September/October 2015 Issue
Ethical Misconduct and Negligence in Social Work
Although infrequent, social workers' misconduct and negligence can lead to lawsuits, licensing board complaints, and other disciplinary action.
Belinda was a clinical social worker in a prominent mental health center that serves adults, adolescents, and children. She was the clinical director of the center's alternative school, which serves adolescents with behavioral health challenges who have difficulty functioning in traditional schools. The program's staffers provide teens with counseling services as an adjunct to their classroom activities.
Belinda, who is married and the mother of two young children, is currently on a leave of absence from her position due to "personal issues." Next week, she is scheduled to appear with her attorney before her state's social work licensing board to respond to allegations that she became sexually involved with a 17-year-old client enrolled in the mental health center's school.
According to the complaint, which was filed by the teen's parents, Belinda developed an intimate relationship with her client. The relationship began with an exchange of suggestive and provocative text messages and evolved into caressing and a series of sexual encounters that took place in Belinda's home. Through her attorney, Belinda admitted to the inappropriate relationship and volunteered to surrender her social work license. She hopes to negotiate a formal agreement with the licensing board that will allow her to seek reinstatement once she completes an extended period of therapy and ethics consultation.
Belinda also faces another challenge: The parents of her former client have named Belinda and her agency in a lawsuit that alleges that she engaged in malpractice and that both she and her agency are responsible for the harm her unethical conduct caused. The detailed lawsuit claims that Belinda's former client has endured serious emotional injury that has interfered with his ability to finish high school and pursue gainful employment.
This case is not hypothetical. It describes the life and career rupture of an actual social worker who, it turns out, was struggling with both clinical depression and a failing marriage. The case exemplifies what social workers rarely discuss: the reality that some practitioners—a small but noteworthy minority—are named in ethics complaints and lawsuits. Often, at the time of their misconduct these social workers were struggling with significant issues of professional impairment.
Sadly, Belinda is not alone among the ranks of social workers, including the following, who are named in ethics complaints, lawsuits, and, occasionally, criminal court indictments:
• A social worker in private practice lost her license as a result of evidence that she developed a personal relationship with a client involving travel with the client, extensive gift exchange, visits to each other's homes, and camping trips.
• A social worker who was employed at a mental health center was sued by the parents of a former client who committed suicide. The lawsuit alleged that the social worker failed to take reasonable steps consistent with standards in the field to prevent the suicide.
• A social worker was sued by two former clients who alleged that the social worker provided them with massages, during which the clients were draped only with a sheet, in conjunction with counseling services.
• A social worker who provided services to clients diagnosed with traumatic brain injury was sentenced to seven years in prison after he engaged in sexual relationships with three clients.
Ethical Risks in Social Work
But the sad reality is that a number of social workers find themselves on the receiving end of complaints and lawsuits. Just scan the websites sponsored by social work licensing boards, which publicize cases in which licensed (or formerly licensed) social workers have been disciplined through suspension or revocation of their license, placement on probation, or reprimands. Many such lists are long, although these practitioners constitute a small fraction of licensed social workers.
Unfortunately, Daniel was not familiar with the standard in the NASW Code of Ethics (1.07[j]), which instructs social workers to not release such records unless he or she has obtained the client's consent or has been issued a court order. Further, the code requires social workers to challenge the subpoena unless they have either client consent or a court order.
The records that Daniel released to the mother's lawyer were used against the father in the custody dispute. Shortly after the custody case was resolved, the father filed a lawsuit against Daniel, along with a licensing board complaint and an NASW ethics complaint.
During these formal proceedings, it became clear that Daniel graduated from social work school before the current NASW Code of Ethics was adopted. Daniel hadn't reviewed the current code carefully, nor did he seek consultation about how to respond to the subpoena. He acknowledged that he made a mistake when he released the record and was confused about the difference between a subpoena and a court order.
Other examples of mistakes social workers make that sometimes lead to lawsuits and ethics complaints involve practitioners who are confused about Facebook privacy settings and enable clients to learn a great deal of very personal information about them, leading to harmful boundary confusion; who inadvertently send e-mail messages containing confidential client information to the wrong recipient; who leave confidential information exposed on their desk, which is then read by a custodian who knows the client; and who forget to document consultation information related to a client's suicidal ideation in the client's record.
In other cases, individuals can file complaints against social workers who disagree with their judgments in the face of very difficult ethical dilemmas. In these cases, one often finds differences of opinion among reasonable, thoughtful, and principled social workers about how colleagues managed complex ethical decisions. Examples include instances where social workers use their own judgment sharing personal information with clients for therapeutic purposes, manage complex boundary issues when social workers and clients live in rural and other small communities (for example, military bases), respond to gifts that clients give social workers or invitations clients offer social workers to family events, provide information about clients to police who are investigating a crime in which the client is a suspect, hire a former client to work in the social worker's agency, and terminate services to a noncompliant client who has violated agency rules. In these and many other instances, reasonable minds may differ. A disgruntled party might file an ethics complaint or lawsuit against a social worker.
