Legal Corner: Mandatory abuse reporting
Every year, the APA Practice Organization hosts a Practice Leadership Conference (PLC) in Washington, D.C., bringing psychologists from Canada, the United States and its territories together to hone their advocacy and leadership skills. During this year’s PLC, the attorneys in Legal and Regulatory Affairs convened a town hall meeting to answer some of the legal challenges faced by psychologists*. Audience members were invited to submit questions in advance, as well as ask them on the spot. This is the fourth issue of “Legal Corner” featuring a question from the forum that has broad impact.
Q: In Delaware and some surrounding states, new legislation requires psychologists to report child abuse even if the victim is an adult or the abuse case was adjudicated. Patients are feeling re-victimized by our reporting and/or are dropping out of therapy or avoiding bringing up abuse. Patients are suffering. Do we have to comply with the law, even if our own moral/ethical compass suggests the law is well-intended, but misguided? Any workarounds?
A: Psychologists should comply with their state’s child abuse reporting law, even when they don’t agree with it. These laws remove a person’s discretion to report, and in some cases, will not allow the reporter (e.g. psychologists) to remain anonymous. Remember that most mandatory child abuse reporting laws carry criminal penalties for failure to report, so the consequences for following a moral/ethical compass instead of the law can be severe.
State laws typically define the conditions that trigger mandatory reporting in the following ways:
- What: the acts of abuse or omissions.
- Who: the person responsible for these acts or omissions.
- When: the time period when abuse occurred.
State laws differ significantly on these definitions, so it is important to be familiar with the law in your jurisdiction.
Some states list specific acts (What) that will constitute abuse or neglect; other statutes broadly talk about nonaccidental and significant injury. These laws may also include exceptions, such as corporal punishment or withholding specified medical treatment based on religious beliefs.
States also differ in the definition of the perpetrator (Who). Some laws define child abuse or neglect as acts or omissions committed by someone responsible for the welfare of a child (e.g. parent, guardian, or in loco parentis). Other state laws, however, extend the definition of abuse to include those acts committed by other adults with whom the child has significant regular contact. This could include a parent’s friend who regularly interacted with the child, for example.
Finally, the question of (When) the abuse occurred may be clearly defined. In some states, the law may state that a report must be made if the person suspects that a child is being abused or has been abused within a specified period of time.1 This means that a psychologist wouldn’t necessarily have to report the abuse disclosed by someone 18 years old or over who is processing abuse that happened several years ago. Other states, by contrast, have laws that are so broad as to put victims at risk for re-traumatization. The state may have no statute of limitations, no exceptions and may require reporting for acts committed by those who are not caregivers.
As far as “workarounds” for child abuse reporting laws, here are some factors for psychologists to consider:
- Discuss the limits of confidentiality with new patients. Psychologists can explain that details involving incidents of abuse by a known perpetrator might trigger the state’s reporting requirement. This may cue the patient to leave identifying information out so that therapy can be effective without triggering reporting. Note: Should the patient divulge information that would require you to make a report, comply with state law.
- When in doubt, contact the state’s reporting hotline and ask if you can give a hypothetical situation for advice about your obligations. Staff may be able to assess the situation and let you know if the incident rises to the level of a report.
- If your state’s mandatory reporting laws are so broad as to interfere with treatment, talk with your state psychological association about changing the law. The practice organization often works with state associations on legislative advocacy issues and may have ideas to amend a well-intentioned law.
Disclaimer: *Legal issues are complex and highly fact-specific and state-specific. They require legal expertise that cannot be provided in this article. Moreover, APA and Practice Organization attorneys do not, and cannot, provide legal advice to our membership or state associations. The information in this article does not constitute and should not be relied upon as legal advice, and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions.
1 For example, 49 Pa. Code 13.301 defines “recent acts or omissions” as those committed within two years of the date of the report.