By Matt Bee
There’s something unsettling about receiving a solicitor’s letter. Maybe it’s the curt, clipped prose, the ‘wherefores’ and ‘whosoevers’. Or maybe it’s the fear of having a day in court. But whenever one of those envelopes hits my desk, with the legal firm’s address stamped neatly on the back, I can’t help worrying what I’ll find inside.
And delving further into the matter doesn’t do much to allay my fears. As social workers we must all know the law, but sometimes the law struggles to know itself. For instance, try reading up on deprivations of liberty at the moment and you’ll come across a bewildering array of views.
Meanwhile, as that debate rumbles on, at ground level there are practitioners, like me, who just want to know what all this means in practice. To know for sure, that sometimes means seeking legal advice of our own.
Power dynamic
And that throws into light an interesting power dynamic between social work and the legal profession. Just as a letter from a solicitor can ring fear in our hearts, so too can a legal expert on our side of the fence provide firm reassurance.
Here we are, as social workers, operating on the periphery of a strange world we only half understand: a world of courts and barristers, wigs and gowns, weighty documents and impenetrable language; a world that can impose fines and sanctions. So little wonder, then, that we’re quick to welcome any expert who can help navigate the pitfalls that might await us.
Having such a person on ‘our side’ should instil a real sense of confidence. But, actually, it can have quite the opposite effect.
I’ve seen it several times. Once a solicitor has been consulted – particularly if this is pre-empting a legal complaint – the intricate power dynamics within a care team can go to pot. Social workers are hesitant to reach a decision without their manager’s approval.
Paralysis
Managers wait on solicitors. And solicitors are often waiting to hear back from someone else. Soon, the care team jams solid, like one of those mini-roundabouts where three cars arrive at once and everyone is giving way to everyone else. Fearing legal action causes a strange paralysis.
Or sometimes the opposite happens, and practitioners are all too ready to dive in. They read up on law themselves. This, in itself, is nothing to criticise. But then they cite it at each and every opportunity. Lengthy emails are dispatched back and forth, each weighed down heavily with legal text copied and pasted from elsewhere, and fired like salvos from one warring side to the other. It can be a little bewildering to be caught in the middle when two such professionals lock horns.
Negative impact on service user
Legal disputes almost always have negative ramifications for the service user. Care review meetings degenerate into legal workshops. The focus slips from the person at the heart of the debate to the debate itself, and a client’s case – if only briefly – is no longer about them but about who is right, who is wrong, and who can find the best legal argument to make their point.
This isn’t to say that such conflicts are unnecessary. Indeed, they are sometimes inevitable. A strongly worded letter might be the only way to prise a service from the hands of another provider, or to advocate for the service user in some other way.
But it’s no good if, in the process, we turn ourselves into faux solicitors. By the same token, it’s no good if we inadvertently push solicitors into the role of social workers – inviting them to take a lead in all our decision-making.
This blurring of roles is something we need to be mindful of – yet it’s such an easy trap to fall into. And if we return back to that uneasy feeling in the pit of the stomach when an unexpected legal letter lands on our desk, I think that explains it all.
In awe of the law
The truth is, most of us are in awe of the law. And if we’re not, then the organisations we work for are. They certainly don’t want a day in court, so managers, and managers above them, descend on any case becoming a bit litigious, providing direction, giving the case some ‘steer,’ pushing it towards a solicitor for guidance.
But, if we’re not careful, this can pull attention away from the service user. And, if that happens, I think it falls to us, as social workers, to drag the focus back. Yes, we should work alongside solicitors and follow their advice, and be grateful of it. But we should be careful not to be too enamoured with legalities, or we lose sight of who the legalities are actually about.
Matt Bee is a social worker and freelance writer, based in the North East
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It’s a social worker’s duty to know the law in order help make it work for people. The answer is not to avoid being “too enamoured with legalities” (whatever that means) but to advocate for the person from a position of informed wisdom. Your pronouncements, aside form lacking any real substance, are incredibly patronising to social workers and lawyers. Some of the best social work thinkers I’ve met have been local authority solicitors, and some of the sharpest legal minds have been social workers.
