social work decision making essay

Decision Making in Social Work

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• Terence O’Sullivan

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• The first text to address the core skill of decisionmaking in social work Offers a coherent synthesis of a previously fragmented literature Develops an innovative framework that systematically addresses the complexity of practice without oversimplification

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Social Justice and Social Work

Key Social Work Frameworks for Sociologists

• decision making
• decision-making
• organization
• social work

Table of contents (9 chapters)

Front matter, making decisions, decision making contexts, involving the client, stakeholders meeting together, thought and emotion in decision making, framing the decision situation, choice of options, evaluating decisions, conclusions, back matter, about the author, bibliographic information.

Book Title : Decision Making in Social Work

Authors : Terence O’Sullivan

DOI : https://doi.org/10.1007/978-1-349-14369-6

Publisher : Red Globe Press London

eBook Packages : Palgrave Social & Cultural Studies Collection , Social Sciences (R0)

Copyright Information : Terence O’Sullivan 1999

Edition Number : 1

Number of Pages : XIII, 216

Additional Information : Previously published under the imprint Palgrave

Topics : Social Work

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Ethical Decision Making Tool

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The Ethical Decision Making Tool

Are you reflecting on an ethical dilemma?

This tool includes interactive options to guide Nova Scotia Registered Social Workers through the CASW  Code of Ethics  and the NSCSW  Standards of Practice  (2015).

Ethical Decision Making

Our experiences and values influence ethical decision-making. That’s why it’s important for social workers to seriously consider the perspectives of those they work with, the environments they are working in and the influence of the dominant narrative. Throughout the ethical decision-making process, we encourage reflection on one’s own value system, emotions, and positionality in relationship to these broader systems.

Social Work Philosophy & Ethics

Social work values are embedded in principles of social justice and Humanitarianism. The social work worldview is often distinct from the dominant ideology (how issues are represented in our society at large). Dominant values are presented as though they apply to everyone but are often the values of elites or ruling powers in society, such as the state. We still battle prejudices related to race, gender, and class etc.

Social work can act as the conscience of society. As social workers, we bare witness to suffering and help people find their voice. That is the “noble” part of our professional identity. There have always been courageous social workers who “spoke truth to power” and challenged the dominant view (Spencer, Massing and Gough,2017).

Intersectionality

Post-modern social work philosophy and ethics are guided by intersectional theory which promotes thinking about multiple identities and how systems of oppression are interconnected through ethnicity, class, and gender… etc which are experienced simultaneously, not ‘one at a time (Mullaly, 2009). The theory holds that each person holds different degrees of oppression and privilege based on our relative positioning along axes of interlocking systems of oppression. Where each of us lies in relation to the center and the margin —our social location—is determined by our identities, which are necessarily intersectional (Hulko, 2004).

Our social location refers to the relative amount of privilege and oppression that individuals possess on the basis of specific identity constructs, such as race, ethnicity, social class, gender, sexual orientation, age, disability, and faith” (Hulko, 2009, p. 5). Differences in class, in social and economic power, in educational opportunity and achievement, in health and physical well-being, are the expression and result of institutionalized inequalities in opportunity and socialization through the narrative of the dominant ideology. Such differences perpetuate and increase the social imbalances in power and thereby serve to maintain all forms of oppression (Mullay,2009).

Intersectional theory informs social workers on how to build professional helping relationships. Rooted first through the concept of empathy, or living in someone else’s shoes, intersectional theories guide social works to understand our shared experience with a client, drive a mutual need to collaborate, while addressing collective problems that have created these issues. Empathy leads to us to work in solidarity with clients towards liberation from oppressive structures (Mullaly, 2009). When we recover the buried memories of our socialization, to share our stories and heal the hurts imposed by the conditioning, to act in the present in a humane and caring manner, to rebuild our human connections and to change our world (Sherover-Marcuse, 2015.)

Relational Ethics

Intersectionality informs social workers on how to co-create meaning with clients. Traditionally, care is often thought of as flowing one way–from professional to client in the case of social work. The notion of relational ethics helps us to see care as something that happens in the space between us, what some have called the “third space” (Spencer, Massing and Gough, 2017). Care is neither about you nor I alone, but a process of co-creating a better story that happens between us. That is, it brings together a space in which we are all equal in our humanity. In practice, this may mean that as professionals, we take primary responsibility for the helping process but freely share the process of co-creation (Spencer, Massing and Gough,2017). In action this may mean:

• We put the other’s needs in the forefront for the moment.
• We are emotionally present to the other, attentive to their story.
• We resist the urge and need to immediately fix the problem (or what we think is the problem).
• We help people to empower themselves.
• We share appropriately how the other’s story touches us.
• We take responsibility for our ethical practice but share ethical dilemmas with the other as appropriate (Spencer, Massing and Gough, 2017).

Intersectional thinking pushes us to work in solidarity with clients to liberate both the undoing effects and of the causes of social oppression. These changes will involve transforming oppressive behavioral patterns and “unlearning” oppressive attitudes and assumptions (Mullay, 2009).

Dolgoff, R., Loewenberg, F. M., & Harrington, D. (2009). Ethical issues for social work practice.

Gough, J. & Spencer, E. (2014) Ethics in action: An exploratory survey of social workers ethical decision making and value conflicts. Journal of Social Work Values and Ethics vol. 11. 2. (pp 23-39).

Hulko, W. (2004). Social science perspectives on dementia research: Intersectionality. Dementia and social inclusion, 237-254.

Hulko, Wendy (2009). The time-and context-contingent nature of intersectionality and interlocking oppressions.” Affilia 24.1 (2009): 44-55.

Mattsson, T. (2014). Intersectionality as a Useful Tool Anti-Oppressive Social Work and Critical Reflection. Affilia, 29(1), 8-17.

Mullaly, R. P. (2010). Challenging oppression and confronting privilege: A critical social work approach. Don Mills, Ont: Oxford University Press.

Spencer E; Massing, D & Gough, J (2017)Social Work Ethics; Progressive, Practical, and Relational Approaches; Oxford Press.

Questions? Contact the College’s Executive Director/Registrar, Alec Stratford at [email protected].

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Ethics of Decision-Making in Social Work Case Study

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Introduction

Inclusivity and diversity imply acceptance of differences, awareness of their value, and profitable use of the uniqueness of each. Inclusivity removes barriers that prevent a person from gaining access to a specific area: education, the ability to make political decisions, culture, and others. Primarily, it relates to ethical decision-making because all points of view should be considered in any workplace (Banks & Nøhr, 2012). The ethics of decision-making is choosing one of the alternative ways of solving a problem based on the foresight of the immediate and long-term consequences of the decisions made and their responsibility.

Decision-making is an integral part of the ethics of responsibility. At the level of everyday practice, decision-making is based either on intuition, impulsive impulse, or judgments based on personal experience, knowledge, and competencies. Intuitive solutions are not burdened with a conscious weighing of the pros and cons of each alternative and do not need a rational understanding of the situation (McAuliffe & Sudbery, 2005). Even though intuition constantly accompanies the manager’s activities, rationality is the primary factor in solving the problem. Hence, this paper aims to investigate an inclusive model of ethical decision-making and reveal its influence on the working environment.

The inclusive model of decision-making was elaborated on the basis of numerous principles in such fields as healthcare, psychology, social work, legal practice, and others. It was first published by Chenoweth and McAuliffe (McAuliffe & Sudbery, 2005). It is built upon several essential dimensions responsible for the decision-making process and ensuring a safe environment for every employee. These dimensions are accountability, consultation, cultural sensitivity, and critical reflection.

The first element is explained as the responsibility of “being called on to give an account of what one has done or not done” (Banks, 2004, p. 150). It is usually linked to blame because managers should be careful while making choices since unpredictable results may be. As an essential platform for an Inclusive Model of Ethical Decision-making, accountability focuses on the employee’s ability to formulate and justify the decisions made, considering the broader social context in which they work. This platform is tightly linked to critical reflection, which encourages managers to open up the decision-making process to test themselves and others in a way that improves organizational status (Banks & Nøhr, 2012). If this step is followed, workers can realize the structure of their values and their impact on their decisions.

The ethics of professional social work can be defined as the theory (teaching) of professional morality of specialists in the field of social work. It includes a system of ideals and values, ethical principles and norms of behavior, ideas about what is due, and requirements for the personality of a specialist (McAuliffe & Sudbery, 2005). These components of the ethics of professional social work reflect its essence and specifics as a profession and provide relationships between people that develop in the work process, which follow from the content of their professional activities.

The third component of the model, cultural sensitivity, is of vital importance since the modern world demands us to be tolerant and respectful of any culture. Culturally insensitive practices often lead to destructive consequences and leave employees susceptible to discrimination if managers do not take action against such cases (McAuliffe & Chenoweth, 2008). The final platform of the foundation is consultation, which consists in making reasonable use of the wisdom and advice of others. It also requires participation in discussions with others that can help the practitioner maintain essential values in the interests of honesty and prudence (McAuliffe & Chenoweth, 2008). However, this element is customarily disregarded when it comes to making ethical decisions, and many practitioners silently bear a moral burden, fearing that colleagues will consider them unprofessional (McAuliffe & Sudbery, 2005). These four platforms are interconnected and interdependent since, together, they aim to improve the decision-making process. When passing through the stages of the inclusive model, these virtual platforms should remain at the center of attention at each stage.

The model also includes five steps to solve the organizational problem and come up with a proper decision. The case study chosen for the assessment refers to the dilemmas in working with a gypsy family. Following the inclusive model of ethical decision-making steps, it is primarily vital to define the social problem (McAuliffe & Chenoweth, 2008). The ethical dilemma in the selected situation is that Miguel, the educator, struggles to prevent 15-year-old Gloria from marriage or to respect the gypsy marriage traditions of nomadic people. Despite the fact that now, Gypsies almost do not wander and lead a sedentary lifestyle, they keep their traditions and customs sacred. It is accepted that early marriages in the gypsy traditions are not prohibited, but they are not mandatory either. This practice is common, but not all representatives of the people follow the customs. Its meaning is to preserve the purity of the bride and groom by arranging the marriage as early as possible.

Meanwhile, Miguel attempts to preserve the low school dropout statistics to ensure as many kids as possible receive a proper education. On the one hand, Miguel has a good relationship with the community leader and does not want to disrespect his culture. On the other hand, he wants to satisfy Gloria’s needs and her desire to stay in school because he knows how important it is for her.

Since the ethical dilemma was determined, it is necessary to follow the second step called mapping legitimacy. This stage determines the nature of the relationships between the participants at various levels of interpersonal, family, and social systems (McAuliffe & Chenoweth, 2008). It is crucial to define relevant for dilemma-solving participants since irrelevant stakeholders may worsen the outcomes. In Miguel and Gloria’s case, the primary relationship to be viewed is between the educator himself and Gloria’s father because he is responsible for his underage daughter.

The problem needs to be directly discussed with the client, Gloria’s father, for several reasons. First, the dropout Gloria is facing can have a negative impact on her further education and career. As Gloria’s intentions align with Miguel’s, her father needs to be convinced that school is of primary importance for the girl, while the marriage can be delayed. Second, according to gypsy tradition, a husband is the head of the family, and a wife is the keeper of the hearth, which means they barely receive any education or want to work. Among the gypsies, a girl aged 19-20 years is already considered an old maid (Williams, 2020). It is already challenging for her to get married, no matter how beautiful she is. By the age of 30, she loses her fertility, which means that she will not produce offspring (Williams, 2020). Hence, Gloria’s dad needs to understand that the modern world requires people to acquire new knowledge regardless of the culture they belong to.

