Confidentiality, Privilege, and Child Abuse Reporting

LeRoy G. Schultz*

ABSTRACT: The child abuse reporting mandates are creating problems for therapists.  A distinction is made between confidentiality as a clinical concept and privileged communication as a legal concept.  Possible reasons for not reporting child abuse are discussed.  Possible solutions to the conflict between confidentiality and the legal requirement to report child abuse are suggested.
  

Most therapists, whatever their discipline, agree that breaking confidentiality creates significant problems.  It can destroy the therapeutic relationship and may risk a malpractice suit (Broadsky, 1988; Kaslow, 1990; Leesfield, 1987; Leong, Silva, & Weinstock, 1988; Marinelli, 1988; Miller & Weinstock, 1987; Sherlock & Murphy, 1984; Watson & Levine, 1989).  The ethical codes of the various helping professions (social work, psychology, religion, nursing, medicine, teaching, counseling, etc.) are intentionally vague, general, and elastic to cover all types of situations, but all take confidentiality very seriously (see, for example, the Code of Ethics of the National Association of Social Workers and the American Psychological Association's Ethical Principles of Psychologists).  Confidentiality is so critical according to some theorists that psychotherapy may be worthless without it (Keith-Spiegel & Koocher, 1985).

However, all states now have reporting laws which require therapists to break confidentiality and report any child abuse suspicions to law enforcement or child protection agencies.  All state laws therefore require putting the "child's best interest" above the therapeutic relationship.  Maine and Maryland are the only states that allow therapist discretion in deciding whether to report.  In the others, the therapist is mandated to report based upon "suspicion."  There is no leeway permitted for discretionary judgment.

These laws have resulted in enormous increases in the number of reports being made to protective agencies.  However, despite these laws, several studies have found that professionals fail to report for a variety of reasons (Crenshaw & Lichtenberg, 1990; Finkelhor, Gomes-Schwartz, & Horowitz, 1984; Koziol & Petretic-Jackson, 1990; Pope & Bajt, 1988; Zellman, 1990a).

Miller and Weinstock (1987) point out that when therapists treat suspected victims, there is usually no breach of confidentiality in reporting the abusers, since the therapeutic relationship is with the victim.  But when the evidence of abuse comes from the suspected abuser, difficult ethical issues arise.  Miller and Weinstock believe this situation is particularly difficult for therapists who work with sex offenders and that these issues have not been sufficiently considered by the authors of the reporting laws.
  

Confidentiality and Privilege

There is much confusion about confidentiality and privilege, especially where it pertains to investigating and in treating child abuse.  The two concepts are not interchangeable.  Privileged communication refers to a rule in evidence law that provides a litigant in a legal proceeding with the right to withhold evidence that was originally communicated in confidence.  Confidentiality originated as an ethical standard for the medical profession and aimed to uphold the integrity of the individual coming to seek help and free him or her from the fear of disclosing anything that might help the doctor decide on an appropriate treatment (Swoboda, Elwork, Sales, & Levine, 1978).  Case law, statutes, and licensing regulations have given confidentiality legal status.  Therapists are civilly liable for breaching confidentiality as well as risking the loss of their license.

In human services, a client's communication is protected by both confidentiality and privileged communication.  Confidentiality becomes of legal concern through legislative recognition and court precedent.  Disclosure of confidential information could be the basis for professional discipline through an ethics complaint or legal action through civil or criminal liability.

Confidentiality does not prevent the professional from testifying in a court of law; such a prohibition would require statutory authority for establishing privileged communication.  Even then there would be exceptions.  There are three exceptions to the therapist honoring privileged communication:

1) When the court appoints a psychologist to perform an examination.

2) When professional opinion about mental or emotional problems may be necessary to assure proper legal handing or justice.

3) when the client bases a legal claim or defense on his or her mental condition.

The criteria that justify confidentiality are:

1) The communications must originate in a confidence that will not be disclosed.

2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3) The relation must be one which in the opinion of the community must be sedulously fostered.

4) The injury that would inure to the relation by disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

Unless these four criteria are fulfilled, confidentiality cannot be expected, and failure to establish confidentiality negates the possibility of privileged communication.

Privilege refers to a freedom from compulsion to give evidence or discover up material, or a right to prevent or bar information from other sources, during or with a view of litigation, but on grounds extrinsic to the goals of litigation.  In other words, persons may have a right to keep certain information from legal proceedings and to restrict the access of others to information about themselves, but in certain situations public policy may require that the privilege be set aside, as in child abuse.

