Social Work Law
Social Work Law
Social work law is a general term that refers to the legal aspects of social work practice, such as understanding the general relationship between the justice system and social work, having a working knowledge of the laws and regulatory agencies that affect one's particular area of social work, and being prepared to serve as a witness in courtroom cases.
Since many social workers are employed by state or local government agencies, they need to know the extent of their powers and duties. In addition, the rapid rise in malpractice suits against social workers since the 1980s means that social workers need to inform themselves about their legal risks. Furthermore, social workers are subject to several sets of regulations or codes of ethics that may conflict at various points with civil or criminal law in their specific jurisdiction. These other sets of standards may include:
- professional licensing and disciplinary requirements
- codes of ethics such as the code revised by the National Association of Social Workers (NASW) in 1999
- regulations and policies established by the agency that employs the social worker
- local cultural or community standards of care
- the social worker's own sense of professionalism
The term "social work law" is also applied to the legal standards governing the training and certification of social workers. In the United Kingdom, for example, the title of "social worker" was defined by law in April 2005. It can be used only by persons who have met certain educational requirements and are registered either with the General Social Care Council (in England) or with its counterparts in Scotland, Wales, or Northern Ireland.
In the United States, the legal regulation of social work (like medicine, dentistry, and other healthcare professions) is delegated by the Constitution to the individual states. In most states, the legislature establishes a board of social work and gives it the necessary powers to define the practice of social work, determine the necessary qualifications, and license practitioners. In a few states, a department overseeing various advisory boards administers the practice act and other relevant law. Even a brief reading of the definitions of social work obtained from the 50 states and 10 Canadian provinces by the Association of Social Work Boards (ASWB), however, indicates considerable variety in length, specificity, and areas of emphasis. In addition, the increasing division of social work into such specialties as psychotherapy and counseling, family crisis intervention, issues related to aging, employee assistance programs, policy planning and research, advocacy and community organizing, school and educational programs, refugee assistance, and many others, complicates any discussion of social work law.
Social work has been involved with the legal system of the United States for almost a century and a half. Unlike medicine, however, social work is a relatively new profession; it was not recognized as a separate vocation until the early twentieth century. Social work began around the time of the Civil War as a form of urban missionary outreach by the mainline Protestant churches. As the large cities of the United States grew at the expense of rural areas, and as millions of new immigrants from Europe and Asia entered the country, there was a great need for practical assistance in helping these new Americans find work, educate their children, and obtain satisfactory housing. Much of this early relief work was done by volunteers. The Sanitation Commission and the Freedmen's Bureau, government bodies that were established during the Civil War to provide public health measures and assist former slaves, were also precursors of modern social work. In addition, the 1860s saw the establishment of the first state-run institutions for orphans, the poor, and the mentally ill.
By the 1890s, it was obvious that the various forms of relief and social welfare work needed to be carried out on a systematic and "scientific" basis. Volunteer "friendly visitors," as they had been called, were gradually replaced by salaried case workers who saw themselves as detached and objective professionals. The term "social worker" itself was first used in the 1890s. The early professional social workers—most of whom were college-educated women who had few other opportunities to use their degrees—attended training programs to improve their casework skills. By 1900 social work began to expand into the fields of child welfare and the juvenile justice system. Social workers also were involved with the legal system through their involvement with local politics in order to improve the lives of their clients. These experiences convinced many that it was as important to change the structures of society as to help individuals.
After World War I (1914–1918), social workers began to specialize, creating such new fields as medical social work, psychiatric social work, and school social work. Psychiatry in particular became a large area of specialization; as of 2005 there are more social workers licensed as mental healthcare providers in the United States than psychiatrists, psychologists, and psychiatric nurses combined; and 40% of social workers presently list mental healthcare as their primary field of practice. The first professional organizations of social workers were formed during this period; the National Conference of Social Workers came into being in 1917. Colleges and universities began offering courses to prepare students as social workers; the first graduate school of social work was founded at the University of Chicago in 1920.
