Spring, 2003

Inside this Issue:

Dual Relationships and Professional Boundaries
By E. Taylor Aultman, LCSW

Questions about dual relationships are plentiful these days. Social workers do many different kinds of jobs and have lives that intersect with the people that are and have been recipients of their professional services. Most dual relationships are not inherently unethical. All are a bit more complicated and role confusion can occur. Confusing situations are obviously best avoided whenever possible, but there are some situations where role conflict is clearly a breech of appropriate boundaries. The roles of lover, relative, employee, employer, instructor, business partner, or friend are not compatible with the role of professional social worker and certainly not with the role of psychotherapist. These roles are in conflict because they can cloud or impede professional judgment and may evolve into exploitation or perceived exploitation of the client. All are prohibited by the Rules, Standards and Procedures of the Louisiana Social Work Practice Act.

Other dual relationships are clearly no problem and cannot be prevented, i.e., you run into a client at the grocery or any number of other public places. How you conduct that encounter is important for the social work relationship but it generally is not going to be problematic for the professional relationship. There are other gray areas where dual relationships can get quite complicated due to possible role confusion and the potential for exploitation. For example when an agency uses former clients as part of service delivery by employing former clients or by using ex-clients in volunteer or board member roles, the issue of boundaries, exploitation and role confusion all become salient.

Boundaries are a system of limit setting and definition. The purposes of boundaries are to protect, contain and define the self. Boundaries are both learned and developmental. Boundaries primarily protect us from others, others from ourselves, and define who we are and our role responsibilities. If we have good personal and professional boundaries and do not exploit others for our gain, we set an example for healthy living and good social work practice.

Clear role definition and separation make that much easier. It is our responsibility to define and limit the professional relationship to advance the welfare of clients and protect them from harm that could result from misuse of the relationship or role confusion.

Some of our clients do not have clear and defined boundaries. They are in a less powerful position in relation to the social worker and therefore are more vulnerable to exploitation. Exploitation is the social worker’s use of the professional relationship to promote or advance the social worker’s emotional, financial, sexual, religious or personal needs. It stems from the inherent power differential and the ability of the social worker to exert undue influence on the client, whether intended consciously or not, for the sole benefit of the social worker. It is our professional responsibility to monitor the effect that we have on our clients and meet our personal needs in other areas of our life to prevent such exploitation.

The client may even initiate and be gratified by the exploitation initially. They may want to be special, liked or helpful to the social worker. An example might be a client who offers to work for the social worker for a lesser salary than normally paid. It is the social worker’s responsibility to maintain appropriate boundaries. Exploitation can be subtle and vary from promoting excessive dependency or avoiding confrontation. Any time the relationship focuses on you and not the client, whether intentional or not, exploitation can occur. Social workers are not immune to the defenses of denial and rationalization which is why we need to continually assess the effects of what we do and whom it benefits in order to avoid conflicts of interest.

The potential for boundary crossing or blurring is higher in the midst of dual or multiple relationships. For example, should a former client be hired in an agency, this hiring can bring up a number of boundary issues. Is this person now to be treated as a coworker by the staff? Will the client react as an employee or expect to be treated as a client? Who supervises the former client? How much self-disclosure is now appropriate for the staff? What access does the new employee have to records? How will other clients respond to the ex-client as an employee? What if the ex-client needs services again? Obviously this dual relationship might lead to awkward situations. Many agencies do use former clients for delivery of some services, volunteer and board positions. These former clients are in a unique position to understand the problems, provide support and empathy and help formulate solutions. If done carefully and thoughtfully, this practice can be effective. What can be done to safeguard this practice for the benefit of the former client?

There are several strategies that can help manage these problems so that these former clients can be utilized as the resource that they are while protecting everyone involved.

Dual relationships, which are not in and of themselves harmful, do provide an opportunity for exploitation and boundary confusion. In most cases where social workers have crossed the line into sexual or other ethical violations, this began with a step into a dual relationship with a client. To prevent exploitation and minimize possible harm:

The potential for dual relationships is going to continue to increase in social work practice. The successful management of these dual relationships so that they do not lead to harm for the client or the social worker is the sole responsibility of the professional social worker.

