Prudent Practice

Chapter 1: Setting the Stage

Increased Vulnerability to Malpractice Suits

No comprehensive data exist on the number of malpractice suits filed against social workers, who are insured by various companies or may not be insured at all. However, since the establishment of the NASW Insurance Trust more than 25 years ago, malpractice suits against social workers insured by the Trust have increased dramatically (Besharov & Besharov, 1987; Reamer, 1994; Watkins & Watkins, 1989).

Several trends seem to explain the increase in malpractice complaints:

• State legislatures and courts are abolishing immunity from liability for social workers in public agencies and have expanded the legal concept of duty to protect and warn.
• In today's litigious society, consumers of human services are more aware of the available avenues of malpractice litigation.
• With declining resources and the advent of managed care aimed at cost-containment, clients are at greater risk of insufficient or prematurely terminated services as social workers respond to system requirements rather than to client needs.
• Finally, the profession has arrived. Social work's increased exposure to liability is an indicator of increased professional status, visibility, and sphere of responsibility. Signs of a recognized profession include consumers with clear expectations of providers and providers' accountability for their professional behavior (Kurzman, 1995).

Current literature and research suggest that social workers are aware of the malpractice risks but are not well informed about risk reduction (Bernstein, 1981; Besharov & Besharov, 1987; Reamer, 1987, 1994; Watkins & Watkins, 1989). Overall, the literature addresses selected legal issues, identifies at-risk populations and fields of practice, and describes the general features of malpractice and professional liability. Examples include discussions of privileged communication (Bernstein, 1978; Perlman, 1988; Watkins, 1989), child welfare and school liability (Barksdale, 1989; Besharov, 1985; Green & Hansen, 1989; Sharwell, 1982), informed consent (Parry, 1987; Reamer, 1987), supervisory and field practicum risks (Gelman & Wardell, 1988), misdiagnosis (Kutchins & Kirk, 1987), use of contracts (Kagle, 1984), duty to protect and warn (Fulero, 1988; Seelig, 1987; Weil & Sanchez, 1983), the fiduciary relationship (Kutchins, 1991), and legal issues with clients with AIDS (Abramson, 1990; Lamb, Clark, Drumheller, Frizzell, & Surrey, 1989; Reamer, 1991a, 1991b). In addition, a landmark comprehensive text about social work malpractice issues written by social work scholar Frederic G. Reamer was published in 1994.

All social workers are at risk and none are immune from the possibility of a lawsuit or other action being brought against them. Supervisors, child welfare workers, private practitioners, adult welfare workers, mental health workers, crisis workers, health care social workers, school social workers, and administrators must know how to keep their social work practice legally sound and ethical. Certain settings and situations tend to place practitioners at greater risk. For example, social workers involved in group practice may be held liable for the actions of the other members of the group. In managed care contexts, clinicians might be pressured by the reimbursement system to terminate service or not to choose the preferred service, only to find that a client whose best interests have not been served is litigating. Child protection settings create special risks for liability, including inadequately protecting a child, reporting suspected child abuse and neglect, and violating parental rights (Besharov & Besharov, 1987). Other areas of child welfare liability include failure to investigate adequately, unnecessarily intrusive investigation, failure to place a child in protective custody, wrongful removal or withholding of a child, returning a child to dangerous parents, failure to provide adequate case monitoring, faulty assessment and custody evaluation, and malicious prosecution (Besharov, 1985). In addition, clinicians who conduct child custody investigations and testify in court or practice as mediators are at greater risk if their findings do not concur with the family's expectations.

As social workers move farther into the arena of fee for service and away from the service ideal model, vulnerability to litigation increases. Clinical social workers in private practice face a higher probability of malpractice actions related to sexual impropriety, incorrect diagnosis and service, fee splitting, false imprisonment, failure to protect and warn, licensing irregularities, and improper or inappropriate referral (Jones & Alcabes, 1989).

As social work has become more specialized, detailed professional standards and licensing regulations have proliferated along with federal and state regulations, laws, and statutes. Increasingly, both public and private social services settings are expected to provide a higher standard of care that requires increased knowledge and skill. As the profession expands into the realms of private practice, managed care, proprietary services, for-profit agencies, and third-party reimbursement, social workers must know and adhere to additional regulations and standards for businesses and fair trade. Growing demands create many risks for social workers that might lead to dissatisfied clients with propensities to file lawsuits (Jones & Alcabes, 1989; Kutchins, 1991).

The best risk management for malpractice litigation is competent practice and accurate documentation of practice decisions and interventions (Bernstein, 1981; Besharov & Besharov, 1987; Watkins & Watkins, 1989). As Sharwell (1979­1980) advised,

Examination of malpractice is important both because of its potential usefulness in saving the skin (or pocketbook) of the social work educator, student, or practitioner and because of the seemingly obvious relationship of malpractice to questions related to competent social work practice. Because they are opposite sides of the same coin, to learn about malpractice is to learn about competent practice as well. (p. 40)

Today's social work practitioner should be armed with an understanding of how malpractice liability occurs, the process for establishing liability, and the parameters of competent practice as set forth by codes of ethics, standards, and the law (Besharov & Besharov, 1987; Houston & Northen, 1994). In this chapter, we set the stage for protecting against malpractice. First, we discuss various professional liability risks, including malpractice and negligence, other civil violations, criminal actions, professional regulatory violations, and ethical violations. Second, we identify how a social worker can understand and access pertinent laws and regulations. A summary follows.

