Social Workers Aim To Support Service Users And Carers And Promote Their Rights

Social workers aim to support service users and carers and promote their rights. How does an understanding of the law, as outlined in K217, assist social work professionals to achieve this aim?

It is contended by some that social work is completely separate from any notions of law. Social work as a practice may involve different ways of approach and working compared to legal practice (Slater and Finck, 2011). Over time, there have been different views to why there is a relevance to social workers having an understanding in law. As an example, Blom-Cooper argues that law is in fact the start and finish of any actions and social work is not exempt from this belief (Blom-Cooper, 1985). On the other hand, Stevenson (1989) argues that social work interventions are focused on an ethical duty of care as opposed to any legal notions.

In this assignment, I will provide further understanding on the importance of the role of a social worker and why knowledge of the law is relevant in their execution of their duties to promoting service user and carer rights.

The role and function of a social worker from an advice note and perspective from the College of Social Work (2014, p. 3D) is to have a lead role in preventing and safeguarding those who may be at risk of abuse, harm and prevent those who may be at risk of social exclusion. Social workers look at the circumstances, situations and the needs of the person and family. Consequently, when necessary they take protective action guided by legislation to enable them to intervene to safeguard adults and children deemed to be at risk of abuse.

When becoming a social worker there is a module where social workers learn aspects of law that are relevant to their practice. It is however the responsibility and the expectation of a social worker that when qualified as a social work practitioner, they continue to develop their knowledge and skills in understanding law as and when there are changes made. All social workers who are in practicing in Wales are registered with Social Care Wales. This ensures that their conduct, professionalism, and fitness to practice is maintained by following the Code of Professional Practice for Social Care (Social Care Wales, 2019).

In looking at the first point to the relevance between social work and the law, it the law that helps bring balance and resolution to conflicting principles and practices that can be confusing to a social worker to apply. An example is the case of R v Gloucestershire County Council, ex parte Barry [1997] 2 A11 ER 1. This case was a complex and difficult one that regarded the extent to which a social worker can take into account the resources available by the Local Authority when providing an assessment of support to those with a disability (House of Lords, 1997). To provide further clarification, a judgement case of Re O (A Child) (Supervision Order: Future Harm) [2001] EWCA Civ 16 where it was stated that legal remedies are to be made in proportionately, such that where a supervision order has been passed in a proportionate way to the circumstances to this case, as opposed to simply adhering to the care order that was applied for (Family Law Week, 2015). These cases are still relevant today as they provide knowledge and understanding of the law for the social workers and Local Authorities, helping resolve conflicts and bring balance when carrying out their social work duties and responsibilities, which, is to promote and support service user and carer rights.

One of the most important aspects of the social work role is to uphold and maintain confidentiality. The Code of Ethics for Social Work by the British Association of Social Workers (BASW, 2021), identifies that social workers should strongly respect a person’s confidentiality and ensure this is applied to help maintain trust and a good working relationship. This means that the confidential information regarding the service user, carer or families unless consent obtained by them, then information is not to be shared. The social worker will need to understand the law around confidentiality as in some cases, information would need to be shared without a person’s consent to help prevent risk or harm to themselves or others. An example is in a case of W v Edgell (W v Egdell [1989] 1 A11 ER 1089), the social worker in this case had a duty to disclose and share a psychiatric report to the Home Secretary. It was deemed to be in the public interest as the service user was assessed to be dangerous and the information shared would protect the service user and the wider public (UKCEN, 2021). Therefore, knowledge and understanding of the law in regard to confidentiality will help the social worker in understanding their responsibilities towards service user and carers and understand which rights of theirs needs protecting.

Knowledge of the law is useful to a social worker as it outlines to the social worker what their duty and power is under a legal framework. This helps the social worker understand the limits and, what they can do to promote the rights of the service user and carer. Where law has imposed a duty, then the social worker has no choice but to carry out the action (The Open University, 2021a). No discretion by the social worker or shortfall of resources is not a permissible ground to derogate from legal duties (Brammar, 2015). An example of this is Section 19 (s19) (Welsh Government, 2014a) and s21 (Welsh Government, 2014b) (and many more sections) of the Social Services and Well-being (Wales) Act 2014 (SS(W)WA, 2014). Whereby it states that where a local authority comes to know that an adult or child in the area requires care and support, the local authority has the duty to assess if the adult has such needs, and if so, what those needs are.

