Professional Law and Ethics  

 

Course Objectives

1. Describe the Code of Ethics.

2. Describe how the supervisory role can be used to prevent the violation of boundaries.

3. Describe Informed Consent.

4. Identify the ethical and legal principals of confidentiality.

5. Describe confidentiality laws and the impact of those laws on the therapeutic relationship.

6. Apply ethical codes to the termination of therapy.

7. Identify Child and Elder Abuse Reporting Laws.

8.  Describe unprofessional conduct.

9.  Describe scope of practice.

Disclaimer: This course is not intended to offer legal advice or to provide a substitute for legal advice. While laws are frequently cited within the text of this paper, you should be aware that laws can be interpreted differently depending on the specific situation. This is a course which will provide you with an understanding of basic ethical issues which therapist often face but if you find yourself in a difficult situation in which you do not clearly understand what you should do, it is of vital importance that you take the matter seriously and consult with colleagues, an attorney, or an ethics review committee. It is much wiser to do this prior to trying a method you think is appropriate only to find that you have violated ethical rules and put yourself and your practice in legal danger.

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Page 3 - Professional Law and Ethics

Course Topics

1. Advertising Practices

2. Scope of Practice

3. Scope of Competence

4. Treatment of Minors

5. Confidentiality (Exceptions to Confidentiality)

6. Dangerous Patients

7. Psychotherapist Patient Privilege

8. Recordkeeping

9. Patient Access to Records

10. Health Insurance Portability and Accountability Act of 1996

11. Dual Relationships

12. Child Abuse Assessment and Reporting

13. Elder and Dependent Adult Abuse

14. Online Therapy

15. Insurance Reimbursement

16. Civil Liability

17. Disciplinary Actions and Unprofessional Conduct

18. Ethical Standards  (CAMFT – ACA – NBCC)

19. Ethics Complaints

20.Termination of Therapy

21. Standards of Care

22. Relevant Family Law

23. Therapist Disclosures

24. Therapist Malpractice

 

Professional Law and Ethics

Advertising

"Advertise," includes, but is not limited to, the issuance of any card, sign, or device to any person, or the causing, permitting, or allowing of any sign or marking on, or in, any building or structure, or in any newspaper or magazine or in any directory, or any printed matter whatsoever, with or without any limiting qualification. It also includes business solicitations communicated by radio or television broadcasting. Signs within church buildings or notices in church bulletins mailed to a congregation shall not be construed as advertising within the meaning of this chapter.

Scope of Practice and Scope of Competence

Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Counselors gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population.

Many California families and many individual Californians are experiencing difficulty and distress, and are in need of wise, competent, caring, compassionate, and effective counseling in order to enable them to improve and maintain healthy family relationships.

  

Healthy individuals and healthy families and healthy relationships are inherently beneficial and crucial to a healthy society, and are our most precious and valuable natural resource. Marriage and family therapists provide a crucial support for the well-being of the people and the State of California.

 

No person may engage in the practice of marriage and family therapy, unless he or she holds a valid license as a marriage and family therapist, or unless he or she is specifically exempted from that requirement, nor may any person advertise himself or herself as performing the services of a marriage, family, child, domestic, or marital consultant, or in any way use these or any similar titles, including the letters "M.F.T." or "M.F.C.C.," or other name, word initial, or symbol in connection with or following his or her name to imply that he or she performs these services without a license.

 

Persons licensed may engage in such practice or advertise that they practice marriage and family therapy but may not advertise that they hold the marriage and family therapist's license.

 

The practice of marriage and family therapy means that service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments. This practice includes relationship and premarriage counseling.

 

The application of marriage and family therapy principles and methods includes, but is not limited to, the use of applied pyschotherapeutic techniques, to enable individuals to mature and grow within marriage and the family, the provision of explanations and interpretations of the psychosexual and psychosocial aspects of relationships, and the use, application, and integration of the coursework and.

 

Experience, means experience in interpersonal relationships, psychotherapy, marriage and family therapy, and professional enrichment activities that satisfies the requirement for licensure as a marriage and family.

  

Any licensed marriage and family therapist who conducts a private practice under a fictitious business name shall not use any name that is false, misleading, or deceptive, and shall inform the patient, prior to the commencement of treatment, of the name and license designation of the owner or owners of the practice.

 

A trainee shall inform each client or patient, prior to performing any professional services, that he or she is unlicensed and under the supervision of a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician certified in psychiatry by the American Board of Psychiatry and Neurology.

 

In order to continuously improve the competence of licensed marriage and family therapists and as a model for all psychotherapeutic professions, the Legislature encourages all

licensees to regularly engage in continuing education related to the profession or scope of practice.  

 

As a model for all therapeutic professions, and to acknowledge respect and regard for the consuming public, all marriage and family therapists are encouraged to provide to each client, at an appropriate time and within the context of the psychotherapeutic relationship, an accurate and informative statement of the therapist's experience, education, specialities, professional orientation, and any other information deemed appropriate by the licensee.

 

Every person who holds a license to practice marriage and family therapy shall be governed by the rules of professional conduct.

Specialty Areas of Practice

Counselors practice in specialty areas new to them only after appropriate education, training, and supervised experience. While developing skills in new specialty areas, counselors take steps to ensure the competence of their work and to protect others from possible harm.

Qualified for Employment

Counselors accept employment only for positions for which they are qualified by education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Counselors hire for professional counseling positions only individuals who are qualified and competent for those positions.

Monitor Effectiveness

Counselors continually monitor their effectiveness as professionals and take steps to improve when necessary. Counselors in private practice take reasonable steps to seek peer supervision as needed to evaluate their efficacy as counselors.

California Minor Mental Health Consent Laws:

Assessment means the evaluation necessary for an attending professional to assess whether a minor meets criteria (1) and (2) of the minor consent statute.

Outpatient Counseling and Treatment

The statute does not define “treatment.” However, treatment in this context does notinclude convulsive therapy, psychosurgery or psychotropic drugs. A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis or to residential shelter services, if both of the following requirements are satisfied: The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services. and the  minor would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or is the alleged victim of incest or child abuse.”

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exceptions to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider is required to involve a parent or guardian in the minor’s treatment unless the health care provider decides that such involvement is inappropriate. This decision and any attempts to contact parents must be documented in the minor’s record. While this exception allows providers to inform and involve parents in treatment, it does not give providers a right to disclose medical records to parents without the minor’s consent.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider may share medical information for treatment or referral purposes with other qualified professionals  treating the client. However, the provider cannot share psychotherapy notes without written client authorization. Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Psychotropic Medications

"Psychotropic medication" means those medications prescribed to affect the central nervous system to treat psychiatric disorders or illnesses. Only with parent or guardian consent, except a guardian cannot consent to experimental medications for a minor.

Inpatient Treatment:

Only with parent or guardian consent, except a guardian cannot place a minor in a mental health facility against the minor’s will. Involuntary placement can only be obtained through a 5150 or 5350 proceeding. This does not preclude a guardian from placing a ward in a state hospital under a WIC 6000 application.

Psychosurgery/Convulsive Therapy

Only with parent consent. A guardian cannot consent to convulsive therapy.  However, convulsive treatment shall not be performed on a minor under 12 years of age. Persons 12-15 may be administered convulsive treatment only if it is an emergency situation and is deemed a lifesaving treatment and other criteria are met. If the minor is able to give informed consent, the surgery cannot be performed if the minor refuses. Minors 16 and 17 must give voluntary informed consent for convulsive treatment.

Confidentiality Obligations

If the parent/guardian consents to care, the parent/guardian has a right to access the minor’s medical information and the provider can only share the minor’s information with others with the signed consent of the parent/guardian.

Exceptions to Confidentiality:

Discretion to Refuse Access to Parents

The parent/guardian of a minor shall not be entitled to inspect or obtain copies of the minor’s patient records where the health care provider determines that access to the patient records requested by the parent/guardian would have a detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being. The decision of the health care provider as to whether or not a minor's records are available for inspection under this section shall not attach any liability to the provider, unless the decision is found to be in bad faith.

Discretion to Inform Other Providers

The health care provider may share medical information for treatment or referral purposes with other qualified professionals treating the client.. However, the provider cannot share psychotherapy notes without written parent authorization. Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Drug Counseling by federally assisted drug treatment program

An individual, program or facility is federally assisted if:  The individual, program, or facility is authorized, certified, licensed or funded in whole or in part by any department of the federal government. Examples include programs that are: tax exempt; receiving tax-deductible donations; receiving any federal operating funds; or registered with Medicare. And the individual or program: Is an individual or program that holdsitself out as providing alcohol or drug abuse diagnosis, treatment, or referral; or Is a staff member at a general medical facility whose primary function is, and who is identified as, a provider of alcohol or drug abuse diagnosis, treatment or referral; or Is a unit at a general medical facility that holds itself out as providing alcohol or drug abuse diagnosis, treatment or referral.

