by Erica Wise, Ph.D.
The vignette is followed by a commentary entitled Additional Perspectives which was submitted by William V. Burlingame, PhD. The series concludes with invited comments from three experts, Elliot M. Silverstein, JD, PhD, Janet Mason, JD, and Steven M. Shaber, Esq.
In the abstract, the study of ethical and legal issues in psychology can be a rather dry undertaking. As the focus in our profession has increasingly shifted (for understandable reasons) to concerns about risk management, discussion of these issues often generates anxiety rather than positive interest and intellectual stimulation. In my teaching of ethics to graduate students, interns, and to fellow psychologists, I have found that maintaining an aspirational focus, which includes a concern for providing high quality and humane psychological services to the public, provides a critical balance to our legitimate need to be mindful of risk management issues.
I have also found it to be generally true for psychologists that the study of codes of conduct or rules and regulations, disconnected from their application in the real world, tends to generate ennui. Conversely, when we look at clinical vignettes that reflect common practice dilemmas, ethical and legal issues really come alive. It is especially in the integration of ethical and legal analysis with aspirational values and high quality clinical practice that we can truly approach the goal of doing our very best for the public whom we serve.
Prior to reading the vignette that follows, I encourage you to have at hand the relevant sources of guidance. These would include the 2002 APA Ethics Code and the Practice Act Code of Conduct for psychologists licensed in your jurisdiction. First, read the vignette carefully and imagine that you are dealing with the situation, or that a colleague has called you in consultation. Next, identify the underlying ethical and legal issue or dilemma and determine the relevant standards or statutes that address the issue. Finally, determine what your course of action would be. As discussed above, I would also encourage you to keep in mind both the aspirational and the risk management aspects of case vignette analysis.
A single mother comes to see you in order to initiate treatment for her eight year old daughter. The daughter has been having minor behavioral problems, trouble sleeping, vague somatic complaints, fearfulness, and has been distracted in school. As part of your initial intake, you learn that the woman and her daughter are living with the mother’s aunt and uncle. It is reported to you by the mother that a cousin, who is now 18 and away at college, told the mother that she would not want to spend Thanksgiving with them because she was sexually abused by the uncle from approximately the ages of 8 to 16. The cousin tells the mother that she does not want anyone to know about what happened to her.
1. From this set of facts, are you required to make a report to the Child Protective Services (CPS) of suspected child abuse in reference to the cousin?
___ Yes ___ No ___ Depends
In a subsequent session, the mother tells you that she suspects that her uncle may be sexually abusing her daughter, but that she is making every effort to keep the uncle away from her daughter.
2. Given this additional information, would you now be required to contact CPS in order to report suspected abuse of a minor in reference to the eight year old daughter?
___ Yes ___ No ___ Depends
At this point, you strongly encourage the mother to make a report to CPS, which she does in your presence. You also confirm directly with the caseworker that the report has been made. A caseworker from CPS is assigned and you give the information about the case that you have available.
Several weeks after your contact with CPS, the mother reveals new information that she has never told anyone: she was also abused by this uncle from the time that she was approximately 8 until she was 16.
The next day you check your voice mail and you have a message from the caseworker requesting you to call back.
3. Are you required to reveal this new information to the caseworker if asked whether you have any further information?
___ Yes ___ No ___ Depends
4. Are you required to reveal this information when you speak to the caseworker even if not asked?
___ Yes ___ No ___ Depends
5. Would you be required to call the caseworker and reveal this information even if you had not been called?
___ Yes ___ No ___ Depends
6. Would any of your answers be different if the mother specifically asked you not to reveal this information because it was about her and not her daughter?
___ Yes ___ No ___ Depends
Before discussing the specific questions posed in the vignette, it would be useful to explore the underlying ethical and legal issues. In general, I have found it to be very useful to have a consistent way of examining ethical dilemmas that touch on issues related to confidentiality. First of all, it is important to understand the general rule. The basic rule or standard of confidentiality (from the Latin confidere; con = with and fidere = trust) is a cornerstone of professional codes related to the practice of psychology.
