Judicial Reviews and Ombudsman Reports

1. Judicial Reviews and Ombudsman Reports Disconcerting reflections on law, ethics and the quality of social work practice

2. 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

3. 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

4. Social Workers’ Code of Practice • Practice should: • emphasise human dignity and worth • enhance people’s 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

5. 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

6. 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 people’s complex needs (Re X (Emergency Protection Orders [2006]; Re B [2007]; Re D [2008])

7. True stories • Grace’s stories – an aborted home visit and inventing Children Act 1989 powers • A social worker’s tale – changed witness statement • An inspector’s 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

8. 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

9. 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?

10. 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;

11. Practice assessors’ commentary • “No-one actually mentions law. It’s more of an assumption that it’s 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.”

12. 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])

13. 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

14. 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

15. 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

16. 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

17. Professor Michael Preston-Shoot • Dean, Faculty of Health & Social Sciences • University of Bedfordshire • michael.preston-shoot@beds.ac.uk