“A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug or alcohol related problem.”  (This section does not grant a minor the right to refuse medical care and counseling for a drug or alcohol related problem when the minor’s parent or guardian consents for that treatment.

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exceptions to Confidentiality

Discretion to Inform Parents without Minor’s Consent

Providers may not disclose information to parents without a minor’s written authorization However, an exception allows a program to share with parents if the program director determines the following three conditions are met: (1) that the minor’s situation poses a substantial threat to the life or physical well-being of the minor or another; (2) that this threat may be reduced by communicating relevant facts to the minor’s parents; and (3) that the minor lacks the capacity because of extreme youth or a mental or physical condition to make a rational decision on whether to disclose to her parents.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider only may share medical information with providers employed by the same program or with an entity having direct administrative control, and only in connection with duties arising out of the provision of diagnosis, treatment or referral. Providers also may release information to other medical professionals to meet a bona fide emergency.

Drug Counseling

By individuals, programs or facilities that are not “federally assisted” This section does not grant a minor the right to refuse medical care and counseling for a drug or alcohol related problem when the minor’s parent or guardian consents for that treatment.  “A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug or alcohol related problem.”

Confidentiality Obligations

If the minor consents to care, the provider can only share the minor’s medical information with the signed consent of the minor.

Exception to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider is required to involve a parent or guardian in the minor’s treatment unless the health care provider decides that such involvement is inappropriate. This decision and any attempts to contact parents must be documented in the minor’s record. While this exception allows providers to inform parents of treatment and involve them in treatment, it does not give providers a right to disclose medical records without the minor’s consent.

Discretion to Inform Other Providers without Minor’s Consent

Records maintained in connection with drug abuse treatment or prevention efforts conducted, regulated, or directly or indirectly assisted by the state Department of Alcohol and Drug programs cannot be shared with providers not employed by the same treatment or prevention program except to meet an emergency. For programs that are not state assisted, the health care provider may share medical information for treatment or referral services with other providers. However, the provider cannot share psychotherapy notes without written client authorization.

Psychotherapy notes mean notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records

General Medical Care for Emancipated Minors

An emancipated minor may consent to medical, dental and psychiatric care.   “A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied: (a) The person has entered into a valid marriage, whether or not the marriage has been dissolved. (b) The person is on active duty with the armed forces of the United States. (c) The person has received a declaration of emancipation” from a court.

Confidentiality Obligations

The health care provider is not permitted to inform a parent or legal guardian without minor’s consent. The provider can only share the minor’s medical records with the signed consent of the minor.

Exception to Confidentiality

Discretion to Inform Parents without Minor’s Consent

The health care provider has no discretion to inform parents without the minor’s signed consent.

Discretion to Inform Other Providers without Minor’s Consent

The health care provider may share medical information for treatment or referral purposes with other qualified professionals treating the client. However, the provider cannot share psychotherapy notes without written client authorization.  Psychotherapy notes are notes of a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical records.

Resource: National Center for Youth Law

Confidentiality

Confidentiality is designed to reduce the stigma associated with seeking mental health care, foster trust in the treatment relationship and ensure individuals privacy in their health care decisions. Informed consent and confidentiality are important anchors to the principle of autonomy. If a patient believes that the information they share will be disseminated they will be less likely to seek treatment and be less likely to be completely honest.

Confidential Communication

Confidential communication between patient and psychotherapist" means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

When a patient enters our office and psychotherapy begins, everything which is said or done by that patient, with few exceptions, are confidential. The patient holds the privilege to release the confidential information in legal proceedings. While you may object to the patient using these records, you must have solid grounds for your objection. While these are quite variable, generally patients can request and use their records in any way they please. In some instances, a legal guardian or conservator may hold the privilege if the patient is unable to do so. If the patient dies, their privilege passes to the patient's personal representative who handles legal affairs.

The holder of the privilege also has the right to read all information in his or her file with the exception of your personal notes which belong solely to you. Some therapists find this requires them to keep separate files so their personal notes do not become part of the patient's legal record. Your patient can read all notes which have their identifying information, diagnosis, treatment plan, prognosis, and other information including billing and information from other sources which you have included in the file such as notes from other physicians and hospitals. Any spare notes in the patient's file also have information which must be passed to the patient. All information in HIPAA notes are the patient's property and must be released. The file is the property of the clinician so copies must be made if the patient requests a copy of their file.

It is your responsibility to maintain the confidentiality of the records. Patient records should be kept in locked containers except when in use. They should be shredded when they are discarded to avoid the potential of having the notes fall into the hands of others. Office staff and others who handle the files should be made aware of the importance of confidentiality. Handle these records as if they were notes made by your own therapist about you. Your patient feels the same need to have the notes be private. Office staff, filing clerks, billing agencies, and others do not have the same burden of confidentiality as does the clinician. However, it is the responsibility of the therapist to inform the staff about the importance of confidentiality and to take reasonable action to be certain that staff does not violate the patient's confidentiality. While this is a solid part of HIPAA, it seems to be regularly violated by clerks and other office staff. Often my patients who work for or with counselors in the community or in government report cases which are confidential which they have read with avid interest. Try to keep this sort of clerk off your staff.

Laws Regarding Confidentiality

Exception to Confidentiality

Detention of Mentally Disordered Persons For Evaluation and Treatment (5150)

Welfare and Institutions Code 5150: If a client is a danger to him or herself or others or gravely disabled as a result of a mental disorder, a therapist may have him or her involuntary hospitalized for 72 hours. In cases in which hospitalization is required, voluntary hospitalization is always preferable to involuntary hospitalization. Under certain conditions, a person can be detained for longer than 72 hours.

How to Initiate a Hold: Persons legally authorized by Welfare and Institutions Code 5150 to involuntarily confine an individual include police officers, members of the attending staff (e.g., a Psychiatric Emergency Team, or PET) of a facility certified by the county to hold a patient or other professional persons designated by a county. A therapist who believes that his or her client should be hospitalized involuntarily should contact the police or a PET.

5150: When any person, as a result of a mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, a member of the attending staff ... of an evaluation facility designated by the county, designated members of a mobile crisis team ... or other professional person designated by a county, may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled. If the probable cause is based on a statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.

The law provides for confinement for a greater period than 72 hours if certain conditions are met. For instance, a person detained for 72 hours may be held for not more than 14 days of involuntary intensive treatment if the professional staff finds that the person is a danger to him or herself, others or gravely disabled as the result of a mental disorder or chronic alcoholism (W.I.C. 5250). Someone who has threatened to take his or her own life may be held an additional 14 days beyond the original 14 days (W.I.C. 5260). Finally, someone whose mental disorder causes continued imminent dangerousness (i.e., someone who has threatened, attempted or inflicted physical harm upon another after custody) may be held for an additional 90 days (W.I.C. 5300).

The decision as to how long to hold a dangerous patient is made by designated staff after the person is taken into custody. Unless he or she is a designated staff member, a therapist would NOT participate in this decision.

Exceptions to Confidentiality - continued

TARASOFF

law and ethicsProsenjit Poddar was born into the Harijan (untouchable) caste in Bengal, India. He arrived at the University of California at Berkeley and resided in the International House.  In the fall of 1968, he met Tanya Tarasoff while she was attending folk dancing classes at the International House. They saw each other weekly throughout the fall, and on New Year's Eve, Tanya kissed Poddar. Poddar interpreted the kiss to be the recognition of the existence of a serious relationship. This view was not shared by Tanya who, when learning of his feelings, told him she was involved with other men and otherwise indicated that she was not interested in entering into an intimate relationship with him.

As a result of this rebuff, Poddar underwent a severe emotional crisis. He became depressed and neglected his appearance, his studies, and his health.  He remained by himself, frequently abed, speaking disjointedly, and often weeping. He spoke to a friend of being in love with Tanya and about killing her, in particular, by blowing up her room. He told this friend he could not control himself.  His condition persisted with steady deterioration throughout the spring and into the summer of 1969. Poddar did have occasional meetings with Tanya during this period and tape-recorded many of their conversations in an attempt to ascertain why she did not love him.

During the summer of 1969, Tanya went to Brazil. After her departure, Poddar began to improve and at the suggestion of a friend, sought psychological assistance. The exact date Poddar entered therapy is not available, but on August 18, 1969, he was a voluntary outpatient at Cowell Memorial Hospital (also called University Hospital in some reports).  Although he initially had been seen by a psychiatrist, Dr. Stuart Gold, on August 18, 1969, he was under the care of a staff psychologist, Dr. Lawrence Moore. During the August 18 psychotherapy session, his ninth such session, Poddar confided in Dr. Moore that he was going to kill an unnamed girl, readily identifiable as Tanya, when she returned from Brazil.

