The Art of Discretion ... in the public service professions, by Tony Evans
CHAPTER 24
The Art of Discretion
Several years ago I saw a performance of Shakespeare’s King John. I had not seen the play before and one scene (Act 4, Scene 2) jumped out at me because it connected with material I had been looking at in the course of my studies of discretion. King John is a monarch striving (and failing) to control a restive feudal court. … In [one] scene Shakespeare presents a visceral portrayal of the shifting threads of power and authority, risks and responsibilities that characterize discretion—and how these can be deployed in a febrile political environment to manage blame. Looking back, the play helped me realize how drama helps one recognize feelings and ideas underpinning action and understand the situation in the round—a process Aristotle describes in the Poetics as ‘Anagnorisis’. …
Creativity and Discretion
… In welfare services the creative dimension of frontline discretion tends to be constrained by the sense of indifference or alienation on the front line and the authoritative rhetoric of policy. In contrast, in stage performance, the manuscript and text are recognized as opportunities for creativity and interpretation. But why is ‘creativity’ a problem when thinking about professional practice and policy work? …
… Public management is framed in terms of manufacturing but … There is a different logic of service provision from product delivery. Services are created on the ground in the interaction of the person providing the service and the person receiving it …Public servants and citizens work together to negotiate, educate each other and create the service in the ‘moment of truth’.
What is lost in policymakers’ ‘noble lie’ is the role of creativity. We miss the basic idea from creative disciplines such as drama—the play is not the performance; policy is not the service. When we go to the theatre we expect more than to hear a text parroted mechanically. We afford leeway for directors and actors to bring life to a play, to make it work, to communicate with us—to engage in a human enterprise. We are tolerant of divergence because we do not see the difference between the play and the performance as a problem, but as the result of creativity. Similarly, in the context of personalization of public services, service users expect services to be tailored and adapted to their situation. …
Creativity in Service Delivery
… [Academics in 2016] have called for the ‘unleashing of social workers’ creativity’. What seems to be advocated here is not that professionals should be maverick lone geniuses, but rather that they can be allowed to be imaginative, empathetic problem-solvers working with their clients to make services (work) on the ground. In the rest of this chapter I want to consider what this sort of creativity in practice looks like.
I have already mentioned the problems of a ‘manufacturing’ idea of public services as the delivery of a specified product in line with central instructions. This manufacturing model misrepresents the nature of services. Services are not fixed and predetermined products; they are continually made and remade in the process of delivery …
… Providing services involves imagining human needs and adapting and creating services on the front line. It is about being able to understand others, and making and recognizing connections. The sociologist Ervin Goffman (1990), for instance, describes the essentially dramatic and performative nature of social life and how we imagine and reimagine others and ourselves in the ways in which we create and act out our social persona. He talks about the ways in which we, as social actors, are given and take roles which we manipulate to create and manage (or fail to manage) our identity in the performance of everyday life; and how the way we imagine people, the names we give them, the groups we put them in can have profound effects not only in our private lives but also in public roles such as those of professionals or policy actors. It is also present in apparently impersonal processes such as professional categories and policy criteria, which imagine people and services in particular ways, and by these means create and limit possibilities. As a trainee social worker, a memorable experience of mine was helping a man fill in a disability benefit claim and realizing that the questions I asked him (from the form) were undermining his own sense of himself—forcing his life into a category that did not reflect his reality. It became clear that I needed to shift my explanation of the process from one focusing on his dependency to one recognizing his needs as rights to services. …
Creativity, Constraint and Affordance
Thinking about creativity as an amalgam of notions (newness, useful solutions and imagination) and as a social, as well as an individual, phenomenon focuses our attention on the fluidity that is required to energize policy and practices. It is a fluidity that is channelled and constrained by policy but which also allows policy to be shaped in practice in a way that enables it to be relevant and evolve on the ground.
At its most radical and disruptive, creativity is fundamental change, when basic concepts and ideas about the nature of a domain and how one operates within it are transformed. More typically, and much more widespread, creativity is less dramatic: it is an exploratory process, where ideas, assumptions and principles are interrogated, refined and developed. It is an exploration of possibilities and potential within an area of practice.
Here, the idea of ‘affordance’, an idea used widely in design, theatre and literature, is helpful in understanding the process and, I would argue, offers a helpful way to understand the nature and potential of creativity in thinking about [welfare state] discretion.
