Forensic Social Work

Legal Aspects of Professional Practice, Second Edition

Robert L. Barker, Douglas M. Branson

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317826279
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Explore the legalities and pitfalls of forensic social work! Forensic Social Work: Legal Aspects of Professional Practice, Second Edition examines the professional specialty of forensic social work which involves testifying in court as an expert witness, investigating cases of possible criminal conduct, and assisting the legal system in such issues as child custody disputes, divorce, child support, juvenile delinquency, spouse or child abuse, and placing individuals in mental hospitals. As a student or professional social worker, you will explore a variety of ethical and legal issues, such as malpractice, licensing, credentialing, marketing for forensic clients, and presenting effective courtroom testimony. Current and fact-filled, this new edition discusses the origins of forensic social work and offers implications for future practice. New material in this edition includes a chapter on how to establish a forensic social work practice, with information on how to bring in clients, generate new referrals and make other important contacts. Another new chapter expands on the first edition's discussion of implanted memory versus recovered memory and the ways that social workers use and often misuse this information. A third new chapter examines credentialing requirements for forensic social work. Forensic Social Work details legal conflicts you may face and offers suggestions on how to deal with these situations. Rich with examples, some aspects of forensic social work that you will learn about are:

• separating the role of the expert witness from the role of the fact witness while testifying
• understanding the motivations, payments, and positive incentives for entering the field of forensic social work
• avoiding malpractice lawsuits by understanding the criteria for liability
• guidelines for action when laws and ethics collide
• preparing for litigation
• duty-to-warn laws
• writing reports and contracts for the litigious society using the problem-oriented (SOAP) record
• distinguishing implanted memory from recovered memory and understanding how witnesses and social workersmay misuse remembered information

Complete with a glossary, case examples, and information on how to obtain clients, new referrals, and other contacts, Forensic Social Work gives you a thorough look at the profession of forensic social work. You will explore the legal and ethical issues that come with this profession, learn the credentials needed to become a forensic social worker, and discover how to adequately market yourself in the field. Forensic Social Work will prepare you for the circumstances that may arise and help you to professionally and successfully overcome future challenges.

Chapter 1
Forensic Social Work in a Litigious Society

Forensic social work is a professional specialty that focuses on the interface between society's legal and human service systems. It includes such activities as providing expert testimony in courts of law, investigating cases of possible criminal conduct, and assisting the legal system in such issues as child custody disputes, divorce, nonsupport, delinquency, spouse or child abuse, mental hospital commitment, and relative's responsibility.

Social workers with clinical orientations have for decades been central figures in the legal-psychological processes of adoption, termination of parental rights, eldercare, disability rights, mandated treatment, juvenile and family courts, criminal justice, probation and parole (Roberts, 1997; Cole and others, 1995; Ezell, 1995; Miller, 1995). Clinical social workers also make significant, though often unacknowledged, contributions to social justice (Swenson, 1998). Workers with public policy and social change orientations have been active with legislators, political leaders, and lobbying groups to help make laws and human rights more just and equitable for all (Witkin, 1998; Haynes, 1998; Litzelfelner and Petr, 1997; Weismiller and Rome, 1995).

As contemporary society increasingly seeks to resolve its conflicts and other problems through its legal justice system, professional social workers are compelled to learn more about this system and to participate more fully with those who implement it (Kopels and Gustavsson, 1996; Hutchison, 1993). The relationship between social work and the legal system is growing closer (Schroeder, 1995; Johnson and Cahn, 1995).

Meanwhile a growing number of people claim that American society has grown too litigious, wanting to settle all its disputes legalistically through courts of law and threats of suits (Pflepsen, 1997; Smith, 1997). They point out that there has been an explosion of civil litigation to accompany the growth industries of criminal law and resulting prison building (Schlosser, 1998; Olson, 1991). The law profession itself has been subject to increasing criticism; some claim it is engaged in manipulation of people and social institutions "to provoke litigation artfully and unnecessarily" (Hearn, 1999, p. 2).

