Ethical and Risk-Ethical and Risk-Management Issues in Social Management Issues in Social

WorkWork

Presented by:Presented by:

Frederic G. Reamer, Ph.D.Frederic G. Reamer, Ph.D.

ProfessorProfessor

School of Social WorkSchool of Social Work

Rhode Island CollegeRhode Island College

Providence, Rhode IslandProvidence, Rhode Island

Core KnowledgeCore Knowledge

• Ethical dilemmasEthical dilemmas

• Ethical decision-makingEthical decision-making

• Ethics risk managementEthics risk management

Potential Ethics RisksPotential Ethics Risks

• Ethical mistakesEthical mistakes

• Deliberate ethical decisionsDeliberate ethical decisions

• Ethical misconductEthical misconduct

Key Risk AreasKey Risk Areas

• Client rightsClient rights

• Confidentiality & Confidentiality & PrivacyPrivacy

• Informed consentInformed consent

• Service deliveryService delivery

• Boundary issues & Boundary issues & Conflicts of interestConflicts of interest

• DocumentationDocumentation

• Defamation of characterDefamation of character

• Client recordsClient records

• SupervisionSupervision

• Staff development & Staff development & trainingtraining

• ConsultationConsultation

• Client referralClient referral

• FraudFraud

• Termination of services Termination of services & Client abandonment& Client abandonment

• Practitioner impairmentPractitioner impairment

• Evaluation & ResearchEvaluation & Research

Standard of CareStandard of Care

““What an What an ordinaryordinary, , reasonablereasonable, and , and prudentprudent professional, with the same professional, with the same or similar training, would have done or similar training, would have done under the same or similar under the same or similar circumstances.”circumstances.”

Standards of CareStandards of Care

• Substantive standard of careSubstantive standard of care

• Procedural standard of careProcedural standard of care– Consult colleagues and supervisorsConsult colleagues and supervisors– Review relevant ethical standardsReview relevant ethical standards– Review relevant laws, policies, and regulationsReview relevant laws, policies, and regulations– Review relevant literatureReview relevant literature– Obtain legal consultation, when necessaryObtain legal consultation, when necessary– Consult ethics committee, if available Consult ethics committee, if available – Document decision-making stepsDocument decision-making steps

Professional NegligenceProfessional Negligence

• A duty existsA duty exists

• Dereliction or breach of the dutyDereliction or breach of the duty

• Damage or injuryDamage or injury

• Causal connection between the Causal connection between the breach of the duty and the damage breach of the duty and the damage or injury (proximate cause or “cause or injury (proximate cause or “cause in fact.”)in fact.”)

Forms of NegligenceForms of Negligence

• MisfeasanceMisfeasance: Commission of a proper : Commission of a proper act in a wrongful or injurious manner or act in a wrongful or injurious manner or the improper performance of an act that the improper performance of an act that might have been performed lawfully.might have been performed lawfully.

• MalfeasanceMalfeasance: Commission of a wrongful : Commission of a wrongful or unlawful act.or unlawful act.

• NonfeasanceNonfeasance: The failure to perform an : The failure to perform an act that is part of one’s responsibility.act that is part of one’s responsibility.

Intentional DisclosureIntentional Disclosure

• Duty to protect/warnDuty to protect/warn

• Mandatory reportingMandatory reporting

• 42 CFR Part II42 CFR Part II

• FERPA: Family Education FERPA: Family Education Rights & Privacy ActRights & Privacy Act

• HIPAA: Health Insurance HIPAA: Health Insurance Portability and Portability and Accountability ActAccountability Act

