as it must be clear in their practice with people whether they are talking about a legal right that can be enforced by using the law or a moral right which cannot.
As social workers have to protect rights and promote the interests of service users, they are concerned with both legal and moral rights.
Activity 3 Rights
Consider the following scenario and answer the questions that follow. You are not expected to know about the legal issues. The purpose of the activity is to help you to start thinking about the language of rights and how rights rarely exist without corresponding responsibilities.
A concerned neighbour has contacted social services about Callum, a 45-year-old man. Callum has recently lost his partner following a lengthy illness and is known to suffer from depression. Callum has told his neighbour that he has nothing to live for and wants to die in peace.
A social worker visits Callum at home but he refuses to let them in.
- Does Callum have the right to end his life?
- Does the social worker have responsibilities towards Callum, for example to ensure Callum does not end his life?
- Does Callum have the right to refuse to talk to the social worker, or even allow them into his home?
Comment
There is no easy answer here, but it is the type of scenario that social workers will often encounter.
Suicide is not a criminal offence. There is a general legal principle that Callum has the right, if he has the relevant mental capacity, to make his own decisions, and that includes the right to decide when he should die. However, this principle is not absolute. There are legal powers that can be used when a person has the relevant capacity, including certain mental health legislation.
Once the social worker has been made aware of Callum’s struggles, they may well consider him as someone with mental health issues and, as such, they have a social work practice responsibility to ensure his welfare and offer help and support. But does this mean preventing him from ending his own life or does it mean empowering him to make his own decisions, even if that means he will end his own life?
The question that needs to be addressed here is does the existence of such a responsibility afford the social worker the right to enter Callum’s home against Callum’s will? This will, to some degree, depends upon how Callum’s mental capacity is assessed.
One point to note is that you did not have enough information to make a full assessment of the situation, this was deliberate. For now, the activity and scenario demonstrate why issues of rights and responsibilities are central and also why it is important to understand the language of rights, and to know the difference between a legal right and a moral right. There is no ‘correct’ answer here; the outcome will depend upon the individual circumstances of the case, and sometimes the decision may need to be referred to a court. The outcome may be that Callum has a right to make his own decisions, no matter how much you may disagree or even disapprove of his decisions.
Responsibilities
Social workers have legal powers and responsibilities to protect certain individuals. For example, a mental health social worker has the power to make an application to detain those with a ‘mental disorder’ for the protection of their own health or that of others. This power is often provided by mental health legislation. So, in certain circumstances, mental health workers may have a duty to enquire into the mental health and welfare of individuals and have the power to obtain access to a person’s property and to take them to a place of safety without their consent.
There may be times, therefore, when there is a tension between a person’s autonomy and the need to protect the person. Deciding what action is necessary may also be contested. For example, social workers may have a responsibility to ensure that the welfare of adult service users is protected, while also respecting their rights to autonomy, privacy and self-determination.
An example might be a person who has dementia. While they may struggle to make decisions about complex issues such as financial matters, it cannot be assumed that they do not have the capacity to make any decisions, such as where they should live. The social worker has a responsibility to ensure that the person’s right to make decisions they are capable of making is protected and enforced. If the social worker does have to make a decision for or on behalf of a person with dementia (this is called a ‘best interests decision’), they have a responsibility to ensure that they make the decision without being influenced by other factors, such as resources or funding.
The social worker will normally be accountable for the decision they make, in that they will have to explain the reasons for making it and can be held to account if they do not exercise their responsibilities in the proper manner.