Confidentiality develops from the constitutional right to privacy.  The right to privacy is considered a basic right granted by the United States Constitution.  However, privacy also requires the existence of conditions to justify it.  For example, the right of privacy has often been extended to legal cases that allege a governmental violation of privacy in marriage.  If the conditions surrounding the intrusion are truly in the realm of the marital privacy, constitutional support is found.  The constitutional defense came from Roe. vs. Wade, 1973, where the Supreme Court stated that the personal intimacies of marriage, the home, procreation, motherhood, childbearing, and the family are "fundamental" and encompassed within the protected rights of privacy.  In Lovisi vs. Slayton, 539 F 2nd 349 (4th Cir., 1976), however, a federal appeals court held that once individuals accept onlookers, whether they are close friends, chance acquaintances, observed "peeping Toms" or paying customers, they may not exclude the state as a constitutionally forbidden intruder.  There is no reasonable expectation of marital privacy with the third person present.

This same principle applies to psychotherapy.  While there may be a reasonable expectation of privacy between a client and the therapist, in group therapy or marriage therapy, with other persons involved, conditions could be created that negate a reasonable expectation of privacy and or confidentiality.

The most common idea in the context of human services is that a client has a right to confidentiality.  That may be true, but the "right" comes from legislative enactments, not from US constitutional bases (Perlman, 1988).  Even then, confidentiality, with its expectancy for privacy, does not always reach to the level of privileged communication.  Privileged communication is a statutory declaration of a right to keep certain information, as long as it conforms to the reasonable basis of privacy and confidentiality, from legal proceedings.

Often there is gross misunderstanding about privileged communication in the helping professions, and seldom is there a realistic understanding of how even information that is privileged by statute can still be brought into legal proceedings via the rules of evidence and procedure.  Students in the human services are frequently misled into believing that, because they assure their clients that their sessions are confidential, they will be immune from revealing the communications.  That is not true.  To be immune, even to the slightest extent, one must have an established membership (such as by being licensed) in a professional discipline that is specified by state statute as having privileged communication.

It must also be emphasized that the professional does not have the privilege, the privilege belongs to the client.  The client can either waive or invoke the privilege, the professional cannot do this.  For example, if a client requests the professional to release information, it must be released and the professional cannot refuse to do so.  There is great misunderstanding and confusion about this by both professionals and clients.

There may be two types of holders of a privilege that is intended to encourage accurate communication of potentially self-damaging information.  The primary holder is the one whose immediate interests are harmed if disclosure occurs.  He is the communicator.  It is he whom the law seeks to thus always have prevail over anyone else's wishes, including those of a secondary holder.  A secondary holder is one who is allowed to assert the privilege in certain instances where the primary holder is unable to assert the privilege for himself.  Stated differently, the human services professional is not at liberty to invoke privileged communication that must be done by the client.  However, if the client is suing the professional, the privileged communication surrounding the relationship disappears, and the professional is free to communicate anything to a source relevant to the legal action.  Moreover, the professional is free to set aside the privileged communication if there is a substantial threat to the safety and welfare of the client and/or another person (Tarasoff v. Regents of the University of California, 551 P. 2d 334 Cal Sup. Ct. 1976).

The public policy justifying privileged communication comes from the belief that some values are important enough to justify restriction on the search for truth.  This public policy, however, has come under repeated attacks, and the modern trend is toward setting aside these once sacrosanct personal privileges.

Of most concern for human services professionals is privileged communication for psychotherapeutic interventions.  For a variety of reasons, the psychotherapist patient section was not included in the Federal Rules of Evidence but was offered as an option for adoption at the state level (467 Pac. 2nd at 557).  State versions typically limit the professionals covered by this section.

Even if covered by a privileged communication statute, the human services professional may still have to release information that would otherwise be privileged.  Rule 35 of the Federal Rule of Civil Procedure allows a court to order a physical or mental examination when those conditions are at issue, and all information must be made available to both sides of the legal dispute.  Similar rules at the state level allow for court-ordered examination, usually by a psychologist.

What if the professional does not want to release all the information?  She can ask the court to allow submission of an abridged version of the results, because, for instance, the client might not be able to handle a confrontation with a specific diagnostic label.  However, the court will only agree to such a request in unusual circumstances, unless the requested abridgement allows for an equal degree of justice to be accomplished.

