Social Work Law
Law is heavily imbedded in social work practice. Social workers work within the framework of the law in three major capacities. Firstly; as regulators, secondly; as advocates or agents for legal rights, and thirdly; by developing and commenting on social policy. Social workers are intrinsically linked with the law, by working with people for whom the law is designed to protect. Social workers work in different fields of social work practice, both directly and indirectly. In all fields of practice they will be exposed to law in some capacity. As such, a good practical knowledge of law is essential in performing the role of social worker. This essay defines the role of a social worker in regards to meeting their clients’ legal needs.
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It also covers the various roles that social workers take on in regards to the law, the significance and extent of law in social work and the ethics and the general legal context that applies to practice.
Social Work and Fields of Practice: Social work is a field concerned with improving people’s lives by providing liberty, freedom and justice. Because of these values, the clients of social workers are usually disadvantaged, subjugated, marginalised or compromised in some way. Law is essentially designed to provide freedom and justice to protect people, in most cases for people who are disadvantaged, subjugated or marginalised. This is the essential link between law and social work. Hence, in improving people’s circumstances, social workers will be required to follow laws, legal processes and professional guidelines. Social work is divided into fields of practice which social workers work directly or indirectly in. In some fields, the social worker will perform a regulatory role by administering the law appointed under relevant legislation, for example, child protection and welfare. The social worker can also work as an advocate or agent for clients’ rights provided for under legislation; in fields such as such as disability, aged care, domestic violence and refugee/ asylum seeker support. The social worker can also work in indirect practice and provide support to these groups by producing social policy or by commenting and advocating for legislative changes.
Significance of Law in Social Work In all social work functions and roles, the worker is required to have a good understanding of the relevant legislation. As Braye and Preston-Shoot (2006) indicate, the law is a core mandate for social work practice. The law is a vital instrument, which social workers can use to address many social problems. Social workers are required to interpret the law and provide advice, apply the law and comment on the law. Braye, Preston-Shoot and Wrigley (2011) found that many social workers feel anxious about the application and interpretation of the law. They also found many social workers were more likely to rely on organisational and procedural approaches than take guidance from law or legal processes. Braye & Preston-Shoot (2006) argue that social workers need a more strategic relationship with the law to address these disparities. There has been much evidence to suggest that the focus on law in social work education, practice and professional development is not sufficient to cover the extent to which law applies in social work (Braye & Preston-Shoot, 2006; Braye et al., 2011; Madden & Wayne, 2003).
There is a growing trend towards providing more education and awareness of law in social work practice and education, particularly after some serious failures of applying the law in social work. These high-profile failures raised public questions over the proficiency of practitioners in applying instruments of law to protect their clients. (Braye et al., 2011; Braye & Preston-Shoot, 2006). In many of these cases it was seen that the practitioner was remiss in applying their legal mandate. Braye et al. (2011) commented that the stakes are high in applying law in social work practice and bad decision-making processes can have devastating results. Therefore, due diligence is critical when learning and applying law as a social …show more content…
worker.
Using the Law
Social workers will generally work with two broad types of clients in relation to legal problems; clients who have perpetrated the law, and clients who need protection by the law. It is wrong to assume that legal intervention will always have a positive outcome and be justly applied. Madden and Wayne (2003) state that laws can be harmful and anti-therapeutic for groups and individuals, despite the initial intent. Madden and Wayne (2003) explored an emerging perspective on law in social work called therapeutic jurisprudence, which asks various legal actors to critically examine laws and their impact on clients. The ideal outcome being, that the law can function as a therapeutic instrument for individuals, groups and communities. Madden and Wayne (2003) stated that the role of the social worker is critical in executing therapeutic jurisprudence due to their deeper understanding of complex societal issues. They also stated that social work as a profession, has been neglectful of its role in influencing legal processes to improve legal decisions for clients. Therapeutic jurisprudence could then be seen as the intersection of law and social work, as it uses law therapeutically and make system changes that improve the outcomes for clients, groups and communities. All fields of practice will rely on more than one piece of legislation, as Braye & Preston-Shoot (2006) state, no one piece of legislation can show the whole legal framework. For example, if you are a social worker in the field of disability services in Queensland, you will be required to work regularly with at least several Acts including; Disability Services Act 2006, Anti-Discrimination Act 1991, Powers of Attorney Act 1998, Public Trustee Act 1978, as well as their relevant subordinate legislation. You will also be exposed to other relevant legislation, depending on the role or case requirements. In applying law in a disability services role, you will be required to work with clients, their families and other stakeholders to ensure your clients are protected from discrimination, abuse and maltreatment and provided with the services and support they are entitled to. In direct disability social work practice, you could be called upon to interpret various laws or legal processes, provide advice for your clients, act as a agent for your client, help your clients understand laws and legal processes and to provide evidence or reports. There are opportunities for working in social policy; helping to shape disability policy and advocating for disability rights. With the National Disability Insurance Scheme (NDIS) set to roll out in July 2016, there is plenty of scope for helping to shape legislation in regards to disability service provision. This also demonstrates the changing nature of legislation and the importance for social workers to be aware of changes in legislation. In addition to using legislation for their roles, social workers rely on core legal principles to guide their actions and decision-making.
