Everything You Always Wanted to Know About the NASW Code of Ethics But Were Afraid to Ask: What Truths the Code Reveals

I am frequently asked by students why I recommend a law-based system for decision makin in the mental health professions, including social work, psychology and counseling. The answer, without oversimplifying it, is that professional codes of ethics impart very limited assistance to professionals and students who face important practice decisions every day in their professional lives.

As a primary example of the NASW Code of Ethics’ failure to render adequate assistance, let’s start with the statement made in the Code’s preamble, which warns us that only some of the standards contained in the code are enforceable! The rest are only aspirational principles that we should try to uphold. This is an amazing abdication of any responsibility for holding social workers accountable for certain basic standards of practice.

Consider also the NASW Code’s announcement in its opening pages that it declines to define what it means when it uses the term client. We’re left without any understanding of the responsibilities that emanate from the social worker-client relationship and are led to believe instead that social workers have unlimited responsibilities to persons, communities, and society without any limitation. Indeed, according to the NASW Code, the world is our client! This is obviously ridiculous and unenforceable.

I’ll be commenting in future posts about weaknesses in professional ethical codes and that we can do to ensure that our professional decision making is law based, rational and reasonable, and, moreover, that it advances the real ethical values of our variuos mental health professions. In the meantime, please examine other posts on this blog, together with the rest of the website http://mentalhealthlaw.co, to learn more about law-based decision making.

This blog and the website associated with it present a law based strategy for the resolution of practice dilemmas in the mental health professions. One of those professions is social work, whose members are bound by the tenets of the NASW Code of Ethics. Why do we reject the usefulness of the NASW Code as a decision making tool? One of the reasons is the abject failure of NASW to plainly and unequivocally explain exactly what social work is. Indeed, as NASW’s explanation of the “definition” of social work shows, it is unwilling to inform social workers in simple, plain, succinct language exactly what the specific parameters of social work practice are:

“The primary mission of the social work profession is to enhance human well­being and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty. A historic and defining feature of social work is the profession’s focus on individual well­being in a social context and the well­being of society. Fundamental to social work is attention to the environmental forces that create, contribute to, and address problems in living.

Social workers promote social justice and social change with and on behalf of clients. “Clients” is used inclusively to refer to individuals, families, groups, organizations, and communities. Social workers are sensitive to cultural and ethnic diversity and strive to end discrimination, oppression, poverty, and other forms of social injustice. These activities may be in the form of direct practice, community organizing, supervision, consultation administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation. Social workers seek to enhance the capacity of people to address their own needs. Social workers also seek to promote the responsiveness of organizations, communities, and other social institutions to individuals’ needs and social problems.”

The above definition is broad enough to encompass any profession know to humankind. In its overbreadth it expresses no clear meaning. As we make the case in this blog and website, without a concrete, working definition of social work practice, it is impossible to bind social workers to the standards expressed in the NASW Code of Ethics. In contrast, the law defines social work in terms of the tasks performed by social workers: providing direct mental health treatment, investigating allegations of child and elder abuse and neglect, and related responsibilities. Therefore, we urge that social work practitioners, together with other mental health professional, have much to gain from considering a law-based decision making strategy to address everyday practice dilemmas.

The website and blog frequently discuss the importance of coming to an understanding about what it means to be the “client” of a mental health provider. Specifically, a mental health practitioner cannot lawfully provide services to a person unless and until a professional-client relationship has been formed. This means voluntary acceptance of the relationship by both parties (or, in some instances, substituted acceptance of the relationship by someone acting on the client’s behalf).

What does the NASW Code of Ethics say about the meaning of the term “client”? In a word, nothing. Here’s what the NASW Code does say about clients in its preamble:

‘Social workers promote social justice and social change with and on behalf of clients. ‘Clients’ is used inclusively to refer to individuals, families, groups, organizations, and communities.’

Without the most minimal effort to define the meaning of the term “client,” the NASW Code of Ethics leaves social workers with little or no understanding of what the legal ramifications of initiating a client-professional relationship are. For that matter, the NASW Code leaves social workers without any enforceable guidelines explaining the impact of clienthood on clients and the corresponding duties that it places on professionals. This fact provides yet another reason for mental health practitioner to adopt the law based decision making system advocated by this website and blog in every aspect of daily practice.

Is substance abuse by a parent proof positive of child abuse or neglect?

