Special Issues

Special Issues

Child Abuse Reporting

Kempe and colleagues in a 1962 paper, “The Battered Child Syndrome’’, began an awareness of child abuse and neglect that continues to grow. Before this seminal paper, many psychiatrists considered children’s allegations of sexual and physical abuse to be fantasy that was to be interpreted and not acted on. Child abuse is now recognized to be widespread, and for the individual child, a potentially devastating reality.

All states place an affirmative duty on the professional to report suspicions of abuse. Even though many adult psychiatrists receive relatively little training in child psychiatry and in child development, all psychiatrists are mandated reporters of suspi-cions of child abuse and neglect. Psychiatrists who treat patients with alcoholism, serious mental illness, and a history of abuse are working with populations who have increased risk of child abuse. While pediatricians file the majority of child abuse reports, psy-chiatrists may be called to consult in cases requiring additional clinical judgment.

Neglect is a most difficult form of abuse to identify. Although the laws are written to encourage reporting in the “gray’’ cases, clinicians must still exercise a level of clinicaljudgment. One person’s view of neglect may be another person’s view of bad parenting. Clearly, a child who is malnourished is being neglected. A child who is left alone for a significant period may have been neglected, but this depends on the age and devel-opmental stage of the child. Clinicians must also guard against cultural or racial bias. Hampton and Newberger (1985) studied child abuse reporting and noted that physicians are more likely to file child abuse reports involving people who are of a different race or class than themselves. Psychiatrists also worry about the damage a report will do to the alliance between the psychiatrist and the patient. Clinical experience demonstrates that, in most cases, an explanation of the practitioner’s legal obligation to file a report maximizes the potential to maintain the clinical alliance. That reassurance aside, psychiatrists must be aware that the legal obligation to report supersedes the value of the alliance.

A child abuse report is usually made to the state’s child welfare agency, sometimes called the “Department of Social Ser-vices’’ or “Children and Family Services’’. Most commonly, the call is screened in or out over the phone and, if screened in, then the agency begins an investigation into the allegations. If the re-port is substantiated the child may be taken out of the home, and the parents may eventually lose custody. Less draconian mea-sures often include mandatory treatment of psychiatric or sub-stance abuse disorders for both parents and children. These are painful clinical realities, but psychiatrists should not hesitate to file a child abuse report when, in their judgment, they have rea-son to believe a child is suffering from either abuse or neglect.

Elder or Disabled Abuse Reporting

Over 40 states have also enacted statutes mandating reporting of abuse or neglect of elderly or disabled individuals. These statutes often mirror the state’s child abuse reporting laws, though they may contain broader exceptions to mandated reporting in certain circumstances. The remaining states provide legal immunity for professionals who voluntarily report abuse or neglect of the aged or disabled.

Child Custody Evaluations

Divorce has an impact on all children, but where the parents are unable to agree, especially around custody, children face more stress. Psychiatrists have responded to this burgeoning need by developing expertise in the clinical issues that surround custody decisions. A number of psychiatrists offer consultation and me-diation services to divorcing couples who wish to resolve custody issues between themselves. However, when custody disputes be-come adversarial, formal child custody assessments are often ordered by the court. These assessments present unique clinical, legal and ethical challenges. The APA has written recommenda-tions for conducting child custody evaluations (Child Custody Consultation, 1982).

Psychiatrists performing a child custody evaluation should have training in child work or at least have a child psychiatrist with whom to confer. As with forensic evaluations, the parents (and where appropriate, the child) should be informed that the usual rules of confidentiality and privilege will not apply.

In conducting custody evaluations, it is important to know the legal standard which the court will apply. The standard ad-opted in many states provides that judges making custody deci-sions shall “consider all relevant factors including 1) the wishes of the child’s parents as to his custody, 2) the wishes of the child as to his custodian, 3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other persons who may significantly affect the child’s best interest, 4) the child’s adjustment to his home, school, and community, and 5) the mental and physical health of all individuals involved. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child’’ (Child Custody Consulta-tion, 1982). The judge is required to balance these factors against the legal standard, which in most states is a “best interests of the child’’ standard. The psychiatrist should thus conduct the evalu-ation in such a way as to provide information that will assist the judge in weighing the relevant factors.

The Americans with Disabilities Act and the Olmstead Case

In 1990, Congress enacted the Americans with Disabilities Act (ADA), with the goal of eliminating discrimination against in-dividuals with disabilities. The Act is divided into four major sections, which prohibit discrimination in employment (Title I), public services provided by government entities (Title II), public accommodations provided by private entities (Title III) and tele-communications (Title IV).

Although discrimination in employment has been the focus of most ADA enforcement activity, advocates for the men-tally ill have been litigating under Title II of the ADA, arguing that institutionalization of individuals with mental disabilities who could be appropriately treated in a less restrictive setting constitutes illegal discrimination by the state. The issue came to a head in the case of Olmstead v. L.C., decided by the US Supreme Court in 1999.

Title II of the ADA states that “no qualified individual with a disability’’ shall be discriminated against by a public en-tity (such as a state) in the provision of services, programs, or activities. In order to enable such individuals to participate on a par with nondisabled individuals, public entities are required to make “reasonable accommodations’’ in the operation of services, programs, or activities. The federal Court of Appeals noted that when “treating professionals find that a community-based place-ment is appropriate [for an individual with a disability], the ADA imposes a duty to provide treatment in a community setting – the most integrated setting appropriate to that [individual’s] needs’’. The US Supreme Court agreed, ruling that “unjustified isolation is properly regarded as discrimination based on disability’’.

For psychiatrists who practice in state institutions, the case is significant for the importance placed on clinical judgment about whether the patient can be adequately treated in a commu-nity setting. It is this judgment that triggers the right to commu-nity placement under the ADA, according to the Supreme Court. Clinicians making these determinations are confronted with a myriad of sometimes conflicting pressures. Is the patient really ready for the community? What kinds of accommodations might be needed in the standard community programs in order to en-able the patient to function? Are these accommodations reason-able? What is the role of the clinician in advocating for individual patients versus maximizing scarce resources to benefit the great-est number of patients?