Understanding the Implications of the SOP

A further guest post by John Darroch

Just over a week ago I became aware of significant changes to the Social Work Registration Legislation Bill which I found deeply alarming. These changes are contained in a Supplementary Order Paper (SOP) which was introduced into the House by Carmel Sepuloni on 21 December 2018. I wrote a blog post drawing attention to a range of risks I believed the Bill contained.   

Since then several members of the social work profession have come out with statements which provide a very different perspective on the draft law. These statements tend to focus on the benefits of proposed changes, such as the view that the introduction of scopes of practice will define the profession by what social workers actually do, rather than simply in relation to the words “social work”.

There has also been disagreement over the concerns I have raised. It has been argued that the profession can resolve many of the issues through subsequent input into implementation of this new approach to registration. In this post I will respond to some of the points which have been made. I’m going to focus on the text of the SOP and how this text, in my view,  creates specific outcomes, irrespective of how the Social Work Registration Board chooses to implement the legislation. In writing this post I want to be clear that I am not a lawyer, and I would appreciate expert legal opinions in relation to these points.

In my original blog I speculated about how this Bill (and associated SOP) could potentially harm the social work profession. Soon afterwards Amy Ross (of the Public Services Association) wrote a response which explained why the organisations involved arrived at the approach contained in the SOP, and why the Social Work Alliance had supported this.

Amy’s post presented a conditional endorsement of the SOP. It acknowledged risks inherent to the SOP’s approach to registration. More importantly, it explicitly stated that the social work community would have to engage in sustained action to ensure the legislation is applied in a way we would support.

This post, and other statements written since my initial post was published, provide significant insight into the concerns, debate and community consultation which led to this SOP being developed.

In Amy’s post, she argued that there were a number of fundamental flaws with the original Bill. She focused on two of these as being particularly clear problems:

• (Point A) The definition of social work by reference to the words “social work” and resulting implications for the employment of social workers; and
• (Point B) Problems the Bill created around the reporting of misconduct, and the potential this had to impact on employment rights.

An ANZASW statement on the passage of the Bill through its second reading also identifies these two deficiencies in the original Bill. In particular, the statement focuses on point A as being something which there was unanimous agreement on between “professional associations, the statutory regulator, employers, educators and the union” (ANZASW, 2019, p. 1).

These have been key issues which the profession has criticised for some time (RNZ link), with widespread agreement that changes to the Bill needed to be made. I agree with these two points specifically, and with the assertion that the Bill contained a number of other flaws. I also agree that these problems needed to be addressed by amending the Bill.

What I will now argue is that in making changes to the Bill a range of unintended consequences have arisen which fundamentally change the meaning, and effect, of this legislation.

Reasons put forward in defence of a scope of practice approach

Amy Ross’ blog post goes on to supply reasons in support of a scope of practice approach. The rationale which is articulated is not unique to this blog post, however the post contains the most accessible and comprehensive defence I have found so far.

These defences of the SOP contain the following points, many of which appear to be specific rebuttals to risks I suggested might arise:

1. The scopes will not prevent social workers from carrying out tasks which fall within a different scope;
2. Scopes will not necessarily require post-graduate education;
3. The core general scope is important as it will define core baseline standards for the profession;
4. The scopes will prevent employers from having the power to decide what jobs are and are not social work; and
5. The scopes will allow different areas of the profession to articulate components of practice which are important.

On the contrary, I believe a clear reading of the SOP means that, if implemented in its current form, points 1 and 3 are incorrect because of the specific wording in the legislation. I also have significant issues with points 2, 4 and 5 and believe that the text of the SOP is once again at fault (I may explore this in a later post).  I appreciate that Justin Canty has already addressed some of these points in his post, which goes into more depth than I do.

Point 1: The scopes will not prevent social workers from carrying out tasks which fall within a different scope.

• Section 6AAB(1)(b) of the SOP imposes a new restriction on social workers that: “they practise within the terms of their individual scope of practice”.
• Section 8 is titled “Applications for registration and authorisation to practise within scope of practice of social work profession”. This section states that social workers will apply to the Board either to practise within a scope of practice, or will apply to the board to change the scope of practice they are practising within.
• Sections 8A and 8B build upon section 8 and state that the board will determine what activities within a scope of practice the social worker will now be able to perform.
• Section 8G lays out what will happen when a social worker applies to change the scope of practice they are practising within.

These sections (as well as others) prohibit any social worker from practising beyond the scope in which they are currently registered. The assertion that social workers will be able to carry out activities contained within other scopes is incorrect, due to the current wording of the SOP.

These sections (and others) also make it illegal for a social worker to undertake tasks which are categorised as forming part of other scopes of practice.