On August 20, Dr. Moore personally notified campus police officers Everett D. Atkinson and Johnny C. Teel that Poddar was capable of doing harm to himself or others. On that same day, Dr. Moore wrote a letter to the Chief of Campus Police, William Beal, stating that Poddar suffered from a "paranoid schizophrenic reaction, acute and severe" and was a danger to himself and to others. Dr. Moore further stated that, if the campus police would pick Poddar up and transfer him to Herrick Hospital, Dr. Moore would sign a 72-hour emergency detention order on Poddar. Finally, Dr. Moore informed the campus police that Poddar's behavior could be quite rational at times. Dr. Gold and Dr. James Yandell, Dr. Moore's psychiatric supervisor and Assistant Director of the Department of Psychiatry, concurred in Dr. Moore's diagnosis and the need for Poddar's hospitalization.

The campus police took Poddar into custody. Officers Gary L. Browning, Joseph P. Halleran, and Atkinson talked to Poddar and were satisfied that he was rational and had "changed his attitude altogether." After the officers elicited a promise from Poddar that he would try to stay away from Tanya, the campus police released him.

It would appear that the campus police released Poddar on their own initiative; however, either simultaneously with the release or shortly thereafter, Dr. Harvey Powelson, Director of Psychiatry at Cowell Memorial Hospital, learned of the attempt to institute a 72-hour emergency detention order. Dr. Powelson requested that Chief Beall return Dr. Moore's letter, and ordered Moore to destroy all copies of the letter and his therapist's notes on Poddar.  In addition, Dr. Powelson ordered his staff to take no further action to place Poddar in a 72-hour treatment and evaluation facility.

Tarasoff ethics ceusTanya returned from Brazil in October. Poddar continued to follow her and reportedly heard her tell friends of an affair with a "playboy."  The criminal cases indicate that in October, after Tanya had returned, Poddar stopped seeing Dr. Moore.  However, the Supreme Court, looking to the same source, stated that Poddar stopped his therapy immediately after his detention by the campus police.  In any case, on October 27, 1969, Poddar went to Tanya's home to speak to her. Tanya was not at home and her mother told Poddar to leave. Poddar returned later armed with a pellet gun and a kitchen knife. He found Tanya alone. She refused to speak to him and, when he persisted, she screamed. At this point, Poddar shot her with the pellet gun and Tanya ran wildly from the house. Poddar caught her in the yard and stabbed her repeatedly and fatally.  Poddar then returned to the house and called the police. Poddar told the police he had stabbed Tanya and asked that he be handcuffed.

Poddar was examined within 24 hours of the stabbing by Dr. Kermit Gruberg, a Berkeley Police Department psychiatrist. Gruberg confirmed the diagnosis of paranoid schizophrenia.  Poddar was charged with the murder of Tanya. He pled not guilty and not guilty by reason of insanity.  Some time prior to trial, Poddar was examined by Dr. Wilmer Anderson, a neurologist hired by the defense, who testified that, on the basis of neurologic tests, including an electroencephalogram, there were organic abnormalities in Poddar's brain.  At trial, Dr. Philip Grossi, a psychiatrist hired by the defense, Dr. Gruberg, Dr. Anderson, Dr. Moore, and Dr. Gold testified that Poddar was insane and a paranoid schizophrenic.

Dr. John Peschau, a court-appointed psychiatrist, testified that Poddar was not a paranoid schizophrenic and that he could understand the duty the law placed upon him.  During Dr. Moore's testimony, the details of Poddar's threats against Tanya and the attempt to secure an emergency commitment were revealed in open court.  If Tanya's family members were unaware of these facts previously, then they certainly became aware of them at this time. It is not possible from the case reports to establish a temporal relationship between the testimony of Drs. Moore and Gold and the filing of the civil suit. However, their presentation for the defense at trial could not have established a cordial relationship with the family.

The jury convicted Poddar of murder in the second degree. Poddar appealed the decision on multiple grounds. The court of appeals heard the case in 1972 and focused on trial court instruction errors, including a failure to reinstruct the jury as follows: "Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you can not find him guilty of murder in either the first or second degree." The court reduced his conviction from murder in the second degree to manslaughter and remanded the case to the trial court to pronounce judgment.  Two years later the Supreme Court vacated the judgment of the appeals court, holding that the instructions given by the trial court, "failed to serve the needs of the jurors to understand and properly apply the evidence of diminished capacity to the underlying issues."  The court concluded that the error was prejudicial and remanded the case for retrial.

Poddar was not retried. Rather than go through another lengthy trial (the first was over three weeks), more than five years after the fact, the state released Poddar on condition he immediately leave for India and not reenter the United States. He returned to India and, according to one commentator, is happily married to an attorney.

Vitaly and Lydia Tarasoff, Tanya's parents, filed wrongful death suits against the university and the psychotherapists. They alleged four causes of action. The first cause of action was directed against the therapists' failure to detain Poddar. The second was directed against the therapists' failure to warn the Tarasoffs that Poddar was a grave danger to Tanya. The third was directed against Dr. Powelson and sought punitive damages for his actions following the therapists' attempt at 72-hour emergency detention. Dr. Powelson's actions were characterized as "malicious and oppressive abandonment of a dangerous patient." The fourth cause of action was titled "Breach of Primary Duty to Patient and the Public," and involved essentially the same allegations as the first cause of action.

The Alameda County Superior Court issued "a judgment of dismissal upon an order sustaining a demurrer without leave to amend."  The Tarasoffs appealed. The court of appeals affirmed the superior court judgment, ruling the first and fourth causes of action were statutorily barred.  The court could find no special relationship between the defendants and Tanya or her parents and therefore found no duty to warn.  The court ruled that Dr. Powelson had no duty to commit Poddar and, even if he did, such action was discretionary and protected under statute.  The Tarasoffs appealed once more.

Duty of [Physicians] to Take Precautions against Patient Violence.

1.Scope of cause of action. Except as provided in paragraph 5, no cause of action shall lie against a [physician], nor shall legal liability be imposed, for breaching a duty to prevent harm to person or property caused by a patient unless a) the patient has communicated to the [physician] an explicit threat to kill or seriously injure a clearly identified or reasonably identifiable victim or victims, or to destroy property under circumstances likely to lead to serious personal injury or death, and the patient has the apparent intent and ability to carry out the threat; and b) the [physician] fails to take such reasonable precautions to prevent the threatened harm as would be taken by a reasonably prudent [physician] under the same circumstances. Reasonable precautions include, but are not limited to, those specified in paragraph 2.

2. Legally sufficient precautions. Any duty owed by a [physician] to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the [physician] either a) communicates the threat to any identified victim or victims; or b) notifies a law enforcement agency in the vicinity where the patient or any potential victim resides; or c) arranges for the patient to be hospitalized voluntarily; or d) takes legally appropriate steps to initiate proceedings for involuntary hospitalization.

3.Immunity for disclosure. Whenever a patient has explicitly threatened to cause serious harm to person or property, or a [physician] otherwise concludes that a patient is likely to do so, and the [physician], for the purpose of reducing the risk of harm, discloses any confidential communications made by or relating to the patient, no cause of action shall lie against the [physician] for making such disclosure.

4. Definitions.

a. For purposes of this [section], "patient" means any person with whom a [physician] has established a [physician]-patient relationship.

b. For purposes of this [section], ["physician"] means a person licensed to practice medicine in this state.

5. Limited applicability of this section. This section does not modify any duty to take precautions to prevent harm by a patient that may arise if the patient is within the custodial responsibility of a hospital or other facility or is being discharged there from.

Many states, before and after the promulgation of APA's Model Statute, enacted laws limiting a therapist's liability so long as certain specific actions are taken by the therapist when a patient threatens violence.  Such statutes have sought to reconcile the competing policy concerns for public safety, while limiting intrusion into the therapeutic relationship. Alan Stone commented on this development that "the duty to warn is not as unmitigated a disaster for the enterprise of psychotherapy as it once seemed to critics like myself." 

Extending sessions can be a sign that the therapist is developing strong feelings for the client, a cue to a potential boundary violation or a way of showing subtle favoritism toward the client.

Reporting Child Abuse and Neglect

Mandated Reporting Law: When a therapist or an intern or trainee, in his or her professional capacity, acquires knowledge or a reasonable suspicion that a child is being abused (or has been abused), he or she must make a telephone report immediately and a written follow-up within 36 hours to the appropriate authorities.

Categories of Child Abuse: physical abuse, sexual abuse, severe and general neglect, willful cruelty and unjustifiable punishment, corporal punishment and injury and abuse in out-of-home care.

Categories of Sexual Abuse: The two categories of sexual abuse are sexual assault and sexual exploitation. Sexual assault includes rape and rape in concert, oral copulation and sodomy, lewd and lascivious acts upon a child under the age of 14, penetration of a genital or anal opening by a foreign object and child molestation.  Unlawful sexual intercourse with a child under the age of 16 when the perpetrator is over the age of 21 is reportable as child abuse.  Another crime also reportable is lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more that 10 years older than the victim.  Sexual exploitation includes conduct involving matter depicting minors engaged in obscene acts; promoting, aiding or assisting a minor to engage in prostitution, a live performance involving obscene sexual conduct or posing for a pictorial depiction involving obscene conduct for commercial purposes; and depicting a child in or knowingly developing a pictorial depiction in which a child engages in obscene sexual conduct.

