What happens to legal and
ethical literacy in health and
social care practice?
Roger Kline and
Michael Preston-Shoot
What does a good employer look
like?

What should a good employer model?
• Governance
• Clinical governance
• Staff engagement and treatment - workloads
and supervision

How does an employer demonstrate a
duty of care?
• Towards staff
• Towards service users/patients
In organisations that value their
staff…..






patient experience improves, and infection and mortality rates
are lower (West M, Dawson J, 2012).
staff are significantly less likely to make mistakes (Prins JT et
al, 2010)
staff provide safer patient care (Laschinger HKS, Leiter MP.
2006)
there is lower absenteeism and lower levels of turnover (West
M, Dawson J, 2011).
NHS Trust performance improves (Dawson J, 2009)
and there is a strong link between stress and poor trust
performance. (Boorman, S, 2009)
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
Codes of Practice

Practice should:
•
•
•
•
•
•
•
emphasise human dignity and worth
enhance people’s well-being & ensure their protection
promote their rights and counteract discrimination
challenge and work to improve agency policies,
procedures and service provision
notify employers of resource or other difficulties
impacting on safe working
be lawful
demonstrate a duty of care to patients/service users
Employers’ duty of care
• Employers must:
• give staff information about relevant legislation
• ensure staff health and safety
• treat staff fairly and promote equality
• ensure commitment to professional values,
principles and knowledge
• provide effective supervision and promote good
teams
• establish systems to facilitate reporting of
operational difficulties and of concerns
• support professionals so as not to put their
registration at risk
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
Plus the capability to navigate doing things
right (technical legal content), doing right
things (values in decision-making) and right
thinking (human rights and social justice)
What if duties and instruction
collide?
Duty of
care
Management
instruction
or
expectation
Statutory
duties and
rights
Professional
Code
Care-ful or care-less?


Judicial and Ombudsman reviews of practice
• Flawed assessment, failure to assess, denial of services and flawed service provision
• Pierce v Doncaster MBC [2007]
• R (LH and MH) v Lambeth LBC [2006]
• Failure to follow statutory guidance
• R (AB and SB) v Nottingham CC [2001]
• R (G) v Nottingham CC [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 (M) v Hammersmith and Fulham LBC [2008]
• Critical of expressed attitudes and values; failure to act on complaints
• R (L and Others) v Manchester CC [2002]
• Re F (A Child) [2008]
• Critical of practice standards; failures to monitor and review practice
• R(CD & VD) v Isle of Anglesey CC [2004]
Like a computer virus – a system infected
Law in practice research (and
ethics)





Law is implicit rather than explicit, a less visible aspect of
practice;
Ethical talk is implicit also;
The role of the organisation is influential in whether law and
ethics are seen as a significant feature of practice;
Absence of law talk across health and social care professional
groups also affected by lack of legal knowledge & competence,
lack of confidence in legal knowledge, and individual
orientations to practice;
Development of legal & ethical competence is a neglected
aspect of practitioners’ continuing professional development,
but is crucial in enabling practitioners to respond to
organisational constraints on practice.
Research evidence





Practitioners and managers may collude in departing
from best practice;
Absence of challenge to unlawful & unethical
practice – hostility towards whistle blowers and
service users who complain;
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]).
Messages from Inquiries (1)


Standards of patient care
•
•
•
•
•
•
•
•
Poor communication
Inconsistent assessments and reviews
Poor engagement with service users
Delayed help
Poor sharing of information
Ignorance of case chronology
Failure to speak to the child or the adult at risk
Failure to monitor communication and the impact of context
Lack of management oversight & action
• Lack of compliance with statutory requirements
• Workloads, supervision, continuing professional development,
equality – all neglected
Messages from Inquiries (2)

Organisational culture
•
•
•
•
•
•

Isolated, closed, reactive
Power and status issues
Group think
Unwilling to acknowledge errors or strains, or to
engage in critical reflection
Bullying, harassment
Failure to raise concerns or whistle blow
Accountability
•
Lines unclear and/or ineffective
Messages from Inquiries (3)


Legal literacy
•
Legal rules ignored, felt as hard to understand or
difficult to use
Governance and audit
•
•
•
•
•
Failed to identify problems and risks
Not appraised of serious incidents
Not exercising sufficient oversight of management
responses
Slow in pressing for information & action
Action plans and decisions not followed through
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
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
Or …





Impact of the financial ice age
What are we socialising newly qualified
practitioners into? What is the impact of
mentors? What does professional
accountability mean?
Time to rethink organisational location?
Time to rethink accountability?
Time to rethink the balance between regulation
and professional discretion/autonomy?
Or….