Social work and other professions are caught in a crossfire of seemingly contradictory laws and ethical standards. For example, they now must balance their ethical principles of confidentiality against mandatory reporting laws (Dickson, 1998); they must turn in clients they think may be engaged in antisocial conduct but risk being sued for slander and libel when they do so (Gambrill and Pruger, 1997; Hutchison, 1993). Laws pertaining to social workers and other professionals now spell out when they must, and when they cannot, perform specified actions (Polowy and Gorenberg, 1997; Alexander, 1995).

Social workers and social work agencies are being sued with increasing frequency, often for dubious claims (Marine, 1998a; Kurzman, 1995). The pressure has mounted on the profession as a whole to protect itself from its own incompetent and malevolent members; it is doing so with a profusion of new credentials, competency certification procedures, tighter codes of ethics, and stricter licensing laws (Reamer, 1998b).

In the context of this emerging trend, it is more important than ever for social workers to know about the law, how to use it for oneself and one's clients, how to minimize legal difficulties, and how to serve it better in its quest for social and civic justice. It is a propitious time for the development of the specialty known as forensic social work (NOFSW, 1999; Solomon and Draine, 1995; Schultz, 1991).

The Purpose of Forensic Social Work

Forensic social work seeks to educate law professionals about people's human and social service needs; it also educates social work colleagues about the legal aspects of their work. Forensic social workers use their skills to assist law authorities in a variety of ways: they interview crime victims and witnesses and provide the information to investigators and to courts of law; they consult with lawyers about the kinds of juries that would be optimal to their cases; they work with other mental health experts to determine if clients possess enough mental competence to stand trials; they are frequently fact witnesses or expert witnesses in trials (Gibelman, 1995).

The specialty is also oriented to helping social workers avoid becoming defendants in malpractice suits, or when that is unavoidable, to help one side or the other achieve the best possible outcomes. Finally, forensic social work is interested in the legal regulation of professional practice, including professional licensing and credentialing, and other provisions for public accountability.

Such activities are of growing interest and importance for social work. The reasons are obvious. They include the trend toward litigiousness in American society, the increasing likelihood and expense of malpractice litigation, the issuance of laws and court rulings affecting the practice of social workers and other professionals, the confusing and apparently contradictory nature of some of these laws and rulings, and the fact that social work is legally regulated in every jurisdiction in the nation.

In the past decade, social workers as well as members of all other professions have been sued for malpractice with increasing frequency and escalating costs. They have been named in suits for major and minor violations of their ethical codes and licensing requirements, but also in cases where they were only tangentially involved or had no alternative course of action. For example, social workers who provided consultation to colleagues have been sued by the colleagues' clients. Workers have been successfully sued for disclosing client confidences even when laws compelled them to do so; other workers have been sued for not revealing client confidences when that information could have prevented crimes.

Schools of social work have been sued for discrimination for not admitting grossly unqualified students and for passing over well-qualified faculty members to promote less qualified colleagues. Social work supervisors have been sued for the malpractice of their subordinates, and social agencies have been sued for the actions of their employees, sometimes even when off duty. Examples of such actions have been described in the literature (e.g., Grabois, 19971998; Madden and Parody, 1997; Houston-Vega, Nuehring, and Daguio, 1996; Mullaney and Timberlake, 1994; Hutchison, 1993; Alexander, 1993).

Laws and courtroom rulings involving professional practice have changed dramatically in recent years, especially regarding confidentiality and the legal requirements to control one's clients. Court decisions, especially the cases known as Tarasoff, Ramona, and Jaffee vs. Redmond, have placed limits and requirements on social workers that seem confusing, contradictory, and unresolved.

And in this climate of legal change social workers have seen professional licensing come to every state in the nation (Biggerstaff, 1995). Legal regulation of social work practice has been necessary for the profession to maintain credibility and remain eligible to provide mental health services and receive insurance reimbursement for it—but it also means that the public scrutiny of social work is more intense than ever (Whiting, 1995).

These trends require social workers to be more involved in the legal aspects of their professional practices. Forensic social work is the specialty that has newly emerged within the profession to systematically address these concerns.

