Essential Law for Social Workers

Robert Madden

• Éditeur: Columbia University Press
• Année: 2003
• ISBN:
  9780231508995
• Sujet: Ciencias sociales
• Sous-sujet: Trabajo social

Whether protecting their own rights or those of their clients, or navigating the juvenile justice, immigration, or welfare systems, social workers confront legal issues every day. This book explores legal concepts, legal reasoning, and legal processes—illustrated with case vignettes from social work practice—in order to provide social work practitioners and students with practical and accessible legal knowledge. It introduces readers to scholarship about the law and to conceptual knowledge that can be applied to any interaction with the legal system. Social workers are thereby enabled to "think like a lawyer" and increase their effectiveness. The volume features a discussion of recent reform movements, including Alternative Dispute Resolution, and an appendix of sources for legal information and research on the law.

1.

WHY SOCIAL WORKERS STUDY THE LAW: KNOWLEDGE FOR PRACTICE

A new world is only a new mind.—William Carlos Williams

THERE IS LAW in all social work practice. As tempting as it may be to deny or ignore this essential truth, social work practice in contemporary society requires knowledge of the law and legal systems. Consciously or not, every social worker participates in legally influenced practice in all practice settings and must be prepared to work with legal professionals to support clients, to try to change the system, and to foster appropriate practice standards. Social workers who open their minds to legal reasoning will find a range of opportunities to improve their practice.

PARTICIPATION IN THE LEGAL SYSTEM

States and professional organizations regulate social work practice by issuing credentials and sanctioning those who fail to meet legally defined standards of care. Clients may be involved with various legal systems such as juvenile, criminal, family, or probate courts. State and federal statutes place social workers in the role of interpreting and applying the law in such areas as immigration, adoption, civil rights, and welfare services. Social workers may be asked to provide information to legal officials in the form of professional records, testimony, or expert opinion. Some social work professionals work directly in legal settings, and their forensic practice requires a thorough understanding of the law.

The nature of law is a subject that has filled many bookshelves, but few volumes are accessible to social workers. Many social work authors have written about the legal dimensions of social work issues, such as confidentiality (Dickson 1998), psychotherapy practice (Madden 1998), child welfare (T. Stein 1991), and malpractice (Houston-Vega, Nuehring, and Daguio 1997), but few have explored the essential nature of the law, legal reasoning, or the practice of law.

Perhaps the focus of the social work profession—on interpersonal skills and being nonjudgmental—makes study of the law intimidating, or at least uncomfortable, for the average social worker. Instead, social workers seem to fall back on two disempowering myths when dealing with legal issues: the first views the legal world as a closed system in which the only people who can function there are those who have been through the rigors of a proper law school education. The second myth is that the law consists of clear legal mandates that define how people should act. Jansson, describing similar dynamics that occur within a broader policy context, refers to the former as the “expert myth” and to the latter as the “myth of powerlessness” (1994:21). These myths influence social workers’ interactions with the law and legal systems, making us passive and reactive.

It would be inconceivable for a social worker practicing with children not to understand child development. Equally unsettling would be a social worker in a long-term care facility who was not thoroughly grounded in geriatric medical conditions. Just as child development theory and medical knowledge inform the judgments of social workers, so must legal theories inform the daily practice decisions of social workers. Yet the social work profession has tacitly enabled practitioners to enter practice without sufficient knowledge of the law and the skills for effective participation in legal systems (Madden 2000b).

When social workers have knowledge of legal processes and legal structures, they find the nature of legal interactions less intimidating, and they are more likely to become active participants in the development and application of the law as it relates to the lives of clients and the practice of social work. In a classic article Charlotte Towle argued for the union of cause and function in social work (1961). It is not enough to be caring and committed to social change (cause), without combining it with intellectual concepts, methods, and standards of practice (function). The law can be an instrument to promote the cause and function of social work. For social workers to be effective advocates and proponents of social justice, they must have technical legal knowledge and skills.

THE NATURE OF THE LAW

The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.

—Raymond Chandler

As social work has evolved as a profession and society has become more litigious, practitioners increasingly are aware of the need for more knowledge of the law (Barker and Branson 2000). But what is the law and what knowledge do social workers need? Sunstein suggests that the critical role for a well-functioning legal system is to develop a strategy for producing stability and agreement in the midst of social disagreement and pluralism (1996:4).