The social worker is under a duty to undertake such assessments of adults and children who are under a need. Therefore, where the provisions frame the responsibility as ‘shall’ or ‘must’, then it is an unavoidable duty that must be followed. On the other hand, where a social worker is granted a power, then they have an element of discretion as to whether or how they carry out the duty (The Open University, 2021a). Usually, a power gives the social worker authority to act in a certain way but also provides the scope on how to act. An example of this is under Schedule 2 of the Children Act 1989, whereby Schedule 2(2) states that the authority may make payments to the parent in lieu of expenses incurring from that person visiting the child (UK Government, 1989a). The social worker must therefore not only have knowledge regarding these various provisions but more importantly must be able to appreciate the distinction between duties and powers, as this can shape the way in which social workers perform their role.

Whilst an assessment can be offered and made for the service user with needs, adult or child. Social workers need to be aware that the carer who provides care and support to the service user is also entitled to under Section 24 of the SS(W)WA 2014 (Welsh Government, 2014c). The rights of a carer to have an assessment places a duty on the Local Authority to assess the needs of the carer even if the needs are low. Even if the cared for refuses an assessment, it is important to note that the carer still has a right to an assessment under the Act. This is also irrespective of the carer financial resources. The carer’s assessment is to be needs led and not based on what support is readily available. If the carer chooses not to undertake such assessment then they have a right under s25 and s27 SS(W)WA 2014 to refuse and assessment and the Local Authority then has no duty to complete such an assessment (The Open University, 2021). If all parties agree then under the Act the assessment for cared for and carer can be combined but the social worker will need to consider the potential conflict of interest.

In Wales, service users and carers have the right to have their assessments including the provision of services, to be undertaken in the Welsh language; this is referred to and known as the ‘Active Offer’ (Welsh Language (Wales) Measure 2011). In 1993, the Welsh Government introduced new legislation and guidance known as the Welsh Language Act 1993. This Act ensures that those persons who may be vulnerable or have a disability and who are not able to communicate using their first language may then be at a disadvantage. It is important for social workers to offer the service user and or carer the option of having their assessment to be undertaken in the Welsh language which then helps build confidence, a person-centred approach and also empowerment. It is important for the social worker to be aware that a request for assessment in Welsh should not result in delay of assessment.

The promotion and preservation of the rights of the service user is one of the most important functions and purposes of the role of a social worker. In such a case, knowledge of the law would clearly assist social workers in understanding what the rights are that the social worker must promote. As the Social Services and Well-being (Wales) Act 2014, previously mentioned outlines the right to an assessment for care and support and the right for such services to be provided. There is a right (under various statutory instruments) not to be discriminated against in any given circumstance (such as the provision of care services based on certain protected characteristics such as race, sex, disability and so on)(The Open University, 2021b); the right to a child to refuse medical or psychiatric examination under the Children Act 1989; and finally the right to access the information that is being held regarding the service user under the Data Protection Act 1998. It is clearer that since the service user has a wide range of rights available to them, the social worker who is seeking to uphold these rights needs to be aware of these rights first. In such a case, knowledge of the law and specific Acts would be necessary and highly useful in the execution of the social work duties.

Finally, it is important also to note that the law demands that the social worker executes his functions in a manner that is anti-oppressive and anti-discriminatory in practice. The legal context of this naturally lies within the Equality Act 2010 and many other pieces of legislation, which either depend upon the Equality Act 2010 or specifically incorporate certain aspects of discrimination law. It is therefore highly necessary for the social workers to be aware of these standards, as anti-discriminatory and anti-oppressive practice has been integral to social work today (Dominelli, 2002). The BASW Code states that social workers should promote and contribute to the development of positive policies, procedures and practices, which are anti-oppressive and empowering. Social workers should respect people’s beliefs, values, culture, goals, needs, preferences, relationships and affiliations. Social workers should also recognise their own prejudices to ensure they do not discriminate against any person or group. Social workers should ensure that services are offered and delivered in a culturally appropriate manner (BASW, 2021).

It is necessary for social workers to be aware of anti-discrimination and equality law, so as to be able to comply with this code. Specifically, it is worth noting that social work actions would themselves also be covered by anti-discrimination legislation, making it all the more important for one to be aware of the impact of Equality Act 2010, which is the hallmark of anti-discriminatory and anti-oppressive practice approach. Section 149(1) of the Equality Act 2010 states, prominently that the public authority, when exercising its functions, must have regard to the need to eliminate all forms of discrimination and harassment such that it can advance equality of opportunity between people who share the protected characteristics and those who do not; by this, it seeks to help foster good and strong relationships between both such groups of people.

