Mandated reporter

In many jurisdictions, such as U.S. states, Canada,[1] much of Europe[2] and Australia,[3] mandated reporters are people who have regular contact with vulnerable people such as children, disabled persons and senior citizens and are therefore legally required to report (or cause a report to be made) when abuse is observed or suspected. Specific details vary across jurisdictions- the abuse that must be reported may include financial, physical, sexual, neglect or other types of abuse. Mandated reporters may include paid or unpaid people who have assumed full or intermittent responsibility for the care of a child, dependent adult, or elder.

History of mandatory reporting

In 1962, two doctors (Henry Kempe and Brandt Steele) published “The Battered Child Syndrome” [4][5] which helped doctors identify child abuse, its effects, and the need to report serious physical abuse (i.e. fractures) to legal authorities. In 1974, the US Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), with funds to states for development of Child Protective Services (CPS) and hotlines to prevent serious injuries to children. These laws and the accompanying media campaigns, research, conferences, trainings, books/journal articles brought about a gradual change in societal expectations on reporting in the US and, at different rates in other western nations.[6][7]

Although originally the focus was on serious physical abuse in the US, it slowly evolved to include sexual and emotional abuse and neglect, including bruising, developmental delay, psychological harm and exposure to domestic abuse in many countries, primarily in Northern America, Europe and Australia/ New Zealand.[8] In the US there was a 2348% increase in hotline calls from 150,000 in 1963 to 3.3 million in 2009.[9] In 2011, there were 3.4 million calls.[10] From 1992 to 2009 in the US, substantiated cases of sexual abuse declined 62%, physical abuse decreased 56% and neglect 10%. Although the referrals increase each year, about 1% of the child population is affected by any form of substantiated maltreatment.[11] Referrals increase each year, but the actual substantiated cases remain low and are approximately the same or decline each year.[10]

Overall, the total number of substantiations in Australia has nearly doubled since 2001 (1.77 times higher) but have shown a slight downward trend since 2005-06. Specific comparisons cannot be made before this time, as different jurisdictions have made substantial changes throughout this period in reporting requirements and definitions of terms.[12]

Prevalence of referrals/notifications

In the US, there are approximately 3.6 million calls each year: 9,000/day, 63,000/week,[10] affecting on average 1 out of 10 U.S. families with children under the age of 18 each year (there are 32.2 million such families).[13] From 1998 to 2011 there were a total of 43 million hotline calls.[10] Of those substantiated, over half are minor situations and many are situations where the worker thinks something may happen in the future. The largest category was neglect,[10] many the result of family poverty.[14]

In Australia there was an increase in notifications from 2000-01 to 2008-09, followed by a decrease to 2011-12, reflecting, in part, different mandated thresholds.[15] Canada [16] and England[17] provide data on substantiations but not reports.

Media and commentators often take the number of referrals to be synonymous with the number of cases of actual child maltreatment, which makes the problem appear larger than it actually is.[18]

Abuse, or suspicion of abuse, that must be reported

The criteria for reporting vary significantly from one jurisdiction to another.[19] Typically, mandatory reporting applies to people who have reason to suspect the abuse or neglect of a child, but it can also apply to people who suspect abuse or neglect of a dependent adult or the elderly,[20] or to all members of society.

Abuse occurs where a victim has suffered physical injury inflicted other than by accidental means, has injuries, or is in a condition resulting from mistreatment, such as malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional abuse or cruelty. Neglect may include abandonment, denial of proper care and attention physically, emotionally, or morally, or living under conditions, circumstances or associations injurious to well-being.

Typically, minimum requirements for what must be reported include:

Innocence should be presumed unless and until evidence establishing guilt is obtained and it must be remembered that only suspicions are being reported.[21]

Mandatory reporting of child abuse by jurisdiction

The Council of Europe has urged all countries to have mandatory reporting of child abuse but several European countries do not. Under UK law only local authority social workers, health and social service board social workers (Northern Ireland) and police have a duty to report suspicions that a child is in need of care and protection. Local child protection guidelines and professional codes of conduct may expect other professionals, such as teachers and medical staff, to report, but they do not have to do so as a matter of law.[22]

Canada imposes a mandatory requirement on all citizens, except in the Yukon Territory where it is restricted to those who come in contact with children in their professional roles.[1]