The Great Depression of the 1930s and the New Deal finally brought social work into the sphere of public policy. The first woman Cabinet member, Frances Perkins, had been a social worker before she became Secretary of Labor in 1933. As the scope of government involvement with health, education, and social issues continued to expand after World War II, social workers participated in public policy research as well as working with the criminal justice system through youth services, child protection services, domestic violence and substance abuse programs, and programs for prison inmates. In 1955, seven professional social work groups merged to form the National Association of Social Workers (NASW), which presently provides continuing education and credentialing for 150,000 social workers in the United States. The association states that it "is proud to be actively involved in state and national legislation." It also informs members on a regular basis of legal changes or decisions that may affect their work.
For most of the history of social work as a profession, lawsuits against social workers were uncommon. The number has risen sharply since the mid-1980s for several reasons:
- Social work has become more specialized. This trend means that clients expect higher standards of education, general competence, and specific skills from social workers.
- State legislatures and courts are abolishing the immunity from liability that formerly protected social workers in public agencies. In addition, courts and legislatures are continually revising and expanding such concepts as "protect and warn," which extends the range of duties that a social worker is required to fulfill. The Tarasoff case of 1976 was a particularly important ruling because it established warning potential victims of a client's intent to harm them, as a social worker's legal duty.
- Clients are more knowledgeable now than in the past about ways to pursue malpractice litigation or file ethics complaints against a social worker. Many people are aware, for example, that they can contact the state licensure board or professional organizations such as the NASW as well as file civil or criminal charges against a social worker.
- More and more social workers are employed on a fee-for-service basis. This change has detracted from the ideal of "pure service" that tended to discourage lawsuits against social workers in the past.
- Shrinking resources and cost-containment measures often result in premature termination of a social worker's services, which may lead to resentment on the client's part and a lawsuit for damages.
- Social work has a much higher profile as a profession in the early 2000s than it did even in the recent past. Greater visibility and higher status lead to increased demands for accountability.
Social workers in certain settings are at increased risk for lawsuits. These higher-risk types of practice include group practices, managed care settings, and child protection services. In group practices, all the members of the group may be held liable for the actions of one member. Managed care contexts are high-risk because cost-containment guidelines and the reimbursement system may put pressure on a social worker to terminate services to a client, who may then sue if he or she thinks their best interests have not been served. Lastly, child welfare settings carry special risks for liability, ranging from charges of inadequate investigation or wrongful removal of a child to overly intrusive investigation and returning a child to dangerous parents. Social workers who specialize in child welfare work frequently find themselves in "no-win" situations, caught between agency rules and regulations, the child's best interests, and the parents' wishes or demands.
There are several different classes of professional liability for social workers in the United States:
- Malpractice or negligence. Malpractice in law refers to "any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practices, or immoral or illegal conduct." Negligence refers to carelessness or failure to take reasonable and prudent measures to ensure that others are not harmed by one's actions. It may include performing an action incorrectly (commission) as well as failing to take appropriate action (omission). Malpractice and negligence are classified as torts, which are civil cases involving wrongful acts that result in harm to another person or to property. Tort law covers intentional as well as unintentional acts. It is decided by common (court) law rather than statutory law; that is, a civil court rather than the legislature determines whether a wrongful act involves tort liability. Most malpractice actions against social workers involve negligence or failure to meet professional standards of care. According to the NASW, between 1969 and 1995, 53% of all malpractice suits against social workers were filed for incorrect treatment, sexual misconduct, breach of privacy, or a client's attempted suicide.
- Other civil violations. This category includes legal actions related to civil rights violations, violations of privacy, breaches of confidentiality, improper supervision, and breaches of contract. Improper supervision covers cases in which a field placement supervisor allows an intern or trainee to offer counseling to clients or perform other services above the trainee's level of competence and licensing. An example of a breach-of-contract case is a lawsuit brought by an insurance company against a social worker who had agreed to require co-payment from a client and then failed to bill the client.
