1 The shadow world
HUMAN SERVICE ACTORS face the world with imagined identities built on good intentions and high ideals, while simultaneously casting
a deep and sinister shadow. These reflexive human service images are constructed around and promulgated through the aspirational language of
professional literature and education, codes of ethics, principles undergirding social policies, organisations’ mission statements, standards of practice
and individual belief systems. Identities are understandably articulated
through lofty rhetoric, stamped with a leitmotif of human rights and
social justice. These concepts are both the ostensible rationale for, and
drivers of, much human services policy and system, organisation, program
and worker activity. The slogan ‘duty of care’ peppers the lexicon of the
human services. Under this honourable banner – but often based on an
imperfect understanding of its legal meaning, limitations and implications – the human services march with confidence in the integrity of their
endeavours.
The shadow world on the other hand is declaimed through commissions, reviews, enquiries, inquests, court cases, complaints mechanisms,
advocacy groups, victims’ stories, the media and popular books.1 It is
inhabited by tales of extensive, sustained and repeated neglect, cruelty and
maltreatment in institutional and community services. Vulnerable groups
1 For example: Maushart, S. (2003). Sort of a Place Like Home: Remembering the Moore River Native
Settlement. Freemantle: Freemantle Arts Centre Press. Hill, D. (2007). The Forgotten Children:
Fairbridge Farm School and its Betrayal of Australia’s Child Migrants. Sydney: Random House.
Raymond, B. (2007). The Baby Thief: The Untold Story of Georgia Tan, the Baby Seller who Corrupted
Adoption. Sydney: Random House.
3
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4 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
in society – the mentally ill, children, adolescents, aged people, prisoners,
Indigenous people, asylum seekers and the disabled – are in this world
routinely abused and neglected by service systems, agencies and workers
in the realm of the human services. The shadow world has been populated in recent times by media-driven images of a child’s body floating in
a suitcase, children dead of starvation, mentally ill citizens incarcerated in
immigration detention centres and innumerable others, equally shocking,
discordant and seemingly inexplicable. These images are etched into the
public consciousness.
In relatively recent times, many formal reports of failures of child protection systems and of child care in institutions and the community have
emerged (eg Stanley 1999; Layton 2003; Crime and Misconduct Commission 2004; Senate Standing Committee on Community Affairs 2004,
2005; Mudaly and Goddard 2006; Mullighan 2008; Wood 2008; AAP
2008e). British child migrants have been brutalised in state and nongovernment organisations that are meant to be caring for them (eg Hill
2007). Care by and in immigration systems and facilities has been the
subject of damming reviews (eg McMillan 2005; Palmer 2005; Raynor
2005). The treatment of Indigenous children taken into care or left
unprotected in the community is a perennial weeping sore in Australian
society (eg Wilson 1997; Haebich 2000; Wild and Anderson 2007).
The failure of mental health systems and services is a recurring theme
(eg Burdekin 1993; Williams and Keating 1999; ABC 2008a). Agedcare facilities and services have come under scrutiny through deaths and
injuries in nursing homes and deaths in the community that have gone
unnoticed for weeks (eg Glenndenning 1999; ABC 2000; IBN News
2006). Young people in need of a home and quality care have been
short-changed (eg Burdekin 1989). Disabled people have been treated
inhumanely in care (eg Office of the Health Complaints Commissioner
Tasmania 2007; ABC 2008b) or have received less-than-adequate care
(eg Carter 2006). Prisoners have been brutalised routinely in prisons (eg
Nagle 1979; Grabosky 1989). There is a litany of major failures to care or
in care.
This shadow world is also populated by innumerable large and small
individual hurts, sour relationships, lost opportunities, discourtesies, indignities and unmet expectations, which are contributed to by routine system,
agency and worker action and, commonly, inaction. These private misfortunes are not the stuff of media stories, or investigatory processes, nor
are they the focus here, but they contribute nonetheless to the depth and
impact of the human service shadow world.
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THE SHADOW WORLD 5
It is not surprising that the human services are attended by shadows –
they engage with the most vulnerable and marginalised people. Society’s
ambivalence about the function, rights and status of the vulnerable and
the marginalised has been extensively rehearsed by sociologists. Human
service agents are subject to the ebb and flow of changing social norms,
political agendas and mixed messages about the deserving and undeserving
in society, their rights and responsibilities, and the objectives and standards
of assessment and intervention. Human service agents operate in the most
contested and fraught arenas of social life, where interests, rights, responsibilities and risks are finely balanced, and human dysfunction is usually
present and often extreme. As Webb (2006 p. 3) says of the social services
and the whirlpool of contradictory imperatives in which they operate and
are shaped – they are ‘at the eye of the storm’.
The human services function as the sweepers of society, gathering up
and containing human debris. Their social legitimacy, like that of their
clients, is doubtful, even more so when a law-and-order agenda prevails.