The United States has a variety of legislations - in 18 states, all citizens have mandatory reporting requirements when they suspect a child is at risk of abuse.[23] Other states have mandatory reporting requirements only on those in professions where they come in contact with children.[1]

In Australia, the Northern Territory requires all citizens to report suspected child abuse,[24] and the other states and territories have mandatory reporting for designated work roles [25] [26] [27] [28] [29] [30] [31]

Other nations, including Brazil, Denmark, Finland, France, Hungary, Israel, Malaysia, Mexico, Norway, South Africa, and Sweden, have created quite general legislative reporting duties[1]

Anonymity and immunity

Mandated reporters are usually required to give their name when they make a report, but may request anonymity to protect their privacy. A mandated reporter who knowingly makes a false report will ordinarily have their identity disclosed to the appropriate law enforcement agency, and their identity may be disclosed to the alleged perpetrator of the reported abuse or neglect.

A mandated reporter may be subject to penalties, though immunity from civil or criminal liability is granted to reporters who report in good faith. Immunity is also granted to reporters who, in good faith, have not reported. However, failure to report suspected abuse or neglect could result in fines or other sanctions, such as participation in a training program. Failure to act may result in even stiffer penalties, such as civil litigation or criminal prosecution with the prospect of potential imprisonment.

Clergy-penitent privilege and other exemptions

Conflicts between a mandated reporter's duties and some privileged communication statutes are common but, in general, attorney-client privileges and clergy-penitent privileges are usually exempt from mandatory reporting. In some states in the US, PhD. psychologists are also exempt from mandatory reporting.

"Clergy-penitent privilege" is privileged communication that protects communication between a member of the clergy and a communicant, who shares information in confidence. When applied, neither the minister nor the “penitent” can be forced to testify in court, by deposition, or other legal proceedings, about the contents of the communication.[32] Most US states provide the privilege, typically in rules of evidence or civil procedure, and the confidentiality privilege has also been extended to non-catholic clergy and non-Sacramental counseling.[33]

Informing family members and guardians

Mandated reporters typically are not obligated to inform parents, siblings or offspring that a report has been made. In many circumstances, however, it may be necessary and/or beneficial to do so.

When a report is made at a caregiving facility, the person in charge of a hospital, school or other institution is generally required to notify family members, or other caregiver(s) responsible for the (possible) victim, that a report has been made. Healthcare professionals or members of the clergy, however, often must talk with family members or guardians to offer support and guidance, or to assess the cause of an injury. In cases of serious physical abuse or sexual abuse, it may be unwise to advise caregivers before a case is reported, as it may put a victim at greater risk and/or interfere with a criminal investigation.

Investigation of reports

Each year in the US approximately 2 million allegations are investigated, affecting 1 out of 16 families in the US with children under 18.[34] In Australia, investigations increased from a low in 2000-01 (66,265) to a high in 2008-09 (162,259) declining to 99,649 in 2010-11 (then increased to 106,754 in 2011-12).[15] In Canada, investigations increased from 135,261 in 1998 to 235,842 in 2008.[16] Information on investigations does not appear to be available in other countries.

In the US, law enforcement or public health agencies are responsible for immediately evaluating all reports of abuse. Referrals in most states are screened to determine which are investigated - many clearly do not constitute abuse or neglect, or provide insufficient information to conduct an investigation. Rates of screening vary considerably between states - some investigate all reports, others screen out between 5% to 78% in this manner.[35]

When reports contain sufficient information to warrant an investigation, authorities must make efforts within a reasonable time frame to begin (and conclude) an effective investigation, particularly when there is an imminent risk of physical harm or another emergency. Agencies should coordinate activities to minimize impacts upon the (possible) victim. In the US in 1985 the Children Advocacy Center model was founded, including “Multi-Discipline Teams” (law enforcement, child protection, prosecution, mental health) to interview, treat, manage and prosecute child abuse cases.[36]

Consent to interview(s) of the (possible) victim often must be obtained from guardians, unless there is reason to believe such person is the alleged perpetrator. In cases where serious abuse or neglect is substantiated, local law enforcement, prosecutors or other public offices must be notified, and a copy of the investigation report must be sent.