One of the issues with the SOP is that, while it draws the concept of “scopes of practice” from the Health Practitioners Competence Assurance Act 2003 (the HPCAA), it does not introduce the concept of “Restricted Activities” as per section 9 of the HPCAA. The effect of this, when combined with the current wording of the SOP, is to effectively define the contents of every scope under the SWRLB as if they were restricted activities.

The suggestion that scopes, as created by the SOP, could contain general descriptions of tasks/skills/areas of practice, and then only some certain restricted activities, is incorrect.

Point 3: The core “general scope” is important as it will define core baseline standards for the profession.

The legislation does not say that all social workers will have to have a general scope, upon which a specialist or sub-scope will be added.

Instead, as with the above sections, the legislation only contains a requirement that social workers meet the requirements to practice within a particular scope set by the Social Workers Registration Board.

The pertinent changes within the SOP are found in s 5A, titled “Board to determine scopes of practice for social work profession”:

• 5A(2) states: In section 4, repeal the definition of recognised New Zealand qualification.
• 5B(1) states: The Board must, by notice in the Gazette, prescribe the qualifications for each scope of practice that the Board describes under section 5A

When considering the significance of this change it is necessary to look at the definition that is being removed from section 4 of the Act (which determines the interpretation, and by extension the application of the Act):

recognised New Zealand qualification means a New Zealand educational qualification for the time being recognised by the Board as appropriate for social workers working in New Zealand

Instead of referring to recognised New Zealand qualifications, the SOP introduces Prescribed Qualifications.

In making this change the SOP removes a requirement for the Board to determine which qualifications are appropriate for the profession, and replaces this with an obligation on the  to set the requirements which will meet a certain scope.

The implications of this change are most clearly stated by Carmel Sepuloni’s Briefing to Cabinet.

At paragraph 23 she states: “It is likely that ancillary roles will be developed for less formally qualified people, similar to enrolled nurses compared to registered nurses”.

This statement from the Minister envisages the creation of roles which would sit below the level of a general scope of practice (which is likely to require a BSW or MSW).

The creation of such roles is allowed for by bringing social work registration in line with nursing, by amending Social Work Registration to focus on scopes, rather than a singular or baseline level of competence and knowledge shared by social workers (as is currently required by legislation).

Comment on implications

These two components of the SOP have implications for the profession which I view as fundamentally inconsistent with social work:

• Regarding point 1: By including tasks, activities, or roles within a particular scope, other social workers will be prohibited from carrying these things out unless they too hold that specialist scope; and
• Regarding point 3: By eliminating the current requirement for all social workers to have a certain level of knowledge, the legislation undermines the foundations of social work as a discipline in Aotearoa.

These are consequences which will be written into law.

I believe that these consequences, as well as many others, necessitate an urgent rethinking of the support for the SOP.

Comment on gap between the wording of the SOP and its supporters.

There is currently a significant gap between how proponents of this SOP are describing it’s contents and the legislative framework which the SOP creates. I believe that the full implications of this SOP are not widely understood within the profession, and that formally splitting social work into different segments, or hierarchies (as the Minister has envisaged) is not what the supporters of this SOP wanted.

I have gathered that there may be a feeling within the profession that it is too late to stop this SOP, and that it is still a worthwhile response to problems identified in the original Bill – described as points A and (B) above.

I however take a different view. I believe that it is still very possible for the profession to seek changes to this legislation. I think that it is a serious mistake to misunderstand, or gloss over, the problems with the SOP as it is currently written. Creating specialties which only some social workers can practice within is an approach which replicates the medical model. It is an approach which will inevitably lead to narrow specialisation and increased disparity within the profession.

Note regarding need for proper legal advice.

As stated, I am not a lawyer. If those organisations supporting the implementation of the SOP have not already received comprehensive legal advice on the implications of this SOP then such advice must be sought urgently (the Bill is being debated again from 19 February)

If such advice has been received I am calling for it to be publicly released to allow the wider profession to fully understand the impacts of this SOP.

Note about a future post relating to the rationale behind scopes being supported by the profession

In this post I have not addressed why this SOP was developed. In reading a range of different materials (including the post by Amy Ross) I have come to appreciate why the profession used the words “scope of practice” when advocating changes to the SWRLB.

In a future post I may look at submissions on the original Bill which suggested introducing a scope (singular) or scopes (plural) as well as statements which have been made more recently. In general I support most of the arguments which were made (including by Amy Ross).

I believe that understanding this background is crucial to understanding why we have the SOP we currently do. However, I  see exploration of this as less urgent than understanding the implications of the SOP as it stands, which is why I have written this post first. Essentially I believe the current SOP does not achieve what the profession wanted, and for this reason the profession should urgently reconsider its support.

Acknowledgements

I would like to thank Eileen Joy for her significant input into this post, including identification of key issues with the SOP and what their implications would be. I would also like to thank the RSW Collective for their support of robust debate regarding this critically important issue.

                                                                                                                Image Credit: Woody Hibbard