The third step of the model presumes to gather information. According to McAuliffe and Chenoweth (2008), “the difference with ethical decision making is that the information to be gathered is more specific to practice standards, codes of conduct, protocols, legal precedent, and organizational policies” (p. 44). It means that the data collection should be conducted thoroughly, considering both sides’ perspectives on the matter (McAuliffe & Chenoweth, 2008). For instance, Miguel should find out more about gypsy traditions. He may research the existing literature regarding their customs and determine if there are any deviations if they do not stick to the specific rites such as getting married. On the other hand, the educator should abide by the code of ethics of social workers to avoid encountering any ethical issues.

Collecting relevant information and disposing of unnecessary facts is crucial to establishing a plan of action. It would also help discard misleading data that could contribute to destructive results in further plan implementation. One of the fundamental principles of social workers is the principle of “do no harm,” which involves working for the well-being of a person and preventing any ill-treatment of them (Beckett et al., 2017). Respect for the client’s right to decide is a manifestation of respect and observance of their rights (Beckett et al., 2017). A social worker cannot assist a client without their consent to their action plan.

Hence, when solving Gloria’s situation, it is vital to consider the background of her family. All the specific features of her culture and family should be taken into account when making a decision on providing her with social assistance. However, it is also indispensable to rely upon the psychological perspective regarding child development. At the age of 15, the ten lays the foundations of conscious behavior; there is a general orientation in the formation of moral ideas and social attitudes (Newman & Newman, 2020). Features of the development of cognitive abilities of a teenager often cause difficulties in school education: poor academic performance and inappropriate behavior. The success of learning largely depends on the motivation of learning and on the personal meaning that learning has for a teenager (Newman & Newman, 2020). The primary condition for any training is the desire to gain knowledge and measure yourself and the student. Considering Gloria’s dive to study and acquire knowledge, I believe Miguel should explain its fundamentality to her parents, suggesting the psychological view on the teenager’s development.

In addition, a teenager has a strong need to communicate with their peers. The leading motive of such behavior is the desire to find their place among their peers. If Gloria is deprived of this opportunity, she is likely to lack social skills. Moreover, if she is getting married and gives birth at such an early age, it may result in trauma since children are not adapted to such events due to the relative instability of their psyche. Early pregnancy among adolescents has severe consequences for the health of adolescent mothers and their children (Branje, 2018). What is more, childbirth during adolescence often forces girls to drop out of school, which could be the case for Gloria.

The final step relates to the evaluation and critical analysis. Here Miguel should appraise several alternatives and suggest them to Gloria and her father to decide which suits them better. There is no need to press clients when they choose, but Miguel should be persuasive to sustain his project’s goals (Beckett et al., 2017). Thus, when they together evaluate the probable outcomes, the solution can be found.

Given similar circumstances in Australia, I would primarily investigate gypsy traditions within the scope of my country. Due to the fact that gypsies share identical values across the world, their mindsets become adjusted to their location as geographical context influences the central part of any person’s life. Hence, if I ever encountered such a situation, I would conduct research on the psychology of 15-year-old teens, determine the positive and negative consequences of a school dropout, and discuss this information with both Gloria and her father. Undoubtedly, it is necessary to explain that adolescence is a time of active personality formation, refracting social experience through the individual’s functional activity to transform one’s personality. As a result, I would persuade Gloria’s father that a girl needs education before entering adult life.

On the other hand, being a social worker demands utter respect for a client. They act in the interests of the person who has applied to them for help, often doing more than is prescribed by standards. It presumes that clients make their own decision based on the alternative proposed by social workers (Beckett et al., 2017). Therefore, I would suggest two ways for Gloria’s situation development to her father and let him choose since he is the official guardian of an underage child. Taking into consideration customers’ needs is vital to providing desired outcomes.

In summary, the inclusive model of ethical decision-making helps solve social dilemmas. It is an efficient means of establishing the root of the problem and the resolutions, and most importantly, it relies on ethics. Gloria’s case proves that cultural context is the primary factor affecting the development of the further flow of the situation. Despite the traditions preserved within a specific society, there are other perspectives on the matter, such as the psychological one, which should also be considered.

Banks, S. (2004). Ethics, accountability and the social professions . Palgrave Macmillan.

Banks, S., & Nøhr, K. (Eds.). (2012) Practising social work ethics around the world: Cases and commentaries . Routledge.

Beckett, C., Maynard, A., & Jordan, P. (2017). Values and ethics in social work. SAGE Publications.

Branje, S. (2018). Development of parent-adolescent relationships: Conflict interactions as a mechanism of change . Child Development Perspectives , 1-6.

McAuliffe, D., & Chenoweth, L. (2008). Leave no stone unturned: The inclusive model of ethical decision making. Ethics and Social Welfare, 2 (1), 38-49.

McAuliffe, D.,& Sudbery, J. (2005). Who do I tell? Support and consultation in cases of ethical conflict. Journal of Social Work, 5 (1), 21-43.

Newman, B. M., & Newman, P. R. (2020). Theories of adolescent development. Elsevier Science.

Williams, V. R. (2020) . Indigenous peoples: An encyclopedia of culture, history, and threats to survival . ABC-CLIO.

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IvyPanda. (2022, November 8). Ethics of Decision-Making in Social Work. https://ivypanda.com/essays/ethics-of-decision-making-in-social-work/

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Article Contents

Introduction, the aims and scope of safeguarding adults’ services, the crpd and supported decision-making, supporting people living with dementia to take part in safeguarding decisions in england, case law references.

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Safeguarding People Living with Dementia: How Social Workers Can Use Supported Decision-Making Strategies to Support the Human Rights of Individuals during Adult Safeguarding Enquiries

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Jeremy Dixon, Sarah Donnelly, Jim Campbell, Judy Laing, Safeguarding People Living with Dementia: How Social Workers Can Use Supported Decision-Making Strategies to Support the Human Rights of Individuals during Adult Safeguarding Enquiries, The British Journal of Social Work , Volume 52, Issue 3, April 2022, Pages 1307–1324, https://doi.org/10.1093/bjsw/bcab119

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Dementia may make adults more susceptible to abuse and neglect and such mistreatment is recognised as a human rights violation. This article focusses on how the rights of people living with dementia might be protected through the use of supported decision-making within safeguarding work. The article begins by reviewing the aims and scope of adult safeguarding services. It then describes how the concept of ‘legal capacity’ is set out in the UN Convention on the Rights of Persons with Disabilities (CRPD) and how this differs from the concept of ‘mental capacity’ in the Mental Capacity Act 2005. Focussing on practice in England, it is argued that tensions between the CRPD and domestic law exist, but these can be brought into closer alignment by finding ways to maximise supported decision-making within existing legal and policy frameworks. The article concludes with suggested practice strategies which involve: (i) providing clear and accessible information about safeguarding; (ii) thinking about the location of safeguarding meetings; (iii) building relationships with people living with dementia; (iv) using flexible timescales; (v) tailoring information to meet the needs of people living with dementia and (v) respecting the person’s will and preferences in emergency situations.

Dementia is an umbrella term used to refer to a range of conditions leading to impairments in memory, language and sensory awareness. Whilst the causes of abuse and neglect are complex, research shows that older adults with dementia experience higher rates than those without dementia ( Fang and Yan, 2018 ). Such mistreatment is recognised as a human rights violation by the World Health Organisation ( WHO, 2016 ). Speaking at the Global Action Against Dementia conference in 2015 the UN Independent Expert on the Enjoyment of all Human Rights by Older People stated that:

the rights and needs of person’s with dementia have been given low priority in the national and global agenda. In particular, with the progression of the disease, as their autonomy decreases, persons with dementia tend to be isolated, excluded and subject to abuse and violence (cited in Cahill, 2018 , p. 3).

The WHO Call for Action and Global Action Plan, which was adopted in May 2017, called on countries to: ‘promote mechanisms to monitor the protection of the human rights, wishes and preferences of people with dementia and the implementation of relevant legislation, in line with the objectives of the UN Convention on the Rights of Persons with Disabilities (CRPD) and other international and regional human rights instruments’ ( WHO, 2016 , para 20). These aims align with the principles of social work, which is committed to advocating and upholding the human rights of clients and communities ( International Federation of Social Workers, 2014 ).

Supported decision-making is viewed as a key mechanism for delivering the rights of persons with disabilities under the CRPD. This model is founded in Article 12.3 of the CRPD and is predicated on the principle that, ‘all people are autonomous beings who develop and maintain capacity as they engage in the process of their own decision-making even if at some level support is needed’ ( Devi et al. , 2011 , p. 254). The support model is in contrast to substituted decision-making regimes, which are systems where, ‘(i) legal capacity [the formal ability to hold and to exercise rights and duties] is removed from a person, even if this is in respect to a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective best interests of the person concerned, as opposed to being based on their will and preferences’ ( Committee on the Rights of Persons with Disabilities, 2014 , para 27). Supported decision-making acts in contrast to substituted decision-making through providing a ‘conceptual and practical bridge’ ( Gooding, 2013 , p. 432), which seeks to respect the individual’s will and preference, whilst viewing decision-making as an interdependent process ( Sinclair et al. , 2019 ). It allows for consideration of a disabled person’s decision-making ability, the environmental demands for decision-making and the support that is required to enable the person to decide ( Shogren and Wehmeyer, 2015 ). The approach is informed by the social model of disability, which highlights how barriers (physical, attitudinal and structural) perpetrate disadvantage for disabled people; and feminist critiques of individualism, which explore how autonomy develops within the context of social relationships ( Donnelly, 2019 ).

Attention has been paid to the ways in which the CRPD should be applied in situations where people are living with dementia ( Keeling, 2016 ; Sinclair et al. , 2019 ). However, debates remain as to how supported decision-making should be interpreted and applied in practice. Research indicates that people living with dementia are often positive about supported decision-making ( Sinclair et al. , 2019 ) although there are complex practice issues to be dealt with, particularly when the person supporting an individual may be a source of risk. Social workers are often involved in such situations and yet little analysis has been carried out on this subject, an issue that this article seeks to address.

Concerns about adult abuse and neglect have led to the development of adult protection systems, most notably in the UK, the USA, Canada and Australia; initially developed as a response to concerns about elder abuse in the 1980s and 1990s. A key policy document, the Toronto Declaration on the Global Protection of Elder Abuse highlighted the need for a universal human rights framework for older adults ( WHO, 2002 ). It asserted that legal frameworks to address elder abuse were often missing, meaning that abuse might be recognised, but not adequately dealt with. Such arguments influenced responses by governments enabling the traditional focus on elder abuse to be broadened, to concepts of ‘vulnerable adults’ or ‘adults at risk’ more generally ( Donnelly et al. , 2017 ).

To some degree UK policy and law had begun this process earlier through reference to the Human Rights Act 1998 . For example, the No Secrets guidance on adult abuse in England referred to abuse as, ‘a violation of an individual’s human and civil rights by any other person or persons’ ( DH, 2000 , para 2.5). There remain, however, contested ideas on definitions. The term ‘adult safeguarding’ has not been defined internationally and there are differences in definitional thresholds ( Mackay, 2018 ). Thus, all four countries in the UK explicitly state that risk of (as well as actual) harm, abuse or neglect are grounds for making an enquiry. The terminology thereafter varies: the term abuse or neglect is used in Wales and England; in Northern Ireland it is abuse, exploitation or neglect; and Scotland has the most expansive term of harm on its own. Whilst safeguarding law and policies vary across national systems, social workers tend to play a lead role in England, Scotland, Northern Ireland, Novia Scotia and British Colombia ( Donnelly et al. , 2017 ). The rationale is that social workers possess particular skills in assessment, working across professional boundaries and in enabling individuals through self-directed support. These systems have identified that they value social work knowledge. For example, The Care and Support Statutory Guidance in England states that social workers are likely to be the most appropriate professionals to make enquiries about abuse or neglect within families or informal relationships ( Department of Health and Social Care, 2020 , para 14.8) and highlights the importance of the principal social work role ( Whittington, 2016 ). Nonetheless, little has been done to consider how social workers might explicitly protect the human rights of people living with dementia within safeguarding practice.

