Social work and end-of-life care

Social work is important in end-of-life care

Think through and spell out your social work reasoning for ‘draconian’ decisions

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20140128 Adoption caseSome points in an adoption case made by the President of the Family Division of the Court of Appeal, Sir James Munby, can inform social workers about what it means to make holistic decisions, even if he’s talking about the law. He’s talking about child care services and adoption, but in the quotations that follow, I have taken out most of the references to that, so that you can see that his points have general application to all sorts of decisions by social workers (and other professionals).

Link to a legal commentary, which contains a link to the judgement

I’ve picked up this point from the legal commentary, and then expanded on it here.

He’s saying that once you have dismissed all but one option for good reason, you still have to look at that option to see if there are good reasons for rejecting that option too. If so, it may mean that you have to reinstate a less than desirable option you rejected earlier, because it’s not so undesirable as what you are thinking you should impose on a client. And, in particular, you must not accept the rejection of an option because it’s inconvenient or expensive for the service, or difficult for the social worker; otherwise people can take judicial review and judges will (or, Sir James is saying, should) be asking you some cogent questions about your reasoning.

If it’s too difficult for the social worker, get yourself a new social worker. Good practice ethics requires us (including our supervisors and managers) to think ‘am I good enough to do this or should I get someone who’s better than me?’ All social workers are not interchangeable.

We can all think of situations in which this happens: it’s not practical to make sure that someone is OK at home, so we end up by thinking she should be kept in hospital or care home, because she won’t be safe all the time on her own. But we forget, in making that choice, that the option we’ve ended up with may be safe, but it may not offer her the freedom or flexibility in her life that anyone would prefer. But because we ruled out all the other options, we don’t look at the downside of loss of freedom against the downsides of the other options.

Here’s how Sir James puts it:

2   …the appeal not merely requires us to determine an important question of law…; it also raises some very significant matters of more wide-reaching importance.

28   …the court’s assessment …must take into account the assistance and support which the authorities would offer. So “before making an…order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support.” …The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully.” That was said in the context of supervision orders but the point is of wider application.

29.   It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, …because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.

32. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the [Human Rights] Convention all demand.

33.   Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan …and when it is being asked to make a non-consensual placement order…

34.   First, there must be proper evidence… The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.

41.   The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge.

43.   In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

“The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

…44.   We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation.

So, in making decisions and writing reports and records of the decision, it’s important to think through and spell out all the arguments for and against options, particularly if they involve imposing solutions on an unwilling client or family. Because what the judges are saying in relation to child care can equally well be said about adult care cases as well.

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Written by Malcolm Payne

28 January 2014 at 3:08 pm

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