What happens to legal and ethical literacy in health and social care practice?

1
What happens to legal and ethical literacy in
health and social care practice?

• Roger Kline and
• Michael Preston-Shoot

2
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

3
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)

4
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

5
Codes of Practice

• Practice should
• emphasise human dignity and worth
• enhance peoples 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

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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

7
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)

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What if duties and instruction collide?
9
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

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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.

11
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).

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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

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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

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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

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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

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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

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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?

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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

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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?

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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

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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

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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

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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!

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References

• Adams, G. and Balfour, D. (1998) Unmasking
  Adminstrative Evil. London Sage.
• Ayre, P. and Preston-Shoot, M. (2010) Childrens
  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.

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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.