Professional Liability Risks

Good social work practice encompasses thorough assessment, accurate diagnosis, clearly defined service planning with client participation and informed consent, individualized and differential treatment, ongoing evaluation of the service process, regular consultation and supervision, referral to competent and appropriate resources, and timely transfer or termination (Houston & Northen, 1994). The NASW Code of Ethics (1996) and professional standards, as well as agency policy and federal, state, and local regulations and laws, set guidelines to determine competent practice and legal grounds for malpractice. However, these multiple, and at times conflicting or ambiguous, regulations of professional behavior, along with consequent lack of clarity about competent professional practice, discipline, and ethics, contribute to a growing rate of negligent acts, errors, omissions, and gross misconduct among social workers (Houston & Northen, 1994).

Increasingly, social workers are confronted with situations in which the NASW Code of Ethics and professional standards conflict with laws, statutes, and agency policies or in which there are few or no standards or guidelines. Social workers must contend with a baffling array of rules of conduct. Multiple factors may bear on how professional actions are judged:

• professional regulations, licensing, and disciplinary requirements
• professional ethics and standards
• agency regulations and policies
• a social worker's own sense of how to perform as a professional
• cultural and community standards of care
• relevant civil and criminal law.

Hence, it is possible to simultaneously violate one or more laws, regulations, and ethical codes. Any event or circumstance might crosscut the categories of liability. For example, criminal charges may be determined to be unfounded, but a malpractice complaint or professional violation may be found with the same evidence. Moreover, if a social worker is accused of malpractice, it is likely that the plaintiff's attorney will file as many levels of charges as possible.

The various legal and regulatory systems are designed for different purposes. Civil law, which dictates how disputes between two parties are resolved, includes contract law, laws that regulate businesses and commercial transactions, landlord­tenant disputes, real property law, family law, and tort law. Central to understanding malpractice, tort law includes "private" crimes such as libel, slander, false arrest, and malpractice. "A tort is a wrongful action which harms another in some legally recognized way, such as physical injury, monetary loss, emotional trauma, or damage to the reputation" (Meyer, Landis, & Hays, 1988, p. 13). Criminal law involves offenses against the government with fines and imprisonment as penalties. State licensing laws and regulations specify professional qualifications and identify people eligible to use certain titles such as "clinical social worker." Generally, such laws define the scope of permissible practice and incorporate a code of ethics or similar behavioral guidelines. Codes of ethics and practice standards established by professional organizations define how their members are expected to conduct themselves and provide guidance for professional conduct and action.

Various regulatory systems and professional associations have systems that determine whether a social worker is performing in an unprofessional manner. These differ in three areas: (1) the procedures used to determine professional misconduct; (2) standards of proof; and (3) consequences, such as sanctions imposed by a professional association or damages awarded by a civil court. Standards of proof are levels of evidence necessary for a party to comply with his or her burden of proof. First is proof beyond a reasonable doubt (applicable only in criminal cases), which precludes every reasonable hypothesis except that which tends to support and is wholly consistent with a defendant's guilt and inconsistent with any other rational conclusion. Second is clear and convincing proof or a preponderance of evidence, which is positive, precise, and explicit evidence that directly establishes the point to which it is adduced. Third is evidence that is of greater weight or more convincing than the evidence offered in opposition to it (applicable in civil cases). A preponderance of evidence or clear and convincing proof is required in professional disciplinary hearings.

Several classes of professional liability can be identified and differentiated: malpractice or negligence, other civil violations, criminal liability, infractions of professional regulations, and ethical violations.

Malpractice or Negligence

SAM

Sam was a clinical social worker in an inpatient substance abuse unit. He was assigned to provide individual counseling to a married female client with a history of substance abuse and sexual acting out. During her 21-day stay in the inpatient unit, the client mentioned that she was very dissatisfied in her marriage. Also, she made obvious verbal and nonverbal sexual overtures to Sam; she frequently complimented him on his "bedroom eyes" and indicated that she thought they would have a great time together if they met socially. The client was later discharged from the inpatient unit and referred to a relapse prevention group led by Sam. The client asked Sam to have coffee with her after the group, and he accepted. After several weeks, Sam and the client began seeing each other on weekends and began a sexual relationship. Shortly after the client completed the relapse prevention program, her husband discovered that she was having affairs with several other men, and the client ended her relationship with Sam. To repair their marital relationship, the client and her husband began counseling with Mary, another clinical social worker. During counseling, the client confessed that she had had an affair with Sam. The client's husband was outraged, and Mary encouraged the couple to consider reporting Sam's behavior to the state professional regulatory board and to consult an attorney. The couple filed a malpractice suit for sexual misconduct and mismanagement of the service relationship.