There are practical means for handling this situation.  Data should be recorded with the possibility that the record may be inspected by other persons, including those in a court of law.  Statements potentially damaging to the client will therefore be avoided.  There is no need to record the innermost secrets of the patient nor to detail fantasies, erotic or otherwise, about which concern may be expressed.

The legal system has established means for opening the previously privileged communications to the eyes and ears of those seeking justice in courts.  This means that the practitioner must yield any information appropriately sought by the court.  To offer information, the initial move could be by the client through a waiver.  Any holder of privileged communication can knowingly waive the right through a signed release form or through the introduction of a mental status issue into the judicial proceedings.  Once the door has been opened, the party opponent has a right to plunge through and gain access to any and all information, privileged or otherwise, that relates materially to the issue.

A second move may be made through subpoena.  This amounts to a court order that information be provided to the party opponent.  When subpoenaed, the professional must yield the information regardless of the client's preference.  The client may object to the professional providing information, but the subpoena controls the decision.  The subpoena contains no allegations and need not be endowed with any positive or negative connotation (Pennsylvania vs. Richie, 107 Supreme Court, 1989).

The professional cannot refuse to cooperate with a subpoena on the ground that the psychotherapeutic process will be contradicted by the therapist speaking out.  Public policy has relegated these arguments to a position secondary to the goal of maximizing fair play in judicial process by bringing in all relevant information.  The professional may, however, question whether providing the information will do more harm than good.  Responding respectfully to a subpoena, the professional can set forth a reasoned request to withhold certain information to avoid hurting someone the client or someone else.  He can also assert that justice will not be substantially furthered in the full account (by issuing an order to produce).  However, if so ordered, he should forthwith produce any and all information specified.  To do otherwise could mean being held in contempt of court.  Similarly, to conveniently forget information during the process of giving testimony could be perjury.
  

Records

The courts have held that professionals have a limited property right in their records.  This means that if a client wants all records destroyed for instance, to avoid discovery by a party opponent in an approaching legal action the professional does not have to comply with the demand.  In fact, the professional would be foolish to do so.  She could be charged with purposefully destroying evidence, with all the possible sanctions that could accordingly be imposed, and could also incur personal liability if, for example, the records were later needed as a defense in a malpractice action brought by the client.

As an example, a client was told the results of her psychological tests by her therapist and, despite efforts by the therapist to resolve her paranoid reactions, demanded that the therapist turn over the entire file to her to be destroyed.  Both the therapist and the client sought legal counsel, and both received the same legal advice, namely, that the therapist has a right to the test protocols and is justified in retaining them for professional and personal protection.

The release of human services records to certain individuals may be legitimately questioned by the professional.  Legally, a subpoena can require any and all records, such as original test protocols and videotapes, that are relevant to the matter.  However, the court might allow a clinical psychologist to withhold certain protocols, such as the Rorschach, Thematic Apperception Test, or Wechsler Adult Intelligence Scale, from a witness for the party opponent who did not meet licensing standards in the state for using those instruments and who was seeking them to provide impeachment or contradictory testimony.  In a child custody case, for example, the attorney for the mother wanted the father's psychologist to photocopy test protocols and turn them over to a marriage and family counselor without a doctorate and without any licensure or certification.  The psychologist's objection to turning these tests over to anyone other than a licensed psychologist proved to be persuasive, and the request was denied.

Retention of records can be jeopardized by the so-called "best evidence" rule.  The Florida Statutes, for example, state: "Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the record."  Before appearing for a deposition, court appearance, or otherwise, the prudent professional should prepare one or more sets of duplicates of any and all materials, thereby allowing her to retain the original records without having to copy them later from the court record.  The admissibility of duplicates usually requires only that the professional certify, either by written affidavit or verbally during testimony, that the duplicates are, in fact, true copies of the originals.

The professional is entitled to charge a reasonable fee for any activity associated with the legal proceedings.  Thus, the costs for photocopying records, preparing a report, participating in a deposition, or giving courtroom testimony should be billed at an established rate.  Some attorneys for the party opponent might try to minimize expense by claiming that the only fee legally required is the one paid to lay persons subpoenaed to testify.  Although a few jurisdictions do impose the lay person fee on a professional giving testimony, in most jurisdictions the court will order payment of the established professional fee for case-related services.
  

Immunity, Sanctions, and Civil Liability

There can be serious consequences for the therapist who breaks confidentiality.  A breach of confidentiality can be the basis for a breach of contract suit because the professional human services relationship creates an implied, if not express, contractual relationship that encompasses confidentiality.