Legal Principles Social work as a profession is also held accountable by law to protect social workers and their clients. Namely, the social worker has legal requirements to provide a duty of care to their clients as well as providing procedural fairness, or natural justice, in cases where a decision needs to be made. Social workers are also required to work according to a Code of Ethics (2010) provided by the Australian Association of Social Workers. The Code of Ethics provides values and responsibilities for practicing social work. Many of these ethics correlate with duty of care and procedural fairness. Duty of Care Most professional practitioners are held accountable under the legal principle of Duty Of Care and social workers are no different. In Swain (2013) duty of care is summarised as an obligation to take reasonable care to avoid acts or omissions that could be foreseen to be likely to injure another. Swain (2013) further explains that where advice is provided to a service user, it is assumed the service user will then rely on that information and a duty of care is essential. In addition to providing advice, a duty of care applies explicitly to the many social workers employed to exercise authority on behalf of the Government agencies. Swain (2013, p. 47) states that a duty of care must be taken into account when exercising powers or discretion when “it is reasonably foreseeable that an act or omission by the statutory employee would result in injury to the person claiming to be adversely affected”. Social workers need to be mindful of duty of care in practice especially when providing advice of executing statutory authority. The practitioner’s duty of care is referred to throughout the AASW Code of Ethics (2010) as duty of care is closely tied in with social work professional ethics and values to do no harm.
Procedural Fairness (natural justice) Procedural fairness is the legal principle which guards the use of power in decision-making by authorised people.
The principle essentially ensures accountability by the decision maker to provide evidence for the decision made, as well as a right by the person affected by the decision to be heard. The principle of procedural fairness provides a good framework for decision-making in general, and is therefore the cornerstone of the AASW Code of Ethics (2010) ethical practice and decision-making guidelines. As Swain (2013, p.85) states, “much of social work practice involves the exercise of explicit or implicit power, and much of its decision-making is discretionary”. With discretionary decision-making, there has to be a provision for accountability. Procedural fairness relies on several criteria which can be summarized as thus: a decision has to be legislatively and professionally justifiable; the decision maker has to provide the other party the right to heard; the decision needs to be made without bias; the decision needs to be made based on relevant evidence; and finally, the decision maker has to provide the other party justifiable reasoning for the decision (Swain,
2013). Procedural fairness provides the social worker a good foundation of ethical practice and decision-making and should be observed with all decisions made by the social worker whether as an authority appointed by Government or otherwise. This essay has demonstrated that law and social work are inextricably linked. Like social work, law exists to protect and support the disadvantaged, though it does not always fulfill its obligation. The essay also examined law from a social work practice perspective: the extent and significance of law; and how the profession uses law and legal principles to fulfill its function. Law forms the core mandate of social work and every role and field of social work is impacted by the legal system. Social workers will encounter clients with varying legal problems in social work. As the essay has shown, the key roles for addressing their clients’ problems is by supporting their clients through the application and interpretation of legal processes. In addition to applying and interpreting the law, social workers are given the opportunity to enrich law and legal processes by advocating for changes to support their clients’ legal concerns. While the relationship between law and social work is strong, historically, educators and social workers have been remiss in prioritising law. As such, confidence and knowledge about the use of law in social work has been lacking in practice. Emerging perspectives, however, are seeking to advance law in social work through education and professional development; as well as encouraging social workers to critically examine law in the context of social work and advocate for change.
References
Braye, S., & Preston-Shoot, M. (2006) The role of law in welfare reform: critical perspectives on the relationship between law and social work practice International Journal of Social Welfare, 15, 19-26
Braye, S., Preston-Shoot, M., & Wigley, V. (2011) Deciding to use the law in social work practice, Journal of Social Work, 13, 75-95, DOI: 10.1177/146801731143176
Madden, R. G., & Wayne, R. H. (2003) Social work and the law: A therapeutic jurisprudence perspective. Social Work, 43, 338-347.
Swain, P. (2013). The ethics of social work practice. In P. Swain & S. Rice (Eds), In the shadow of the law: The legal context of social work practice (3rd Edn.) (pp. 36-63). Sydney, Australia: The Federation press.
