Professional Discretion and Accountability in the Welfare State

Abstract

The discretionary powers of welfare state professionals are in tension with the requirements of the democratic Rechtsstaat. Extensive use of discretion can threaten the principles of the rule of law and relinquish democratic control over the implementation of laws and policies. These two tensions are in principle ineradicable. But does this also mean that they are impossible to come to grips with? Are there measures that may ease these tensions?We introduce an understanding of discretion that adds an epistemic dimension (discretion as a mode of reasoning) to the common structural understanding of discretion (an area of judgment and decision). Accordingly we distinguish between structural and epistemic measures of accountability.The aim of the former is to constrain discretionary spaces or the behaviour within them while the aim of the latter is to improve the quality of discretionary reasoning.The focus in this article is on epistemic measures that are internally related to the main characteristic of accountability, namely justified use of discretionary power.What characterizes many welfare-state arrangements is that they confer discretionary powers upon professionals in their roles as 'street-level bureaucrats'. 2 Professionals then act as gatekeepers, deciding who gets what, when, and how. This fact has generated its share of criticism. 3 The discretionary powers of welfare-state professionals are troublesome for two main reasons. First, there is a tension between discretion and the formal demands of the rule of law. Extensive use of discretion in the application of law can threaten the principles of predictability, legality and equal treatment. Second, there is a tension between discretion and democratic control. Discretion is the black hole of democracy -to borrow Bo Rothstein's metaphor. 4 Entrusting street-level bureaucrats with extensive discretionary powers is by definition almost equal to relinquishing democratic control over these final steps.There is, of course, a lot of sloppy discretionary work. But that is not our point and not what basically makes discretion problematic from the point of view of rule of law and democracy. The two tensions are intrinsic and cannot be removed, only ameliorated. They follow from the very nature of discretion as a judgmental and decisional activity and can appear even if we presuppose that the activity is performed in a conscientious manner. 5 Our guiding idea is that discretion has both a structural and an epistemic aspect. On the one hand it designates a space where an agent has the autonomy to judge, decide and act according to his own judgment. In this sense discretion is an 'opportunity-concept'. On the other hand it designates the kind of reasoning that results in conclusions about what to do under conditions of indeterminacy. In this sense it is an 'exercise-concept'. 6

The formalized framework for decision-making in child protection care orders: A cross-country analysis

“…One part of the problem for the State in regulating decision-making concerns the distinction between discretionary space and discretionary reasoning (Molander et al, 2012). Discretionary space is about the types of issues professionals are given to handle and make decisions about a case, and discretionary reasoning is about the justification of decisions.…”

“…In spite of the gravity of these determinations, there are notable differences across child protection systems, within and between actors in the system, allowing for considerable discretion and thus the potential for inequities for children, parents and families. Discretion in state interventions raises questions about the principles of the rule of law, democratic control and legitimacy (Molander et al, 2012;Elster, 1989;Piper, 2000;Dunn et al, 2007). In modern democratic states, it is usually the court that makes decisions about care orders, but it is the child protection system 1 and front line child protection workers that have responsibility for the day-to-day interactions with children and families -and to suggest and carry through preparations for a care order.…”

“…In modern democratic states, it is usually the court that makes decisions about care orders, but it is the child protection system 1 and front line child protection workers that have responsibility for the day-to-day interactions with children and families -and to suggest and carry through preparations for a care order. The aim of this paper is to examine the discretionary space (compare Molander et al, 2012) governments give their frontline child protection workers to conduct care order proceedings.…”

The role of professional judgement in social work assessment: a comparison between Norway and England

“…The discretionary powers of welfare state professionals can be troublesome in different ways: they can threaten the predictability, legality and equality of responses and this raises some democratic issues concerning public control. Furthermore, professional judgements are difficult to predict and control, and the same case may be judged differently, even by professionals with the equivalent knowledge base and level of experience, based upon different logic and reasoning (Molander, Grimen & Eriksen, 2012). However, discretionary work can also be seen as providing 'opportunities' in the way it designates room for autonomy in judgements and decisions (Ibid.…”

Acquired brain injury rehabilitation: dilemmas in neurological physiotherapy across healthcare settings

“…They are often described as street-level bureaucrats (14)(15)(16), being the final link in the chain of democratic governance. In the Norwegian context, Vike (17) has questioned whether dilemmas of gate-keeping are increasingly individualized at the professional level, and how street level bureaucrats are potentially overburdened as treatment responsibilities are delegated within the care system.…”