Judicial Reviews and Ombudsman Reports

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Judicial Reviews and Ombudsman Reports

• Disconcerting reflections on law, ethics and the
  quality of social work practice

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Structure of the legal rules

• Primary legislation (Acts of Parliament)
• Secondary legislation (Regulations, Statutory
  Instruments)
• Policy Guidance
• Practice Guidance
• Case law
• Audit agency procedures the law in between
  and the process of translation

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Ethical positions

• Duty to act proportionately when qualifying
  rights
• Least intervention appropriate
• Positive duty to promote ECHR rights
• Accountable for practice and decision-making
• Challenge discrimination
• Evolving understanding of Convention rights
• Meaningful consultation prior to decisions
• Sharing information on which reliance placed
• Decisions must reasonable
• Give reasons for decisions
• In writing
• Opportunity to challenge decisions
• Agree records
• Procedural fairness
• Reasonable assessment and intervention

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Social Workers Code of Practice

• Practice should
• emphasise human dignity and worth
• enhance peoples well-being ensure their
  protection
• promote their rights
• challenge and work to improve agency policies,
  procedures and service provision
• notify employers of resource or other
  difficulties impacting on safe working
• be lawful

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Employers Code of Practice

• Employers must
• give staff information about relevant
  legislation for their work
• ensure commitment to social work values,
  principles and knowledge
• provide effective supervision
• establish systems to facilitate reporting of
  operational difficulties
• support social workers so as not to put their
  registration at risk

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Acknowledgements

• Most social work are conscientious but overworked
  and lacking the resources to practise as they
  would like (Re F 2008)
• Practitioners and departments perform valuable
  work that demonstrates dedication, skill and care
  in meeting peoples complex needs (Re X
  (Emergency Protection Orders 2006 Re B 2007
  Re D 2008)

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True stories

• Graces stories an aborted home visit and
  inventing Children Act 1989 powers
• A social workers tale changed witness
  statement
• An inspectors experience reluctance to
  apologise
• Expert by experience accounts of complaints
  procedures
• Whistleblower experiences hostility of truth
  spoken to power
• Student experiences where is the law here?
• What we know about the lived experience of work

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Case law as evidence

• Judicial reviews
• Flawed assessment and service provision
• Pierce v Doncaster MBC 2007
• Failure to follow statutory guidance
• R (Kaur) v Ealing LBC 2008
• Attempt to limit applicability of legal rules
• R (Behre and Others) v Hillingdon LBC 2003
• R (G) v Southwark LBC 2009
• Resource led decisions
• R (Goldsmith) v Wandsworth LBC 2004
• Critical of expressed attitudes and values
• Re F (A Child) 2008
• Critical of practice standards
• R(CD VD) v Isle of Anglesey CC 2004
• Like a computer virus a system infected

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Investigation evidence

• Ombudsman reports
• Denial of services
• Failure to monitor and review care
• Failure to assess
• Failure to act on complaints
• Delays in service provision and assessment
• Failure to protect
• Failure to support staff
• What has happened to social work?

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Law in practice research

• Law is implicit rather than explicit, both in
  expectations of placement learning and in the
  learning opportunities provided to students on
  placement. This mirrors how law is sometimes a
  less visible aspect of practice
• The role of the organisation is influential in
  creating or constraining a learning environment
  in which law can be seen as a significant feature
  of practice
• The legal knowledge and skills of the practice
  teacher, and their recognition of these, are
  influential in enabling students to engage with
  law learning. Maintenance and development of
  legal competence is a neglected aspect of
  practitioners continuing professional
  development in law, but is crucial in enabling
  practitioners to respond to organisational
  constraints on practice

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Practice assessors commentary

• No-one actually mentions law. Its more of an
  assumption that its there.
• Whilst I am an experienced practitioner, I would
  not have the confidence in my knowledge to pass
  on that information.
• We need to teach students to implement agency
  policy.
• When you are qualified you really cannot go out
  there and change the world you can only work
  within the requirements and statutes that your
  agency allows you to.

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Research evidence

• Practitioners and managers may collude in
  departing from best practice
• Absence of challenge to unlawful unethical
  practice hostility towards whistle blowers
• Dealing with ethical concepts and ethical
  dilemmas is limited in practice learning
• Ethical codes do not ensure best practice
• Abusive practice across social (care) work
• Reinstatement by Care Standards Tribunal of
  social workers mitigating factors in inadequate
  supervision, chaotic departments, lack of
  supervision and management action (LA v GSCC
  2007 Forbes v GSCC 2008)

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How?

• Corruption of care (Wardhaugh and Wilding 1993)
• Client characteristics leading to neutralisation
  of moral concerns
• Power and process in enclosed organisations
• Complexity of work exacerbated by constraints
• Absence of accountability

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Or

• Administrative evil (Adams and Balfour 1998)
• Conformity to organisational procedures
• Dulling of conscience and absence of independent
  critical thought
• Erosion of personal judgement
• Public policy-making encouraging moral inversion

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Through the glass darkly?

• Muddled accountability to whom when?
• Limited accountability delegated not designated
  powers and duties
• Ill-defined codes what is a breach? Assume
  favourable agency climate and autonomy
• Prisoners of bureaucracy or conversations without
  rank? Rethinking location for practice.
• Scrutinising the ethics in-between
• Rediscovering moral activity

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Law and ethical literacy

• The distillation of knowledge, understanding,
  skill and values that enables practitioners to
  connect relevant legal rules with the
  professional priorities and objectives of ethical
  practice
• Plus the emotional resilience to comment,
  challenge, critique and resist

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Professor Michael Preston-Shoot

• Dean, Faculty of Health Social Sciences
• University of Bedfordshire
• michael.preston-shoot_at_beds.ac.uk