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.
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: ● Be sure all notes are “court ready,” meaning they are complete, dated, accurate, organized, and contain facts, not opinions. ● Be sure to follow ethical guidelines for confidentiality and know the limits of confidentiality and privilege. Many social workers are practicing in a field that is protected with not just confidentiality, but privilege. “Privilege” is a concept that says the social worker cannot be compelled or required to go to court unless the client consents to his or her appearance in court. In many states, a licensed clinician cannot be required to testify unless the client gives permission. ● In some fields of practice, social workers are more likely to be called into court; it might be part of the work that they are doing. As a child protection worker, for example, the social worker needs to be aware that if an amicable agreement with clients is not possible, he or she might have to defend the case and his or her position in court. Or, when working in an area such as family law, there may be a lot of tension and anger between spouses during separation and divorce. Again, the social worker might be more likely to end up in court. ● Child custody evaluations may be required in an area of practice such as forensic social work. If the social worker interacts with attorneys on litigation cases, he or she should receive specialized training in certain areas and fields of practice in order to be more persuasive and credible when giving testimony in court. ● In a forensic role, the duty is to the legal system. Many social workers do not realize that when they have an obligation to the legal system, their role may be more complex. In a custody evaluation, for example, the therapist cannot provide therapy or counseling to the parents who are going through separation or divorce. And as a social worker, he or she is trained to put the well-being of the client first. This situation may result in tension for the therapist and for the client. The social worker’s role as a witness is to help the court, meaning the judge or the jury. ● Social workers need to know the correct way to respond to a subpoena. If a social worker is unsure of how to proceed, he or she should contact a personal attorney or agency attorney for help. There are a number of different types of subpoenas. Some subpoenas are actually a court order compelling an appearance in court with legal consequences. In other cases, a subpoena is a request to appear and is initiated by
an attorney for one party or the other; it may not be a valid subpoena and may be challenged. ● Social workers must remember that the client owns confidentiality and privilege and that when a social worker receives a subpoena he or she must let the client know. If the client gives consent to appear in court, then ordinarily the social worker should appear in court on the client’s behalf; this honors the client’s right to self-determination. ● If the social worker receives a subpoena from a lawyer that is not a court order, after the client gives permission, the lawyer might then contact the person requesting the subpoena. A conversation may be necessary to explain that a court appearance may not be the best option; the information that the social worker has may be second-hand and may not be as strong – or as useful to the court – as the attorney might think. ● If the client has given authority and consent for the social worker to release his or her records, the client may not fully understand that the entirety of his or her records may be released – not just the portions that the client feels are favorable to his or her case. When a client knows he or she cannot control which information or testimony will be given, the client may reconsider. ● Another possibility is to request a motion to quash, a motion to cancel, or a motion to veto the subpoena. This motion would usually be requested by the client, if the client has the means and the attorney to pursue the motion. A social worker might need to help the client locate a resource for information or funding for legal assistance. The agency (and sometimes even the professional association) may have an interest in advocacy for a certain case, so they may file the motion. ● If called to testify, it is important for the social worker to prepare for one of two types of examination: In a direct examination, the social worker is called as a witness for the case. This will include general open-ended questions from the attorney’s perspective, geared toward the outcome that the attorney prefers (and most likely the one the social worker and client prefer). The lawyer will ask questions – guiding the testimony – because the information or opinions will support his or her case. The next type is the cross- examination. The other attorney will attempt to impugn the credibility, honesty, perception, memory, or accuracy of the witness testimony. He or she will attempt to create doubts in the minds of the judge or the jurors. In both cases, the objective is to be honest and open, as well as credible and persuasive. The cross-examination is more stressful, because the witness is being challenged. The witness may be called to explain any inconsistencies in written or spoken information.
EliteLearning.com/Social-Work
Book Code: SWUS1524
Page 66
Powered by FlippingBook