In addition, some social workers have complaints filed against them alleging that they engaged in serious ethical misconduct. These cases may involve allegations that social workers were sexually involved with clients, obtained money from clients' insurance companies using fraudulent invoices, falsified clients' clinical records as part of a cover-up during an audit, and claimed bogus educational credentials and licenses.
Standards of Proof
As in criminal trials, social workers in civil suits are presumed blameless until proved otherwise. In ordinary civil suits, the standard of proof required to find social workers liable is preponderance of the evidence. This means that the evidence suggests that, more likely than not, the social worker was negligent. Preponderance of the evidence is also used in licensing board cases with regard to violation of licensing standards. This is in contrast to the stricter standard of proof beyond a reasonable doubt used in criminal court proceedings.
Lawsuits brought against social workers typically allege both negligence and malpractice. In general, malpractice occurs when evidence exists of the following:
1. At the time of the alleged malpractice, the social worker had a legal duty to the client.
2. The practitioner was derelict in that duty, either through omission (the failure to perform one's duty) or through commission (an action taken by the practitioner).
3. The client suffered some harm or injury.
4. The social worker's dereliction of duty was the direct and proximate cause of the harm or injury.
In contrast, when making their decisions, licensing boards need not require evidence that social workers' actions (commission) or inactions (omission) caused harm. Rather, licensing boards can sanction social workers based simply on evidence that their conduct violated standards contained in licensing statutes or regulations.
Both the seriousness of practitioner impairment and the forms it takes vary. Impairment may involve failure to provide competent care or violation of social work's ethical standards. Impairment may also take such forms as providing flawed or inferior services to a client, sexual involvement with a client, or failure to carry out one's duties as a result of an addiction (alcohol, drug, gambling, sex, etc.) or mental illness. Research suggests that distress among human service professionals generally falls into two categories: environmental stress, which is a function of employment conditions (e.g., stressful working conditions and the broader culture's lack of support of the human services mission) or inadequate professional training, and personal stress, caused by problems with one's marriage, relationships, emotional and physical health, legal difficulties, and finances (Fausel, 1988; Kilburg, Kaslow, & VandenBos, 1988; Reamer).
In recent years, strategies for dealing with impaired practitioners have become more prevalent. Some professional associations and groups of practitioners are convening to examine the extent of impairment among colleagues and to organize efforts to address the problem. However, in contrast to a number of other helping professions, social work's efforts seem relatively limited. Despite the occasional discussion of specific forms of impairment among practitioners—most notably alcoholism—in the social work literature, there is little discussion of the general problem of impairment.
Research on impairment among professionals suggests that many struggling practitioners don't seek assistance, and colleagues who are concerned about them may be reluctant to share their concerns (Kilburg, Kaslow, & VandenBos; Sonnenstuhl, 1989). Some impaired professionals may find it difficult to seek help because of their mythological belief in their competence and invulnerability, they believe that an acceptable therapist is not available or that therapy would not help, they prefer to seek help from family members or friends or work problems out by themselves, they fear exposure and the disclosure of confidential information, they are concerned about the amount of effort required and about the cost, they have a spouse or partner who is unwilling to participate in treatment, or they do not admit the seriousness of the problem; they believe that they should be able to work their problems out by themselves; and or they believe that therapy would not help.
Also, both social work agencies and professional organizations should enhance the availability of ethics consultation. The national NASW office and some NASW chapters and agencies (such as hospitals and mental health centers) offer formal ethics consultation. Such resources can help social workers navigate difficult ethical issues and, in the event disgruntled parties file an ethics complaint or lawsuit, seeking consultation demonstrates social workers' good-faith efforts to make sound judgments.
Finally, social workers should develop collegial-assistance programs to assist impaired social workers. Although some serious cases of impairment must be dealt with through formal adjudication procedures, many cases can be handled primarily by arranging therapeutic or rehabilitative services for distressed practitioners. Impaired social workers should have access to competent service providers who are trained to understand professionals' special concerns and needs. For instance, licensing boards and state chapters of NASW can enter into agreements with local employee assistance programs, to which impaired members can be referred.
Social workers' grasp of ethical issues in the profession has matured tremendously in recent years. Today's practitioners understand that ethics is a complex and wide-ranging enterprise that requires keen understanding of potential ethical mistakes, ways to manage complex ethical dilemmas, prevention of ethical misconduct, and constructive responses to social worker impairment. Social workers' ongoing efforts to enhance ethics education and ethical practice will go a long way toward fulfilling the profession's principal aim: to enhance both client well-being and community welfare.
Fausel, D. F. (1988). Helping the helper heal: Co-dependency in helping professionals. Journal of Independent Social Work, 3(2), 35-45.
Kilburg, R. R., Kaslow, F. W., & VandenBos, G. R. (1988). Professionals in distress. Hospital and Community Psychiatry, 39(7), 723-725.
Reamer, F. G. (2015). Risk management in social work: Preventing professional malpractice, liability, and disciplinary action. New York, NY: Columbia University Press.
Sonnenstuhl, W. J. (1989). Reaching the impaired professional: Applying findings from organizational and occupational research. Journal of Drug Issues, 19, 533-539.
— 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.