The human services, made up largely of women, are seen as doing dirty
and not particularly skilful work (Camilleri 1996). In Stoesz’s (2002 p. 23)
words, ‘social work, much to its detriment, has become associated with
providing second-class services to second-class citizens’. Much of the social
unease about the human services is played out in its poor, or sad and
marginal (Henderson and Franklin 2007) public image, in which it is seen
as ineffective at best (Franklin and Parton 1991; Golding 1991; Brawley
1995; McInnes and Lawson-Brown 2007; Mendes 2008).
Society’s ambivalence both underpins and is affirmed by the strange
paradox of the human services. On the one hand, human service functions
involve the management of extremely sensitive and contested negotiations
between individuals, groups, communities and society. To be performed
competently, these negotiations demand considerable wisdom, knowledge
and skill. On the other hand, human service functions are actually undertaken by variably qualified and often inexperienced, relatively low-status
people, accessing limited resources, relying on what is widely construed
as common knowledge, in an occupationally unregulated sector. This situation is a recipe for disappointment or even disaster, and an infinite
number of incipient shadows. However, the paradox also gives rise to
examples of extraordinarily committed, courageous and creative human
service activities.
Every profession and many areas of human endeavour are advertised
as highly principled, while simultaneously sponsoring a dark side – their
shadow. Schon’s (1991) seminal work detailed the crisis of confidence in ¨
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6 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
all professional groups and arenas since the 1960s. Health systems, the law,
religion, politics and sport are examples of professions and fields in which
high ideals and positive aspirations coexist with villainy, malfunction and
calamity. Nevertheless, there are some particularly jarring inconsistencies
and peculiarities about the human service shadow world and the one which
creates it.
The human services shadow world is composed of failures that are
particularly terrible, recurrent and wide-ranging. Several generations of
Indigenous families, whole populations of client groups (eg children in
residential institutions), and a great number of other individuals (eg in
immigration detention, and mental health and alternative care), have been
damaged if not destroyed by systems, agencies and workers with mandates
ostensibly anchored in humanitarian principles. Yet, this trail of destruction
is completely at odds with the public rhetoric and self representations of
the human service ‘real’ or ‘official’ world. Although the human services
imagine themselves stepping forward into the sun and caring, observers see
the looming shadows which attend them. Shadows are more apparent to
observers than to those who cast them.
The extent of trauma and the public clamour contrast starkly with
the strangely loud silence in the world which casts the shadow. Apart from
bouts of Stoesz’s notion (2002) of professional victimhood, the mainstream
‘official’ professional human service practice world behaves as if its shadows,
and the accompanying public distrust, do not exist.
The reluctance of any profession or sector to engage in public selfflagellation is unexceptional and the few human service attempts may
not have been considered newsworthy. However the public profile and
the breadth and depth of tragedy in the human services shadow world is
strangely underrepresented in academic and other commentary, which is
targeted primarily at an internal audience. There is a significant imbalance
between the weight and extent of external material on failures in the human
services, and the limited literature that specifically addresses policy, system,
organisational and worker shortcomings, and the resultant harm. The
professional and scholarly commentary on misadventure and malpractice
in the human services is minimal in Australia, and only slightly more
extensive overseas. The core curriculums of human service courses, social
work included, do not address past and current deficiencies that have
injured clients and communities or that have the potential to do so again.
In fact Schorr (2000 p. 133), from the United States, has castigated schools
of social work for being ‘studiously blind to endemic violations of good
practice’.
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Australian Social Work, published by the Australian Association of Social
Workers (AASW), is arguably the major professional journal for the sector, yet it contains few articles that focus on malpractice, or significant
human service failure. A search by the author of this book, from 1948, a
year after the first version of the journal began, until December 2008, for
titles indicating a central concern with legal liability for damage caused,
malpractice, negligence, breaches of ethics or standards, or committees of
inquiry into human service endeavours, produces a tiny list, most concerning children. Browne’s three articles (Gaha 1992) on the Maria Colwell
death and the Beckford Inquiry in the UK in the 1970s–1980s are clearly
attempts to understand how and why human service systems produced or
failed to prevent tragedy. More recently, there has been one article on legal
suits (Collingridge 1991), one on breaches of the AASW code of ethics
(Murray and Swain 1999), one on the abrogation of practice standards
in alternative care (Gilbertson and Barber 2004), one on the Queensland Crime and Misconduct inquiry into the abuse of children in foster
care (Lonne and Thomson 2005), one on the risks to children of risk
assessment procedures (Gillingham 2006) and one on the role of continuing education in protecting clients from social worker-caused harm (Kent
2006).
This is not to say that other articles in Australian Social Work and elsewhere do not attend to substandard or potentially substandard systems
and activity, but this tends to be incidental to the main focus of the articles and not of interest in its own right (eg on later access to records
for institutionalised children, see Murray et al. 2008, and Healy 2004).
