Human Service Workers & the Law - Case Study Example

Human Service Workers & the Law Susan Wood Student ID Number 110040934 Assessment Number 2 Case Study Due Monday 21st January 2013 5.00pm John Legally John may have exposed himself to liability for the way he reacted when he was advised about the disappearance of Rose from her foster parent’s home. John may be accused of negligence because he ignored his responsibility to prevent harm to Rose. Under the South Australia Children's Protection Act 1993, John should have immediately notified the Children protection department of Rose’s disappearance from foster care. The act sets out in Section (1) If (a) a Social worker like John has reasonable grounds to believe a child is neglected or being abused (b) In the course of his paid or voluntary employ; he is obligated to report to the children protection department as soon as possible. In this case John fails to fulfil his obligation as a Social worker as regard Rose’s disappearance from foster care. As a qualified Social worker, a suit of negligence can be brought against John for failing to report Rose’s incident when he ought to. To prove that, John acted negligently by forgeting to report that Rose had fled his foster home, the plaintiff would have to prove the three elements of negligence. These three elements are: 1. John owed Rose a duty of care to protect her. 2. John breached his duty of care to Rose. 3. John’s breach of duty of care caused harm to the defendant. The question of whether John owed a duty of care to Rose is very straightforward. As a social worker, it is stipulated by the Children Protection Act 1993 Section (11) that Social workers have an obligation to report all cases or suspected cases of child abuse. Courts also hold trained personnel like John to higher standard of care when it comes to client-professional relationship. The second element of whether John breached his duty of care to the young girl is also straightforward. John’s breach of duty of care was through omission rather than commission. John’s omission was failure to inform his employer of Rose’s alteration with her foster parents and her consequence flight from foster care. John cannot plead forgetfulness as the Children Protection Act requires him to report such cases as soon as possible. Finally, the element of damage in a negligence case against John would also not be hard to prove. It is shown that when Rose left her foster parents home, she moved in with a 35 year old man. It is clear the man sexually exploited the young girl an eventuality that would not have occurred in John had reported the (Jackson et al 2011). A second legal situation that can be found in John’s case involves his complains that he is overworked. Under the Work Health and Safety Act 2011 section (84), John has a right to sue the Department for overworking him. John is also caught up in a legal situation where he could be prosecuted for compromising the privacy of clients. Under Privacy Act 1988 (Cth) and 5.2.5 g and 5.5.4 c of the AASW Code of Ethics (Australian Association of Social Workers 2010) it illegal for John to give out the name of clients in the name of Whistle blowing. John may have also broken the SA public Sector code of Conduct by airing to the press the names of the department clients. John lacks the protection of the Whistleblowers protection act as he did not bring the matter to the attention of the Media according to the Act (Jackson et al 2011). Procedural Issues It is mandatory for social workers like John to report any cases of Child abuse. Under the mandatory reporting rules set out in Section 11 of the Children's Protection Act 1993, John is part of the Mandatory reporting and therefore he is under obligation to report the suspected case of child abuse. Ethical issues facing John John is faced by the ethical issue of deciding whether to report his department for the overloading its social workers. John could lose his job or be jailed for the contraventions of the law he commits by deciding to go to press to expose the corruption at the department. Daniel Under the Criminal Law Consolidation Act 1935 (Section 49) Daniel has committed a criminal offense by cohabiting with Rose. According to the Act the legal age for sexual consent in South Australia is 17 years. Therefore, Daniel should be arrested and criminal charges brought against him for having sexual relationships with a minor. In this case, Rose’s lack of options after leaving the foster home makes her vulnerable to sexual exploitation by Daniel. Secondly, Daniel faces possible prosecution for harassing his ex-wife and her Children. In the case study, it is shown that Daniel frequently parks outside the residence of his former wife and loudly plays loud music. Under the Domestic Violence Act 1994 Section 4 (1), Daniel is guilty of Stalking. His wife can easily obtain a restraining order against him under the Act. Ethical situation Daniel conduct brings him out as a very unethical person. Daniel clearly ignores his ethical obligation to protect the underage girl, Rose. Instead he takes advantage of Rose’s vulnerability to cohabit with her. By stalking his ex-wife even after she had repeatedly made him aware they were never getting back together. Procedural Situation For Rose to give evidence against Daniel several procedural steps are to be taken to ensure the accuracy of her evidence in the trial. The Victims Support services are responsible for providing the services that prepare witnesses like Rose for giving evidence in Abuse situations (Kennedy and Richards 2012). Rose Legal situation According