The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

The Regulatory Context Of

Social Welfare
B.A. Social Work/Social
Policy
1 year – Semester 1
st

Notes compiled by M.Pulis

The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

Introductory Lecture (Ms. Mangion)

1) Doing what is right (Legal)
May de-skill the social worker since its application does not allow the social worker to
reflect and adopt a person - centred approach. This approach is consistent with strictly
observing rules and procedures which lead to injustices.
2) Doing the right thing (Ethics)
May lead to a situation where one interprets the professional from an ethical standpoint.
3) Right thinking
A balance between Law & Ethics is worked out.
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The State
Legislative
1. The Parliament, Minister, etc. proposes a law (Green Paper) which is opened for
discussion. Depending on feedback, this may become a White Paper (detailed
proposal)
2. Bill – Draft Law (presented in parliament)
3. (1st reading) – Reads title
4. (2nd reading) – Speech in parliament
5. Committee Stage – Different departments talk about benefits or downsides of the
law proposed.
6. Finalised report on Law - If the Parliament agrees (through voting), a law may pass
after which the President signs the approval.
7. Publication in the Government gazette.
8. Law comes into effect.

Executive

The Cabinet is compromised of the Prime Minister & Ministers. They are responsible
for decision – making. Ministers and Parliamentary secretaries are usually
responsible for one or more departments of government. The Executive branch also
includes the Attorney General and the State Advocate.

A) Attorney General

Appointed by the President.

Has the power to discontinue legal proceedings.
Constitutionally independent and should not be biased or influenced in
any way. (The only exception is judicial review)
The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

B) The State Advocate

© Appointed by the President.

© Advisor to Government in legal matters.
© Should act in the public interest and thus should not be biased or influenced
in any way.
Judiciary
The judicial branch of the State is compromised of the court which includes the
judges and magistrates. Both judges and magistrates should be appointed by the
President. In order for an individual to be appointed a judge or magistrate, he or
she needs to have practised as an advocate for a minimum of seven years.

Human Rights
Every person in Malta is entitled to the fundamental human rights. This means that even
non-Maltese citizens residing in Malta are entitled to said rights. These fundamental human
rights include: life, liberty, security of the person, the enjoyment of property and the
protection of the law; freedom of conscience, of expression and of peaceful assembly and
association; and respect for his private and family life.

Courts: Criminal Court

It is important to distinguish between two types of courts:

¨ Criminal Court
¨ Civil Court
In Criminal Law (Criminal Court), the accused person will be prosecuted in the court of
law. Sanctions (i.e., imprisonment) are possible.
Court of criminal inquiry – Through each court sitting, evidence is gathered.
The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

Court of criminal judicature – Deals with cases where the punishment for the alleged
offence does not exceed two years imprisonment. However, with the consent of the
Attorney General and of the accused, the Court of Magistrates as a Court of Criminal
Judicature may determine cases where the offence carries a punishment not exceeding
twelve years imprisonment.

The Criminal Court is the only court which permits the public to participate directly in the
administration of justice through trials by jury.

The Laws of Evidence (Criminal Court)

Types of evidence

Physical (visible) – Example: Bruises in a case of alleged domestic violence.

Forensic (Biological) – Example: Fingerprints, DNA, items of Clothing etc.

When gathering evidence, be it the civil sphere or criminal sphere, the governing principle,
is what is commonly known as the Best Evidence Rule. This rule states that the court shall
require the parties to produce the best evidence they can.

Corpus delicti refers to the object used to perform the crime (Example: A person was
stabbed by a knife – the knife is the corpus delicti. )
The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

The Use of Law in practice – Session with Ms. Maria Mangion

“Everyone brings into social work their own culture and values, and some come with a very
clear understanding of what they stand for, with a mission to help people who are
disadvantaged and disempowered…. Need to be alert to the dangers of pushing too far
against the boundaries of what is legal” (Johns, 2016., p9)

It is valid to have a personal agenda in the line of Social Work, however one must not
disregard the Law.