In the 2002 APA Ethics Code, Ethical Standard 4, Privacy and Confidentiality is devoted to this topic. Standard 4.01, Maintaining Confidentiality states that “Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.” The basic rule of confidentiality may also be laid out in each state’s code of conduct or in other mental health statutes. HIPAA both defines and regulates privacy protections that must be implemented in order to protect client health information. Standard 4.02, Discussing the Limits of Confidentiality, (b) in the APA Ethics Code states that “Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.” Also relevant is Standard 4.05 Disclosures (b) “Psychologists disclose confidential information without the consent of the individual only as mandated by law or where permitted by law for a valid purpose such as to … (3) protect the client/patient, psychologist, or others from harm…”
Similarly, HIPAA provides an exception to confidentiality, and requires neither consent nor authorization to report suspected child abuse. It is obviously important to be familiar with the child abuse reporting statute in your state. So, in general terms, analysis of this vignette would require familiarity with the basic rules regarding confidentiality in your jurisdiction, the nature of any mandatory or permitted exceptions to confidentiality in your jurisdiction, and a standard practice for notifying clients and/or guardians of applicable exceptions to confidentiality as early as is feasible in the provision of services.
Now we proceed to a consideration of the questions posed in reference to the vignette: In response to question #1, it is important to know that in North Carolina, the child abuse reporting requirement (see
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-301.html) is only applicable to making reports for a minor. Therefore, since the cousin is now an adult, there would be no duty to report. In the absence of a duty to report, the general rule of confidentiality would apply.
In response to question #2, it is important to consider that you now have information indicating that an adult living in the home may be sexually abusing a minor child. In North Carolina this would definitely be a trigger for the duty to report your concerns to CPS in the county in which the child resides.
In response to questions #3-5, I would argue that the answer is yes. In North Carolina, it is a requirement to provide information relevant to a CPS investigation of suspected child abuse. It is certainly relevant that the mother was, herself, sexually abused from the ages of 8-16. In fact, this was the same pattern that had occurred for the cousin. The mother’s report of her own and the cousin’s history with the uncle would certainly provide further support for your suspicions and should be communicated to the CPS caseworker. This duty would prevail whether or not the caseworker initiated the subsequent contact.
The answer to #6 is no (i.e., you still must report this information even if the mother indicated reluctance for the information to be shared). In terms of your treatment relationship with the mother, it would be therapeutic for her to understand that she may be placing her daughter in a vulnerable situation (just as she had been herself, and apparently the cousin) and that reporting this situation to CPS would allow for a full investigation of their current living situation. While the duty to report is clear, you also have a clinical responsibility to both the child and the mother to remain, to the extent possible, in a therapeutic role.
Dr. Wise is co-chair of the NCPA Professional Affairs and Ethics Committee, a former chair of the APA Ethics Committee, a former member and chair of the NC Psychology Board, and a former member of the National Register Board of Directors.
By William V. Burlingame, PhD
In the vignette presented by Erica Wise, Ph.D., a psychologist encountered a mother referring her 8-year-old daughter for treatment in response to “minor behavioral problems” and a variety of symptoms, which might be characterized as anxiety driven. The mother and daughter were residing with an aunt and uncle, and the mother was aware that an adult cousin might have been sexually abused in childhood by the uncle. Based on these data, the mother “suspects” that the uncle may be sexually abusing her daughter. Dr. Wise challenged readers to determine whether a report of suspected abuse should be made to Child Protective Services (CPS). Dr. Wise appeared to have concluded that a report should have been made at that time, and most certainly after the mother revealed several weeks later that she herself had been abused as a child by the uncle. Needless to say, these data are highly circumstantial in nature and there is an absence of any observable linkage between the daughter’s symptoms and the uncle’s reported history of sexually abusing children of this age.
