… One problem that has arisen for mandated reporters of child abuse is the occasional refusal or failure (due to unavailability) of the local child protective services agency (or the police or sheriff) to take a telephone report of child abuse from the mandated reporter. This problem would typically occur in a state that requires both a telephone report and a written report. California is such a state, and practitioners there have been met with the problem of refusals or unavailability when they call to report the suspected abuse.

There are many situations that can arise where there can be some ambiguity as to whether a report should or must be made. Therapists and counselors want to protect themselves in these situations so that they can demonstrate that they did what the law required – reported by telephone and in writing. When the child protective services representative says that a report is not warranted and that he or she will not take the telephone report, or advises that a written report should not be made, the mandated reported is often confused as to what should be done. More common than the above scenario is the situation where the reporting practitioner is unable to complete the call because the line is busy, because the practitioner is kept on hold for an inordinate period of time, or because the phone is answered with a recorded message.

Several years ago, the California Association of Marriage and Family Therapists (CAMFT) successfully sponsored a bill that addressed the problem. The child abuse reporting law now provides that if a mandated reporter is unable to submit an initial report by telephone (after making reasonable efforts), he or she must immediately or as soon as practically possible, by fax or electronic transmission, make a one-time automated written report, and must also be available to respond to a telephone followup call from the agency with which he or she filed the report. Under these circumstances, a written followup report would not be required. Are you aware of a similar problem in your state? If practitioners are required to report, it ought to be easy to do so!

I have written extensively about child abuse and child abuse reporting requirements in prior issues of this Bulletin. Those articles can be found in the Archives (Legal Resources) on this website under the category “Child Abuse.” One area that I have not written about is the misunderstanding amongst some mandated reporters regarding the issue of an applicable “statute of limitations.” Suppose that a nineteen year-old patient tells a therapist that she was molested by an uncle ten years earlier. Or, suppose that a seventeen year old patient tells his therapist that he was molested by his uncle seven years earlier. What are the reporting requirements and what role, if any, does a statute of limitations play with respect to reporting in each of these examples? As I have written here many times before, state laws vary, sometimes in fine nuance, so my remarks below are based upon California law.

In the first scenario, there is no duty to report child abuse because the nineteen year old is not a child, but rather, an adult. Generally, there is no duty in California to report child abuse when an adult patient tells the therapist of abuse that occurred when the patient was a child. There is an exception to this general rule, but that is a topic for another article. If a thirty year old patient reveals that she was raped when she was fifteen, there is no duty to report. The patient, whether thirty or nineteen years of age, may choose to report the prior abuse if he or she desires. There may be an applicable statute of limitations that will prevent the perpetrator from being criminally prosecuted. The determination as to the existence of a statute of limitations affecting the prosecution, and the precise calculation, usually depends upon the advice of law enforcement (e.g., the police and/or the District Attorney) or a private attorney. Statutes of limitations are sometimes tolled (the clock does not tick) during certain periods of time or under certain circumstances.

In the second scenario, the therapist must report child abuse. A child (the seventeen year old) was abused (I of course assume that the child’s report to the therapist is credible and that reasonable suspicion exists). There is no statute of limitations applicable to the reporting of child abuse by a therapist. In other words, even if the crime is old, and even if the criminal prosecution of the perpetrator were barred by an applicable statute of limitations, the child abuse reporting law contains no statute of limitations with respect to the duty of the mandated reporter to report suspected or known child abuse – provided that the information conveyed to the practitioner is about a child, and not an adult who was abused as a child. As to the statute of limitations that may apply to the criminal prosecution, that determination is typically made by the prosecuting authorities.

Are the laws in your state similar to what I have described here? You never should fail to make a child abuse report that is required by law. Similarly, you should not make a report when no report is specifically required or authorized. To do so will likely constitute a violation of law for breach of confidentiality that can result in disciplinary action by the state and monetary liability in a civil lawsuit.

…Therapists and counselors often discuss the issue and process of termination of treatment, including the question of when the termination becomes effective, but not as much discussion occurs with respect to the question of when the therapist-patient or counselor-client relationship begins. When I write about this topic I do have a bias in thinking about the consumer of mental health services as the “patient,” and not as the “client.” Lawyers have clients. Prostitutes have customers. Retail establishments have consumers. Practitioners who provide mental health services, or who seek to diagnose and treat mental or emotional conditions or disorders, do so, in my view, with patients. The psychotherapist-patient privilege is granted to patients, not clients. “Patient,” for purposes of the privilege, may be defined as a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his or her mental or emotional condition. Thus, I discuss the duty to the patient below!

Some may think that the relationship with the patient begins when the first session begins, or perhaps when it ends. Others may peg the beginning of the relationship to when the patient pays for the first session. Others may argue that the relationship begins when there is an oral (or written) agreement to provide services at an agreed upon fee, or after the patient receives the therapist’s disclosure or “informed consent” form. While this is a rather technical question and usually not of great importance, I am reminded of the situation where a therapist receives a telephone call from a prospective patient referred by a former patient of the therapist. The prospective patient tells the therapist that his wife has just informed him of her desire for a divorce, that he needs some help during this trying period of time, and that the therapist was highly recommended. The therapist tells him that he has an opening on Friday afternoon and that his fee is $125 per hour. The prospective patient makes an appointment for Friday, some four days later.

Suppose that on Wednesday before the scheduled meeting the “prospective” patient calls in crisis – talking of possible violence aimed at his wife and her new companion. Suppose further that the therapist has second thoughts about taking on such a difficult case and thinks about telling the “prospective” patient” of his reluctance to proceed and his desire to make a referral to a therapist who deals with this kind of acute problem. Finally, suppose that the “prospective” patient insists upon seeing the therapist that evening. What is the duty of the therapist?

My view is that the therapist is under a duty to see the new patient, to assess the situation, and by doing this, to thereby commence “treatment” (hold a first session). Consultation may be needed. Referral for appropriate reasons may soon be necessary. However, the failure to see the patient for the initial visit, for which an appointment was made, could result in liability for the therapist. An effort to refer the patient prior to the first session, under these facts, would in my view create a liability problem for the therapist in the event that the patient was to object.

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