For example, the Australian social work law writer Swain is represented
in law journals with articles on social work liability and social work failure (eg Swain 1996; 2003). There is some psychology commentary in
Australia on how to avoid malpractice suits (eg McBride and Tunnecliffe
2001; O’Brien-Malone and Diamond 2006). Service failures are also sporadically recognised in the childcare literature (eg Kiraly 2002; Penglase
2004). As will be evident throughout this book, there are a number of
Australian law commentators, most notably Freckelton (eg 2007a), who
have analysed recent high-profile human service cases. Even so, within Australian legal literature there is no compilation of human service cases and
commentary.
Internationally, there is a body of scholarly literature in the United States
on social work malpractice and legal liability, in which the comprehensive
work of Reamer (1992; 1995; 2000; 2001; 2003a; 2003b) predominates.
Even so, Reamer (1992 p. 168) notes the denial of and/or inattention
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8 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
to impaired social workers and their activities within the profession in
the US, and asserts that: ‘members of the profession must be vigilant
in their efforts to confront the incompetence, unprofessional conduct,
and unethical activities of their colleagues’. Also in the US, Besharov’s
(1985) The Vulnerable Social Worker and Bullis’ (1995) Clinical Social
Worker Misconduct do not take a broad human service perspective, although
their material is generalisable. Instead, they incline towards the individual
social worker as the target of malpractice and private legal suits. There
is also a body of more theoretical and policy-orientated material in the
UK, including works that detail human service failure in the context of
related questions, such as media images (eg Franklin and Parton 1991), the
aetiology of scandals (Butler and Drakeford 2005), and the phenomenon
of risk, which is discussed later in this chapter.
There are many interconnected reasons for this apparent silence within.
The human service shadow domain is perpetually raw; never amenable to
reflection from a safe historical and emotional distance as new tragedies
regularly emerge. From within the human services, the shadow world is
the product of a few individual ‘bad apples’, or ‘the other’ (occupational or
professional grouping or organisation, or part of the sector), or the result of
a previous approach to intervention, or the product of inadequate resources
or bad policies, or all of these things. Of course these views are valid in
particular situations, but they are incomplete.
No tradition and few mechanisms exist in the official human services
world for dealing with contributions to the shadow world and their legacies.
The human services, unlike medicine or aviation (eg Merry and McCallSmith 2004; Ranson 2006), have minimal or rudimentary acceptance of
and processes for responding formally and consistently to errors, adverse
events and negative consumer experiences. However, standing committees
on child deaths connected to child protection services are becoming more
common.
Manthorpe and Stanley (1999 p. 232) commenting on institutional
failures in the human services argue that external public enquiry is the
prevailing ‘tradition’ for dealing with bad outcomes and that little relevant
research is conducted because it is difficult. Research on system, organisational and individual worker shortcomings does face ethical and legal
hurdles, and is not popular with research funding bodies or sponsors. Multiple consecutive enquiries produce large amounts of information about
the forms of failure and the damage caused, and keep the shadow world
well populated. However, the phenomenon of multiple enquires does not
build knowledge about integrated service system structures, arrangements
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THE SHADOW WORLD 9
for effective service delivery, helpful intervention methods or supportive
policies and procedures. Enquires seldom have a role in the implementation
or monitoring of responses to earlier recommendations. Each new enquiry
discovers yet again what has been found by earlier investigations. At times
of catastrophe, shortcomings of the human services are reviewed from the
outside, to show that something is being done, and with a reactive, rather
than a prospective, agenda.
The human services are not well endowed with research money and
lack a tradition of practice and outcomes research and research-informed
practice (Gibbons 2001; Stoesz 2002; Furedi 2004; McDonald 2006).
Human service approaches to service delivery, assessment and intervention,
are undeveloped or compromised, depending on one’s epistemological
position. Some social theorists (eg Webb 2006) argue that social work
practice has been colonised by technical rationality and has lost touch with
its value and ethical base.
Others (eg Gambrill 2006), including the author of this book, take a
more empiricist, evidence-based practice stance.We argue that intervention
activity is not well-supported by continually emerging data or debates
about new techniques, processes and procedures, but is largely ideologically
based (eg Gibbons 2001) and haphazard. Bessant’s (2004 p. 12) assertion
about operationalising human rights aspirations in youth work applies
here: ‘rights talk often remains rhetorical’.
Perhaps there is a deficit of commonplace technical conversation in
the human services, which serves in many other professions to occupy
the very wide space between lofty ideals and professional failures. This
kind of conversation can assist us to understand and tackle performance
deficits. High ideals have a powerful presence in social work literature (the
predominant form in the human services); failures are absent and between
the extremes are only sporadic conversations about things that are amiss.