BOARD MEETING DATES
FOR 2003:

All meetings begin at 9:00am and are scheduled to be held in the LABSWE office in Baton Rouge.
Meetings carry over into Saturday if necessary.

LICENSE COUNT BY CREDENTIAL

(as of February 28, 2003)

CONTINUING EDUCATION
 

Louisiana State Board of Social Work Examiners
announces an upcoming workshop on

Record keeping, Mandatory Reporting and Legal Issues
for Social Workers

by

Dale Standifer, LCSW, Complaint Investigation Officer
Melinda M. Tucker, Assistant Attorney General, State of Louisiana

Friday, June 13, 2003
Lafayette, Louisiana

More information will be sent in the next few weeks!!!

Jacqueline R. Shellington, LCSW

Jackie Shellington, LCSW is the newest member of the LABSWE Board. Ms. Shellington is currently serving as the Director of the Our Lady of the Lake Regional Medical Center's Immunological Support Program. Ms. Shellington has over 18 years of social work experience which includes, direct practice, program development, supervision and administration. She has extensive teaching experience at the master and undergraduate levels, as well as, local, state and regional level experience with workshops and conferences. Ms. Shellington has previous board experience with her work with the HIV/AIDS Alliance for Region Two (HAART), Capital Area Alliance for the Homeless (CAAH), and Gulf Coast Texas HIV Consortia for Ryan White Funds, 1991-1992. Ms. Shellington brings a wealth of experience from the practice areas of medical social work, psychiatric, aging and administration.

BOARD VACANCIES

On July 26, 2003, there will be three vacancies on the Louisiana State Board of Social Work Examiners. The vacancies will be for a Graduate Social Worker (GSW), a Registered Social Worker (RSW), and a public member. LSA R.S. 37:2704, mandates the following qualifications for Board members:

If you are interested in serving on the Board, you should submit a letter stating your interest along with a current resume to the Board office or one of the following organizations by May 31, 2003:

Louisiana Association of Clinical Social Workers
P.O. Box 14153
Baton Rouge, LA 70803

Louisiana Chapter of National Association of Social Workers
700 N. 10th Street, Suite 200
Baton Rouge, LA 70802

Louisiana Council on Social Work Education
LSU School of Social Work
Baton Rouge, LA 70803

Board members are appointed by the Governor to serve for three (3) consecutive years. You may contact Suzanne Pevey, Administrator, at the Board office (225-756-3470 or 800-521-1941) if you have questions concerning the Board’s activities and the time commitment required of Board members.

YOUR CLIENT'S TESTIMONIAL PRIVILEGE
by George Papale

Social workers who are requested to disclose confidential client information or records do not need special legal training or expertise in order to competently assess their responsibilities to their clients and to the legal system. However, general knowledge of the nature, purpose, and application of testimonial privileges should help social workers better understand some of their specific duties which occasionally intersect with a challenging legal area about which even Supreme Court Justices disagree.

The law (by legislative enactment or through evolving case precedents) has recognized that certain communications between people in certain types of relationships are worthy of protection. The protection is found in defensive evidentiary rules generally referred to as "testimonial privileges"'. The law confers on persons in these specified relationships a "privilege" against having to testify about confidential matters arising during the relationship. The "holder" of the testimonial privilege can assert or "claim" the privilege in trials, hearings, discovery and other proceedings as a means to avoid testifying about the "privileged" information or to prevent the disclosure of documents and objects.

The holder of the privilege actually is the person who reveals the confidential information with the expectation that it will remain confidential because of the nature of the relationship. The other party to the relationship, while technically not the holder of the privilege, is presumed by law to have authority (and by professional ethics may be required) to claim the privilege on behalf of the holder. Generally the holder of the privilege can refuse to disclose or to testify as well as prevent the other person involved with the transmittal of the confidential information from disclosing or testifying about the subject matter to which the privilege applies. Occasionally, two or more persons ("joint holders") may be holders of a privilege relating to the same confidential information, either of whom may claim the privilege.

