Simon Abbott Department of Social Work Kingston University & St George’s University of London

1. Simon AbbottDepartment of Social WorkKingston University & St George’s University of London Doctoral research project Centre for Social Work Innovation and Research University of Sussex

2. Aim of workshop • Present research project (20 mins) • Highlight key discussions arising from research findings (15 mins) • Facilitate group discussion on key implications for practice (20 mins) • Questions (5 mins)

3. Research question How do social work Approved Mental Health Professionals (AMHPs) use the law in practice? • The aim of the research project is to is to get close to how social work AMHPs use the law in practice where compulsory admission to hospital was a possibility.

4. How do social work Approved Mental Health Professionals (AMHPs) use the law in practice? • The fieldwork was undertaken with social work AMHPs from three separate local authority areas in London. • Eleven social work AMHPs, purposively selected from three different local authorities in England, participated in the study

5. Focus of study • Theoretical concept used to locate ‘using the law’ is legal consciousness (Ewick and Sibley 1998; Sibley 2005). • Legal consciousness; • Participation in the process of constructing legality • The talk, social relations and meaning making in the process of undertaking MHA assessments

6. Rationale for research • AMHPs in England and Wales have statutory powers to detain people in hospital for assessment/treatment. Social workers are lead profession undertaking this role. • The stakes in this area of law and social work are high: individual liberty. • Profound implications in relation to the power of the state to intervene in the lives of citizens, where notions of autonomy, protection, coercion and care sit in tension.

7. Gap in knowledge • Gap in knowledge emerging from literature; • Lack of emphasis on entire process of using MHA in practice- literature places major emphasis on the ‘assessment’ as site where ‘decisions’ are made- the ‘now’ moment. • Does not address the socio-relational nature of using the law in practice across the whole process of referral and the search for understanding; relationships and interactions with parties involved is therefore missing. • How sw AMHPs use the law not well understood; instead a difference between policy and practice is major area of focus.

8. Gaps in knowledge • The use of a social and medical perspective by AMHPs not well understood and there are debates about the extent to which AMHPs are ‘subsumed’ by a medical perspective. Tendency in literature to place the medical and the social at odds with each other. • How legal literacy translates into social work AMHP practice

9. Ontology and epistemology • Ontological stance- Social constructionism (Berger and Luckman 1966) • Views the social phenomena of AMHPs use of the law as a mode of reality that is epistemologically objective -MHA exists and constrains the lives of some people, but requires human practice in order to exist • And ontologically subjective in that without human agreement or construction there would be no MHA. • ‘ These institutions originally created by people, by and by begin to be perceived as something external, objective, and given, that is there occurs also an externalisationand an objectivation’ (Berger and Luckman 1966:78).

10. The ‘hurly burly’ of mental health social workDavidson & Campbell 2007 • Theoretical framework • Practice theory (Bourdieu 1977) • Used as a lens to make sense of the data

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12. Methodological approach • Exploring AMHPs case stories of how they had used the law in practice during MHA assessments they had recently undertaken. • Employed semi-structured interviews to elicit case stories- potentially rich form of data to capture how law is used in practice (Sarat 1990; Shearing and Erikson 1993; Ewick and Sibley 1998; Maynard-Moody and Musheno2003) • Analysed using thematic framework analysis (Ritichie and Lewis 1994). Computer Assisted Qualitative Data Analysis in the form of NVIVO was utilized to manage the data, and to support data analysis • Also used practitioner diaries (Zimmerman and Wieder 1977; Alaszewski2006)

16. key discussions arising from research findings

17. Using the law in SW AMHP practice involves an embodied practice • Practice of using MHA is patterned and structured but not explained solely by drawing on a rational/technical use of legal rules

18. AMHPs use of law is an inherently socio-relational practice • The implication of different parties involved possessing varying degrees of status bestowed by title (AMHP, patient, carer, psychiatrist) (Capital) • The dynamic juridical field where the law is used- a field of constitutive power (the power to name). (Field) • Habitus- recognises the importance of habits, dispositions, and perceptions as guides to human action (Habitus)

19. AMHPs use of the law involves a wide social perspective, providing depth to a medical perspective • Social and medical perspectives are not necessarily separated • Different perspectives don’t always equate with different decisions- a holistic social perspective does not necessarily lead to less coercive interventions. • Not a dichotomy – different layers of social perspective and multiple layers between perspectives • Not a ‘win’ or ’lose perspective’ (medical vs social) MEDICAL SOCIAL

20. The AMHP perspective involves a socio-medical-juridical model • A wide social perspective • A medical perspective is employed – however this does not equate to an inability to challenge medical discourses • The juridical field that AMHPs inhabit is the dynamic that drives their approach to the medical and the social; the juridical acts as a bridge mediating them • The key which unlocks this dynamic is s13(2) MHA ‘….all the relevant circumstances of the case…’

21. Translating legal literacy into practiceBraye& Preston-Shoot 2006; Preston-Shoot & McKimm2012

22. Findings illuminate how legal literacy translates into practice • Knowledgeable use of legal rules translated into practice • Laws interface with values • Translating human rights into practice action • Concept emerges in findings as a dynamic and fluid overlap between the pillars of a knowledgeable use of legal rules and law’s interface with values, where AMHPs ability to do right things with the law is closely associated with confidence in a knowledgeable use of law, the weakest is action by reference to human rights.