Swain, P. (2013). Procedural fairness and social work practice. In P. Swain & S. Rice (Eds), In the shadow of the law: The legal context of social work practice (3rd Edn.) (pp. 85- 97). Sydney, Australia: The Federation press.
It also covers the various roles that social workers take on in regards to the law, the significance and extent of law in social work and the ethics and the general legal context that applies to practice.
Social Work and Fields of Practice: Social work is a field concerned with improving people’s lives by providing liberty, freedom and justice. Because of these values, the clients of social workers are usually disadvantaged, subjugated, marginalised or compromised in some way. Law is essentially designed to provide freedom and justice to protect people, in most cases for people who are disadvantaged, subjugated or marginalised. This is the essential link between law and social work. Hence, in improving people’s circumstances, social workers will be required to follow laws, legal processes and professional guidelines. Social work is divided into fields of practice which social workers work directly or indirectly in. In some fields, the social worker will perform a regulatory role by administering the law appointed under relevant legislation, for example, child protection and welfare. The social worker can also work as an advocate or agent for clients’ rights provided for under legislation; in fields such as such as disability, aged care, domestic violence and refugee/ asylum seeker support. The social worker can also work in indirect practice and provide support to these groups by producing social policy or by commenting and advocating for legislative changes.
Significance of Law in Social Work In all social work functions and roles, the worker is required to have a good understanding of the relevant legislation. As Braye and Preston-Shoot (2006) indicate, the law is a core mandate for social work practice. The law is a vital instrument, which social workers can use to address many social problems. Social workers are required to interpret the law and provide advice, apply the law and comment on the law. Braye, Preston-Shoot and Wrigley (2011) found that many social workers feel anxious about the application and interpretation of the law. They also found many social workers were more likely to rely on organisational and procedural approaches than take guidance from law or legal processes. Braye & Preston-Shoot (2006) argue that social workers need a more strategic relationship with the law to address these disparities. There has been much evidence to suggest that the focus on law in social work education, practice and professional development is not sufficient to cover the extent to which law applies in social work (Braye & Preston-Shoot, 2006; Braye et al., 2011; Madden & Wayne, 2003).
There is a growing trend towards providing more education and awareness of law in social work practice and education, particularly after some serious failures of applying the law in social work. These high-profile failures raised public questions over the proficiency of practitioners in applying instruments of law to protect their clients. (Braye et al., 2011; Braye & Preston-Shoot, 2006). In many of these cases it was seen that the practitioner was remiss in applying their legal mandate. Braye et al. (2011) commented that the stakes are high in applying law in social work practice and bad decision-making processes can have devastating results. Therefore, due diligence is critical when learning and applying law as a social …show more content…
worker.
Using the Law
Social workers will generally work with two broad types of clients in relation to legal problems; clients who have perpetrated the law, and clients who need protection by the law. It is wrong to assume that legal intervention will always have a positive outcome and be justly applied. Madden and Wayne (2003) state that laws can be harmful and anti-therapeutic for groups and individuals, despite the initial intent. Madden and Wayne (2003) explored an emerging perspective on law in social work called therapeutic jurisprudence, which asks various legal actors to critically examine laws and their impact on clients. The ideal outcome being, that the law can function as a therapeutic instrument for individuals, groups and communities. Madden and Wayne (2003) stated that the role of the social worker is critical in executing therapeutic jurisprudence due to their deeper understanding of complex societal issues. They also stated that social work as a profession, has been neglectful of its role in influencing legal processes to improve legal decisions for clients. Therapeutic jurisprudence could then be seen as the intersection of law and social work, as it uses law therapeutically and make system changes that improve the outcomes for clients, groups and communities. All fields of practice will rely on more than one piece of legislation, as Braye & Preston-Shoot (2006) state, no one piece of legislation can show the whole legal framework. For example, if you are a social worker in the field of disability services in Queensland, you will be required to work regularly with at least several Acts including; Disability Services Act 2006, Anti-Discrimination Act 1991, Powers of Attorney Act 1998, Public Trustee Act 1978, as well as their relevant subordinate legislation. You will also be exposed to other relevant legislation, depending on the role or case requirements. In applying law in a disability services role, you will be required to work with clients, their families and other stakeholders to ensure your clients are protected from discrimination, abuse and maltreatment and provided with the services and support they are entitled to. In direct disability social work practice, you could be called upon to interpret various laws or legal processes, provide advice for your clients, act as a agent for your client, help your clients understand laws and legal processes and to provide evidence or reports. There are opportunities for working in social policy; helping to shape disability policy and advocating for disability rights. With the National Disability Insurance Scheme (NDIS) set to roll out in July 2016, there is plenty of scope for helping to shape legislation in regards to disability service provision. This also demonstrates the changing nature of legislation and the importance for social workers to be aware of changes in legislation. In addition to using legislation for their roles, social workers rely on core legal principles to guide their actions and decision-making.
