Law Policy Ethics

The purpose of this essay is to discuss the interaction of law, policy and ethics in my placement. It will begin by describing the nature of the placement setting and identify the service user group. I will then discuss the statutes that apply to the setting and explain how the legislation relates to the agency’s framework of the policies. I will critically examine and explore two themes, which are confidentiality and autonomy of the service users. Firstly, I will discuss the theme of confidentiality citing a referral from my placement, I will critically analyse the tensions between the legal and ethical issues. Similarly I will then discuss the tensions between law, policy and ethics on service user’s autonomy.

My placement is in a multi-professional locality team that is part of a statutory agency. The aim of the team is to support vulnerable children and their families directly or indirectly .The service users are children and families who are at risk of significant harm or in need of support.

Referrals are received from a shared contact centre and the Initial Assessment Team; however, there are also self-referrals.

The legislative framework that underpins this organization is the Children Act 1989 and 2004. The Children Act 1989 establishes the rights, powers and duties discharged by local authorities in respect of children and their families living within the specified area. The Children Act 1989 was implemented in 1991 at the same time as the United Nations convention on the rights of children was endorsed in the United Kingdom. A child is defined in law as a person under the age of eighteen. The relevant sections mainly used by the team are s.47 and s 17. In s17 Brayne and Carr (2005, p.276) stated that “the Local Authority has a duty to safeguard and promote the welfare of a child, in its area who is in need”. In s 47, (1) Jowitt and O’loughlin (2005, p46) stated that the “Local Authority has a duty to investigate where the local authority is informed that; child in their area is the subject of an emergency protection order, or the child is suffering or likely or suffer significant harm”.

The Children Act 2004 “aims to improve and integrate Children Services as well as changing the structure, within which the services for children are delivered, following recommendations in the 2003 Green paper Every Child Matters(2003, p5)”. Significant policy changes in relation to the Green Paper is the introduction of the five out comes that are considered key to children well being; healthy, stay safe, enjoy and achieve, make a positive contribution, achieve economic well being.

The Human Rights Act 1998 is an extremely important legislation for social work; it became law in the United Kingdom in October 2000.It came into effect to promote the rights and freedoms guaranteed under the European Convention of Human Rights.

Working together to Safeguard Children (2000) sets out how organisations and individuals should work together to safeguard and promote the welfares of the children. Social workers have to balance the competing and sometimes contradictory demands of legislation, guidance and procedures.

Biesteck cited in Banks (2006, p.32) postulated that “confidentiality is the preservation of secret information concerning service users which is disclosed in the professional relationship.” Biesteck cited in Banks (2006, p.32) further describes “confidentiality as being a basic right of service users and an ethical obligation to service users”. Whilst in placement, I was allocated a referral about a 14-year-old girl L, her school attendance was poor and would regularly disappear from home for two to three days, without informing her parents of where she was. L disclosed to me that she had recently had an abortion .She requested me not to disclose the information to her parents as she would be thrown out of home. L informed me that she recently had a relationship with an older man but refused to disclose more. I experienced an ethical dilemma when I learnt from a local media report that L’s uncle, who lived near her, had been charged of a sexual offence with a girl of the same age as L. The British Association of Social workers code of ethics cited in Clark (2006, p3) stated that, “social workers will observe the principle that information given for one purpose may not be used for a different purpose, without the permission of the informant”. Explicit disclosure is necessary where non-disclosure poses risks to the individual, the safety of a worker or the community. The law that requires us to protect confidentiality is the Data Protection Act 1998 and the Freedom of Information Act 2000. This creates tension with the agency’s policy, of the decision to disclose information in connection with an assessment of a child’s needs under s17 of the Children Act1989 or an enquiry under s47. The Children Act 2004 section 12 requires Local Authorities to set up information databases, to provide basic information on all children in England, in order to facilitate contact between professionals and allow better planning. The regulation was enforced in July 2007 and overrides the common law duty of confidentiality.

Cook, Erdman and Dicken (2007) stated that children under the age of sixteen were awarded their human right to confidentiality in January 2006, following a case law of Axon V Secretary of State for Health. In this case the judge ruled that adolescents had the rights under article 8, of respect for their confidentiality provided they comprehended the medical advice and risks. Although I had a duty to keep L’s abortion confidential, I also had a duty to protect her from possible risk if she is having a relationship with her uncle. Brayne and Carr (2005) highlight Article 8 of the Human Rights Act 1998 which states the Right to respect for family and private life. This meant intrusion of their private life and also invading the family’s private space. From a utilitarian perspective, Parrot (2006) suggested that the right action is that which produced the greatest good. Disclosure in this case would therefore not only be for the benefit of L‘s future but also for other adolescents who would fall prey to L’s uncle.

