It is truly remarkable how many standard ethics textbooks present fictional factual scenarios in which the reader is urged to read each scenario and make a decision about whether the facts are enough to warrant a report to a child protective service organization. As it has been noted before, the duty to report is strictly a legal consideration which arises from an analysis of whether the facts as presented set forth a reasonable suspicion that a child has been/is in danger of being abused or neglected. Here’s yet another example of a factual scenario, a version of which appeared in a highly regarded ethics textbook:
Jana, a social worker, has an apartment immediately next to one in which a young woman lives with her two, pre-school aged children. Lately, Jana has observed that the neighbor’s garbage contains nothing except liquor bottles. Recently, Jana rode in the building elevator with the woman and her children and noted that the woman smelled of alcohol and the children’s clothes were dirty. On a recent evening, Jana heard through the wall into the adjoining apartment both children crying and the woman screaming very loudly. The following morning, when Jana observed the whole family in the hallway, she noticed a dark mark on the arm of the four-year-old child which could either have been dirt or a bruise inflicted by the mother.
Is there a duty to report suspected abuse or neglect here? Clearly the specific legal duty to report depends upon whether Jana lives in a state in which the duty is imposed on all members of the public, or just on certain individuals, such as health care professionals and teachers. Secondly, we must assess whether a reasonable suspicion that abuse/neglect has occurred. Reasonable suspicion can be likened to a hunch — a good faith belief founded on some evidence that goes beyond the observer’s own subjective guesswork. This means that the observer must witness some act or condition, even if ambiguous, that could represent a dangerous situation for children. It is important to remind the reader that this is a legal standard, not an ethical one. In the preceding example, the most problematic element is Jana’s witnessing of the smell of alcohol on her neighbor’s breath while in the presence of her young children. If there is enough evidence here to convince Jana that the woman is drunk while in the presence of her toddlers, the reasonable suspicion test would seem to be satisfied. The other observations seems at best too ambiguous to present or add to a reasonable suspicion that the children are being abused/neglected. Moreover, were Jana living in a state in which the duty to report suspected abuse applies only to health professionals, it seems to make sense nnonetheless to impose this standard on persons who have the training required to assess abuse or neglect, even if the witness’s observations are made during a time in which the person is acting as a private citizen, and not while working at her place of employment.
Blog readers are invited to share their own opinions. Additionally, readers are invited to example this website’s (mentalhealthlaw.co) discussion of the meaning of the legal standards governing practice in mental health, including the duty to practice reasonably competently.
On 12/9/11 I posted a dilemma entitled “the duty to report sexual abuse” in which I presented a hypothetical dilemma which raises questions associated with the law governing the duty to report child sexual abuse. In light of an interesting series of comments that the dilemma inspired, I’d like to take fresh look at the dilemma. Here it is, together with my original commentary: I recently came across an astounding scenario in a standard ethics textbook. I use the term “astounding” because it presents an example of a clear, legal problem that is in reality not an ethical dilemma at all! I’m going to paraphrase the dilemma as follows: You are a mental health professional conducting research concerning family relationships involving at least one minor child. As part of the research design you interview each family member personally. You also interview the family as a unit. During one such interview, with Mary, a nine-year-old, she tells you that her fifteen-year-old sister, Clara, has sex with her stepfather, Igor. What would you do? The answer is clearly driven by the law. Most states impose a duty on members of the public to report suspected child abuse, including sexual abuse. Even if it were not a state-imposed requirement, the legal duty to practice reasonably competently as a mental health professional–as discussed in this website– demands reporting of the incident. The comments posted by a reader raised an interesting question about whether Mary’s comments could be usable by the researcher in light of the fact that they might represent a “hearsay” statement. (A hearsay statement is an out of court statement used in court to prove the truth of the statement.) In other words, the poster was suggesting that Mary’s statements might reflect observations of her sister Clara’s abuse that are hearsay statements and therefore unusable. In our case, it is important to note that hearsay statements are often admissible during the preliminary hearing in any child abuse case in children’s court (the preliminary hearing, which usually occurs about ten days after child protective services has concluded that there is a reasonable suspicion child abuse has occurred, offers an opportunity for CPS to present a court with the evidence CPS is relying upon to prove that the at-risk child is in need of protection). IThe preliminary hearing is usually the first step in any child abuse proceeding. Therefore, Mary’s statements could have an evidentiary use if and when a child abuse proceeding were instituted. The reason hearsay could be permitted at this stage is that the court typically uses a reduced evidentiary standard — this is often referred to as the “reasonable suspicion” standard — to ensure the safety of the child at this early stage. Later on in the court proceedings when the alleged abuser has a fuller opportunity to respond to the allegations, the hearsay might well be inadmissible. All of this talk about hearsay ignores an important point: Mary’s comments about having been exposed in some way to sexual behavior could well make a mental health professional reasonably suspicious that Mary herself has been victimized. This is an important reason why it is imperative that the researcher reveal to CPS or to a police authority the things Mary has said. This is the only safe way in which the child’s comments can be investigated quickly, safely and th0roughly.