Important Note: This blog is a commentary about mandatory reporting laws in the US as they may apply to child maltreatment. Mandated reporting laws in the US are state-by-state and too critical for any blog to offer conclusive advice to a wide audience. Professionals might have reporting duties contrary to this discussion or beyond the scope of this opinion piece (e.g. vulnerable adults or Tarasoff duties). Individuals should determine what the reporting requirements are in their respective jurisdictions, and comply with them accordingly.
When a mandated reporter receives credible information about criminal sexual conduct involving a child, reporting child sexual abuse may be an easy call. But those cases are the exception. Professionals often encounter ambiguous information about inappropriate sexual conduct, including non-contact sexual behaviors. In many cases, a report to child protective services (CPS) is not actually “mandatory.” When in doubt, why not just make a report, to be on the “safe side?” Because for licensed mental health professionals with privileged communication, there is no “safe side.” When a client has a privileged relationship with a psychotherapist, all information that is not subject to reporting is protected by laws and ethics of client privacy. There is not much ground in between.
Despite the good intentions behind mandated reporting, there are competing concerns and legitimate controversies around mandated reporting, under both US and Canadian laws. The US, Canada, Australia, and many other countries have some form of mandatory reporting. Mandated reporters typically include teachers, mental health professionals, social workers, law enforcement, health care workers, and child care providers, among others. In the US, 48 states have mandatory reporting laws that require specific professionals to report suspected child maltreatment. As of 2012, 18 US states require everyone to report suspected child maltreatment.
When a privileged relationship exists, professionals need to consider whether their first duty is to client privacy and confidentiality, or to mandatory reporting. Breaking client privacy, even with legal justification, is likely to be detrimental to the therapeutic relationship. The decision to report, or not report maltreatment can be life-altering for children and for clients. For professionals, an errant decision, in either direction, can have far-reaching consequences for many individuals, including themselves.
Privileged Communication and Mandatory Reporting
Physicians, clergy, psychotherapists, chemical dependency counselors, and others with privileged communication advance the public interest of providing professional expertise to society – making confidential services available to individuals who might not seek professional help for fear of reprisals. The precepts of privileged communication are established by a combination of laws and professional ethics that seek a balanced outcome that both helps individual clients and serves the public interest. Sometimes the balance is tenuous, but privileged communication is essential to many professional relationships.
When mandated reporters do not have privileged communication, mandatory reporting is often straight forward, and as long as individuals report in good faith, there’s little risk to reporters. But confidentiality is foundational in most therapeutic relationships and therefore privileged communication is essential. As a result, most licensed mental health professionals generally do have a privileged relationship with clients. The US Supreme Court affirmed psychotherapist‐patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996). The requirements of this privilege are: (1) the communications must be confidential, (2) the therapist must be a licensed psychotherapist, and (3) the communications must occur in the course of diagnosis or treatment (Mitrevski, 2006).
Some might view mandatory reporting as a moral responsibility, but when one is operating under the auspices of a professional license, they must understand the obligations and the limits of relevant laws and professional ethics. The same set of laws and professional ethics that extend privileged communication to licensed mental health professions, also establish the requirements of mandatory reporting. Professionals often learn about client conduct that ranges from sordid to illegal. There are very few cases where licensed mental health professionals may violate privileged communication. Mandatory reporting is one exception, and clients should be forewarned. Because clients don’t share in the decision, and the outcome of a mandated report may be life-changing for clients, therapists must not get reporting wrong.
When confidentiality attaches to a professional relationship, privileged information belongs to the client. Clients need not invoke the right. Mental health professionals have legal and ethical responsibilities to zealously protect privileged communication with their clients, even in forensic settings. Regardless of whether clients understand their rights to privileged communication, therapists should respect and maintain both privileged communication and data privacy unless clients specifically waive those rights.
Who is the subject of mandated reports?
Perhaps the most common confusion about mandatory reporting is not understanding who is the subject of a child maltreatment report. Generally, the subject is not the alleged abuser but rather a specific child (or children) who may have been abused or neglected, might be in a harmful situation, or otherwise meet a statutory definition for reporting maltreatment. There are two important considerations: (1) in most states, reporting laws are predicated on suspected maltreatment by a parent, care provider, or someone in a position of authority; and (2) reporting requirements depend on whether suspected maltreatment is current or historical. In keeping with these general guidelines, reporting laws in the US vary by state.