- Criminal liability. In some states, sexual misconduct is a criminal rather than a civil offense; others allow criminal charges to be filed as well as a malpractice suit. Criminal cases differ from civil suits in two important respects. The first is that a higher standard of proof is required in criminal cases. In a malpractice or other civil suit, the case is decided on the basis of "preponderance of the evidence," which means that the evidence presented by one party in the case is considered more believable than that that produced by the other. In criminal cases, however, the defendant's guilt must be shown "beyond a reasonable doubt," which is a much more stringent criterion. The second major difference is that professional liability insurance cannot be used to cover the costs of defending oneself against a criminal charge.
- Infractions of professional licensing standards or regulations. These regulations may include title protection laws, which cover the use of such professional titles as "certified social worker" or "clinical social worker," practice regulation acts, which define the boundaries of a profession's services and activities, and registration laws, which define who is entitled to practice in each state. In the United States, a license to practice social work in one state is not transferable to another unless the two states in question have a reciprocity agreement to recognize each other's licensure procedures. In most cases, the social worker must apply for a new license if he or she moves to another state. The ASWB maintains a social work registry to facilitate the transfer of licensure documentation when a social worker moves. The ASWB also maintains a database of social workers who have been disciplined, known as the Disciplinary Action Reporting System or DARS. As of the early 2000s, 42 of the 50 states send reports of disciplinary actions to DARS.
- Ethical violations. Ethical violations refer to breaking rules that reflect the values or goals of the profession. In the case of social work, these values include such ideals as respect for all persons, service to others, concern for social justice, maintaining high standards of competence, and the like. In most cases, state regulations simply incorporate the profession's recognized code of ethics and there are no conflicts between state law and professional standards. In instances of an actual or potential ethical dilemma, however, the social worker is advised to seek the advice of an attorney. Common examples of such ethical dilemmas include giving a client access to his or her clinical records, deciding whether to terminate or retain a client who is noncompliant or defaults on paying fees, or withholding potentially damaging information from some members of a family at the request of others.
Reducing the risk of litigation
Social workers in the early 2000s can lower the risk of a lawsuit by taking the following precautions:
- Maintain a high level of professional competence.
- Document all professional decisions and interventions clearly and completely.
- Obtain personal professional liability coverage rather than assuming that one will be covered by an employer's insurance.
- Become familiar with state and local licensing regulations.
- Find an attorney who is knowledgeable about malpractice, professional regulation, mental health law, and social welfare law, and have an initial consultation with him or her.
- Reread the NASW code of ethics periodically and abide by its recommendations.
Another aspect of risk reduction is dealing effectively with personal stress and avoiding substance abuse. According to several groups of researchers, marital or emotional stress is the most common cause of professional impairment among social workers. Social workers, however, also have a higher-than-average rate of alcohol and drug (AOD) problems compared to the general population. One study of 751 social workers, all of whom were members of NASW, reported that 21% had used illegal drugs since becoming social workers, 28% had had episodes of binge drinking in the previous year, 34% reported at least one incident in their practice that had occurred when they were impaired by substance use, and 39% reported that they had worked when they were too upset to carry out their duties effectively. All of these are risk factors for making an error of judgment that may lead to a civil or criminal lawsuit.
Education and training
In the present legal climate, it is critical for social workers to understand the areas of social work practice regulated by their specific jurisdiction. Most states regulate four areas of practice based on academic degrees with or without additional qualifications. They are: bachelor's degree in social work (BSW) upon graduation; master's degree in social work (MSW) upon graduation; MSW plus two years of postgraduate supervised experience; and MSW with two years of postgraduate direct clinical work experience. Some states, however, regulate only one or two of these areas. Only a few states license social workers with an associate's degree. The ASWB offers five competency examinations for different categories of state licensure: Associate, Bachelors, Masters, Advanced Generalist, and Clinical. The NASW has a Credentialing Center that certifies eligible candidates as Qualified Clinical Social Workers (QCSW; for entry-level clinicians) or as Diplomates in Clinical Social Work (DCSW; for private practitioners and advanced clinicians).
