Manadated child abuse part 2

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References Farberman, H. A., & Finch, S. J. (1997). Confidentiality vs. mandated reporting of child abuse: A.. Applied Behavioral Science Review, 5(1), 101.

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CONFIDENTIALITY VS. MANDATED REPORTING OF CHILD ABUSE: A SOCIAL WORK RESEARCH DILEMMA The tension between protecting the privacy rights of a respondent and the legally mandated obligation to report suspicion of child abuse confronts the researcher with a dilemma: to breach confidentiality is unethical; to not report is illegal. Example cases are presented in which the reporting of suspected child abuse breaches respondent confidentiality. The argument is advanced that the decision to breach confidentiality may well lead to: self-censorship by researchers, lack of candor by respondents, suppressed survey response rates, interviewer deception, oppression of disempowered groups, and impairment of the self-correcting aspects of disciplined inquiry.

Each state in the United States has statutes that list and mandate certain human service professions to report actual, suspected, or potential child abuse to a local reporting agency (Kalichman, 1993). Typically, these professions engage in direct contact with citizens that often involves some type of therapeutic relation. While state statutes differ in subtle but significant definitions and reporting requirements, they all basically reflect the federal standards for mandated reporting set in The Child Abuse Prevention and Treatment Act of 1974 and encourage child abuse reporting by conveying to persons reporting in good faith legal immunity from civil and criminal liability. The spirit and letter of the law is to encourage practitioners to err on the side of over reporting child abuse even if this means inaccurately identifying cases (Thompson- Cooper et al., 1993).

A growing scholarly literature that speaks primarily to the concerns of direct practitioners focuses on the dilemma between the legal mandate to report versus codes of professional ethics that seek to protect the privacy rights of clients through promises of confidentiality. In essence the dilemma is this: to break confidentiality is unethical; not to report is illegal. (Kinard, 1985; Miller & Weinstock, 1987; Koocher & Keith-

Spiegel, 1990; Stein, 1991). While there is some literature that specifically addresses the concerns of researchers who work within the mental health delivery system and may happen upon evidence that evokes suspicion of child abuse, a recent review (Kalichman, 1993) suggests that there is a need for literature addressed to researchers working outside of the mental health service delivery system who develop cause for reasonable suspicion. [ 1]

Our aim here is to examine the tension between confidentiality and mandated reporting by: (a) presenting two cases in child welfare research that involve a research team's search for an understanding of its responsibility relative to legally mandated reporting; (b) reflect upon the complications that arise when legal statutes, codes of professional ethics, and individual moral convictions collide; and (c) consider the adverse implications of these issues for disempowered groups and scientific inquiry.

EXAMPLE CASES We give here two summaries of cases arising from research into child welfare issues. We present only summaries to preserve the privacy of the researchers and clients who were involved in these incidents.

Case A A research program certified by University A's Committee on Human Subjects Review studied an agency working with parents who had been determined to be abusive to their children. Each client had been abusive and was involved in a supervised program to help the parent cope with the difficulties of raising children without being abusive. The regular staff of the agency was supplemented with research staff from University A. Worker A from the research staff who was working with clients felt that one of the clients was out of control and about to become seriously abusive to the client's children. He felt that the mandated reporting requirement held and discussed the matter with Professor A, who was directing him and who was responsible for the research. Professor A and the executive staff of the agency reviewed the matter and felt that Worker A had a more pessimistic view than was warranted. Although Professor A and the staff who worked with the client on a regular basis felt that there was not an imminent danger to the child, Worker A nonetheless reported the client to the state child abuse system.

Case B A research program certified by University B's Committee on Human Subjects Review studied the experiences of foster parents in caring for foster children as reported to interviewers using a standardized questionnaire. During the interviewer training sessions, questions arose concerning the possible mandated obligation to report on child abuse, especially by those staff interviewers who were certified social workers and who had worked in child protective services for most of their careers. These interviewers had been hired initially as trainers, counselors, or evaluators but not as researcher interviewers. Professor B, who was in charge of the conduct of the research, did not believe that anyone on the team was under a legal mandate to report on the respondents. He asked for and received a written opinion of the legal requirements from Lawyer B, who was on the University's staff.