A report of child abuse is not required when a therapist learns of the abuse in a setting outside his or her professional capacity. A report is also not mandated when a therapist learns of a case involving an adult who was abused as a minor. In this case, however, clinical and ethical considerations will bear on a therapist's course of action. For example, when a therapist learns of an adult who was abused as a child, that therapist should make an effort to learn whether the perpetrator continues to have access to children. If so, and the circumstances arouse a reasonable suspicion of child abuse, the clinician must file a report. Consensual, non-abusive sex between two 13-year-olds is not reportable, but would become reportable when just one of the partners turns 14.

When, in the course of his or her professional role, a psychotherapist either knows or reasonably suspects that a minor is being abused, they have a legal obligation to report what he or she knows of the situation to the proper authorities (Child Protective Services, police, county probation offices or county welfare office) by telephone as soon as possible, with a written follow-up required within 36 hours. The therapist has no discretion in this matter and may be liable for prosecution if he or she does not report.

The requirement to report child abuse and neglect became public policy in all States by 1965 with the passage of the first child abuse reporting law, which only required physicians to report physical abuse. Since that time, neglect, emotional abuse, and sexual abuse have been recognized as injurious to a child's physical and mental health, and reporting laws were amended to include these forms of child maltreatment. Those professionals required by law to make child abuse reports also expanded over the years to include teachers, nurses, mental health professionals, social workers, school custodians, day care providers, and others who are in regular contact with children.

Mental health professionals are now required by law in all States to report child abuse and neglect. The specific language of the States' reporting laws varies, but they typically cover circumstances when one acquires knowledge of or observes a child under conditions that give rise to a reasonable suspicion of child abuse and/or neglect; or, when one has knowledge of or observes a child whom he or she knows has been the victim of child abuse and neglect. "Reasonable suspicion" definitions may vary, but it is generally considered to occur when it is objectively reasonable for a person to entertain such a suspicion, based on his or her training and experience.

Child abuse must be reported when one who is a legally mandated reporter, has knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse.

The Reporting Mandate to Whom You Must Report

The report must be made to a "child protective agency." A child protective agency is a county welfare or probation department or a police or sheriff's department. Exceptions are reports by commercial print and photographic print processors, which are made to the law enforcement agency having jurisdiction. The mandated reporter must report the known or suspected incidence of child abuse to a child protective agency immediately or as soon as practically possible by telephone. You will speak to the social worker or law enforcement officer on duty.

Mandated reporters, however, are not legally required to tell involved individuals that a report is about to be made. The law does not require mandated reporters to tell the parents that a report is being made; however, in the majority of cases, advising the client is therapeutically advisable. First, the therapist is employing clinical leverage by using authority to set a firm and necessary limit. Reporting child abuse responds to the parents' nonverbal plea for help. The therapist can reassure the clients that steps will be taken to help the parents regain control so that the abuse does not lead to serious injury or emotional trauma to the child. Second, if the therapist does not mention the report, there is secrecy and tension, which may result in the clients' feelings of suspicion, isolation, or betrayal. In some cases, reporting may elicit an extreme response from the clients. It is contra-indicated to inform parents about the report if the individual seems psychotic, has poor impulse control coupled with a history of violent behavior, has a problem with alcohol or drugs, or is likely to flee. It can be very beneficial to give clients the opportunity to make the reports themselves in the therapist's presence. A self-report, however, does not negate the therapist's mandate to report.

Health practitioners, including MFTs, psychologists, professional counselors and social workers, are legally mandated reporters. Other legally mandated reporters include child care custodians, teachers, teacher's assistants, employees of child protective agencies and commercial film and photographic print processors. Legally mandated reporters are required to give their names.

Child abuse is defined as “a physical injury which is inflicted by other than accidental means on a child by another person.” Child abuse also means the sexual abuse of a child or any act or omission, willful cruelty or unjustifiable punishment of a child, or unlawful corporal punishment or injury. Child abuse also means the neglect of a child or abuse in out-of-home care. Child abuse does not include any injury caused by reasonable and necessary force used by a peace officer . Abuse must be reported “even if a suspected child abuse victim has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy.”

Please keep in mind that your responsibility is only to report suspected abuse, not investigate it. Your attempts to investigate may have unforeseen negative impacts on the child and family. Leave it for the child welfare professionals.

The following types of abuse must be reported by legally mandated reporters:

Physical Abuse: Physical injury inflicted by other than accidental means.
Sexual Abuse: Sexual abuse includes sexual assault and sexual exploitation.

Sexual assault is defined as:

Rape and rape in concert: This includes any forced sexual activity with anyone under age 18, or helping someone else rape a minor.

Incest: Incest is any sexual activity between parents and children, ancestors and descendants, siblings and between uncles or nieces and aunts or nephews.

Oral copulation and sodomy

Lewd and lascivious acts upon a child under the age of 14: This refers to any sexual touching or intercourse with a male or female child under the age of 14, even if it is consensual. If “lewd and lascivious” behavior occurring between minors, when each is under the age of 14 years, is not reportable, as long as the minors are of roughly the same age and there is no coercion involved.  However, lewd and lascivious acts with a child of 14 or 15 years of age when the perpetrator is more than 10 years old than the victim is reportable.

Child Molestation

Sexual Explotation - Conduct depicting a minor engaged in obscene acts, including preparing, selling or distributing the obscene matter and/or employing a minor to perform obscene acts; any person knowingly promoting, aiding or assisting, employing, using, persuading, inducing or coercing a child, or any parent or guardian of a child under his or her control knowingly permitting or encouraging a child  to engage in or assisting either to engage in prostitution or a live performance involving obscene sexual conduct or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, picture or other pictorial depiction involving obscene sexual conduct for commercial purposes; any person depicting a child in or who knowingly developing, duplicating, printing or exchanging any film, photograph, videotape, negative or slide in which a child is engaged in an act of obscene sexual conduct.

Severe and General Neglect: Acts or omissions committed by a person responsible for a child that harm or threaten to harm the child's health or welfare.

Severe neglect: “the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive.”  Severe neglect also means those situations of neglect where “any person having the care or custody of a child willfully causes or permits the person or health of the child such that his or her person or health is endangered including the intentional failure to provide adequate food, clothing, shelter or medical care.”

General neglect: This is defined as “the negligent failure of a person having the care or custody of a child to provide adequate, food, clothing, shelter, medical care or supervision where no physical injury has occurred.”

Willful Cruelty and Unjustifiable Punishment: This refers to situations in which “any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering.


Corporal Punishment and Injury: This refers to “a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”

If a therapist hears about child abuse from a third party, and this raised a reasonable suspicion of abuse, the therapist must make a report if the information was revealed to the therapist within their professional capacity.

Confidentiality: The identity of all reporters is considered confidential and is disclosed only between child protective agencies.

Immunity: Mandated reporters have immunity from criminal and civil liability for reporting as required.

Any other person who reports a known or suspected case of child abuse is also protected from civil and criminal liability, unless it can be proven that the person deliberately made a false report.

Privilege: The Child Abuse Reporting Law takes precedence over laws governing the psychotherapist-patient privilege.

Failure to Report: A failure to report known or suspected child abuse when mandated to do so is considered a misdemeanor and is punishable by a term in jail not to exceed six months or by a fine not to exceed $1,000 or by both.

California Laws Pertaining to Child Abuse

 Child Abuse and Neglect Reporting Act

The intent and purpose of this article is to protect children from abuse and neglect. In any investigation of suspected child abuse or neglect, all persons participating in the investigation of the case shall consider the needs of the child victim and shall do whatever is necessary to prevent psychological harm to the child victim.

Child means a person under the age of 18 years.

Sexual Abuse means sexual assault or sexual exploitation as defined by the following:

   (a) Sexual assault means conduct in violation of one or more of the following: rape, statutory rape, rape in concert, incest, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration or child molestation.

   (b) Sexual Assault includes, but is not limited to, all of the following:

   (1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.

   (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.

   (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.

   (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.

   (5) The intentional masturbation of the perpetrator's genitals in the presence of a child.

   (c) "Sexual exploitation" refers to any of the following:

   (1) Conduct involving matter depicting a minor engaged in obscene acts (preparing, selling, or distributing obscene matter) or employment of minor to perform obscene acts.

   (2) Any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, "person responsible for a child's welfare" means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.

   (3) Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies.

Neglect means the negligent treatment or the maltreatment of a child by a person responsible for the child's welfare under circumstances indicating harm or threatened harm to the child's health or welfare. The term includes both acts and omissions on the part of the responsible person.

   (a) "Severe neglect" means the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive. "Severe neglect" also means those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered, as proscribed by Section 11165.3, including the intentional failure to provide adequate food, clothing, shelter, or medical care.