While damages are commonly thought of in terms of money, the penalty will typically go far beyond dollars.  One's license to practice could be revoked, especially if the breach of confidentiality were willful or malicious.  Professional associations could impose sanctions, such as a censure made before the total membership or removal of certification and/or membership therein.  Perhaps the most damaging consequence of such a charge, whether proved or not, is that the professional suffers a loss of credibility in the community.

To illustrate the wide-ranging effects, one professional was alleged to have breached confidentiality by making comments about a client's criminal conduct.  Although the professional's comments were true and were restricted to criminal conduct that was on the public record, the client thought they were slanderous and filed a legal action.  After discovery procedures, it became evident that the professional had not, in fact, breached confidentiality or made slanderous comments, and the plaintiff agreed to drop his suit.  In the meantime, however, the professional had spent about two thousand dollars in legal fees counteracting the suit, and the professional grapevine carried the story to colleagues in a manner that probably tarnished his professional image.  As a result, his professional credibility was questioned, even though he was not guilty of any legal wrong.  Clearly, professionalism carries a unique duty to safeguard information.  Legal actions against a professional can be costly in terms of monetary damages as well as diminution of reputation.

There are also legal sanctions for defamation.  Defamatory language is language that blemishes the client's honesty, integrity, virtue, sanity, or any other personal characteristic that could potentially create damage.  In addition to the legal sanctions for a breach of confidentiality that results in defamation, the ethical codes for the human service disciplines are replete with restrictions on such statements.  This is one area where the prudent professional must err on the side of conservatism.  Human Services professionals should not talk about clients except with helpful intent and in contexts associated with professional services.

A tort action alleging invasion of privacy can be brought against a person who uses a picture or the name of a client (or any other person) for commercial advantage (such as publishing the picture or name in a book without express permission), intrudes into the client's affairs or seclusion, publishes facts that places the client in a false light, and makes public disclosures of private facts about a client.

There is also civil and criminal liability for failing to breach confidentiality in the case of mandated child abuse reporting.  The child abuse reporting laws require reporting of all known or suspected cases of child abuse and professionals who are mandated child abuse reporters risk liability when they do not make a report (Besharov, 1986).  Mandated reporters must notify the appropriate agency (police or child protection) not only when they know a child has been abused, but when they suspect it.  The statutes typically include an express immunity from legal action for any professional who, in good faith, attempts to comply with this statutorily required breach of confidentiality.

Although the language of the reporting laws varies from state to state, the meaning is essentially the same.  However, the language differences are important for determining civil liability for failure to report.  In addition, most state statutes include a criminal penalty for failure to report (Meriwether, 1988, Weinstock & Weinstock, 1988).  Not reporting in and of itself is a misdemeanor and can be criminally prosecuted.

A new fear among therapists is the unintentional false report (Besharov, 1990) which is made with good intent or good faith.  Every state provides immunity from criminal and civil liability to persons making good faith reports and a reporter is only vulnerable when it can be proven that a false report was made and the person knew the report was false (Meriwether, 1988).  But the therapist still may be vulnerable when a report turns out to be false (Halvorsen, 1989).  Good faith is small recompense if the therapist is sued. ( See for example, the Texas Code 34.021 making it a misdemeanor to knowingly make a false report of child abuse, or the New Jersey Senate Bill S2230 recommending a 3-5 year sentence for falsely reporting domestic violence.)

In the arguments of forced reporting versus confidentiality we often overlook the client's duties towards the therapist.  Clients incur duties at three levels.  At the first level is the duty of clients to provide accurate and complete information to the therapist and to cooperate with agreed-upon treatment plans.  At the second level are general duties that apply to any citizen of our country to respect the integrity of others and of property and to obey current laws.  At the third level is the controversial "duty to protect" (Jablonski v US, 712 Fed 2d. 391, 1983), applicable to more than one party.  The therapist has an advantage for enforcing these duties, which are related to better care by all professionals, best level of functioning of all clients, and improved system-wide morale and safety (Blasko, 1990).  Legal duties of clients towards treatment should be enforced by each therapist.
  