This dilemma is inspired by a recent episode of the wonderful dramatic show “In Plain Sight”: In the show, divorcing parents with two school-aged children each accuse the other of abusing and neglecting their children. The husband, who is a physician, has been shown to have been prescribing excessive quantities of oxycodone, a painkiller, to his wife. He then proceeds to inform a social worker that his wife’s abuse of the drug constitutes neglect of the children. Apart from the hypocricy of the physician’s attempt to hold his own abuse of his prescription practices against his wife, does the wife’s possible misuse of the drug alone constitute reasonable suspicion that the children are being abused or neglected by the mother? If we take seriously the right of privacy associated with parenthood (see the website’s discussion on constitutional law), then the misuse of medicine does not of itself demonstrate child neglect in the absence of any specific evidence that the children have in fact been mistreated. In other words, this does not present — at least not yet — a “duty to warn” or “duty to protect” case by any mental health professional who comes into contact with this family (please see the website’s discussion of the duty to practice reasonably competently). Parents must be allowed to screw up — to misuse medicine, to drink too much, and to do other things that violate society’s mores — without drawing the immediate inference, without any independent proof, that their children are being abused or neglected. Some alcoholics and substance abusers are excellent parents and never allow their misuse of substance to interfere with important parental responsibilities. What do you think?

Can misleading advertising violate informed consent?

Happy new year everyone!

During a trip to Albuquerque recently as I was driving along the highway I noticed a billboard promoting a law office. The sign said, among other things, that the firm was “powerful.” If one considers the impact this billboard may have in soliciting new clients, one has to consider whether there is anything misleading about this boast, and especially whether any potential client’s ability to consent to services is interfered with by the message of the billboard. It should be remembered that informed consent requires that a prospective client have knowledge of the services he/she is about to receive, together with the risks and benefits of services, and also that the client consent voluntarily to the services. When a law firm suggests to the public that it is “powerful,” it is actively misleading the public and prospective clients into believing that the services the firm offers are of a higher quality because of the firm’s supposed “power.” In reality, to suggest that one firm is more powerful than another simply because it advertises is ridiculous, and this type of “puffing” would seem to confuse and corrupt the information a prospective client needs to have in order to choose to receive the firm’s services knowledgeably and with full information concerning the nature of the firm’s services. What do you think? Please take a look at the section on informed consent on this website! You can access it through the main page, located at mentalhealthlaw.co.

How far “to go” about a colleague’s unethical/unlawful behavior.

A well-known and standard ethics text offers the following scenario:

A clinical social worker at a community mental health center has a caseload that includes clients who have been diagnosed with symptoms of schizophrenia and affective disorders. The social worker’s co-worker discovers that the social worker has been inflating the number of overtime hours she has worked and the amount of her reimbursable travel expenses. The co-worker is aware that Ms. Holmes has been having some financial problems.

The scenario presented above asks the reader to explore the obigations, if any, that the co-worker has to take any action concerning the matter of which he has knowledge. Reference is made to the NASW Code of Ethics, and the reader is asked to consider which of any code provisions provides guidance in this scenario as to exactly which steps to take and, specifically, “how far” the matter should be taken.

If one immediately recognizes the above dilemma as primarily a legal one because of the unlawful practice witnessed by the co-worker, then the conduct observed makes any provisions contained in the Code of Ethics quite beside the point. Many employers have a formal policy that requires workers to advise the employer or the worker’s immediate supervisor when unlawful conduct is observed within the agency. In the immediate example, it could well be observed that if the co-worker fails to report his colleague’s misconduct, the co-worker himself may well become an accessory to the crime, depending upon the specific provisions of the law in effect in the state in which the scenario has taken place. In any event, the co-worker must report the matter to a supervisory authority in the interest of ensuring that the agency’s overall employment reports are free from false representations. That legal responsibility is clear, but the additional question might be asked, is there ever a duty to report the misconduct to a police authority outside the agency? Certainly if the supervisor ultimately in charge of keeping employment records refuses to act or denies the reality that a false report has been prepared, resulting in the possibiity that a false report could be allowed to stand, then the co-worker could reasonably be observed to have a legal obligation requiring him to report the matter outside of the agency. In this instance, it would seem that the co-worker’s legal responsibility to the public plainly trumps any internal agency policies governing the reporting of misconduct by agency workers. Any thoughts on this one? Please post!

Managing a potential conflict of interest in mental health services

Consider this scenario: you are a direct service provider offering mental health counseling to individuals and families. A young woman and her mother visit your office seeking assistance with their personal relationship. You elect to assess them together during their first visit. Each asserts that she has felt depressed in recent weeks and attributes her sad feelings to the fact that the young woman, who is 30 years old, has had to move in with her mother, 52, after a failed marriage. In talking to mother and daughter together, you reach the clinical conclusion that each may be suffering from mild depression and would benefit most from individual psychotherapy. You practice in a rural community in which the number of clinical providers is small, and you consider the possibility of providing individual services to each woman separately. Can you do this legally and does a conflict of interest prevent you from treating each woman separately as an individual client?