   (b) "General neglect" means the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.

A child receiving treatment by spiritual means or not receiving specified medical treatment for religious reasons, shall not for that reason alone be considered a neglected child. An informed and appropriate medical decision made by parent or guardian after consultation with a physician or physicians who have examined the minor does not constitute neglect.

The willful harming or injuring of a child or the endangering of the person or health of a child," means a situation in which any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain ormental suffering, or having the care or custody of any child, willfully causes or permits the person or health of the child to be placed in a situation in which his or her person or health isendangered.

Unlawful corporal punishment or injury means a situation where any person willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition. It does not include an amount of force that is reasonable and necessary for a person employed by or engaged in a public school to quell a disturbance threatening physical injury to person or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil. It does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.

Abuse or neglect in out-of-home care includes physical injury or death inflicted upon a child by another person by other than accidental means, sexual abuse, neglect, unlawful corporal punishment or injury  or the willful harming or injuring of a child or the endangering of the person or health of a child, where the person responsible for the child's welfare is a licensee, administrator, or employee of any facility licensed to care for children, or an administrator or employee of a public or private school or other institution or agency. "Abuse or neglect in out-of-home care" does not include an injury caused by reasonable and  necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.

Child abuse or neglect includes physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse, neglect, the willful harming or injuring of a child or the endangering of the person or health of a child, and unlawful corporal punishment or injury. "Child abuse or neglect" does not include a mutual affray between minors. "Child abuse or neglect" does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.

Mandated Reporters

Mandated reporter is defined as any of the following:

   (1) A teacher.

   (2) An instructional aide.

   (3) A teacher's aide or teacher's assistant employed by any public or private school.

   (4) A classified employee of any public school.

   (5) An administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel employee of any public or private school.

   (6) An administrator of a public or private day camp.

   (7) An administrator or employee of a public or private youth center, youth recreation program, or youth organization.

   (8) An administrator or employee of a public or private

organization whose duties require direct contact and supervision of children.

   (9) Any employee of a county office of education or the State Department of Education, whose duties bring the employee into contact with children on a regular basis.

   (10) A licensee, an administrator, or an employee of a licensed community care or child day care facility.

   (11) A Head Start program teacher.

   (12) A licensing worker or licensing evaluator employed by a licensing agency as defined in Section 11165.11.

   (13) A public assistance worker.

   (14) An employee of a child care institution, including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities.

   (15) A social worker, probation officer, or parole officer.

   (16) An employee of a school district police or security department.

   (17) Any person who is an administrator or presenter of, or a counselor in, a child abuse prevention program in any public or private school.

   (18) A district attorney investigator, inspector, or local childsupport agency caseworker unless the investigator, inspector, or caseworker is working with an attorney to represent a minor.

   (19) A peace officer, who is not otherwise described in this section.

   (20) A firefighter, except for volunteer firefighters.

   (21) A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, optometrist, marriage, family and child counselor, clinical social worker, or any other person who is currently licensed under the Business and Professions Code.

   (22) Any emergency medical technician I or II, paramedic, or other person certified  of the Health and Safety Code.

   (23) A psychological assistant

   (24) A marriage, family, and child therapist trainee

   (25) An unlicensed marriage, family, and child therapist intern

   (26) A state or county public health employee who treats a minor for venereal disease or any other condition.

   (27) A coroner.

   (28) A medical examiner, or any other person who performs autopsies.

   (29) A commercial film and photographic print processor "commercial film and photographic print processor" means any person who develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides, for compensation. The term includes any employee of such a person; it does not include a person who develops film or makes prints for a public agency.

   (30) A child visitation monitor. Child visitation monitor" means any person who, for financial compensation, acts as monitor of a visit between a child and any other person when the monitoring of that visit has been ordered by a court of law.

   (31) An animal control officer or humane society officer.

   (A) "Animal control officer"

   (B) "Humane society officer"

   (32) A clergy member, clergy member" means a priest,

minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.

   (33) Any custodian of records of a clergy member

   (34) Any employee of any police department, county sheriff's department, county probation department, or county welfare department.

   (35) An employee or volunteer of a Court Appointed Special Advocate program

   (36) A custodial officer

   (37) Any person providing services to a minor child

   (38) An alcohol and drug counselor. An "alcohol and drug counselor" is a person providing counseling, therapy, or other clinical services for a state licensed or certified drug, alcohol, or drug and alcohol treatment program. However,alcohol or drug abuse, or both alcohol and drug abuse, is not in and of itself a sufficient basis for reporting child abuse or neglect.

   (b) Volunteers of public or private organizations whose duties require direct contact with and supervision of children are not mandated reporters but are encouraged to obtain training in the identification and reporting of child abuse and neglect and are further encouraged to report known or suspected instances of child abuse or neglect.

   (c) Employers are strongly encouraged to provide their employees who are mandated reporters with training in the duties. This training shall include training in child abuse and neglect identification and training in child abuse and neglect reporting. Whether or not employers provide their employees with training in child abuse and neglect identification and reporting, the employers shall provide their employees who are mandated reporters.

   (d) School districts that do not train their employees specified in subdivision (a) in the duties of mandated reporters under the child abuse reporting laws shall report to the State Department of

Education the reasons why this training is not provided.

   (e) Unless otherwise specifically provided, the absence of

training shall not excuse a mandated reporter from the duties imposed by this article.

   (f) Public and private organizations are encouraged to provide

their volunteers whose duties require direct contact with and supervision of children with training in the identification and reporting of child abuse and neglect.

Reports of suspected child abuse or neglect shall be made by mandated reporters, may be made, to any police department or sheriff's department, not including a school district police or security department, county probation department, if designated by the county to receive mandated reports, or the county welfare department. Any of those agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or another person, or referred by another agency, even if the agency to whom the report is being made lacks subject matter or geographical jurisdiction to investigate the reported case, unless the agency can immediately electronically transfer the call to an agency with proper jurisdiction. When an agency takes a report about a case of suspected child abuse or neglect in which that agency lacks jurisdiction, the agency shall immediately refer the case by telephone, fax, or electronic transmission to an agency with proper jurisdiction.

Agencies that are required to receive reports of suspected child abuse or neglect may not refuse to accept a report of suspected child abuse or neglect from a mandated reporter or another person unless otherwise authorized pursuant to this section, and shall maintain a record of all reports received.

Licensing agency means the State Department of Social Services office responsible for the licensing and enforcement of the California Community Care Facilities Act, the California Child Day Care Act or the county licensing agency which has contracted with the state for performance of those duties.

 (a) "Unfounded report" means a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect.

   (b) "Substantiated report" means a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred.

   (c) "Inconclusive report" means a report that is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect has occurred.

Parental Substance Abuse

A positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect. However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and If other factors are present that indicate risk to a child, then a report shall be made. However, a report based on risk to a child which relates solely to the inability of the parent to provide the child with regular care due to the parent's substance abuse shall be made only to a county welfare or probation department, and not to a law enforcement agency.

The appropriate local law enforcement agency shall investigate a child abuse complaint filed by a parent or guardian of a pupil with a school or an agency specified against a school employee or other person that commits an act of child abuse, against a pupil at a schoolsite and shall transmit a substantiated report, of that investigation to the governing board of the appropriate school district or county office of education.

Where to File a Report

A mandated reporter shall make a report to an agency whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report to the agency immediately or as soon as is practicably possible by telephone and the mandated reporter shall prepare and send, fax, or electronically transmit a written followup report thereof within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident.

Reasonable Suspicion

Reasonable suspicion means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. For the purpose of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse.

The agency shall be notified and a report shall be prepared and sent, faxed, or electronically transmitted even if the child has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy.

If after reasonable efforts a mandated reporter is unable to submit an initial report by telephone, he or she shall immediately or as soon as is practicably possible, by fax or electronic transmission, make a one-time automated written report on the form prescribed by the Department of Justice, and shall also be available to respond to a telephone followup call by the agency with which he or she filed the report. A mandated reporter who files a one-time automated written report because he or she was unable to submit an initial report by telephone is not required to submit a written followup report.

   The one-time automated written report form prescribed by the Department of Justice shall be clearly identifiable so that it is not mistaken for a standard written followup report. In addition, the automated one-time report shall contain a section that allows the mandated reporter to state the reason the initial telephone call was not able to be completed. The reason for the submission of the one-time automated written report in lieu of the procedure prescribed shall be captured in the Child Welfare Services/Case Management System (CWS/CMS). The department shall work with stakeholders to modify reporting forms and the CWS/CMS as is necessary to accommodate the changes enacted by these provisions. Nothing in this section shall supersede the requirement that a mandated reporter first attempt to make a report via telephone, or that agencies specified accept reports from mandated reporters and other persons as required.

Penalty for Failure to Report Child Abuse

Any mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required  is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine. If a mandated reporter intentionally conceals his or her failure to report an incident known by the mandated reporter to be abuse or severe neglect, the failure to report is a continuing offense until an agency discovers the offense.  

