Ethical Code of the Social Worker versus the Criminal Code

Introduction

A social worker is obliged to perform their work in accordance with ethical principles. Unlike theory, their application in practice is also associated with problems that require the social worker to sensitively reassess their procedure. In addition, situations may arise in practical social work when a social worker finds themselves in a dilemma between fulfilling a legal duty and respecting an interest expressed to them by the client. Right at the outset, I would like to emphasize the possible difference between the client's actual interest and the interest that the client presents as the best for them according to their own judgment. This occurs in a situation when the social worker learns from the client about a planned, committed, or already committed criminal offense. The law requires them to report this fact to law enforcement authorities, but the client asks for confidentiality about it.

Let us try to consider how to handle this situation without violating the law and while not disappointing the client's trust.

The View of Law

The current Criminal Code recognizes two offenses related to the issue under consideration, namely failure to report a crime and failure to prevent a crime. Whoever credibly learns that another person has committed a felony or one of the precisely specified criminal offenses is obliged to report it to law enforcement authorities under penalty of imprisonment. Exempt from this duty is anyone who would, by reporting, place themselves or a close person (which, however, the client cannot be considered under the law) in danger of death, bodily harm, other serious harm, or danger of criminal prosecution. Further, the obligation to report a committed criminal offense does not apply to anyone who would violate the confidentiality of confession, or the condition of confidentiality of a person in pastoral care, as well as to anyone who would, by reporting, violate a legally recognized duty of confidentiality (Act No. 300/2005 Coll., § 340). The following provision of the Criminal Code imposes the duty to prevent, personally or through another person, the commission or completion of a criminal offense whose preparation or commission they learn of, or at least to report the preparation or commission of the act in time. Exemption from this duty applies, in addition to the reasons of placing oneself or a close person in danger and the reasons of violating the secrecy of confession, also to the impossibility of preventing the crime without considerable difficulty (Act No. 300/2005 Coll., § 341).

From the wording of the law cited above, it follows that a social worker has no option to remain silent about a committed, ongoing, or planned felony, or a specified criminal offense, without violating the law.

The View of the Code of Ethics

In professional communities that place emphasis on their reputation, it is considered a matter of honor to fully respect and in practice implement the profession's moral requirements, which are expressed in codified form in ethical (moral) codes. What most codes have in common is that they exist in professions where the object of interest is the human being, because the performance of such a profession affects the whole of human life. The code also serves as protection of professional belonging, protecting against unjustified attacks. In public it is meant to inspire trust, respect, and social recognition of competence and performance, and it expresses fidelity to the duties of the profession (Žilinek, 1997, p. 48).

An ethical code may be characterized as a normative system incorporating moral norms and principles, which expresses the moral ideal of a particular profession, its main values, in a certain form of commands and prohibitions in written form. It serves as a certain projection of the performance of tasks in the profession and as a general guide on how one should behave in specific situations and in professional relationships. Its norms define behavior that the public has the right to expect from experts and from their employees (Krsková, 1994, p. 32).

According to the Code of Ethics for Social Workers, adopted by the General Assembly of the Association of Social Workers in Slovakia in 1997, a social worker, among other things, assists people in developing abilities that enable them to solve their individual or collective social problems, while having responsibility primarily toward their clients, respecting the client's privacy and the confidentiality of information obtained in their work. They consider their work a service (Mydlíková et al., year not stated, p. 44).

Legal and Moral Norms

Law and morality regulate largely the same social relations. This means that essential parts of human behavior are governed simultaneously by morality and law. The actions of individuals and other entities can be assessed according to both normative systems. Therefore, it is important to examine the relationship between law and morality. Objective law is contained in legal norms. From it arise subjective rights either in the form of entitlements, that is, the possibility to use the offer of law, or in the form of obligations, that is, the necessity to do something, not do something, give something, or endure something. Legal norms bind us from the outside and are enforceable by state power.

Moral norms bind a person from within, and their observance - unless they are contained in a legal norm - is enforceable only by public opinion. The basic theoretical source for studying morality and ethical behavior is ethics, which examines human conduct from the perspective of its moral value and seeks to find a criterion that would enable a person to decide what is good, what is evil, what is honor, dishonor, etc. (Čečotová, 2005, p. 17).

It can be stated that in the issue under discussion, the legal norm is the Criminal Code and the moral norm is the Code of Ethics. There is a possibility of violating the legal norm because of its conflict with the moral norm arising from the conscience of the acting person. But such a course of action must necessarily reckon with sanctions for violating the law.

Theoretical Considerations - Philosophical Justification of Observing the Law

A person is characterized by two qualities - reason and free will. In themselves, however, they still do not make a person good and capable of making the right decisions and acting correctly. For that, the feeling of love is also necessary. Love for oneself and for all people together with reason and free will - that is humanity, and that is the secret of morality. If my client confides in me that they are being abused, is it human and moral to remain silent about it?

The ancient criterion for assessing correct conduct is the so-called golden rule: what you do not want others to do to you, do not do to them either. This means that we should not cause anyone what would be directed against their happiness and well-being. If I do not report harm to my client, am I acting in accordance with their happiness and well-being?

Many philosophers consider the most perfect to be the divine law - lex divina, which embodies truth, correctness, and goodness. It corrects the imperfections of human law - lex humana in the sense that no evil should remain unprohibited and unpunished (Machalová, 1999, p. 57). Is it right for evil to remain unpunished?

When we speak of law and morality, we cannot avoid justice. Aristotle compares justice to a calm, balanced state. If my client is not living in peace, is it perhaps just not to try to establish justice toward them at least by upholding the law that should guarantee justice?