Those responsible for human service systems and institutions are generally busy closing ranks in the wake of a recently exposed or unfolding tragedy. In Lonne’s (2005) reasonable view, such people seldom take
responsibility for shortcomings. Human service organisations are likewise
frequently preoccupied with defending, negotiating and regrouping in
the face of exposed failures (Senate Standing Committee on Community
Affairs 2004). Commentaries from within the organisation, such as Harris’
(1998) on the failings of the Church Missionary Society with Indigenous
people in Northern Australia, are exceptional.
It appears that human service organisations and managers rarely
record and promulgate practice successes (eg Manela and Moxley 2002;
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10 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
Rotheram-Borus and Duan 2003), so there is even less likelihood that
they will declare their failures. They do not have ready access to safe and
appropriate forums for engagement in these conversations, nor do they
have traditions that promote such engagement (Patti 2003; Kennedy and
Kennedy 2008).
At the professional level, the heterogeneity of the human service workforce dilutes professional identity, control and voice. No single professional
or occupational group would wish to take responsibility for the litany of
past and present wrongs. In Australia, this is a very real dilemma faced
by the most recognisable professional group in the sector – social work –
and the AASW, its professional association. Gillingham (2007) concludes
that the AASW is not a force in social policy debates because of historical,
cultural and structural factors, not the least of which is its small membership. Psychology, which might also claim a voice in and for the sector, has
traditionally allied itself with health, standing apart from the rough and
tumble of human service work, which is perceived to be lower status and
professionally diffuse.
The AASW has not been moved to bid for the mantle of leadership of
the entire human service arena, although it has recently staked its territorial
claims publically in the context of broader concerns about child protection
systems (eg see Australian Association of Social Workers 2008; Overington
2008). A so far unsuccessful public interest case for state registration of
social workers has been launched by the AASW, which acknowledges that
social workers can be harmful (Australian Association of Social Workers
2004). The case for registration recognises possible mental, emotional
and financial risks to clients of inappropriate social work activity, and
rather gingerly offers limited examples of social workers who have behaved
unlawfully. In this, the AASW is caught in a bind. If it pronounces social
workers as seriously dangerous it sabotages its own professional image, but
minimising the potential for harm weakens its case for registration.
Its registration case is also somewhat disingenuous given that a much
larger proportion of the human service workforce is not qualified in social
work, yet it services the same clients and poses the same risks as social workers, and works alongside them in the same organisational and service systems. Sections of the workforce also share social work values and approaches
(eg Hughes 2008). Other professional associations in the human service
arena (eg Australian Institute of Welfare and Community Workers, Australian Counselling Association) lack the membership coverage, resources
and legitimacy to even attempt the task of speaking for or representing the
human services.
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While a great many of the activities of human service agencies and
workers are regulated, workers themselves, apart from psychologists, are
not. Thus, there are no registration boards and connected disciplinary
processes to take a central position in professional life, promulgate worker
misdeeds and malpractice, and help to embed and consolidate notions of
adequate, inadequate and harmful practice. Registration does not prevent
malpractice, as demonstrated by registered professions such asmedicine and
psychology, but it does raise the profile of malpractice and its consequences
within a profession.
At the level of the individual worker, voices may be silent for many
reasons. A few people do of course whistleblow in the face of systemic
mishaps and misdeeds, but many are muzzled by legislative, contractual and
employment-related prohibitions on speaking out. According to Franklin
and Parton (1991), there is also a prevailing attitude and strategy, in United
Kingdom social work at least, of keeping a low profile in the face of
media reporting. It has been argued that well-documented feelings of
powerlessness and helplessness in many human service workers (eg Bar-On
1995; Charles and Butler 2004) blind them to their potential for both
positive and negative impact.
Galloway’s (2005) analysis of Australian welfare workers’ constructions
of Aboriginal reconciliation is instructive in the context of individual
voices – she suggests an individualised rather than a collective approach to
social problems. Among her small group of research respondents, workers
felt that they should not take responsibility for things past or for matters
that they saw as the remit of government. As Lymbery (2004) and others
have acknowledged, the distance between the ideal and the real is often
appreciated by front-line workers, although they do not generally declare
this publically or in any permanent form. There are institutional barriers to
contributing actively to knowledge development (Healy 2005) and continuing education forums are not the norm in this arena (Barker and Branson
2000). Moreover changing imperatives within universities and professional
exclusivity in social work have contributed to the demise of public intellectuals who speak out on social matters and act as ‘the conscience of the
nation’ (Karger and Stoesz 2003 p. 65).
