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.
three exceptions to the therapist honoring privileged communication:
1) When the court appoints a psychologist to perform an
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.
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.
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
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
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.
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
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.
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.
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
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
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.
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
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
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).
reporting in and of itself is a misdemeanor and can be criminally
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.
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,
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,
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
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.,
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,
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,
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).
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
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.
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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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.
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Pacific Law Journal, 15, 189-209.
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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
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
(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,
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
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,
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.