Reporting Laws and the Therapist

Many writers have noted the confusion about reporting laws, the frequent failure to observe them, and the dilemmas these laws can cause for the therapist.  The recent literature (Crenshaw & Lichtenberg, 1990; Koziol & Petretic-Jackson, 1990; Zellman, 1990a) indicates that most mandated reporters are now aware of the reporting laws and accept their responsibility to report.  Failure to report most often occurs when the would-be reporter is uncertain about whether the incident is reportable or when he believes that the report will keep the child and family from getting the help that they need.  Even therapists who favor the reporting laws may fail to follow them (Koziol & Petretic-Jackson, 1990).

Meriwether (1988) notes that reporting legislation has not proved to be an effective means of treating child abuse.  While reporting has increased dramatically over the years, most abused and neglected children are not now being identified and helped.  At the same time, many of the cases of suspected abuse that are reported are not substantiated.  If the therapist makes a report that is not substantiated, the family will most likely be subjected to a traumatic and intrusive intervention and the therapeutic relationship may be irrevocably damaged.

Besharov (1985) believes that definitional inadequacies in the reporting laws are a significant problem and states that "avoidance of definitional weakness is a luxury the field can no longer afford, if it ever could" (p.77).  There is confusion caused by statutes which include both mandatory and permissive reporting clauses (Miller & Weinstock, 1987).

Therapists are confused as to whether all past abuse must be reported, even when the former victim is now an adult.  The California Attorney General's Office recommends reporting of all cases of past abuse even if many years have elapsed since the abuse, no child is currently at risk, and the victim does not wish it reported (Weinstock & Weinstock, 1988).  The National Center for the Prosecution of Child Abuse maintains that such reporting is mandated (Wakefield, personal communication).  Miller and Weinstock (1987) state that a requirement to report suspected past abuse:

... places therapists in an ethical dilemma between suppressing the evidence of possible abuse ... or breaking confidence by reporting their suspicions.  Under such conditions, it would not be surprising if ethical therapists chose not to work with patients whose treatment places them in such binds (p.171).

Meriwether (1988) notes that it has been difficult to come up with generally accepted and precise definitions in order to communicate what constitutes a reportable condition:

Although the concept is simple, the formulation of such definitions has proved elusive.  The commentators have been struggling to find a workable and appropriate definition since the concept of a mandatory reporting law came into being (p.19).

Weinstock and Weinstock (1988) assert that child abuse reporting statutes present "new and very serious threats to therapeutic confidentiality" (p.419).  They believe that many therapists have become complacent about violating confidentiality and do not fully appreciate the threat to therapy created by such reports:

The child abuse laws are having a strong impact upon clinicians.  The positive effect is an increased sensitivity to the prevalence of child abuse.  However, the negative side includes: the detrimental effects of strong fears of liability upon therapy, overreporting and misinterpretations such as the suggestion to report long past abuse when the victim is now an adult, a deterioration of patient-therapist confidentiality and trust, an increasing disregard for the effects of reporting upon victims and families, and requirements for therapists to act in ways many consider unethical.  Most striking is that these developments have occurred almost unchallenged by professionals whose skills are being restricted by unprecedented assaults upon confidentiality.  Instead of encouraging therapeutic treatment of the problem, the law is undermining such approaches even for victims of child abuse (p. 423).

Weinstock and Weinstock (1988) hope that therapists will become aware of how reporting laws threaten therapy and "will not violate confidentiality blindly when the law does not clearly and unambiguously demand it and no beneficial purpose would be served by doing so" (p.428).  Stadler (1989) notes that since the reporting laws require the therapist to serve the interests of someone other than the client, therapists are thrust into the role of a "double agent."

Crenshaw and Lichtenberg (1990) found that there is general agreement that therapists provide some type of warning to clients about the limits of confidentiality.  However, the warning is apt to be provided only after the therapist becomes suspicious about abuse or even after a full disclosure is made about the abuse in therapy.  One respondent told the authors that the local welfare agencies discouraged forewarning because it might keep the parents from disclosing.  Such a stance supports the above depiction of making therapists into double agents.

Ansell and Ross (1990) believe therapists should be given the option to consider a range of options before being force to immediately report suspected child abuse:

To deny therapists that judgment is a clear usurpation of professional function.  Worse, it compels psychologists to turn away from their professional responsibilities to become agents of the police (p. 399).

There are many possible reasons for failing to report child abuse.  Among these are:

1) The therapist does not properly understand the reporting law.  Reporting laws and child abuse and neglect statutes are very broad, vague, ill-defined, and highly subjective, and give slender guidance to professional reporters. (Besharov, 1985; Meriwether, 1988; Ames & Houston, 1990).  Crenshaw & Lichtenberg (1990) found that some therapists believed (erroneously) their state did not mandate reporting emotional abuse in addition to sexual and physical abuse.