Disputes can arise about whether the content of the communication is within the "scope" of the claimed privilege. On other occasions the court may determine that the holder of the privilege has "waived" the privilege by voluntarily disclosing or consenting to the disclosure of a significant part of the information to which the privilege might otherwise apply. A waiver of the privilege by one joint holder generally does not affect the right of the other joint holder to claim the privilege.

Sometimes, due to legally created "exceptions" to the privilege, the confidential communication is not given evidentiary protection even though it occurred in a relationship where a privilege applies. For example, social workers are allowed to disclose those confidential communications that are necessary to defend themselves against a client's malpractice suit. Usually exceptions to privileges are based on some conduct or claim of the holder which would make the simultaneous application of the privilege legally inconsistent or unfair. Other exceptions reflect legal determinations that a court's need of the evidence outweighs the need for the privilege. Certain privileges such as the one which governs confidential communications made to a minister, priest, Rabbi or similar religious person (the clergyman privilege) list no exception to the privilege in Article 511 of the Louisiana Code of Evidence (C. E. Art. 511). In contrast, the Health care provider-patient privilege (C.E. Art. 510 which applies to social workers) lists 13 exceptions to the privilege.

As guardians of client confidences, many professionals urge the courts to apply privileges as expansively as possible. Courts, on the other hand, apply these evidentiary rules from a different perspective guided by some long-standing fundamental principles. One such principle is that the public has a right to "Everyman's evidence", which is another way of expressing a witnesses' general duty to give what testimony he or she is capable of giving. Another principle is that the courts are to employ all reasonable means to search for the truth. A rule, which allows a witness to withhold evidence (perhaps important evidence) from the fact-finding process, is antagonistic to the above principles. As a result of this natural antagonism, it is often written that there is judicial disfavor of testimonial privileges. An awareness of these differences in perspective may make it easier to understand why an exception to a privilege exists, why the outer limits of confidentiality are not necessarily protected by an applicable privilege, or why a judge ruled in a particular way.

The "Privileged communication" section of the Social Work Practice Act (La. R.S. 37:2718) in subpart A states: "Testimonial privileges, exceptions, and waiver with respect to communications between a social worker and his client are governed by the Louisiana Code of Evidence. The exceptions, which allow social worker disclosures found in subparts B and C of this Practice Act section overlap with or reinforce exceptions to the testimonial privilege found in the Code of Evidence, are considered primary authority, and are within the working knowledge of social workers. Rule 115 of the Rules, Standards and Procedures entitled "Client confidentiality" not only sets out the social worker's duty of protecting confidential information but also identifies circumstances where the release of client information or records can occur without the client's written consent. The same role (subpart D) places a responsibility on the social worker to inform the client on the limits of confidentiality ''as provided under applicable law". The limits of confidentiality related to mandatory reporting of abuse or neglect of children or elders and the duty to warn in relation to threats of physical violence are well known. However, the limits of confidentiality in circumstances "'giving rise to the list of exceptions to the healthcare provider-patient privilege" listed in the La. Code of Evidence Article 510 are less familiar. Because of its importance to social workers and their clients a detailed presentation of Article 510 (minus the discussion of the application to other health-care providers to which the Article applies) is included in this newsletter (page 12).

Art. 510. Health care provider-patient privilege

A. Definitions.

(I) "Patient" (client)-one who consults or is examined or interviewed by another for the purpose of receiving advice, diagnosis, or treatment relating to their health.

(2) "Health care provider" includes a psychotherapist, which is further defined in 4 (c) as a person "licensed as a. ..social worker under the laws of any state or nation."

(5) "Representative of a patient" is any person who makes or receives a confidential communication for the purpose of effectuating diagnosis or treatment of a patient.

(6) "Representative" of a...psychotherapist (social worker) is:

(a) A person acting under the supervision, direction, control, or request of a psychotherapist,… engaged in the diagnosis or treatment of the patient.