Lawyer B reasoned that, because a local, lower court already had held that a social service worker "who never met a child or had an opportunity to observe him personally was not a mandated reporter," whether or not a researcher would fall within the purview of this section

of the law was clearly open to interpretation and would hinge on the context within which a researcher came into possession of reportable material. The attorney believed that "it is possible that a researcher's interview with the parents would not put him/her in direct contact with the child, and thus, the interaction would not be in a 'treatment context'" (as required to be a mandated reporter). Nevertheless, if researchers do learn about child abuse or neglect, they, along with any other citizen, "... would be permitted to report [under a different section of the law] if they in good faith, had reasonable grounds ... "The conclusion was that members of the research team were not mandated reporters but were permitted reporters, as was any citizen who believed they had information about an actual, suspected, or potential crime.

The attorney also advised that the law requires that a specific reporting format be established beforehand and followed without deviation should a reportable incident arise. Accordingly, a format was put in place whereby an incident would be brought for discussion and decision to a committee composed of the two principal supervisors of the staff, both M.S.W.- level, direct practice social workers, and Professor B, a doctorate in a nonclinical field. If the interviewer disagreed with the committee' s decision, the interviewer could appeal to the Dean. Any decision to report an incident to the state crisis hot-line would be made by the group, or by the Dean, if the committee's decision were appealed. However, any individual interviewer who found themselves in disagreement with the decision was free, as a matter of conscience, to report an incident on their own and have whatever protection the law offered them as good faith permitted reporters.

Lawyer B was asked to recommend appropriate language in the informed consent protocol to insure that grants of confidentiality to protect the privacy rights of the respondent were balanced against the obligations under the mandated reporting law. The attorney recommended that the standard boiler-plate consent form phrase "there are no risks ... "be amended to: "Any information we obtain about you as a participant in this study, including your identity, will be kept confidential. The only exception is in the event that you volunteer information that there is current danger of abuse of children. You may then be at risk for appropriate follow-up by agencies responsible for investigating such reports."

The senior members of the team were dissatisfied with what they considered to be the relatively inflammatory language offered by the attorney for inclusion in the consent form. They believed that simply stating that the implementation of the study would be done in compliance with state law would be more suitable but felt bound to accept the language recommended by the attorney. Nevertheless, two interviewers withdrew from the research because they disagreed with the attorney's opinion and still considered themselves legally mandated reporters and in good conscience would not proceed on any other basis.

Of the 100 interviews, one triggered the filing of an incident report. A team of two white interviewers had observed a situation that one of the interviewers felt was within the scope of reporting requirements. An African American foster mother in her 70's was caring for a five-year-old African American whom she reported as having been abused by his father prior to placement. The foster mother was open and welcoming to the interviewers. At the start of the interview, the child was confined to his room. The foster mother said he was being disciplined because he had broken his bed the night before by jumping up and down on it. The foster mother said that the child was acting out because the agency had removed an older child from the home just recently. The foster mother allowed the child to come into the room and gave both interviewers free access to him.

At the time of the interview, the child had a large bump on his forehead with a distinct recent abrasion that was a perfect straight line. The child told both interviewers that the foster mother beat him with a belt buckle and that this beating was the cause of the bump. He also licked the male interviewers face and said he wanted to go home with him. The child had no fear of either interviewer and took all the attention that he could get. The female interviewer inspected the child's bedroom with the foster mother's permission and observed a broken frame and broken slats under the mattress in the bed in which the child slept. Neither interviewer discussed the child's allegation with the foster mother.

After the interview ended, the two interviewers discussed the situation. The male interviewer felt that the child was manipulative and was not truthful. For example, he felt that it was unlikely that the foster mother, who was in her 70' s, could hit the child with a belt buckle with such force as to leave a perfectly straight abrasion. He believed the foster mother's explanation fit all the observed facts. The female interviewer strongly believed that correct professional practice was to take such a report from a child at face value without the need for further questioning. She also "did not like the foster mother's attitude toward discipline" and was not convinced by the male interviewer's interpretation. She brought the case before the incident committee. Although the committee discouraged her from reporting, she nevertheless filed a report of the incident with the state child abuse system.[2]

COMPLICATIONS While the philosophy behind federal and state mandated reporting laws takes a protective attitude toward children, it does not provide guidance to help human service professionals and researchers deal with a host of issues including: (a) exactly who is a mandated reporter, (b) possible reduction of survey response rates, (c) the chilling effect of risk notification both on researchers and respondents, and (d) the coercion of interviewer deception. When researchers promise confidentiality to subjects as part of the informed consent document that each researcher and subject signs before a study begins, they are, in effect, entering into an agreement in which the investigator promises to protect the privacy rights of the subjects. This promise to act in a confidential manner is a contract. If a researcher were a legally mandated reporter, then the promise of confidentiality to the subject would have to be broken in deference to the obligation to report in that a contractual promise cannot be used to supersede state or federal laws. It is critical, therefore, to know who is or is not a legally mandated reporter. And that, in large measure, is set by state statute.