Sexual Offenders and Mandatory Reporting
In providing treatment to those who have sexually offended, psychotherapists might be the first to discover new child victims. When victims can be identified and CPS can be directed to them, there is little doubt about a professional’s duty to abused children. It is the indistinct cases of child maltreatment that frequently create professional hazards for therapists. These circumstances can occur repeatedly within sexual offender treatment settings because clients are typically expected to disclose their entire sexual history, including not only all victims, but in some cases every sexual transgression going back to puberty. This exhaustive inventory can be a minefield for both clients and therapists – and for mandatory reporting.
Sexual offenders in treatment may lose privileged communication, either by court order or by being frightened, confused, or coerced into signing away their privacy rights through consents or a release of information. One way that clients often unwittingly forfeit their rights to privileged communication is through the compulsory use of the polygraph – ostensibly for treatment purposes. Such use is banned in Canada, but is popular in the US because of the “utility value” – getting clients to reveal victims or disclose other sexual misbehavior. If privileged communication does not attach, such disclosures are at the peril of clients.
When privileged communication is forfeited, treatment disclosures (not necessarily criminal) can carry significant risks to clients. Certain disclosures can lead to extensions of treatment, probation consequences, arrest, new charges, additional incarceration, lifetime sex offender registration, public notification, residency restrictions, and perhaps even sensationalizing by media attention. Information that clients reveal which is unprotected may contribute to a dossier for civil commitment. Dancing around such disclosures creates a treatment paradox for both clients and therapists. Always looming in the background is mandated reporting.
The disclosure of unreported victims is a perilous process for both clients and their therapists. If clients believe full disclosures could result in additional penalties or criminal consequences, there is a colossal disincentive to disclose unknown victims. Obviously, there are few areas of sexual offender treatment that present a greater dilemma for clients and therapists. But it is not without precedence. Many professionals with privileged communication must reconcile conflicting ethical, moral, and legal responsibilities. With few exceptions, the first duty for licensed psychotherapists is to the client sitting in the room.
If therapists need to report suspected maltreatment, write an assessment report, document progress in therapy or compliance with treatment requirements, disclosing more information about the client than is necessary to fulfill specific purposes is likely to be a violation of privileged communication.
Child Pornography and Mandatory Reporting
The use of real children in the production of child pornography (CP) is clearly child abuse. As offensive as CP or pornography (broadly) is to many people, knowing that someone has viewed CP is not likely to be a mandated report. Most CP depicts children whose identities are not known to either the viewer or the reporter. If a child victim in CP is perhaps in another country, local CPS would not have jurisdiction. Understanding that the subject of a maltreatment report is not the accused, a mandated report for CP typically does not make it past the thresholds of an identifiable child to which services can be directed.
There are some disclosures of CP by a client that could indicate a mandated report. An obvious example would be a known minor being involved in the production of CP. Adults allowing young children to knowingly view pornography might also be reportable. A teenager viewing porn on the Internet or looking at sexually explicit images on a smart device typically does not constitute maltreatment of a minor. Children involved in sexting with other minors might be illegal, but generally is not maltreatment of a child. While a case could be made that sexting by a minor is the “production and distribution of CP,” if it does not involve participation by an adult caretaker, it illustrates the need for reporters to use professional judgment.
If a client begins to disclose involvement with CP, it might be wise for professionals to interrupt and advise clients that there are limits to privileged communication, and that mandated reporting might apply to certain disclosures. Bottom line, there are very few circumstances in which clients viewing CP requires mandated reporting.
Mandatory Reporting and Preserving Families
In about nine out of ten cases of child sexual abuse the abuser is a family member, relative, friend, or acquaintance. When sexual abuse has already been identified and reported, often psychotherapists are already working with a family. As a result, a therapist may be the point person on new allegations of child sexual abuse. Professionals uncovering sexual abuse may have a sudden and urgent duty to many parties. When this happens, mandatory reporting is not in question, but psychotherapists should also recognize the unique opportunity to support clients and their families in working with CPS.