This book is positioned in that relatively unpopulated space in the
human services where mishaps and misdeeds are scrutinised. It is about
the role of the law in respect to the mishaps and misdeeds that comprise
the shadow world. It holds a mirror before the human services so its
actors, while still reaching out to the light, might recognise, confront,
better understand and rise to the challenge of the shadow world. In the
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12 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
analysis thus far, there is something of the gothic drama, but the events and
tragedies are neither confected nor overstated. It is hoped that an audience
naturally reluctant to turn towards the shadows may feel compelled to do
so by the telling of the dark tale. There is a risk that some will be repelled,
yet there are ample rewards for attending to the shadow world – within it
are moral, professional and educational lessons that have the potential to
alter future events.
WHY CONSIDER SHADOWS?
Answers to this question range from the proselytising to the pragmatic. If
human service activity casts unintentional shadows, the sector is morally,
ethically and professionally bound to assume at least some responsibility
for acknowledging and explaining them. Individual actors in the human
services contribute different amounts to the magnitude and intensity of
the shadow world, but all are darkened and bear some collective responsibility. The sector will be haunted by the weight of its shortcomings until
human services actors acknowledge them, attempt to elucidate their multiple causes, and incorporate them into the language and aspirations for
future service delivery systems, organisations and work practices. Public
distrust will not diminish while the current silence continues.
In more transparently confronting their own demons, the human services will be better placed to assume greater control of the mishaps and
misdeeds agenda. By doing this, they will they create opportunities for articulating and promulgating the aetiologies of failure more comprehensively,
including social, political and organisational causes. A confrontation of this
kind is a precedent condition for enhanced service delivery and, potentially,
an improved public image.
A focus on mishaps and misdeeds may be justified by the motivation
to improve service quality. As Swain (1996 p. 57, quoting Sharwell 1979)
has argued, understanding incompetent practice can teach us about competent practice as they are ‘two sides of same coin’. Improved practice
evolves from research and assertions of the desirable, but equally from systematic scrutiny of adverse events, their origins and characteristics. This
argument is not driven by an interest in allocating blame, although blame
allocation is sometimes justified and does occur in legal action, but by a
view that information about what can go wrong and why may be used
constructively.
Swain (2008 p. 195) in discussing the significance of client case files in
social work history, articulates a position equally relevant here:
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THE SHADOW WORLD 13
. . . just as our practice in the present has been shaped by a history that is
neither as simple nor unidirectional as we may have imagined, it also leaves
a trail into the future, a trail encompassing oppression, and empowerment,
abuse and care. We cannot predetermine the nature of that trail, but an
awareness of its presence will surely serve to moderate the worst possible
abuses.
A cultural shift is required in human service workplaces, professional bodies
and professional education so that lapses may be confronted, scrutinised
and understood, and incorporated in future systems and practices.
Risk phenomena, mentioned above, needs to be considered briefly here
because it permeates the context of the human services, the service systems,
the organisational arrangements, polices and procedures and all practices.
Risk and failure are inextricably linked, and risk sensitivity in times of
uncertainty is a phenomenon that has been articulated and debated extensively by social theorists. In a society that increasingly ‘worships safety’
(Kemshall 2002 p. 98), the human services are now preoccupied with risk
control activity, either in relation to their own accountability or in the prioritising and rationing of services (Parton 2001; Kemshall 2002; Titterton
2005; Webb 2006; Connolly and Ward 2008). In the words of Phillips
(2007 p. 144) ‘care has been redefined as risk aversion and protection’.
Kemshall (2002) argues that risk replaces need in the primary position
in service provision, with ‘increasingly corrective and compulsory services’
(2008 p. 28).
Webb (2006 p. 10) extends Kemshall’s analysis and claims that risk and
need have been conflated in current human services, as social work has
accepted the dominant neoliberal ideology and its ‘technologies of care’ –
prescribing and proscribing need and the organisation of service delivery.
In his view, the social services and social work are primarily concerned with
imprecise and value laden actuarial strategies to prevent and mitigate risky
occurrences. In the words of McLaughlin (2007 p. 1263) in this context
(and the context of a drive for registration for social workers in the United
Kingdom), social workers ‘are simultaneously seen as assessors of risk, at
risk and as a risk’.
Anxiety about taking risks can stultify and distort the human services,
making them rigid and ‘negatively’ defensive (Harris 1987 p. 65) rather
than responsive, and more inclined to limit client independence and choice.
There are many other practical illustrations of this overemphasis on negative risk and its potential for harm in the human services. Gillingham’s
(2006) overview of risk assessment tools in child protection in Australia
demonstrates how risk assessment tools can blinker practitioners from
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14 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
information beyond the parameters of the tool, absolve them from interpretative and discrimination responsibilities, distort decision-making by
privileging safety over harm factors, and bias them towards an acceptance
of mothers as the primary protective force in children’s lives. Fitzgibbon
(2007) shows how over-defensive assessments in corrections can result in
an increased probability of prisoners returning to custody when essential
community treatment is not available to them. Milligan (2006) details the
conflict between health and safety risk assessments that primarily serve
agency purposes in residential care for children, and the normalisation of
child experience, which involves ordinary risk-taking behaviour through
play and exploration.