The CRPD (Article 1) states that, ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments’, which may hinder their participation in society. This definition clearly places people living with dementia within its remit, making them subject to its rights and protections. The CRPD marks a paradigm shift for the rights of persons with disabilities as it adopts a social model of disability (identifying the need for society to adapt to the needs of the disabled person), in contrast to a medical model (focussing on cure) or a social welfare model (focussing on a person’s limitations) ( Bartlett, 2012 ). The CRPD states that people with disabilities should be free from exploitation, violence and abuse and that state parties should take, ‘all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home’ (Article 16.1). Furthermore, those with disabilities are given positive rights and entitlements (such as the right to provision of services) by the CRPD, in contrast to the European Convention of Human Rights, which protects individuals’ negative rights (e.g. the right to be free from undue interference or abuse from others).

National safeguarding legislation has increasingly identified the need to involve those experiencing abuse or neglect in the process ( Donnelly et al. , 2017 ), making the issue of decision-making of central importance. For example, the Care Act (2014) put safeguarding in England on a statutory footing. It is therefore essential to consider how autonomy and decision-making are conceptualised within the CRPD and how this should inform decision-making within national safeguarding practice. Protecting a person’s legal capacity and promoting their involvement in decision-making are central to the CRPD. Legal capacity can be understood as a person’s ability to hold rights, and to exercise them on an equal basis with others ( Bach and Kerzner, 2010 ). It differs from the concept of mental capacity, which is concerned with the decision-making skills and competencies of a person, which may differ between individuals. So, from a safeguarding perspective, people living with dementia should have rights to be engaged and participate in decision-making in the safeguarding process and should also receive support to exercise these rights. Article 12 of the CRPD states that people with disabilities should be afforded legal capacity on an equal footing to others and that States should take measures ‘to provide access by persons with disabilities to the support they may require’ (Article 12.3). In English law, there is also recognition that people may have mental capacity but remain vulnerable to abuse due to manipulation or undue influence from others. In these cases, the court may exercise its ‘inherent jurisdiction’ to intervene in a way that is compliant with the CRPD ( Series, 2015 ) (although it is beyond the scope of our article to consider the complexities of inherent jurisdiction here). Nonetheless, the CRPD Committee’s Interpretation of Article 12 identifies that people with disabilities cannot be viewed as having exercised their legal capacity unless they have been supported to decide for themselves. This view is reflected in the statement that:

State Parties’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. (United Nations Committee on the Rights of Persons with Disabilities, 2014 , para 28)

However, the UN Committee’s interpretation of Article 12 has been viewed as problematic by some as it states that substituted decision-making mechanisms are outlawed by the CRPD. The removal of substituted decision-making in all circumstances may cause a range of practical problems in adult safeguarding where an individual is unable to decide for themselves (as may be the case when an individual is living with advanced dementia and experiencing abuse or neglect) ( Freeman et al. , 2015 ; Gooding, 2015 ). No state who is a signatory to the CRPD has followed this binary approach to decision-making in the field of capacity laws, partly because of possible, perverse outcomes that might follow. For example, the Mental Capacity Act (2005) (MCA) in England and Wales defines mental capacity in relation to decision-making and states that individuals should be assumed to have mental capacity, unless it can be established otherwise on the balance of probabilities. The MCA states that consideration of capacity must be decision and time specific. In the context of an adult safeguarding case, this means that once it has been established by the decision-maker that the person lacks mental capacity, section 4 of the MCA allows for a form of substituted decision-making by allowing the decision-maker to act in the person’s ‘best interests’. However, this places the MCA in tension with the CRPD due to its focus on decision-making capacity rather than legal capacity ( Martin et al. , 2016 ).

Current State responses to the CRPD tend to involve a hybrid mix of safeguards and processes that professionals are expected to adhere to in order to support the exercise of a person’s legal capacity ( Davidson et al. , 2016 ). In doing so, in a more limited way than the CRPD strives for, improved approaches to supported decision-making can go some way to protect the legal rights of persons living with dementia. Several arguments are presented for such approaches. First, people living with dementia will have formed a range of moral, political, social and other views before developing the condition ( Donnelly, 2019 ). The use of mental capacity laws allows these former wishes and values to be used in preference to their current views (which may have altered radically since the onset of dementia). For example, in Briggs v Briggs [2016] Charles J. gave primacy to previously expressed wishes, in line with the ‘enabling’ ethos of the MCA deciding that, ‘an earlier self can bind a future and different self’ (para 53). As noted by Ruck Keene et al. (2017 , p. 135), this can be promoted when the previously expressed and current wishes are consistent, either because they match (see Westminster City Council v Sykes [2014] ) or because the person who lacks capacity is no longer able to express their wishes (see PS v LP [2013] ). However, it becomes more problematic when there is a clash between a person’s past and present wishes. Domestic case law is inconsistent and the CRPD is silent on the primacy point. Ruck Keene et al. (2017 , p. 138) suggest that the CRPD Committee’s interpretation of Article 12, ‘drives inexorably towards prioritisation at all points of a person’s immediately identifiable wishes and feelings’. But this approach could be problematic in a safeguarding context for persons with dementia who might express a current preference, which puts them at risk.

Second, older adults experience higher levels of abuse and neglect than other disabled groups and tend to afford greater weight to professional review and protection ( Bach and Kerzner, 2010 ; Donnelly, 2019 ). This indicates the need for legal frameworks which balance notions of empowerment and safeguarding. Such circumstances have led some to argue that supported decision-making should be the preferred option to accommodate a person’s rights under the CRPD, but that mental capacity laws are required where individuals with conditions, such as dementia may place themselves at serious risk and where there is danger in delay ( Freeman et al. , 2015 ).

Social workers are required to work within existing legal frameworks, despite the earlier stated tensions that exist between the interpretation of legal capacity identified by the CRPD and domestic laws. It is crucial that they find ways to maximise the rights of individuals to exercise their legal capacity whilst ensuring compliance with these domestic laws.

The following section explores how supported decision-making can be facilitated in England, one of four jurisdictions in the UK. The population of England was 55.6 million in 2018 ( Office for National Statistics, 2018 ). The most recent estimate of people with dementia, in 2013, found that 685,812 people were living with dementia ( Prince et al. , 2014 ). As in some other jurisdictions, social workers play a lead role in safeguarding and substitute decision-making processes, using a range of laws and policies, now described and discussed.

The legal and policy context for safeguarding in England

In England, the Care Act, 2014 (CA) is the key legislation for safeguarding. The Care and Support Statutory Guidance describes this as a process of, ‘Protecting an adult’s right to live in safety, free from abuse and neglect’ (para 14.7). In cases where a safeguarding referral for a person living with dementia is made, practitioners must consider their duties under section 42(1) of the CA which requires the Local Authority to consider whether there is reasonable cause to suspect that an adult:

Has care and support needs;

is experiencing, or is at risk of abuse and neglect; and

as a result of their needs is unable to protect themselves from the abuse or neglect or risk of it.

This process may not be linear and actions to safeguard a person may take place as part of the section 42(1) process or during a general assessment of need ( LGA/ADASS, 2019a ). Safeguarding decisions must be focussed on the principles inherent within the CA, notably the duty to promote well-being under section 1, and should adopt a flexible approach focussing on what matters to the individual. Decisions must also be grounded in the six safeguarding principles contained in the Care and Support Statutory Guidance (empowerment, prevention, proportionality, protection, partnership and accountability). Workers need also to consider how abuse can be prevented (Care and Support Statutory Guidance, para 2.1) and should draw on the Making Safeguarding Personal approach. This is a sector-led initiative supported by the Local Government Association, the Association of Directors of Adult Social Services and other bodies. It promotes a personalised approach, where adults at the centre of the safeguarding process are asked what their preferred outcomes are. A number of studies suggest that these initiatives can promote increased confidence amongst staff when involving service users in decision-making ( Cooper, 2015 ; Butler and Manthorpe, 2016 ). The principles of the MCA must also inform any safeguarding interventions (see further below).

Tensions between English law and the CRPD

The CRPD is an international treaty and therefore does not have the same status and enforceability as domestic law. Although it is not directly legally binding on the UK, it is nevertheless of persuasive authority. The Court of Appeal has affirmed the influence of the CRPD ( Burnip v Birmingham City Council and Another [2012] ), and there is evidence that CRPD principles are informing the jurisprudence of the higher courts, for example, in relation to decisions about the management of a person’s property and deprivations of liberty ( LB Haringey v CM [2014] ; P ( by his litigation friend the Official Solicitor ) v Cheshire West and Chester Council & Anor [2014]). However, judges have also urged caution when considering how the CRPD should shape domestic law. For example, Hayden J. noted that, whilst courts should seek to interpret and apply national laws in line with international obligations, ‘the court cannot by a process of statutory construction simply ignore or rewrite the clear provisions of the MCA [Mental Capacity Act]’ ( Lawson, Mottram and Hopton, RE ( appointment of personal welfare deputies [2019]) ). This makes it clear that practitioners must follow domestic law and cannot use the CRPD to circumvent it.

Despite the disparities between Article 12 and the substitute decision-making regime of the MCA, the MCA nevertheless has an empowering ethos and includes several mechanisms which are designed to promote autonomy and support the decision-making ability of individuals. Foremost, section 1(2) of the MCA states that individuals are assumed to have mental capacity, unless it can be established otherwise, and that they should be supported, as far as possible, to make their own decisions. The MCA (section 1, statutory principle 2) and Code of Practice ( Department of Constitutional Affairs, 2007 , Chapter 3) make clear that, before deciding that someone lacks capacity, practitioners should take practical steps to help individuals to decide for themselves, including providing relevant information; communicating in an appropriate way and putting the person at ease.

The best interests checklist in section 4 includes a list of factors for the substitute decision-maker to consider. The list expressly includes the person’s wishes and feelings. Whilst they are not determinative, the court has made it clear that they must be central to the decision-making process. For example, in Wye Valley NHS Trust v Mr B [2015] the Court of Protection stated that it may in some circumstances support a person’s incompetent wishes and feelings. There is a growing evidence in the case law of the court’s willingness to engage with ‘the person and their identity’. As Series (2014) has argued, by prioritising this subjective approach to discerning best interests, the MCA can be applied in ways, which accord with the CRPD’s approach. Sections 24–26 of the MCA make provision for advance decision-making, which allows a person with mental capacity to refuse specific treatments in the future, should they lose capacity. This is regarded by the Court of Protection as a key mechanism for promoting a person’s ‘capacity to shape and control’ decisions affecting their life ( Barnsley Hospitals NHS Foundation Trust v MSP [2020]). Sections 9–14 of the MCA provide further mechanisms through which people can take out a Lasting Power of Attorney (LPA). It is a legal document stating who an individual would like to manage their property and finances or health and welfare should they lose mental capacity to make such decisions. Whilst LPAs can be viewed as problematic (because they allow for decision-making on behalf of the person), they can be made to work in a CRPD context as long as the LPA holder focuses on the subjective views/wishes, etc. of the individual (rather than objective criteria) in making decisions ( Series, 2014 ).

Supported decision-making with people living with dementia in practice

Safeguarding decisions may focus on a range of complex areas, including domestic abuse, physical abuse, sexual abuse, financial abuse, discrimination or neglect. Dementia may affect a person’s ability to make decisions about abuse or neglect and this generally becomes more severe over time ( Fetherstonhaugh et al. , 2013 ). Nonetheless, a person’s ability to decide can be enhanced through support by professionals and carers; particularly where the dementia is mild or moderate. At a practical level, supported decision-making focuses on the environmental demands for decision-making (such as consideration for the procedure in question, the physical space that the person is in and the relationship between the individual and the decision-maker). It also focuses on the support that is required to enable the person to decide ( Shogren and Wehmeyer, 2015 ). Currently, there are no empirically tested decision tools that have been designed to help people living with dementia to engage in safeguarding ( Wied et al. , 2019 ). However, practitioners can design strategies, based on the principles of supported decision-making, which tailor information to the needs of people with dementia and seek to involve them as much as possible in the decision-making process. In the following section, we consider how such strategies may be used, drawing on the research evidence.

