THE LEGAL ADVISOR
Mandated
Reporting
MANDATED REPORTING
Physicians are considered so-called
"mandated reporters" in certain circumstances. This means that all
physicians have a duty to report abuse of long-term care patients,
children, the disabled, and the elderly. Psychiatrists also have a duty
to warn potential victims of a patient’s threatened violent
behavior. Furthermore, a physician who fails to report abuse and neglect
appropriately may be subject to penalties. If a physician has reasonable
cause to suspect abuse, neglect, or violence and reports those
suspicions in good faith in accordance with the law, the physician is
protected from civil and criminal actions. Social workers, clergy, and
psychiatrists are specifically protected by law against claims of
disclosure of otherwise confidential communications. It is also likely
that all physicians would be protected when reporting abuse based on
information learned during confidential discussions. Although it might
seem that HIPAA would complicate the issue, in fact, HIPAA generally
recognizes and defers to state law mandated-reporting requirements.
DUTY TO WARN A PATIENT'S POTENTIAL VICTIMS
Psychiatrists and other mental
health professionals have a duty to take reasonable precautions to warn
potential victims if a patient has communicated an explicit threat of
serious bodily injury or death upon a reasonably identifiable victim and
the patient has the apparent intent and ability to carry out the threat.
Psychiatrists also must warn potential victims if the patient has a
history of violence and the mental health professional has a reasonable
belief that there is a clear and present danger that the patient will
attempt to inflict serious bodily injury or death upon a reason-ably
identifiable victim. "Reasonable precautions" involve one or more of the
following actions: communicating the potential threat to the victim,
notifying law enforcement agencies where the patient or potential victim
lives, arranging for the patient to be hospitalized voluntarily, and
taking appropriate steps to initiate involuntary hospitalization of the
patient.
REPORTING ABUSE
The Massachusetts statutes that
mandate the reporting of abuse all require that the physician first have
"reasonable cause" to believe the abuse is occurring or has occurred.
Reasonable cause in this context can be understood as a suspicion based
on identifiable facts. The Massachusetts Appeals Court stated in Cooney
vs. Department of Mental Retardation that the reporting mandates do not
"require the reporting of every bruise; [they] require reporting on the
basis of indicators which give reasonable cause to believe that a child
[or other protected individual] is being abused. That conclusion
requires an element of judgment to separate an incident from a pattern,
the trivial from the serious." "Reasonable cause" has been generally
held to be a "threshold function, thereby implying a relatively low
degree of accuracy," or in other words, "a presentation of facts which
create a suspicion of abuse."
The reporting mandates discussed
below do not require that the suspected victim be a patient of the
physician for the physician to report suspected abuse. Rather, the
physician must have "reasonable cause" to suspect abuse, from whatever
source a physician finds credibly substantiates a suspicion of abuse.
This determination may not always be easy, but in assessing any
particular situation, physicians should remember that the Legislature
has carved out categories of individuals who are particularly vulnerable
and in need of protection — even at the expense of potentially
privileged communications. Physicians should also keep in mind that the
courts have generally held that the bar for reasonable cause is low in
these circumstances.
SPECIFIC REQUIREMENTS
DUTY TO REPORT ABUSED CHILDREN
If a physician has reasonable cause
to believe that a child under 18 years of age is suffering from physical
or emotional abuse that causes harm or a substantial risk of harm to the
child’s health (which may include sexual abuse, neglect,
malnutrition, drug dependence at birth, or death), the physician must
give an immediate oral report to the Department of Social Services (or
if the physician is on the staff of a medical institution, the head of
the institution) and the district attorney (in the case of death)
followed by a written report within 48 hours documenting a variety of
information including, but not limited to, the child’s name, sex,
age, and circumstances under which the reporter became aware of the
child’s abuse.
DUTY TO REPORT ABUSE OF PATIENTS OF A LONG-TERM CARE
FACILITY
Physicians must immediately notify
the Department of Public Health if there is reasonable cause to believe
that a patient or resident of a long-term care facility has been abused,
mistreated or neglected, or had property misappropriated. The report
should be oral and followed by a written report within 48 hours, may be
transmitted electronically or via facsimile, and must contain
information such as the patient’s name, age, and the circumstances
under which the reporter became aware of the abuse, neglect, or
misappropriation of property, among other information required by the
Department.
DUTY TO REPORT ABUSE OF THE ELDERLY
If a physician has reasonable cause
to believe that an elderly person (60 years of age or older), whether or
not that person is the physician’s patient, is suffering from
financial exploitation or physical or emotional abuse, or has died as a
result of abuse, the physician must immediately make a verbal report to
the Department of Elder Affairs followed by a written report within 48
hours, providing information such as the person’s name,
approximate age, information regarding the abuse, and the person’s
medical treatment, if known.
DUTY TO REPORT ABUSE OF DISABLED PERSONS
Physicians with reasonable cause
must report to the Disabled Persons Protection Commission any serious
physical or emotional injury to or the death of a disabled person
(whether or not that person is the physician’s patient) resulting
from abuse, including sexual activity to which the disabled person did
not consent. For purposes of this requirement, a disabled person is a
person 18 to 59 years of age, inclusive, who is mentally retarded or who
is otherwise mentally or physically disabled and as a result of such
mental or physical disability is wholly or partially dependant on others
to meet his or her daily living needs. The notification must include an
immediate oral report followed by a written report within 48 hours. If
the disabled person invokes a privilege established by law or
professional code, the physician need not report the otherwise
reportable condition.
CONCLUSION
In conclusion, if a physician
reasonably suspects abuse of children, patients of long-term care
facilities, or elderly or disabled persons, the physician should report
the abuse to the appropriate authority, whether or not the victim or the
abuser is the physician’s patient. Generally, patient claims
against the physician for breach of confidentiality or violation of a
privilege for such reporting fail.
This publication is issued
quarterly by the Massachusetts Medical Society and Adler, Cohen, Harvey,
Wakeman & Guekguezian, LLP, as an information source for Legal
Advisory Plan members and published online. Nothing herein should be
construed as legal advice or legal opinions regarding specific
situations. Legal counsel should be consulted for application of law and
regulations in each individual case before any action is taken or any
decision is made.
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