US school districts adopted policies, following the 9th Circuit’s ruling in Greene v. Camreta, requiring police or state case workers to produce a warrant, court order, parental permission or exigent circumstances prior to interviewing a student on school grounds as part of a sexual abuse investigation.[37]

Outcomes of investigations

Each year in the US, approximately 64% of all investigations are unsubstantiated and approximately 22% are substantiated, with around 9% where "alternative responses" are offered in some states, which have a focus on working with the family to address issues rather than confirming maltreatment.[34]

In Canada in 2008,[16] 36% of all investigations were substantiated, with a further 8% of investigations where maltreatment remained suspected by the worker at the conclusion of the investigation and a further 5% with a risk of future maltreatment. 30% of investigations were unfounded and 17% resulted in no risk of future maltreatment was indicated.

In 2012, the UK reports 50,573 children were on child protection registers or subject to a child protection plan: England (42,850), Scotland (2,706), Wales (2,890), Northern Ireland (2,127).[38]

Substantiation by maltreatment type

Total US maltreatment substantiation annual rate is less than 1% of US child population (9.3 per 1000 non-duplicates).[39]

Of those:

The % of US children affected annually by substantiated neglect, physical and sexual abuse:

[40]

Similar information may be available from other countries.

Appeals/expunction

An attempt to appeal a decision is administrative, involving a review within the CPS agency, by CPS staff. CAPTA requires that states have procedures for expunging records. Procedures for doing so vary and may not be adhered. Ten states do not have provisions.

Arkansas, a CAPTA compliant state and a leader in addressing problems with the Child Maltreatment Registry has laws and procedures to remove one’s name from the Central Abuse Registry after one year (see Arkansas Department of Human Services Policy and Procedure Manual) In several US states with records of court challenges, 75% of the substantiated cases were overturned.

Child removals as a result of mandatory reporting

In the US, CPS can take a child into protective custody with assistance from the police. Each day in the US approximately 700 children are removed from their parents to protect them from abuse or neglect.[41] In 2001, one US child every 5 minutes (approximately 100,000 children) was removed from their family who was later determined not to be maltreated.[41]

Due to the human impact of removal, the law in the US requires it to be used sparingly. The US Supreme Court has held that the Fourteenth Amendment to the US Constitution provides a fundamental right to family integrity, requiring the state to provide notice and a hearing before forcibly separating a parent and child - with the exception of occasions when a child’s life or health is in danger. Most removals are done on an emergency basis, bypassing the courts but requiring a post removal hearing.[41]

Consequences/effects of investigations on children and their families as a result of mandatory reporting

A child may be wrongfully removed. Long, repeated interrogations and physical examinations can leave emotional scars. Even if not removed, there may be ongoing fear, distrust and insecurity. Long term foster care can leave lasting psychological scars and do irreparable damage to the parent/child bond. An accusation of wrongdoing may disrupt a family even if allegations are dismissed.[42] Often threats and an assumption of guilt over innocence lead to feelings of powerlessness, inadequacy, depression, denial of due process and liberties, reputations tarnished and privacy invaded. Consequences can be: long term court supervision, treatment programs, termination of parental rights and incarceration.[41]

There may be economic harm due to the need to obtain legal representation to defend one’s self and comply with the requirements demanded of them. Often names are listed on CPS Central Registries/databases (different from Sex Abuse Registries) for decades, used for employment and licensing background checks. Frequently an accusation triggers placement of a person’s name on the registry without being charged or convicted of a crime, resulting in a registry with “false-positives” entangled with wrongdoers. There is approximately a 5% recidivism rate.[43]

Professionals responsible for mandated reporting

In some US states, mandatory reporting requirements apply to all people in the state who suspect child abuse or neglect.[23]

In other states, mandated reporting requirements generally apply to professions that have frequent contact with children. These generally include, but are not limited to the following:[23]

Training

Training is typically offered wherever mandated reporting laws are enforced, entailing matters such as recognition of abuse and neglect, what must be reported, how to report it, anonymity, immunity and penalties.