Law in the Origins of Social Work

While forensic social work itself is a recently identified specialty, many of its activities are as old as the profession itself. At the beginning of the twentieth century social work emerged in large part to fulfill many legal functions. The earliest social workers investigated families to determine if parents were abusing their children or otherwise not meeting their children's developmental needs. They reported the findings of their social investigations to the media and law authorities and testified in courts about their findings (Richmond, 1898; Addams, 1899).

The earliest social workers were oriented to changing society and its social injustices. They led political movements to change laws and to pressure the legal system to enforce existing laws with more rigor. They led successful campaigns to change or enact child labor laws, obtain legal rights for women, improve laws that would better protect workers and consumers. This social activism was largely motivated by their direct exposure to the problems of poverty and their work in prisons and crime-ridden neighborhoods (Axinn and Levin, 1992).

Many of the people who created the social work profession and its employing organizations were lawyers. For example, attorney Robert Weeks deForest (1848-1931) was a founder and the principal leader of the Charity Organization Societies, the early social agencies where social workers were first employed and given their present name (Quam, 1995a). He also founded the first school for social workers (now known as Columbia University School of Social Work). Robert deForest also organized the Russell Sage Foundation, the philanthropic foundation that financed many of social work's first organizations, educational facilities, and publications. The Foundation published most of the first major social work textbooks and the Social Work Yearbook, which evolved into today's Encyclopedia of Social Work.

Lawyer Florence Kelley (1859-1932) is also considered a founder of the social work profession. Her law background led to her work as head of a government agency to enforce its labor laws, which later developed into her crusade against child labor and exploitation of the working poor. She helped create the National Consumer's League and the United States Children's Bureau. Realizing that these organizations and others with similar goals at the local level required competent, trained, staff to be effective, she encouraged and obtained funding for training programs for a new professional group (Edwards, 1995).

Another pioneer in the creation of social work was lawyer Sophonisba Breckinridge (1866-1948), who brought social work education into the university system and led the movement to include legal courses in the social work education curriculum. She helped develop the graduate program now known as the University of Chicago School of Social Service Administration and was its long-time dean. She also helped create the influential social work journal Social Service Review and was a founder of the organization that became the National Association of Social Workers (Quam, 1995b).

Many of the other founders of professional social work who were not lawyers, nevertheless spent considerable energies working with the law. Jane Addams (1860-1935) devoted much of her life to social activism and lobbying lawmakers, from local aldermen to national and international leaders (Addams, 1902). She organized and led political parties and became the first woman president of the National Conference on Charities and Corrections (Bryan, Slote, and Argury, 1996; Lundblad, 1995).

Mary Richmond (1861-1928), who now is widely considered to be the progenitor of the clinical side of social work, was actually also very much involved in legal work and social activism (Longres, 1995). She helped establish child labor laws, juvenile courts, and legislation for deserted wives. Her early books, especially Friendly Visiting Among the Poor (1898) and Social Diagnosis (1917), contained extensive discussions about how workers should engage the legal system in efforts to help the disadvantaged.

Early Affinity of Social Work and the Law

With such a foundation it was natural for social work to have close ties to the law and legal justice system. Almost every new professional school included law courses. Field placements were in family courts, prisons, legal aid offices, and even private law firms. Upon graduation, many social workers became probation and parole officers and court investigators. They were often asked to evaluate the merits and risks of keeping an offender in the community and to prepare "Pre-sentence Investigation Reports (PSIR)" (Isenstadt, 1995, p. 71). Those who worked in welfare offices, settlement houses, and charity organization societies encountered the victims of crime and injustice and reported their findings to law authorities (Tice, 1998).

During its first thirty years social work was closer to the law than it is now to the health and mental health fields. Most early social workers belonged to the National Conference on Charities and Corrections (founded in 1879), and many of its other members were law officials. The nation's juvenile court system avoided the adversarial procedures of other courts by employing social workers to advocate for the child, family, and state simultaneously. Then the worker would act as probation officer for the judges' sentences of juvenile cases (Ezell, 1995).