It would be comforting to think about the law as a system that defines the rights and obligations of each citizen in a way that reflects integrity, equality, and justice. When we view the law from this noble but inadequate premise, we can think about it as something that exists separately from daily life, to be applied by legal professionals. Instead, I will argue that the law frames social work practice with legal rules and mandates. If we accept the more mundane view, that the law is principally a mechanism to enforce the values of and structure relationships in an ever-changing society, social workers must learn to be consumers of legal principles, able to apply the law to our practice experiences. Further, we must learn to be legal architects and engineers, influencing the design and implementation of legal rules and procedures to benefit clients and the profession.

It is important to note that I am not seeking to make social workers into lawyers but to make social workers appreciate basic legal analysis, to understand concepts of jurisprudence, and to gain competence in the workings of the legal system. If social workers learn to think like a lawyer, their experiences with the legal system will be less stressful and more productive. The legal framework of practice will have real meaning and can inform practice decisions in the same way that other normative theories contribute to social work knowledge.

What does the phrase “to think like a lawyer” mean? Once we cast aside the urge to respond to this question with a punch line, it presents a formidable challenge. Vandevelde (1998) describes the process of legal thinking as both a goal-directed activity and a method. The initial goal of legal thinking is to identify the rights and duties of the people or entities involved in a factual situation. The lawyer’s method includes identifying and analyzing relevant law and applying the legal rules and their underlying policies to the facts of a case (Vandevelde 1998:1–3).

When lawyers are presented with a factual situation, legal thinking guides their response. When social workers confront legal situations, social work values frequently determine their response. The difference can lead to miscommunication and distrust between social workers and legal professionals. Consider the case of a psychotherapy group facilitated by a licensed social worker that operated as part of the inpatient services at a mental health facility. A client, John, was part of this group during his hospitalization in 1996. During a group meeting another member of the group assaulted John, who suffered injuries. Sometime later John tried to sue his assailant but did not know the group member’s name. John’s lawyer tried to compel the mental health facility to disclose the identity of the assailant. The legal question in this case was whether the social worker–client privilege prevented the disclosure of the group member’s identity (Falco v. Institute of Living [2000]).

From a lawyer’s perspective the case involves a legal rule: the privileged communication statute. The lawyer for each party would carefully review the language of the state law and analyze the language of the statute and the facts to assess the strength of the client’s legal case:

1. Does the statute apply to this social worker and this agency?

2. Is there a duty of confidentiality owed to a client in a psychotherapy group? If there is, are all communications within the group protected by the privilege?

3. Would a release of information limited to the client’s name and address violate the statute?

4. Do any of the exceptions to the statute that allow for release of information without the client’s consent apply to the facts of this case?

The lawyers would seek to determine the policy goals of the privileged communication legislation and attempt to frame their legal argument within these goals. How the statute is written determines how the law balances the legal principle of unfettered access to relevant evidence with the competing legal principle of protecting the privacy of people in mental health treatment. Based on this analysis, and an examination of how similar cases have been decided, each lawyer would attempt to predict how the court would rule.

A competent attorney representing the injured person could construct a plausible argument supporting disclosure, while a competing attorney representing the agency could develop an equally persuasive argument against disclosure. John’s lawyer may argue that the language of the statute, the intent of the legislature, public policy, or general notions of fairness direct the court to order the release of the information. The focus of the argument would rest on the premise that the information being sought does not concern sensitive, personal content but only the identity of an individual who may have caused harm. The privileged communication statute should not be used to shield this wrongdoer from responsibility for his actions.

The lawyer for the agency may argue that the privilege statute applies to the case. This argument prioritizes the privacy rights of all mental health clients. Because the statute specifically lists when a court is allowed to override the privilege statute, the lawyer could argue that the facts do not fall within any of the exceptions, so the judge must deny the request to provide the identity of the group member. To decide otherwise could have a negative effect on the promise of confidentiality that is fundamental to the willingness of clients to engage in treatment.

The social worker may experience the case as an intrusion into the therapeutic promise of confidentiality and its importance for the development of trust. The social worker views the act of identifying a client as a serious breach of privacy because of the frequent discrimination practiced against people who receive mental health services. Like the agency’s attorney, the worker may worry about the effect of this case on people’s participation in therapy groups. The social worker may question the validity of the lawsuit, especially if the physical attack was not seen as severe enough to cause lasting injuries. The social worker may also have self-serving reasons to conceal the identity of the group member: if this case never goes to court, the social worker will not have to give depositions or testify.

SOCIAL WORKERS’ EXPERIENCES WITH THE LAW

The social worker simply may want a clear answer: “Just tell me what the law says about this type of situation.” As I will discuss in later chapters, the law usually does not work as we would like it to. It does not provide us with simple answers to legal disputes except in the most obvious matters. Even in the case of taking the life of another person, the law allows for different penalties if the act that led to the death was intentional, negligent, or justifiable, as in self-defense. Courts have the role of applying the written law. Despite policies aimed at encouraging courts to decide similar cases in the same way, variation from case to case is surprisingly frequent.