A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a). For the purposes of this subdivision, "penitential communication" means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.

Multiple Mandated Reporters

When two or more persons, who are required to report, jointly have knowledge of a known or suspected instance of child abuse or neglect, and when there is agreement among them, the telephone report may be made by a member of the team selected by mutual agreement and a single report may be made and signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report.

The reporting duties are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with this article. The internal procedures shall not require any employee required to make reports to disclose his orher identity to the employer.

Reporting the information regarding a case of possible child abuse or neglect to an employer, supervisor, school principal, school counselor, coworker, or other person shall not be a substitute for making a mandated report.

A county probation or welfare department shall immediately, or as soon as practicably possible, report by telephone, fax, or electronic transmission to the law enforcement agency having jurisdiction over the case, to the agency given the responsibility for investigation of cases, and to the district attorney's office every known or suspected instance of child abuse or neglect,except acts or omissions, or reports made based on risk to a child which relates solely to the inability of the parent to provide the child with regular care due to the parent's substance abuse, which shall be reported only to the county welfare or probation department. A county probation or welfare department also shall send, fax, or electronically transmit a written report thereof within 36 hours of receiving the information concerning the incident to any agency to which it makes a telephone report under this subdivision.

Any mandated reporter who willfully fails to report abuse or neglect, or any person who impedes or inhibits a report of abuse or neglect, where that abuse or neglect results in death or great bodily injury, shall be punished by not more than one year in a county jail, by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment.

Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency.

When an agency receives a report that contains either of the following, it shall, within 24 hours, notify the licensing office with jurisdiction over the facility:

   (1) A report of abuse alleged to have occurred in facilities licensed to care for children by the State Department of Social Services.

   (2) A report of the death of a child who was, at the time of death, living at, enrolled in, or regularly attending a facility licensed to care for children by the State Department of Social Services, unless the circumstances of the child's death are clearly unrelated to the child's care at the facility. The agency shall send the licensing agency a copy of its investigation and any other pertinent materials.

   (b) Any employee of an agency who has knowledge of, or observes in his or her professional capacity or within the scope of his or her employment, a child in protective custody whom he or she knows or reasonably suspects has been the victim of child abuse or neglect shall, within 36 hours, send or have sent to the attorney who represents the child in dependency court, a copy of the report. The agency shall maintain a copy of the written report. All information requested by the attorney for the child or the child's guardian ad litem shall be provided by the agency within 30 days of the request.

Any agency shall immediately or as soon as practically possible report by telephone, fax, or electronic transmission to the appropriate licensing agency every known or suspected instance of child abuse or neglect when the instance of abuse or neglect occurs while the child is being cared for in a child day care facility, involves a child day care licensed staff person, or occurs while the child is under the supervision of a community care facility or involves a community care facility licensee or staff person. The agency shall also send, fax, or electronically transmit a written report thereof within 36 hours of receiving the information concerning the incident to any agency to which it makes a telephone report under this subdivision. The agency shall send the licensing agency a copy of its investigation report and any other pertinent materials.

The Legislature intends that in each county the law enforcement agencies and the county welfare or probation department shall develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. The local law enforcement agency having jurisdiction over a case shall report to the county welfare or probation department that it is investigating the case within 36 hours after starting its investigation. The county welfare department or probation department shall, in cases where a minor is a victim  and a petition has been filed  with regard to the minor, evaluate what action or actions would be in the best interest of the child victim. Notwithstanding any other provision of law, the county welfare department or probation department shall submit in writing its findings and the reasons therefor to the district attorney on or before the completion of the investigation. The written findings and the reasons therefor shall be delivered or made accessible to the defendant or his or her counsel.

The local law enforcement agency having jurisdiction over a case reported shall report to the district office of the State Department of Social Services any case  if the case involves a facility  and the licensing of the facility has not been delegated to a county agency. The law enforcement agency shall send a copy of its investigation report and any other pertinent materials to the licensing agency upon the request of the licensing agency.

On and after January 1, 1986, when a person is issued a state license or certificate to engage in a profession or occupation, the

members of which are required to make a report, the state agency issuing the license or certificate shall send a statement  to the person at the same time as it transmits the document indicating licensure or certification to the person. In addition to the requirements, the statement also shall indicate that failure to comply with the requirements is a misdemeanor, punishable by up to six months in a county jail, by a fine of one thousand dollars ($1,000), or by both that imprisonment and fine. As an alternative to the procedure, a state agency may cause the required statement to be printed on all application forms for a license or certificate printed on or after January 1, 1986.

Identifying Information

Reports of suspected child abuse or neglect shall include the name, business address, and telephone number of the mandated reporter; the capacity that makes the person a mandated reporter; and the information that gave rise to the reasonable suspicion of child abuse or neglect and the source or sources of that information. If a report is made, the following information, if known, shall also be included in the report: the child's name, the child's address, present location, and, if applicable, school, grade, and class; the names, addresses, and telephone numbers of the child's parents or guardians; and the name,address, telephone number, and other relevant personal information about the person or persons who might have abused or neglected the child. The mandated reporter shall make a report even if some of this information is not known or is uncertain to him or her.

Information relevant to the incident of child abuse or neglect may be given to an investigator from an agency that is investigating the known or suspected case of child abuse or neglect. Information relevant to the incident of child abuse or neglect, including the investigation report and other pertinent materials, may be given to the licensing agency when it is investigating a known or suspected case of child abuse or neglect.

The identity of all persons who report under this article shall be confidential and disclosed only among agencies receiving or investigating mandated reports, to the prosecutor in a criminal prosecution or in an action arising from alleged child abuse, or to counsel appointed, or to the county counsel or prosecutor in a proceeding or to a licensing agency when abuse or neglect in out-of-home care is reasonably suspected, or when those persons waive confidentiality, or by court order.

Notwithstanding the confidentiality requirements, a representative of a child protective services agency performing an investigation that results from a report of suspected child abuse or neglect  at the time of the initial contact with the individual who is subject to the investigation, shall advise the individual of the complaints or allegations against him or her, in a manner that is consistent with laws protecting the identity of the reporter.

Unsubstantiated Reports

Information from an inconclusive or unsubstantiated report shall be deleted from the Child Abuse Central Index after 10 years if no subsequent report concerning the same suspected child abuser is received within that time period. If a subsequent report is received within that 10-year period, information from any prior report, as well as any subsequently filed report, shall be maintained on the Child Abuse Central Index for a period of 10 years from the time the most recent report is received by the department.

Investigative Action

When a report is made, the investigating agency, upon completion of the investigation or after there has been a final disposition in the matter, shall inform the person required or authorized to report of the results of the investigation and of any action the agency is taking with regard to the child or family.

No mandated reporter shall be civilly or criminally liable for any report required or authorized, and this immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment. Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. No person required to make a report pursuant to this article, nor any person taking photographs at his or her direction, shall incur any civil or criminal liability for taking photographs of a suspected victim of child abuse or neglect, or causing photographs to be taken of a suspected victim of child abuse or neglect, without parental consent, or for disseminating the photographs with the reports required by this article. However, this section shall not be construed to grant immunity from this liability with respect to any other use of the photographs.

The Legislature finds that even though it has provided immunity from liability to persons required or authorized to make report, that immunity does not eliminate the possibility that actions may be brought against those persons based upon required or authorized reports. In order to further limit the financial hardship that those persons may incur as a result of fulfilling their legal responsibilities, it is necessary that they not be unfairly burdened by legal fees incurred in defending those actions. Therefore, a mandated reporter may present a claim to the California Victim Compensation and Government Claims Board for reasonable attorney's fees and costs incurred in any action against that person on the basis of making a report required or authorized by if the court has dismissed the action upon a demurrer or motion for summary judgment made by that person, or if he or she prevails in the action. The California Victim Compensation and Government Claims Board shall allow that claim if the requirements are met, and the claim shall be paid from an appropriation to be made for that purpose. Attorney's fees awarded shall not exceed an hourly rate greater than the rate charged by the Attorney General of the State of California at the time the award is made and shall not exceed an aggregate amount of fifty thousand dollars ($50,000).

For community treatment facilities, day treatment facilities, group homes, and foster family agencies, the State Department of

Social Services shall prescribe the following regulations:

 (1) Regulations designed to assure that all licensees andemployees of community treatment facilities, day treatment

facilities, group homes, and foster family agencies licensed to care for children have had appropriate training, as determined by the State Department of Social Services, in consultation with representatives of licensees, on the provisions of this article.

   (2) Regulations designed to assure the community treatment facilities, day treatment facilities, group homes, and foster family agencies licensed to care for children maintain a written protocol for the investigation and reporting of child abuse or neglect,  alleged to have occurred involving a child placed in the facility.

   (c) The State Department of Social Services shall provide such orientation and training as it deems necessary to assure that its officers, employees, or agents who conduct inspections of facilities licensed to care for children are knowledgeable about the reporting requirements and have adequate training to identify conditions leading to, and the signs of, child abuse or neglect.

