The Legal Context Of Social Work Social Work Essay
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The primary mission of Social Work profession is to enhance wellbeing and help meet the basic needs of all people with particular attention to the needs and empowerment of people who are vulnerable, oppressed and those living in poverty (luc.edu). The first part of my assignment will be looking at, the importance of the legal context of social work, different types of law and courts that social workers mostly use when representing cases, the impact of the Human Right Act (1998) upon the legislation and how it links in with anti-oppressive practice as well as the powers and duties and their implications for social work practice.
The legal context of social work is important because it provides duties and powers for social work and it provides an understanding of the statutory and legal requirements for effective and fair social work practice (Brammer, 2010). Without an understanding of law, social workers may not be able to make decisions which may be complex for example, removals of children from their own home. Their professional conduct should be legal and ethical. The NASW code of ethics (naswdc.org)[online], statement that, "social workers should promote the general welfare of society from local to global levels and the development of people, their communities and their environments....." It added that, the knowledge of the legal system help social workers to be aware of the conflicts that may arise between their personal and professional values and how to deal with them responsibly. The knowledge of law is essential to social work practice and failure to have it may leave social workers vulnerable to being sued by service users who feels their lives where affected by a failure to use their professional act (Stein, 1893).
The law supports social workers who wish to disclose concerns about unacceptable behaviour, for example, the guidance on protecting vulnerable adults through the Public Interest Disclosure Act (1998) (Scie.org). England consists of different types of law that social workers are mostly involved in and these are; criminal and civil law, private and public law. Brown and Rice (2007) stated that, criminal law deals with some forms of conduct, for example, murder, and the state reserves the punishment by prosecuting the offender whereas the civil law concerns the relationships between private persons, their rights and their duties.
Public law consists of three types of law which are; constitutional law; controls the method of the government for example who is allowed to work or whether there was a correct procedure which was taken during an election (Martin 2002). Administrative law; controls the operation of ministers of state and other public bodies for example the local authorities. Private law consists of many branches such as tort, family law, company law and employment law.
The hierarchy structure of court consists of the House of Lords which is the highest in the land and that is where civil and criminal appeals are heard. The court of appeal hears civil and criminal appeals and with divisional courts, two or more high court judges may convene to hear appeals from inferior courts in cases where points of law are referred from the magistrates court or county court. Magistrate court has an important jurisdiction in both criminal and family law. The approved social worker has a duty to make an application for admission to hospital or guardianship if necessary for continuity of care and family work.
Social workers are admonished to promote the right of service users to select their own goals but at times social workers uses their professional judgement to limit the service users right to self-determination when the service user's actions can pose a serious risk to themselves and others (Stein, 1893). Anti-oppressive practice is based on an understanding of how the concepts of power, oppression and inequality determine personal and structural relations (Davies p14). The duty of a social worker is to make sure that people have access to their rights and those who have been oppressed are empowered to regain and are promoted to change as well as taking control of their lives. The HRA 1998 came into force in October (2000) and the focus of the Act is to promote and uphold rights and the act applies to public authorities only (Mandelstam 2009), however, the courts in the past argued that, independent care providers in the context of community care are not public authorities for the purposes of HRA (YL v Birmingham cc) (Mandelstam, 2009). Mandelstam (2009) also argued that, vulnerable people are being deprived of their rights they are entitled to for example their own protection under the HRA. There are a number of rights that are relevant to the Health and Social Care for example article 2 (right to life), It is a right under the European convention on human rights for an individual to have a right to life but the courts also argue that, if a person does not have a capacity to know what is right for them, if this is in their best interest, for example withdrawing artificial hydration and nutrition; it is regarded as a principle lawful not a breach of article 2 (Mandelstam 2009).
Article 3; no one shall be subject to torture or to inhuman or degrading treatment or punishment. Article 5 is deprivation of liberty. Everyone has a right to liberty and security and nobody should be deprived to it except if it is in accordance with the law. This act was breached under ECOHR due to the absence of legal safeguards of mental health patients (jevde and surrey cc), by depriving a mentally incapacitated person by placing him in a care home and not allowing him to return to his own home. Article 6 says that everyone is entitled to a fair and public hearing within a reasonable timescale by an independant and impartial tribunal established by law (Ball and Mcdonald,2002).
Article 8 is a right to respect for his private and family life and the court held the act as it sometimes a positive obligation on the state to provide support for asylum seekers (Brammer,2010). The courts said that the LA failed to assess the physical and psychological needs of a 95yr old woman who was to be returned from the hospital to a care home, therefore it breached article 8. Article 14, "is the enjoyment of rights and freedoms set forth in this convention shall be secured without discrimination..." Ball and Mcdonald(2002).
