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About this book

This is an essential text for all those undertaking social work training. Updated to reflect recent changes in legislation and practice in working with children and families, domestic violence, human rights and social services, the second edition contains new chapters to provide comprehensive coverage of the key themes of social work law.

Table of Contents

Introduction

Abstract
Law, like social work, is a dynamic and human process constantly changing and impacting on the lives of the service user and professional in different ways. In editing this second collection we have been aware of the significant changes in both law and practice since the first edition of this reader in 2001. It is likely that the pace of change will continue, for example in key areas such as youth justice and safeguarding vulnerable groups of people, and there are areas where the impact of new legislation is yet to be fully played out, such as in relation to mental capacity. Some of these changes have their origins in forces external to the world of social work while others are internal. Demographic changes, whereby more people are living longer and are in need of care and medical services, have given rise to debates about the proper balance to be struck between private responsibility and public welfare. Shifts in the public debate on crime, especially youth crime, have focused on competing and conflicting agendas, values and interests in a way that is highly politicised and has impacted on government policy towards offending by children. In addition, voluntary sector organisations and service users express their political demands for improvements in services in the language of rights rather than needs; there are demands not only for procedural and substantive rights but also for fair and respectful treatment. Such demands for clearer and effective rights can be seen as a direct result of service users’ disenchantment with the quality of professional service provided by social workers. At the same time this connects with the language of rights articulated in the European Convention on Human Rights via the Human Rights Act 1998 and increasingly, in the context of family law, the language of children’s rights as set out in the United Nations Convention on the Rights of the Child.
Lesley-Anne Long, Jeremy Roche, Debbie Stringer

Chapter 1. Social Work Values and the Law

Abstract
This chapter explores the relationship between social work values and the law. 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.
Jeremy Roche

Chapter 2. State Intervention in Family Life

Abstract
This chapter critically examines the issue of State intervention in family life to protect children in the context of a discussion of English law. The topic is controversial on many levels. The very idea of talking in terms of State intervention in family life has been challenged. One view is that the notion that there is a private sphere of family life into which the State intervenes is a myth (Olsen, 1985). As Olsen observes:
The state is responsible for the background rules that affect people’s domestic behaviors. Because the state is deeply implicated in the formation and functioning of families, it is nonsense to talk about whether the state does or does not intervene in the family.1
Stephen Gilmore

Chapter 3. Partnership or Participation?

Abstract
This chapter considers the concept of working in partnership with parents in the context of social work practice with children and families. It considers the origins and development of partnership working with parents through an exploration of relevant research, policy and legislation and examines what practitioners understand working in partnership to mean. The chapter concludes with consideration of the practice issues related to involving parents in decision making when children are in need or at risk and explores the possibility that participation, rather than partnership might better define the relationship between social workers and parents.
Lucy Rai, Debbie Stringer

Chapter 4. The More Things Change, the More They Remain the Same? Law, Social Work and Counteracting Discrimination

Abstract
One purpose of this chapter is to outline the law on discrimination and to illustrate how it has developed and continues to evolve through time. From hesitant beginnings with race relations legislation in 1965, the pace has quickened, especially in the twenty-first century. This particularly reflects the United Kingdom’s obligations arising from membership of the European Union and the incorporation into domestic law via the Human Rights Act 1998 of the European Convention on Human Rights (ECHR). Another purpose is to explore the reasons underpinning this legislative trajectory, in essence addressing the question of why particular legal rules are (not) enacted. The advent of legal rules to counteract discrimination and to promote equality of opportunity has been marked by struggle. The enactment in 1995 of the first legal rules concerning disability discrimination followed numerous failed attempts. Debates surrounding equality legislation continually reveal the extent to which this is a site of social, moral and religious contest, with, for example, advocating and dissenting voices in respect of enabling gay men and lesbians to adopt, equalising the age of consent, or allowing young people to wear faith-based dress in school.
Michael Preston-Shoot

Chapter 5. Risk, Social Work and Social Care: The Example of Children’s Social Care

Abstract
An increased awareness about risk seems to constitute one of the key defining dimensions of our contemporary experience, and is present in most areas of our social, economic, political and cultural lives (Mythen and Walklate, 2006; Taylor-Gooby and Zinn, 2006; Petersen and Wilkinson, 2008). Nowhere is this more evident than in the area of social work and social care more generally, where concerns about risk to service users and risk to workers have become a central concern and much of the work is now framed in terms of: risk assessment; risk management; the monitoring of risk; risk insurance; and risk taking.
Nigel Parton