In order for safeguarding to be effective, people living with dementia need to be clear what safeguarding means. This is important as the first principle of safeguarding is empowerment (Department of Health and Social Care, 2020); meaning that adults should be supported and encouraged to make their own decisions with informed consent. Such consent can only be achieved if the person with dementia is clear about the enquiries which may be made and what their options are. The MCA Code of Practice places emphasis on providing information to the person, stating that it should be tailored to their needs and ‘in the easiest and most appropriate form’ ( DCA, 2007 , para 3.8). This is crucial because the literature suggests that giving people with mental impairments excessive information is often challenging because of problems of cognitive retention ( Wied et al , 2019 ). Local Authorities must therefore consider the most effective strategies for informing the public about safeguarding. Whilst the sections of the CA associated with safeguarding (sections 42–47) have been in force since 2015, levels of public awareness about safeguarding remain unclear. To ensure that people with dementia have adequate and appropriate information to make a decision, Local Authorities need to provide accessible and clear information, setting out the types of abuse, which may be experienced and how people can report it. This can be achieved by using clear and simple language with a focus on consistency of expression, as well as pictures or drawings ( Wied et al. , 2019 ). When explaining the safeguarding process at an individual level, practitioners may draw on public information as communication aids, but need to explain to individuals how it applies to them. Research indicates that people living with dementia are better able to engage where workers adopt a spirit of collaboration, highlight what they are expecting of them and work with them to define what it is they need to decide on ( Groen-van de Ven et al. , 2017 ). Practitioners should therefore explain the nature of the safeguarding concerns from the outset, identifying first how it has been raised and then what information is required.

Within any supported decision-making process, consideration should also be given to the location of the meeting. The MCA Code of Practice advises that practitioners should choose a quiet place where discussions cannot be easily interrupted ( DCA, 2007 , para 3.13). Current research on this issue is limited but indicates that people living with dementia find it harder to make decisions in noisy or cluttered environments ( Wied et al. , 2019 ). Interviewing a person in a quiet room rather than a busy area is likely to improve communication. Efforts should also be made to limit the number of people taking part in an interview, particularly if they are unfamiliar to the person (Fetherstonhaugh et al. , 2016).

Supported decision-making relies on building a relationship with the person. This is something that is currently overlooked in the MCA Code of Practice, which focusses more broadly on providing information and putting the person at ease ( DCA, 2007 , paras 3.10–3.15). In order to build an effective relationship, several factors should be borne in mind. A recent study found that persons with dementia prefer to be supported by people that they know well ( Sinclair et al. , 2019 ). Where family members are not suspected of abuse or neglect, then social workers and other professionals should engage with them so that they can provide advice on the person’s preferences and how best to involve them in decisions. Whilst people living with dementia may be fully autonomous, they may also engage in shared decision-making with carers or may delegate decision-making ( Smebye et al. , 2012 ). When people with dementia consent to these arrangements, they should be considered as ways of facilitating decision-making. In cases where it is not possible to work with family members or carers and communication is challenging, advocacy under section 68 of the CA (2014) should be considered, although this can only be provided if the conditions of the CA are met. Representation by an Independent Mental Capacity Advocate (IMCA) can also be considered where safeguarding issues arise, even where the person has friends or family (s. 4, Mental Capacity Act, 2005 . It should, however, be noted that advocacy provision across England is patchy, with most Local Authorities failing to meet the spending recommendations prescribed by the Local Government Association, making person-centred practices a challenge ( Dixon et al. , 2020 ). When building relationships with the person, practitioners also need to assess their attitude to risk. Recent safeguarding guidance has placed an emphasis on positive risk-taking, in which individuals are enabled through a careful consideration of the risks in question ( LGA/ADASS, 2019b ). Nonetheless, research has found that people living with dementia and family carers often conceptualise risk in negative terms because of its emotive connotations ( Stevenson et al. , 2019 ). A way of dealing with this dilemma is to encourage people living with dementia to view risk in terms of ‘likelihood’ to enable positive risk-taking. Social workers should also be aware that people living with dementia may be concerned about the risks which social care services may pose to them. For example, lesbian women with dementia have been known to conceal their sexual identities because they fear discrimination by services ( Westwood, 2016 ). Social workers therefore need to consider the person’s personal and cultural needs. With lesbian and gay service users this may be achieved through taking account of the person’s sexual identity, making sure that it is explicitly acknowledged in safeguarding plans and through facilitating access to support networks where required.

Time is an important issue if people living with dementia are meaningfully to be engaged in decision-making. The MCA Code of Practice places emphasis on the timing of conversations, stating that decisions should not be rushed and that unnecessary time limits should be challenged where the decision is not urgent ( DCA, 2007 , para 3.14). This guidance is supported by research which has found that supported decision-making processes are more likely to be effective where a person living with dementia is given time to recognise the issues they face and consider the options to enable a final decision to be made ( Smebye et al. , 2012 ; Fetherstonhaugh et al. , 2013 ). Ideally, time should be ring-fenced, to enable an assessment of the person’s life story, and conducted at a pace that they feel comfortable with and at the time of day during which they function best. These recommendations are congruent with guidance by the Local Government sector ( LGA/ADASS, 2019a , b ), which has encouraged practitioners to view safeguarding as a series of conversations with the person, drawing on a strengths-based approach. There are possible organisational impediments to these aspirations where resources are limited. In some instances, however, local authorities have supported a flexible approach. For example, the London Safeguarding Adults Board (2019) states that a divergence from target timescales may be justified for a number of reasons including the need to provide supported decision-making. Nonetheless, there may be situations where immediate risks prevent engagement with the person over time, discussed in more detail, below.

Practitioners should design strategies that tailor information to the needs of people with dementia. As mentioned above, there are no empirically tested decision-tools to enable clients to engage in safeguarding ( Wied et al. , 2019 ). The MCA Code of Practice, however, provides guidance on what steps can be taken to tailor the information to the individual and ensure it is ‘relevant’, including not giving too much detail; providing a ‘broad simple explanation’ and outlining the risks, benefits and effects of the decision (2007; para 3.9). It has been found that strategies which build a relationship with the person through helping them to feel useful and productive are most effective ( Fetherstonhaugh et al. , 2013 ). At a practical level, this involves writing options down, to ensure the retention of information; the use of lists to explore options and using visual aids (such as pictures or photographs) to compensate for memory problems. Limiting decisions to two or three options to prevent the person experiencing ‘sensory overload’ has also been found to be important ( Smebye et al. , 2012 ; Fetherstonhaugh et al. , 2013 ). However, this option needs to be considered carefully. Not giving the full range of options may lead to over-simplifying or withholding important information. This is problematic from a legal perspective as it limits how informed the decision can be, thereby impacting on the person’s rights. When deciding how to proceed, workers need to consider the person’s individual preferences for decision-making as well as the potential consequences of the decision. Further sources of support from family/friends or professional advocacy services should be considered as a way of maintaining the person’s legal capacity, as recommended by the MCA Code of Practice ( DCA, 2007 , para 5.69).

Consideration needs to be given to principles of safeguarding where an urgent decision needs to be made. Whilst the MCA makes no explicit reference to safeguarding, it aims to balance an individual’s right to make decisions with ‘their right to be protected from harm if they lack capacity’ ( DCA, 2007 , para 1.4). Relying solely on the concept of mental capacity may not accord with the approach to legal capacity within the CRPD, but can be viewed as necessary in cases where a person with a mental health problem is at serious risk and there is danger in delaying decisions ( Freeman et al. , 2015 ). Whilst section 4 of the MCA allows for a best interests decision to be made, the person’s legal capacity can still be protected where workers are able to draw on advance decisions, designed to attend to previous choices made by the person ( Series, 2014 ; Keeling, 2016 ). In order to maximise legal capacity, these should be referred to first, although in practice their use is likely to be limited, as they focus on advance refusals of medical treatment. Where neither an advance decision, a LPA, or a court-appointed deputy exists, practitioners need to resort to a best-interests decision-making process in line with the MCA, although this should be viewed as a last resort after all other decision-making avenues have been explored. To maximise the person’s rights, all efforts should be made to consider the subjective wishes of the person within this process. In these circumstances, practitioners should endeavour to resume supported decision-making once the person is out of immediate danger.

Finally, it should be noted that there are some limits to the research evidence as it stands. Although the CRPD has led to an increased emphasis on supported decision-making, research on supported decision-making remains at an early stage, particularly with regards to dementia ( Wied, 2019 ). Whilst current research may inform practice, many of the studies focus on aspects of supported decision-making, such as user-involvement or participation, rather than on the supported decision-making process as a whole. It should also be noted that much of the existing evidence draws on qualitative research. Whilst such research has provided valuable insights, there is a need for studies that test the effectiveness of supported decision-making for people with different types of dementia. Such developments have the potential to lead to empirically tested decision-making tools with greater levels of validity.

Dementia leaves individuals more susceptible to abuse and neglect and action is required to address this. Social workers play a key role within adult safeguarding systems internationally and have an opportunity to address such abuse, yet little analysis has been carried out on this issue. The CRPD provides social workers with the opportunity to strengthen human rights protection for people with dementia, through the application of supported decision-making. This opportunity should be welcomed whilst recognising practice dilemmas, particularly in navigating the tensions between international frameworks and domestic law. In England, these are illustrated by the CRPD’s insistence on supported decision-making in Article 12, compared with the MCA which embraces a substitute decision-making model, albeit with elements of supported decision-making built into the process. Despite these tensions, steps can be taken to maximise the legal capacity of people living with dementia to promote the ethos of the CRPD through adopting a range of supported decision-making strategies.

Social workers must adhere to the provisions in the MCA and take appropriate steps to aid decision-making ‘before’ an assessment of mental capacity is made, in line with the guidance in the MCA Code of Practice. Additionally, key measures should also be taken to maximise supported decision-making. Local authorities should be required to provide clear and accessible information to the wider public and to people living with dementia, their family and carers. These should explain what safeguarding is, how the safeguarding process works and how to access it. It is imperative that social workers clearly explain to the person how the safeguarding concern has been raised, associated issues and what information they require. Drawing on the research evidence, it has been argued that key steps are involved in good quality safeguarding interventions that are service user focussed. For example, people living with dementia should be interviewed in quiet areas, with care being taken to minimise the number of attendant people in the room. Skills in building effective relationships are critical for the practitioner. People living with dementia prefer to be supported by people that they already know, although advocacy under the CA should be considered where this is not possible and advocacy under the MCA may be considered where the person lacks capacity. Social workers also should be mindful that people with dementia often frame notions of risk differently to that of professionals. This awareness and knowledge can help build on the preferences of the person. The importance of time is central to decision-making processes. Ideally it should be ring-fenced in order to learn about the person’s life story, and to enable assessments to be conducted at a pace that the person feels comfortable with, and at the time of day at which they function best. The use of visual aids, diagrams and lists have been shown to assist the person to retain information and make decisions. Consideration should also be given to limiting options to enhance comprehension. Where immediate risks prevent this, the person’s capacity should be protected through ascertaining wishes expressed in advance decisions or through an LPA, or court appointed deputy, where they exist.

