As a social work ethics consultant and post-masters continuing education instructor, one of the issues I see social workers struggle with regularly is requests for information on their clients. Along these same lines, the other issues is struggles with how to respond to a subpoena they received which is usually signed by an attorney. I now teach a 6 hour continuing education course on this topic and it is very popular. What follows is brief overview of this course.
Subpoenas are requests for information or requests for someone to appear in court or at a deposition in a court case. While they are legal documents, they are not typically considered court orders unless they are signed by a Judge. However, a social worker does need to respond to a subpoena. The kinds of cases where subpoenas may be used include: divorce, custody and parenting time; child abuse/neglect; employee discrimination or wrongful termination; disability benefits; personal injury cases; and criminal prosecution cases. Subpoenas can be issued for any setting: school, private practice, hospital, workplace, to name a few.
Typically, a social worker should respond to a subpoena as quickly as possible. It is okay to seek legal counsel (check with your social malpractice insurance carrier, school district attorney, or hospital or agency attorney) and/or an ethics consultation before you respond, but you should do so as soon as you can. Often, a subpoena will arrive with only two days notice before the scheduled court or deposition the social worker is being asked to appear at. Depending on your setting, you may want the agency attorney to respond (school, hospital, other agency) or, if you are in private practice, you will most likely be doing the responding to the request for information.
The NASW Code of Ethics helps to guide social workers on how to respond. According to the Code, it does not provide a set of rules that describe exactly how social workers should act in all situations. The Code “simply” gives us an idea of how reasonable minds should handle a particular ethical scenario.
When considering how to respond to a subpoena, social workers must keep in mind such things as Privacy and Confidentiality (1.07), Informed Consent (1.03), Clients Who Lack Decision-Making Capacity (1.14), Competence (4.01), Client Records (3.04), Conflict of Interest (1.06), Access to Records (1.08), and Billing (1.13). Keeping these ethical guidelines in mind, a social workers response must be worded to releases the least amount of information possible. For example, a social worker should release, only after valid informed consent is given, the dates of service and possibly who attended and a brief synopsis of the treatment plan. More specifically, a social worker could release goals of treatment and progress made. A social worker should only release facts and should not release opinions or specific statements made by the social worker or the client unless these statements are tied to a duty to warn or mandated reporting issue. A letter from an attorney can be looked at in the same way.
Another thing for social workers to remember is that if the social worker is hired to do therapy with a client, the social worker may NOT do any kind of report and recommendation. This is a trap that social workers seem to fall into regularly.
If there is a subpoena or court order signed by a Judge, the social worker must work to limit the information released to the least amount of information possible to protect the client as long as there is no law mandating the release of the requested information. Keep in mind that each case must be evaluated on a case by case basis utilizing the Code and any relevant state or federal law that might apply in the specific situation.
Anyone interested in learning more can go to my website at http://www.crainemediation.com for a listing of upcoming classes. In addition, I am available to teach this course at your place of business. More details on this topic are available in my soon to be published book on social work ethics. In addition, you are welcome to submit a case scenario in response to this post. In doing so, you agree to have your scenario to be used in my book (please do NOT use any names) and as a possible follow-up to this blog post. Please feel free to send questions or comments as well. I hope you have found this brief overview helpful. Next post: Social Work Ethics Empowerment: What Should Be Contained In a Good Informed Consent Form.
May 21, 2018