Chapter 6. Accountability

Abstract
This chapter examines what is meant by accountability, with a particular focus on social work and the law. It will consider what accountability is for, how it is defined and the way in which legal accountability fits within a wider definition of accountability. More specifically it will consider the way the courts hold local authorities to account for their decisions in childcare cases, the accountability of individual social workers to their professional bodies and the role of serious case reviews in holding social work to account. This chapter explores the impact of human rights which are an integral part of contemporary social work practice. It is arguable that a balance has to be struck between holding professionals and service providers publicly accountable; protecting the privacy of children and families; and giving individual professionals protection from unfair attacks on their reputation.
Penelope Welbourne

Chapter 7. Remedies

Abstract
This chapter considers some of the key judicial and administrative remedies available to service users and carers when they believe that their rights have been breached or their needs not met. There may be many instances where service users are dissatisfied with the availability of a service or the quality of that service but none the less are able to resolve the matter by informal means. In some cases however this will not be possible and it is important for professionals and service users alike to know the range of remedies available — even though in the circumstances some will be more relevant than others.
Jane Williams

Chapter 8. The Role of Assessment in Social Work

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 groundbreaking book, Social Diagnosis, published in the USA 1917, Mary Richmond wrote about social workers building up a body of knowledge from their cases, and being able to draw on this to inform their practice (Richmond, 1917). She successfully created a model for social casework and the approach now known in the social work field as the person-in-environment or ecological approach to assessment.
Jane Aldgate

Chapter 9. Youth Justice

Abstract
The aim of this chapter is to introduce the competing and conflicting agendas, values and interests inherent in the youth justice arena by providing an overview of the youth justice system. While primary emphasis is upon the child2 as offender it will also consider the child as victim of offending and as witness, to reflect upon the usefulness of such labels. The chapter will examine government approaches to individual and parental responsibility, and consider whether the criminal court is the appropriate forum to resolve issues surrounding children’s criminal and antisocial behaviour.
Heather Keating

Chapter 10. Can You Keep a Secret? Children, Human Rights, and the Law of Medical Confidentiality

Abstract
The existence of competent children’s right to medical confidentiality was confirmed in R (Axon) v. Secretary of State for Health (Family Planning Association Intervening).1 However, a number of important questions remained unanswered including: whether non-competent children have a right to medical confidentiality against their parents as well as third parties; when it would be legitimate to override competent and non-competent children’s medical confidentiality; whether parents can rely on article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to claim a right to disclosure of their children’s medical information; and, if so, what approach should be adopted where that right comes into conflict with children’s article 8 rights to privacy and confidentiality. These questions will be explored, taking into account the development of the law of confidentiality as a means of protecting article 8 rights to privacy. It will be argued that children’s right to, and decisions regarding, medical confidentiality require greater respect and protection.
Joan Loughrey

Chapter 11. Vulnerability, Autonomy, Capacity and Consent

Abstract
This chapter addresses an issue which goes to the heart of ethical social work practice. It raises deep philosophical, legal and moral issues that are played out in decisions which social workers need to make when dealing with vulnerable people:
  • What happens when people do not have the ability to make decisions for themselves, or else render themselves vulnerable because of the decisions they make?
  • What guidance is there to determine who is defined as vulnerable?
  • To what extent can people have autonomy and how can independence be encouraged while keeping people safe?
  • What safeguards are there to ensure that people have their wishes respected? Specifically:
    • What happens when people apparently lose the ability to process information and weigh up factors necessary to making decisions for themselves?
    • Can their wishes be overridden?
Robert Johns

Chapter 12. Community Care and the Promotion of Independence

Abstract
The concept of community care can be traced back to the introduction of the welfare state post second world war. It is now firmly embedded in practice and the law. This chapter will chart the history and development of contemporary community care policy leading up to the National Health Service and Community Care Act (NHSCCA) 1990 and beyond to the present day. Analysis of the central duty to assess for community care services is located in a discussion of entitlement to services. This is an area of social work practice where the financial constraints operating on local authorities have a very real impact on the experiences of service users. This has been acknowledged in decisions of the courts and in formal guidance and the operation of eligibility criteria. The success of community care is dependent on the availability and commitment of informal carers. Recognition of their contribution and rights to support is integral to care planning and any discussion of community care would be incomplete without consideration of their role. Since implementation of the NHSCCA in 1990 it is possible to detect a growing emphasis on service users’ and carers’ rights, choice and the promotion of independent living. This is clearly evident in the introduction of direct payments and the personalisation agenda.1 The law relating to adult social care is complex and can be confusing.
Alison Brammer
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