23. Translating human rights into practice action • The weak third pillar • Campbell (2010) – whilst mental health social workers ought to be equipped to recogniseand challenge the way that mental health law discriminates against disadvantaged groups in society, such a knowledge base is less articulated in practice. • Deficit and needs approach • Less attention paid to the potential to use the MHA, or by reference to acting as a public authority- HRA 1998, to expressly promote the individual rights (liberty) of the person assessed.

24. Translating human rights into practice action - not a simple equation • Could be argued that they promoted the persons right to receive psychiatric care • Or that a rights perspective was used relationally- meaning that they privileged the rights of family/carer • Findings highlight an emphasis on the person receiving psychiatric care, and that the rights of others close to the person assessed are often privileged over the rights of the person assessed. • Mainly due to lack of dialogue with person assessed associated with disturbed mental state and risks posed to others

25. Translating human rights into practice action- not a simple equation. • Intervening based on deficit and need may produce a subsequent improvement on the ability of families to coexist, thereby promoting the right to private and family life in the longer term

26. Looking forward: Implications for practice • Communication and acute mental distress • The wide social perspective of the AMHP often privileged the voice of others over that of the person being assessed. • This leads to the implication that there is a need to re-balance the perspective of others by placing greater emphasis on the voice of the person assessed. • There is a need to move the emphasis from medical versus social perspectives to rights based perspectives to enhance action oriented to human rights.

27. How could AMHPs balance the tension between the requirement to coerce, legally, whilst also striving to protect human rights ? • How could AMHPs support those experiencing acute mental distress to make their own decisions as much as possible and to have their voices heard, notwithstanding that this might be in the context of a compulsory admission to hospital in some circumstances ? • Following on from this: How do you find meaningful dialogue with someone who opposes you and is experiencing acute mental distress, such as acute psychotic symptoms?

28. Legal mechanisms to orient action to human rights; • Aligning rights thinking with first two pillars of legal literacy: Principles underpinning MHA, HRA, UNCRPD ? • Advance decisions ? • Practice mechanisms: • Recovery based practice?, relationship-based practice, enhancing emphasis on supported decision making ?

29. Increasing capital of the person assessed to place emphasis on their voice ? • Assess earlier? • Education • Supervision • Organisational deficits

30. References Alaszewski, A. (2006). Using Diaries for Social Research. Thousand Oaks, London, New Delhi: Sage. Berger, P.L. and Luckman, T. (1966). The Social Construction of Reality: A Treatise in the Sociology of Knowledge. London: Penguin. Bourdieu, P. (1977). Outline of a Theory of Practice. Cambridge, U.K.: Cambridge University Press. Braye, S. and Preston-Shoot, M. 2006. Broadening the Vision: Law Teaching, Social Work and Civil Society. International Social Work, 49(3), pp. 376-389. London: Sage Publications. Campbell, J.D. 2010. Deciding to Detain: The use of Compulsory Mental Health Law by UK Social Workers, British Journal of Social Work, 40, pp. 328-334.

31. Ewick, P. and Silbey, S.S. (1998). The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press. Maynard‐Moody, S. and M. Musheno. (2003). Cops, Teachers, Counselors: Stories from the Front Lines of Public Service. Ann Arbor: University of Michigan Press. Preston-Shoot, M. and McKimm, J. 2012. Perceptions of Readiness for Legally Literate Practice: A Longitudinal Study of Social Work Student Views, Social Work Education, 31(8), pp. 1071-1089 Ritchie, J. and Spencer, L. (1994). Qualitative Data Analysis for Applied Policy Research. In: Bryman, A. and Burgess, R.G. (eds.) (1994). Analysing Qualitative Data, pp. 173-194. London: Sage Publications.

32. Sarat, A. 1990. The Law is All Over: Power, Resistance and the Legal Consciousness of the Welfare Poor, Yale Journal of Law and Humanities, 2(2) Article 6. Shearing, C.D. and Ericson, R.V. 1991. Culture as Figurative Action. British Journal of Sociology, 42(4), pp. 481-506. Silbey, S.S. 2005. After Legal Consciousness. Annual Review Law Society Sci. (1), pp. 323-68. Zimmerman, D.H. and Wieder, D. 1977. The Diary-Interview Method,. Urban Life, 5(4). pp. 479-498.