Community Workers’ Rights and Responsibilities
This chapter provides information in relation to two areas of professional responsibility: duty of care and confidentiality. This chapter helps you understand your obligations and provides information on what to consider in your everyday work environment. This chapter offers an overview of your legal rights and responsibilities as a community worker.
The information in this chapter is taken from Between a Rock and Hard Place. This is a publication produced by the Fitzroy Legal Service and provides accessible legal information relevant to community workers and their clients. If you would like to down load a free copy, click here.
1.What is my standard of care?
So that you do not breach the duty of care owed to a client you need to be careful to meet the appropriate standard of care in the circumstances.
Useful questions to ask when trying to establish the standard of care include:
- If your client has suffered ‘harm’, was this ‘harm’ foreseeable?
- What is the usual practice in these circumstances?
- Are policies or procedures available that outline the appropriate conduct in these circumstances?
- Are there professional standards that govern practice in this area, such as, what would a reasonable/diligent professional do in the same situation?
- How likely is it that harm would result from your conduct?
2.What are the consequences of a breach of duty of care?
Consequences can range from a complaint to your employer, which could lead to a review of work processes, to charges for criminal negligence and serious disciplinary procedures.
You should understand that if a person fails to take reasonable care but no harm is suffered, the person could still be subject to disciplinary procedures by the employer.
3.How can you provide a decent service while protecting yourself from complaints of negligence?
This is really just about acting professionally and meeting your duty of care requirements. This may require you to:
- be aware of, and follow, the organisation’s policies and procedures;
- discuss issues of concern with a supervisor, where possible;
- ensure your actions do not fall below the required standard of reasonableness;
- continually assess foreseeable harm and the likely effect of your actions or inactions;
- take steps to record your actions and the reasons for them;
- make sure that you consider issues of confidentiality; and
- ensure that you can demonstrate that the statements you use, whether written in record or spoken, are factual.
4.What do you need to know about privacy and confidentiality?
Confidentiality belongs to the client, meaning that it can only be breached:
- with permission of the client, or
- in special circumstances, where:
- the health of your client or others is at risk, or
- you are required by order of a court to breach confidentiality.
Where there is a competing duty between the public interest in protecting confidentiality and the public duty to disclose, the latter prevails. For social workers breach of this public duty is only likely to occur if you are mandated to disclose or report that information, such as in child protection matters. Alternatively, in a limited range of circumstances where you know that your client is at risk of self harm or harm to someone else, you are entitled to breach that duty of confidentiality or privacy.
Your obligation to keep matters confidential can arise from:
- the terms of your employment contract;
- your professional code of ethics;
- an agreement between you and a client; and
- through legislation, such as the Information Privacy Act 2000 (Vic).
5.What if police request information about a client?
Confidentiality and the police Your client can waive or relinquish the obligation of confidentiality and privacy, but what if police request information about a client? What are your obligations then? Does it make any difference if the police have a subpoena?
A subpoena is a document requiring you to go to court to be a witness and/or to produce certain documents to the court. Your case notes, files, records, etc. may be subpoenaed in a variety of cases, such as:
- care applications;
- criminal matters involving one of your clients (either as an offender or a victim); or
- cases where a client is suing you or someone else.
A subpoena is issued by a party to a court case (or more commonly by their lawyers). It is similar to a court order in that it must be obeyed unless the court directs otherwise.
Refusal to answer a subpoena can have serious consequences. A summons can be issued to bring you to court, and then the court may issue a warrant for your arrest if you fail to answer the summons. Failure to answer questions or to disclose certain material in court may lead to a prosecution for contempt of court. Penalties can include imprisonment.
Subpoenaed documents do not automatically become evidence in the court case. However, even if the documents are not used as evidence, the information obtained from them can potentially cause harm.
6.What if you know your client has committed or may commit a crime?
If you do not reveal information you know to the police you could be in trouble for concealing an offence, being an accessory or for hindering police.
For example, police investigators may come to you seeking information about a client’s whereabouts or activities on a particular day. A police officer may threaten to charge you with hindering police if you refuse to provide information. However, mere failure to provide information does not amount to hindering police. To be guilty of hindering police, you would usually need to do something that actually obstructs them, such as refusing to allow them to execute a search warrant. It is possible that providing false information (with the intention of deceiving the police and getting them off your client’s trail) may amount to hindering.
7.Is there a duty to warn or protect potential victims?
There are a number of considerations to take into account in answer to this question, such as the prevention of a crime. The law is not clear on this, although it is unlikely that a court would impose a duty on a counsellor to warn a potential victim.
8.What if a client is threatening self-harm?
In some circumstances you may be under a duty to take reasonable steps to prevent your client from suffering harm. Your duty will depend on the type of service you work for, and the age and mental capacity of the client.
If a client threatens self-harm and you wish to notify someone, such as a mental health crisis team, you would almost certainly have a lawful excuse to breach your client’s confidentiality.
In most cases, the law does not compel you to disclose a client’s past or intended criminal activity, or threats of self-harm. If, however, you feel there is a serious and imminent risk to the client, another person’s or the public’s health and safety, the law will allow you to disclose information without getting into trouble for breaching confidentiality.
In some cases it may be reasonable for you to pass on confidential information. In other cases breaching confidentiality could have such a detrimental effect on your relationship with the client (and your chances of assisting the client’s rehabilitation) that you would be justified in not reporting a client’s crimes or threats.