Ethical Issues in Domestic Violence
By Christine Heer, Esq, LCSW, DVS
Social Work Today
Vol. 6 No. 6 P. 42

Sharpen your knowledge of social work practice in domestic violence cases with this primer from a domestic violence specialist, attorney, and social worker.

Social workers who work with families experiencing domestic violence take on a significant responsibility to act ethically and within or above the expected standards of practice. Ethical issues of confidentiality, competence, self-determination, and cultural competence are frequent challenges with which social workers must be aware and must master with each client.

Confidentiality
Section 1.07 of the National Association of Social Workers (NASW) Code of Ethics addresses confidentiality and privacy. It is the longest section in the code with 18 subsections. The code requires that social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client. Section 1.07 (b) Subsection (c) permits disclosure when “necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.”

The confidentiality of communications between the social worker and a victim of domestic violence may be a safety issue. Inherent in families where physical, sexual, and/or emotional/verbal abuse is present is risk of harm. According to the Bureau of Justice Statistics, 30% of female murder victims are killed by intimate partners, and 53% of those intimate partners are spouses. In a special report “Crime in the United States” from January 2005, the Federal Bureau of Investigation found that simple assault and aggravated assault were the two offenses most reported to police in spousal abuse matters. One half of the female victims in the Justice Statistics report disclosed physical injury as a result of domestic violence and 40% required medical treatment.

A victim of domestic violence who has left the abuser or is seeking counseling which may lead to the victim leaving the abuser is at an even higher risk of harm. Social workers must understand that even the fact that a victim is telling an outsider the “family secrets” poses a risk. Any threat to the abuser’s control, especially the threat of the victim leaving the abuser, can escalate the abuser’s violence. Thus, even the fact that the victim is seeking help should be kept confidential.

Sometimes a court or a governmental agency such as child protective services demands that the social worker release confidential information. Subsection 1.07(d) states that social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent, and subsections (e) and (g) advise that the social worker should have a discussion with every client about the limitations of confidentiality early in the relationship.

While the discussion may prepare the client for the possibility of a request for disclosure (and may, unfortunately in some cases, hinder free disclosure) it does not foreclose the dilemma of what to do when the demand is made. Subsection (j) of the code states that the social worker “should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.” The code identifies that information may be classified as confidential and privileged. Confidentiality refers to information that is not intended or authorized to be disclosed to a third party. Privilege refers to an evidence rule that a person cannot be compelled to present evidence in a court or administrative proceeding.

In the landmark case of Jaffee v. Redmond, the United States Supreme Court established a federal psychotherapist-patient privilege for social workers and their clients. The court held that “we have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy. The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker. Today, social workers provide a significant amount of mental health treatment.”

While Jaffee addresses the privilege in the federal courts, many states have their own laws that extend a testimonial privilege to social workers. The statutes may vary as to the extent of the privilege. Many statutes will allow the court to order an on-camera review or review by the judge in chambers. Some statutes will survive the death of the client and others may not. This may be an issue for social workers.

For example, if the domestic violence client is killed by or survived by the abuser, the abuser may still be appointed as the executor or personal representative of the victim’s estate with decision-making authority about the victim’s records. The victim’s interests may be best served by the court appointment of a guardian ad litem to make those decisions on behalf of the victim before the social worker releases the information.

Even where the statute provides a strong privilege, other exceptions may apply, most notably the best interests of children. Child protective agencies investigating abuse and neglect often have the statutory authority to supersede confidentiality and privilege. In disputed child custody matters, the court may waive all privileges regarding information relevant to the children’s best interests. In New Jersey, authority is granted by case law.

If a request is received for confidential information, the social worker should always assert the privilege. If subpoena or court order demands records (subpoena duces tecum) or testimony (subpoena ad testificandum), the social worker should consult counsel immediately. Neither a subpoena nor a court order should be ignored. An ignored subpoena will lead to an order to compel compliance and an ignored court order may result in contempt of court.

When a subpoena is served, note the following:

• Only the identified person or custodian of the records should accept a subpoena. If any information is wrong, the staff member should refuse the subpoena. Do not correct the error.

• Do not answer any questions or volunteer any information to a process server or lawyer.

• Read the subpoena thoroughly, noting the date for response, the action required, and the attorney who issued it.

• Call your attorney immediately. (If the attorney will be unavailable for an extended period of time, request a continuance.)

• Contact the client involved and provide his or her attorney with copies of the subpoena.

• If you have received a subpoena duces tecum and there are no records, you may advise the issuing attorney that you cannot comply for this reason.

Counsel may send a letter to the proponent of the subpoena asserting the privilege and requesting the withdrawal. Counsel may also ask for a conference with the court and the proponent regarding the privilege. Counsel for the client or the social worker may have to file a motion to quash the subpoena or a motion for dismissal or modification of the order due to the privilege. Counsel may also argue that is there no legitimate need for the evidence or that the information sought is irrelevant and immaterial to the issue before the court, or that the information sought can be secured from another less intrusive source.

If the social worker must disclose confidential communications, 1.07(c) requires that “in all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.” The social worker should discuss with counsel what is relevant and how to assert those limitations.

