Lee H. Haller, M.D.
In the September 2007 issue of the AACAP News, the Ethics Committee presented a conflagrated case of child abuse which had been sent to them by child and adolescent psychiatry residents. Because of the importance of the topic, I thought it would be beneficial to elaborate on it further from a forensic standpoint.
The case described was as follows: An adolescent girl was being treated by a resident for depression. As part of a regular appointment, the girl informed the resident that her mother, while hallucinating and agitated, recently had swiped at her with a knife, inflicting superficial lacerations. Although the acuteness of the mother’s condition had subsided due to the patient and her siblings pacifying the mother, the resident was concerned about whether the episode should be reported to the state’s Child’s Protective Services (CPS) Agency. The resident’s supervisor stated that this case definitely should not be reported because it would likely damage the therapeutic alliance; and lead to separation of the family members who were each others’ sole source of support.
The chair of the Ethics Committee sent the case to twenty AACAP members asking for their opinion as to how the resident should proceed. Ten responded. Seven opined that the resident should report the case. One believed the case should not be reported. Two were “neutral.”
Although the discussion that ensued was about ethics, this case, as is true for all child abuse cases, must be viewed from the standpoint that reporting of child abuse or neglect is legally mandated in every state in the country. Failure to report suspected child abuse is a criminal offense. The statutes clearly state that if one suspects child abuse, one must report. In the case above, the suspicion of child abuse clearly existed. It is not the job of the reporter to investigate. This is the task of CPS. Therefore, the case had to be reported.
Failure to report suspected child abuse (sexual or physical) or neglect can result in any of several adverse consequences. First of all, it leaves the child in the zone of danger, where he or she may be subjected to further abuse or neglect. In addition, as noted above, criminal charges can be brought against a physician for failing to report. The physician also runs the risk of being sued for malpractice. Moreover, the legal guardian of the child could report the physician to the medical practice board in the jurisdiction in which the individual practices. The board could impose sanctions on the physician for failure to report.
Finally, there was a recent effort in one jurisdiction to establish civil liability for non-reporting. In Minnesota, the foster and, subsequently, adoptive parents filed suit against a hospital for negligence on the part of the hospital’s doctors for not recognizing and reporting in a timely manner that the child’s injuries were the result of abuse. At the trial, the adoptive parents claimed that the doctors’ failure to report fell below the standard of care. The judge refused to allow introduction of evidence related to the hospital’s reporting of child abuse to outside authorities. The jury found inaction, but not as a direct result of the hospital’s negligence. The case was appealed and wound its way to the Minnesota Supreme Court which held that the trial court had made an error in excluding evidence that the hospital’s physicians had deviated from the accepted standard of care by failing to report suspected child abuse. It remanded the case for a new trial as to whether common liability can be imposed upon those who fail to report child abuse or neglect. (Becker v. Mayo Foundation, 737 NW2d Minn. 2007). This case shows that one should report suspected abuse in order to decrease the possibility of being sued civilly.
There will be cases where you are not sure whether the degree of abuse or neglect rises to the level that would warrant an investigation by the CPS. Making a report might well be disruptive to treatment and could even lead to termination of treatment by an outraged parent. Such an outcome would not be helpful to the child if CPS is not going to investigate. Thus, one does not want to make a report to CPS if it will take no action. In such cases, a possible solution would be to call CPS and tell the worker you are concerned about whether this is a case that needs to be reported. Then, describe the facts of the case without using any names. If the worker says that the facts are sufficiently severe to be reported, follow through by giving the worker the specifics required by law. On the other hand, if the worker states that CPS would not pursue an investigation based on these facts, then tell the worker that you would like to put his or her name in the patient’s chart to protect yourself in case of future harm to the child. You can then record the name of the person with whom you spoke at CPS, the date on which the call was made, the information given, and the fact that you were told no formal report was necessary.
I do not know for a fact that this course of action would absolve one from liability. My belief is that it would, because a report was made to child protective services, and all the facts of the case were given, except the name.
Please note, in making your report to CPS, be sure to limit the information that is given to them. The information that you are required to divulge is given in your state’s statute. It is likely going to involve the name of the victim, the name of the alleged perpetrator, and the nature of the suspected abuse or neglect. Additional information above and beyond what is mandated by law should not be given to the child abuse and neglect agency. To do so would be a violation of the patient’s doctor-patient privilege.
Another aspect of the Ethics Committee case is that the physician involved was a resident who took the case to his supervisor who advised him not to report. In this situation, if the resident does not report, the resident is liable for his inaction, even though following the directions of the supervisor. In addition, the supervisor is liable under the legal theory of respondeat superior. This is a legal term which imposes liability on the supervisor for acts of subordinates.
This could apply to you if you are a practicing child psychiatrist supervising residents. It also could apply to you if you are an employer of other psychiatrists, social workers, or psychologists who fall below the standard of care for not reporting.
Hopefully, this article will help you navigate the course of reporting suspected child abuse or neglect should such occur. Unfortunately, it is all too common among the children, adolescents, and families in our practices.
Dr. Haller is in the private practice of forensic psychiatry in Potomac, Maryland.
“Risk Management” by Lee Haller, M.D., is supported by Darwin Professional Agency, the professional liability service endorsed by AACAP. The agency compensates Dr. Haller for writing the Risk Management column.