In order to address this dilemma, it is helpful to review the material presented in this website concerning the duty to identify the primary client. You reach the conclusion that your clinical assessment reveals that each woman would benefit most from individual psychotherapy, and therefore you are willing — at least preliminarily — to assume a therapist-client relationship with each separately. Is there a conflict of interest presented by this choice? In theory, your treatment of one family member could well cause you to receive information and to allow your independent treatment stance to have an impact on the other. For example, the daughter might assert that her mother’s “abusive attitude” is at least partially responsible for the difficulties she is now experiencing in her life. Similarly, the mother might assert that her daughter’s move back into her household has created tensions between them that are leading to the emotional problems being experienced by both women. Is it possible for you to administer clinical services to both women without allowing information gleaned from each client to influence your treatment of the other? In view of this problem, wouldn’t the provision of services to each woman run counter to best practice standards governing the avoidance of conflicts of interest?

It would be quite rational to answer this question in the affirmative and simply discontinue services with one, or perhaps both, women, in the reasonable belief that your ability to provide independent clinical services will be compromised if individual treatment of both continues. On the other hand, let’s deal with the reality that both women are in need of services that will likely not be provided at all — given the unavailability of clinicians in your rural community — if you don’t agree to provide these services to each woman yourself. This is a problem that rural practitioners face every day, and it is clear that professional codes of ethics often give confusing and sometimes contradictory advice on the management of such situations. If one examines the duty to seek informed consent, a topic discussed in further detail in this website, one finds that it is prudent both clinically and professionally to discuss the risks and possible benefits of providing services to both women before a decision is made either to continue independent services or discontinue them. If the clinician thoroughly discusses the potential dangers of treating both women with each client — including the possibility that the clinician will allow revelations from interactions with each client to influence the practice stance assumed with the other — it may well be concluded that this risk is worth assuming. The reason for this is that the risk of providing services under these circumstances is worth assuming when one considers that avoiding the risk entirely will result in no services being provided at all. After a thorough discussion of the risks involved, a competent mental health practitioner may well reach the conclusion that the decision to continue separate clinical services with both women is both reasonable and in both clients’ best interests. Comments from readers on this discussion are greatly appreciated!

Adolescent sexual activity, birth control, and confidentiality

Happy new year, everyone! I’m back with my take on a practice scenario that has been portrayed in several different ways in several ethics textbooks as an “ethical dilemma.” As with most of the examples pesented on this blog, this dilemma in actuality presents a legal problem that can be resolved by reference to the law based decision making system offered on this website. Here it is:

Polly Davis is a 15-year-old teen who is not getting along with her parents. She has run away from home twice and her parents have taken her to a social worker, Molly Truett, for mental health services. The social worker has seen Polly alone several times. During therapy, Polly tells the social worker that she is sexually active and would like some help in learning how to avoid getting pregnant.  In separate conversation with Polly’s parents, Molly gets the impression that the parents are well aware of Polly’s sexual activity. Should the social worker help Polly obtain birth control pills, even though her socially conservative parents have told the social worker that they are against birth control? Is it proper for the social worker to ignore the parents’ values? Put differently, to whom is Molly accountable?

This dilemma can be resolved in a straightforward manner if one remembers the legal duties, including a) the duty to identify the primary clients and b) the duty to preserve confidentiality, that a psychotherapist owes to her clients. In this scenario, Polly is the primary client and so Molly owes her and only her a legal responsibility to protect her best clinical interests. This means that Molly must practice with reasonable competence, especially in the manner she manages the confidentiality issue. In this scenario, Polly probably has the mental and legal capacity to be protected by the right of confidentiality so that revelation of the information she has shared with Molly would be improper and unlawful. Indeed, Molly owes Polly the clearcut responsibility to keep Polly’s request secret and help her obtain the birth control assistance she needs without interference from the parents.

As always, your comments are invited!