Legal Principles Social work as a profession is also held accountable by law to protect social workers and their clients. Namely, the social worker has legal requirements to provide a duty of care to their clients as well as providing procedural fairness, or natural justice, in cases where a decision needs to be made. Social workers are also required to work according to a Code of Ethics (2010) provided by the Australian Association of Social Workers. The Code of Ethics provides values and responsibilities for practicing social work. Many of these ethics correlate with duty of care and procedural fairness. Duty of Care Most professional practitioners are held accountable under the legal principle of Duty Of Care and social workers are no different. In Swain (2013) duty of care is summarised as an obligation to take reasonable care to avoid acts or omissions that could be foreseen to be likely to injure another. Swain (2013) further explains that where advice is provided to a service user, it is assumed the service user will then rely on that information and a duty of care is essential. In addition to providing advice, a duty of care applies explicitly to the many social workers employed to exercise authority on behalf of the Government agencies. Swain (2013, p. 47) states that a duty of care must be taken into account when exercising powers or discretion when “it is reasonably foreseeable that an act or omission by the statutory employee would result in injury to the person claiming to be adversely affected”. Social workers need to be mindful of duty of care in practice especially when providing advice of executing statutory authority. The practitioner’s duty of care is referred to throughout the AASW Code of Ethics (2010) as duty of care is closely tied in with social work professional ethics and values to do no harm.
Procedural Fairness (natural justice) Procedural fairness is the legal principle which guards the use of power in decision-making by authorised people.
The principle essentially ensures accountability by the decision maker to provide evidence for the decision made, as well as a right by the person affected by the decision to be heard. The principle of procedural fairness provides a good framework for decision-making in general, and is therefore the cornerstone of the AASW Code of Ethics (2010) ethical practice and decision-making guidelines. As Swain (2013, p.85) states, “much of social work practice involves the exercise of explicit or implicit power, and much of its decision-making is discretionary”. With discretionary decision-making, there has to be a provision for accountability. Procedural fairness relies on several criteria which can be summarized as thus: a decision has to be legislatively and professionally justifiable; the decision maker has to provide the other party the right to heard; the decision needs to be made without bias; the decision needs to be made based on relevant evidence; and finally, the decision maker has to provide the other party justifiable reasoning for the decision (Swain,
2013). Procedural fairness provides the social worker a good foundation of ethical practice and decision-making and should be observed with all decisions made by the social worker whether as an authority appointed by Government or otherwise. This essay has demonstrated that law and social work are inextricably linked. Like social work, law exists to protect and support the disadvantaged, though it does not always fulfill its obligation. The essay also examined law from a social work practice perspective: the extent and significance of law; and how the profession uses law and legal principles to fulfill its function. Law forms the core mandate of social work and every role and field of social work is impacted by the legal system. Social workers will encounter clients with varying legal problems in social work. As the essay has shown, the key roles for addressing their clients’ problems is by supporting their clients through the application and interpretation of legal processes. In addition to applying and interpreting the law, social workers are given the opportunity to enrich law and legal processes by advocating for changes to support their clients’ legal concerns. While the relationship between law and social work is strong, historically, educators and social workers have been remiss in prioritising law. As such, confidence and knowledge about the use of law in social work has been lacking in practice. Emerging perspectives, however, are seeking to advance law in social work through education and professional development; as well as encouraging social workers to critically examine law in the context of social work and advocate for change.
References
Braye, S., & Preston-Shoot, M. (2006) The role of law in welfare reform: critical perspectives on the relationship between law and social work practice International Journal of Social Welfare, 15, 19-26
Braye, S., Preston-Shoot, M., & Wigley, V. (2011) Deciding to use the law in social work practice, Journal of Social Work, 13, 75-95, DOI: 10.1177/146801731143176
Madden, R. G., & Wayne, R. H. (2003) Social work and the law: A therapeutic jurisprudence perspective. Social Work, 43, 338-347.
Swain, P. (2013). The ethics of social work practice. In P. Swain & S. Rice (Eds), In the shadow of the law: The legal context of social work practice (3rd Edn.) (pp. 36-63). Sydney, Australia: The Federation press.
Swain, P. (2013). Procedural fairness and social work practice. In P. Swain & S. Rice (Eds), In the shadow of the law: The legal context of social work practice (3rd Edn.) (pp. 85- 97). Sydney, Australia: The Federation press.