The major employers of social workers were public welfare offices and child welfare organizations, and much of their work involved investigating and reporting to the legal authorities the conditions to which children and the disadvantaged were subjected (Trattner, 1999). Many social workers found themselves testifying in courts almost as frequently as they were working with clients. Recognizing that this was becoming a major social work function, the schools of social work increased their offerings of courses in legal aspects of professional practice and encouraged more students to study such offerings.

Divergence between Social Work and the Law

It was not until the mid-1930s that social work began its turn away from a legal orientation toward its emphasis on mental health and humanistic concerns. The poverty and economic problems seen in the Great Depression (1929-1941) drew the interests of many social workers away from the law and more toward economics and sociology. The new philosophies of Sigmund Freud (1856-1939) and other psychoanalytic theorists influenced many other social workers toward an interest in the mental processes of individuals (Specht and Courtney, 1995).

Many professional schools of social work replaced their curricular offerings in the legal and justice fields with more courses with psychosocial orientations. Field placements in law settings were replaced by those in mental health clinics. Even though the social work profession recognized and advocated closer relationships with law professionals, few practical steps were made in that direction (Schroeder, 1995; Brieland and Lemmon, 1985; Sloane, 1967).

As social workers pursued other interests, prisons, juvenile courts, and the probation system could no longer find enough workers to fill most of their jobs and had to turn to members of other disciplines (Miller, 1995). Reflecting the schism between social workers and the justice/corrections system, the National Conference on Charities and Corrections split into two groups. The Gault decision in 1967 gave children the same legal rights in courtrooms as adults, and soon social workers were replaced by lawyers in the juvenile court system (Manfredi, 1998; Singer, 1996). In public welfare and child protective service agencies, investigations of potential abuse were carried out increasingly by individuals who had not been trained as social workers.

As social work moved farther from the legal institutions, it also seemed antipathetic toward legal regulation of professional practice. By the mid-1960s only three states had social work licensing laws (DeAngeles, 1993). Efforts to license social workers in other jurisdictions were minimal and ineffective.

Many influential social workers argued against licensing (Flynn, 1987). They claimed that it was anathema to the values of the profession, that it would only encourage elitism, and that it would drive everyone but clinical social workers out of the profession. And most important, they said, it was unnecessary; the profession did not need to be legally regulated because it had two safeguards that were supposedly more reliable. One was the profession's system of controlling its workers by closely supervising them in their agency employment. The other was the widespread assumption in the profession that the worker's behavior would be unassailable because of social work's high moral principles and values (Vigilante, 1974).

The view that licenses were unnecessary changed, perhaps more for economic reasons than high-flown moral ones. Insurance companies, which became increasingly important to all providers of social and health care services, began to refuse reimbursement to professionals who were not licensed. Clients who had insurance would seek only the services of licensed professionals; social workers wanting to serve these clients would have to find a psychiatrist willing to supervise their work.

Most social workers continued to shrug off the insistence on licensing by insurance companies. They believed, for awhile, that it would affect only private practitioners, who were not very popular in the profession anyway (Barker, 1992). After all, most clinical workers were employed in social agencies, and their funding was paid for by taxes or donations and programs such as United Way.

However, the social agencies themselves found they too were affected. For all but government agencies, funding from private donations and fund drives remained static as...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface and Acknowledgments
• Chapter 1. Forensic Social Work in a Litigious Society
• Chapter 2. The Practice of Forensic Social Work
• Chapter 3. Testifying in Courtrooms
• Chapter 4. Testifying As an Expert Witness
• Chapter 5. Malpractice and How to Avoid It
• Chapter 6. When Laws and Ethics Collide
• Chapter 7. Preparing for Litigation
• Chapter 8. Professional Review: Judgment by Colleagues
• Chapter 9. Case Recording and Written Contracts
• Chapter 10. Legal and Professional Credentials
• Appendix: State Boards of Social Work Licensure
• Glossary
• Bibliography
• Index