I fought the law - and the law won

The first of a series of blogs commissioned by the Law in Wales Practice Policy & Education Group (PPEG) of BASW Cymru.

As the first ever, it’s a bit lengthy, reflecting my eagerness perhaps to cover as much ground as possible. Thankfully, not everyone is as verbose (gobby my sister used to say) as me, so future blogs will no doubt be eminently shorter and more readable, i.e. not written by me.

I’m using this blog to introduce and relaunch the PPEG and, hopefully, stimulate an interest in how, by working together, we can use the law to support good social work and uphold the rights of a section of the population whose rights aren’t always as respected as they should be.

In a recent book, Professor Luke Clements of Leeds University writes of  “the legal problems encountered by people whose lives are disadvantaged: disabled people, carers, homeless people, people on low incomes, people falling foul of immigration law … [who] often experience multiple and synchronous legal problems (‘clustered problems’) for which the traditional ‘single issue’ lawyering approach is ill equipped. The research underpinning this work derives from a six-year study of the legal challenges experienced by disabled children and their families and of many more years trying (all too often unsuccessfully) to use the law to challenge the myriad social injustices that define the lot of those who live with disadvantage.”[1]

At first glance the, the blog title I’ve chosen – I fought the law and the law won – seems wholly and depressingly apt. But, like everything else, the law does not operate in a vacuum and, despite my rather downbeat introduction, it is a live instrument, responsive to the concerns of the nation’s citizens, although it is true to say that response can often, initially at least, be both tone-deaf and blind.

‘Good social work is law in action’

Social work operates in the same space as both social care and mental health law - and any social worker who wants to practice in the best possible way must strive for the best possible understanding of what the law says.

We all know the law is written about in lengthy, dry-as-dust tomes that require parting with eye-wateringly large sums of money but, as social workers, there’s no need to remember or be able to quote every section or paragraph of statute. A few well-chosen passages, placed in context and understood correctly, works wonders and the best AMHP’s, BIA’s and social workers in children and young person’s teams do exactly that.

What is important, however, is promoting human rights, protecting the vulnerable, working alongside and/or advocating for those who feel or are oppressed and happily handing over power to them. Every one of those aims and objectives is supported by the law, backed up by regulations and guidance and put into practice by the social worker daily.

The best social workers take their knowledge of the law and combine it with the very particular skills the social work profession has.

As the team from Social Work, Cats and Rockets point out, “social work brings a unique approach to working with people, communities and society as a whole. The concepts of equality and personal growth through enabling and strengths-based practice and the belief that personal independence however small and in whatever area of life, is something so very precious… the championing of individual and community aspiration is key to not just fulfilling lives but healthy and happy lives.”[2]

Good social work is law in action and that’s why it’s important that social workers and solicitors work together with mutual respect and understanding.

Navigating the new Covid-19 laws, and protecting human rights

The current Covid-19 pandemic illustrates just why knowledge of and willingness to understand the law is so critical.

Covid-19 and the response to it by central and local government has brought a multitude of new laws, guidance and regulations, as well as changes to existing ones.  Barely a week goes by, without there being some announcement about changes to lockdown and accompanying rules, guidelines and procedures.

The speed and intensity with which these are produced can be bewildering and, at times, unsettling, particularly for social workers trying to keep up and explain what is going on to the people they work with, many of whom, for a variety of reasons will struggle to understand this non-stop flow of information.

For those of us in Wales, early April 2020, brought the Coronavirus Act and with it came the ability of Local Authorities to downgrade duties contained in the Social Services and Wellbeing Act 2014 (SSWbA 2014).

Duties to assess or meet need were diminished, except where a failure to act would mean that the individual would experience or be at risk of abuse or neglect[3].

At the time of writing, Welsh Government is consulting on whether to maintain or suspend the Coronavirus Act and, no doubt, some strong opinions will be/should be voiced.[4] BASW Cymru will be among them.

In the interim, local lockdowns have re-emerged in Wales and many care homes have re-established bans on any family visiting loved ones, whilst some, like the one my father-in-law with severe dementia is in, have never wavered from this policy since Covid-19 took hold.

As many (most) social workers will testify, home visits, including those to care settings, are now heavily restricted. Visits from Care Inspectorate Wales – having just restarted in some instances – have been halted again, whilst the majority of local authority DoLS teams took the very early decision to cancel visits when considering whether care home residents have in fact been deprived of their liberty.

In essence, someone with no ability to care for, or make decisions for themselves, must place all their trust in the Care Home in the hope that they will be looked after properly and with their rights and freedoms protected. In effect of course, they are completely on their own.

As my partner worries herself sick and absent any external visitors, what price protection when the cost is a devastated family, distressed beyond belief that their loved one will die, alone and confused and with no way of understanding why they have been abandoned? As Munby J said, ‘What good is it making someone safer if it merely makes them miserable?’[5]

Such stories are now commonplace and play out across the whole of the United Kingdom, not just Wales. They happen when well-meaning public health protection laws and measures, including those introduced by the Coronavirus Act 2020, intersect with the need for social workers to promote and uphold human rights such as are expressed in the Human Rights Act and European Convention on Human Rights and which find voice in the ‘Global Definition of Social Work’[6] in which the UK had much input.

As the Joint Committee on Human Rights (JCHR) puts it, ‘In the course of tackling Covid-19, some of the actions taken by the Government to preserve lives (as required by Article 2 of the ECHR) have interfered with numerous other human rights. The level of interference with rights was for most people, the greatest they will have experienced in their lifetime. It is vitally important that checks and balances are in place to ensure that human rights remain fully protected.’[7]

These checks and balances are now beginning to be heard, with the last few weeks seeing a raft of reports published examining the impact of coronavirus and the various laws and guidance brought in, to mitigate its effect.

