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About this book

Effective social work practice relies on good understanding of the law along with the skills to use this knowledge well. This essential book
provides a wide-ranging thematic account of social work practice in Scotland, making critical links between concepts, the contexts of practice
and first-hand experiences of Scottish social work law.
The book covers important subjects such as:
Service user and carer rights
Legal and social work values
Accountability
Effective assessment
Safeguarding, risk and protection
Youth and adult criminal justice
Partnership, participation and advocacy
Delivery of personalised servicesSocial Work and the Law in Scotland is core reading for all those undertaking academic study or professional practice within the field. It is also a key resource for anyone looking to update their knowledge on the nature and development of the ever-evolving legislative landscape of Scotland.

Table of Contents

Introduction

Abstract
Knowledge of the law and the skills to use this knowledge well are both central to social work practice. Social workers’ legal powers and duties provide a mandate for practice that enables, and sometimes requires, them to take action to promote people’s rights and, where necessary, to protect people from danger or harm. Law regulates social work practice, and holds social workers, and the organisations they work for, to account when services do not meet legal requirements. Legislation also provides service users, carers and social workers themselves with opportunities for redress, for example when people have been misinformed or discriminated against. Without an understanding of the law, social workers are unable to empower people by providing accurate information and advice about their entitlements, or to understand the legal options available to them and the consequences of taking legal action in different circumstances. Ultimately, a limited or flawed understanding of the law and its application to practice can have serious and even life-threatening consequences for service users and carers. At the same time, as many of the authors of the chapters in this book emphasise, law does not simply consist of a series of rules that have to be applied to particular situations to achieve particular outcomes.
Jean Gordon, Roger Davis

Chapter 1. Legal Values and Social Work Values

Abstract
This chapter explores the relationship between social work values and the law. Changing Lives: Report of the 21st Century Social Work Review (Scottish Executive, 2006, p. 9) referred to social work’s ‘passion for social justice’ and social workers having ‘a distinct set of knowledge, skills and values that need to be better used in supporting our most vulnerable peopl’. I argue that there is significant common ground between social work values and legal values. This includes a respect for the individual, a commitment to formal equality, the ending of prejudice and discrimination, and a concern with procedural fairness. There is much in the law in terms of its rules and procedures, including the law’s insistence on certain forms of accountability, that can be supportive of social work, and issues of social justice and human rights are increasingly significant in contemporary social work discourse and the law. In this chapter, I consider the recent history of the relationship between the law and social work before moving on to explore social work values and images of law. I then consider the importance of the language of rights and conclude with a consideration of why law and the language of rights are important to social workers and service users alike.
Jeremy Roche

Chapter 2. Accountability, Professionalism and Practice

Abstract
Good practice has always dictated that social workers and the agencies that employ them should be answerable to those to whom they offer services. However, possibly as a consequence of high-profile inquiries into a number of tragic deaths of children, the call for social workers and other professionals to be accountable for their deeds (and their omissions) has become both a preoccupation of society and a demand. The inquiry into the tragic death of Victoria Climbié (Laming, 2003a) brought the concept of accountability into sharp focus. Although in his report Lord Laming aimed his most trenchant criticisms at those in senior positions, the inquiry itself and the surrounding media interest ensured that issues of accountability were examined and discussed. He recently revisited this in his report following the death of Baby P, when he was commissioned to provide an urgent report on the progress being made across the country to implement effective arrangements for safeguarding children (Laming, 2009).
Kathryn Cameron

Chapter 3. Risk, Professional Judgement and the Law: Antinomy and Antagonism in an Age of Uncertainty

Abstract
The most pressing task that any welfare professional faces, when working with vulnerable individuals, is that of making decisions about risk. Professionals are increasingly called upon to account for, and to justify, the judgements they make concerning the welfare of their clients in health and social care settings (Titterton, 2005a; Carson and Bain, 2008). It is difficult to conceive of a more interesting, if deeply challenging, time for social work students and practitioners to be studying risk and the law in respect of the health and social services within the UK, and specifically in Scotland, which has introduced new safeguarding legislation, the Adult Support and Protection (Scotland) Act 2007 (ASPA), which is unique in the UK.
Mike Titterton, Susan Hunter

Chapter 4. The Role of Assessment in Social Work for Children and Families in Scotland

Abstract
From very early days, social workers have drawn on knowledge and observations to make professional judgements about how best to help people who are using their services. In her ground-breaking book, Social Diagnosis, published in the USA, Mary Richmond (1917) wrote about social workers building up a body of knowledge from their cases, and being able to draw on this to inform their practice. She successfully created a model for social casework and the approach now known in social work as the ‘ecological approach’ to assessment.
Jane Aldgate

Chapter 5. Law, Social Difference and Discrimination

Abstract
Discrimination exists in many forms. In Britain, it is legislated against in the areas of race, sex and disability. The Race Relations Act 1976 and the Sex Discrimination Act 1975, both now repealed by and incorporated into the Equality Act 2010, were phrased in similar terms, outlawing direct and indirect discrimination and making overtly discriminatory behaviour a criminal offence. This chapter will focus on discrimination in the area of race. It will outline the ways in which the law in relation to racial discrimination has developed over time in the UK. It will explore how diversity influences practice and examine issues that social workers may encounter, for example in relation to attitudes to smacking children.
Lena Robinson