Another statutory example of this is found under Section 22(5) of the Children Act 1989, which states that in making placement decisions, due consideration must be paid to the religious, persuasion, racial origin, linguistic and cultural background of the child (UK Government, 1989b). In Wales, an example of this is under Section 9 of the SS(W)WA 2014 which states that the equality is one of the key standards that can be and must be incorporated into Codes that the social workers have to follow (Welsh Government, 2014d).

The Human Rights Act 1998 (HRA 1998) is important to know and adhere to when carrying out the social work role. The HRA 1998 sets out the rights and freedoms everyone within the UK is entitles to. It is the incorporation of rights that were set by the European Convention of Human Rights, which then transpired into domestic British Law, becoming law in the UK in October 2000. An example of the HRA 1998 is that of Article 8, that everyone has a right to have his or her family and private life respected (UK Government, 1998) but arguably, this can be overturned if deemed a person is required to undergo a mental health assessment under the Mental Health Act 1983. A person can be detailed under the MHA 1983 with force if necessary, to prevent harm or risk to one self or others (UK Government, 1983).

Next, under the Mental Capacity Act 2005, Section 1 states clearly that a person must be assumed to have capacity unless it is proven that they lack such capacity. That the person is not to be treated as one who cannot make a decision unless it is shown prominently that all practical steps that can be taken to help the person make a decision have been taken (UK Government, 2005). The Mental Capacity Act 2005 legislative example shows that it is important that the social worker does not treat the service user as incapable of making a decision and cannot force decisions onto the service user as this will constitute oppressive practice. Indeed, even where the social worker is operating fully for the welfare of the service user, it is imperative that this is completed in a consensual and co-operative and respective manner, as otherwise, the social worker would be oppressing the service into doing something. The key point here is that unless the social worker is aware of the law and how autonomy, capacity and equality works, there are high chances that the social worker could infringe on these notions and invalidate or illegitimate their own social work which otherwise has great purpose.

It is important for social workers to understand the support available for those persons who may lack capacity under the Mental Capacity Act 2005. The role of advocacy is a vital role of support to a service user as in the Act, an Independent Mental Capacity Advocate (IMCA) is to be allocated to represent when a service user is said to be going to be in hospital as a long-term stay patient or is undergoing serious medical treatment (The Open University, 2021c). In understanding the functions and the expectations of an IMCA, under Section 36(2) of the Mental Capacity Act 2005 the functions are laid out and provides information on the role and expectations of an IMCA such as; supporting a person to participate fully in decision-making, represent and ascertain the views, wishes, feelings, beliefs and values of the service user. The IMCA will help the service user explore all options available regarding care and they will evaluate all information presented to them regarding the service user care and support (The Open University, 2021c).

Given that service users are bound to be people who have disabilities or have been mistreated in ways anticipated by the protected characteristics outlined in the Equality Act 2010 and Children Act 1989. Knowledge of these Acts would be imperative and practical application of the provisions must also be learned by the social workers, as otherwise they will perpetrate a similar kind of harm from which the service user is seeking to relief. Evidently, knowledge of the law would be very helpful and supportive for the social worker in promoting rights of service users and carers by making social workers work anti-oppressive and anti-discriminatory.

If a service user and or carer have a right under Section 171 of the SS(W)WA 2014 to make a complaint against any of the social services functions, services, and provisions. It is important for the social worker to be aware of their Local Authority complaints policy and procedure so that they are able to pass such information to the persons who are seeking to make a complaint. If the service user feels that the complaint need to be made is for further investigation then the social worker, under Section 171 of the SS(W)WA will be aware that a complaint can be made to the Public Services Ombudsman for Wales (Welsh Government, 2014e).

In summary, this assignment concludes that unlike certain commentator’s views in the assignment introduction, there is a clear link between the law and social work and knowledge of the law would be of immense use for the social worker to preserve and promote the rights of service users who require care. There are various reasons for this, while it is not denied that social work is one that is heavily grounded in ethics, increasingly too the high number of legislations have made it necessary for the social worker to understand law, as this makes it easier for the social worker to understand their role in the provision of care and thereby properly deliver such a service.

The key reasons noted in this assignment provide further clarification to that knowledge of the law can help the social worker in overcoming confusions on how to execute certain functions, they show clearly on the rights that the social worker is seeking to uphold. It helps with both upholding and departing from confidentiality in clearly defined situations, explain on accountability concerns, highlight their duty and powers and the distinction between them and lastly, it helps social workers executing their functions in an anti-oppressive and anti-discriminatory manner.