• Disclosure: Other Disclosure: Other agenciesagencies

• Disclosure: Within Disclosure: Within agenciesagencies

• Peer ConsultationPeer Consultation

• Group counselingGroup counseling

• Self-help groupsSelf-help groups

• MinorsMinors

• Bill collectionBill collection

• Deceased clientsDeceased clients

• Sexual misconduct by Sexual misconduct by professionalsprofessionals

• News mediaNews media

• Law enforcementLaw enforcement

• InternsInterns

• Personal notesPersonal notes

Unintentional DisclosureUnintentional Disclosure

• Waiting roomsWaiting rooms

• HallwaysHallways

• DeskDesk

• Office phoneOffice phone

• Office notesOffice notes

• ElevatorsElevators

• RestaurantsRestaurants

• PhotocopiesPhotocopies

• Cellular telephonesCellular telephones

• Fax & Answering Fax & Answering machinesmachines

• Internet Internet CommunicationsCommunications

• Computer ScreenComputer Screen

• Envelope return Envelope return addressaddress

• Bus, Train, PlaneBus, Train, Plane

Duty to ProtectDuty to Protect

• Threat of violenceThreat of violence

• Foreseeable threatForeseeable threat

• Imminent threatImminent threat

• Identifiable potential victimIdentifiable potential victim

Informed ConsentInformed Consent

• Voluntary & informedVoluntary & informed

• Content of FormContent of Form

• ProcessProcess

Informed Consent: Content Informed Consent: Content of Formof Form

• Detailed statement Detailed statement of purposeof purpose

• right to refuse & right to refuse & WithdrawWithdraw

• Reasonable Reasonable alternativesalternatives

• Costs/BenefitsCosts/Benefits

• JargonJargon

• Blank formsBlank forms

• Exceptions: Exceptions: Emergency, Emergency, Therapeutic Therapeutic privilege, client privilege, client waiverwaiver

• Expiration dateExpiration date

• Acknowledgment Acknowledgment statementstatement

Informed Consent: Informed Consent: ProcessProcess

• CompetenceCompetence

• Verbal explanationVerbal explanation

• Opportunity for Q&AOpportunity for Q&A

• Language barriersLanguage barriers

Consent to Intervention: Consent to Intervention: Key ElementsKey Elements

• Provider’s credentials and qualificationsProvider’s credentials and qualifications• Client’s needs and goalsClient’s needs and goals• Description and purpose of interventionDescription and purpose of intervention• Potential benefits and risks of intervention and noninterventionPotential benefits and risks of intervention and nonintervention• Alternative interventionsAlternative interventions• Overview of confidentiality rights and exceptionsOverview of confidentiality rights and exceptions• Overview of supervision, consultation, disclosuresOverview of supervision, consultation, disclosures• Overview of relevant boundary issuesOverview of relevant boundary issues• Intervention details: timeframe, schedule, feesIntervention details: timeframe, schedule, fees• Overview of documentation and accessOverview of documentation and access• Disclosures to insurers and managed care organizationsDisclosures to insurers and managed care organizations• Emergency procedures and protocolEmergency procedures and protocol• Overview of client’s rights (e.g., treatment planning, Overview of client’s rights (e.g., treatment planning,

grievance)grievance)

Defamation of CharacterDefamation of Character

• Libel (written) & Slander (verbal)Libel (written) & Slander (verbal)

• Key elementsKey elements– Untrue statementsUntrue statements– Knowingly untrue or should have known Knowingly untrue or should have known

to be untrueto be untrue– Damage or injuryDamage or injury

SubpoenasSubpoenas

• Subpoena Subpoena duces tecumduces tecum; Subpoena ; Subpoena ad ad testificandumtestificandum

• Possible responses:Possible responses:– MotionMotion– Motion for protective orderMotion for protective order– Request for finding of relevance (“in Request for finding of relevance (“in

camera” review)camera” review)– Request to modify subpoenaRequest to modify subpoena– Object to subpoenaObject to subpoena

Negligent InterventionNegligent Intervention

• High-risk techniquesHigh-risk techniques

• Inadequate training or expertiseInadequate training or expertise

Boundary IssuesBoundary Issues

• Types of dual or multiple relationshipsTypes of dual or multiple relationships– Intimate relationshipsIntimate relationships– Personal benefitPersonal benefit– Emotional & dependency needsEmotional & dependency needs– AltruismAltruism– Unavoidable & unanticipated circumstancesUnavoidable & unanticipated circumstances

• ““Red Flags”Red Flags”– Objectifying clientObjectifying client– Impulsive actionsImpulsive actions– Self-gratificationSelf-gratification

SupervisionSupervision

• Key concepts: Key concepts: Respondeat Superior Respondeat Superior & & vicarious liabilityvicarious liability

• Key elements:Key elements:– Content of supervisionContent of supervision– Frequency of supervisionFrequency of supervision– Duration of supervisionDuration of supervision– Boundaries between supervisor & superviseeBoundaries between supervisor & supervisee

• DocumentationDocumentation

Supervision Sessions: Supervision Sessions: OutlineOutline• Present case historyPresent case history• Present client goals, outcomes, intervention planPresent client goals, outcomes, intervention plan• Probe supervisee’s reaction, impressions, Probe supervisee’s reaction, impressions,

understandingunderstanding• Ask supervisee about her/his goals for supervisionAsk supervisee about her/his goals for supervision• Discuss supervisee’s progress toward goalsDiscuss supervisee’s progress toward goals• Review pertinent documents, process recordings, Review pertinent documents, process recordings,

other recordings (video or audio)other recordings (video or audio)• Provide feedback to superviseeProvide feedback to supervisee• Identify next stepsIdentify next steps• Summarize and reviewSummarize and review

Termination of ServicesTermination of Services

• The concept of abandonmentThe concept of abandonment

• Guidelines to protect clients & Guidelines to protect clients & minimize riskminimize risk

Termination Guidelines to Termination Guidelines to Protect Clients & Minimize Protect Clients & Minimize RiskRisk• Provide clients with names, addresses, & Provide clients with names, addresses, &

telephone numbers of at least 3 appropriate telephone numbers of at least 3 appropriate referrals when it is necessary to terminate.referrals when it is necessary to terminate.

