Social Work: Legal Frameworks & Client Rights
Legal Knowledge for Social Workers
Understanding the law is crucial for social workers (SW) for several reasons:
- Defining Practice Limits: It helps you understand the boundaries of your professional practice.
- Avoiding Liability: It assists in avoiding actions that could lead to professional sanctions, criminal charges, or civil liability.
- Upholding Rights: It ensures you understand your rights and, critically, your clients’ rights.
- Accessing Services: It helps you identify benefits and services available to clients and understand potential reasons for denial.
Legal Information vs. Legal Advice
Legal Information: Providing general information about the law without specific reference to an individual’s circumstances.
Legal Advice: This is best left to qualified lawyers and involves applying legal principles to a specific factual situation.
Key Sources of Canadian Law
Laws and policies stem from various sources:
- Common Law (Case Law): Law created by judges through court decisions.
- Statutes and Regulations:
- Statutes: Laws passed by the federal Parliament in Ottawa or by provincial/territorial legislatures.
- Regulations: Detailed rules made under the authority of a statute.
- The Constitution: The supreme law of Canada, establishing the political structure and fundamental laws. All other laws must conform to it. The Canadian Charter of Rights and Freedoms (CCRF) is part of the Constitution, enacted by the Constitution Act, 1982.
- Municipal By-laws: Laws passed by municipal governments.
- Government Policies: Written and unwritten policies from all three levels of government (federal, provincial/territorial, municipal).
Understanding Rights and Freedoms
Right: A legally recognized entitlement or claim that individuals possess. It signifies something you have the entitlement to do or to have.
Freedom: The ability to think, believe, or take part in activities without undue government interference. It signifies something you are free to do.
Human Rights Legislation in Canada
Key human rights statutes include:
- Federal: The Canadian Human Rights Act.
- Provincial/Territorial: Each province and territory has its own human rights legislation, often called a Human Rights Code. For example, Ontario enacted its Human Rights Code in 1962, becoming the first province in Canada to do so.
The Human Rights Tribunal of Ontario (HRTO) is an example of a body that adjudicates complaints and decides if someone’s human rights under the provincial code have been violated.
Understanding Discrimination
Discrimination can manifest in several forms:
- Direct Discrimination: Blatant and obvious differential treatment.
- Adverse Effect Discrimination (Indirect): Practices or policies that appear neutral but have a negative impact on individuals or groups protected under human rights law, often unintentionally.
- Systemic Discrimination: Patterns of behavior, policies, or practices embedded in the structures of an organization or system that create or perpetuate disadvantage for specific groups (e.g., racialized persons).
Defining Harassment
Harassment is a form of discrimination. It includes unwanted physical or verbal behaviour that is offensive and demeaning. Sexual harassment includes a range of behaviours such as:
- Unwelcome sexual advances or comments
- Threats
- Stalking
- Unwanted sexual touching
- Sexual assault
Bona Fide Occupational Requirements
A Bona Fide Occupational Requirement (BFOR) refers to a standard or rule that is integral to carrying out the functions of a specific job. It means that specific skills, qualifications, or attributes are genuinely necessary for an employee to perform the job safely and efficiently. A BFOR can be a defence to a claim of discrimination if a workplace rule has an adverse impact.
The Role of Advocacy
Advocacy involves supporting or arguing in favour of a cause or individual.
Types of Advocacy
- Self-Advocacy: An individual’s ability to effectively communicate, convey, negotiate, or assert their own interests, desires, needs, and rights.
- Individual Advocacy: Advocating on behalf of one or a few individuals. This can be:
- Informal Advocacy: When individuals like parents, friends, or family members speak out and advocate for vulnerable people.
- Formal Advocacy: Often undertaken by professionals or designated advocates within a structured system.
Understanding Stigma
Stigma involves a combination of:
- Negative Attitudes (Prejudice): Preconceived, often unfavorable, judgments towards people or groups.
- Negative Responses (Discrimination): Actions or behaviours based on these prejudices, leading to unfair treatment.
Mental Health Act: Patient Admission
The Mental Health Act outlines different statuses for patient admission (specifics can vary by jurisdiction):
- Voluntary Patient: A person who is admitted to a psychiatric facility and agrees to stay of their own free will.
- Involuntary Patient: A person admitted against their will, typically because they exhibit signs of mental illness, pose a risk of harm to themselves or others, or show impaired judgment affecting their ability to make treatment decisions.
- Informal Patient: A person admitted with the consent of another individual who has the legal authority to provide that consent on their behalf (e.g., a parent for a minor, or a substitute decision-maker).
Mental Health Act: Forms & Procedures
Several forms and procedures are critical under the Mental Health Act (the following often reflects Ontario’s system; specifics may vary by jurisdiction):
Form 1: Application for Psychiatric Assessment
This form is an application by a physician for a psychiatric assessment, often under Section 15 of the Mental Health Act. It is typically used when a physician reasonably believes the person may:
- Pose a risk of harm to themselves or others.
- Have behaved violently towards another person or caused another person to fear bodily harm.
- Have shown a lack of competence to care for themselves.
Post-Form 1 (within 72 hours): After a Form 1 is issued, a physician must decide to:
- Release the individual.
- Admit the individual as an informal or voluntary patient.
- Admit the individual as an involuntary patient (which then involves a Form 3).
Form 3: Certificate of Involuntary Admission
This certificate is used for involuntary admission. If a patient is made involuntary after a Form 1 assessment, they are placed on a Form 3 (along with the Form 1).
- It can follow an initial 72-hour assessment period (e.g., under Form 1).
- The initial Form 3 can authorize detention for up to 14 days.
- Second Opinion: The physician who initiated Form 1 cannot be the sole physician to issue Form 3; a second opinion from a different physician is required. This safeguards against wrongful detention.
Patient Rights and Information
- Rights Adviser: A person available to speak with patients about their legal rights, typically within 24 hours of involuntary admission or a change in status.
- Form 30: Patients receive this form, which explains why they are being placed on a Form 3 (involuntarily detained).
- Restraint: A patient may be restrained if they attempt to leave the hospital while under an involuntary status.
Form 4: Certificate of Renewal
If involuntary admission needs to continue beyond the period authorized by Form 3:
- A Certificate of Renewal (Form 4) must be completed.
- First Renewal: Extends involuntary admission for up to 30 days.
- Second Renewal: Valid for up to 60 days.
- Subsequent Renewals: Each subsequent renewal can be for up to 90 days.
- Renewals can be appealed and, if criteria are met, can be renewed indefinitely.