Malpractice is "any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practices, or illegal or immoral conduct" (Black, 1979, p. 864). Professional malpractice relates to negligence by a practitioner, who is required to perform in a manner consistent with how ordinary, reasonable, and prudent professionals would act under the same or similar circumstances within their profession (Cohen & Mariano, 1982; Gifis, 1991). A social worker may be potentially liable when a client is harmed because his or her performance did not meet the profession's standard of competence and conduct. Intentionally or unintentionally doing nothing or doing wrong may cause potential liability (Berlinger, 1989; Besharov & Besharov, 1987).

A malpractice suit is a tort law action. Tort law is determined by common (court) law rather than statutory law; therefore, the court determines whether a wrongful act involves tort liability and under what circumstances. Tort liability is determined by court precedents as well as court rulings. Because tort action does not include criminal liability, damages sought are monetary and are received as compensation for injury or harm. Torts are designed not only to indemnify plaintiffs but also to serve educational functions by disciplining negligent professionals and by stimulating responsible behavior by other professionals who may cause harm (Prosser, 1971).

Tort law includes two categories. An intentional tort involves a deliberate or voluntary action aimed to do that which the law has declared wrong. An unintentional tort involves negligence. Negligence is the careless failure to take reasonable and prudent measures to ensure that others are not harmed by one's actions (Bennett, Bryant, VandenBos, & Greenwood, 1990). Negligence includes not doing what one should have (omission) or doing something incorrectly (commission) (Stromberg et al., 1988). A social worker may be found liable for negligence, owing to ignorance in his or her professional role, that causes harm to a client (Bennett et al., 1990).

Most malpractice actions involve negligence or failure to meet a standard of care. From 1969 through 1995, 53 percent of all malpractice claims in the NASW-sponsored occurrence program were filed for incorrect treatment, sexual misconduct, breach of confidence or privacy, and suicide or attempted suicide of a client (NASW Insurance Trust & American Professional Agency, 1996).

The legal finding of negligence and an award of damages for malpractice require four elements (Prosser, 1971; Rothblatt & Leroy, 1973):

1. professional duty or obligation recognized by the law and requiring the professional to perform based on a particular standard of conduct, for example, the practice standard precluding sexual relations with a client
2. a dereliction of duty involving a failure to conform to the required standard, for example, a practitioner becomes sexually involved with a current or former client
3. measurable harm, loss, or damage of some kind to the client or significant others, for example, the sexually involved client attempts suicide
4. legal and proximate cause in which the damage must be a result of something that the defendant did or did not do, for example, a suicide attempt occurs following the client's chance meeting with the practitioner's spouse and children at a school function, which leads to a discussion during a service session of the practitioner's intent to remain in her marriage.

Professional Duty

Professional duty, or obligation, may be established explicitly or implicitly. An explicit duty of care occurs, for example, when a social worker establishes a working agreement, bills a client, or places his or her name in a client's record. A practitioner might implicitly establish a duty of care by providing counseling over the telephone or emergency back up for a colleague. If the person knows that the practitioner is a social worker and assumes that the practitioner has delivered professional services, the practitioner will have to prove that he or she did not establish professional duty. However, this may be difficult. For example, if a social worker lectures to a community group and speaks to a group member alone during a break, the practitioner may have established duty of care. If the person assumes that the practitioner has provided expert services, he or she will more than likely be found to have established a duty of care because the practitioner's actions spoke for themselves (Bennett et al., 1990). A social worker's initial contacts, including screening and intake, are key to establishing a duty of care (for further discussion, see Chapter 3).

Dereliction of Duty

Dereliction of duty, or failure to meet the standard of care, is more difficult to determine. Courts tend to determine a standard of care based on what a reasonable, average, and prudent professional of similar training and theoretical orientation would do in similar circumstances. If a social worker practices an approach not typically used in the profession, the courts tend to find it acceptable if a "respectable minority" of the profession uses the approach (Schutz, 1982).

In addition, how a practitioner advertises himself or herself and his or her experience and theoretical orientation is considered in establishing the standard. If a social worker professes to have special expertise, his or her professional actions will be judged by an elevated standard of care. Also, if a practitioner professes two sets of education and expertise (for example, hypnotist and social worker), he or she will be held to the standards of care in both areas (Woody, 1988).

Case law on standards of care differs across the country as to whether it uses acceptable or customary practices to determine the standard (Woody, 1988). Also, case precedents may influence what a social worker's professional duties are, as in the case of Tarasoff v. Board of Regents of the University of California (1976), which established a legal duty to warn potential victims when a client threatens harm.