The legal context of social work is important because it provides duties and powers for social work and it provides an understanding of the statutory and legal requirements for effective and fair social work practice (Brammer, 2010). Without an understanding of law, professionals would not be able to deal with certain situations and the majority of vulnerable people would be experiencing oppression and treated unfairly. A duty is usually indicated by shall or must and it is imposed by law therefore it is a mandatory to carry it, for example, a duty to investigate and carrying an assessment after suspicion of abuse (Brammer: 2010).
Power constitutes what may, but does not have to be done (Mandlestam: 2009; p97). It provides the authority to act in a particular way but there is a scope to decide how to act (Brammer:2010;p17). Not every country operate with social workers, others use police, relatives even the Mayor (Bean:1986). Some families use power structure to control the family and this could be due to cultural background for example male having power over women.
The second part of my assignment will be focusing on the National Assistance Act (1948), The National Health Service and Community Care Act (1990). The community Care Act 1990 was established to end the existing poor law in order to assist the person in need for example, the disabled, sick and the old age persons. This was done by the National Assistance board and the local authority. Compulsory removal from home outside the terms of the Mental Health Act 1983 can be affected. There is power of removal from home under section 47 of the National Assistance Act 1948 when a person is unable to look after themselves as well as if they are not receiving proper care and attention from their carers. The removal may be breaching that person's human rights under article 6 of the European Convention. If people fail to cooperate and there is continuity of uncaring, the social worker would then have the power under section 48(2) of the NAA 1948 to enter the premises in order to carry out their duty.
Community Care Act 1990 governs the provision of community care services for vulnerable adults for example the older people and disable people. The National Assistance Act 1948 sec 29 defines disabled people as, "aged 18 or over who are blind, deaf or dumb or who suffer from mental disorder or any description, and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury or congenital deformity os such other disabilities as may be described." Ball et al 2002 said that, it is a duty to assess an individual need for community care services according to section 47 of the NHS and community care act.
The assessment that social workers carry out for Mr and Mrs Bertram is to make sure that an individualised package of care is provided. Assessing a service user is a way to gather relevant information inorder to make a care plan. Mrs Bertram has always want to live in her therefore the service that the social workers would be providing would have to allow her to live as independently as possible in her community rather than in a residential home. According to Davies (2000), the assessment will cover the service user's health needs, physical, mental capacity, emotional needs, financial support, suitability of living environment and carer support. The resources provided should make the Bertram family feel enabled rather than feeling oppressed.
The process should be client based. Working with older people is rewarding and challenging because it affects their social, spiritual and emotional wellbeing and at times it will be hard to understand their complex situations that is why they should be client based. Carl Rodgers ( ) listed the three core conditions pf person centered practice. He said that a social should have unconditional positive regard and congruence and being empathetic. He said that to understand someone's situation is walking in their shoes, understanding the nature of their experience and their unique point of view. By putting the service user at the centre is also by making informed choices as well as working in partnership with Mr and Mrs Bertram and other agencies. Section 45 of the Health Services and Public health Act 1968 contains a power to promote the welfare of older people (Ball 2002:p111). Mr and Mrs Bertram would benefit to services like meals on wheels and domiciliary care. Section 47 (2) of the National Health Service and Community Care Act 1990 requires the Local Authority to identify people whom they are in the process of assessing as disabled (Ball, 2002;p112). The local authority's duty to the Bertram is to provide an adaptation in their home by providing facilities that can suit them for the greater safety, comfort and convenience of the family.
Mr Bertram could be facing serious threat in his marriage by not understanding what his wife is going through. He is facing a gradual loss of the woman he has lived with and that could be distressing him. The service that social workers provide should not discriminate and the service provided should not contribute to it. Social workers need to help Mr Bertram understand the condition of his wife for example attending the user and carer support groups run by the alzheimers society. This will help him to understand the condition of his wife especially when it is coming from other people facing similar life changing experiences.
Social workers can also help the Bertram with benefits issues or even advising the family to contact the local neighbourhood or citizen advice bureau regarding the financial status. Mental capacity act has brought in a standard test for mental capacity and so long as Mrs Bertram retains capacity, she can under this act appoint someone such as Mr Bertram of one of her daughters with lasting power of attorney who could write an advance directive, both to be applicable should Mrs Bertram be assessed as having lost her mental capacity.
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