In New York State, for example, the occupational category of researcher has been omitted from the state statute; thus, the research investigator is not mandated by law to report.[3] However, the researcher is permitted to report, as might any other citizen who acts in good faith. But, where the mandated reporter, as a matter of law, is immunized against both civil and criminal liability, with the burden of proof falling upon any retaliating party, the permitted reporter is in no way immunized. Should the permitted reporter fail to meet the burden of proof in a civil case, then professional malfeasance might culminate in being sanctioned by a professional association or being decertified by a governing authority. Should it be in a criminal case, then a misdemeanor level sanction might be imposed.[4]

However, even when the researcher acts as a citizen, which opens the possibility of fulfilling the role of permitted reporter, and the subject is given fair notice that there is a risk that what they say during the course of an interview may become grounds for reporting them to some authority, additional problems emerge. For example, Martin et al. (1992) used a 65 question interview to survey Tennessee foster parents about their motivation to be foster parents and had a 35% response rate with follow-ups. Finch et al. (1995) used a 190 question interview to

survey New York State foster parents about their reaction to a training curriculum and had a 34% response rate with follow-ups. These rates are 15-25% lower than typical survey response rates (Rubin & Babbie, 1993). Subjects who have been told that they run some risk of investigation and criminal prosecution as a result of what they say during an interview may simply decline to participate.

The element of risk, moreover, also induces censorship among researchers. They must seek to reduce the risk for respondents by removing items from the data collection instruments that may ensnare or entrap the subject into a line of response that an interviewer might interpret as indicating a reportable offense. Human subjects research committees at some universities simply will not approve instruments that might entrap a subject. In case B, the team felt compelled on ethical grounds to edit out just such items. Nevertheless, a mature and experienced women spoke candidly about her approach to discipline in child rearing, and this became a contributing factor in an interviewer's judgment that there was reasonable cause to suspect child abuse. It should be noted that the interviewer and the subject were from different ethnocultural groups and were two generations apart in age.

Kalichman (1993, pp. 52-54) has reviewed some conflicting findings on the role of confidentiality in clinical situations and suggests that more empirical investigation should be done to establish whether the provision of limited confidentiality has either a positive or negative effect and the degree to which outcomes depend upon the way limited confidentiality is presented to the client. The underlying proposition is that if trust has been established between a practitioner and a client, then a promise of limited confidentiality, which carries the risk of reporting, may well be incorporated into the therapeutic process in a positive way.

The tradition of "limited confidentiality" that operates among treatment oriented professionals, who share pertinent case information across disciplines and agencies, still amounts to a breach of confidentiality in a research situation because research subjects are respondents, not clients or patients who implicitly may be giving stewardship over their well-being to a clinician, and thereby conveying a therapeutic privilege that might empower the clinician to act on their behalf even without their knowledge or consent. This does not apply in a research situation.[5]

Perhaps most troubling of all is the possibility of duplicity and entrapment that an interviewer engages in once the interviewer regards her or himself as a potential reporter. An investigator who begins an interview with the aim of both pursuing knowledge and pursuing compliance with the law starts the interviewing process with an ambiguous definition of the situation.[6] The interviewer begins the encounter in the situationally appropriate identity of researcher, which, in turn, casts the co-participant into the situationally appropriate identity of respondent. However, inherent in the situation is the possibility that, at some point unknown to the respondent but as a result of what the respondent has said or the interviewer has observed, the researcher may or must switch into the situated identity of permitted or mandated reporter and acquire data that will become the basis for a report to an authority alleging that there is either reasonable cause to believe there is child abuse in the situation, or that the child is in imminent danger, which altercasts the unknowing and self-incriminating respondent into the imputed but unarticulated situated identity of potential criminal defendant. The respondent qua potential defendant, however, has been kept in the dark by the researcher qua mandated or permitted reporter. Thus, while the researcher is fully aware of what is going on, the respondent is not. The researcher is withholding information, and, as a reporter, is now involved in a covert data gathering operation on behalf of the state. An act of deception has been superimposed upon a research inquiry.[7]

This is a dramatic example of what Glaser and Strauss (1967) have referred to as "awareness contexts." Namely, that every interaction has a structural aspect having to do with the way participants strategically withhold or disclose information to each other about their respective identities as they jockey for position and control during the course of an encounter or in a relationship. By controlling the flow of information they manipulate each others awareness of what is actually going on. In this case, the interviewer has moved into a "closed awareness" context in which the respondent is left completely in the dark. This results in what Hall (1985) has referred to as an asymmetric balance of power in which one participant can dominate the other without giving the appearance of doing so.

