AVOIDING LIABILITY BLOG

Child Abuse Reporting – Duty to Investigate?

April 2007

… Does a therapist or counselor generally have a duty to investigate in situations involving possible child abuse so as to determine whether a child abuse report must be made? Is there a duty on the part of a mandated reporter to seek information from the patient or others in order to identify or locate an alleged child abuser so that a possible child abuse report can be complete? The general answer to these questions appears to be “no,” but one must be careful to make sure that state law or a particular situation does not require otherwise.

Therapists and counselors are not generally viewed as having an investigative function, and their respective licensing laws generally do not require duties of an investigative nature. They treat patients for mental and emotional problems and are health care practitioners who are duty-bound to protect the patient’s privacy and to treat information about the patient as confidential. Therapists and counselors of course obtain information from the patient and others in the course of providing professional services, but that information gathering is for the purpose of treatment and a natural part of the therapeutic process – not for separate investigative purposes.

Child abuse reporting laws provide an exception to confidentiality, and usually require a report when the practitioner knows or reasonably suspects (or a similar standard) that child abuse has occurred. One must look carefully at the state child abuse reporting law to see whether or not there is any duty to investigate under specified circumstances.

As to the first question asked above, one of the times this question may arise is when a minor engages in consensual sexual intercourse or other sexual activity with another person. For instance, if a sixteen year-old girl tells her therapist that she engages in consensual sexual activity with her boyfriend, a therapist may be required to make a child abuse report based upon the age of the boyfriend, or in some cases, based solely upon the nature of the consensual sexual activity.

In one state, for example, no statute or case obligates the licensed practitioner to inquire of their minor patients as to the age of their sexual partners or to the particular kind of sexual activity being engaged in. Of course, that information may come out in the ordinary course of therapy or the patient may deliberately not want to reveal the partner’s age or the nature of the sexual activity. Each case is different. In such circumstances, that particular state essentially leaves it to the judgment of the practitioner as to whether or not to inquire as to the age of the partner or to the kind of sexual activity involved.

As to the second question asked above, a common example where this question may arise is in the circumstance where an adult patient tells his or her therapist or counselor of abuse that occurred when the patient was a minor. Perhaps the most compelling situation would be when the alleged abuser was a teacher at a school where the adult patient attended some years earlier. Would the therapist or counselor be under an obligation (or “duty to investigate”) to check with the school or to inquire of the patient as to the present whereabouts of the alleged abuser? As an aside, even if that were done and it was discovered that the teacher is still employed at the same school, a report may not be required.

While many states do not generally require a report when an adult patient reports abuse that occurred when the patient was a minor, there can be exceptions, such as in a circumstance where an 18 year old talks with the therapist about sex with her father when she was a minor and also tells the therapist that she has a 16 year old sister that now lives with the father. It may well be that because of the nature and extent of the former abuse of the patient, the therapist may develop a reasonable suspicion that abuse is currently taking place with the sister of the patient.

But as to the question about a “duty to investigate” the present whereabouts of the teacher, the therapist or counselor would ordinarily not have such a duty (unless state law imposed a duty). Of course, if the present whereabouts of the teacher is important to the patient and is connected to her treatment, this information may come to the therapist during the course of inquiry naturally attendant to the performance of therapy. The therapist would not ordinarily be expected to call the school to inquire, or to press the patient for more information about the teacher’s current location.

These questions can be tricky, and the answers will necessarily depend upon state statutes and other sources of legal authority. There have been several attempts in California to impose some sort of a duty to investigate under specified circumstances – but none of those attempts have thus far been successful. How does the law treat this issue in your state?

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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