2) The therapist believes reporting would not be in the child's best interest and "the child's life" is a higher consideration than obeying the reporting law (Muehleman & Kimmons, 1981).

3) The therapist does not want to divulge sensitive information which was given to the therapist with the assumption it would be held in confidence by therapist.  As Guyer (1982, p. 74) states, "The mandatory reporting acts, which specify an intrusion into the privacy of the family in the service of its children, necessarily intrude upon another sort of privacy that which has traditionally existed between patient and therapist"

4) The therapist believes the situation is not serious enough to report or that the situation has resolved itself.

5) The therapist is uncertain whether the abuse actually occurred (Kalichman, Craig, & Follingstad, 1987, 1988, 1989, 1990; Kalichman, Craig, Follingstad, & Lyman, 1988).  For example, information from a young child may give rise to suspiciousness which cannot be confirmed by anyone.  The therapist may be unable to distinguish true information from a client who exaggerates or distorts information as part of illness.  The therapist may believe that an angry adolescent has fabricated the account of abuse.

6) The therapist believes the agency would not accept the report or take action.  If the Child Protection Service does not have the capacity, inclination, or fiscal resources to do anything after the therapist reports, why risk rupturing the therapeutic relationship for this uncertainty? (Downing, Wells, & Fluke, 1990; Finkelhor, et al.,1984; Fryer, 1990; NASW, 1989; Newberger, 1983; Wexler, 1990; Zellman, 1990a & b).

7) The therapist is concerned about the possible disruption to therapy that may be caused by reporting (Swoboda et al., 1978).

8) The therapist believes reporting represents "an unnecessary intrusion on the professional's autonomy, and an indictment of competence" (Pollak & Levy, 1989, p.518).

9) The therapist believes the abuse has already been reported and sees no need to report it again.

10) The therapist believes reporting will harm the family (Kalichman, Craig, & Follingstad, 1990; Zellman, 1990a; Zellman & Antler, 1990).

11) The therapist has little confidence in the quality of child protection services and believes that he or she could help the child better, "I can do better than the system" (Zellman, 1990a).

12) The therapist believes treatment of sex offenders will be hindered if the client believes that what he says in therapy may be reported.  Voluntary treatment of the child abuser or potential child abuser is discouraged by current forced reporting laws.  Identified sex offenders are likely to react to the warning that information about past behavior for which they have not been charged will be reported by withdrawing from therapy.  If they remain in therapy, they are unlikely to reveal and deal with their past behavior (Kavanaugh, 1988; Priest & Wilcoxon, 1988; Miller & Weinstock, 1987).

13) The therapist does not think a report must be made since the victim is now an adult.  Miller and Weinstock (1987) note that there is great confusion as to whether all past abuse, in addition to ongoing abuse, must be reported.

14) The therapist is afraid of retaliation from the client and does not want to risk being sued for breach of confidentiality even if the report of child abuse was made in good faith (Dowding, 1990; Pollak & Levy, 1989; Zellman, 1990a).

15) The therapist does not think a report must be made when abuse is divulged in group therapy.  Group treatment, the most popular approach for child abusers or their spouses or victims, may be the most difficult to control for the therapist, in terms of confidentiality of what group members say about child abuse (Andring v. Minn., 342 Northwest Reporter 2d at 128; Slovenko, 1977).
  

Possible Solutions

Meriwether (1988) recommends that the definitions of reportable elements of abuse be as specific and as simplistic as possible.  Since many professionals do not understand just what it is they are should reporters, "it is vital that the statutes effectively communicate to mandated reports exactly what is reportable" (p.40).  She adds that the definition include an objective standard to denote the requisite state of mind of the person mandated to report.

In addition to improving the definitions of child abuse and the conditions under which it must be reported, the literature reflects a wide range of other suggestions offered in the effort to solve the dilemma between absolute confidentiality in treatment and the legal duty to report suspected abuse.  Some of these suggestions are:

1) Only ongoing abuse should be reported.  When the abuse is clearly in the past and the perpetrator is perceived as being no longer dangerous, a report should not be made.

2) Therapists who treat child abusers on an outpatient basis should be required to report the identity only of the suspected victim, not that of the suspected abusers.  They should be required to report only if the victim is under age 18 at the time of the report.   Suspected offenders should not be reported unless the therapist believes the abuse may be continuing, the problem is not being adequately addressed, or the abuser refuses to enter therapy.