The aim of social counseling is to improve the client's quality of life. This is more important than concern for the perpetrator, or even consideration toward them in failing to report the criminal offense. The aim of counseling is essentially the elimination of pathology, helping the client become independent of other people, supporting the client's personal growth, improving quality of life, addressing the needs of a person in distress, their mental and physical health (Mydlíková et al., 2002, p. 9). Will reporting a criminal offense concerning the client not contribute to the elimination of their pathological situation?

In the text of the preamble to the Code of Ethics of Social Workers of the Slovak Republic we read: "In their work, social workers are guided by the International Code of Ethics and other internationally recognized standards, as well as by standards that they themselves formulate and adopt in order to create a national framework for their activities in the relevant cultural, social, legal and economic context at all levels." (Code in Mydlíková, year not stated, p. 44). If a social worker carries out their activity in a legal context, can they violate the valid law in the state?

According to the Code of Ethics, a social worker strives with all their strength to achieve and maintain a high level of professionalism in performing their work. Not disappointing the client's trust is certainly professional. Is it not equally professional not to violate the law?

In their work, a social worker considers the primary obligation to be service. To what extent does a failure to report a criminal offense committed against the client by another person, or an offense committed by the client themself against someone else, serve the client?

According to the Code of Ethics, a social worker also has responsibility toward society, namely by supporting its general welfare (Code in Mydlíková, year not stated, p. 45). In general, a code should protect not only the interests of the client, the interests of a particular profession, but also the public interest, and should respect the interests of the public (Hanuláková, 1997, p. 55). Is the protection of society against perpetrators of criminal offenses not a public interest, and does the reporting duty not also contribute to its fulfillment?

Practical Starting Points

Counseling is meant to help the client mobilize their internal, psychological forces and resources and the external possibilities of their surroundings so that, with the help of the counselor, they can solve the problem more or less on their own. In every helping profession, it is important to respect the client's right to self-determination, to free decision-making and choice. In a positive sense, this means creating conditions that allow the client to become more self-determining, which means helping them reach a state in which they will have the ability to see achievable options. Social workers are to respect and support the human right to make one's own choices and decisions, provided that this does not endanger the rights and legitimate interests of others (Mátel, 2010).

Without wanting to return to the outdated concept of professional paternalism, situations may still arise in social work when it is necessary to protect the client, even from their own mistaken demands or their consequences. The partnership between the counselor and the client should respect the client's authenticity, accept their differences, be able to empathize with their current situation, but also motivate and encourage the client to change, help them, and together with them seek optimal patterns of behavior and functioning in the world (Mydlíková, 2002, p. 9). The social worker is to help the client understand their options, as well as the consequences brought by individual options of choice and decision. The ideal is to lead the client to a decision that will be a solution improving their position and at the same time in accordance with the protection of the rights and interests of the public.

The issue of the reporting duty for a criminal offense under the Criminal Code can be considered not only from the position of the social worker, but also from the perspective of the client themself, as a citizen of the state who is also bound by law. The end of unlawful treatment, humiliation, and harm should outweigh any fear of the tyrant's revenge. After being reported, the social client does not remain left to the mercy of the perpetrator of the criminal offense.

The moral and professional duty of the social worker to respect the client's privacy and maintain the confidentiality of information obtained in their work does not necessarily have to conflict with the reporting duty under the law if a sensitive approach is maintained. It is only a matter of convincing the client what is and is not in their own interest, so that they themselves abandon the request not to report the criminal offense.

Conclusion

After seeking help and while receiving social counseling and specific social services, the client needs to trust the social worker, feel safe, and feel accepted. It is a demanding but necessary task for the social worker to gain the client's maximum trust, in which the client's fear subsides and which enables the social worker to act ethically and legally at the same time.

Author: JUDr. Mgr. Mária Sedláková, PhD. List of Bibliographic References

[1] ČEČOTOVÁ, Vlasta. 2005. Good morals in Slovak private law. Bratislava: Epos, 2005. ISBN 80-8057-638-6. [2] HANULÁKOVÁ, E. 1997. Business ethics. Bratislava: Eurounion 1997. [3] KRSKOVÁ, A. 1994. Ethics of the legal profession. Studia Iuridica Bratislavensia Nr. 4. Bratislava: Publishing Department of the Faculty of Law of Comenius University, 1994. [4] MACHALOVÁ, T. 1999. Introduction to legal philosophy. Vol. I. Brno: Masaryk University 1999. [5] MÁTEL, Andrej. 2010. Ethical responsibility toward clients. In: Days of Social Work and inteRRa 8. Proceedings from the conference with international participation held at Constantine the Philosopher University in Nitra. Nitra: FSVaZ UKF, 2010. ISBN 978-80-8094-650-0, pp. 162-174. [6] MYDLÍKOVÁ, Eva et al. Year not stated. Social Work and Counseling. Bratislava: League for Mental Health. ISBN 978-80-970123-2-8. [7] ŽILINEK, M. 1997. Ethos and the formation of the moral identity of personality. Bratislava: Iris. 1997. [8] NR SR: Act No. 300/2005 Coll. - Criminal Code as amended.

The lecture was delivered at the international scientific conference Applied Ethics in Social Work and Other Helping Professions, which took place on 20-21 October 2010 in Piešťany and was published in the proceedings from this conference: MÁTEL, A. - SCHAVEL, M. - MÜHLPACHR, P. - ROMAN, T. 2010. Applied Ethics in Social Work and Other Helping Professions. Proceedings of the international scientific conference. Bratislava: VŠZaSP of St. Elizabeth. 413 p. ISBN 978-80-89271-89-4.