Professional Ethics and Law in California, 2nd Edition _ ____________________________________________
2. Statutory Law: This includes laws enacted by federal, state, and local legislative bodies and covers such issues as confidentiality of records and obligations around suspected child or elder abuse. 3. Regulatory Law: These are legally enforced guidelines disseminated by government agencies such as the Department of Health and Human Services and Department of Justice. 4. Court-Made Law and Common Law: These result from court rulings, for example a recent court ruling in one state that prohibits child welfare workers from using office space for temporary sleeping accommoda- tions for children removed from their homes. 5. Executive Orders: Chief governmental executives, such as mayors or governors, may issue orders that resemble regulations—examples being the State of Florida’s governor Jeb Bush prohibiting a husband from terminating life support measures in the Terri 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 obliga- tions. 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 (Zar- kowski & 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 sKtandard 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) • 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 provider (defamation) Unintentional torts include negligence (failure to act appro- priately) 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. UNPROFESSIONAL CONDUCT The California Board of Behavioral Sciences has stated statutes for all licenses and what consists of unprofessional conduct. Under Section 1881, Unprofessional Conduct, of the California Business and Professions Code, unprofessional conduct in a licensed clinical social worker is characterized as:
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