Protecting yourself from lawsuits
Suggestions for social workers and health care professionals
People cannot be prevented from suing or lodging criminal charges against social workers or health care professionals for damages that result from physical and emotional harm done to a child as as result of a flawed or biased custody or parenting assessment reports. Even children may launch a legal action against a social worker or health care professional once they are of legal age if they feel that they have reasonable grounds to show that they suffered damage as a result of an assessment report done years earlier. However, social workers and health care professionals can take steps to help protect themselves from liability for work which was performed while working as an employee for an agency or while in private practice. The following suggestions may help:
First and foremost, if you have not taken specialized training or have the special skills to get involved in custody and access disputes, then do not get involved in such matters until such time as you are fully familiar with the complex issues which surround custody and access disputes. Parents and their solicitors will sometimes use deceptive tactics to get you to give an opinion or to make recommendations while keeping you from seeing all of the information that would be relevant in making such an opinion or recommendation.
If you are a social worker or doctor who has been asked for recommendations by one of the parties or their solicitor in a child custody dispute, do not make any sort of recommendations unless you have been given the authority by the court to do so by the court or unless you have given the other side in the dispute the fair opportunity to provide input or you have taken reasonable steps to gather as much information as you can which may be relative to recommendations or opinions you may be asked to provide.
Never write letters at the request of only one of the parties in which you give recommendations which would appear to favour one party's position in a dispute. By doing so you are assuming responsibility for any harm that may come about as a result of your recommendations, should they be implemented. Unless you are ordered by the court to become involved, letters should only be limited to direct observations.
Be sure that you clearly understand your legal and professional responsibilities and qualifications. Know the scope of authority delegated to you, including the limits of discretionary actions. For example, know which actions you can take on your own responsibility and which require prior supervisory of administrative approval. Remember, you can be held accountable for any harm to a child or parent as a result of your involvement. parent. If you work for an agency then get approval from the agency and have this documented. This will put the agency on the hook and lessen your exposure to risk of personal lawsuit.
Familiarize yourself with all applicable laws relating to custody and access. This would also include constitutional law and case law.
Familiarize yourself with community expectations and perform your duties in a manner that the public expects.
If you work for an agency then Insist on adequate orientation, training, and supervision commensurate with the level of assigned responsibility. If you work independently, then continuously upgrade your knowledge and skills to the most current and exacting standards.
Adhere to the professional code of ethics applicable to your profession. Unethical behavior is difficult to defend.
Keep current, written records which include clear, objective statements upon which any interpretations are based. Adhere to administrative policies and procedures when actions are taken and assure a completed record, free of erasures, which would be available for legal perusal. If you are employed with an agency then emphasize your role as an agency representative at all times. Every document and chart notation should be signed as an agency employee, not personally.
Know if your agency has a defined policy of providing legal assistance in the case of legal action against you. If such a policy does not exist, urge to establish one.
If you work for an agency, know if your agency maintains malpractice and liability insurance coverage for all staff. If not, encourage the agency to consider broad coverage. Check the limits of coverage. In some cases individual liability insurance may sometimes be limited if the worker stepped out of his area of expertise.
Consider obtaining personal malpractice and liability insurance coverage if agency insurance is inadequate or nonexistent. Personal coverage may be desirable even when agency coverage appears adequate.
Maintain membership and close ties with appropriate professional organizations or associations.
Always strive to provide high quality services and making decisions based only on sound professional knowledge and principles.
Utilize second opinions whenever this is possible. (community, consultation, committee and multi-disciplinary team reviews) for diagnosis, treatment, case planning and custody and access decisions especially in high conflict cases, as well as for identification and clarification of legal issues. Include the use and outcome of second opinions in your work.
Always remember that recommendations in child custody and parenting capacity assessment reports can have lifelong impact on a child and other members of a family. Bad recommendations made now can come back years from now to haunt you in the form of lawsuits.