3) All criminal sanctions should be removed for a treating therapist who has good clinical reasons for preferring actions other than reporting and does not endanger the child by failing to address the problem.

4) Professionals should be only required to report cases where they know the child has been abused.  Reporting of suspicion of child abuse should be elective by therapists and not mandatory (see Maryland for legislative bill style).

5) The victim's request for confidentiality should be respected if the abuse has stopped or if intervention such as family therapy appears to be ameliorating the problem.  Current ambiguities in the laws should be interpreted in the direction of maintaining confidentiality rather than in the direction of making a report.

6) Professionals should become educated as to what the current laws may mean in terms of their therapeutic relationship with clients.  They should lobby to modify the current laws which place them in the "double agent" role.

7) Therapists' notes and records should not be used in custody hearings, communicable disease control, or in legal proceedings concerning the intended commission of a crime, unless voluntarily submitted by the therapist.

8) Amnesty should be offered for child abusers who seek treatment voluntarily and facilities and treatment should be offered for those seeking volunteer treatment.

9) Cases of criminal prosecution for failure to report should go to a panel of peers first to look at claims against reporters before they reach the legal stage in proceedings.

10) Ethical and legal training should be included in graduate school curriculums.  This should include confidentiality, privilege, and malpractice law as well as general training in the applicable ethical codes.

11) Guidelines should be established by each helping profession, on when to seek out consultation from peers or lawyers on confidentiality issues and reporting law changes.

12) Research should be done which delineates the value of confidentiality to therapy and the effects on the client of breaking it.  At present, research on confidentiality is limited and contains mixed and dated findings.
  

Conclusions

The importance of effectively managing confidentiality cannot be overstated.  Breach of confidentiality was the fifth-ranked sustained complaint brought before the National Association of Social Workers Chapter Committees on Inquiry between 1979 and 1985 (Berliner, 1989).  Maintaining confidentiality says something about the kind of respect social workers show for clients (Lindenthal, Jordan, Lentz, & Thomas, 1988).  Confidentiality is critical for therapy (Keith-Spiegel & Koocher, 1985).

The child abuse reporting laws pose a serious dilemma for therapists in terms of the therapist-client relationship.  Questions regarding confidentiality and the reporting laws do not have clear answers and many practitioners are confused about how to meet both the legal requirements and their ethical and professional responsibilities to clients.

The helping professions must address the question of proper management of confidentiality.  Therapists must become more aware of how reporting laws threaten therapy and work towards solutions which enhance the welfare of all clients, including abuse victims.
  

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Halvorsen, D. (1989, November 20). Therapist's case tests state's child-protection law. Star Tribune, pp. 1B, 2B.

Kalichman, S. C., Craig, M. E., & Follingstad, D. R. (1990). Professionals' adherence to mandatory child abuse reporting laws: Effects of responsibility attribution, confidence ratings, and situational factors. Child Abuse & Neglect, 14(1), 69-77.

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Kalichman, S. C., Craig, M. E. & Follingstad, D. R. (1988). Mental health professionals and suspected cases of child abuse: An investigation of factors influencing reporting. Community Mental Health Journal, 24(1), 43-51.

Kalichman, S. C., Craig, M. E. & Follingstad, D. R. (1987, August). Factors contributing to mental health professionals' reporting of child abuse. Paper presented at the 95th meeting of the American Psychological Association, New York.

Kalichman, S.C., Craig, M. E., Follingstad, D. R., & Lyman, K. (1988, August). Psychologists and child abuse reporting: Investigating decisions not to report. Paper presented at the 96th annual convention of the American Psychological Association, Atlanta, Georgia.

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Keith-Spiegel, P., & Koocher, G. P. (1985). Ethics in Psychology: Professional Standards and Cases (Hardcover). New York: Random House.

Koziol, R., & Petretic-Jackson, P. (1990, August 10). Child sexual abuse: Psychologists' attitudes regarding mandatory reporting and blame. Paper presented at the 98th annual meeting of the American Psychological Association, August 10-14, 1990, Boston, MA.

Leesfield, I. (1987). Negligence of mental health professionals. Trial, 23, 57-61.

Leong, G., Silva, R., & Weinstock, R. (1988). Ethical consideration of clinical use of Miranda-like warnings. Psychiatric Quarterly, 59(4), 293-300.