When skilled professionals have an established therapeutic relationship with a family, and new information about child abuse is discovered, therapists may be in a unique position to quickly ascertain the nature and extent of abuse, know the vulnerabilities of victims (and potential victims), be aware of salient risk factors, and facilitate an immediate safety plan that considers all factors. Some CPS workers might argue that this is the domain of CPS, though experienced CPS workers usually welcome such a professional collaboration. While reporters typically have to defer to directives from CPS, the most frequent outcome of many cases of substantiated child maltreatment is for the victim and family to be connected with a psychotherapist who has the expertise to address presenting problems. When a skilled professional is already in place, the outcome of mandated reporting might very well come full circle.
Professionals should understand that not only sexual abuse, but its revelation, can tear at the fabric of families in different ways. Often it is not the sexual abuse itself from which victims, offenders, or their families might never recover; sometimes the aftermath causes secondary abuse – unnecessary disruptions to the stability and strengths of the family. Public policies should support a comprehensive, balanced approach to both primary and secondary prevention of child sexual abuse, to mitigate counterproductive consequences to victims and offenders, and whenever possible, support the preservation of families (Finkelhor, 2009).
Depending on who the abuser is, parents typically have the right and responsibility to be the “first responder” when it comes to protecting their children. The right for government to interfere with parental rights is predicated on evidence that parents have failed to protect their children. Even when an intervention is obvious and urgent, the solution might be to support a non-abusing parent(s) by marshaling appropriate resources to help ensure safety for their kids.
The arts and science of the treatment of victims and sexual abusers have the capabilities of helping most families to recover from the damage of sexual abuse. Child victims often have a greater capacity than adults to forgive abusers. In all but the most severe cases of child maltreatment, children should not have to choose between the fear of being abused and the fear of losing otherwise valued relationships. When family preservation is in the best interest of children, it is very empowering to victims, even children, for adults to ask them how we can support them, and let victims help guide their own recovery. Supporting abused children in this manner is not only empowering, it can help restore a child’s trust in others, preserve families, build resiliency, and help turn victims into survivors.
“Children should not have to choose between the fear of being abused and the fear of losing otherwise valued relationships.”
Summary, Suggestions, and Recommendations
The potential consequences for failure to report suspected child abuse is so unnerving for most professionals that there is a tendency to err on “the safe side” and report. Hopefully, it is clear that there is no “safe side.” It would be nice if there were a decision tree for mandated reporting, but reporting laws vary too much by jurisdiction. There are, however, some basic tenets of therapeutic relationships that might be helpful: professionals need to be aware of the jurisdictional nature of mandated reporting, they need to know their duties to client privacy, they must always be mindful of fiduciary responsibilities to clients, victims, and public safety, and be comfortable that therapists are not an arm of law enforcement.
It is not lost on this author that there are some circumstances of child maltreatment that are so grave and urgent that mandatory reporting is not a question. If dire circumstances warrant, the first phone call should not be to CPS; it should go to 911.
Because mandated reporting laws are jurisdictional, professionals might first consult colleagues about local requirements for mandated reporting, and the tenets of privileged communications within their profession. If after consulting colleagues, professionals are still in doubt, they might be wise to consult with local CPS. Without the need to initially disclose identifying information about the client, CPS workers are usually glad to advise whether a report is required. As a former CPS social worker, I recommend that professionals who might be frequent reporters get to know one or more of the investigators who screen cases at your local CPS. Not only are most CPS workers glad to educate colleagues, they want to work with other professionals to get reporting right, and direct appropriate services where indicated.
As a final recommendation, when consulting with a CPS worker, keep a record of the conversation, including the date, time, specifics of the query, the name of the CPS person consulted, and the advice provided. Such information may serve the dual purpose of a written report to CPS, which is required in some states. It is not likely that CPS can assuage moral pangs about reporting decisions that are not intuitive, but when it comes to a directive on whether a report is mandated in a specific jurisdiction, local child protective services is golden.
A Post Script: In the interest of sharing knowledge and clarifying mandated reporting requirements, readers are encouraged to post comments below. Because mandatory reporting is regional, if leaving a question or comment, please note your jurisdiction.
US Reporting Requirements, State by State
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