Professional codes of ethics and practice standards and licensing regulations set forth minimum criteria of conduct by which a social work practice may be judged. Liability for malpractice may be established based on the grounds of failure to follow a professional ethical standard or practice regulation. Current professional literature and research also may be used to establish the standard and failure to conform. Moreover, malpractice charges may arise from failure to adhere to an administrative rule, state statute, policy or procedure, criminal law, or civil law. Increasingly, state laws are making sexual relationships between a clinician and client a crime. In these cases, the civil court may need only the fact that a practitioner has been found guilty to determine negligence. Also, if a practitioner's negligent or wrongful actions directly or indirectly contributed to another's erroneous decision, the practitioner may be found liable. Lack of knowledge of a rule as well as inadequate supervision or training are not sufficient defenses (Stromberg et al., 1988; Woody, 1988).

Proving that a practitioner breached the duty of care is the responsibility of the plaintiff­client. Some deviations are easily proven, for example, if the practitioner engages in a sexual relationship with a client or shares confidential information with a friend. However, when professionals disagree about the standard of care, it is more difficult to prove that the practitioner deviated from that standard. This is particularly the case when determining if a practitioner had a duty to warn a sexual partner of a client who is HIV positive and who has not informed that partner and continues to engage in risky behaviors (Reamer, 1994). (Duty to warn others about HIV-positive clients is discussed in Chapter 6.) Typically, a malpractice suit has not been upheld if the practitioner substantiates that he or she followed a reasonable standard of care. Reamer (1994) presented two perspectives of the standard of care in social work. The first view emphasizes the practitioner's professional duty in his or her actions or decisions, such as protecting third parties and confidentiality and seeking informed consent. The second view involves the following of procedures, processes, and steps in determining a course of action and making a controversial decision (for example, using reasonable and acceptable assessment guidelines, seeking supervision and consultation, and maintaining clear documentation).

Malpractice is proven based on a fair preponderance of the evidence, meaning that evidence presented by one party is somewhat more believable than that presented by the other party. The court will determine with at least a 51 percent (majority) certainty that evidence of one party is more convincing (Stromberg et al., 1988). The court will examine a client's clinical record to determine if a practitioner's actions were correct and performed according to the appropriate procedures and if he or she met the standard of care. Not having records or maintaining incomplete records deviates from the standard of care and may increase culpability. Clinical records can be a social work practitioner's best defense (Stromberg et al., 1988; Woody, 1988).

Measurable Harm

Measurable harm, loss, or damage can be placed in one of three categories:

1. An indisputable physical injury or death has either befallen or been inflicted by the client. If such damage [has occurred], the emphasis will shift to proving that the practitioner's actions [constituted] proximate and legal cause.
2. The injuries cited (for example, loss of wages . . . divorce) [are] consequent to the act in question. The plaintiff must show that these injuries were the result of behavior directed or caused by the [practitioner].
3. The injury claimed may be largely subjective, that is . . . the harm may consist primarily of mental effects on the client, commonly referred to as "pain and suffering." (Bennett et al., 1990, p. 40)

Of these three, pain and suffering is the most difficult to quantify. Courts tend to award the most monetary damages in these cases.

Legal and Proximate Cause

The plaintiff­client must prove legal and proximate cause of the harm, loss, or damage. Proximate cause involves three criteria:

1. Legal cause must be established. Unless the alleged negligence of the practitioner occurred, the client would not have been harmed.
2. The professional's actions must be proved to be "the direct and reasonably foreseeable cause" and the "primary cause" of the harm.
3. The client must prove that there was an unbroken chain of events (Bennett et al., 1990).

Moreover, the complaint must be filed within the statute of limitations (time limits), which varies from state to state. For adults, the statute of limitations begins at the point of discovery or realization of the harm. The time limit for minors to sue begins at the point they achieve majority age. Only competent clients can sue. If a client was incompetent at the time of the harm, the statute of limitations begins when competency resumes (Stromberg et al., 1988). However, attorneys can be very innovative in finding ways to extend the statute of limitations.

Other Civil Violations

Civil law encompasses, among other areas, both tort law, which includes but is not limited to malpractice, and contract law. The same situation may give rise to several types of legal action.

Nontort civil complaints may be made against a social worker who violates a civil statute, a regulatory code, a client's civil rights, or a contract. Statutes that can be violated include procedures for release of client records, reporting requirements for mentally ill people judged dangerous to others, and requirements for client access to records. Civil rights violations are most likely to occur in residential, mental health, and correctional settings where situations that have the potential to violate a client's rights to privacy, to refuse medication and service, to receive service, and so forth may arise. A breach of contract may be established regardless of whether the contract is written, verbal, or implied. A promise about service may establish a warranty, or guarantee, that a client may invoke. It must be shown that service did not achieve its promised purposes (Stromberg et al., 1988). Also, a third-party payer may initiate a breach-of-contract suit if a practitioner agrees to require a copayment with an insurance company and fails to bill or attempt to bill a client.

