When Social Workers Encounter Criminal Cases (Part 2)

Following the publication last year of the article "When Social Workers Encounter Criminal Cases," we received a substantial amount of feedback and collected questions from social workers working in different service areas. In addition to continuing to accept invitations to give lectures, we have organized some of the questions below in the hope that they will be useful to social workers.

I. Liability for "Failing to Intervene in Time to Prevent Harm"

One of the most common concerns among frontline social workers stems from the possibility that the social worker involved in the Kai-kai case may be held liable under a negligence standard. Many social workers have therefore begun to wonder whether, in their own work, they might similarly encounter clients facing a risk of death but, because of various circumstances or limitations in capacity, be unable to intervene in time to prevent the harm.

Social workers, however, are neither superheroes nor police officers. What exactly does it mean to "intervene in time"?

In practice, much of the discussion ultimately centers on one issue: whether a mandatory report was made.

Many social workers worry that if a client later dies, their conduct may be retrospectively scrutinized to determine whether they made the required report. Yet there may be contextual reasons why a report was not made. For example, a client may previously have mentioned domestic violence, drug use, or other circumstances creating a risk of death, but the statements may have been vague, based only on secondhand information, or otherwise questionable in reliability. The social worker may have learned of the information outside working hours or while on leave, resulting in a delay. A client may even attempt emotional coercion, saying, for example, "If you report this, I'll kill myself."

Legally, these concerns can generally be examined from two perspectives: administrative liability and criminal liability.

(1) Administrative Liability

Social workers are certainly familiar with mandatory reporting obligations. These obligations are primarily set out in Articles 53 and 100 of the Protection of Children and Youths Welfare and Rights Act.

Under the Act, specified professionals who, in the course of performing their duties, become aware that a child or youth may be experiencing circumstances requiring protection must immediately report the matter to the competent authority and, at the latest, make the report within 24 hours. A person who fails to report without justifiable reason may be subject to an administrative fine of NT$6,000 to NT$60,000.

Article 53, Paragraph 1

Medical personnel, social workers, educational personnel, childcare personnel, infant and toddler care service personnel, police officers, judicial personnel, immigration personnel, household registration personnel, village or neighborhood officers, and other persons engaged in child and youth welfare services who, in the course of performing their duties, become aware that a child or youth is in any of the following circumstances shall immediately report the matter to the competent municipal or county (city) authority, and no later than 24 hours after becoming aware of it:

1. Using narcotics, unlawfully using controlled drugs, or using other substances harmful to physical or mental health.
2. Serving as an attendant in a place specified in Article 47, Paragraph 1.
   
3. Being subjected to any of the conduct specified in Article 49, Paragraph 1.
   
4. Being in any of the circumstances specified in Article 51.
   
5. Being in any of the circumstances specified in Article 56, Paragraph 1.

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Article 100

Medical personnel, social workers, educational personnel, childcare personnel, infant and toddler care service personnel, police officers, judicial personnel, immigration personnel, household registration personnel, village or neighborhood officers, or other persons engaged in child and youth welfare services who, without justifiable reason, violate the reporting requirements under Article 53, Paragraph 1 shall be subject to an administrative fine of not less than NT$6,000 and not more than NT$60,000.

The key practical question, therefore, is what circumstances may qualify as a "justifiable reason."

As a general matter, the threshold for determining whether a professional has sufficient "knowledge" to trigger the reporting obligation is relatively low. The purpose of the reporting system is to prevent cases from falling through the cracks, so frontline professionals are deliberately given relatively little discretion in deciding whether reporting is necessary. Where there is reasonable suspicion, reporting is generally recommended.

Because the amount of the administrative fine is relatively modest compared with the cost of litigation, very few such cases reach the courts and generate judicial precedent. Nevertheless, the limited decisions currently available suggest that circumstances frequently encountered in practice—such as vague statements, secondhand information, or doubts about reliability—are generally difficult to establish as justifiable reasons for failing to report.

In practice, social workers may therefore find it helpful to review their own institutions' prior reporting cases and develop consistent reporting standards within the same service area. Such standards can later help explain the basis on which a professional judgment was made.

Many social workers also worry that reporting may damage the relationship of trust with the client. In practice, some clients may engage in emotional coercion, including threatening suicide if a report is made.

This is undoubtedly a difficult situation. Ultimately, however, the issue must be addressed through professional training within social work institutions—for example, training on how to respond to a client's anger or resistance following a mandatory report. A relationship of trust that depends entirely on "keeping the client's secrets" is inherently unstable. Although reporting may affect the relationship, social workers should still try to help clients understand the purpose of reporting and the professional principles underlying social work practice.