Training programs often use educational materials that use pat phrases and ambiguous indicators: e.g. defining emotional abuse to include the failure to provide a child with “adequate love” or reporting children who are withdrawn or shy as well as children who are friendly to strangers, despite the fact that only a small minority of children who exhibit such behaviors have been abused.[21][44]

Training is available through a variety of sources. Many local child protective service organizations conduct classroom training. Training is also available through video and web-based courses. (For training providers see links below)

Criticism

There has been some criticism about mandatory reporting. Some say that mandatory reporting may make the public more vigilant or overload the child welfare system which may increase tax dollars and needlessly separate children from their parents.[45] It is predicted that expanding the list of mandated reporters or creating tougher penalties for failure to report will increase the number of unfounded reports.[46]

Two former Directors of the US Child Protection Services, Douglas J. Besharov and Susan Orr, believe that:

See also

References

  1. ↑ 1.0 1.1 1.2 1.3 Mathews, Benjamin (2008). "Mandatory reporting legislation in the USA, Canada and Australia: a cross-jurisdictional review of key features, differences and issues.". Retrieved 4 August 2013.
  2. ↑ Dr. Maria Harries; Associate Professor Mike Clare (July 2002). "Mandatory Reporting of Child Abuse: Evidence and Options". Discipline of Social Work & Social Policy University of Western Australia. Retrieved 4 August 2013.
  3. ↑ Ben Mathews; Deborah Scott (July 2013). "Mandatory reporting of child abuse and neglect". Australian Institute of Family Studies. Retrieved 4 August 2013.
  4. ↑ C. Henry Kempe and Ray E. Helfer, editors: The Battered Child. 1st edition, 1968. 2nd edition, Chicago: Chicago University Press, 1974. 3rd edition, 1980. 5th edition by M. E. Helfer, R. Kempe, and R. Krugman, 1997.
  5. ↑ C. H. Kempe, Frederic N. Silverman, Brandt F. Steele, William Droegemuller, Henry K. Silver: "The Battered Child Syndrome." Journal of the American Medical Association, 1962, 181: 17-24. Tardieu's syndrome. Also called Caffey-Kempe syndrome.
  6. ↑ Krason, Stephen M. (2007). "The Critics Of Current Child Abuse Laws And The Child Protective System: A Survey Of The Leading Literature". The Catholic Social Science Review. p. 307,308,307–350.
  7. ↑ Douglas J. Besharov (1985). ""Doing Something" About Child Abuse: The Need to Narrow the Grounds For State Intervention". Harvard J.L. & Pub. Pol’y. pp. 539–590.
  8. ↑ Bromfield, L and Holzer, P. "Australian Institute of Family Studies Submission to the Special Commission of Inquiry into Child Protection Services in NSW". National Child Protection Clearinghouse.
  9. ↑ Krason, Stephen M. (2013). "The Mondale Act and Its Aftermath: An Overview of Forty Years of American Law, Public Policy, and Governmental Response to Child Abuse and Neglect". Scarecrow Press. pp. 1–58.
  10. ↑ 10.0 10.1 10.2 10.3 10.4 Children’s Bureau, U.S. Department of Health and Human Services (2013). "Annual NCANDS Reports 1996-2011".
  11. ↑ Finkelhor, David; Lisa Jones; Anne Shuttuch. "Updated Trends in Child Maltreatment, 2010". University of New Hampshire, Crimes Against Children Research Center. Retrieved 19 December 2011.
  12. ↑ "Child abuse and neglect statistics".
  13. ↑ U.S. Department of Commerce, Economics and Statistics Administration, Bureau of the Census, Table H. "Projections of the Number of Households and Families in the United States: 1995 to 2010, P25-1129".
  14. ↑ "Understanding Child Abuse Numbers". National Coalition for Child Protection Reform. Retrieved August 2012.
  15. ↑ 15.0 15.1 Australian Institute of Health and Welfare (2013). "Child Protection Australia: 2011-2012 Abuse and Neglect Statistics".
  16. ↑ 16.0 16.1 16.2 Public Health Agency of Canada (2010). "Canadian Incidence Study of Reported Child Abuse and Neglect- 2008".
  17. ↑ NSPCC (2012). "Children subject to child protection plans – England 2008-2012". NSPCC Inform.
  18. ↑ Joan E. Durrant, Ph.D. (2012). "Child Abuse in Sweden". The Natural Child Project.