Example: It is perfectly acceptable to advocate for what you believe in in relation to matters
such as abortion, however, one cannot impose their opinions onto others and fail to
acknowledge what the law has to say about abortion.

Courts: Civil Law

In Civil Law (Civil Court), the wrongdoer gets sued by the complainant or the aggrieved
party. Usually, for monetary compensation.

The individual who alleges wrongdoing must bring forth proof of said wrongdoing. This
concept is known as the burden of proof. The burden of proof oscillates between plaintiff
and defendant (person who alleges wrongdoing and the wrongdoer).

The below is a visual summary of the court system in Malta. It is not intended to be
exhaustive, however it can be used as a guide in attempting to grasp the concepts.
The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

Testifying in Court

¨ Witnesses can be anyone irrespective of age, religion etc.

¨ There is no age limit, however, whenever possible, children are spared the trauma.
¨ A witness should prepare himself/herself, especially if in the subpoena (writ ordering
a person to attend a court) he has been asked to bring with him certain documents.
¨ The witness should bring the subpoena with him to court. A witness should always
be in the court building at least ten minutes before the scheduled time.
¨ A witness is bound to appear in court on the day and time indicated in the subpoena.
If the witness fails to attend, the Court will hold the witness in contempt, will
sentence him/her to pay a fine and order that for the next sitting he/she is brought
to court by means of a warrant of escort or a warrant of arrest.
¨ Persons accused of committing another crime can testify after the outcome of the
case is finalised.
The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

Side note – Balancing Law and Social work

As discussed in the introductory lecture, a balance between the legal aspect and the
ethical aspect needs to be reached. Thus, the behaviour displayed in a social work
setting and in a court setting (when testifying), should be distinct.
The Law provides a framework for practice which grants the social worker with
powers to take appropriate action. The relationship between the law and social
work practice is complex. Although an in-depth understanding of how the law
affects every day social work practice is essential, it also involves much more than
just learning the legal rules. “Constant reflection and critical analysis of your own
values and practice of social work are required to be an effective practitioner”
(Johns, 2007).

Session with Magistrate Claire Stafrace Zammit

¨ Social workers are only allowed to accompany minors when they are extremely
vulnerable, and provided that the defence lawyers accept.
¨ Social workers are required to be truthful in their testimonies and are exempted
from the profession’s confidentiality.
¨ Vulnerable witnesses are entitled to special protection.
¨ Hearsay evidence – Hearsay evidence refers to that type of evidence tendered by a
witness, whether oral or written, which is based on what has been reported to the
witness by others rather than what he has observed or experienced himself.

What does it mean to practise social work? – a legal definition (chapter 468):

The taking up or pursuit of the profession of social work and the right the use in the context
of the profession and the right to use the title “Registered Social Worker”.

''Social Work'' means a practice-based profession and an academic discipline that promotes
social change and development, social cohesion, and the empowerment and liberation of
people. Principles of social justice, human rights, collective responsibility and respect for
diversities are central to social work.

(Social work profession act, amended 2016)

The Regulatory Context of Social Welfare Notes Compiled by Mariah Pulis

Important distinction between what is culturally acceptable and legally acceptable should
be made, especially when pursuing this sort of profession.

A registered social worker can have their warrant revoked or not given one if:

• They are found guilty of a punishable offence (minimum of 1 year).

• Their name is featured on the register of child sexual offenders.

The use of Law in Practice (2) – Session with Ms. Maria Mangion

A consent form is filled in at the beginning of the service – i.e. social work,
psychological therapy, etc. It is of outmost importance that service users are
reminded that the social worker is not a priest whose hands are tied with a
sacrament. Confidentiality, however is only broken in one or more of the following
instances:

 Harm to self – the service user is in imminent risk of harm to themselves

 Harm to others – the service user threatens to harm others
 As deemed necessary by the court