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A GROUNDBREAKING PERSPECTIVE: JUDGE NEWSOM’S VISION FOR AI IN JUDICIAL DECISION-MAKING

• The Hon. Ralph Artigliere (ret.)
• June 7, 2024
• AI , Blog Articles , Case Law , In the News , LLM , Recent News , Topic

[Editor’s Note: EDRM is proud to publish the Hon. Ralph Artigliere’s (ret.) advocacy and analysis. The opinions and positions are Judge Artigliere’s (ret.) June 7, 2024  © Ralph Artigliere.]

Judges and lawyers received a significant gift last week when  11 th  Circuit Judge Kevin C. Newsom  penned a concurring opinion in a seemingly mundane insurance case involving a backyard in-ground trampoline. The concurring opinion, however, transcends its humble context, presenting a visionary outlook on a pivotal issue: the integration of advanced technology, particularly AI, into judicial workflows. As we navigate the current concerns surrounding AI—such as safety, hallucinations, and bias—this opinion prompts us to consider how we can harness machine intelligence to enhance judicial efficiency and efficacy.

Judge Newsom’s thoughtful opinion is a must-read for litigators and judges alike, as it addresses a critical question: what role will technology play in judicial workflows and decision-making once we overcome concerns about safety, hallucinations, and bias? The Hon. Judge Ralph Artigliere (ret.)

The opinion is found on LexisNexis here:  Snell v. United Specialty Ins. Co., 2024 U.S. App. LEXIS 12733 *; _ F.4th _ (11th Cir., 05/28/24) .  Ralph Losey  has also provided the entire opinion and footnotes and illustrations along with his always enlightening insights  here . The concurring opinion, which Judge Newsom himself said was unusual—even for him— and “Just [his] two cents,” is actually worth a million bucks to the rest of us.

Judge Newsom’s thoughtful opinion is a must-read for litigators and judges alike, as it addresses a critical question: what role will technology play in judicial workflows and decision-making once we overcome concerns about safety, hallucinations, and bias? The discussion has begun, and Judge Newsom’s opinion provides a valuable framework for exploring how AI can enhance judicial efficiency and effectiveness while maintaining rigorous standards of fairness and propriety.

Machines and the Work of Judges

Just as technology has revolutionized business, government, and personal lives, machines will inevitably influence the work of judges and lawyers. AI, in particular, has become too powerful and sophisticated to ignore. While it is still early and challenges remain, AI products are rapidly improving in safety and effectiveness. Legal professionals are still learning how to use generative AI properly and safely. Judges and lawyers can and must adapt and incorporate these advancements to enhance their work, leveraging the brainpower and efficiencies of machine intelligence.

It is genius because the vehicle was perfect: a specific narrow issue in a concurring opinion so that the real message could be laid out in a transparent, thorough, and balanced manner without carrying the weight or limitations of judicial precedent.  The Hon. Judge Ralph Artigliere (ret.)

Meanwhile, through the genius and courage of a federal appellate judge, the cards were laid on the table: why wouldn’t judges use AI to assist them in reaching the truth and a just result, provided it can be done safely and within the rules? I say genius, because it is so cool for an appellate judge to use a concurring opinion in a small, routine case to start a dialogue on one of the most intriguing issues of our time. It is genius because the vehicle was perfect: a specific narrow issue in a concurring opinion so that the real message could be laid out in a transparent, thorough, and balanced manner without carrying the weight or limitations of judicial precedent. 

The opinion is courageous, as Judge Newsom’s views are bound to be controversial, particularly regarding the consultation of resources outside the record. However, his advocacy for using technology to find the common meaning of “landscaping” demonstrates the potential for AI to assist in judicial decision-making without compromising judicial integrity. 

But before I get ahead of myself, let’s look at the opinion and see what others have said about it already.

The Snell Concurring Opinion

In this insurance coverage and bad faith case, the parties litigated the matter as an “ordinary meaning” case, arguing over whether Snell’s installation of an in-ground trampoline, retaining wall, and a decorative wooden “cap” fit within the common understanding of the term “landscaping” in Snell’s insurance policy with United Specialty Insurance Company. Because Snell’s claim was defeated on other grounds based on Alabama law and the underlying facts, a determination on the issue of whether the in ground trampoline construction was landscaping was not needed in the 11 th  Circuit’s decision. But, because that “off ramp” [Judge Newsom’s words] was not obvious to the Court from the outset, Judge Newsom spent “hours and hours” laboring over whether this backyard construction was indeed landscaping in common parlance.

After recognizing that a foray into AI actually looked like a fruitful path, and after the case was decided on other grounds, Judge Newsom directed his efforts to a discussion of the pros and cons of judges using AI in the fashion he would have used it if needed in his case. The Hon. Judge Ralph Artigliere (ret.)

Judge Newsom offers an unvarnished glimpse into his judicial reasoning, particularly his struggle to define “landscaping” in the context of an insurance policy. His contemplation of the potential advantages of using AI tools, such as ChatGPT and other Large Language Models, underscores the transformative potential these technologies hold. Judge Newsom illustrates how AI could provide efficient and accurate interpretations of legal terms, thereby expediting the judicial process and enhancing the precision of judicial decisions. 

After recognizing that a foray into AI actually looked like a fruitful path, and after the case was decided on other grounds, Judge Newsom directed his efforts to a discussion of the pros and cons of judges using AI in the fashion he would have used it if needed in his case. Judge Newsom does a good job laying out the advantages and potential pitfalls.

Judge Newsome points out and discusses in detail numerous advantages and potential pitfalls  against the backdrop of judicial decision making in cases searching for the ordinary meaning of contractual terms.  The advantages of Large Language Models in that context are: LLMs train on ordinary-language inputs; LLM’s can “understand” context; LLM’s are readily accessible; LLM research can be relatively transparent; and LLMs hold advantages over other empirical interpretive methods. The potential problems are: LLMs can “hallucinate;” LLMs do not capture offline speech, and thus might not fully account for usage of underrepresented populations; lawyers, judges, and would-be litigants might try to manipulate LLMs; and reliance on LLMs will lead us into dystopia.  2024 U.S. App. LEXIS 12733*32-53 . Each of the pros and cons are discussed with care and due consideration. The opinion cautions that LLM tools should be employed with caution and humility, quoting and agreeing with Justice Roberts’ Year-end Report (discussed below).

The opinion concludes:

But—and this is my bottom line—I think that LLMs have promise. At the very least, it no longer strikes me as ridiculous to think that an LLM like ChatGPT might have something useful to say about the common, everyday meaning of the words and phrases used in legal texts. Just my two cents. 11 th  Circuit Judge Kevin C. Newsom , Snell v. United Specialty Ins. Co., 2024 U.S. App. LEXIS 12733 *53; _ F.4th _ (11th Cir., 05/28/24) .

Indeed, Judge Newsom. Thank you for saying it in an official capacity.

Food for Thought and Conversation Among Lawyers and Judges

The concurring opinion displays how judges think and how generative AI might fit in helping them to reach just decisions more efficiently and perhaps better than they would using traditional resources. Using generative AI tools will not be an easy path, especially with platforms in their current nascent stage. Large Language Models and platforms that incorporate them in legal tasks require understanding of their limitations and pitfalls as well as a thorough understanding of precisely when they can be used and how to operate them properly with good prompts and a careful review of output. But Judge Newsom’s opinion covers all that and more. 

There have already been rumblings over the opinion.  Wilkins, S.,  11th Circuit Judge Uses ChatGPT in Deciding Appeal, Encourages Others to Consider It , ALM Law.com (June 4, 2024) . In that piece, the title is regrettably misleading and there is a statement that suggests that Judge Newsom “laid out his use of the generative AI chatbot to help inform his analysis of a key issue in an insurance appeal.” As noted above, the research on the term “landscaping” actually turned out to be unrelated to the basis of the majority decision. 

Judge Newsom’s opinion raises issues of propriety, fairness, and the sanctity of consulting external resources without party input. The Hon. Judge Ralph Artigliere (ret.)

Judge Newsom’s opinion raises issues of propriety, fairness, and the sanctity of consulting external resources without party input. These concerns, echoed by Judge Scott Schlegel of the Louisiana State Court, highlight the need for stringent guidelines and ethical standards.  Schlegel, S.,  The 11th Circuit’s Experiment with AI: Balancing Innovation and Judicial Integrity , Substack (June 5, 2024) . Judge Schlegel, while recognizing the innovative potential, emphasizes the balance between embracing technology and maintaining judicial integrity. This balanced approach should be a touchstone for measuring steps into new technology. 

Issues such as boundaries of judicial research are precisely why Judge Newsom’s willingness to write on this topic to be ground-breaking and a great kickoff for discussion. Judges have traditionally referred to dictionaries to inform them on common understanding of terms in contracts. Judge Newsome’s opinion lays out exactly why AI, carefully used, is a broader and more current source of common understanding of terms than a stack of dusty dictionaries. I agree with Judge Newsom on that point. But my opinion is just that… one opinion. We all must stay tuned and engage the dialogue.

Why the Issue of Scope and Means of Inquiry by Judges Is Important

Judges want to make just decisions, and they prefer to have all the information needed to do so. But judges need to stay between the lines in their research. The parties are entitled to decisions that are based on the facts in the record. Legal research is one thing. Fact research by a judge without the opportunity of the parties to review and respond to sources is quite another. Judges must remain neutral between the parties, which can be threatened by engaging in research beyond the record. 

Trial lawyers do not want to be out of the loop and prefer to drive the train. An old saw when I was a trial lawyer went something like this: “Your honor, I do not mind if you try my case for me. But if you do so, please win it.”  The Hon. Judge Ralph Artigliere (ret.)

Trial lawyers do not want to be out of the loop and prefer to drive the train. An old saw when I was a trial lawyer went something like this: “Your honor, I do not mind if you try my case for me. But if you do so, please win it.” 

To the point of Judge Newsom’s opinion: Can emerging AI tools help judges get the information they need to decide cases correctly and efficiently? Use of generative AI by lawyers and pro se litigants could be a tremendous boon for access to court and communication between the parties and the judge. On the judicial side, AI will undoubtedly help the judge and staff to marshal information, analyze and organize it, and prepare orders and decisions. Development of the tools is furious but remains nascent. The issue is still open on whether generative AI is ready for a primary role in research, and we know human oversight and validation will always be with us. To be prepared, judges need to explore and understand the pros, cons, cautions and stop signs along the way. That is the wisdom of Judge Newsom’s opinion.

Thank You Judge Newsome and Justice Roberts

I find it refreshing that judges at the highest level are discussing the transition to AI. There are other examples. Like Judge Newsom, others are thinking ahead and considering the potential value of properly employed advanced technology.

Chief Justice John Roberts made the rise of AI a feature of his  Year-end Report on the Federal Judiciary released Dec. 31, when he said judicial work “will be significantly affected by AI.” Justice Roberts both recognizes the inevitable tide of AI use in courts and hits the same refrain we see in Judge Newsom’s cautions and Judge Schlegel’s expressed concerns. But the upside and the challenge to evolve is definitely expressed in the Report:

Rule 1 of the Federal Rules of Civil Procedure directs the parties and the courts to seek the “just, speedy, and inexpensive” resolution of cases. Many AI applications indisputably assist the judicial system in advancing those goals. As AI evolves, courts will need to consider its proper uses in litigation. Chief Justice John Roberts, Year-end Report on the Federal Judiciary (December 31, 2023).

Another example comes from Judge John Bush of the US Court of Appeals for the Sixth Circuit who predicted AI could ease historic linguistics research in remarks made during Speaking at a Federalist Society event last March at the University of Chicago Law School.  Monyak, S ., AI to Make Originalist Historical Analysis Easier, US Judge Says , Bloomberglaw (Apr. 1, 2024) . Judge Bush said the originalist approach to interpreting text “is consistent with, and indeed will thrive” with advancements in AI and that AI could help in the laborious task of examining word usage in historical context. 

