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About this book

Social work law is at the foundation of all social work practice, from shaping professional boundaries to determining the level of intervention. Every case is complex and unique and therefore requires different legal treatment; this means it is absolutely vital that social workers not only understand the law, but are able to critically analyse the legal framework and apply it to their practice.

This book provides students and practitioners with an essential guide to adult social care law. It lays out the key case law, core legislation and the HSPCC standards as they apply to different areas of adult social care. This includes issues of capacity, making an assessment, supporting carers and working with vulnerable adults. Designed to support learning needs, the book is packed with engaging case studies and reflective exercises, as well as a legal toolbox to help simplify the legal jargon.

Whether you are a student or practitioner, this is a practical, accessible guide to competent and lawful practice in adult social care.

Table of Contents

Chapter 1. Social Work Practice and the Law

Social work law is the basis of social work practice. It determines the organizational setting in which social work takes place; it defines what social workers are employed to do; and, by setting out what redress is available when things go wrong, it determines the boundaries of social work action and the nature and extent of social work accountability. It is the law that defines the individuals towards whom social workers have responsibilities, such as, vulnerable adults and their carers, and which determines, often in broad terms, the nature and extent of social work intervention (such as prevention, protection and rehabilitation). The law also sets out the conditions under which compulsory intervention is permissible, as well as the safeguards that should ensure that such intervention takes place in accordance with due process and in adherence to human rights. An important aspect of the social work task is to determine appropriate levels of support, care, protection and control, taking into account the inevitable constraints imposed by the availability of resources. It is the law, too, that identifies the strategic aims and objectives that underpin the delivery of services, both nationally and locally. In essence, social work law consists of three elements: a set of organizational and administrative processes and procedures; a specific body of statutes and judicial decisions; and a body of professional ethics and values. The law provides ‘the essential bone structure of social work practice’ (Roberts and Preston-Shoot 2000) and so helps to determine its nature and character.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 2. Legal Capacity

The rights to self-determination and choice are two of the key principles of social work practice. Such an approach is underpinned by the basic legal presumption that adults have the necessary mental capacity to exercise self-determination and choice. However, social work may involve working with service users who lack legal capacity, or have fluctuating capacity, or whose legal capacity is uncertain. It is therefore important for social workers to be aware of the legal rules that help to define mental incapacity and the possible effects that incapacity may have on the rights of a service user.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 3. Referral and Assessment

Access to social care is by means of a referral (which may be a self-referral) to a Council with Social Service Responsibility (CSSR). It is a referral that, where the conditions set out in s.47 National Health and Community Care Act 1990 (NHSCCA 1990) are met, triggers access to an assessment of a person’s need for one or more social services. As can be seen from Figure 3.1, referrals come from many quarters.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 4. Community Care Services

How does a CSSR determine whether to provide services for a person who has been assessed? If services are to be provided, what is their nature and extent? The case of R v Gloucestershire County Council and another ex parte Barry discussed s.2 Chronically Sick and Disabled Persons Act (CSDPA 1970) (although its discussion of ‘need’ has a wider application).
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 5. Carers

Care by professional carers is only one part — a relatively small part — of the totality of care provided in England. The 2011 Census collected data on unpaid carers in the United Kingdom. It revealed the extent to which social care depends on unpaid carers (sometimes referred to as ‘informal carers’) and the potential cost to the state if that care were no longer provided. The term ‘carers’ (rather than ‘unpaid carers’) will be used throughout this chapter, and covers care provided by people such as family members, friends or neighbours, rather than professionals or third-sector bodies. The 2011 Census reports that there are approximately 5.8 million people providing care in England and Wales. This means that one tenth of the population (10.3 per cent) provides care; in 2001, it was 10.0 per cent. Of those providing care, 3.7 million provide 1–19 hours per week, 775,000 provide 20–49 hours and 1.4 million provide 50 hours or more unpaid care.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 6. Mental Health Law

Many of the procedures set out in the MHA 1983 (such as compulsory admission to hospital) involve an Approved Mental Health Professional (AMHP)). However, for a number of reasons, it is important that other social workers are aware of the processes and potential for using the MHA 1983, not least because of the incidence of mental health problems within the community. For instance, the Office of National Statistics has estimated that, at some point in their lives, one in four British adults is likely to experience at least one diagnosable mental health problem (e.g. anxiety, depression, eating problems, dementia, personality disorders, bipolar disorders and schizophrenia) (NHS Confederation (Mental Health Network) 2011). Many people who suffer from mental health problems and who are in need of help and support live in the community. As a result, they are likely to receive the help and support they need in the form of social care services under the provisions of the NHSCCA 1983 (see Chapter 4, p. 77), or s.117 MHA 1983 (see p. 78), or through treatment in the NHS from the general practitioner services, or at a hospital outpatient clinic.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 7. Adult Safeguarding and Protection

As a social work practitioner, you may witness or become aware of situations where vulnerable adults are being either abused or neglected, or suspect that such abuse or neglect is taking place. This may occur at various stages of the social work process, during referral or assessment, or at any other time while the case is ongoing. As in work with abused and neglected children, this is one of the most distressing areas of social care work.
John Williams, Gwyneth Roberts, Aled Griffiths

Chapter 8. Seeking Redress

Although many people are satisfied with the services provided or facilitated by a CSSR, there will inevitably be cases where there is dissatisfaction with the way in which an individual feels they have been treated. Such dissatisfaction may lead to the person making a complaint, or taking legal action against the CSSR. Dissatisfaction may arise from any number of different circumstances. Examples include the following:
  • ■ a failure by a CSSR to assess a person for community care services;
  • ■ the conclusions made in an assessment;
  • ■ rudeness by practitioners or CSSR officers;
  • ■ a failure to take account of the service user’s feelings;
  • ■ failure to provide appropriate services to meet service users’ needs;
  • ■ a failure to involve the service user in decision-making;
  • ■ a failure by a CSSR to take account of the service user’s wishes and desires;
  • ■ a breach of the service user’s human rights;
  • ■ abusive or neglectful treatment of the service user;
  • ■ unacceptable delay in responding or providing services;
  • ■ breaches of confidentiality;
  • ■ a failure by the CSSR to adhere to its own policies, central guidance or the relevant legislation;
  • ■ negligence on the part of the CSSR;
  • ■ discrimination;
  • ■ disagreement over the application or interpretation of the law or guidance;
  • ■ fettering discretionary powers; or
  • ■ disagreement over assessments of capacity.
John Williams, Gwyneth Roberts, Aled Griffiths
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