Eye on Ethics

Essential Law in Social Work Ethics
By Frederic G. Reamer, PhD
October 2013

Ethical challenges in social work come in all shapes and sizes. Some involve clinical issues pertaining to confidentiality exceptions and dual relationships. Others involve management and policy decisions about allocating scarce resources. Still others involve decisions about managing colleagues’ impairment and misconduct.

Many ethical issues—although certainly not all—require some knowledge of the law. Of course, the term “the law” is remarkably broad. When I am asked to consult on complex ethics cases, I am often asked what laws may be relevant. Examples include questions about minor clients’ right to privacy and consent to treatment; disclosure of confidential information, without clients’ consent, to protect third parties; entering into friendships with former clients; retention of clinical records following termination of services; and provision of remote social work services using digital technology. Thoughtful answers regarding these issues require considerable knowledge about laws that come in different forms. Indeed, the NASW Code of Ethics requires social workers to consult laws that are relevant to ethical decisions.

In the United States, three branches of government create laws: legislative, executive, and judicial. Statutory laws, regulatory laws, case laws, the U.S. Constitution, and executive orders often have profound implications when social workers make ethical decisions.

Statutory Law
Many federal statutes enacted by Congress and state statutes enacted by legislatures affect social workers. Examples include statutes governing social workers’ obligation to report suspected abuse and neglect of children, elders, and other vulnerable people; minors’ right to consent to mental health counseling and to drug and alcohol abuse treatment; protection of school social workers’ confidential records; and federal HIPAA laws.

Imagine a social worker who provides counseling services to a 15-year-old client struggling with clinical depression. The adolescent’s parents consented to the counseling. During one clinical session, the teen discloses that he has been abusing drugs, including cocaine and crystal methamphetamine. The client pleads with the social worker to help him with his emerging drug addiction but refuses to permit the social worker to tell his parents about his drug problems.

The social worker must decide whether to respect her client’s wishes or disclose this confidential information to his parents without his consent because of the health and safety issues. In addition to dealing with the daunting clinical issues, the social worker must be familiar with state law concerning minors’ right to consent to treatment for chemical dependency without parental notification or consent. In fact, state laws on this issue vary considerably with regard to minors’ and parents’ rights, practitioners’ legal duties, and age and conditions of consent. Social workers who make ethical decisions in such situations without knowledge or consultation of relevant law do so at their own peril.

Regulatory Law
Social work practice also is governed by many regulations promulgated by federal and state government agencies, such as the U.S. Department of Health and Human Services and state human service, child welfare, and mental health agencies. Under our system of law, federal and state agencies have the authority to establish enforceable regulations. Public agencies must follow strict procedures when they create regulations (e.g., providing public notice and opportunity for public comment about drafts of regulations). Once enacted, federal and state regulations have the force of law.

For example, a police detective investigating a homicide contacts a social worker employed by a mental health center, believing that one of the social worker’s clients is involved in the crime. The detective asks the social worker whether she has seen her client recently. Because the social worker’s agency received federal funding for several of its programs and the social worker had referred the client for substance abuse treatment, the social worker was obligated to comply with a very strict federal regulation (Confidentiality of Alcohol and Drug Abuse Patient Records, 42 CFR Part 2) that includes explicit guidelines regarding disclosure of confidential information by agency staffers to law enforcement officials without client consent.

Case Law
Courts create many laws relevant to social work in the context of litigation and judicial rulings. For example, a judge may need to interpret the meaning or application of existing law, resolve conflicts between laws, or fill gaps in existing laws. Such rulings by appellate courts become legal precedent or case law.

For example, current guidelines concerning social workers’ duty to disclose confidential information without client consent to protect third parties from harm were initially established in the 1970s by a major California court case, Tarasoff v. Board of Regents of the University of California. More recently, in Jaffe v. Redmond, the Supreme Court ruled that during federal court proceedings the right of privileged communication protects clinical social workers' clients.

Many other appellate court decisions are germane to social workers’ ethical judgments involving informed consent, conflicts of interest, dual relationships, practitioner competence, and termination of services.

Constitutional Law
The Constitution includes numerous provisions that pertain to social work practice. Examples concern Fourth Amendment guidelines concerning citizens’ right to privacy and protections against improper search and seizure (important in residential treatment programs) and Eighth Amendment protections against cruel and unusual punishment (important in juvenile and adult correctional facilities).

Several years ago, I testified as an expert witness in a federal court case involving a social worker whose employment and MSW internship were terminated when her supervisors became concerned about her expression of faith-based opinions in the workplace in a manner that the supervisors believed was unethical. In addition to other legal issues involving employment law, the case raised complex First Amendment issues concerning the social worker’s free speech rights.

Executive Orders
Chief executives in federal, state, and local governments (e.g., a president, governor, mayor, county executive) may issue orders that resemble regulations. This authority usually is based in federal and state statute. Examples include a governor’s executive order requiring state-funded agencies to withhold health and human services from undocumented immigrants. This executive order would be relevant when undocumented immigrants who are in great need request social work services and do not consent to disclosure of personal information.

In Conclusion
Certainly, not all ethical decisions made by social workers entail complex legal issues or require extensive knowledge of the law. Social workers’ judgments about whether to accept modest gifts offered by clients, disclose personal information to clients, or blow the whistle on collegial misconduct typically do not involve the law per se.

However, many ethical judgments broach complex legal issues. In such instances, it behooves social workers to be familiar with relevant statutory laws, regulatory laws, case laws, Constitutional provisions, and executive orders.

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