Eye on Ethics

Managing Risk: The Third Rail in Social Work Ethics
By Frederic G. Reamer, PhD
December 2015

In electrical rail systems, the third rail carries very high voltage, so touching it is extremely dangerous. In social work ethics, I think of the third rail as those high-risk circumstances that greatly increase the likelihood of harm—to clients, third parties, and, possibly, social workers. These are the cases for which there are no simple answers, and there is some nontrivial risk no matter what course of action a social worker takes.
         
In one especially difficult case on which I consulted, a social worker employed in a domestic violence shelter assisted a woman who arrived with her two young children. The mother reported that three weeks earlier she moved out of state to get away from her abusive husband: "He's abused me for years and I couldn't take it anymore. When I told him I filed for divorce, he completely lost it and threatened me bad. He's a drinker, which doesn't help. Anyway, now he's filed for sole custody of the kids; he thinks I'm unfit to parent. Two weeks ago I packed up the kids in the middle of the night and went to my best friend's apartment. Three nights ago there was a fire in the apartment and everyone had to leave. I have nowhere else to go, which is why I'm here. I'm really afraid he's going to find me."
         
Several days later the mother told the social worker that she feared the police would come looking for her. "I think I have a problem," the client said. "Shortly before I left with the kids I was served with a court order prohibiting me from leaving the state with the children before the custody dispute was settled. I was so panicked I just had to get out of there; at the time the court order didn't matter to me."
         
The social worker who called me knew that she faced a daunting ethical dilemma. On one hand, she had a duty to protect her client's privacy and confidentiality—a core social work tenet. On the other hand, the social worker was privy to the fact that her client was actively violating an existing court order and, technically, had kidnapped her children and crossed state lines with them.

This challenging case exemplifies an ethical dilemma that features a third rail. That is, there is very real risk involved no matter what course of action the social worker takes. Of course, the social worker's initial instinct should be to work with the client clinically to address her legal predicament and minimize any potential penalties for defying the court order and leaving the state with her children without the court's permission. But if the client doesn't "come clean" on her own, the social worker must make a difficult ethical decision. If the social worker protects her client's privacy and confidentiality, she knowingly protects a fugitive who, in a strict legal sense, has kidnapped her children in defiance of a court order. A child protection agency might conclude that the mother's actions constitute parental neglect, which would mean the social worker is mandated to report the mother's actions. On the other hand, if the social worker discloses confidential information about the mother's actions without her consent, the client is likely to feel betrayed and may flee from the shelter and avoid seeking professional help.

In short, the social worker felt as if she was between the proverbial rock and hard place. Practically speaking, if the social worker discloses confidential information about the mother without her consent, the practitioner may expose herself to the risk, however small, of litigation or a licensing board complaint filed by the client, who alleges that the social worker failed to adhere to her ethical duty to protect the client's privacy and confidentiality. However, if the social worker does not disclose this information, she may be accused by law enforcement officials of harboring a fugitive and, as well, exposes herself to the risk of a complaint filed by the child protective service agency, on the grounds that the social worker failed to comply with the mandatory reporting law. Further, the father of the children may take legal action against the social worker, claiming that the social worker harmed him by failing to disclose the whereabouts of his children.

Risk Management
When social workers encounter ethical dilemmas, their first priority should be "doing the right thing." That is, social workers' principal aim should be to act in accord with the profession's time-honored values and ethical principles related to, e.g., client privacy, confidentiality, self-determination, informed consent, and compliance with the law. But as we know, at times these core duties conflict. In addition to aiming to do the right thing, it is reasonable for social workers to try to prevent lawsuits, ethics complaints, and criminal charges.

Risk management is a broad term that refers to efforts to protect clients, practitioners, and employers. The most common risks facing social workers are lawsuits and licensing board complaints; fortunately, relatively few social workers are named in them. Lawsuits allege professional malpractice; licensing board complaints allege violation of standards of practice set forth in licensing laws and regulations. Lawsuits can result in monetary judgments against social workers; licensing board complaints can result in fines, revocation or suspension of a professional license, probation, mandated supervision and continuing education, reprimand, or censure.

Professional malpractice is generally considered a form of negligence. The concept applies to professionals who are required to perform in a manner consistent with the legal concept of the standard of care in the profession, that is, the way a similarly situated, reasonable, and prudent professional would act under the same or similar circumstances. Malpractice in social work usually is the result of a practitioner's active violation of a client's rights (in legal terms, acts of commission, misfeasance, or malfeasance) or a practitioner's failure to perform certain duties (acts of omission or nonfeasance).

Some malpractice and liability claims result from genuine mistakes or inadvertent oversight on the part of social workers (e.g., a social worker sends an e-mail message containing confidential information to the wrong recipient, or a passenger in an elevator overhears a social worker talking with a colleague about confidential aspects of a case); others ensue from a deliberate decision (e.g., a social worker decides to divulge confidential information about a client in order to protect her children from harm). A social worker's unethical behavior or misconduct (e.g., sexual contact with a client or embezzling a client's money) can also triggers claims.

Every principled social worker wants to act ethically and prevent harm. Sadly, in some complex situations it is hard for social workers to prevent all harm. To avoid the third rail, social workers who encounter difficult ethical choices can minimize harm by adhering to the profession's ethical standards, obtaining consultation and supervision, consulting relevant literature, obtaining legal advice when necessary, and documenting each and every step. Sometimes, recognizing that in truly difficult cases reasonable minds may differ with respect to the best course of action, this is the very best we can do.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He's the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.