Positive risk is seldom acknowledged in this negative risk paradigm
(Harris 1987; Titterton 1999; Carson and Bain 2008), although recently
theorists such as Webb (2006) have observed the balance shifting back
towards active risk taking as mangers adapt to a competitive, performancemanagement environment in which entrepreneurship is valued. The consequences of this shift are yet to be seen and detailed – active risk taking
also has both negative and positive aspects.
In the context of a risk-obsessed culture, it is apposite to study anxieties that are realised; failures that have not been avoided. Human service
mishaps and misdeeds are expected in a risk culture, and happen despite
efforts to prevent them. Paradoxically, they may be the product of risk
aversion or the overenthusiastic risk taking that is encouraged by a riskobsessed culture. Returning to McLaughlin’s (2007) discussion about social
work registration, human service actors may fail in their assessment of risk,
in their responses to risks that face them, and by exposing others to risk
through their behaviour.
Law is one of the mechanisms increasingly deployed to regulate and
control activity in a risk culture. A legal suit is arguably more likely in a
risk environment, where there are imperatives to identify and blame those
responsible. The fixation with risk is echoed in law, with a similarly robust
debate about defensive practice, liability of bodies functioning in socially
contested areas, and loci of responsibility for damage caused.
SHADOWS AND THE LAW
The shadow world of the human services may be usefully explored through
a law lens. Law is not the only lens, but given the place of law in risk culture, the human services must understand law’s response to mishaps and
misdeeds. A wide appreciation of the law can assist human service actors in
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THE SHADOW WORLD 15
making informed judgements about legal risk, and has the potential to liberate them for conscious engagement in positive risk taking, so essential for
good practice. Carson (1996; 1997; 2006; 2008) has consistently argued
the position, subscribed to here: risks of success can and must be taken in
the human services. Such risks are potentially both legally protective and
defensive. In his view, the focus on negative risk and the law has underplayed the legal risks of omissions and inaction, which are professionally
dubious. To practitioners who wish to minimise their legal risk, he says:
‘they need to organize the law’s concepts and procedures to their own ends,
and before the harm occurs’ (1996 p. 5).
Research in medicine shows that fear of legal action evolves through
processes akin to hearsay rather than by informed opinion (Allsop and
Mulcahy 1996 p. 175). This is consistent with Titterton’s (2005) argument
that fear of being sued in the human services derives from a confused
understanding among policy makers and senior managers of law and the
legal process. Human service actors familiar with the law, its reasoning and
its mechanisms for determining standards, can be better informed about
deliberately acting so that their planned and managed positive risk taking
is professionally and legally justifiable. Strategic practice of this kind, in
Parton’s words the ‘assessment and management of uncertainty’ (2001 p.
69) can serve to free actors from a reliance on crude negative risk techniques,
which can prescribe practice and disguise ambiguity. A demystification of
the real threats posed by the risk of legal action in the human services is
required.
Law cases provide one of the few windows into human service shortcomings; they are a source of information about human service actions and
resultant damage. In legal cases, human service mishaps and misdeeds are
revisited and scrutinised and ‘real life’ human service stories are made public. Rich seams of human service material are revealed. Although technical
aspects of the law in these stories may be challenging to people who are
not familiar with the law, the facts of the cases are recognisable to human
service consumers. Learning from law cases may also be generalised, but
with caution, as law cases are not statistically representative of events.
Even a few human service law cases can have a radiating effect (Allsop
and Mulcahy 1996 p. 20) as the law is declared through them – fostering
public debate and having an impact on future practice through accurate
and imperfect understandings of their significance. In 2009, there are more
and more significant human service legal cases that command attention
than there were when Collingridge (1991) and Swain (2001) commented
on the paucity of Australian cases in this area.
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16 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
Human service accountability may be measured by a variety of means
and from different perspectives, one of which is law (Braye and PrestonShoot 2001; 2006). Legal scrutiny of human service activity is reactive,
retrospective and expensive. It operates in accordance with legal rules and
language, which commonly do not accommodate the nuances and complexities of human service intentions and experience. The law is an intermittent accountabilitymechanism; its activation is unpredictable.Nonetheless,
it is the primary means by which society regulates and orders itself, and
through which behaviour is commanded, judged and legitimated.
Hall (2006 p. 157), who examines connections between human service
events and compensation, and proposes ways that cultures of dependence
and power may be better understood and the perpetuation of past wrongs
avoided, says: ‘Law is properly conceptualised both as a response to wrongdoing and as the prism through which society explains and understands
wrongdoing’. Law is the prism or lens through which this book looks.
