Avoiding Liability Bulletin – November 2008
… Child abuse reporting laws in the various states are similar in many respects, although there are differences. Much of the focus of practitioners usually involves questions regarding whether something is required to be reported, or whether a report is permissible rather than mandated. I was recently made aware of another issue related to child abuse reporting that should be important to practitioners who are mandated reporters of child abuse and neglect. That issue is – what is the extent of the protection a mandated reporter has with respect to the confidentiality of his or her identity? Will the perpetrator be able to find out who made the report? Could the mandated reporter be endangered if confidentiality is not strictly adhered to? If the patient or client’s confidentiality is breached in some way, and the identity of the mandated reporter is thereby revealed, what is the remedy for the mandated reporter?
Typically, a mandated reporter must include his or her name in the child abuse report. In most states, if not all, there are protections written into the law for the mandated reporter – one of which is that the identity of the mandated reporter shall be treated as confidential by those agencies that receive mandated reports. Further, state laws may specify how that confidential information may be shared with other agencies involved with the investigation or the later prosecution of the case. I have heard sporadic complaints over the years that the identity of the reporter was inappropriately shared, perhaps by a child protective services worker, with the alleged abuser or others. Sometimes this is hard to prove, but at other times, proof may not be difficult.
Therapists or counselors may have one or more remedies, depending upon state law. California law, for example, makes it a crime for the identity of the mandated reporter to be shared, other than to other agencies responsible for the investigation or prosecution of child abuse. State laws may allow for a civil remedy, such as permitting a lawsuit for damages against those who wrongfully disclose the confidential information and thereby endanger the mandated reporter. This issue (protecting the identity of the mandated reporter) is rather complex, and reference to applicable state laws is necessary. These state laws, however, may not be entirely clear as to the extent of the “privacy” protections given to mandated reporters. You may want to review the child abuse reporting laws in your state with respect to this issue.
ABOUT THE AUTHOR
Richard Leslie
"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.