Scope, and Effects of Child Sexual Abuse            

Most professionals are fairly certain they know what child sexual abuse is, and there is a fair amount of agreement about this. For example, today very few people would question the inclusion of sexual acts that do not involve penetration. Despite this level of consensus, it is important to define what sexual abuse is because there are variations in definitions across professional disciplines.

Child sexual abuse can be defined from legal and clinical perspectives. Both are important for appropriate and effective intervention. There is considerable overlap between these two types of definitions.

Statutory Definitions

There are two types of statutes in which definitions of sexual abuse can be found – child protection (civil) and criminal.

The purposes of these laws differ. Child protection statutes are concerned with sexual abuse as a condition from which children need to be protected. Thus, these laws include child sexual abuse as one of the forms of maltreatment that must be reported by designated professionals and investigated by child protection agencies. Courts may remove children from their homes in order to protect them from sexual abuse. Generally, child protection statutes apply only to situations in which offenders are the children's caretakers.

Criminal statutes prohibit certain sexual acts and specify the penalties. Generally, these laws include child sexual abuse as one of several sex crimes. Criminal statutes prohibit sex with a child, regardless of the adult's relationship to the child, although incest may be dealt with in a separate statute.

Definitions in child protection statutes are quite brief and often refer to State criminal laws for more elaborate definitions. In contrast, criminal statutes are frequently quite lengthy.

Child Protection Definitions

The Federal definition of child maltreatment is included in the Child Abuse Prevention and Treatment Act. Sexual abuse and exploitation is a subcategory of child abuse and neglect. The statute does not apply the maximum age of 18 for other types of maltreatment, but rather indicates that the age limit in the State law shall apply. Sexual abuse is further defined to include:

"(A) the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct for the purpose of producing a visual depiction of such conduct; or

(B) the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children;..."

In order for States to qualify for funds allocated by the Federal Government, they must have child protection systems that meet certain criteria, including a definition of child maltreatment specifying sexual abuse.

Criminal Definitions

With the exception of situations involving Native American children, crimes committed on Federal property, interstate transport of minors for sexual purposes, and the shipment or possession of child pornography, State criminal statutes regulate child sexual abuse. Generally, the definitions of sexual abuse found in criminal statutes are very detailed. The penalties vary depending on:

the age of the child, crimes against younger children being regarded as worse;

the level of force, force making the crime more severe;

the relationship between victim and offender, an act against a relative or household member being considered more serious; andthe type of sexual act, acts of penetration receiving longer sentences.

Often types of sexual abuse are classified in terms of their degree (of severity), first degree being the most serious and fourth degree the least, and class (of felony), a class A felony being more serious than a class B or C, etc.

Clinical Definitions

Although clinical definitions of sexual abuse are related to statutes, the guiding principle is whether the encounter has a traumatic impact on the child. Not all sexual encounters experienced by children do. Traumatic impact is generally affected by the meaning of the act(s) to the child, which may change as the child progresses through developmental stages. The sexual abuse may not be "traumatic" but still leave the child with cognitive distortions or problematic beliefs; that is, it is "ok" to touch others because it feels good.

Differentiating Abusive From Nonabusive Sexual Acts

There are three factors that are useful in clinically differentiating abusive from nonabusive acts – power differential; knowledge differential; and gratification differential.

These three factors are likely to be interrelated. However, the presence of any one of these factors should raise concerns that the sexual encounter was abusive.

Power differential The existence of a power differential implies that one party (the offender) controls the other (the victim) and that the sexual encounter is not mutually conceived and undertaken. Power can derive from the role relationship between offender and victim. For example, if the offender is the victim's father, the victim will usually feel obligated to do as the offender says. Similarly, persons in authority positions, such as a teacher, minister, or Boy Scout leader, are in roles that connote power. Thus, sexual activities between these individuals and their charges are abusive.

Power can also derive from the larger size or more advanced capability of the offender, in which case the victim may be manipulated, physically intimidated, or forced to comply with the sexual activity. Power may also arise out of the offender's superior capability to psychologically manipulate the victim (which in turn may be related to the offender's role or superior size). The offender may bribe, cajole, or trick the victim into cooperation.

Knowledge differential The act is considered abusive when one party (the offender) has a more sophisticated understanding of the significance and implications of the sexual encounter. Knowledge differential implies that the offender is either older, more developmentally advanced, or more intelligent than the victim. Generally, clinicians expect the offender to be at least 5 years older than the victim for the act to be deemed predatory. When the victim is an adolescent, some persons define the encounter as abusive only if the offender is at least 10 years older.  Thus, a consensual sexual relationship between a 15-year-old and a 22-year-old would not be regarded as abusive, if other case factors supported that conclusion.

Generally, the younger the child, the less able she/he is to appreciate the meaning and potential consequences of a sexual relationship, especially one with an adult. Usually, the maximum age for the person to be considered a victim (as opposed to a participant) is 16 or 18, but some researchers have used an age cutoff of 13 for boy victims.  Apparently, the researchers felt that boys at age 13, perhaps unlike girls, were able to resist encounters with significantly older people and were, by then, involved in consensual sexual acts with significantly older people. However, clinicians report situations in which boys victimized after age 13 experience significant trauma from these sexual contacts.

- Situations in which retarded or emotionally disturbed persons participate in or are persuaded into sexual activity may well be exploitive, even though the victim is the same age or even older than the perpetrator.

Gratification differential  Finally, in most but not all sexual victimization, the offender is attempting to sexually gratify him/herself. The goal of the encounter is not mutual sexual gratification, although perpetrators may attempt to arouse their victims because such a situation is arousing to them. Alternatively, they may delude themselves into believing that their goal is to sexually satisfy their victims. Nevertheless, the primary purpose of the sexual activity is to obtain gratification for the perpetrator.

In this regard, some activities that involve children in which there is not a 5-year age differential may nevertheless be abusive. For example, an 11-year-old girl is instructed to fellate her 13-year-old brother. (This activity might also be abusive because there was a power differential between the two children based on his superior size.)

Sexual Acts

The sexual acts that will be described in this section are abusive clinically when the factors discussed in the previous section are present as the examples illustrate. The sexual acts will be listed in order of severity and intrusiveness, the least severe and intrusive being discussed first.

Noncontact acts

Offender making sexual comments to the child

Offender exposing intimate parts to the child, sometimes accompanied by masturbation.

Voyeurism (peeping).

Offender showing child pornographic materials, such as pictures, books, or movies.

Offender induces child to undress and/or masturbate self.

Sexual contact

Offender touching the child's intimate parts (genitals, buttocks, breasts).

Offender inducing the child to touch his/her intimate parts.

Frottage (rubbing genitals against the victim's body or clothing).

Digital or object penetration

Offender placing finger(s) in child's vagina or anus.

Offender inducing child to place finger(s) in offender's vagina or anus.

Oral sex

Tongue kissing

Breast sucking, kissing, licking, biting.

Fellatio (licking, kissing, sucking, biting the penis).

Penile penetration

Vaginal intercourse

Anal intercourse

Intercourse with animals.

Circumstances of Sexual Acts

Professionals need to be aware that sexual acts with children can occur in a variety of circumstances. In this section, dyads, group sex, sex rings, sexual exploitation, and ritual abuse will be discussed. These circumstances do not necessarily represent discrete and separate phenomena.

Dyadic sexual abuse. The most common circumstance of sexual abuse is a dyadic relationship, that is, a situation involving one victim and one offender. Because dyadic sex is the prevalent mode for all kinds of sexual encounters, not merely abusive ones, it is not surprising that it is the most common.

Group sex. Circumstances involving group sex are found as well. These may comprise several victims and a single perpetrator, several perpetrators and a single victim, or multiple victims and multiple offenders. Such configurations may be intrafamilial (e.g., in cases of polyincest) or extrafamilial. Examples of extrafamilial group victimization include some instances of sexual abuse in day care, in recreational programs, and in institutional care.

Sex rings. Children are also abused in sex rings; often this is group sex. Sex rings generally are organized by pedophiles (persons whose primary sexual orientation is to children), so that they will have ready access to children for sexual purposes and, in some instances, for profit. Victims are bribed or seduced by the pedophile into becoming part of the ring, although he may also employ existing members of the ring as recruiters. Rings vary in their sophistication from situations involving a single offender, whose only motivation is sexual gratification, to very complex rings involving multiple offenders as well as children, child pornography, and prostitution.

Sexual exploitation of children. The use of children in pornography and for prostitution is yet another circumstance in which children may be sexually abused.

Child pornography. This is a Federal crime, and all States have laws against child pornography. Pornography may be produced by family members, acquaintances of the children, or professionals. It may be for personal use, trading, or sale on either a small or large scale. It can also be used to instruct or entice new victims or to blackmail those in the pictures. Production may be national or international, as well as local, and the sale of pornography is potentially very lucrative. Because of the availability of video equipment and Polaroid cameras, pornography is quite easy to produce and difficult to track.