• Follow up with a client who has been terminated. Follow up with a client who has been terminated. If the client does not go to the referral, write a If the client does not go to the referral, write a letter to him or her about relevant risks.letter to him or her about relevant risks.

• Provide as much advance warning as possibleProvide as much advance warning as possible

• When clients announce their decision to When clients announce their decision to terminate prematurely, explain risks involved & terminate prematurely, explain risks involved & suggestions for alternative care. Include this suggestions for alternative care. Include this information in a follow-up letter.information in a follow-up letter.

Termination Guidelines to Termination Guidelines to Protect Clients & Minimize Protect Clients & Minimize Risk Risk (cont’d)(cont’d)• Carefully document in the case record all Carefully document in the case record all

decisions & actions related to termination.decisions & actions related to termination.

• In cases involving discharge from residential In cases involving discharge from residential facilities, prepare a comprehensive facilities, prepare a comprehensive discharge plan & notify significant others discharge plan & notify significant others (inform clients of this.)(inform clients of this.)

• Provide clients with clear instructions to Provide clients with clear instructions to follow in the event of an emergency. Ask follow in the event of an emergency. Ask clients to sign a copy acknowledging receipt clients to sign a copy acknowledging receipt & that the instructions were explained to & that the instructions were explained to them.them.

Guidelines to Protect Guidelines to Protect Clients & Minimize Risk Clients & Minimize Risk (cont’d)(cont’d)• When leaving an employment setting, When leaving an employment setting,

inform clients of appropriate options for inform clients of appropriate options for continuation of services (e.g., transfer or continuation of services (e.g., transfer or continuation) and related benefits & risks.continuation) and related benefits & risks.

• Consult with colleagues & supervisors Consult with colleagues & supervisors about termination strategy & decisions.about termination strategy & decisions.

• Consult relevant Consult relevant Code of EthicsCode of Ethics standards. standards.

Documentation: Key Documentation: Key IssuesIssues• The role of documentation & case recording The role of documentation & case recording

in professional practicein professional practice– AssessmentAssessment– Planning & delivering servicesPlanning & delivering services– Accountability: Clients, insurers, agencies, Accountability: Clients, insurers, agencies,

other providers, courts, utilization reviewother providers, courts, utilization review– Continuity & coordination of servicesContinuity & coordination of services– SupervisionSupervision– Evaluation of servicesEvaluation of services

Documentation Documentation GuidelinesGuidelines• Content of documentation: Key elementsContent of documentation: Key elements

• Amount: Too little, too muchAmount: Too little, too much

• Wording: Precision, specificity, & ambiguityWording: Precision, specificity, & ambiguity

• Defamation of characterDefamation of character

• Avoid abbreviations unless approved listAvoid abbreviations unless approved list

• Print or write legiblyPrint or write legibly

• Do not use dittos, erasures, or “white out”Do not use dittos, erasures, or “white out”

• Do not document interventions before they occurDo not document interventions before they occur

• Document in a timely fashionDocument in a timely fashion

Documentation GuidelinesDocumentation Guidelines (cont’d)(cont’d)

• Do not display biasDo not display bias

• Avoid “It seems,” “I believe,” “I suppose,” “It Avoid “It seems,” “I believe,” “I suppose,” “It appears,”appears,”

• Avoid broad characterizations: “poor outcome,” Avoid broad characterizations: “poor outcome,” “good result,” “moderate compliance,” “drunk,” “good result,” “moderate compliance,” “drunk,” “aggressive,” “combative”“aggressive,” “combative”

• Document what you know, not what you thinkDocument what you know, not what you think

• Do not “over document” in a crisisDo not “over document” in a crisis

• Avoid documenting professional disagreements Avoid documenting professional disagreements (jousting)(jousting)

Documentation GuidelinesDocumentation Guidelines (cont’d)(cont’d)

• Do not document staffing problems, Do not document staffing problems, interdepartmental issuesinterdepartmental issues

• Do not tamper with or alter recordsDo not tamper with or alter records

• Use correct grammar & spelling (credibility issue)Use correct grammar & spelling (credibility issue)

• Client access to recordsClient access to records

• Confidentiality & releasesConfidentiality & releases

• Privileged communicationPrivileged communication

• Personal notesPersonal notes

• SubpoenasSubpoenas

Ethics CommitteesEthics Committees

• Advisory v. DeliberativeAdvisory v. Deliberative

• FunctionsFunctions– Case ConsultationCase Consultation

•RetrospectiveRetrospective

•ConcurrentConcurrent

•ProspectiveProspective

– Policy review and formulationPolicy review and formulation– Education & trainingEducation & training

Ethical Decision-makingEthical Decision-making

• Identify ethical issues: Conflicting values Identify ethical issues: Conflicting values & duties.& duties.