IMPLICATIONS Kopels and Kogle (1994) argue that breaches of client confidentiality constitute discrimination and oppression because they disproportionately occur when clients are poor, members of a sexual, racial, or ethnic minority, or of a discredited or low status group. When clients are stigmatized and labelled as social deviants and are perceived to present a threat to third parties or the community at large, their rights to privacy may become sub-ordinated to the security interests of others. In this event, mandated reporting is both a medium as well as an outcome of oppression. This may be exacerbated when an entire field of professional expertise that revolves around the advocacy and protection of children is imbued with a measure of what Becker (1963) has called moral entrepreneurism. Whereas most professions seek ever greater freedom and autonomy from external regulators and regulations and especially seek separation from and protection against state mandates, many in the profession of protective services have been employed as agents of state compliance. Their role reduces the independence normally associated with professional practice.

Within the social sciences, researchers have enacted a wide range of precedents when their code of professional ethics have put them in conflict with the law. Researchers have been held in contempt of court and have been jailed for refusing to turn over data that had been subpoenaed by district attorneys rather than breach promises of confidentiality given to subjects (Pope & Bajt, 1988; Wells, 1988).

The rationale behind this commitment to the privacy rights of subjects is that getting at the fullest approximation of truth requires a sanctuary or safe zone in which an ideal speech situation exists in which candid, forthcoming respondents engage in communication free from duress, now and in the future. Immunity from self-incrimination and from retaliation by others may well be the best climate for such candor. Without these threats, individuals may disclose things about phenomena that, ordinarily, would never come to light. The researcher has an initial methodological obligation to be nonjudgmental or value-free in order to establish an ideal speech situation that may facilitate lifting the veil that cloaks reality in order to see what lies under the surface of appearances.

But even when people say things free from duress, what they say is accepted only as raw data that must be penetrated and probed; data whose full meaning and significance becomes known only as it is placed in the context of other data. The meaning, value, reliability, and validity of a subject's responses can be ascertained only as a result of analysis and not before. Analysis takes time in order to replicate the observations and logics that justify findings. It requires going back again to the same or similar sources to see if things hold up under repeated scrutiny. Access to sources becomes difficult if it entails risk to those sources.

The advent of managed care throughout the health and welfare complex is placing ever greater pressure on the ethics of confidentiality. The forgoing review offers a glimpse into just one of a series of challenges to the principle of confidentiality. We hypothesize that the present cases, in which well controlled and identified problems were reported, point out the impracticality of the current shotgun approach. Children' s welfare would be better served by more focused and better enforced practices than the existing muddle of mandated reporting.

Direct all correspondence to: Harvey A. Farberman, School of Social Welfare, State University of New York at Stony Brook, Stony Brook, NY 11794.

Acknowledgments: We wish to thank Shelly Cohen, Jeanne Finch, Vicki Lens, and Robert Marmo for responding to an earlier version of this paper.

NOTES [1.] Mental health and social work researchers may find some general guidance in their professional association's respective codes of ethics. For example, the American Psychological Association's standards for confidentiality in research and the National Association of Social Workers Code of Ethics, Part 1, Section 5 respectively state that:

If the Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard. If the ... standard appears to conflict with the requirements of law, then psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a reasonable manner (APA, Intro., 1992).

The social worker engaged in evaluation or research should obtain voluntary and written informed consent from participants ... with due regard for participant's privacy and dignity ... should protect participants from unwarranted physical or mental distress, harm, danger, or deprivation ... should protect participant's confidentiality by omitting identifying information unless proper consent has been obtained authorizing disclosure ... should inform participants ... of any limits of confidentiality. (NASW, Code of Ethics Revision Committee, 1996).

[2.] Despite the attorney's opinion and the instructions from the senior team members, the interviewer filed the report using the paperwork and procedure that a mandated reporter is required to use, apparently sincerely believing that the mandate to report still applied.

[3.] Act of June 23, 1973, ch. 1039, s. 1, N.Y. Laws 1893 (McKinney), codified as amended in 1985 NY Soc. Serv. Law ss. 411-428 (McKinney Supp., 1989). The premise underlying this view is that, under the rule of construction, "expressio unius est exclusio alterius," where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded. (Martin, 1996; Mckinney's Consolidated Laws of New York, Book 1, Statutes S. 240.). To date, though, this has not been tested in any court in New York State.

