A malpractice suit is often only one part of a wrenching experience that is likely to
involve additional complaints to NASW and state professional regulatory agencies, as well
as other civil or even criminal charges. Depending on the malpractice insurance coverage
owned, a practitioner's out-of-pocket expenditures can be very high. Even the best policy
is unlikely to cover all the financial expenses and will not cover damage to reputation
and standing among one's colleagues; license revocation; public ethical sanctions; and
countless hours of time working with an attorney, preparing and delivering depositions,
appearing in court, and seeking support and stress relief in therapy. Beyond the lost
dollars are often psychological costs, including shame and self-recrimination; the deep
sense of betrayal when a client one has attempted to help reciprocates with litigation;
and the panicky fear that one's career, livelihood, and financial security are ruined. The
intent of this book is not to alarm practitioners nor to encourage the avoidance of
"risky" clients and situations (Besharov & Besharov, 1987). The book's goal
is to help equip social workers with knowledge and skills that minimize risk of harm to
clients, resolve ethical and legal dilemmas, and foster evaluation of practice. For
example, one essential safeguard against malpractice is the formulation and documentation
of a rationale for the resolution of conflicting ethical principles, standards, laws, and
agency policies (Houston & Northen, 1994). Specifically, the book
- addresses malpractice risks in each of the major phases of social work practice, in
life-endangering situations, and in vicarious situations involving indirect responsibility
for another's actions
- identifies, describes, and illustrates methods for enhancing practice and reducing legal
and ethical risks.
How to Use This Book
This handbook was written to help reduce the risk of malpractice. Readers will gain a
heightened awareness of the ethical and legal pitfalls of social work practice along with
the knowledge of strategies that encourage competent, creative, liberal, and compassionate
practice¬all while reducing exposure to lawsuits and other adverse actions. However, in
no way does the book constitute legal advice, nor is it a substitute for a solid working
relationship with an attorney who is well versed in social welfare and mental health law,
as well as in professional regulation and malpractice. Social workers should not wait for
a lawsuit to choose an attorney but instead should identify a well-qualified,
well-recommended individual and arrange an introductory consultation to acquaint him or
her with the practice, especially areas of particular concern, and seek risk reduction
advice. Practitioners should maintain contact with attorneys and seek a consultation
whenever a legal dilemma surfaces. In addition, practitioners should confer with ethics
experts or respected peers whenever an ethical dilemma arises.
There are no perfect plans that will unconditionally prevent one from being embroiled
in a malpractice suit or complaint. Anyone can be sued at any time for a variety of
alleged wrongful conducts or negligent behaviors; there are no prohibitions against
someone in society filing a lawsuit if he or she feels aggrieved or sees an opportunity to
realize a monetary gain. Although a court may dismiss a lawsuit as frivolous or the social
worker ultimately may be found not guilty, many lawsuits are settled out of court to
diminish financial and personal losses. Social workers should make every effort to avert
malpractice suits, because you will never really win. Your best bet is prevention.
This handbook identifies in a comprehensive and extensive way many potential problem
areas in social work practice; however, the intent is not to scare practitioners. The
client's best interests are not served by an overzealous application of any and all of the
guidelines mentioned in this book. The book is intended to provide comprehensive guidance,
portions of which can be adapted to a practitioner's unique setting and clientele. Hence,
the book can be used as a reference tool in seeking an answer to a question or in
confronting a problem in practice. Discussions of particular practice considerations are
continued throughout the book. For example, confidentiality is discussed as a general and
legal principle in Chapter 2, as an issue in engaging clients and beginning service in
Chapter 3, as an ongoing concern during service in Chapter 4, and as an issue in
termination of service in Chapter 5. Confidentiality is further elaborated on in Chapter 6
in relation to life-endangering situations, in Chapter 7 in relation to vicarious
liability, and in Chapter 8 in relation to responding to a client complaint or lawsuit.
In addition to the eight chapters that offer definitions and practical principles and
ideas applicable to each stage of service, this book includes three appendixes. Appendix A
is the NASW Code of Ethics as adopted by the 1996 Delegate Assembly, which will likely be
the document, along with NASW standards applicable to a particular practice and state
licensure laws and related rules, referred to most often in social work practice. All
social work practitioners are encouraged to be familiar with the complete and current set
of published policy statements that guide the profession, including the
- NASW Code of Ethics (NASW, 1996)
- Standards for the Classification of Social Work Practice (NASW, 1981a)
- Standards for Social Work Practice in Child Protection (NASW, 1981b)
- Standards for Social Work Services in Long-Term Care Facilities (NASW, 1981c)
- Standards for Continuing Professional Education (NASW, 1982)
- Standards for the Practice of Clinical Social Work (NASW, 1989)
- Standards for Social Work Personnel Practices (NASW, 1990)
- Standards for School Social Work Services (NASW, 1992a)
- Standards for Social Work Case Management (NASW, 1992b)
- Standards for the Practice of Social Work with Adolescents (NASW, 1993)
- Standards for Social Work Mediators (NASW, n.d.).
Moreover, practitioners are advised to secure copies of the codes of ethics and
practice standards of other professional groups with which they are affiliated through
membership or certification. Social workers who profess expertise in a particular
area¬for example, family mediation¬must be familiar with and abide by special
guidelines, laws, and standards related to that area of practice and its credentials. In
addition, practitioners should obtain from state regulatory bodies copies of the current
licensure or certification laws for social workers, along with associated state rules and
regulations.
Appendix B contains detailed information on locating laws, regulations, and court
decisions germane to social work practice. Appendix C offers samples of materials to aid
in the development of client information handbooks, brochures, fact sheets, and office
signs. Also included are sample forms and letters. The materials in Appendix C can be
customized to suit any practice setting and community. Accordingly, the contents of
Appendix C are provided on a computer disk to enable practitioners to modify the items for
a particular setting or clientele.
References
Bernstein, B. E. (1981). Malpractice: Future shock of the 1980s. Social
Casework, 62, 175181.
Besharov, D. J., & Besharov, S. (1987). Teaching about liability. Social
Work, 32, 517522.
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.
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.
National Association of Social Workers. (1981a). Standards for the
classification of social work practice. Washington, DC: Author.
National Association of Social Workers. (1981b). Standards for social
work practice in child protection. Washington, DC: Author.
National Association of Social Workers. (1981c). Standards for social
work services in long-term care facilities. Washington, DC: Author.
National Association of Social Workers. (1982). Standards for continuing
professional education. Washington, DC: Author.
National Association of Social Workers. (1987). Standards for social work
in health care settings. Washington, DC: Author.
National Association of Social Workers. (1989). Standards for the
practice of clinical social work. Washington, DC: Author.
National Association of Social Workers. (1990). Standards for social work
personnel practices. Washington, DC: Author.
National Association of Social Workers. (1992a). Standards for school
social work services. Washington, DC: Author.
National Association of Social Workers. (1992b). Standards for social
work case management. Washington, DC: Author.
National Association of Social Workers. (1993). Standards for the
practice of social work with adolescents. Washington, DC: Author.
National Association of Social Workers. (1996). NASW code of ethics.
Washington, DC: Author.
National Association of Social Workers. (n.d.). Standards for social work
mediators. Washington, DC: Author.
Sharwell, R. G. (197980). Learn 'em good: The threat of malpractice. Journal
of Social Welfare, 6, 3948.
Watkins, S. A., & Watkins, J. C. (1989). Negligent endangerment:
Malpractice in the clinical context. Journal of Independent Social Work, 3(3),
3550.
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