(b) Hospital personnel…, whose duties relate to the health care of patients or to the maintenance of patient records.

(7) The definitions of....,psychotherapist, and their representatives include persons reasonably believed to be such by the patient or his representative.

(8) (a) "Confidential communication" is the transmittal or acquisition of information not intended to be disclosed to persons other than:

(i) A health care provider and a representative of a health care provider.

(ii) Those reasonably necessary for the transmission of the communication.

(iii) Persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist. (Presumably includes persons present at a crisis intervention session directed by a psychotherapist)

(iv) A patient's health care insurer, including any entity that provides indemnification to a patient.

(v) When special circumstances warrant, those who are present at the behest of the patient, physician, or psychotherapist and are reasonably necessary to facilitate the communication. (Presumably includes members of a group therapy session).

(b) "Confidential communication" includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by the health care providers and their representatives.

(9) "Health condition" is a physical, mental, or emotional condition, including a condition induced by alcohol, drugs or other substance.

B. (I) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives. (Note: The following exceptions only apply as to testimony at trial or to discovery of the privileged communication by one of the Code of Civil Procedure discovery methods such as a deposition or pursuant to

R. S.40:1299.96 (with written authorization from client, client's attorney or representative), or by R. S.13:3715.1 (formal subpoena duces tecum). Also, the listing of exceptions, although complete, has, in parts, been condensed from the actual text of the Article in the interest of space.)

(2) Exceptions. There is no privilege under this Article in a non-criminal. proceeding as to a communication:

When the communication:

(a) relates to the health condition of a patient asserting a personal injury claim in a judicial or worker's compensation proceeding.

(b) relates to the health condition or a deceased patient in a wrongful death, survivorship, or worker's compensation proceeding brought because of the death.

(c) is relevant to patient's health condition relied on as part of a claim or defense by the patient (or other claimant in the event of patient's death, in any proceeding.

(d) relates to patient's health condition and the condition has substantial bearing on patient's fitness in child custody or visitation proceeding, or when the patient is the child subject to such a proceeding.

(e) made to the psychotherapist was intended to assist the patient or another to commit or plan to commit what patient knew or should have known to be a crime or fraud.

(f) is made in course of patient’s court-ordered examination about which order patient was aware prior to the communication, and the communication concerns particular purpose of the examination, unless court directs otherwise.

(g) (i) is made by patient to current therapist and patient is a subject to interdiction or commitment proceeding who has failed or refused to submit to an examination by court-appointed health provider knowing of the appointment and the consequences of not submitting.

(ii) However, in any commitment proceeding, a court-appointed physician may review medical records of patient/respondent and testify only to communications therein essential to determine whether patient is danger to self or others or is unable to protect self from serious harm or to survive in freedom. Patient must be aware (prior to the communications) that such communications are not privileged in a subsequent commitment proceeding or communications shall not be disclosed. Court-appointed examination is governed by B(2) (f) .

(h) is relevant in peer review committee/disciplinary proceedings to determine deviations from applicable professional standards.

(i) is one regarding blood alcohol or drug tests of patient who is defending against a damage claim for injury, death or loss.

(j) When disclosure of communication is necessary for the defense of health provider in malpractice ac'tjon brought by the patient.

(k) is relevant in child/elder/disabled/incompetent person abuse cases.

(l) is relevant after patient's death to patient's prior capacity to contract.

(m) is relevant in contested testament case on capacity of deceased patient.

C. (1) General rule of privilege in criminal proceedings.

In a criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice) diagnosis or treatment of his health condition between or among himself, his representative, and his physician or psychotherapist, and their representatives. (Note: The following Exceptions to the privilege in criminal cases, while not expressly tied to requirements for civil discovery procedures. are compatible with disclosures by written authorization (La. R. S. 40: 1299.96) or by subpoenas duces tecum (La. R. S. 13:3715.1). Also La. R. S. 13:3715.1 (C) provides the following significant protection: "No health care provider, employee, or agent thereof shall be held civilly or criminally liable for disclosure of the records of a patient pursuant to the procedure set forth in this Section, R. 40:1299.96, or Code of Evidence Article 510, provided that the health-care provider has not received a copy of the petition or motion indicating that legal action has been taken to restrain the release of the records.")