Inasmuch as there are major complexities in the matter, multiple contingencies, and competing standards and values, it seemed useful to me to explore some aspects of this vignette and a psychologist’s duties vis-à-vis both reporting and treatment. G.S. 7B-301 states, “Any person or institution who has cause to suspect that any juvenile is abused . . . shall report . . . .” The operative verb is “suspect,” which is not further defined, operationalized, or illustrated by example, either in statute or administrative rules. Webster’s defines “suspect” as “to believe to be guilty” or that a suspected event was “probable” or “likely.” My personal database is derived from dozens of such vignettes, which I have encountered in my practice, and in the course of teaching ethics and fielding countless telephone calls from psychologists in the 30 years since these statutes were enacted in North Carolina. My rough estimate is that less than 30% of similar reports, in the absence of more definitive data, are substantiated upon investigation by CPS. The question then becomes, in the absence of statutory guidance, is a 30% hit rate sufficient to mandate reporting? Should it be 51%, that is, more likely than not to have occurred? Or, should it meet a more rigorous standard, such as that of “clear and convincing?” At the first juncture in Dr. Wise’s vignette, I would have to say that child sexual abuse by the uncle seems possible but does not attain the status of probable, at least for me. Knowing nothing more than the additional information that the mother was also abused, I am uncertain whether I could conclude that it was probable or likely and thus subject to mandatory reporting.
In these early stages, I would probably state that I do not yet know enough to know whether I suspect. Since the vignette is of a child referred for evaluation or treatment, the clinical context is certainly one in which the psychologist should appropriately query the child regarding possible sexual abuse. However, such inquiry can only be undertaken when rapport is established and should only be in the pursuit of clinical data relevant to the child’s anxiety — not for the primary purpose of determining whether reportable sexual abuse has occurred. Such investigation for the latter purpose is the responsibility of CPS following a report, and is not authorized (or forbidden) by statute, although juvenile court judges frown on psychologists who substitute their own investigation in lieu of reporting. Further, it would constitute a distortion of evaluation and treatment to convert treatment hours into the pursuit of information relative to possible abuse, regardless of whether the identified patient or client is the child or the mother. Although it is more a strategic issue and is not to be substituted for the psychologist’s decision regarding whether to report, the most obvious tack is for the mother to inquire of the child regarding possible sexual abuse. Skilled clinicians assist parents in their approaches to children and then prepare for various contingencies depending on a child’s verbal response and emotional and behavioral reaction to the inquiry. The mother should also consider whether she should report that she “suspects” the uncle, since the reporting statute cites it as a statutorily imposed duty of “any person or institution who has cause to suspect . . . .”
Over the years I have sometimes recommended that psychologists contact CPS in the relevant county, pose the vignette without the identifying data, and ask whether it is subject to mandatory reporting. Any CPS conclusions which seem to defy reason can then be clarified with a supervisor. Unfortunately, CPS personnel are likely to verbalize some version of the adage, “when in doubt, report.” This might be a useful and protective approach for a parent, even if the content of the matter does not achieve a threshold in which the parent “suspects” abuse. It is, however, laden with risk for a psychologist since it may transcend decision-making regarding whether one suspects and may lead to reporting which is not mandated by statute and thus compromises the privacy of other parties or places them at risk. In recent years, CPS personnel in one North Carolina County has refused to respond to hypothetical cases, presumably because the discussions have led to perceived underreporting and selective recollection. Suffice it to say, there is at least one case of a psychologist in this state who was disciplined by an ethics body for a violation of confidentiality when he reported suspected abuse which was not mandated by statute and which led to his client’s imprisonment. There are two instances of psychologists who failed to report and were charged, one in court and one by the NC Psychology Board. Each might have been avoided had the psychologists more fully understood our reporting statute and all its nuances, many of which differ from procedures in most other states. A specific recommendation is that psychologists avail themselves of Janet Mason’s Reporting Child Abuse and Neglect in North Carolina, Second Edition, 2003, published by the Institute of Government at the University of North Carolina at Chapel Hill. An electronic version is also available at www.iog.unc.edu/. A second recommendation is that, when confronted with a matter possibly requiring a CPS report, a less experienced psychologist should contact a local ethics body or a senior clinician informed in such matters.
Dr. Burlingame is former Chair of the NC Psychology Board and the NCPA Ethics Committee, and served as a member of the APA Ethics Committee. He has published extensively in matters of ethics and law.
