Musings on Ethics

By Floyd L. Jennings, JD, Ph.D.

Update on duty to report child abuse (very abbreviated)[1]:

Mental health professionals and numerous other licensed, as well as unlicensed, persons have an unequivocal duty to report suspicions of child abuse.[2]   Moreover, the standard is very low indeed, i.e. when the professional “has cause to believe has cause that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of: (1)  another child; or  (2)  an elderly or disabled person as defined by Section 48.002, Human Resources Code.”[3]  The standard regarding children applies when the child is, or has been, or may be abused or neglected.[4]

This duty is non-delegable (you can’t direct another to make a call), and the report must be made within “48 hours” (in Texas for professionals, “immediately” for all others).[5]  And, if subpoenaed to testify, you must do so as (a) there is no privilege in criminal proceedings, generally speaking, and (b) more specifically, testimony in child abuse proceedings (which are criminal) are specifically exempt from any claim of privilege based on confidentiality that might otherwise exist in a professional relationship.[6]

What is to be reported is important.  That is, while the language varies from jurisdiction to jurisdiction, most of the statutes are similar to Texas, which states that the reportee should report: “(1) the name and address of the child; (2) the name and address of the person responsible for the care, custody, or welfare of the child; and (3) any other pertinent information concerning the alleged or suspected abuse or neglect.”^[7]  The issue is that the provider must stay in his/her role and not engage in role diffusion by assuming the role of an investigator.  Further, and more specifically, the provider should avoid speculating as to the identity of the perpetrator, though may report, “The child says…”  (Or with reference to adults, “the patient says….”)

The wisest course is to report what the child says without conclusory or speculative opinion.  There is immunity for good faith reporting.  For the purpose of any civil or criminal proceeding, the good faith of the provider shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a licensee’s actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse.

Penalties for non-reporting begin as a Class A misdemeanor (punishable by up to 1 year  in jail and a$4000 fine), so one should err on the side of caution.

What’s new and what prompted this note is the result of the 83^rd Legislature and discussed as follows:

 

Reporting abuse of now-adult patients which occurred in childhood:

In late 2011, the Texas State Board of Examiners of Psychologists requested an opinion of the Attorney General as to whether reports from adult patients of childhood abuse required reporting:  That request noted that psychologists have concerns that disclosure of the limits of confidentiality to patients would “discourage some patients from discussing important aspects of their developmental histories that may be relevant to their current symptoms and functioning.”[8]

The response of the Attorney General was quite clear; namely, that reporting of abuse relates to abuse of “a child” and if the victim is no longer “a child” then no necessity would exist for reporting.[9]

That position remained the law until the 83^rd Legislature acted to amend Tex. Fam. Code. §261.101  as follows:

(b-1)  In addition to the duty to make a report under Subsection (a) or (b), a person or professional shall make a report in the manner required by Subsection (a) or (b), as applicable, if the person or professional  has cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of:

(1) another child; or

(2) an elderly or disabled person as defined by Section 48.002, Human Resources Code.

In practice, this means that the wiser course is to report, as psychotherapists are not investigators.  As the 2011 Attorney General opinion noted, the 48 hour reporting requirement provides little time for therapeutic discussion with the patient as regards needs to protect the health and safety of “another child” – moreover, reporting the name of the “other child” may be quite problematic.   On the other hand, there are cases when, clearly, no report should be made; e.g. when the alleged perpetrator is deceased or incapacitated (as in a nursing home).  More equivocal is the circumstance wherein the patient refuses to name the perpetrator; or when there is no known victim.  For other than the therapeutic task of enabling the patient to self-report, the psychologist would have little to say save that “I must report there has been sexual abuse in this city.  However, I cannot tell you the name of the perpetrator or name any potential victim, I can only assure you that there has been a crime committed here.”  The psychotherapist may have no information relating to the “name and address of the child” – which would also limit reporting.

 

The bottom line is that reports may well be made, in good faith, because the reportee is in no position to ascertain likely danger to a child or elderly person, and resources will be devoted to carefully entering that information, but the matter will be dropped – hopefully without opportunity for later discovery of the electronic entry in any number of circumstances. For were the report to become accessible, then the alleged perpetrator would have been painted with a brush for which there is not only no ready cleansing, but none whatsoever – as no recourse would exist to clear his/her name, was the person, in fact, innocent.

 

Nonetheless, as stated earlier, the penalty for non-reporting has been raised to a Class A misdemeanor, where the penalty may be a fine not to exceed $4000 and/or confinement not to exceed one year.

 

In short, this is not the best piece of legislation; but ours is not to create law or to disregard that which is present, but to attempt to comply in good faith.

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