(2) Exceptions. There is no privilege under this Article in a criminal case as to a communication:

When the communication:

(a) is relevant to accused's health condition upon which the accused relies as an element of his defense.

(b ) was intended to assist the patient or another to commit or plan to commit what patient knew or should have known to be a crime or fraud.

(c) was made in course of patient's court-ordered examination to determine patient's health condition, provided patient was served with order prior to communication.

(d) is record of test results of blood alcohol level/drugs taken from patient while under arrest, or of person subsequently arrested for test-related offense.

(e) is in form of tangible object, including a bullet, removed from patient's body, where object was in body of patient as result of crime charged.

(f) is relevant to the investigation or prosecution of child/elder/disabled/incompetent person abuse.

D. Who may claim the privilege. In both civil and criminal proceedings, the privilege may be claimed by the patient or by his legal representative. The person who was the..., psychotherapist,...or their representatives, at the time of the communication is presumed to have authority to claim the privilege on behalf of the patient or deceased patient.

E. Waiver. Subject matter of this section included in note before B(2) Exceptions.

F. Medical malpractice. This section eliminates the privilege in medical malpractice claims as to information "directly and specifically related to factual issues pertaining to" liability of health provider who is named party in pending lawsuit or medical review panel; but maintains the more limited exception regarding information about patient's "current treatment or physical condition".

G. Sanctions. Section authorizes court to impose sanctions on any "attorney who violates a provision of this Article".

Louisiana Federal courts under Federal Rules of Evidence (Rule 501) will apply Louisiana's privilege law when handling cases in which only Louisiana substantive law is controlling (state-law claims such as diversity of citizenship and Federal Court Claims Act cases). In cases based on federal claims, Federal courts, under Rule 501 , are governed by common-law principles of privilege as developed through federal case law. Fortunately, because of a courageous Illinois social worker, Karen Beyer, that federal case law now includes the 1996 United States Supreme Court decision of Jaffee v.Redmond, 116 S. Ct. 1923 (1996). The Jaffee case officially recognized the psychotherapist-patient privilege (applicable to social workers) in a federal law claim. In time, federal case law may develop exceptions to that privilege similar to those found in Louisiana's evidence article 510. Nevertheless, social workers, in federal claim cases, can assert that confidential communications with their clients, occurring in the course of diagnosis and treatment, are protected from compelled disclosure under Rule 501 .

Social workers also should be aware that certain client communications may be subject to an overriding federal privilege or protective regulation. Such measures include 38 U.S.C. 7332 (confidentiality of Veteran Affairs substance

abuse records); 42 U.S.C. 290dd-3 (confidentiality of patient records maintained in connection with federally supported alcoholism/alcohol abuse programs); 42 U.S.C. 290ee-3 (confidentiality of patient records in connection with performance of federally supported drug abuse prevention function); 42 U.S.C. 421 (privacy protection for research subjects Public Health Service hospitals/drug dependent persons): and 42 U.S.C. 3419 (prohibition against use of narcotic addiction records from Public Health Service civil commitment proceeding against a patient in a criminal proceeding).

The Jaffee case recognized that effective psychotherapy "depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears." Social workers can strengthen client trust by asserting testimonial privileges and by timely counseling with their clients about the limits of confidentiality due to the exceptions to those privileges.

The Jaffee case officially recognized the psychotherapist-patient privilege (applicable to social workers) in a federal law claim.

FREQUENTLY ASKED QUESTIONS
by Brenda Trivette, LCSW

1. A social worker is seeing a mother and her four children. The children have two different biological fathers. One of the biological fathers has requested the records for his two children. Since the social worker saw the mother individually and as a family, how can the social worker protect the confidentiality of the two children who are not the biological children of this man?