(2) Criminal Liability

Violations of mandatory reporting obligations ordinarily result only in administrative liability. But if a client dies or is injured and a criminal investigation follows, could the social worker also face criminal liability?

As discussed in the previous article, in determining whether negligent homicide may be established on the basis of an omission, criminal law first asks whether the person had a legal duty to act, sometimes described as guarantor status, and then considers whether that person failed to perform the act required by that duty.

In the case involving the social worker in the Kai-kai case, discussion of whether risks were "intercepted in time" relates in part to home-visit practices. The frequency of visits, whether visits were scheduled or unannounced, the matters examined during visits, and the interventions taken afterward may all be relevant in assessing whether the required duty of care was fulfilled.

In practice, many complaints alleging negligent homicide do not proceed beyond the investigative stage because the causal connection between the alleged omission and the death is too remote.

One common example involves an elderly person who, while receiving case-management services from a social worker, is transferred to a long-term care facility but later dies because of factors such as the quality of care, difficulty adapting to the new environment, or pre-existing health conditions. Family members may then seek to hold the social worker responsible.

Where multiple intervening factors are involved and the causal relationship is remote, we are not aware of cases in which social workers have ultimately been prosecuted. When tragedy occurs, society often wants someone to be held accountable. But the scope of legal liability must still be reasonably defined. That is precisely why criminal law uses concepts such as a legal duty to act and causation.

There is little prior precedent involving a social worker being found to have such a legal duty in a child-abuse case and being convicted of negligent homicide. The Kai-kai social worker case has not yet resulted in a judgment, so it is not possible to draw broad conclusions from it.

The case nevertheless serves as a reminder that the social safety net is fundamentally a collaborative network. If a social worker becomes the only person who possesses relevant information and bears responsibility for the decisions made, the risk that the social worker will later be singled out for responsibility when something goes wrong becomes greater.

Social workers may therefore wish to consider whether, in the cases they handle, information and decision-making responsibilities are being appropriately shared across the professional network.

The first-instance judgment in the Kai-kai social worker case is scheduled to be rendered on April 16. The judgment may have a significant practical impact. However, if the case proceeds on appeal, different legal views may still emerge, so no definitive conclusion can yet be drawn.

II. Questions About How Social Workers Should Write Case Records

(1) False Entries in Professional Records

The previous article primarily addressed precautions social workers should take when participating in criminal investigations as witnesses or defendants and introduced the concept of a legal duty to act in the trial context.

Because the Kai-kai social worker case also involves an allegation of making false entries in professional records, a number of social workers have asked questions about this issue as well.

Social workers are often extremely busy, and many institutions report that record-keeping imposes a substantial workload. Falling behind in completing records does not necessarily indicate poor professional ethics; in fact, delayed documentation is relatively common in practice.

Social workers therefore worry whether completing records after the fact, having records that differ from those of social workers elsewhere in the service network, or omitting certain information for various reasons might constitute the offense of making false entries in professional records. Some have even asked whether they should engage in "defensive documentation" and avoid recording professional assessments altogether.

Past cases involving social workers accused of making false entries in professional documents have generally concerned false claims for expenses. Those cases differ substantially from the situations that social workers are now worried about.

Legally, liability for making false entries in professional documents generally requires proof that a person knowingly entered false information into a document prepared in the course of professional duties and that the false entry was capable of causing harm to the public or another person. This is not easily established.

Case records often function as internal professional communication documents, allowing frontline social workers and supervisors to discuss a client's circumstances. They are not intended to constitute verbatim transcripts.

Accordingly, when a social worker is criticized for not recording a particular matter, there is generally no need for excessive anxiety if the social worker can explain the professional reasoning behind the decision not to include it and follows several basic documentation principles:

• Use quotation marks where appropriate to distinguish a client's own statements.
  
• Record observations, including their sources, separately from professional assessments.
  
• Institutions may already prescribe information that must be documented. In addition, after records are submitted, discussions between frontline workers and supervisors concerning professional assessments may themselves generate documentation. Both can help demonstrate that the record reflected professional judgments made on the basis of the limited information available at the time, rather than deliberate fabrication.
  

(2) Courts Sometimes Request "Social Work Records." Can They Be Used as Evidence?

Another common situation arises when social work records are introduced as evidence in someone else's case. For example, in sexual assault cases, parties may seek to use social work records as corroborating evidence in addition to the victim's testimony.