• Identify individuals, groups, organizations Identify individuals, groups, organizations likely to be affected by decision.likely to be affected by decision.

• Tentatively identify all possible courses Tentatively identify all possible courses of action & participants involved in each, of action & participants involved in each, along with possible benefits & risks.along with possible benefits & risks.

Ethical Decision-making Ethical Decision-making (cont’d)(cont’d)• Examine reasons for & against each Examine reasons for & against each

possible course of action, considering:possible course of action, considering:– Ethical theories, principles, guidelinesEthical theories, principles, guidelines– Codes of ethicsCodes of ethics– Legal principlesLegal principles– Social work practice theory & principleSocial work practice theory & principle– Personal values (religious, cultural, ethnic, Personal values (religious, cultural, ethnic,

political)political)– Agency policies, regulationsAgency policies, regulations

Ethical Decision-making Ethical Decision-making (cont’d)(cont’d)

• Consult with colleagues & Consult with colleagues & appropriate experts (e.g., agency appropriate experts (e.g., agency staff, supervisors, administrators, staff, supervisors, administrators, attorneys, ethics expertsattorneys, ethics experts

• Make decision & document decision-Make decision & document decision-making processmaking process

• Monitor, evaluate & document Monitor, evaluate & document decisionsdecisions

MetaethicsMetaethics

• Exploration of:Exploration of:– The meaning of ethical terms (e.g., The meaning of ethical terms (e.g.,

What do we mean by terms such as What do we mean by terms such as “right,” “wrong,” “good,” “bad”)“right,” “wrong,” “good,” “bad”)

– Criteria to determine what is ethically Criteria to determine what is ethically right & wrongright & wrong

– Ethical theories & principlesEthical theories & principles

Normative EthicsNormative Ethics

• Deontological TheoryDeontological Theory: (from the Greek : (from the Greek deontos, “of the obligatory.”) Certain actions deontos, “of the obligatory.”) Certain actions are inherently right or wrong, good or bad, are inherently right or wrong, good or bad, without regard for their consequences.without regard for their consequences.

• Teleological TheoryTeleological Theory: (from the Greek teleios, : (from the Greek teleios, “brought to its end or purpose”) The “brought to its end or purpose”) The rightness of an action is determined by the rightness of an action is determined by the goodness of its consequences (also known goodness of its consequences (also known as “Consequentialism.”)as “Consequentialism.”)

UtilitarianismUtilitarianism

• Act UtilitarianismAct Utilitarianism: The rightness of an act is : The rightness of an act is determined by the goodness of the determined by the goodness of the consequences in this individual set of consequences in this individual set of circumstances.circumstances.

• Rule UtilitarianismRule Utilitarianism: The rightness of an act is : The rightness of an act is determined by the goodness of the determined by the goodness of the consequences that would occur if this one consequences that would occur if this one action is generalized to all similar action is generalized to all similar circumstances (e.g., this case sets a circumstances (e.g., this case sets a precedent.)precedent.)

This presentation is based on This presentation is based on material from: material from: • Frederic G. Reamer, Frederic G. Reamer, Social Work Malpractice and Liability: Social Work Malpractice and Liability:

Strategies for PreventionStrategies for Prevention (2 (2ndnd ed.). New York: Columbia ed.). New York: Columbia University Press, 2003.University Press, 2003.

• Frederic G. Reamer, Frederic G. Reamer, Ethical Standards in Social WorkEthical Standards in Social Work (2 (2ndnd ed.). Washington, DC: NASW Press, 2006.ed.). Washington, DC: NASW Press, 2006.

• Frederic G. Reamer, Frederic G. Reamer, Tangled Relationships: Managing Tangled Relationships: Managing Boundary Issues in the Human Services. Boundary Issues in the Human Services. New York: New York: Columbia University Press, 2001.Columbia University Press, 2001.

• Frederic G. Reamer, Frederic G. Reamer, Social Work Values and EthicsSocial Work Values and Ethics, 3, 3rdrd ed. ed. New York: Columbia University Press, 2006.New York: Columbia University Press, 2006.

• Frederic G. Reamer, Frederic G. Reamer, The Social Work Ethics Audit: A Risk-The Social Work Ethics Audit: A Risk-management Tool. management Tool. Washington, DC: NASW Press, 2001.Washington, DC: NASW Press, 2001.