to the Criminal Law Consolidation Act 1935 (Section 49), Rose is below the age of consent, and therefore her concern that he loves Daniel and will not leave him are legally irrelevant. Ethical issue Roses faces the ethical issue of whether it is right to cohabit with person who is twice her age. She must also take into consideration that she is below the legal age of consent to sexual intercourse. Procedural issue Before moving out of her foster home, Rose should have contacted a social worker so they could arrange for her care. Cathy’s Legal Situation Cathy has been constantly harassed by Daniel his former husband. On several occasions she had made it clear that there was no chance of her and Daniel reconciling. In response Daniel responds by following her around and parking near her sister’s residency. Cathy and her children lived in her sister’s place where they had to contend with Daniel playing love songs loudly from his parked car. Under the intervention orders (prevention of abuse) act 2009 Section (31) such conduct constitutes the offense of stalking. Cathy can obtain a restraining order against Daniel. Ethical Situation In the cases study it is shown that Daniel was Cathy’s former husband and they had two kids together. Cathy may have an ethical dilemma while deciding whether to report his former husband for harassment (Nancarrow 2010). Taking into consideration reporting him may lead to his arrest and subsequent imprisonment. Procedural Situation Under the Domestic intervention orders (prevention of abuse) act 2009 Section (20), either Cathy can report the harassment by his former husband or a police officer can do so. Under this provision, John is not part of the procedure for reporting domestic violence and is under no duty to report or seek a Domestic Violence Restraining Order (DVRO). Grant’s Legal Situation Grant has been accused of involvement in a series of break-ins. Grant can have criminal charges against him as he is above the age of 10. However, under the rebuttable presumption of doli incapax criminal proceedings against Grant can be halted (Kennedy and Richards 2012). However, for a child at the upper limit of the presumption it may be easily rebuttable. Grants legal situation is complicated by the way the police handled him after arresting him. According to her mother the young boy is being held at the detention centre in contravention of the Young Offenders Act 1993. Under Section 3(3) of the Act young offender should not be held in way as to; interfere with family relationship and environment, to interfere with education. Ethical Issues In Grant’s case the young boy has to choose between conceding he is guilty for crime he did not commit to avoid being sentenced to correction centre. If he concedes he committed the crime the sentence would be light as he would be taken to a family conference. Procedural Situation In Grant’s case a number of procedural issues concerned with his evidence and detention. Grant is a child witness and is supposed to go through a different procedure while giving evidence. The evidence rules under the Young Offenders Act 1993 Section 2 also makes it illegalo question a child for prolonged duration. It is shown in the Grant’s cases the police grilled her for more than 15 hours. The police also contravened evidence rules by interviewing the young boy in the absence of adult guardian to represent him. It is clear that Grant’s intention to admit guilt so as to get as smaller sentence is a consequence of the way the police handled him after arresting him. Government Welfare Agency The government welfare agency faces a number of legal issues in the case study. By overworking their social workers the Agency has contravened the Occupational Health, Safety and Welfare Act 1986. The accusation of corruption within the welfare agent can have the executives of the Authority prosecuted under the Public Sector Management Act 1995 Section 1. Failure of the John an employee of the company to report a probable case of child abuse may also see the Agency held vicariously liable for the conduct of its employee. The company may also attract vicarious liability for the offence John commits by divulging the personal information of clients. Ethical Issues The government agency is also contending with a number of ethical issues while dealing with the situations indicated above. As a state agency the welfare organisation is faced by funding problems and therefore it has no funds to employ the required number of workers to sustain its operations. Procedural Issue The agency may be able to raise a defence against the procedure used to bring to attention the mismanagement at the agency. References Legislation AASW Code of Ethics (Australian Association of Social Workers 2010) Children's Protection Act 1993 Criminal Law Consolidation Act 1935 Intervention orders (prevention of abuse) act 2009 Occupational Health, Safety and Welfare Act 1986 Privacy Act 1988 Public Sector Management Act 1995 Young Offenders Act 1993 Books Jackson, D, Peters, K, Hutchinson, M, Edenborough, M, Luck, L, & Wilkes, L 2011, 'Exploring confidentiality in the context of nurse whistle blowing: issues for nurse managers', Journal Of Nursing Management, 19, 5, pp. 655-663 Kennedy, R & Richards, J 2012, Integrating Human Service Law and Practice, 3rd edition, Oxford University Press, Melbourne Nancarrow, H 2010, Time Is Of The Essence [Electronic Resource] : Progress On The National Council's Plan For Australia To Reduce Violence Against Women And Their Children / Heather Nancarrow, n.p.: Sydney : University of New South Wales, Read More