Affordance is the idea of the possibilities offered for action to an actor by an object in a context … An object in an environment is perceived as a way of achieving an actor’s purpose—a tired person passing a fallen tree sees it as a surface on which to sit; a person who wants to cross a stream sees it as a potential bridge. …
… Affordance can also relate to the way the social and cultural environment offers opportunities and affords actors the ability to express their needs and their creativity. It is an idea that highlights agency in social action through the role of imagination, reinvention, improvisation and ingenuity in local action, and through the contribution this makes to continuing processes of reinvention and development of the ideas, assumptions and conventions. In this way the idea of ‘affordance’ involves the recognition of possibilities within an environment to create or adapt meaning and open up new possibilities that can change the environment itself. As an example, following the implementation of the National Health Service & Community Care Act 1990, many local authorities introduced eligibility criteria as a way of rationing services. Eligibility criteria were widely seen as constraining practitioner judgement and restricting access to services. However, in a context of austerity and a mismatch between political rhetoric and resources, eligibility criteria now have the potential to hold policymakers to account, and to act as the basis for the assertion of citizens’ rights …
Creativity and Discretion
In the preceding section I have looked at the idea of creativity as an activity embedded in rule-infused environments and considered the idea of affordance as a helpful way of understanding how this creativity can operate on a day-to- day basis. In this section I want to look at how discretion itself can be under- stood as a creative domain and how the approaches to creativity outlined above can help explain and delineate the extent of discretion.
Earlier I referred [an] account of discretion as a problem that arises from policymakers’ inability to control every aspect of how policy is put into effect. It is the residual freedom that has been retained by policy implementers. However, there are several problems with this deficit account of discretion. It prejudges the situation, seeing control through explicit rules as possible and as necessarily better than freedom in all policy contexts. It also fails to recognize the positive potential of discretion to make policy work by making sense of policy imprecision, making policy injunctions practical and humanizing mechanical policy blueprints. Ronald Dworkin (1978) offers an alternative view of discretion. This provides a more nuanced framework within which to recognize, understand and assess the operation of discretion.
Dworkin’s account of discretion locates it within a context of assumptions and expectations in which actors exercise discernment and judgement—exercising freedom against a background set of standards that form the basis against which these acts are understood and assessed (Dworkin 1978). In considering the nature of these restrictions, he distinguishes different degrees of discretion: the application of a pre-existing standard to a set of facts where this cannot just be done mechanically but calling for some judgement in the application (e.g. do the facts make this a case of neglect or of abuse?), taking all the facts and different rules into consideration in making the final decision (choosing within the gamut of the rules), and finally making a judgement in the absence of formal and prescribed rules—while recognizing in doing so ‘certain standards of rationality, fairness, and effectiveness. We criticise each other’s acts in terms of these standards, and there is no reason not to do so when the acts are within the centre rather than beyond the perimeter of the doughnut of special authority’ (Dworkin 1978).
In relation to Dworkin’s first two (more specifically formal rule-informed) dimensions of discretion, the idea of affordance offers insights into how discretion can operate creatively and how a belt of rules and regulations, while in some ways restricting options, may also offer previously unimagined possibilities in new situations, through new interpretations of existing rules, and avoid seeing rules and regulations as inevitably an iron cage of restriction. …
The third, strong, sense of discretion seems to offer even more striking similarities to the approaches to creativity considered above and insights into the operation of discretion in practice. A significant aspect of service provision, particularly in human services, comes down to adaptation, improvisation, imagination and judgement within the purposes of policy frameworks..
In practice, providing a service often entails working out what the problem is and what is the best thing to do in the circumstances. Professional expertise about problems, solutions and the ethical thing to do entails making judgements within a wide-ranging system of routines, ideas, assumptions and conventions which are shared but which allow exploration, new insights and development in practice in coming up with practical responses in the situation. While professionals often talk about their expertise as fixed and firm in guiding their practice, the reality is that practitioners, faced with the imperative to do something, have to draw on disparate aspects of knowledge to create their own practical understanding of and response to the situations they face. An area where one might expect creativity to be less prevalent is in relation to identifying the ethically right course of action. However, apart from a narrow set of regulations relating to professional registration, ethics is not a hard-and-fast set of rules. Ethical decision-making entails creativity in relation to the range of ethical ideas, principles and feelings that frontline practitioners draw on; how they combine and deploy them in particular situations; how they learn from situations—or not—in terms of extending and developing their ethical perspectives, and how they hold the tension between recognizing particular rights, the consequences of action and retaining their own sense of their professional character and project.
Creativity and Discretion as human services
Human services—education, medicine, social care and so on—focus directly on working with people as pupils, patients, clients, service users and the like. Their aims are broadly about realizing potential—such as learning, health and well-being and so on—through working with individuals and groups. They are typically a subset of broader welfare services: those services that are, to a signifi- cant degree, human encounters between pupil and teacher, health work and social care practitioner and service user. In these services, the nature of the encounter is intrinsic to the service. Practitioners do not just provide resources; they themselves are also the resource, deploying their skills, knowledge, humanity and expertise in their encounters with the service users. In these situations it is not possible to predetermine what the service user needs and how support can best be provided. The immediate or obvious problem may not be the underlying issue and the obvious solution may not work in that place, at that time, for that person or family. If I go to the doctor or nurse with a backache, it may be a basic problem or it may be a symptom of something else. A significant aspect of the encounter is working out what the problem is and how I want to be helped with it. …
… [State social] services are structured around the idea that needs can be complex: that they cannot be simply isolated, but are interconnected, dynamic and multilayered. These services cannot be pre-programmed and manufactured. Their content, aims and process cannot be specified in precise detail, without undermining the service itself—these services are fundamentally constituted through the discretion of the staff involved and negotiation with the people with whom they are working. The skills practitioners deploy to negotiate and meet needs and to provide services are difficult to specify and are liable to change and shift as culture, demography and individuals change.