Research by judges may be the most controversial application of AI. Significant challenges lie ahead, but generative AI products will continue to evolve and improve. Justice Roberts is right: addressing these challenges directly will pave the way for a more efficient and effective judicial system. Judge Newsom’s groundbreaking opinion is more than a “shot across the bow;” it is a clarion call for the legal community to embrace the future of AI thoughtfully and courageously in judicial decision-making.

June 7, 2024 © Ralph Artigliere. ALL RIGHTS RESERVED (Published on  edrm.net   with permission.)

NOTE:  Generative AI products were used to help review this article per  EDRM GAI and LLM Policy .

As an educator and author, I have taught civil procedure, evidence, eDiscovery, and professionalism to judges and lawyers nationwide through judicial colleges, bar associations, and legal education programs. I have authored and co-authored numerous legal publications, including the LexisNexis Practice Guide on Florida Civil Trial Practice and Florida eDiscovery and Evidence. From my engineering education at West Point and military foundation, I established an appreciation and interest in advanced technologies that followed me in every aspect of my career. My diverse experiences as a practitioner, jurist, and legal scholar position me to contribute to the legal profession's advancement through skilled practice, insightful analysis, and a commitment to upholding the highest standards of performance with professionalism and integrity. Toward that end, I devote the majority of my time to advancing the knowledge and understanding of lawyers and judges about technology and the law.

In the pandemic, we were told to keep 6 feet apart. There’s no science to support that.

In a congressional appearance, infectious-disease expert Anthony S. Fauci characterized the recommendation as “an empiric decision that wasn’t based on data.”

The nation’s top mental health official had spent months asking for evidence behind the Centers for Disease Control and Prevention’s social distancing guidelines, warning that keeping Americans physically apart during the coronavirus pandemic would harm patients, businesses, and overall health and wellness.

Now, Elinore McCance-Katz, the Trump administration’s assistant secretary for mental health and substance use, was urging the CDC to justify its recommendation that Americans stay six feet apart to avoid contracting covid-19 — or get rid of it.

“I very much hope that CDC will revisit this decision or at least tell us that there is more and stronger data to support this rule than what I have been able to find online,” McCance-Katz wrote in a June 2020 memo submitted to the CDC and other health agency leaders and obtained by The Washington Post. “If not, they should pull it back.”

The CDC would keep its six-foot social distance recommendation in place until August 2022, with some modifications as Americans got vaccinated against the virus and officials pushed to reopen schools. Now, congressional investigators are set Monday to press Anthony S. Fauci, the infectious-disease doctor who served as a key coronavirus adviser during the Trump and Biden administrations, on why the CDC’s recommendation was allowed to shape so much of American life for so long, particularly given Fauci and other officials’ recent acknowledgments that there was little science behind the six-foot rule after all.

“It sort of just appeared, that six feet is going to be the distance,” Fauci testified to Congress in a January closed-door hearing, according to a transcribed interview released Friday. Fauci characterized the recommendation as “an empiric decision that wasn’t based on data.”

Francis S. Collins, former director of the National Institutes of Health, also privately testified to Congress in January that he was not aware of evidence behind the social distancing recommendation, according to a transcript released in May.

Four years later, visible reminders of the six-foot rule remain with us, particularly in cities that rushed to adopt the CDC’s guidelines hoping to protect residents and keep businesses open. D.C. is dotted with signs in stores and schools — even on sidewalks or in government buildings — urging people to stand six feet apart.

Experts agree that social distancing saved lives, particularly early in the pandemic when Americans had no protections against a novel virus sickening millions of people. One recent paper published by the Brookings Institution , a nonpartisan think tank, concludes that behavior changes to avoid developing covid-19, followed later by vaccinations, prevented about 800,000 deaths. But that achievement came at enormous cost, the authors added, with inflexible strategies that weren’t driven by evidence.

“We never did the study about what works,” said Andrew Atkeson, a UCLA economist and co-author of the paper, lamenting the lack of evidence around the six-foot rule. He warned that persistent frustrations over social distancing and other measures might lead Americans to ignore public health advice during the next crisis.

The U.S. distancing measure was particularly stringent, as other countries adopted shorter distances; the World Health Organization set a distance of one meter, or slightly more than three feet, which experts concluded was roughly as effective as the six-foot mark at deterring infections, and would have allowed schools to reopen more rapidly.

The six-foot rule was “probably the single most costly intervention the CDC recommended that was consistently applied throughout the pandemic,” Scott Gottlieb, former Food and Drug Administration commissioner, wrote in his book about the pandemic, “Uncontrolled Spread.”

It’s still not clear who at the CDC settled on the six-foot distance; the agency has repeatedly declined to specify the authors of the guidance, which resembled its recommendations on how to avoid contracting the flu. A CDC spokesperson credited a team of experts, who drew from research such as a 1955 study on respiratory droplets . In his book, Gottlieb wrote that the Trump White House pushed back on the CDC’s initial recommendation of 10 feet of social distance, saying it would be too difficult to implement.

Perhaps the rule’s biggest impact was on children, despite ample evidence they were at relatively low risk of covid-related complications. Many schools were unable to accommodate six feet of space between students’ desks and forced to rely on virtual education for more than a year, said Joseph Allen, a Harvard University expert in environmental health, who called in 2020 for schools to adopt three feet of social distance.

“The six-foot rule was really an error that had been propagated for several decades, based on a misunderstanding of how particles traveled through indoor spaces,” Allen said, adding that health experts often wrongly focused on avoiding droplets from infected people rather than improving ventilation and filtration inside buildings.

Social distancing had champions before the pandemic. Bush administration officials, working on plans to fight bioterrorism, concluded that social distancing could save lives in a health crisis and renewed their calls as the coronavirus approached. The idea also took hold when public health experts initially believed that the coronavirus was often transmitted by droplets expelled by infected people, which could land several feet away; the CDC later acknowledged the virus was airborne and people could be exposed just by sharing the same air in a room, even if they were farther than six feet apart.

“There was no magic around six feet,” Robert R. Redfield, who served as CDC director during the Trump administration, told a congressional committee in March 2022. “It’s just historically that’s what was used for other respiratory pathogens. So that really became the first piece” of a strategy to protect Americans in the early days of the virus, he said.

It also became the standard that states and businesses adopted, with swift pressure on holdouts. Lawmakers and workers urged meat processing plants, delivery companies and other essential businesses to adopt the CDC’s social distancing recommendations as their employees continued reporting to work during the pandemic.

Some business leaders weren’t sure the measures made sense. Jeff Bezos, founder of online retail giant Amazon, petitioned the White House in March 2020 to consider revising the six-foot recommendation, said Adam Boehler, then a senior Trump administration official helping with the coronavirus response. At the time, Amazon was facing questions about a rising number of infections in its warehouses, and Democratic senators were urging the company to adopt social distancing.

“Bezos called me and asked, is there any real science behind this rule?” Boehler said, adding that Bezos pushed on whether Amazon could adopt an alternative distance if workers were masked, physically separated by dividers or other precautions were taken. “He said … it’s the backbone of trying to keep America running here, and when you separate somebody five feet versus six feet, it’s a big difference,” Boehler recalled. Bezos owns The Washington Post.

Kelly Nantel, an Amazon spokesperson, confirmed that Bezos called Boehler and said the Amazon founder’s focus was the discrepancy between the U.S. recommendation and the WHO’s shorter distance. The company soon said it would follow the CDC’s six-foot social distancing guidelines in its warehouses and later developed technologies to try to enforce those guidelines. “We did it globally everywhere because it was the right thing to do,” Nantel said.

Boehler said he spoke with Redfield and Fauci about testing alternatives to the six-foot recommendation but that he was not aware of what happened to those tests or what they found. Fauci declined to comment. Redfield did not respond to requests for comment.

But challenging the six-foot recommendation, particularly in the pandemic’s early days, was seen as politically difficult. Rochelle Walensky, then chief of infectious disease at Massachusetts General Hospital, argued in a July 2020 email that “if people are masked it is quite safe and much more practical to be at 3 feet” in many school settings.

Five months later, incoming president Joe Biden would tap Walensky as his CDC director. Walensky swiftly endorsed the six-foot distance before working to loosen it, announcing in March 2021 that elementary school students could sit three feet apart if they were masked. Walensky declined to comment.

The most persistent government critic of the social distancing guidelines may have been McCance-Katz, who did not respond to requests for comment for this article. Trump’s mental health chief had spent several years clashing with other Department of Health and Human Services officials on various matters and had few internal defenders by the time the pandemic arrived, hampering her message. But while her pleas failed to move the CDC, her warnings about the risks to mental health found an audience with Trump and his allies, who blamed federal bureaucrats for the six-foot rule and other measures.

“What is this nonsense that somehow it’s unsafe to return to school?” McCance-Katz said in September 2020 on an HHS podcast, lamenting the broader shutdown of American life. “I do think that Americans are smart people, and I think that they need to start asking questions about why is it this way.”

Work Trend Index Annual Report

Great Expectations: Making Hybrid Work Work

From when to go to the office to why work in the first place, employees have a new “worth it” equation. And there’s no going back.

March 16, 2022

Illustration by Sébastien Thibault

W We’ve been on the cusp of the shift to hybrid work for more than a year , with false starts attributed to a pandemic that had other ideas. Now, we’re at a long-awaited inflection point: the lived experience of hybrid work. Already, hybrid work is up seven points year-over-year (to 38%), and 53% of people are likely to consider transitioning to hybrid in the year ahead. 1 e’ve been on the cusp of the shift to hybrid work for more than a year , with false starts attributed to a pandemic that had other ideas. Now, we’re at a long-awaited inflection point: the lived experience of hybrid work. Already, hybrid work is up seven points year-over-year (to 38%), and 53% of people are likely to consider transitioning to hybrid in the year ahead. 1

One thing is clear: We’re not the same people that went home to work in early 2020. The collective experience of the past two years has left a lasting imprint, fundamentally changing how we define the role of work in our lives. The data shows the Great Reshuffle is far from over. Employees everywhere are rethinking their “worth it” equation and are voting with their feet. And as more people experience the upsides of flexible work, the more heavily it factors into the equation. For Gen Z and Millennials, there’s no going back. And with other generations not far behind, companies must meet employees where they are.

As leaders puzzle over how to make hybrid work work , big questions loom: What is the role of the office? How do teams build social capital in a digital-first world? The challenge ahead for every organization is to meet employees’ great new expectations head-on while balancing business outcomes in an unpredictable economy.

To help leaders navigate the uncertainty, the 2022 Work Trend Index outlines findings from a study of 31,000 people in 31 countries, along with an analysis of trillions of productivity signals in Microsoft 365 and labor trends on LinkedIn. While we’re all learning as we go, the findings reveal an urgent opportunity—and responsibility—for leaders to approach the transition with intention and a growth mindset, or risk being left behind.

Download the full report

Key Findings

Five urgent trends business leaders need to know in 2022:

Employees have a new “worth it” equation.  

Managers feel wedged between leadership and employee expectations.  

Leaders need to make the office worth the commute.  

Flexible work doesn’t have to mean “always on.”  

Rebuilding social capital looks different in a hybrid world.  

Employees have a new “worth it” equation.

of employees are more likely to prioritize health and wellbeing over work than before the pandemic.

of Gen Z and Millennials are likely to consider changing employers this year, up 3 percentage points year-over-year.

The experience of the past two years has reshaped our priorities, identities, and worldview, drawing a bright line between what’s important—health, family, time, purpose—and what’s not. As a result, employees’ “worth it” equation—what people want from work and what they’re willing to give in return—has changed. The power dynamic is shifting, and perks like free food and a corner office are no longer what people value most.

In our study, 47% of respondents say they are more likely to put family and personal life over work than they were before the pandemic. In addition, 53%—particularly parents (55%) and women (56%)—say they’re more likely to prioritize their health and wellbeing over work than before.