We should view opportunities to resolve matters in court with optimism, not dread. Otherwise, we have already forsaken hope. And we are very much in the business of hope. That’s what we bring to court proceedings, not half-baked musings on person-centredness.
Absolutely this.
some of the sharpest legal minds have been social workers
Really???
I suspect those you venerate may give the impression of knowing what they are talking about. There are good lawyers and bad lawyers for sure, but I would not trust any social worker who insisted they knew ,the law as pertains specific statutes, case law, interpretation, related legislation etc etc.
As an AMHP and a BIA i do my best to practice good social work within the law as i understand it. But I am always guided by best practice principles, not the minutae of the latest legal judgements and their interpretation. As the author says, in the case of DOLS, it is increasingly difficult to understand the law.
DOLS is a very good example of what happenns when lawyers get hold of social policy. There is the world of difference between a court room and a residential home.
As for viewing “opportunities to resolve matters in court with optimism”. Remember that old adage of barristers ” There`s no such thing as justice, there`s just us”.
Courts are both adversarial and retrospective . Neither of these qualities equip them well to meet the needs of the social care arena.
Phil, it’s not clear to me how you get from the statement “some of the sharpest legal minds have been social workers” to the notion that I hold such people in veneration. That’s quite a leap, and quite off the mark.
The rest of your response rather makes my point for me.
My daily practice is at the interface of litigation and care and, yes, I approach my work with optimism and hope, even if the best I can hope for is damage limitation. Yes, the adversarial legal system is not suited to social care issues and it too often harms rather than protects. But it’s what we’ve got, so we better work hard to make it work for people while also contributing to reform, with hope and a claim to some knowledge of how the law can, does, should and should not shape the lived experience of vulnerable people.
Otherwise, we may as well pack up and go home.
Weirdly, I find myself caught between the two opinions expressed above by Phil, and by “AirstripWon”. Having experienced work within a Forensic Social Care setting, I have seen firsthand what it is like when Social Care and the Law meet in Tribunals and Courts.
From my perspective, I cannot help but think that there is a huge problem, here, in that all Social Work must be undertaken with reference to the laws of the land; but the majority, if not all, of Social Workers have little to no training in the law and how to interpret it. When employed as a Social Worker, the very nature of the work that one undertakes involves working with people who are generally:
a) Disabled, or Learning Disabled, and thus subject to legislation along the lines of The Equality Act, anti-discriminatory legislation, the Community Care Act and so forth. The day-to-day lives of many disabled people, and people who are chronically ill, mean that they are affected in a variety of ways by issues that may be subject to UK legislation. Social Workers who are employed to work with such individuals need to be aware of this, and need to have some comprehension of the relevant legislation. For example, if a disabled client faces discrimination at work, a Social Worker may need to know what to do, who to refer to for assistance, and what legislation to turn to in order to back up any action taken.
b) Disadvantaged or abused, in a wide variety of ways. Social Workers may work with children and adults who have been abused or neglected, and must therefore have some understanding of legislation that is relevant in such cases – for example The Children Act, or Safeguarding Policies. They may work in cases of domestic violence, and then have to have some understanding of the court and legal system as it pertains to such things as the seeking of injunctions, separation and divorce proceedings. This is because Social Workers tend to work alongside such people as they confront and deal with life’s adversities.
c) Mentally ill, and thus subject to the Mental Health Act. Social Workers in such mental health settings have to have some understanding of the different sections of the Mental Health Act, as pertaining to detention (generally S2 and S3), aftercare (S47), plus if they are workers in forensic settings, they must understand “Hospital orders” (S37) which remand a mentally unwell prisoner for psychiatric treatment, and monitoring of prisoners who have been released by the Home Office (S41). This understanding of the law may be used on a day-to-day basis in situations ranging from initial assessments, to representation of clients at Mental Health review Tribunals. If a client remains, or is released, into the community, then understanding of the Community Care Act comes into play. Again, knowledge of the Equality Act and anti-discriminatory legislation may also be useful; as is knowledge of the Children Act, because some mentally ill people are also parents.
