● Misrepresentation (incorrect or false representation). Intentional tort offenses may include: ● Failure to get informed consent (battery). ● Promising a cure or other outcome that is not practically attainable (misrepresentation). ● A client making a derogatory statement about a social worker (defamation). Unintentional torts include negligence (failure to act appropriately) and malpractice (acting inappropriately). Although an unintentional tort involves no intention to do harm, the following has taken place: ● A recognized legal duty or responsibility owed to the client was breached. ● The client was harmed, damaged, or injured. ● The breach of duty was the primary or proximate cause of the harm. Both negligence and malpractice involve practicing below the standard of care. For social workers, a focus on discussing civil liability is the concept of “duty” (NASW Assurance Services, 2015). Part of an expanded definition of duty requires therapists and their employers to “take affirmative steps to protect others.” The most common types of lawsuits against social workers involve incorrect treatment and sexual misconduct. Issues in other suits include client suicides, confidentiality breaches, and the loss of HIPAA-required data. According to NASW Assurance Services (2015), in the case of a malpractice suit, the plaintiff’s attorney needs to demonstrate five elements: 1. Failure in legal duty : It is important to have a written contract defining the scope of treatment and to maintain the professional relationship at all times. 2. Failure to adhere to a standard of care : The social worker must meet the average standard of care, and it is important to know the average standard of care in the social worker’s jurisdiction, as well as the standard of care for social workers in general. 3. Breach of duty : A deviation in the standard of practice can occur when a social worker fails to do something or does something wrong. 4. Damages : Such damages as lost wages, wrongful death, and medical costs must be measurable and proven in court. 5. Proximate cause : A breach of duty that directly causes measurable harm and damages is the proximate cause. It is important to bear in mind that the legal aspects of any ethical case should be examined but cannot be the sole consideration in the decision- making process. Providers need to know the law in their jurisdictions, strive to obey it, and always consider it. What is ethical is usually also legal but the converse may not always be true (Ozar & Sokol, 2002). Breaches of the law may constitute unethical behavior, but not necessarily in every situation. As the law and ethics intersect in any given case, the decision maker must look for common ground and points of opposition or intersection, then determine a course of action.
Schiavo case, or, more recently, several executive orders issued by state governors concerning the coronavirus pandemic. It is important to remember some of the basic differences between ethics and the law. Laws can change over time, will vary from state to state, and can be significantly influenced by politics and economic interests. Ethical standards, however, transcend all of these considerations. Legal duties are also often ethical duties, but ethical duties may not always be legal obligations. Although individuals may have an ethical obligation to obey the law, the law is often the lower standard even though ethics and the law may draw on the same sources of authority. Ethics generally provides the foundation for laws, as can be seen in the example of informed consent. A patient’s right to personal autonomy is the basis for the healthcare provider’s legal obligation to obtain informed consent from patients before commencing treatment. Another example is the legal mandate to report suspected cases of child abuse and neglect. This law is anchored in the principle of beneficence. Offenses against the law are either civil or criminal (Zarkowski & Roucka, 2015). An offense against a person or group for which some satisfaction is sought, usually in monetary form, is classified as civil. A criminal offense is a wrongful act against society, and criminal law is charged to protect the public as a whole against the harmful acts of others. Most healthcare issues that become legal issues are dealt with as civil offenses. Civil law can be further broken down into two primary categories: contract law and tort law . A contract is an agreement between two or more consenting parties to perform or not perform a legal act for which there is sufficient consideration. (“Consideration” is a vital element in contract law; it is the benefit or value bargained for between the parties.) A “breach of contract” occurs if either party fails to comply with the terms of the agreement. Contracts can be expressed orally or in writing or implied by signs, inaction, or silence. Examples of professional contractual responsibilities include: ● Being properly licensed and registered. ● Exercising reasonable skill and judgment in providing care. ● Referring when appropriate. ● Respecting clients’ confidentiality. ● Practicing within the standard of care. A tort is defined as an interference with another’s right to enjoy his or her person, privacy, or property (Zarkowski & Roucka, 2015). Torts can be intentional or unintentional . Intentional torts involve an element of intent to cause harm and include such offenses as: ● Assault (threat of bodily harm). ● Battery (unauthorized touching). ● False imprisonment (unlawful restraint). ● Mental distress (purposeful cause of anguish). ● Defamation (damage to a person’s reputation). ● Interference with property (damage to a person’s property).
SOCIAL WORKERS IN THE COURTS
Barsky (2012) believes that many social workers who do not have regular contact with the courts in their practice are poorly prepared for court should they be called to testify on behalf of a client or for themselves. He offers the following
suggestions from his book, Clinicians in Court (2012) for preparing throughout the practice of social work to manage future risks:
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Book Code: SWTX1525
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