[4.] At the practical level of deciding who is a mandated reporter, and whether a report should be filed, the following model may be useful. It builds upon aspects of reporting decisions models for human service professionals offered by Stein (1991, pp. 48-50) and Kalichman (1993,

p. 63). We do not offer this model to further encumber the collaborative research process, but as a sensitizing guide to a reality that is more complex than it appears.

Situational Factors. Basis for suspicion. Verbal allegation by child. Verbal allegation by other. Disclosure by adult perpetrator. Objective physical indicators. Subtle signs. Availability of evidence. Severity of apparent or potential abuse. Individual Characteristics. Special training. Years of experience. Prior reporting experience. Professional Code of Ethics. Employment Role and Structure. Knowledge of the employment contract. Knowledge of the reporting "chain of command." Knowledge of the team leadership structure. Legal Factors. Knowledge of all relevant sections of state statute. Specific knowledge of named occupational categories. Specific knowledge of case law within local jurisdiction. Specific knowledge of the difference between mandated and permitted reporting including legal liabilities and penalties. Knowledge of the difference between "imminent danger" and "reasonable cause." Our own inclination is to mitigate some of the tensions by suggesting that individuals who practice professions that are listed in mandated reporting statutes are mandated only within the context of the official, professional treatment relationship. Individual attributes such as training, credentials, and experience are necessary but not sufficient conditions. The sufficient condition is the situationally appropriate professional context of service delivery.

[5.] Studies have shown that the absence of confidentiality has no discernible effect when innocuous topics are involved, especially where the investigator is perceived as trustworthy (Ash & Abramson, 1952). However, when sensitive topics are involved, promises of confidentiality yield more candid information (Boruch & Cecil, 1979). When promises of confidentiality are conditional and include the possibility of legally mandated breaches, then client disclosure to attorneys decrease (cf., Note, 1962) and patient disclosure to therapists decrease (cf., Project, 1978). And in a study that compared the cooperation rates of otherwise similar participants who had been assured of confidentiality versus those who had not been assured, the rate was positively associated both with the promise of confidentiality and the devices used to actualize that promise (Shuman & Weiner, 1982). There appears, moreover, to be an emerging consensus among child protective services professionals that the most effective way to deal with suspected child abuse is to contact the agency case worker who has long-term, first- hand knowledge of both the foster parent and the foster child and thus is in a better position to assess the situation and fashion a proper response. Workers in county child protective service units, district attorney's offices, and police departments tend to characterize state child abuse hot-lines as relatively ineffective because district attorneys and police departments prosecute these cases with varying degrees of vigor so that outcomes depend largely on what jurisdiction a case is in rather than on the merit of the case (Newberger, 1983; Weinstock & Weinstock, 1989; Watkins, 1989; Ansell & Ross, 1990).

[6.] Maines and Kappas (1978) have commented generally on the structural or social organizational basis of bioethical problems among physicians who may simultaneously fulfill the roles of clinicians and researchers, and Giovannoni (1989) has specifically recognized the dual diagnostician and mandated reporter role and the tensions it creates for mental health treatment professionals. Indeed, Kalichman and Brosig (1992) report that, in one study, 57% of licensed practicing psychologists believed that they had an ethical obligation to find supporting

evidence that abuse is present before actually filing a report. But Conte (1992) argues that special training and skills in forensic evaluation are necessary to verify that abuse has occurred and that this prerequisite may lie outside the scope of many professional practitioners. However, because the mandated reporting standard for child abuse is simply "reasonable cause to suspect," the burden of forensic assessment is lifted from the practitioner.

[7.] Agatstein (1989) has indicated that some legal scholars speculate that both the Miranda rules and the Fifth amendment right against self- incrimination may be applicable as soon as an agent of the state suspects that a target individual is a potential felon. However, Stein (1991, p. 68) reports that several courts have ruled that Miranda warnings are not required if a social "worker is conducting an interview in the family home or in her office ... is acting as an agent of a state department of social services ... and the parent is able to leave the interview situation." However, two appellate courts have ruled that Miranda warnings are required when social workers question "... an alleged perpetrator in a police station ... and are acting as investigators ... for the purpose of determining whether children have been abused."

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~~~~~~~~ HARVEY A. FARBERMAN; STEPHEN J. FINCH; PAULA K. BERGMAN: SUNY, Stony Brook

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