Criminal Liability

GEORGE

George, a social worker in private practice, provided treatment to a 33-year-old woman who had been fired from her job as a teacher's aide. The client's depression and anorexia had sapped her energy and creativity in working with the children. The course of treatment was supplemented with informal, experiential events such as joint attendance at cultural events and weekend travel. Eventually, the social worker and client developed a sexual relationship, and service ended. A few months later, George told the client he did not want to continue their relationship. The client became very upset and pursued legal action. George faced criminal charges for engaging in a sexual relationship with a client (which was illegal in his state).

The consequences of being found guilty of breaking criminal law may include a practitioner's loss of liberty and a possible fine. In criminal cases, the judicial system is responsible for presenting evidence. The standard of proof is that the evidence must be beyond a reasonable doubt, the most stringent criteria of proof, meaning that those in judgment must have less than a trivial doubt that the practitioner is guilty. In some states, criminal charges can be brought for sexual misconduct or for other violations that might be civil violations in other states. The misdemeanor and felony statutes of violations also vary with the jurisdiction. In some cases, criminal charges are filed in addition to a malpractice suit. Defense of a criminal charge cannot be covered by professional liability insurance.

Infractions of Professional Regulations

JOHNSON & ASSOCIATES

Johnson & Associates is a group practice of five licensed clinical social workers. In addition, the group employs six individuals, who recently received MSW degrees, whom the group is supervising toward licensure. Because Johnson & Associates also does a notable amount of pro bono work with homeless and battered women, the local school of social work has developed a field placement with the group. Hence, at least one social work student is present on a regular basis. Johnson & Associates advertises its practice as offering the services of "professional, fully licensed, experienced clinical social workers." The group reasons that this statement is true, because all nonlicensed clinical staff are carefully supervised by an LCSW. A client, who was a battered spouse, on learning that her therapist was not yet licensed, complained to her attorney, who recommended that she file a malpractice suit. The attorney advised the state professional regulatory agency that the practice misrepresented itself in its printed literature and then filed a malpractice suit alleging improper service.

There are several types of professional regulatory laws including title protection laws, practice regulation acts, registration laws, and certification codes. Title protection laws define who may use a professional title such as "clinical social worker," "certified social worker," or "registered social worker." Practice regulation acts define the services and activities of a profession. Most state professional regulation acts incorporate part or all of the provisions of a profession's code of ethics. Thus, a breach of the NASW Code of Ethics (1996) is likely to be simultaneously a violation of a state's professional regulations for social work.

The Disciplinary Action Reporting System (DARS) is in place through the American Association of State Social Work Boards (AASSWB). Currently, 42 states report social workers against whom disciplinary action has been taken, and this information is shared bimonthly with the other states. An annual subscription to DARS is available to other organizations from AASSWB (personal communication with Donna DeAngelis, Executive Director, AASSWB, January 26, 1996).

In the event of a complaint against a practitioner, the state board, department, or agency responsible for enforcing professional regulations reviews the complaint and determines if it is legally sufficient. Then, probable cause is determined by either a preponderance of the evidence or clear and convincing evidence. Disciplinary actions may include denying, suspending, or revoking a license; probation; requiring the professional to retake the licensure examination or receive supervision; or restricting practice. If the professional found guilty does not comply with the disciplinary action, he or she may be fined or jailed. (See Chapter 8 for recommendations on how to respond to disciplinary procedures.)

Ethical Problems

Professional ethics are rules reflecting the values and goals of the profession. The NASW Code of Ethics (1996) sets forth the ethical foundation of social work. On the other hand, professional standards are model responses or actions set forth by custom or an authority, such as NASW, which fulfill the intent of the ethical principles. Professional standards summarize or delineate procedures or actions necessary to perform at the level set forth by the standard (Bennett et al., 1990). NASW has developed several statements of professional practice standards, such as the Standards for the Practice of Clinical Social Work (NASW, 1989) and NASW Guidelines on the Private Practice of Clinical Social Work (Robertson & Jackson, 1991), both of which are available from NASW state chapters or the national office.

Social workers are urged to request additional copies of the NASW Code of Ethics, a full set of standards, and a copy of the state professional regulations for social work to add to the reference material provided in this book. We recommend comparing the state professional regulations code with the NASW Code of Ethics, standards, and guidelines. Normally, they are not in opposition, and state codes typically incorporate the recognized professional code of ethics and relevant standards. However, should a conflict between state law and professional criteria surface, the practitioner should seek legal advice.