The consequences of raising concerns
The failure of staff at every level to raise
concerns
The shortcomings of their trade unions
and professional bodies
Questions








Can we ever make codes clear and strong enough?
What does it mean to be a professional social worker or health
care worker?
In organisations can social workers, nurses, midwives etc have
conversations without rank?
How do we rediscover moral activity?
Have we the right culture and leadership for social work and
health care work?
Have we gone far enough in embedding rights and involvement
for patients and service users into health care and social work
organisations?
How do we ensure dignity for service users and staff?
Will the proposals from the Munro Review, the Social Work
Reform Board … make a systemic difference?
What does good look like?






Effective and ethical policy frameworks
Clarity of purpose in each organisation
Culture - no compromise on the duty of
care
Service users at the centre
Management and leadership
The link between treatment of staff,
ownership and service outcomes
What professionals must do –
individually





Know what professionals must do
Find effective ways of doing it
Develop the confidence to do it
Know what to do if concerns raised are
not acted upon
Beware the response – bullying and
other detriment
What professionals must do collectively







Know what is possible
Find effective ways of doing it
Develop the confidence to do it
What to do if concerns are not acted upon?
Make patients and users central
Beware bullying and other detriments
“Politics” and professionalism – going
beyond the workplace
Leaders and managers







Culture
Systems
Governance and accountability
Managers who are professionals
We all have a duty of care
Whatever is done must be done safely
Mid Staffordshire!
References







Adams, G. and Balfour, D. (1998) Unmasking Adminstrative Evil. London:
Sage.
Ayre, P. and Preston-Shoot, M. (2010) Children’s Services at the Crossroads: A
Critical Evaluation of Contemporary Policy for Practice. Lyme Regis: Russell
House.
Blyth, M. and Solomon, E. (eds) (2012) Effective Safeguarding for Children and
Young People: Responding to the Munro Review. Bristol: Policy Press.
Braye, S. Preston-Shoot, M. and Thorpe, A. (2007) ‘Beyond the classroom:
learning social work law in practice’. Journal of Social Work, 7 (3), 322-340.
Braye, S., Preston-Shoot, M. and Wigley, V. (2011) ‘Deciding to use the law in
social work practice’. Journal of Social Work, doi: 10.1177/1468017311431476.
Kline, R. (2013 forthcoming). The duty of care of healthcare professionals:
what we must do to help protect patients and staff . Public World.
Kline, R. and Preston-Shoot, M. (2012) Professional Accountability in Social
Care and Health: Challenging Unacceptable Practice and its Management.
London: Sage/Learning Matters.
More References






Preston-Shoot, M. (2010) ‘On the evidence for viruses in social work systems:
law, ethics and practice.’ European Journal of Social Work, 13 (4), 465-482.
Preston-Shoot, M. (2011) ‘On administrative evil-doing within social work policy
and services: law, ethics and practice’. European Journal of Social Work, 14
(2), 177-194.
Preston-Shoot, M. (2012) ‘The secret curriculum’. Ethics and Social Welfare, 6
(1), 18-36.
Preston-Shoot, M. and McKimm, J. (2011) ‘Perceptions of readiness for legally
literate practice: a longitudinal study of social work student views’. Social Work
Education. doi: 10.1080/02615479.2011.608125.
Preston-Shoot, M., McKimm, J., Kong, W.M. and Smith, S. (2011) ‘Readiness
for legally literate medical practice? Student perceptions of their undergraduate
medico-legal education’. Journal of Medical Ethics, 37 (10), 616-622.
Wardhaugh, J. and Wilding, P. (1993) ‘Towards an explanation of the
corruption of care’. Critical Social Policy, 37, 4-31.