Changing perceptions of work

And employees are acting on their newfound priorities. In 2020, 17% of people left their jobs, and we see that trend continuing—reaching 18% in 2021. The top five reasons employees quit were: personal wellbeing or mental health (24%), work-life balance (24%), risk of getting COVID-19 (21%), lack of confidence in senior management/leadership (21%), and lack of flexible work hours or location (21%). Somewhat surprisingly, “not receiving promotions or raises I deserved” landed in number seven on the list at 19%, further illustrating the shift in priorities.

Priorities have shifted

Survey respondents were asked, “Compared to before the COVID-19 pandemic, how likely are you to prioritize your health and wellbeing over work?” Illustration by Valerio Pellegrini

The data also shows the Great Reshuffle is far from over. In the year ahead, many hybrid employees (51%) say they will consider a switch to remote, and even more remote employees (57%) say they’ll consider a switch to hybrid. At the same time, 43% of employees are somewhat or extremely likely to consider changing jobs in the coming year, up slightly year-over-year from 41%. Some generations are even more likely to consider changing employers—more than half (52%) of Gen Z and Millennials combined may change jobs in the year ahead, up 3 percentage points since last year. By comparison, only 35% of Gen X and Boomers say they’re considering a job change.

And the desire for flexibility extends to leadership, too—47% of leaders are likely to consider applying for jobs not near their homes in the next year.

The workforce is still in transition

Many hybrid employees are considering a switch to remote while even more remote employees are considering a switch to hybrid in the year ahead.

Respondents were asked, “Thinking ahead, how likely are you to consider doing the following in the next year?” Percentages shown in graphic include those who are somewhat or extremely likely to shift to remote or hybrid work in the year ahead.

Illustration by Valerio Pellegrini

For Gen Z, there’s no going back

For younger employees, flexibility, mobility, and entrepreneurial freedom are non-negotiable.

58% of Gen Z are considering changing jobs in the year ahead versus 43% overall.

58% are considering a shift to hybrid work in the year head versus 53% overall.

56% are considering a shift to remote work in the year ahead versus 49% overall.

70% are considering earning additional income outside their current employer via a side project or business in the year ahead versus 59% overall.

LinkedIn data says Gen Z is the most mobile generation on the platform: since the pandemic began, their migration rate is up 23% in the U.S.

52% of Gen Z hybrid employees say they’re moving to a new location because they’re able to work remotely versus 38% overall.

Gen Z’s likelihood to engage with a company posting on LinkedIn if it mentions “flexibility” is far higher (77%) than Millennials (30%) and others on the platform.

Compared to last year, geographic migration is slowing. Today, 38% of respondents are considering moving because they can work remotely at their current job ( compared to 46% in 2021), while 30% are likely to consider a move in the year ahead even if it requires finding a new job that lets them work remotely. Gen Z and Millennials are even more willing to change jobs in order to live in a different location (44% and 38%, respectively), while just 27% of Gen X and 17% of Boomers are considering the shift.

What are employees looking for in a job now? Beyond pay, the top five aspects of work that employees view as “very important” for an employer to provide are: positive culture (46%), mental health/wellbeing benefits (42%), a sense of purpose/meaning (40%), flexible work hours (38%), and more than the standard two weeks of paid vacation time each year (36%). While new-to-the-workforce Gen Z shares the same top three priorities, they list positive feedback and recognition as their fourth priority, while ranking a manager who will help advance their career in fifth place.

“Covid has not been all doom and gloom for me. It forced me to dig deep and reevaluate what is important.”

Self-employed education professional, Canada

And many employees are looking beyond their “day job” for creative opportunities. Fully 70% of Gen Z and 67% of Millennials say they are considering earning additional income via a side project or business in the next year. For leaders, this is creating new challenges—not just in attracting and retaining top talent, but in engaging current employees who increasingly define and design their careers around creative pursuits.

In all, there’s no erasing the lived experience—and lasting impact—of the past two years. A few months of remote work could have been a blip, but 24 months in, people have proved you can be a great employee and have a life. Now, flexibility and wellbeing are non-negotiables that companies can’t afford to ignore.

Key takeaway: Meeting these new employee expectations will require a mindset shift that considers the experience of the past two years. Employees’ “worth it” equation has changed—and there’s no going back. The best leaders will create a culture that embraces flexibility and prioritizes employee wellbeing—understanding that this is a competitive advantage to build a thriving organization and drive long-term growth.

Managers feel wedged between leadership and employee expectations.

of managers say they don’t have the influence or resources to make change for employees.

of managers say leadership is out of touch with employees.

The past two years have taught us that culture will stand or fall with managers. But many managers feel stuck between leadership and new employee expectations, and they feel powerless to drive change for their team. Over half of managers (54%) feel leadership at their company is out of touch with employee expectations. And 74% say they don’t have the influence or resources they need to make changes on behalf of their team.

The source of this tension is clear as business leaders seek a return to what once was; 50% of leaders 2 say their company already requires, or plans to require, full-time in-person work in the year ahead. This percentage is even higher for leaders in the manufacturing (55%), retail (54%), and consumer goods (53%) industries.

This stands in sharp contrast to the data on the importance of flexible work to employees. Over half of respondents (52%) say they are likely to consider shifting to hybrid or remote work in the year ahead. And remote and hybrid jobs are still on the rise. According to LinkedIn, in March of 2020, 1 in 67 U.S. jobs offered a remote work option. Today, that number is about 1 in 7. And remote jobs on LinkedIn attract 2.6 times more views and nearly 3 times more applicants compared to on-site roles.

Back to the office

Many leaders say their company is planning a return to the office full time within the next year, but a majority of employees prefer the flexibility of remote and hybrid work.

50% of leaders in information worker roles say their company is currently or planning to focus on requiring full-time in-person work in the year ahead, while 52% of respondents say they are somewhat or extremely likely to consider going remote or hybrid in the year ahead.

There’s no question technology helped preserve productivity during the pandemic, but fears about lost gains may be factoring into the pullback to in-person work. Despite 80% of employees saying they are just as or more productive since going remote or hybrid, 54% of leaders fear productivity has been negatively impacted since the shift.

“ There’s no erasing the lived experience and lasting impact of the past two years. Empowering managers to adapt to new employee expectations helps set businesses up for long-term success. ”

Jared Spataro, CVP, Modern Work, Microsoft

Leaders have spent the past two years under crushing pressure, shepherding their people and organizations through uncertainty amid unprecedented economic challenges. It’s easy to imagine why they might see a return to the office as the solution. But now, leaders have a new and urgent challenge in an uncertain economy and labor market: setting the standard for flexible work in a way that balances business outcomes with new employee expectations.

Key takeaway: An important lesson of the past two years is that managers embody and instantiate the culture for every organization. Managers are a critical bridge between evolving employee expectations and leadership priorities. If empowered, they hold the key to unlock the potential of hybrid work. Equip them with the resources and training they need to manage the transition. While policy is set at the top, leaders need to decentralize decision-making and empower managers to make change on behalf of their employees’ individual needs. Microsoft encourages managers to use this template to create team agreements for hybrid work.

Leaders need to make the office worth the commute.

of hybrid employees say their biggest challenge is knowing when and why to come into the office.

of leaders have created team agreements for hybrid work to define why and when to go to the office.

As the world shifts more fully into hybrid work, the biggest opportunity for business leaders is to reimagine the role of the office and create clarity around why, when, and how often teams should gather in person. More than a third (38%) of hybrid employees say their biggest challenge is knowing when and why to come into the office. Yet few companies (just 28%) have established team agreements to clearly define the new norms.

Making the office work for all employees will take radical intentionality. There’s no one-size-fits-all approach: Experiment with “Team Tuesdays” or in-person office hours between 12 p.m. and 2 p.m., two days a week. Consider quarterly offsites that bring far-flung teammates together regularly. The key is for managers to provide clear guidance to employees as they experiment and learn what works for the team.

“You must design workplaces with enough flexibility to support every employee . A mix of quiet places, collaboration areas, and touch-down locations helps ensure everyone can be connected, engaged, and productive.”

Michael Ford, CVP of Global Workplace Services

This intentionality extends to hybrid meetings. Making hybrid meetings a great experience for everyone requires investing in three things: hardware, software, and culture. Start by augmenting existing hardware with AI-powered cameras designed for the people not in the room; consider adding larger screens to give everyone a seat at the table and create a canvas for collaboration. Second, have everyone join Teams —including those in the room—to create a shared experience. Third, create new cultural norms for hybrid meetings to help everyone feel included and able to contribute.

Hybrid work requires new team norms

Few companies have created new team norms to ensure time together is intentional.

Hybrid employees were asked, “Which of the following have been the biggest challenges for you personally in working a mix of remote and in person?” Remote employees were asked if they were “thriving or struggling” when it comes to feeling included in meetings. Leaders were asked, “What has your company done to ensure remote workers are not disadvantaged/have an equal opportunity to succeed and contribute?”

Data suggests companies are making progress on investments in space and technology, but there’s more work to do on culture. On technology and space, monthly use of Microsoft Teams Rooms, optimized for hybrid collaboration, has more than doubled year-over-year. And 54% of leaders are currently redesigning meeting spaces for hybrid work, or plan to in the year ahead. However, despite 43% of remote employees and 44% of hybrid employees saying they do not feel included in meetings, just 27% of organizations have established new hybrid work meeting etiquette.

Key takeaway: Leaders must establish the why, when, and how of the office. This means defining the purpose of in-person collaboration, creating team agreements on when to come together in person, defining hybrid meeting etiquette, and rethinking how space can play a supporting role. Organizations that fail to grasp the new intentionality required to define the role of the office risk missing out on the true benefits of hybrid work.

Microsoft’s new hybrid meeting etiquette will be posted physically and digitally for the company’s 180,000 employees in over 100 countries around the world.

Flexible work doesn’t have to mean “always on.”

Increase in weekly time spent in meetings for the average Teams user since February 2020

Increase in chats sent per person since March 2020

The trillions of anonymized productivity signals across Microsoft 365 show flexible work in action. But as employees make flexible work work for them, there’s still a need to combat digital exhaustion.

On the face of it, for the average Teams user, meetings, chat, workday span, and after-hours and weekend work have all risen over the past two years. 3

Meetings are still consuming a lion’s share of our time. Since February 2020, the average Teams user saw a 252% increase in their weekly meeting time and the number of weekly meetings has increased 153%. The average Teams user sent 32% more chats each week in February 2022 compared to March 2020 and that figure continues to climb. Workday span for the average Teams user has increased more than 13% (46 minutes) since March 2020, and after-hours and weekend work has grown even more quickly, at 28% and 14%, respectively.

Work is more flexible, but digital overload is still a risk

After-hours work and workday span are still increasing, as are the number of weekly meetings and chats per person.

Analysis of collaboration activity across Microsoft 365 tools the past two years. This visualization is based on aggregated data, without personal or organization-identifying information.

Making flexible work sustainable

Tips from Mary Czerwinski and Shamsi Iqbal, two Microsoft researchers with decades of experience studying productivity, focus, and wellbeing.

Make it a team practice to ask, “Could we cover this in email or chat instead?”