Autonomy is defined as the ability of a person to make self-determining choices, Edwards cited in Freeman (1992) stated that it involves independence and decision-making. To respect a child’s autonomy is to treat that child as a person and as a rights holder. Having rights means being allowed to make choices and take risks. Kant cited in Beauchamp and Childress (1994) argued that failure to respect an individual’s autonomy is a moral violation because people are ends to themselves. Legally Schiewe (2004, p.263) argued that the “autonomy of minors is limited because of the need of balance to provide for sufficient care, education, socialization, support and protection”. Brayne and Carr (2005) stated that it is now a statutory requirement under the Children Act 2004 s53 that the child’s wishes and feelings are taken into consideration. Lowden (2002, p101) stated that the key concept of the Children Act1989 was that the child’s welfare was paramount”. However, Lansdowne cited in Lowden (2002, p101) highlighted that it was adults who mainly considered the “welfare and best interest” of the child. The agency’s child protection policy ensures that appropriate action is taken in all cases where the children are thought to be at risk of suffering. Assessments are carried out using the guidance of the Framework for the Assessment of Children in Need and their families. If a child has suffered serious harm or is under significant harm, the child could be removed from the home and accommodated under s.20 while the investigation is conducted. During that period, the child is not allowed contact with the alleged perpetrator who could be the parent. The need to protect overrides the child’s wishes to remain at home or contact their parent. This approach is based on the principles of paternalism, Beauchamp and Childress (1994) defined this as acting in the best interest of the person. Clucas cited in childRight (2005,) suggested that the rights of the child are determined by the decision made in regards to their well being. However, the rights to resources can conflict with a child’s autonomy right especially when a child is old enough to refuse service such as, a foster placement or anger management programme. Clucas cited in childRight (2005, p17) further argued “there is no guidance for the commission and other officials where the tension between autonomy and welfare arises.”

According to Lowden (2002), in the 1969 Family Law Reform Act right s.8 children between 16 and 17 years old were treated as adults, without parental consent to treatment. Lowden (2002) stated that children under the age of 16 were accorded the same right in the 1986 House of Lords ruling in the Gillick v West Norfolk & Wisbech Area Health Authority. However, this was subject to competency in decision-making. This decision raised debate about the rights of the parents and the child. The rights to autonomy involves support to make the right decision, in this view Lowden (2002, p105) stated that adults have “responsibilities and not rights.”

In conclusion the purpose of this essay was to discuss the interaction of law, policy and ethics in my placement. It has discussed the statutes that apply to the setting and explained how the legislation relates to the agency’s framework of the policies. Although there is an emphasis on the duty of confidentiality, the legal requirement to disclose information overrides the policy. Beauchamp and Childress (1994) highlighted that it is difficult to strike a balance between respecting the privacy of an individual, by keeping a person’s record confidential and protecting other people who would benefit from the disclosure. An example is if a child tries to commit suicide. Files are kept in a central place and are accessible to everyone. Files with sensitive information should be in a locked cabinet and accessed only by the key workers and managers. The agency provides service users with a consent form, to which the service user gives consent for their information to be shared with other people. This is mainly for the agency’s benefit because partnership working involves sharing information and consultancy. The agency also has a policy of whistle blowing this is underpinned by the Public Interest disclosure Act 1998. This contradicts with their contracts that direct them not to disclose information gained in their work.

The Children Act 1989 philosophy confirmed by Brayne and Carr (2005, p.275) stated that “the best place for a child to be brought up is usually in their own home”. When parents are unable to meet their children’s needs, Kinship care is sometimes the next best option as opposed to placing the children with foster carers. However kinship allowance is means tested. Therefore this could hinder a willing relative from taking the responsibility of a child. If this allowance was increased and was not means tested it could incite relatives to taking responsibilities of children. This could indeed be beneficial to children as it reduces the movement from different placements and gives them stability which enhances their autonomy. Banks (1998,p223) suggested that procedures in bureaucracy do not focus much on the social work code of ethics but stresses more on “managing resources, assessing need, surveillance and monitoring activities”. There should be more focus on the individuality of the child as opposed to meeting targets and deadlines.

King and Piper (1995) argued that children in law are viewed as victims in need of care and protection. Miller cited in Freeman (1992) highlighted that it is important to recognize the moral integrity of children. There is a need to regard the children as individuals entitled to equal concern and respect, in order to avoid discrimination. It is equally important that their present autonomy is not only recognized but also, their capacity for future autonomy recognized as well. I have critically discussed and analysed the tensions between the legal and ethical issues on confidentiality and autonomy.

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References

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