THE SHADOW WORLD AND THE BOOK
This book straddles several professional domains and invites curiosity
beyond traditional knowledge boundaries. It brings together material not
formerly compiled and annotated in human service or legal literature, and
attempts to interpret it in a way that speaks to both spheres. It is pitched
primarily at the informed human service reader, although the legal consumer will also find human service reasoning and positions informative.
The book is presented in four parts.
PART 1
The first part, including this chapter, sets out the rationale for the book
and its parameters. Chapter 2 describes the human services sector, the
justification for choosing it as an arena for attention, and the ideals that
characterise it. Three levels of human service activity or ‘actors’ are posited
as contributing to the shadow world: the service system, the organisation
and the individual worker. Each of these levels and the potential for malfunction is considered alone or in combination by examining responses by
the law and attributions of responsibility for failure. Acts or events that
constitute human service failure are investigated and a typology of mishaps
and misdeeds is offered as a vehicle for bridging human service and legal
conceptions of wrongdoing.
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THE SHADOW WORLD 17
PART 2
In Part 2, mishaps and misdeeds are viewed through a traditional law lens.
Various categories of law are briefly summarised and grouped as private or
public law areas under which human service cases have arisen or have the
potential to arise. Legally mandated Australian authorities that investigate
and respond to human service failure are examined, along with legally based
disciplinary processes that apply in the human services. The language of law
dominates in the conceptual arrangement and selection of material in Part
2, and human services cases are used as illustrations of the different areas
of law. Obstacles to legal action are described and emphasised throughout.
Part 2 is ambitious in that it traverses the surface of a vast area of law –
there is a deliberate attempt to map the territory of legal risk in the human
services, but at a level midway between a generic introduction and material
for law experts.
There are four significant aspects of the coverage of law throughout the
book:
The material is not a substitute for expert legal commentary in the
specific areas of law addressed in this book – a selection of current
authoritative books is suggested for further reading on the points raised.
The focus is Australian, but the human services material has international application and the law is of relevance to all countries with a
common law tradition.
All cases are reviewed with attention to legal principles and an equal
focus on the human service story. Cases were selected on the basis of the
following principles:
– An effort has been made to include all significant Australian human
service cases in which law has been developed or senior courts commentaries about human service activity.
– Significant cases from other common law jurisdictions are mentioned
if they have been influential in the development of Australian law
(even if they have not yet been tested in Australia) or contain human
service ‘fact situations’ (or events) of particular pertinence.
– Less legally significant, mostly Australian, cases have been included if
they illustrate specific human service fact situations involving human
services personnel, work, failure or agencies.
– Some health, education or allied health cases have been included if
the facts or the law have applicability to the human services.
Human rights law would seem to be, but often is not, fundamental to
human service activities, particularly those which go amiss, in Australia
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18 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
and internationally (see ‘Human rights law and the human services’).
However, human rights cases do not feature largely in the book. Why
is this?
Human rights law and the human services
Social work has been described from within as a human rights profession, with a range greater than and beyond the law (Ife 2008). Human
rights are critical in most fields of human services practice. In the United
Kingdom, human rights law has become increasingly significant with
the enactment of the Human Rights Act 1988 (UK), which incorporates
the European Convention on Human Rights into domestic law (Schwehr
2001; Brammer 2003; Brayne and Carr 2003; Williams 2004; Arthur 2006;
Dalrymple and Burke 2006; Braye and Preston-Shoot 2006). Moreover
the European Court of Human Rights is increasingly challenging human
service activities.
Human rights law does not feature largely in Australian law. Australia
does not have a constitutionally founded bill of rights or human rights
legislation, although the Australian Government has stated its intention
to consult on a federal charter of human rights (Lynch 2008). Australia is
a signatory to a range of United Nations conventions and treaties – for
example, the International Covenant on Civil and Political Rights (ICCPR),
the Convention on the Rights of the Child (CRC), and the Convention
on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities. This confers moral obligations, but although courts may
interpret legislation in terms of international covenants, they are not
necessarily given effect in Australian law (Kennedy and Richards 2007).2
Some covenants are given partial effect in Australian law; for example,
the Convention on the Elimination of All Forms of Discrimination against
Women is given effect through the Sex Discrimination Act 1984 (Cth)
(Kennedy and Richards 2007). Some protections for human rights exist
in explicit and implied constitutional rights arising out of the British
tradition; for example, writs for habeas corpus (O’Neill et al. 2004). The
human rights ‘watchdog’ in Australia is the Australian Human Rights
Commission (Chapter 8), and there is also reactive protection for some
rights under anti-discrimination and related legislation. Some of this
more oblique legal attention to human rights will be seen in some of
the cases in the book.
2 For example: Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Minister of State for Immigration
& Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; 183 CLR 273.