I have given just three condensed examples, above, of the ways in which Social Work calls upon a knowledge of the law, and legislation. However, I have already pointed out that, unlike Judges, Barristers and Solicitors, Social Workers are rarely, if ever, given any real training in respect of the law. Instead – as I found at work – you are just expected to learn as you go along.
Here, I agree vehemently with Phil. There IS a world of difference between a Court Room, and somewhere like a Residential Home – or a Day Centre, Hospital, Domestic Violence Refuge… indeed, anywhere that a Social Worker may be employed. I totally agree that Courts are adversarial and retrospective – this is the nature of the UK legal system – and that this does not really equip them well to meet the needs of the Social Care arena. I have found, in my experience, that service users when faced with proceedings in Court, or even at a Tribunal (Mental Health Review Tribunals are supposed to be more informal than courts – I say SUPPOSED!), are often anxious, sometimes bordering on terrified. Alternatively, some may become riled, frustrated, feel intimidated and thus become aggressive. Many of the people I worked with viewed anything akin to Court proceedings as litigative, intimidating and antagonizing. NOT GOOD, when you also consider that many of these people were domestic violence victims, victims of abuse, or mentally unwell!
I further agree with Phil in that problems occur when lawyers – or, I would add, Bureaucrats – get hold of social policy. Whilst they might argue that they understand social policy IN THEORY, they DO NOT IN PRACTICE. It is Social Workers who see, firsthand, the chaos and confusion caused by conflicting pieces of legislation, or by ill-judged and ill-thought-out social policy. Sometimes, it is true, the law genuinely IS difficult to understand. Sometimes it contradicts itself. DOLS is a good example; as is the Mental Capacity Act. Just ask yourselves the following…
IF (as the Mental Capacity Act tells us we should assume) ALL people are to presumed as having capacity…
BUT (as the Mental Capacity Act goes on to tell us) capacity can be both VARIABLE and SITUATION-SPECIFIC…
THEN how can we work from the presumption that all people have capacity?
Clearly, the FACT that human capacity can vary (i.e. sometimes it is full capacity, sometimes partial, sometimes none at all), AND is situation-specific (i.e. the same person can have full capacity in one situation, but no capacity in another) shows that this legislation is both confusing and self-contradictory. We CANNOT presume capacity, IF we are also to be aware that it is both variable and situation-specific. Instead, we must accept that, sometimes, a person can lack capacity. So, then, what point do we start from? Ought we not to be starting from a position of COMPLETE OBJECTIVIITY – NEITHER presuming capacity, NOR presuming lack of it? Methinks that the lawyers who came up with this one wanted – and rightly so – to cover all the options. However, in so doing, they created confusing legislation!
Perhaps the very fact that legislation CAN be confusing and hard to work with, or interpret, should tell us that our societal habit of placing the legal profession on a metaphorical pedestal is wrong? Perhaps it should also warn us that bureaucrats and legal professionals are maybe not the best people to draft social policy? After all, just like the rest of us, they ARE only human… And humans can err!
My feeling is that Social Workers would benefit from some sort of training around relevant legislation – but training that is concerned with how to use and interpret this legislation to benefit service users. Training that teaches them how to understand, and use legislation to effectively advocate for service users in their best interests.
Ellie, thank you. You’ve articulated the problem much more clearly and comprehensively than I ever could.
On the issue of the first principle of the MCA: Yes, it clearly does lead to confusion but I think it serves to remember that it is a ‘rebuttable assumption’ which means that it is possible to assume capacity while also being open (where there is good reason) to the possibility of incapacity.