This seems to be what the British describe as a sticky wicket! What sort of custody arrangement is there for both sets of children? If the requesting father shares joint custody of his children, he has a right to review the children’s records. Nonetheless, he does not have a right to review records relating the mother’s individual treatment without her signed written consent. If the second biological father also has joint custody of his children, then the first father must obtain both the mother’s and the second father’s signed written consent in order to review any records relating to the step-siblings of his biological children.

2. A social worker (first) has discovered that another social worker (second) is asking a client to pray and write letters to God concerning his homosexuality. What is the first social worker’s first step and subsequent steps in dealing with this?

The first step is to get more information. You would need to determine why the client sought treatment in the first place as well as the personal importance of the client’s religious values and belief system. Social workers begin where the client is. As the treatment social worker, simply follow the client’s lead at the beginning of treatment.

If after getting more information you believe that this social worker is imposing his/her religious values on the client, you should talk with the social worker and remind him/her of the client’s right to self-determination, the Standard of Practice, Chapter I, Rule No. 107.D. Nondiscrimination, as well as Rule 109. Competence. A., 2. and 3. (although some social workers are also trained as Pastoral Counselors, the question is has this social worker had “appropriate education, research, training, consultation, and supervision” in the techniques of prayer and letters to God?) If you do not feel satisfied with his/her response, you should report this social worker to the Board due to possible ethical violations.

3. Is it ethical for a school social worker to see a child for behavior problems that is currently in therapy with a social worker at a local mental health center?

This is more of a practice issue than an ethical one. Certainly, the school social worker should not be involved with a child who is in therapy elsewhere without the consultation and consent of that therapist. In many cases, the mental health center social worker may be working on family or historical issues not readily addressed in the school setting. However, the emotional symptoms related to these underlying intra psychic issues, (e.g., anger, aggressive behavior, etc.) are frequently expressed in the school setting. Symptom control/eradication could be the therapeutic focus for the school social worker (i.e., in a group setting) to augment the mental health center social worker’s treatment plan for this child and the family.

4. A social worker running a group is told by a member of the group that she has knowledge that another individual (not a member of the group who was diagnosed with AIDs is having unprotected sex with the client’s sister. Does the social worker have any responsibility to notify the police, the client’s sister, the individual diagnosed with AIDS?

Such hearsay information without substantiation or conclusive evidence is dangerous ground. It would seem that the work of the group (and the social worker) would be to help the group member develop a plan to inform her sister of her suspicions and to urge and/or assist her sister to take appropriate protective medical steps.

5. A social worker is seeing a child and the parents are not married. The dad is listed on the birth certificate and has just been released from prison and wants a report on the child and the therapy. He also wants to know where the mom and child are living. What are the social worker’s responsibilities?

The social worker’s relationship is with the mother and the child. If “a need to know” exists for the biological father, he must obtain a legal release from the mother. Where the mother and child are living is not information the social worker is free to reveal to anyone without the mother’s consent.

Welcome New LCSWs, GSWs, & RSWs
LCSWs
The following social workers have been granted the LCSW license by the Board as of 1/27/03

The following were listed as GSW's in the Winter 2002 newsletter instead of LCSW's. Please note the corrections:

GSWs
The following social workers have been granted the GSW certification by the Board as of 1/27/03

The following were listed as LCSW's in the Winter 2002 newsletter instead of GSW's. Please note the corrections:

Provisional GSWs
The following social workers have been granted the provisional GSW certification by the Board as of 1/27/03

ATTENTION PROVISIONAL GRADUATE SOCIAL WORKERS!!

LA. RS. 37:2707.B. allows an individual to hold provisional certification for up to three (3) years from the date of ISSUANCE of the original certificate provided the individual takes the examination approved by the LABSWE at least once a year. It is the responsibility of the Provisional GSW to submit proof or examination to the Board office once each year of eligibility.

RSWs
The following social workers have been granted the RSW registration by the Board as of 1/27/03