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THE SHADOW WORLD 19
Some states and territories have or are considering human rights legislation. The Human Rights Act 2004 (ACT) and the Charter of Human
Rights and Responsibilities Act 2006 (Vic) do not permit individuals to
enforce their civil and social rights, but they do bind public authorities,
and all legislation in the jurisdiction must be compatible with human
rights. The legislation in the ACT and Victoria covers civil and political
rights and has limited potency, but Freckelton (2006b) argues there is evidence, in health cases at least, that it is prompting a cultural shift towards
rights thinking in the courts of these two jurisdictions. Other health law
commentators (Hunt 2008; McSherry 2008; McSherry and Darvall 2008)
also contend that rights to health and to service are increasingly being
positioned within a human rights framework in more general legal argument in the courts. The Tasmania Law Reform Institute has recommended
the enactment of a charter that includes civil, political, economic, social
and cultural rights in Tasmania (Tasmania Law Reform Institute 2007)
and the Western Australian government has received a similar recommendation (Consultation Committee for a Proposed Human Rights Act
2007).
PART 3
In Part 3, mishaps and misdeeds are scrutinised through a human services
lens, such that human service language and concepts govern the choice,
organisation and significance of the material. Within each chapter, linkages
are made between a human service activity and the law. Human service
direct work with clients and practice matters that may raise the possibility of legal action or complaint are emphasised. Reamer (2003b p. 77),
commenting on the situation in the United States, provides a partial rationale for this bias – most malpractice suits arise out of direct practice with
families, individuals and groups.
Human services intervention is generally accepted as involving several
phases of activity – ‘the helping process’ or ‘the planned change process’ –
which prevail regardless of theoretical orientation, the practice tools or the
targets of intervention. Generic approaches to human service intervention
(eg Hepworth et al. 2006; Kirst-Ashman and Hull 2006; Miley et al. 2007;
Sheafor and Horejsi 2007), case work (eg Gambrill 1983), counselling (eg
Corey 2009; Cormier et al. 2009) and case management (eg Rothman and
Sager 1998; Holt 2000) (Gursansky et al. 2003; Summers 2009) all use
these phases in their conceptualisation of the life cycle of the professional
practice relationship.
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20 POSITIONING AND MAPPING HUMAN SERVICE MISHAPS
Although different terminology and emphases may be applied to the
phases, and overlap and cyclical operation occurs, the phases are fundamental to the accepted helping process:
1. Intake, screening for service eligibility and assessment of need.
2. Planning and decision making regarding parameters, goals and methods
of intervention.
3. Implementation, monitoring, review and reassessment.
4. Winding down and service termination.
Expectations and demands regarding record keeping, and the management of information and interpersonal relationships are superimposed on
the helping process. These core phases of activity set the chapter structure
for Part 3.
Within each chapter in Part 3, human service failures are addressed
through relevant legal cases. Conditions, activities and events particular to
the phase of activity that pose legal risk are considered in relation to the
legal material in Part 1. Issues of potential human service legal liability
(eg failure to detect suicide indicators) and some areas of law (eg criminal,
discrimination, occupational health and safety) are relevant across the life
of intervention. In Part 3, these issues are included where they can be
brought into sharpest relief.
At appropriate places in each chapter, liability considerations arising
from the preceding material are discussed. These are intended to promote informed decision making about legal risk at the system, agency and
individual worker levels. The liability considerations listed:
are not definitive of substantive law, nor are they substitutes for legal
advice about specific fact situations
are not risk checklists, but aim to encourage broad reflection about
judgements made in appreciation of legal and practice imperatives
confirm, rather than develop, existing material on quality practice and
practice standards in the human services, as good practice and protection
from legal action overlap (although they are not synonymous)
attempt to draw attention to essential positive risk taking in human service work to counterbalance the emphasis on risk minimisation through
inaction which is a common by-product of legal action
PART 4
Part 4 of the book contains two chapters that attempt to draw together
strands from the other three parts of the book, from a legally informed
human service perspective. Chapter 13 explores the important question of
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THE SHADOW WORLD 21
what does or does not attract the attention of the law and why. Chapter 14
returns to the matter of ideals, actors and actions, and identifies challenges
to human service actors suggested by the acts and outcomes covered in the
book.
A FINAL CAUTION
Despite some high profile recent human service cases in Australia, very few
adverse human service events ever result in legal action and even fewer get
to court. Statistically the risks of a lawsuit are very small indeed. Thus, the
cases reviewed in this book represent the tip of the iceberg of mishaps and
misdeeds. Any case that comes to court stands for innumerable similar fact
situations that do not make it to court, some more damaging and some
less so. This point is as significant as the cases that do get to court and
contribute to the evolution of the law. Once something is understood of
the way in which a legal action begins and evolves, it is impossible to see
each legal case as a fact aberration, although its elevation to the courts is
just that. Human service readers are invited to look into the mirror that is
this book and to anticipate some discomfort.
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