Advanced education and training
A growing number of social workers in the United States and Canada are earning advanced degrees in social work itself or in a closely related field. The United States Department of Labor noted in early 2005 that "while a bachelor's degree [in social work] is the minimum requirement, a master's degree … has become the standard for many positions."
In addition to credentialing clinical social workers, the NASW offers two specialty certifications for holders of the BSW and five for holders of the MSW. Social workers with a bachelor's degree may be certified as a Children, Youth, and Family Social Worker (C-CYFSW) or a Social Work Case Manager (C-SWCM). Those with an MSW may be certified as a School Social Work Specialist (C-SSWS), an Advanced Social Case Work Manager (C-ASWCM), a Clinical Alcohol, Tobacco, and Other Drugs Social Worker (C-CATODSW), a Social Worker in Healthcare (C-SWHC), or an Advanced Children, Youth, and Family Social Worker (C-ACYFSW).
Forensic social work
Some social workers choose to specialize in working with civil courts or the criminal justice system. Forensic social work developed within the profession around the turn of the twentieth century when the National Conference of Charities and Corrections (NCCC; one of the groups that preceded the NASW) was formed. As of 2005, forensic social work has become a credentialed specialty for social workers who meet regularly with judges, lawyers, corrections officers, and other personnel in the legal system. The National Organization of Forensic Social Work (NOFSW) defines the specialty as follows: "[Forensic social work] includes social work practice which in any way is related to legal issues and litigation, both criminal and civil. Child custody issues involving separation, divorce, neglect, termination of parental rights; the implications of child and spouse abuse; juvenile and adult justice services; corrections and mandated treatment; all fall under this definition." The organization provides professional certification at the diplomate level for members who meet its standards.
The emergence of forensic social work as a specialty, together with the expansion of interest in programs for social change and other fields requiring knowledge of the law, has led to the creation of joint degree programs in social work and law at a number of universities. Most of these programs allow a student to earn both a JD (Juris Doctor; the professional degree in law) and a master's degree in social work at the end of four years of courses. From the side of the legal profession, most law schools in the United States now offer students the option of working for a semester or longer in various public interest and pro bono (free of charge) programs that overlap with social work, such as clinics in tenants' rights, domestic violence, health law, and family law.
In spite of increasing concern about vulnerability to litigation, social work is an expanding field as of the early 2000s. The demand for social workers in hospitals is slowing because of limits on the length of patient stays. However, the aging of the baby boomer generation will generate an increased need for social workers trained in gerontology. Another area of increasing need is social work with substance abusers, as the legal system is placing more persons in treatment programs than in prison. Still another area of growth is social work in rural areas, which are often underserved in comparison to cities.
Civil law— The branch of law that deals with matters between two individuals or between an individual and the government that do not concern criminal acts.
Common law— The system of law that originated in England between 1300 and 1500 and is based on custom or court decisions rather than laws enacted by a ruler or legislature. Common law is also known as case law.
Forensic— Referring to legal or courtroom matters.
Liability— The state or condition of being legally responsible for an act or event.
Negligence— Failure to perform one's professional duties according to an accepted standard of care.
Pro bono— Performed or donated without charge. The Latin phrase literally means "for the good."
Statutory law— Written law enacted by a legislature, as distinguished from unwritten law or common law.
Tarasoff case— A 1976 case in which the Supreme Court of California ruled that therapists or counselors have an "affirmative duty" to directly warn a potential victim of harm intended by the therapist's client; notifying the police is not considered sufficient to fulfill this duty. Tatiana Tarasoff was a university student who had been stalked and eventually killed by another student who was upset because she had rejected him.
Tort— A wrongful act against another person or property that results in harm. Torts are considered civil cases and are settled by common law (court decisions) rather than by statutory law.
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