Ethical Dilemmas

Because ethics are framed as broad, abstract principles, they give rise to differing interpretations and, moreover, may clash with other directives originating in law, administrative policy, or even service goals. Ethical dilemmas identified by Reamer (1995a, 1995b), Corey, Corey, and Callanan (1993), and others that practitioners are likely to face include

• defining and maintaining professional boundaries with a client so the service relationship is cleanly separated from business, personal, social, and especially sexual domains
• fully informing a client of the policies of the provider's setting, clinician and client responsibilities, and service risks, even when such information could discourage the client from starting service
• conflicts between professional values and an organization's settings and policies that interfere with social work functions
• limits to confidentiality
• duty to report a potentially dangerous client, duty to warn and protect potential victims, and conflict over disclosure of HIV status to a client's partner
• competing rights of family members
• a client's need for and inadequacy or unavailability of resources
• a client's need for access to the practitioner versus the practitioner's legitimate need for personal privacy
• conflict between the duty to aid and personal attitudes and values around issues such as abortion, cocaine-addicted infants, and child abuse
• withholding of potentially traumatic information from some family members at the request of others
• a client's access to his or her clinical records
• bioethical issues concerning abortion, organ transplantation, end-of-life decisions, folk remedies, and non-Western practices
• termination versus retention in service of a client who defaults on fees or is noncompliant
• discharge of a client from the hospital or termination of service regardless of his or her needs.

Some ethical issues are addressed in state professional regulatory codes and rules. Regardless of their articulation in formal, legal policy, any of the above-mentioned ethical dilemmas could be occasion for a malpractice suit, as well as other civil suits and possibly criminal actions.

Ethical Violations

A complaint of an ethical violation can be made by anyone with knowledge of the alleged violation, and it may be made to the state professional regulatory agency or to one or more professional associations espousing the code of ethics that is believed to have been breached and under which a practitioner is responsible. When a violation is found by a state professional regulatory agency, several disciplinary actions may be taken, including revocation of the social worker's license. Allegations of ethical violations may also be reviewed by professional associations, and these may impose corrective actions and sanctions. For example, NASW has set forth procedures and criteria for addressing grievances and determining ethical violations. (Contact any NASW chapter or the national office to obtain a free copy of NASW Procedures for the Adjudication of Grievances [NASW, 1994].) Once a social worker is found in violation of the Code of Ethics, NASW may take two types of disciplinary action: corrective actions and sanctions. Typically, a combination of these actions is recommended.

Corrective actions are designed to restore or bring a social worker to an appropriate level of competence and ethical functioning. The social worker may be required to seek supervision or consultation, follow a course of study, correct a record, or provide restitution by returning fees. Rectifying activities may include giving a client access to records or correcting a biased letter, evaluation, or report.

Sanctions may include suspension or expulsion from NASW, notification of the state regulatory board, publication of the name of the sanctioned member in the NASW News or chapter newsletter, notification of the social worker's employer, and notification of other credentialing bodies. Typically, corrective actions are requested first. Maximum sanctions are determined in grievous cases or cases in which the social worker does not comply with the corrective measures.

The types of ethics complaints filed vary, with any one category representing a relatively small percentage of incidents filed. According to a study of trends in NASW's adjudication of ethics violations (Kaplan, 1993), of 300 sampled cases, the largest category involved sexual activity with a client. Other comparatively frequent alleged violations are

• dishonesty, fraud, deceit, and misrepresentation
• compromised professional discretion and impartial judgment
• relationships or commitments in conflict with client interest (dual relationships)
• inappropriate withdrawal of services.

One-third or more founded allegations were associated with the following complaints (Kaplan, 1993):

• not keeping current with emerging knowledge
• private conduct that compromised professional role
• not treating equitably clients seeking temporary or emergency service
• acceptance of responsibility beyond the social worker's competence
• sexual activity with a client
• exploitation of the professional relationship for personal gain or advantage
• not obtaining informed consent to tape, record, or observe
• not seeking appropriate consultation
• terminating services improperly
• accepting something of value for making a referral
• misrepresenting education, experience, affiliation, or qualifications.

Understanding and Accessing Laws and Regulations

Three Scenarios

Unfortunately, there is no one definitive answer to the questions posed in the following three scenarios. The answers reside largely in state statutes and rules, as well as case law, all of which vary by jurisdiction.

Child Abuse and Neglect

School social workers are often faced with suspected child abuse and must report it. Increasingly, social workers are asked to testify in court. What constitutes abuse? What constitutes neglect? How, when, and to whom does one report? If the state child protective services is already involved, is further reporting in order? State laws and administrative regulations spell out child abuse (as well as adult and elder abuse) reporting requirements: who must report abuse or neglect, to whom abuse or neglect must be reported, how the report must be filed, who will investigate, and how soon investigation will take place.

School social workers should obtain copies of relevant state codes and rules and become familiar with them. Troublesome aspects of the codes and rules should be discussed with a supervisor and the school district's legal counsel. (See Chapter 6 for more information on child maltreatment.)

Client Depression

Social workers in private practice furnish a large volume of services to depressed clients, who may also evidence suicidality. When a client appears to be a danger to self but refuses to seek voluntary admission to a hospital, what steps can a practitioner take? How is involuntary hospitalization accomplished? What steps are required? Who must be involved and in what ways? Again, state law and administrative rules are guidelines for matters concerning involuntary commitment. Social workers should consult these laws and rules with an attorney for needed clarification. (See Chapter 6 for more information on suicide.)