Look for opportunities to divide and conquer meetings with team members

Use the “required” and “optional” lines of meeting invites to help people prioritize their time

Block focus time on your calendar for personal productivity and wellbeing, and protect it

As a team, consider designating certain days or time blocks “meeting-free”

Share an agenda ahead of the meeting and assign an owner to each part

Create team norms around established breaks between meetings (e.g., start all meetings at five or 10 minutes after the hour)

Keep meetings as short as possible; if they’re longer than 30 minutes, include a five-minute break

Avoid scheduling large, presentation-only meetings in the first hour of the workday, when people tend to multitask and catch up on emails and to-dos

Use the delay delivery feature in Outlook for emails outside of established working hours

As a team, set expectations on response time to emails and chats sent outside of working hours

Use NOT URGENT in the headline of emails or chats when your colleague is in a meeting or it’s outside of working hours

Share meeting-related documents ahead of time and ask for comments so participants can review asynchronously

Record meetings and share notes with invitees afterward

Despite the digital overload, people are making flexible work their own, taking control of their time and reshaping the workday. Productivity patterns in Outlook show people are becoming more intentional about taking breaks, avoiding double booking, and establishing meeting-free work blocks. Between March 2021 and February 2022, anonymized Outlook calendar data shows the average number of overlapping meetings per person per month decreased by 44%. Compared to last year, teams are starting meetings later on Mondays and wrapping up earlier on Fridays. There are also fewer noon meetings, which may point to people taking a midday break. More employees are also using their vacation time, with out-of-office time blocks on calendars increasing by 10% in the past year.

While meetings are up overall, they are getting shorter and more ad hoc. As employees find digital equivalents to the “drive by” or “hallway” conversation, unscheduled, ad hoc calls have risen 8% in the past two years and now make up 64% of all Teams meetings. And meetings under 15 minutes now make up a majority of all meetings (60%) and are increasing more than any other meeting length (39% between February 2021 and 2022).

The data also shows the shift to asynchronous work as part of the new normal. Monthly use of meeting recordings that allow people to catch up on meetings, training, and town halls on demand has more than doubled since March 2020 4 . And new patterns—like the “ triple peak day ”—are emerging as some people leave the 9 to 5 behind to do what works for them.

“Because everyone is working at different times and in different places, it’s important to shift as much work as you can to be asynchronous and get really intentional about the use of the synchronous time you have together,” says Jaime Teevan, Microsoft’s Chief Scientist.

Meeting habits are changing

Meetings now start later on Mondays and finish earlier on Fridays, and there are fewer meetings at lunchtime. While 9-11 a.m. is the most used meeting time, 2-3 p.m. is rising in popularity.

Taken altogether, the data indicates that employees are doing what they can to make flexible work their own but making flexible work sustainable long-term will require new team norms to guard against being “always on.”

Key takeaway: Teams need to create new norms around flexible work to reduce time spent in meetings and empower people to hit the off switch. This should not be a solo effort, but a team-led movement to establish more sustainable hybrid work practices.

The metaverse is coming to work.

We also asked respondents about emerging technologies at work.

52% of employees are open to using digital immersive spaces in the metaverse for meetings or team activities in the next year.

47% of employees are open to representing themselves as an avatar in meetings in the next year.

51% of Gen Z and 48% of Millennials envision doing some of their work in the metaverse in the next two years.

16% of employees say they never expect to do any work in the metaverse.

13% of employees say they don’t know what the term ‘metaverse’ means.

“Avatars and the metaverse bring us one step closer to making people feel like they’re together even when they are physically apart,” says Mar Gonzalez Franco, principal researcher at Microsoft Research. “Our early research shows that when compared to an audio-only call, people feel more engaged, more present, and even more comfortable when using an avatar in a meeting. The people you are speaking with are better able to see your body language, and back-and-forth conversations feel more natural.”

Leaders need to consider how emerging technologies like the metaverse and AI can augment collaboration and facilitate co-creation and creativity in a distributed work world.

Millennials and Gen Z are more likely to envision doing some of their work in the metaverse in the next two years.

Rebuilding social capital looks different in a hybrid world.

of hybrid employees say they’re likely to go remote in the year ahead.

of leaders say relationship-building is the greatest challenge in remote and hybrid work.

One of the most felt aspects of remote and hybrid work is the impact it’s had on our relationships. Last year’s Work Trend Index revealed that teams became more siloed, and this year’s study shows the trend one year later.

Work Friends Matter, Too

In addition to looking at formal workplace relationships, our research explored deeper workplace friendships.

59% of hybrid employees and 56% of remote employees have fewer work “friendships” since going hybrid or remote.

This may be contributing to feelings of loneliness. 55% of hybrid employees and 50% of remote employees feel lonelier at work than before going hybrid or remote.

66% of respondents say doing informal coffee chats virtually feels like “more of a chore” than an in-person get together.

Organizational psychologist Constance Noonan Hadley describes loneliness at work as the belief that, “Few people truly know me or would support me in my time of need.” And research shows loneliness at work brings health problems, reduced productivity, turnover, and burnout. Hadley says, “Without a new approach, employee isolation and disconnection will continue to grow—regardless of whether people are back in the office. The post-pandemic transition provides the perfect opportunity to put the structures and rewards in place to facilitate a more connected workforce.” Managers should prioritize time for employees to connect in more deep and authentic ways beyond the to-do list and foster a culture that rewards psychological safety, so employees can be vulnerable and lean on each other for support when needed.

While a majority of hybrid employees seem to be maintaining their work relationships, only half of remote workers say they have a thriving relationship with their direct team, and even fewer have a strong relationship with those outside their team.

In a digital-first work world, where 51% of hybrid employees are considering a shift to remote work in the year ahead, we can no longer rely solely on the office to recoup the social capital we’ve lost. Leaders must be intentional about reconnecting both hybrid and remote employees into the fabric of the organization.

This won’t be a trivial task—43% of leaders say relationship-building is the greatest challenge in hybrid and remote work—but it’s one worth prioritizing. Building social capital is crucial for organizational success. Employees who have thriving relationships with their immediate team members report better wellbeing than those with poor relationships (76% versus 57%). They also report higher productivity (50% versus 36%) and are less likely to change employers in the year ahead (61% versus 39%).

Strengthening networks outside of the immediate team matters, too. Employees with thriving relationships beyond their immediate team members say they’re more satisfied with their employer (76% versus 57%), more fulfilled by work (79% versus 59%), and have a more positive outlook on workplace stress (40% versus 30%) than those with weak organizational networks. Having a broad network also fuels career opportunities within a company— LinkedIn data shows that employees at companies with high internal mobility stay almost twice as long.

“ When people trust one another and have [social] capital, you get a willingness to take risks, you get more innovation and creativity and less groupthink. ”

Nancy Baym, Principal Researcher, Microsoft Research

Our research shows many hybrid employees have been successful at maintaining their workplace relationships. More than half (58%) say they have a thriving relationship with their direct team, and 48% say they have a thriving relationship with people outside their immediate team. However, these numbers dip to 50% and 42%, respectively, for remote employees—highlighting the need for leaders to help fully remote employees build strong and broad networks.

Employees who onboarded the past two years also need extra support. Nearly two-thirds (62%) of leaders are concerned new employees aren’t getting the support they need since moving to hybrid or remote work—and for good reason. The data shows that employees hired since March 2020 are less likely to feel included (60% versus 64%), have weaker relationships with their direct team (51% versus 55%), and are at greater risk of attrition (56% versus 38% are likely to leave their employer in the year ahead).

The impact of strong workplace relationships

Respondents were asked several questions on this topic, such as, “Would you say you are thriving or struggling with the following types of bonds or relationships at work?” and “When thinking about your network/social circle at work, how much do you agree or disagree with the following statements?” Illustration by Valerio Pellegrini

The data shows employees are ready to stop emailing and start connecting. While 48% of employees say they want to spend less time on things like answering emails and scheduling meetings and more time networking, just 30% of leaders feel that networking-related activities drive business impact. To reap the benefits of social capital, leaders need to make time and space for employees to build their networks and deepen relationships beyond the transactional in a hybrid world.

“When work-life balance is out of whack, most people cut out relationship-building for more urgent matters,” says Constance Noonan Hadley, an organizational psychologist who studies workplace relationships. “Regardless of remote status, building relationships will still feel like a luxury workers cannot afford unless there is a shift in how time is prioritized and valued by managers.”

Key takeaway: Leaders should not see a return to the office as the only solve for rebuilding the social capital we’ve lost over the past two years. They should prioritize time for relationship-building to happen, knowing remote and newly onboarded employees will need extra support. Managers play a crucial role in fostering close team bonds and acting as dot connectors to help employees broaden their networks.

The Way Forward

The past two years have made a lasting imprint on work—the impact of which will be felt long into the future. The new “worth it” equation is not a zero-sum game. Employees value flexibility and wellbeing, and these great expectations create an opportunity for every organization to reimagine work-life integration as a win-win.

Giving people agency to do their best work is not only in their best interest—it’s good for business. To make hybrid work work , leaders need to empower managers to be the culture keepers, rethink the role of the office, rebuild social capital for a digital-first workforce, and create new practices for sustainable flexible work. Technology plays a key role, but this moment calls for a new mindset. As the world continues to evolve, organizations that take a culture-first, learn-it-all approach will come out ahead.

Learn more about how Microsoft is innovating to help organizations make hybrid work work .

1 The number of hybrid employees in our Work Trend Index surveys is up seven percentage points year-over-year.

2 The 50% of business leaders who say their company already requires or plans to require full-time in-person work in the year ahead reflects leaders who are in information worker roles. It does not include leaders who work in frontline settings such as hospitals, warehouses, retail settings, etc.

3 Workday span: Time between the first and last meeting or chat of the day for the average Teams user. After hours work: Average span between the first Teams chat/call/meeting after 5pm local time to the last signal for the day. Weekend work: Average span between the first Teams meeting/call/chat to the last signal on Saturdays and Sundays.

4 Monthly usage of Microsoft’s Stream platform as a way for employees to work asynchronously has more than doubled between March 2020 and February 2022.

Methodology and Audience Definitions:

The Work Trend Index survey was conducted by an independent research firm, Edelman Data x Intelligence, among 31,102 full-time employed or self-employed workers across 31 markets between January 7, 2022 and February 16, 2022. This survey was 20 minutes in length and conducted online, in either the English language or translated into a local language across markets. At least 1,000 full-time workers were surveyed in each market, and global results have been aggregated across all responses to provide an average. Each market is evenly weighted within the global average. Each market was sampled to be representative of the full-time workforce across age, gender, and region; each sample included a mix of work environments (in-person, remote vs. non-remote, office settings vs. non-office settings, etc.), industries, company sizes, tenures, and job levels.

Markets surveyed include:

Australia and New Zealand (ANZ): Australia, New Zealand; Asia-Pacific (APAC): China, Hong Kong, India, Indonesia, Japan, Malaysia, Philippines, Singapore, South Korea, Taiwan, Thailand, Vietnam; Europe: Czech Republic, Finland, France, Germany, Italy, Netherlands, Poland, Spain, Sweden, Switzerland, United Kingdom; Latin America (LATAM): Argentina, Brazil, Colombia, Mexico; North America: Canada, United States.

Audiences mentioned in the report are defined as follows:

Frontline Workers: self-selected at time of survey fielding as being required to be in person to do their job and do not work at a traditional “desk setting” (for example, work at a healthcare facility, school, construction site, or warehouse).

Hybrid Workers: self-selected at time of survey fielding as currently working a mix of in person and remote, at least one day every other week in a typical week.

Remote Workers: self-selected at time of survey fielding as currently working remotely every day of the week in a typical week.

Information Workers: self-selected at time of survey fielding that their typical work setting is at a desk (whether in an office or at home). This group includes those who are in person or working remotely in some capacity.

Business Leaders/Business Decision Makers: those in mid to upper job levels (i.e., SVP, VP, Sr. Director, General Manager, EVP, C-Suite, President, etc.) and have at least some influence on decision-making related to hiring, budgeting, employee benefits, internal communications, operations, etc.

Non-Business Decision Makers: employees who are not in mid to upper job levels and have no influence on decision-making related to hiring, budgeting, employee benefits, internal communications, operations, etc.

Managers: Employees who manage at least one employee as a direct report. Managers can be BDMs or non-BDMs.

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