The Alzheimer’s Society have released an incredibly sobering and distressing report called, ‘Worst hit: dementia during coronavirus’[8] noting that twice the number of people with dementia died at the pandemic’s peak compared to what would normally be expected.

They show that the sector was largely ignored during the first part of the crisis with devastating consequences for people with dementia who have never been identified by government as an increased risk group.

The report also paints a distressing picture of the impact on those often overlooked – the army of unpaid carers, struggling to care round the clock for their loved ones, exhausted and ‘burnt out’ with nowhere else to turn.

Similar messages emerge from Amnesty International in their report, ‘As If Expendable: The UK Government’s Failure to Protect Older People in Care Homes During the Covid-19 Pandemic.’[9]

The report examines UK government decisions and failures which resulted in violations of the human rights of people living in care homes. It calls for a full, independent public inquiry to be set up immediately – so that lessons can be learned and measures swiftly taken to ensure older people in care homes are protected.

Two examples from the JCHR report portray a grim view of human rights in the time of Covid-19. The first, the blanket imposition of DNACPR notices without proper patient involvement, has, the evidence suggests, been widespread, leading to a systematic violation of the rights of people under Articles 2 and 8 of the European Convention on Human Rights.

The second example concerns children and young people with a learning disability and/or autism in Assessment and Treatment Units (ATUs) and other mental health hospitals.

A JCHR report from 2019 concluded that young people’s human rights are being abused; they are detained unlawfully contrary to their right to liberty, subjected to solitary confinement, more prone to self-harm and abuse and deprived of the right to family life.[10]

Depressingly, the Committee now notes, one year later, that, “As a result of the Covid-19 pandemic, these institutions … were closed to the outside world, making the risk of human rights abuses even greater. Unlawful blanket bans on visits were put in place. This, along with the suspension of routine inspections, the increased use of restraint and solitary confinement, and the vulnerability of those in detention to infection with Covid-19 (due to underlying health conditions and the infeasibility of social distancing), created a severe crisis.”[11]

In all these examples, good social work could make a massive and positive difference.

It is the social worker, after all, who makes the majority of decisions about placement into care homes or is a key part of to discharge from detention.

It is the social worker who can support an individual to live the life they want, be a powerful advocate for the rights of individuals to remain in their own homes, or to see family and friends as they wish.

The difficulty for social workers is knowing enough about the whole breadth of the law and being able to understand and use it in support of people, like my father-in-law and countless others, who have no ability to speak up for themselves or ensure they are treated well.

Introducing the BASW Cymru Law PPEG

That’s where, hopefully, the BASW Cymru Law PPEG comes in to attempt to fill the gap. The PPEG is a forum for a range of professionals and people with lived experience and includes social workers – old hands, students and newly qualified, academics, researchers, policy officers and, yes, solicitors - to come together and learn from and support each other with social care law in Wales. It’s a diverse group, with a great mix of skills and experience, all shared with the aim of using that knowledge for the benefit of the people they serve.

Current pieces of work include writing the first ever guide to the law for social workers in Wales, supporting Welsh Government to develop and implement the Liberty Protection Safeguards and feeding in to the WG consultation for the Code of Practice on the Delivery of Autism Services.

We also aim to respond to the Coronavirus Act consultation mentioned above and deliver webinars and conferences (virtual or otherwise), with the topics to be decided by the PPEG members.

As such, the group is led and run by its members, is facilitated by BASW Cymru and we warmly welcome new members from all professions and all backgrounds who have an interest in using and understanding the law better.

We particularly welcome members from minority ethnic groups, those who have a background in children and young people’s services and those living or based in Mid Wales, North Wales and the South Wales Valleys.

If you would like to get involved, or learn more, please contact us at: wales@basw.co.uk

You can get involved as little or often as you wish and you’ll have the opportunity to rub virtual shoulders with many others who share the same instincts as you, i.e. to use and understand the law as an ally, not as the enemy.

We don’t need to fight the law; we just need to harness it better.

Phillip Mitchell, Professional Officer, BASW Cymru

[1] Clustered Injustice and the level green, Professor Luke Clements, published by the Legal Action Group. https://www.lag.org.uk/shop/book-title/208819/clustered-injustice-and-the-level-green

[2]  Adult Social Work – 50 Years Young (and the Debate is only just Starting) https://socialworkcatsandrocketscience.com/2020/05/24/adult-social-work-50-years-young-and-the-debate-s-only-just-starting/

[3] A more detailed analysis can be found here: https://www.basw.co.uk/resources/coronavirus-act-2020-application-social-services-wellbeing-wales-act-2014

[4] https://gov.wales/coronavirus-act-2020-and-social-care-wales#content

[5] http://www.bailii.org/ew/cases/EWHC/Fam/2007/2003.html

[6] International Federation of Social Work, https://www.ifsw.org/what-is-social-work/global-definition-of-social-work/

[7] JCHR, https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26502.htm

[8] Alzheimer’s Society UK, https://www.alzheimers.org.uk/sites/default/files/2020-09/Worst-hit-Dementia-during-coronavirus-report.pdf

[9] Amnesty International, https://www.amnesty.org/en/documents/eur45/3152/2020/en/

[10] https://publications.parliament.uk/pa/jt201919/jtselect/jtrights/121/121.pdf

[11] https://committees.parliament.uk/publications/1434/documents/13091/default/