Some social workers have asked whether, when a court requests their case records, they should prepare a separate version specifically for the court or simply provide the records ordinarily maintained in the course of their work.

The answer depends on the legal character of social work records.

A commonly cited judicial approach can be found in Supreme Court Criminal Judgment No. 1830 of 2022:

Statements made orally or in writing by social workers or counseling professionals concerning cases in which they have intervened, where those statements are based on the professionals' own direct observations and practical experiences, may have the character of witness testimony concerning matters they personally perceived.

Meanwhile, opinions offered by medical or mental health professionals concerning reactions or physical and psychological conditions observed in victims during treatment in connection with facts at issue—for example, whether the victim exhibits symptoms of post-traumatic stress disorder or other mental health conditions—or professional opinions based on the person's training and experience concerning general background matters for the court's reference may fall within the role of expert testimony.

These are independent forms of legally recognized evidence and are not identical to the victim's own testimony. They may therefore, in appropriate circumstances, serve as corroborating evidence supporting an assessment of the credibility of the victim's testimony.

Where a witness merely repeats what the victim told them about how the alleged offense occurred, however, that portion of the testimony is cumulative of the victim's own account and cannot independently serve as corroborating evidence.

By contrast, if the statement is offered to establish the victim's psychological condition, perception, or the impact of the event on the victim, it is not being introduced to prove the truth of the victim's description of the underlying events. Instead, the statement may function as circumstantial or indirect evidence from which the victim's psychological condition or perceptions at the time may be inferred, or as evidence of the impact of the event on the victim.

In that situation, the witness is effectively testifying about conditions that the witness personally observed, and the fact to be proved is connected to the witness's own perception. Such testimony may therefore properly serve as corroborating evidence.

However, this does not mean that every record prepared by a social worker automatically qualifies as corroborating evidence.

If the record was not created continuously and routinely in the ordinary course of professional duties, it may instead constitute hearsay and may not be admissible.

For example, Supreme Court Criminal Judgment No. 3360 of 2022 explained that records prepared by social workers, psychiatrists, counseling psychologists, and other professionals during counseling or treatment must be evaluated in light of the particular circumstances of the case.

Relevant factors include the timing and continuity of psychological treatment or counseling—for example, whether services began around the time of the incident and continued regularly, or whether there was a substantial interruption and services resumed only after litigation began—the nature of the statements recorded, and whether the records contain professional or personal judgments by the professionals involved. No single conclusion can apply to all such records.

In that case, the lower court had concluded that a case-service report and counseling and assessment records from the New Taipei City Government Domestic Violence and Sexual Assault Prevention Center were admissible because they had been prepared by social workers in accordance with their professional duties after the case was reported.

The Supreme Court, however, emphasized an important point: the complainant did not request services from the center until after judicial proceedings had already begun. The records prepared by the social worker and counseling psychologist therefore were not records continuously and routinely created in the ordinary course of professional duties beginning around the time of the incident.

Instead, they were evidentiary materials created after judicial proceedings had commenced. They therefore constituted out-of-court written statements made by the social worker, acting as a witness, and the counseling psychologist, acting in an expert capacity, and had to be analyzed under the rules governing hearsay evidence.

Accordingly, when a court requests records, what it generally needs are the original records created continuously and routinely in the ordinary course of professional duties.

Unless the court separately requests a professional evaluation or expert opinion concerning a particular issue, providing the original records ordinarily maintained in the course of work should generally be sufficient.

※ Note: The Taiwan Innocence Project previously held a related session titled "[Roundtable Forum] Social Work Records and Corroborating Evidence." The session examined how the different roles social workers may assume in court affect whether their testimony or records can qualify as corroborating evidence or merely constitute cumulative evidence derived from the victim's testimony.

III. Issues Requiring Further Discussion Within the Social Work Profession

During the lecture Q&A, several issues were raised that may not need to be answered primarily by legal professionals, but instead deserve continued discussion within the social work profession:

(1) Given the substantial professional risks involved in social work, should the profession promote professional liability insurance? Who should be responsible for urging the competent authorities to establish or promote such a system?

(2) When social workers become involved in legal disputes, should their institutions assist them in retaining attorneys? How should institutions design assistance or subsidy mechanisms for social workers who become involved in litigation?

(3) Judicial decisions will inevitably help define the legal boundaries of the duty of care. In everyday practice, however, social workers' duties of care are shaped more directly by requirements imposed by external competent authorities and by the internal rules of their institutions, which vary considerably from one institution to another. Is it possible to establish consistent standards across different service areas? If so, how?