Exploring the right of privacy and self-determination

It is an oft-cited position presented in this blog and website that the law based decision making system offered here provides the most effective and efficient approach to the resolution of practice dilemmas in the mental health professions. A frequent observation made here also suggests that problems that present themselves as “ethical dilemmas” often are discovered to have clear legal characteristics. Several previous blog posts have identified examples of this reality. A dilemma frequently used as a practice example in ethics textbooks concerns the right to self-determination enjoyed by clients. Consider the following ethical dilemma and consider the legal implications that exist at its heart: Ephraim Zinder is a mentally ill client of a community mental health center that is funded in part by various state and federal government offices. Ephraim suffers from schizophrenia, is presently living in a group home, and has been homeless at several earlier times in his life. He spends his days walking the streets of his town and has developed an amazing ability to find garbage dumpsters adjoining local restaurants in which discarded food can often be found. His social worker at the community mental health center has talked to him about developing safer eating habits, but Ephraim simply explains that he prefers to eat food from the dumpsters. When he is offered meals at his group home, Ephraim sometimes reports that he is “full” from the dumpster meals he has eaten. Does the social worker have any obligation or duty to intervene on Ephraim’s behalf in order to stop him from engaging in a practice which arguably could be seriously dangerous to his health? The discerning decision maker will quickly note a legal principle — the constitutional right to privacy — that plainly applies to this case. This right is described by courts as stemming from the 14th Amendment’s principle of substantive due process (please see the website’s discussion on this principle). If substantive due process is applied in the present scenario, Ephraim has a right to perform the essential tasks of his life — including eating — in a manner he sees fit, unless the social worker or the state-sponsored agency can find a compelling state interest that demands intervention. Is there one here? Ephraim’s social worker is of the opinion that Ephraim presents no risk of severe harm to himself or others, even though the ongoing eating habits he has displayed is unhealthy. Is is therefore appropriate to forcibly stop Ephraim from engaging in his eating pattern? In this dilemma, substantive due process supports the position that a person may engage in habits that seem unusual or even bizarre to the rest of the community, but which represent the preferred behavioral routine of the person. Forced government intervention in this matter, through the government social worker and agency, could well be considered to violate Ephraim’s right to personal privacy. How many of us have eating habits which might be considered unhealthy, but which we engage in routinely? Is government intervention warranted here? The majority of us would probably assert that it is not. As always, your comments are welcomed!

Confidentiality after a client’s death

Here’s an interesting case scenario that was presented in an ethics textbook as an example of an ethical dilemma. You’ll find rather quickly that it has a simple legal resolution:

You are employed at a community mental health center and delivered services to a client. The client has been killed in an altercation at a local tavern. A reporter for your town’s newspaper seeks you out for information about your client because there have been rumors that your client had a history of violence and had been abusive to his wife and children. The reported wants to know if this is true because, if it is, it may have some relevance in assessing the guilt of the person who killed your client. Should you cooperate with the reporter?

Of course not! The law of confidentiality requires that a client’s confidences be maintained even after the client dies in the interest of protecting the client and his family. This simple case dilemma, like many of those presented on this blog, presents a legal problem that can be resolved by applying the duty to keep a client’s confidences unless a legal exception (the client threatens violence to himself or others, for example). Please read this website’s discussion about confidentiality for more information about confidentiality.

Comments on this scenario are invited!

The duty to report sexual abuse

I recently came across an astounding scenario in a standard ethics textbook. I use the term “astounding” because it presents an example of a clear, legal problem that is in reality not an ethical dilemma at all! I’m going to paraphrase the dilemma as follows:

You are a mental health professional conducting research concerning family relationships involving at least one minor child. As part of the research design you interview each family member personally. You also interview the family as a unit. During one such interview, with Mary, a nine-year-old, she tells you that her fifteen-year-old sister, Clara, has sex with her stepfather, Igor. What would you do?

The answer is clearly driven by the law. Most states impose a duty on members of the public to report suspected child abuse, including sexual abuse. Even if it were not a state-imposed requirement, the legal duty to practice reasonably competently as a mental health professional–as discussed in this website– demands reporting of the incident.

Comments are invited!

Defining “client”: What does the NASW Code of Ethics say?

The website and blog frequently discuss the importance of coming to an understanding about what it means to be the “client” of  a mental health provider. Specifically, a mental health practitioner cannot lawfully provide services to a person unless and until a professional-client relationship has been formed. This means voluntary acceptance of the relationship by both parties (or, in some instances, substituted acceptance of the relationship by someone acting on the client’s behalf).

What does the NASW Code of Ethics say about the meaning of the term “client”? In a word, nothing. Here’s what the NASW Code does say about clients in its preamble:

‘Social workers promote social justice and social change with and on behalf of clients. ‘Clients’ is used inclusively to refer to individuals, families, groups, organizations, and communities.’

Without the most minimal effort to define the meaning of the term “client,” the NASW Code of Ethics leaves social workers with little or no understanding of what the legal ramifications of initiating a client-professional relationship are. For that matter, the NASW Code leaves social workers without any enforceable guidelines explaining the impact of clienthood on clients and the corresponding duties that it places on professionals. This fact provides yet another reason for mental health practitioner to adopt the law based decision making system advocated by this website and blog in every aspect of daily practice.