Client Anger or Threats

Social workers in community-based mental health programs may encounter clients who divulge extreme anger toward other people and threaten to harm those individuals. Where does client confidentiality fit with a need to protect potential victims? What are the practitioner's responsibilities to the dangerous client as well as to those he or she is threatening? Most states have codified the duties to warn and protect and the limits of confidentiality when the safety of the client or others is at stake. These laws are often referred to as the Tarasoff principle or rule. Social workers must know these laws and consult a supervisor and legal counsel when the duty to warn and protect is at issue. (See Chapter 6 for more information on duty to warn.)

Legal Interpretation

Like all tort law, malpractice law has evolved largely as case law, that is, court rulings can be determined based on common or case law set forth by how other courts have made decisions or interpreted statutes or constitutional law. In malpractice cases, a judge can set a new precedent or create a new law (Hogan, 1979). Case law is ever changing, creating new forms of liability (Reamer, 1994).

Accountable and effective practitioners must know the codes of ethics and practice standards as well as the law, key court precedents, and derivative regulations that apply to clients and the parameters of social work practice. However, practitioners should not inadvertently slip into the practice of law on their own behalf. An attorney must be responsible for legal interpretation. In researching a legal issue, practitioners should first pose the legal questions to an attorney. In addition, practitioners should confer with experienced colleagues and consult with the local area offices of pertinent state agencies, where copies of germane statutes and regulatory codes can be obtained. For example, the local area office of a state mental health program can provide the state laws and administrative rules governing mental illness determinations, voluntary and involuntary hospitalization, and so forth. The local area office of a state child welfare program can provide the codes related to abuse reporting, investigations and child protective services, custody, foster care, and so forth. Copies of a state's licensure law and regulations are available from the state department charged with professional regulation of social workers.

Practitioners should read the NASW News and newsletters of other professional associations, which are increasingly discussing ethical issues and malpractice. Local reference librarians can point out a number of newsletters that review case law and suits germane to social work practice (for more information, see Newsletters in Print, 1994­1995).

In addition, practitioners are encouraged to talk with local colleagues and agencies and consult with attorneys to develop their own understanding of the legalities of a situation. Practitioners' personal knowledge will enrich what information an attorney and other sources provide, better prepare them for a conference with an attorney, and ensure that they have examined the issue fully. However, identifying applicable laws and regulations may be intimidating and baffling for those who have never done legal research. Appendix B clarifies the types of laws, regulations, and court opinions that bear upon social work practice and identifies the sources of laws, regulations, and court opinions, as well as important secondary sources of information.

Before Establishing a Professional Relationship

Incorporating suggestions of Bernstein (1981), Besharov (1985), Besharov and Besharov (1987), and Watkins and Watkins (1989), before a social worker establishes a professional relationship with a client, he or she must

• understand malpractice and professional liability
• be aware of potential problems and high-risk areas and take action to avoid exposure to liability
• be familiar with professional standards and rules and regulations that apply to social work practice and the profession, such as the NASW Code of Ethics
• know and adhere to written and implied agency policies and procedures
• understand and adhere to relevant federal, state, and local statutes and administrative regulations that bear on social work practice.

References

Abramson, M. (1990). Keeping secrets: Social workers and AIDS. Social Work, 35, 169­174.

Barksdale, A. (1989). Child abuse reporting: A clinical dilemma. Smith College Studies in Social Work, 59, 170­182.

Bennett, B. E., Bryant, B. K., VandenBos, G. R., & Greenwood, A. (1990). Professional liability and risk management. Washington, DC: American Psychological Association.

Berlinger, A. K. (1989). Misconduct in social work practice. Social Work, 34, 69­72.

Bernstein, B. E. (1978). Malpractice: An ogre on the horizon. Social Work, 23, 106­112.

Bernstein, B. E. (1981). Malpractice: Future shock of the 1980s. Social Casework, 62, 175­181.

Besharov, D. J. (1985). The vulnerable social worker: Liability for serving children and families. Silver Spring, MD: National Association of Social Workers.

Besharov, D. J., & Besharov, S. (1987). Teaching about liability. Social Work, 32, 517­522.

Black, H. C. (1979). Black's law dictionary (5th ed.). St. Paul, MN: West.

Cohen, R. J., & Mariano, W. E. (1982). Legal guidebook in mental health. New York: Free Press.

Corey, G., Corey, M. S., & Callanan, P. (1993). Issues and ethics in the helping professions (4th ed.). Pacific Grove, CA: Brooks/Cole.

Fulero, S. (1988). Tarasoff: 10 years later. Professional Psychology: Research and Practice, 19, 184­190.

Gelman, S. R., & Wardell, P. J. (1988). Who's responsible? The field liability dilemma. Journal of Social Work Education, 24, 70­78.

Gifis, S. H. (1991). Law dictionary (3rd ed.). Hauppauge, NY: Barrons.

Green, S. L., & Hansen, J. C. (1989). Ethical dilemmas faced by family therapists. Journal of Marital and Family Therapy, 15, 149­158.

Hogan, D. B. (1979). The regulation of psychotherapists: Vol. I-A. Study in the philosophy and practice of professional regulation. Cambridge, MA: Ballinger.

