Avoiding Liability Bulletin – March 2012
… Are you required to report child abuse if your patient tells you of the abuse and that it has already been reported? The answer to this question necessarily depends upon state law, but my suspicion is that under most state laws, the answer may be “yes.” Using California as an example, there is nothing in the Child Abuse and Neglect Reporting Act that says that a report does not need to be made if it has already been reported. I have advised many therapists about this issue, and the easy solution is usually to report the abuse and to inform the agency receiving the report that you believe that this may already have been reported.
It is not uncommon, based upon my experience, for the therapist to find out that the patient’s statement to the effect that the child abuse has already been reported is untrue or inaccurate. In such cases, the therapist who does not make a report at the time he or she has knowledge or reasonable suspicion (or under the particular standard in state law) that child abuse has occurred, is vulnerable to being charged with a failure to report child abuse, with all of the attendant negative consequences. What is the law in your state? Does the child abuse reporting law specify that if the mandated reporter reasonably believes that the abuse has already been reported, it does not have to be reported again? What harm or penalty would there be, if any, for making a possibly duplicate report?
Once the report of child abuse is made, does the law in your state allow you, without the patient’s authorization, to speak with the child abuse investigator who investigates the report? In California, for example, the law allows the practitioner to provide information to the investigator – but it does not require the sharing of information. Typically, if the therapist is making a report that implicates the patient as the alleged or suspected child abuser, the therapist would not talk with the investigator without a signed authorization from the patient. However, if the therapist in California were treating the abused child, the therapist may choose to cooperate with the investigator and share any other information that is relevant to the incident of child abuse or neglect. In the latter situation, no patient authorization is required, nor is parental authorization required, for such sharing of information by the reporting therapist. How does the law in your state treat this subject?
ABOUT THE AUTHOR
"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.