  19. ↑ Rape abuse and Incest National Network. "The Law in your state".
  20. ↑ Los Angeles County, California Department of Community and Senior Services. LADCSS.org "APS (adult protective services) Mandated Reporters".
  21. ↑ 21.0 21.1 21.2 21.3 21.4 Besharov, Douglas J, (Summer 1994). "Responding to Child Sexual Abuse: The Need for a Balanced Approach". The Future of Children 4 (2). pp. 136, 135–155.
  22. ↑ Madge, M; K. Attridge (1996). Children and families. Social care in Europe. B. Munday and P. Ely, Prentice Hall.
  23. ↑ 23.0 23.1 23.2 "Mandatory Reporters of Child Abuse and Neglect". Child Welfare Information Gateway.
  24. ↑ Northern Territory Department of Health and Families. "Remote Health Atlas- Mandatory Reporting overview".
  25. ↑ Western Australia Department of Child Protection. "Mandatory reporting in Western Australia".
  26. ↑ South Australia Department of Education and Child Development. "Mandatory notification – obligations of individuals and organisations".
  27. ↑ Tasmanian Department of Disability, Child, Youth and Family Services. "Mandatory Reporting of Child Abuse and/or Neglect".
  28. ↑ Victorian Department of Human Services. "Child Protection Practice Manual".
  29. ↑ NSW Department of Family and community Services- Community Services. "Resources for mandatory reporters".
  30. ↑ Queensland Department of communities, child Safety and Disability Services. "Mandatory notifiers and reporting".
  31. ↑ ACT Department of community Services. "Care and Protection Services".
  32. ↑ American Bar Association (December 1, 2006). American Bar Association, ed. / "Answers to Questions about the Attorney-Client Privilege". ABA Now.
  33. ↑ Child Welfare Information Gateway (2012). Children’s Bureau, ed. "Clergy as Mandatory Reporters of Child Abuse and Neglect". pp. 1–19.
  34. ↑ 34.0 34.1 U.S. Department of Health and Human Services, Administration for Children and Families, Youth and Families, Children’s Bureau (2010). "National Child Abuse and Neglect Data System (NCANDS) 2009 Child Maltreatment Report".
  35. ↑ Karen C. Tumlin, Rob Geen (May 1, 2000). "The Decision to Investigate- Understanding State Child Welfare Screening Policies and Practices". Urban Institute. Retrieved 14 September 2014.
  36. ↑ National Children’s Alliance (2013). "Home Page".
  37. ↑ Oregon School Board Association (May 27, 2011). "Greene v. Camreta summary".
  38. ↑ NSPCC (2012). "Child protection registers statistics/UK 2008-2012". NSPCC Inform.
  39. ↑ 39.0 39.1 U.S. Department of Health and Human Services, Administration for Children and Families, Youth and Families, Children’s Bureau (2010). "National Child Abuse and Neglect Data System (NCANDS) 2009 Child Maltreatment Report". p. ix.
  40. ↑ Finkelhor, David; Lisa Jones; Anne Shuttuch. "Updated Trends in Child Maltreatment, 2010". University of New Hampshire, Crimes Against Children Research Center. p. 1. Retrieved 19 December 2011.
  41. ↑ 41.0 41.1 41.2 41.3 Paul Chill (October 2003). "Burden Of Proof Begone: The Pernicious Effect Of Emergency Removal In Child Protective Proceedings". pp. 1–43].
  42. ↑ Sabrina Luza and Enrique Ortiz (1991). "The Dynamic of Shame in Interactions Between Child Protective Services and Families Falsely Accused of Child Abuse". IPT 3.
  43. ↑ US Department of Health and Human Services, Administration for Children and Families, Children’s Bureau (2010). "Child Welfare Outcomes 2007-2010, Report to Congress".
  44. ↑ Besharov, Douglas J, (Spring 1986). "Unfounded allegations- a new child abuse problem". The Public Interest (83). pp. 18–33.
  45. ↑ The Associated Press. "Jerry Sandusky sex abuse case has states re-examining mandatory reporter laws".
  46. ↑ Anna Stolley Persky. "Beyond the Penn State Scandal: Child Abuse Reporting Laws".
  47. ↑ Orr, Susan. "Policy Study 262 Child Protection at the Crossroads: Child Abuse, Child Protection and Recommendations for Reform". Retrieved 1 October 1999.
  48. ↑ Douglas Besharov. "Protecting Children from Abuse and Neglect". The Future of Children 8 (1). Princeton Brookings. Retrieved Spring 1998.

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