Elliot M. Silverstein, JD, PhD
As Co-chairs of the NCPA Professional Affairs and Ethics Committee, Dr. Wise and I have used the case vignette in her article during workshops we have jointly presented. I am very comfortable with her article and the advice she gives. Dr. Bill Burlingame’s response to this article raises two very interesting points for me. First, he raises the question of what “cause to suspect” means. Second, he states that the role of the psychologist in providing psychotherapy is not the same as one of an investigator.
One of the disadvantages I have found of growing older is that time and experience have changed the advice I give about certain matters and, more vexingly, my certainty about the correctness of that advice. I have been concerned that the apparently very low threshold for reporting “cause to suspect” will force many clinicians to report situations that will almost certainly not be substantiated. The result will be only to make therapy harder as trust is eroded and to alienate the suspected perpetrator who would have good reason to fear and/or resent the whole process. In addition, a desirable outcome for many situations in which abuse is suspected but not substantiated, or even if it is substantiated, would be for the children and family to enter therapy. A forced report that makes therapy that much less likely to succeed carries considerable consequences. Furthermore, the alleged abuser is often the source of financial stability for the family. In Dr. Wise’s vignette, the child and mother were living with the uncle and it is likely that leaving his house would cause additional financial hardship.
That being said, in recent years I have found myself quicker to advise reporting alleged abuse for a number of reasons. In my experience working with inpatient adolescents at Dorothea Dix Hospital, I have seen the positive effects of reporting and helping (forcing in some cases) various DSS agencies to use more leverage in stopping certain things and possibly providing additional services to families. Even in the child outpatient clinic, we have weathered the initial ill will and suspicion created, and developed a stronger working relationship with some families. I have come to see the “low bar” and protection provided for a good faith report as a clear legal mandate and policy decision to “protect” despite the possible damage to therapeutic endeavors.
While not having as many years of experience in taking ethics calls and providing consultation as one of my mentors, Dr. Burlingame, I often cringe internally when I get such calls. Frequently, the psychologists are stating either explicitly or implicitly that they do not think such a call will help the case. Nonetheless, it seems very difficult to tell psychologists who call because they feel that they may have an obligation to report that they do not have “cause to suspect.” After all, why would they be calling if they had no suspicion? Thus, the question of how much suspicion is enough is troubling, and there is no guidance provided in the statute. From Dr. Burlingame’s remarks, it appears that I might have a lower threshold than he does. Nonetheless, I would like to see an actual case since in my experience in working with him on the NCPA Ethics Committee and other ad hoc committees on legislation for children, we have usually seen issues pretty much the same way.
The other issue he raises about the difference between therapy and investigation is one that also should be emphasized. Therapists do not have police power and are handicapped when they try to change their role into more of an investigative one, especially if it is to determine whether to report. That is what the county DSS is for and that is stated directly in the reporting statute.
I do have two suggestions. If you are unsure whether you need to report, please seek consultation. Steve Behnke, JD, PhD, head of the APA Ethics Office, has an expression, “Don’t worry alone.” Especially if you are not in a familiar terrain, it is often helpful to ask someone who is more familiar with this area. Second, the decision to report does not take away all your treatment and management options in the case. You may be able to mitigate some of the damage to the relationship and you certainly will be setting a tone for how such matters will be handled. In Dr. Wise’s vignette, she suggested having the therapist in the room when the report is made which provides proof of the call and support for the reporter. Again, consultation may help you with practical suggestions for the management of your situation.
Dr. Silverstein is Co-Chair, NCPA Professional Affairs and Ethics Committee
Janet Mason, JD
This is a wonderful vignette for illustrating the difficulties and nuances that can arise from legal/ethical questions that initially seem simple. I don’t view Dr. Wise’s and Dr. Burlingame’s reactions to the questions as contradictory. To some extent they seem to involve one or more differing assumptions or interpretations, none of which are unreasonable given the statutory wording of the reporting law.