Duty to Warn
Another dilemma occurs when the social worker is called on to warn or protect. The duty to warn originated in the landmark California case of Tarasoff v. Regents of the University of California. Tatiana Tarasoff was murdered by her boyfriend, Prosenjit Poddar. Tarasoff’s parent brought suit against Lawrence Moore who worked for the hospital at the University of California, Berkeley. The university police and Moore’s supervisor were also named in the suit. The Supreme Court of California “ruled that a psychotherapist who has reason to believe that a patient poses a hazard to a foreseeable victim owes a duty of care to protect that victim.” As a result, the court identified a two-step process for psychotherapists to avoid liability:

1. They must exercise a reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession.

2. Having exercised such a reasonable degree of skill, a therapist who finds that a patient poses a serious danger of violence to others bears a duty to exercise reasonable care to protect the foreseeable victim of such danger.

a) Reasonable care to forecast danger: McNeill recommends routine inquiries about clients’ propensities toward violence to show a reasonable degree of care. If a client shows a tendency toward violence, the therapist should maintain regular contact with the client and continually assess for the possibility of a violent episode. Some indicators include the following:

• whether the client has a plan as opposed to fantasies;

• whether the client has the present ability to carry out that plan;

• whether the client specifically describes a plan;

• whether there is a targeted or foreseeable victim;

• whether the plan is conditional on another event—ie, “If she leaves me, I will kill her?”;

• whether there are additional psychosocial stressors or traumas occurring; and/or

• whether the person has taken any steps to execute the plan.

Barbara Hart has identified additional factors indicating potential lethality when working with domestic violence:

• threats of homicide or suicide;

• fantasies of homicide or suicide;

• access to weapons;

• belief in ownership of the battered partner;

• centrality of the victim to the batterer’s life;

• history of separation violence;

• depression;

• access to the victim or his or her family;

• prior police involvement;

• escalation of personal risk by batterer without regard for consequences; and

• hostage taking.

Assessments such as these should be ongoing when working with individuals who have been accused of domestic violence. However, the presence of these indicators alone will not trigger a Tarasoff duty. A foreseeable, not necessarily named, victim must be identifiable. In domestic violence, that person is generally the battered partner.

b) Exercising reasonable care to protect: The California Supreme Court held that a therapist had a duty to warn a foreseeable victim or others who could have been expected to warn the potential victim. The court identified this as a duty to exercise reasonable care to protect a foreseeable victim. The defendants in Tarasoff were liable for failing to warn the victim or others likely to apprise her of the danger. However, the defendants were held immune from liability for failing to confine the assailant, due to statutory protection.

Competence
Social workers have a duty of competence under Subsections 1.04. and 4.01. Subsection 1.04 states:

a) Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.

b) Social workers should provide services in substantive areas or use intervention techniques or approaches that are new to them only after engaging in appropriate study, training, consultation, and supervision from people who are competent in those interventions or techniques.

c) When generally recognized standards do not exist with respect to an emerging area of practice, social workers should exercise careful judgment and take responsible steps (including appropriate education, research, training, consultation, and supervision) to ensure the competence of their work and protect clients from harm.

Domestic violence intervention is specialized work and the risks are great if not handled appropriately. At present, there are no national certification or standards. However, some states and organizations have a certification process. The certification procedures generally require a minimum number of hours of classroom and experiential training to ensure that the applicant is well-versed in the current body of knowledge on domestic violence.

Many states have standards for domestic violence shelter programs and batterers’ intervention programs. These standards may address the accepted modalities for intervention, the minimum number of sessions for intervention, and the educational requirements for the provider of such services. Social workers should investigate their state and comply with the standards set forth. The social work degree or license alone does not necessarily make one competent to provide such complicated services. In fact, sometimes generally understood social work practices may be contraindicated in domestic violence matters and the unwary practitioner may mistakenly place victims in further danger.

For example, couples and family work are common interventions which should rarely be used in domestic violence matters, and then only by the most experienced practitioners due to the potential for backlash against the victim. Individual counseling, on the other hand, is not the most effective intervention for working with batterers.

The preceding discussion was for informational purposes only and should not be perceived as legal advice. Social workers are encouraged to review the Code of Ethics regularly and to seek legal advice as soon as an issue arises. Social workers have played a major role in the provision of domestic violence services and will no doubt continue to do so in the future.

— Christine Heer, Esq, LCSW, DVS, is a partner with the law firm of Heer & Lyons LLP in Somerville, NJ. She also maintains a clinical social work practice with Bunker Hill Consultation Center in Princeton, NJ, and has worked in the field of domestic violence for more than 20 years.

Forensic Social Work
Although social workers have a great deal to offer the courts in terms of forensic work, the social worker should proceed carefully in all cases, not just domestic violence. The social worker may be asked to testify as either a fact witness or an expert. As a fact witness, the social worker can only testify to facts about which he or she has personal knowledge. What a client discusses in sessions are not facts and will usually be deemed hearsay except in particular circumstances. The social worker should never testify to conclusions made about a person the social worker has not evaluated in sessions.

The social worker that testifies as an expert must show such expertise based on his or her training, certifications, practice experience, publications, etc. The court will conduct a voir dire or questioning process to determine expertise. Courts often rely on such expertise to make crucial decisions about risk of future violence, custody, parenting time, and emotional damages caused by violent behavior. Social workers should be cautioned never to misrepresent their expertise. The social worker must also be cautioned that a treating therapist cannot be an expert witness and an expert witness cannot become the treating therapist. Such dual roles would be a conflict of interest under 1.06 (a), (c) and (d) and 5.02(o).

— CH