As social workers, we are uncomfortable with the uncertainty of what appear to be incomplete laws and conflicting cases. Wouldn’t it be more predictable and just if legal rules were more complex, stating the desired outcome in every situation? The reality is that a more complex legal code would provide illusory benefits (Epstein 1995). Too many factual situations push at the boundaries and language of a rule, making the task of compiling a comprehensive legal code impossible.

As the world changes, the need for new laws to deal with unanticipated factors is constant. Should we expect the legislature to adjust the language of its statutes each time technology advances? No matter how carefully a law is written, the interests of justice might require a result that appears on its face to contradict the law directly. For these reasons, no specific legal rule governs many practice situations, and sometimes even where a legal rule seems to exist, an alternative result is possible.

Any attempt to examine the law in its pure forms results in unsatisfying encounters. Because of this, examining the law as inseparable from its functions is pedagogically more useful (Albert 2000). How does the law operate to protect individuals, to settle conflicts between parties, or to determine the rights or obligations of people? How does the law reflect social values and enforce moral standards? Social workers can understand the law most effectively when it is applied to familiar situations. Therefore this book uses cases and situations from social work practice for analyzing the law and extracting legal principles. Whether the court in a particular case has ignored these legal principles or found them to be crucial, they will provide social workers with insight and direction when they face legal issues in practice.

Although legal scholarship and judicial decision making rely on multiple sources of legal reasoning, this book will focus on how to learn legal principles by understanding the reasoning of particular cases. Throughout the book I present cases that illustrate the general legal rules and principles of importance to social work practice.

The case vignettes that follow are examples of social workers in dynamic interactions with legal issues. In each case the facts support the need for social workers in diverse practice settings to develop an understanding of the law and the legal system. The social worker who has a foundation of legal knowledge is better equipped to manage the practice issue.

NICOLE

“Ironic, isn’t it?” asked Nicole at the end of a meeting with her attorney. “So many times, I was the one who questioned the ethics of other professionals who were working with my clients. Now I find myself accused.” It had been a dizzying three days, and Nicole’s emotions ranged from embarrassment to anger. In retrospect she could see how her decision to offer services to the Hobart family had been a mistake.

Nicole worked at a local mental health agency as a part-time clinical social worker. Her caseload included an elderly woman, Anna Hobart, who had been diagnosed with depression and who was experiencing increasing confusion. Hobart’s sister and brother-in-law, her only family, grew to trust Nicole, who was caring and seemed to appreciate their difficulty in continuing to care for Anna Hobart in a safe manner.

The family asked Nicole whether anyone could help them to find a skilled nursing facility and to become eligible for benefits, including Medicaid and coverage of prescription drugs, because Anna Hobart’s savings were nearly depleted. Nicole provided a list of town services and mentioned that she does that type of work in her private practice as an elder care manager. The family members asked Nicole whether she would help them, and Nicole quickly agreed.

It is difficult not to cringe at Nicole’s decision. Providing care to a client in the capacity of clinician while agreeing to serve as a private case manager is an obvious conflict of interest. When she submitted a bill for her first month’s services (which were legitimately and competently delivered), a Title 19 eligibility caseworker for the state questioned the size of the bill.

Nicole’s subsequent legal troubles included being investigated for billing fraud by the state. The clinic suspended her and referred the case to the state licensing board as well as the Committee on Inquiry of the state chapter of the National Association of Social Workers. She was accused of improper solicitation and exerting undue influence on a vulnerable client.

Was Nicole guilty of a well-intentioned breach, of wanting to help the family but not stopping to think about the consequences? Was she guilty of putting herself first, given that she was paying the bills for her new private practice? A better understanding of the legal implicat...

Table des matières

• Cover 
• Half title
• Title
• Copyright
• Dedication
• Contents 
• Acknowledgments
• Introduction
• 1. Why Social Workers Study the Law: Knowledge for Practice
• 2. Exploring Jurisprudence: Legal Philosophy
• 3. The Development of the Law
• 4. The Practice of Law
• 5. The Litigation Process: Dissecting a Court Case
• 6. Protection of Individuals and the Preservation of Social Order
• 7. How Courts Make Legal Decisions About People’s Lives
• 8. Torts: How the Law Provides Compensation for Injury and Deters Unsafe Practices
• 9. Contracts and Other Legal Issues in the Management of Social Work Practice
• Appendix: Legal Research
• References
• Cases and Laws Cited
• Index