Particularly, in diverse modern societies, any intervention models that assume a fixed notion of human motivation or need are inherently problematic. Human services professionals—social workers, physicians, teachers, nurses and so on—have to use creativity, social intelligence and imagination in their work and these are characteristics that resist proceduralization and pre-programming.
While recognizing that discretion can be a practical response to the problem of exercising control, there is also a political/ethical dimension in considering the extent of discretion. This relates to the perspective from which the nature of human [welfare state] services is viewed—as a set of procedural and mechanical or technical acts or as an organic process of human interaction and co-creation at the service level.
The procedural manufacturing/mechanical/technical view tends to privilege compliance with and conformity to a detailed plan and characterize discretion as the problem of constraining frontline practice: rules should be drafted as tightly as possible and then only at the edges can there be freedom, where it is not currently possible to specify any further. According to this point of view, it is important to deliver the product as specified and for those on the receiving end to receive, as far as possible, the same—regardless of who is involved in receiving or delivering this service.
An alternative viewpoint is that discretion is not what is (reluctantly) left out, the residual freedom in the system. Rather, it is recognition of the positive role of creativity to make services delivered by different people work for the different people who receive them. This is seeing public services not as mass-produced but as co-created, reflecting the need to tailor and adapt what is given by policymakers to the circumstances of the people who need or want this help.
We can also see different emphases in thinking about justice at play within these different approaches to welfare services and the role of discretion: on the one hand, justice as uniformity (equal treatment means the same treatment); and, on the other, a focus on calibrating justice to the situation—treating similar cases in a similar way, but, where there are differences, recognizing this and treating difference differently.
Equal treatment, on the face of it, seems perfectly just, but scratches the surface of the idea, and problems emerge. People have different needs. Treating everyone equally fails to recognize these differences and any equal treatment risks preferring some people’s needs to others. Similarly, persons with different needs will experience equal help very differently. For instance, tax breaks on health insurance will benefit someone who can afford the premiums, but for another person, who cannot afford premiums, they will be of no help at all. The problem with equal treatment is that it fails to recognize diverse needs and different resources. This is a long-standing problem which goes back millennia and was captured in Aristotle’s formulation of the idea of formal justice—that justice is not just treating things similarly; it is treating similar things in the same way and different things differently. Practically, this is recognized in administrative law, in the principle that a policy should never be applied so rigidly that discretion was fettered—the general rules of policy should not constrain flexibility (Government Legal Department 2016).
Conclusion
Discretion in welfare services tends to be seen through a narrowly legalistic lens as a problem. This negative view of discretion is often buttressed by an emphasis on services as predetermined products manufactured in the process of policy implementation. However, engaging with discretion as a creative process challenges the taken-for-granted nature of these views. Considered discretion, through the lens of creativity, shows us how it provides the space to bring services to life and helps us imagine the relationship between practitioners, people who use services and policymakers in a different way. In identifying creativity as an important, but often underrated, dimension of discretion, I do not want to claim that it is the essential or most important aspect of discretion. There are some situations in which it is appropriate for creativity to be regarded in the foreground of discretion, but there are also others in which it is not. The situation where, I have argued, creativity plays a central role is in the provision of ‘human services’. Here creativity is an essential dimension, humanizing policy and making services real and more responsive. Recognizing its creative dimension directs our attention to discretion as a positive attribute of frontline practice, translating policies into services.
[You have now reached the end of this Social Science Files exhibit.]
[MGH: Looking for a creative career? Join the civil service! The welfare state offers you a work place where you can ‘express’ your artistic side. … But can society really afford your “Affordance”? Would not AI decision-making provide a better more predictable and fairer public service? (hint: I think we may have a chapter on AI and discretion coming up for exhibition at Social Science Files later this weekend.]
The Source of today’s exhibit has been:
Tony Evans, ‘The Art of Discretion’, in Discretion and the Quest for Controlled Freedom, edited by Tony Evans and Peter Hupe, Palgrave Macmillan 2020
See also:
Social Science Files displays multidisciplinary writings on a great variety of topics relating to evolutions of social order from the earliest humans to the present day and future machine age.
‘The Heller Files’, quality tools for Social Science.