Malpractice and Other Sources of Civil and Criminal Liability
| Author | Marilyn J. Samuels/Elayne M. Tanner |
| Pages | 143-160 |
Chapter
14
Malpractice
and
Other
Sources
of
Civil
and
Criminal
Liability
A.
Introduction
In
the
past, lawsuits against mental health professionals were relatively rare.
For
social workers, psychologists,
and
other mental health professionals
who
did not
administer medication,
the
risk
of
incurring professional liability
was
extremely low.
In
recent years, this relative immunity
from
litigation
has
begun
to
erode
in the
United States,
and it is not
impossible that
the
same will
occur
in
Canada.1
The
largest insurer
of
social workers
in the
United States,
the
National Association
of
Social Workers Insurance Trust, tracked
the
number
of
claims filed against
its
members
and
found
that
634
claims were
filed
between 1965
and
1990.2
Only
one
claim
was
filed
in
1970,
but by
1980
the
annual number
of
claims
had
climbed
to 40. The
relatively
few
claims
made against social workers
in the
1970s
were typical
of
this
period
as a
whole
for all
health professions.
By
1990
the
annual
figure was
126,
an
increase
of
over 200%
in the ten
years from 1980
to
1990.3
This trend
has
almost certainly continued since
1990.
Although Canada
has not
experienced
American
levels
of
litigation
against
social
workers,
it
would
be
imprudent
for
Canadian social workers
to
believe that they cannot
or
will
not be
sued
for
malpractice.
Every social work setting provides
the
potential
for
liability.
For
example,
social workers
in a
group practice
can be
held liable
for the
actions
of
other
members
of the
group. Social workers employed
by
social service agencies
can find
themselves embroiled
in a
lawsuit
if
they give
in to
pressure
from
cost-conscious superiors
to
prematurely terminate service
or to
choose
an
1.
F.G. Reamer, Social
Work
Malpractice
and
Liability (New York: Columbia University
Press, 1994)
at 4.
2.
Ibid.,
at 5.
3.
Ibid.
143
144
MANAGING
A
LEGAL
AND
ETHICAL SOCIAL WORK PRACTICE
inappropriate
but
less
expensive course
of
treatment
for a
client.
Children's
aid
societies
and
other child protection settings create liability
risks of
many
kinds,
for
example,
for
failure
to
properly investigate
or
report
child
abuse
or
neglect,
for
wrongful
removal
of a
child (and conversely,
for
returning
a
child
to
dangerous parents),
for
failure
to
adequately monitor
a
case,
and for
alleged malicious prosecution
of
parents
and
guardians. Social workers
in
private
practice
face
risks
associated with sexual impropriety, failure
to
pro-
tect
and
warn, incorrect treatment,
and
improper referral.
As
more
and
more
social workers
turn
to
private practice,
the
potential
for
liability will only
increase.
It is
therefore imperative
for
every social worker
to
have some knowledge
of
the law of
malpractice, negligence,
and
liability.
One of the
trade-offs
for
enjoying
the
privilege
of
professional self-regulation
is the
public's expecta-
tion
of
accountability.
If a
regulated professional holds himself
or
herself
out
as
possessing certain kinds
of
professional knowledge
or
skill,
the
public
will
assume
that
he or she
does
in
fact
have
that
knowledge
and
skill,
and the
pro-
fessional'
s
efforts
will
be
judged against
a
standard
of
performance generally
expected
of
other professionals
in the
field.
A
professional
who
engages
in
actions that fail
to
meet this standard
may
be
sued
and
found
liable
for
damages.
One of the
leading cases
to
establish
this principle
was
heard
in
1964
by the
English House
of
Lords, which held
that
It
should
now be
regarded
as
settled
that
if
someone possessed
of a
special skill
undertakes,
quite irrespective
of
contract,
to
apply that skill
for the
assistance
of
another person
who
relies
on
such skill,
a
duty
of
care will arise.
The
fact
that
the
service
is to be
given
by
means
of...
words
can
make
no
difference.
Furthermore,
if...
others could reasonably rely
on his
judgment
or his
skill
or
on
his
ability
to
make
careful
inquiry
...
to
give information
or
advice
to ...
another person who,
as he
knows
or
should know, will place
reliance
on it,
then
a
duty
of
care will
arise.4
The
duty
of
care
in
negligence
cases means that
a
reasonable
person
is
required
to
conduct himself
or
herself
in a
particular manner
so as to not
increase
the risk of
harm
to
another person.
The
greatest areas
of risk for
social workers
are
connected with civil lia-
bility rather than
the
criminal arena. Civil liability encompasses malpractice,
intentional
torts such
as
assault
and
battery,
and
breach
of
contract.
4.
Hedley
Byrne
& Co. y.
Heller
&
Partners,
483,
(H.L.).
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