Houston, M. K., & Northen, H. (1994, May). Reducing malpractice risks: A framework for resolving ethical­legal dilemmas and enhancing clinical practice. Paper presented at the meeting of the Second National Clinical Social Work Conference for the National Federation of Societies for Clinical Social Work, Washington, DC.

Jones, J. A., & Alcabes, A. (1989). Clients don't sue: The invulnerable social worker. Social Casework, 70, 414­420.

Kagle, J. D. (1984). Restoring the clinical record. Social Work, 29, 46­50.

Kaplan, K. O. (1993, October). The adjudication trends study. Washington, DC: National Association of Social Workers, National Center for Social Policy and Practice.

Kurzman, P. A. (1995). Professional liability. In R. L. Edwards (Ed.-in-Chief), Encyclopedia of social work (19th ed., Vol. 3, pp. 1921­1926). Washington, DC: NASW Press.

Kutchins, H. (1991). The fiduciary relationship: The legal basis for social workers' responsibility to clients. Social Work, 32, 106­113.

Kutchins, H., & Kirk, S. A. (1987). DSM-III and social work malpractice. Social Work, 32, 205­211.

Lamb, D. H., Clark, C., Drumheller, P., Frizzell, K., & Surrey, L. (1989). Applying Tarasoff to AIDS-related psychotherapy issues. Professional Psychology: Research and Practice, 20, 37­43.

Meyer, R. G., Landis, E. R., & Hays, J. R. (1988). Law for the psychotherapist. New York: W. W. Norton.

NASW Insurance Trust, & American Professional Agency. (1996). NASW Insurance Trust Professional Liability Insurance Program: Claims experience—Individual policies. Occurrence form, 1969­1995. Unpublished manuscript, Washington, DC.

National Association of Social Workers. (1989). Standards for the practice of clinical social work (rev. ed.). Silver Spring, MD: Author.

National Association of Social Workers. (1994). NASW procedures for the adjudication of grievances (3rd ed.). Washington, DC: Author.

National Association of Social Workers. (1996). NASW code of ethics. Washington, DC: Author.

Newsletters in print. (1994­1995). Washington, DC: Gale Research.

Parry, J. (1987). Informed consent for whose benefit? Social Casework, 62, 537­542.

Perlman, G. L. (1988). Mastering the law of privileged communication: A guide for social workers. Social Work, 33, 425­429.

Prosser, W. L. (1971). Handbook of the law of torts (4th ed.). St. Paul, MN: West.

Reamer, F. G. (1987). Informed consent in social work. Social Work, 32, 425­429.

Reamer, F. G. (1991a). AIDS and ethics. New York: Columbia University Press.

Reamer, F. G. (1991b). AIDS, social work, and the "duty to protect." Social Work, 36, 56­60.

Reamer, F. G. (1994). Social work malpractice and liability: Strategies for prevention. New York: Columbia University Press.

Reamer, F. G. (1995a). Ethics and values. In R. L. Edwards (Ed.-in-Chief), Encyclopedia of social work (19th ed., Vol. 1, pp. 893­901). Washington, DC: NASW Press.

Reamer, F. G. (1995b). Social work values and ethics. New York: Columbia University Press.

Robertson, H. W., & Jackson, V. H. (1991). NASW guidelines on the private practice of social work. Washington, DC: NASW Press.

Rothblatt, H. B., & Leroy, D. H. (1973). Avoiding psychiatric malpractice. California Western Law Review, 9, 260­272.

Schutz, B. M. (1982). Legal liability in psychotherapy. San Francisco: Jossey-Bass.

Seelig, J. M. (1987). Legal and ethical issues for independent social workers. Journal of Independent Social Work, 2, 81­86.

Sharwell, G. R. (1979­1980). Learn 'em good: The threat of malpractice. Journal of Social Welfare, 6, 39­48.

Sharwell, G. R. (1982). Avoiding legal liability in the practice of school social work. Social Work in Education, 5, 17­25.

Stromberg, C., Haggarty, D. J., Leibenluft, R. F., McMillan, M. H., Mishkin, B., Rubin, B. L., & Trilling, H. R. (1988). The psychologist's legal handbook. Washington, DC: Council for National Register of Health Service Providers in Psychology.

Tarasoff v. Board of Regents of the University of California, 551 P.2d 334 (1976).

Watkins, S. A. (1989). Confidentiality and privileged communications: Legal dilemma for family therapists. Social Work, 34, 133­144.

Watkins, S. A., & Watkins, J. C. (1989). Negligent endangerment: Malpractice in the clinical context. Journal of Independent Social Work, 3(3), 35­50.

Weil, M., & Sanchez, E. (1983). The impact of the Tarasoff decision on clinical social work practice. Social Service Review, 57, 112­124.

Woody, R. H. (1988). Fifty ways to avoid malpractice. Sarasota, FL: Professional Resource Exchange.

Return to Prudent Practice