Chapter 6. Children’s Hearings in Scotland: Balancing Rights and Welfare

Abstract
The children’s hearings tribunal system is the primary decision-making forum for child welfare in Scotland. It is distinctive, in that decisions regarding the need for compulsory intervention for children in trouble with the law and those in need of care and protection remain integrated within a unitary system of lay tribunals. The origins of the system lie in the Kilbrandon Report (1964), which reviewed the legal framework addressing juvenile offending, children in need of care and protection and those regarded as beyond parental control following public concern about a postwar rise in delinquency. At the same time, professional concerns highlighted the restricted development of the Scottish juvenile court system (Cowperthwaite, 1988).
Janice McGhee

Chapter 7. The Voice of the Child

Abstract
This chapter explores how children’s voices are heard in children’s hearings and court proceedings, covering both ‘private’ (mostly family) law and ‘public’ (childcare and protection) law. A historical survey covers the period up to the Social Work (Scotland) Act 1968, adjustments introduced by the Children Act 1975, and the attempt by the Children (Scotland) Act 1995 to take account of the 1989 UN Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR). It discusses the UNCRC and shows that, while it did not invent the principle of listening to children, it gave it a boost, ensuring a more focused approach to hearing children’s voices. The chapter is structured around four questions:
  • Why should we listen to children?
  • When do we listen to children?
  • How do we listen to children?
  • Who has the job of listening to children?
Kathleen Marshall

Chapter 8. Community Care and the Promotion of Independence

Abstract
The development of community-based support and the promotion of independent living can be characterised as a series of shifting priorities over the decades. In the 1970s, for example, strategies to promote the resettlement of people with learning disabilities or mental ill health from the long-stay hospitals started to accelerate. In the 1980s, the voices of the disability movement started to be heard more strongly and the initial principles of independent living were set out: accessible environment and transport; barrier-free housing; peer support and peer advocacy; personal assistance; income; employment and health. The 1990s saw the advent of the community care assessment process, while the 2000s saw an increasing emphasis on the voice of service users and the development of user-led organisations. As we move further into the twenty-first century, there is a major emphasis on the transformation of support through personalisation, mechanisms such as personal budgets and co-production.
Alison Petch

Chapter 9. Vulnerability, Autonomy, Capacity and Consent

Abstract
Adults (people over 16) are assumed in law to be able to make their own decisions unless proven otherwise. This chapter addresses three civil statutes that give social work practitioners authority to intervene in the lives of adults. These include people who have been diagnosed as having a mental disorder, adults who lack capacity to make decisions and, most recently, adults at risk of harm. Patrick and Smith (2009, p. 169) highlighted the key challenge in this area of work:
Those involved in adult protection must be very aware of the need to balance their duty to investigate and protect adults at risk with the need to respect the autonomy of the person.
Kathryn Mackay

Chapter 10. Working with Adults who Use Services and Carers

Abstract
There are common principles that should inform practice with adults who need support in order to live full, safe and healthy lives, despite the very many differences in circumstances and needs among people who use adult social care services. There has been a shift in thinking about services for adults from a focus on satisfying needs to an emphasis on protecting and promoting rights. The responsibility to promote and protect rights is the first standard of practice required under the code of practice for Scottish social service workers (SSSC, 2009). It is acknowledged that people who use social work services are citizens who share the same rights and should have the same opportunities and responsibilities as other citizens (Duffy, 2006). These responsibilities include being able to make a contribution to society, for example through employment, offering peer support to others, or using their experience to influence the way services are designed and delivered for the benefit of others (Changing Lives User and Carer Forum, 2008).
Kirsten Stalker, Lisa Curtice

Chapter 11. Youth Justice

Abstract
Youth crime policies during much of the twentieth century eroded the distinction between the young person in need and the delinquent youth, only to see these welfare-oriented approaches superseded by punitive law and order ideologies driven by politicians under pressure to be seen to be tough on crime. The combination of two concepts, special responses to the needs of children and young people and equal rights under the law, creates a tension, in social work practice, on how best to reconcile the competing claims of the law, judicial process, punishment and control with the need to consider the best interests, needs and the rights of the child or young person, while effectively reducing offending and its consequences for victims.
Bill Whyte

Chapter 12. Adult Criminal Justice

Abstract
Crime and justice in Scotland continue to occupy a prominent and often contentious position in public and political spheres. On one level, and in common with developments in other jurisdictions, recent penal developments in Scotland can be seen to reflect late modern preoccupations with risk, punishment and control. Yet, at the same time, Scotland maintains an explicit and well-defended commitment to the welfare, social inclusion and integration of all citizens, including those who offend; a commitment which, even in the recent past, it has had to defend on a national and global level.
Trish McCulloch, Fergus McNeill

Chapter 13. Partnership with Service Users

Abstract
In February 2010, the Scottish Government published a national strategy for self-directed support. This represents one aspect of the recent developments in the reconfiguration of the relationship between the state and the users of social work and social care services:
This strategy responds to increasing interest in reshaping care and support in Scotland. It aims to set out and drive a cultural shift around the delivery of care and support that views people as equal citizens with rights and responsibilities. (Scottish Government, 2010a, p. 1)
Andrew Kendrick
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