For example, in Question #2 following the case vignette (see insert in current issue), I initially checked “it depends.” But after reviewing the definition of “caretaker” changed my response to “yes.” I thought it critical that the mother herself had the suspicion and, unlike Dr. Burlingame, did not assume that the mother’s basis for the suspicion was limited to the facts set out in the vignette. What “other information” a potential reporter has may tip the scales one way or the other. The report directly by the mother, as set out in the facts presented in the vignette, is a good outcome since she definitely has a suspicion and a duty to report. And I think that having her make the report in the therapist’s presence, or following up as in the vignette to confirm that she made the report, probably resolves the therapist’s concern about whether to make a report. (I think it is almost always awkward to make a report that is based only on what someone else tells you about their suspicion – when that person himself or herself should be making the report.)
The meaning of “cause to suspect” as used in the reporting law may be the hardest part of every potential reporter’s decision making. While “suspect” can mean to “believe to be guilty”, or “likely”, or “probable”, it generally means to have that belief “with little or no proof.” Belief, by its very nature, is subjective. “Suspect” also can mean simply to “believe something to be the case” or “to have a suspicion.” Then, among the definitions of “suspicion” are “imagination of anything to be the case or to be likely” and “a vague notion of something.” Clearly the later is not an appropriate measure for applying the reporting law. But determining where between a vague notion and certainty the appropriate standard lies ultimately is left up to individuals. The 30% or less substantiation rate is consistent with statewide figures from county departments of social services, and has been for a number of years. Thorough listings of these data are available online through the Division of Social Services and the 2006 N.C. Children’s Health Report Card (www.ncchild.org/action/images/.../2006_Health_Report_Card.pdf). The question of whether, as a matter of policy, that figure should be increased by adjusting the definitions, the reporting law, or social services policies, is not much discussed.
Janet Mason, JD, is the Gladys Hall Coates Professor of Public Law and Government at the School of Government, UNC-Chapel Hill.
Steven M. Shaber, Esq.
My first reaction to Dr. Wise’s vignette is to remember another word in the child abuse reporting statute (N.C.G.S. 7B-301). The word is “cause.” Subjective suspicion by itself is not enough for a report. There has to be a cause. That is, a good reason to suspect abuse or neglect. By good, I mean a reason that other people generally would recognize and credit. I do not mean something that everyone would have to accept as dispositive.
In the hierarchy of proof, lawyers think – and the statutes speak – in terms of “cause” (or “probable cause” or “good cause”), followed by “preponderance of the evidence” (“greater weight” or “more likely than not”), followed next by “clear and convincing evidence” (sometimes “clear, cogent, and convincing”), and topped by “proof beyond a reasonable doubt.” Even the top step does not demand absolute certainty.
Evidence is weighed by quality as well as quantity. Among the best evidence I ever had in a child abuse case were a toddler’s scribblings – they were dark, scary, and sad. On the other hand, direct testimony can be horribly compromised. A teenage girl who said her father raped her and then retracted the allegation comes to mind.
In short, cause to suspect is less compelling information than the preponderance of evidence. But the cause to suspect abuse must be something the psychologist can explain to others, something others would take seriously.
The other two words that come to mind are “good faith.” Under the statute, a person who reports suspected abuse or neglect is immune from liability if the report is made in good faith (see N.C.G.S. 7B-310). Bad faith sometimes means actual malice, real ill-will. It can also mean gross carelessness, reckless disregard of the truth. So the information – the cause – that a psychologist uses to justify a report has to be solid enough to show good faith in both senses: honest motives and real regard for the truth.
Whether or not you think the evidence in Dr. Wise’s vignette requires a report – and obviously she has balanced the evidence so that skilled clinicians can disagree – her vignette illustrates the search for “cause” and demonstrates “good faith.” Steven Mansfield Shaber is an attorney and partner in the Health Care Practice Group of Poyner & Spruill LLP. He represents psychologists and other professionals in licensing board matters. From 1977 until 1985 he tried and consulted on child abuse cases, first for the Wake County Department of Social Services and then for the North Carolina Attorney General’s Office.
This case vignette was adapted from: Wise, E.H. (2004). Reporting obligations and exceptions to confidentiality for psychologists. Register Report, 30, 44-49.
The Additional Perspectives and Invited Comments originally appeared in the November-December 2006 edition of The North Carolina Psychologist and are reprinted with permission.