Lindenthal, J. I., Jordan, T. J., Lentz, J. D., & Thomas, C. S. (1988). Social workers management of confidentiality. Social Work, 33, 157-158.

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National Association of Social Workers (1980). Code of Ethics. Silver Springs, MD: Author.

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Perlman, G. (1988, September-October). Mastering the law of privileged communication: A guide for social workers. Social Work, 425-429.

Pollak, J., & Levy. S. (1989). Countertransference and failure to report child abuse and neglect. Child Abuse & Neglect, 13, 515-522.

Pope, K. S., & Bajt, T. R. (1988). When laws and values conflict: A dilemma for psychologists. American Psychologist, 43(10), 828-829.

Priest, R., & Wilcoxon, S. (1988). Confidentiality and the child sexual offender: Unique challenges and dilemmas. Family Therapy, 15(2), 107-113.

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Slovenko, R. (1977). Group psychology: Privileged communication and confidentiality. International Journal of Psychiatry and the Law, 5, 405-450.

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Swoboda, J. S., Elwork, A., Sales, B. D., & Levine, D. (1978). Knowledge of and compliance with privileged communication and child-abuse-reporting laws. Professional Psychology, 9(3), 448-457.

Watson, H., & Levine, M. (1989). Psychotherapy and mandated reporting of child abuse. American Journal of Orthopsychiatry, 59(2), 246-256.

Weinstock, R., & Weinstock, D. (1988). Child abuse reporting trends: An unprecedented threat to confidentially. Journal of Forensic Sciences, 33(2), 418-431.

Wexler, R. (1990). Wounded Innocents (Paperback). New York: Prometheus Books.

Zellman, G. L. (1990a). Child abuse reporting and failure to report among mandated reporters: Prevalence, incidence, and reasons. Journal of Interpersonal Violence, 5(1), 3-22.

Zellman, G. L. (1990b). Report decision-making patterns among mandated child abuse reporters. Child Abuse & Neglect, 14(3), 325-336.

Zellman, G., & Antler, S. (1990, Winter). Mandated reporters and CPS: A study in frustration. Public Welfare, 30-37.
  

Additional Suggested Reading

Barksdale, C. (1989). Child abuse reporting: A clinical dilemma: Smith Studies in Social Work, 59(3), 270-279.

Charba, T. (1989). Mandatory reporting of infectious diseases by clinicians. Journal of the American Medical Association, 262(21), 3018-3021.

Collier, S. (1983). Reporting child abuse: When moral obligations fail. Pacific Law Journal, 15, 189-209.

Curtis, P., & Lukus, D. (1985). Client confidentiality in police social work settings. Social Work, 30(4), 355-360.

Curtiss, T., & Helfman, L. (1988, December). Complying with the California Child Abuse Reporting Act. Los Angeles Lawyer, 39-44.

Dugger, C. (1989, Dec.29). Confidentiality laws may mask tragic tales. Miami Herald, p. 1, 10A.

Foster, L. (1974). Illinois: A pioneer in the law of mental health privileged communications. Illinois Bar Journal, 62, 668-670.

Heyman, G. (1986). Mandated child abuse reporting and the confidentiality privilege. In L. Everstine & D. Everstine (Eds.), Psychotherapy and the Law (Hardcover)(Out of Print) (pp. 145-155). New York: Grune and Stratton.

Lindenthal, J. J., Amaranto, E. A., Jordan, T. J., & Wetman, B. J. (1984). Discussions about confidentiality in medical students mental health settings. Journal of Counseling Psychology, 31, 572-575.

Maryland Register 15(19)07.02.04 Section E. "A health practitioner specializing in the psychiatric treatment of pedophilia is not required to report sexual abuse ..." 9/9/88. p. 2253.

National Association of Social Workers, Inc. (1989). The staffing crisis in child welfare. Silver Springs, MD: Author.

Neal, T. (1990, May/June). Child abuse: Our national scandal. State Legislation, 20-23.

Silva, J. A., Leong, G. B. & Weinstock, R. (1989). An HIV-infected psychiatric patient: Some clinicolegal dilemmas. Bulletin of the American Academy of Psychiatry and the Law, 17(1), 33-44.

Smith, S., & Meyer, R. (1984). Child abuse reporting laws and psychotherapy. International Journal of Law and Psychiatry, 7, 351-366.

* LeRoy G. Schultz is a professor of social work and can be contacted at 708 Allen Hall, Suite 710, West Virginia University, Morgan town, West Virginia 26506.  [Back]

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