- Child pornography can involve only one child, sometimes in lewd and lascivious poses or engaging in masturbatory behavior; of children together engaging in sexual activity; or of children and adults in sexual activity.

- It is important to remember that pictures that are not pornographic and are not illegally obscene can be very arousing to a pedophile. For example, an apparently innocent picture of a naked child in the bathtub or even a clothed child in a pose can be used by a pedophile for arousal.

Child prostitution. This may be undertaken by parents, other relatives, acquaintances of the child, or persons who make their living pandering children. Older children, often runaways and/or children who have been previously sexually abused, may prostitute themselves independently.

- Situations in which young children are prostituted are usually intrafamilial, although there are reports of child prostitution constituting one aspect of sexual abuse in some day care situations.22 Adolescent prostitution is more likely to occur in a sex ring (as mentioned above), at the hand of a pimp, in a brothel, or with the child operating independently. Boys are more likely to be independent operators, and girls are more likely to be in involved in situations in which others control their contact with clients.

Ritual abuse. This is a circumstance of child sexual abuse that has only recently been identified, is only partially understood, and is quite controversial. The controversy arises out of problems in proving such cases and the difficulty some professionals have in believing in the existence of ritual abuse.

- As best can be determined, ritual sexual abuse is abuse that occurs in the context of a belief system that, among other tenets, involves sex with children. These belief systems are probably quite variable. Some may be highly articulated, others "half-baked." Some ritual abuse appears to involve a version of satanism that supports sex with children. However, it is often difficult to discern how much of a role ideology plays. That is, the offenders may engage in "ritual" acts because they are sadistic, because they are sexually aroused by them, or because they want to prevent disclosure, not because the acts are supported by an ideology. Because very few of these offenders confess, their motivation is virtually unknown.

- Often sexual abuse plays a secondary role in the victimization in ritual abuse, physical and psychological abuse dominating. The following is a nonexhaustive list of characteristics that may be present in cases of ritual abuse:

costumes and robes: animal, witch's, devil's costumes; ecclesiastical robes (black, red, purple, white);

ceremonies: black masses, burials, weddings, sacrifices;

symbols: 666, inverted crosses, pentagrams, and inverted pentagrams;

artifacts: crosses, athames (daggers), skulls, candles, black draping, representations of Satan;

bodily excretions and fluids: blood, urine, feces, semen;

drugs, medicines, injections, potions;

fire;

chants and songs;

religious sites: churches, graveyards, graves, altars, coffins; and

torture, tying, confinement, murder.

Most allegations of ritual abuse come from young children, reporting this type of abuse in day care, and from adults, who are often psychiatrically very disturbed and describe ritual abuse during their childhoods. Issues of credibility are raised with both groups. Moreover, accounts of ritual abuse are most disturbing, to both those recounting the abuse and those hearing it.

Scope of the Problem of Child Sexual Abuse

Clinicians and researchers working in sexual abuse believe that the problem is underreported. This belief is based on assumptions about sexual taboos and on research on adults sexually abused as children, the overwhelming majority of whom state that they did not report their victimization at the time of its occurrence.  Moreover, it is probably true that situations involving female offenders as well as ones with boy victims are underidentified, in part because of societal perceptions about the gender of offenders and victims.

Estimates of the extent of sexual abuse come from three main sources – research on adults, who recount their experiences of sexual victimization as children; annual summaries of the accumulated reports of sexual abuse filed with child protection agencies; and two federally funded studies of child maltreatment entitled the National Incidence Studies. In addition, anecdotal information is supplied by some convicted/self-acknowledged offenders, who report sexually abusing scores and even hundreds of children before their arrest.

Prevalence of Child Sexual Abuse

Studies of the prevalence of sexual abuse are those involving adults that explore the extent to which persons experience sexual victimization during their childhoods. Findings are somewhat inconsistent for several reasons. First, data are gathered using a variety of methodologies: telephone interviews, face-to-face interviews, and written communications (i.e., questionnaires). Second, a study may focus entirely on sexual abuse, or sexual abuse may be one of many issues covered. Third, some studies are of special populations, such as psychiatric patients, incarcerated sex offenders, and college students, whereas others are surveys of the general population. Finally, the definition of sexual abuse varies from study to study. Dimensions on which definitions may differ are maximum age for a victim, the age difference required between victim and offender, whether or not noncontact acts are included, and whether the act is unwanted.

The factors just mentioned have the following effects on rates of sexual abuse reported. Face-to-face interviews, particularly when the interviewer and interviewee are matched on sex and race, and multiple questions about sexual abuse may result in higher rates of disclosure.  However, it cannot be definitively stated that special populations such as prostitutes, drug addicts, or psychiatric populations have higher rates of sexual victimization than the general population, because some studies of the general population report quite high rates.   Not surprisingly, when the definition is broader (e.g., inclusion of noncontact behaviors and "wanted" sexual acts) the rates go up.

Rates of victimization for females range from 6 to 62 percent,29 with most professionals estimating that between one in three and one in four women are sexually abused in some way during their childhoods. The rates for men are somewhat lower, ranging from 3 to 24 percent, 30 with most professionals believing that 1 in 10 men and perhaps as many as 1 in 6 are sexually abused as children. As noted earlier, many believe that male victimization is more underreported than female, in part because of societal failure to identify the behavior as abusive. However, the boy himself may not define the behavior as sexual victimization but as sexual experience, especially if it involves a woman offender. Moreover, he may be less likely to disclose than a female victim, because he has been socialized not to talk about his problems. This reticence may be increased if the offender is a male, for he must overcome two taboos, having been the object of a sexual encounter with an adult and a male. Finally, he may not be as readily believed as a female victim.

The Incidence of Child Sexual Abuse

Incidence of a problem is defined as the number of reports during a given time frame, yearly in the case of sexual abuse. From 1976 to 1986, data were available on the number of sexual abuse cases reported per year to child protection agencies, as part of data collection on all types of maltreatment. These cases were registered with the National Center on Child Abuse and Neglect, and data were analyzed by the American Humane Association. Over that 10-year period, there was a dramatic increase in the number of reports of sexual abuse and in the proportion of all maltreatment cases represented by sexual abuse. In 1976, the number of sexual abuse cases was 6,000, which represented a rate of 0.86 per 10,000 children in the United States. By 1986, the number of reported cases was 132,000, a rate of 20.89 per 10,000 children. This represents a 22-fold increase. Moreover, whereas in 1976 sexual abuse cases were only 3 percent of all reports, by 1986, they comprised 15 percent of reports.

Striking though these findings may be, their limitations must be appreciated. First, current data are not available. Second, cases included in this data set are limited to those that would warrant a CPS referral, generally cases in which the abuser is a caretaker or in which a caretaker fails to protect a child from sexual abuse. Thus, cases involving an extrafamilial abuser and a protective parent are not included. Third, the data only refer to reported cases. This means those cases that are unknown to professionals and those known but not reported are not included. Moreover, these are reports, not substantiations of sexual abuse. The national average substantiation rate is generally between 40 and 50 percent. Substantiation rates vary from State to State and among locations.

The National Incidence Studies (NIS-1 and NIS-2) provide additional data on the rates of child maltreatment, including sexual abuse. Information for these studies was collected in 1980 and 1986; thus, they do not provide annual incidence rates, as the Child Protection data do. In addition, these studies project a national rate of child maltreatment based on information from 29 counties, rather than using reports from all States. Nevertheless, these studies do allow for some analysis of trends because data were collected at two different time points. Moreover, one of the most important features of the NIS studies is that they gathered information on unreported as well as reported cases.

Differences between the first and second studies indicate there was a more than threefold increase in the number of identified cases of sexual maltreatment.***** An estimated 42,900 cases were identified by professionals in 1980 compared with 133,600 cases in 1986. These figures represent a rate of 7 cases per 10,000 children in 1980 and 21 cases per 10,000 in 1986.  Despite the fact that the 1986 number and rate are quite close to the figures for suspected sexual abuse reported to child protection agencies in 1986, only about 51 percent of cases identified by professionals in the National Incidence Study were reported to child protective services (CPS). Furthermore, the proportion of cases identified but not reported to CPS did not change significantly between 1980 and 1986.

It is clear that available statistics on the prevalence and incidence of sexual abuse do not completely reflect the extent of the problem. However, they do provide a definite indication that the problem of sexual victimization is a significant one that deserves our attention and intervention.

Professional Law and Ethics, LPCC, 18 credits, BBS approved, Online Credit

The Effects of Sexual Abuse on its Victim

Concern about sexual abuse derives from more than merely the fact that it violates taboos and statutes. It comes principally from an appreciation of its effects on victims. In this section, the philosophical issue of why society is concerned about sexual abuse and documented effects will be discussed.

The Impact of Sexual Abuse

Regardless of the underlying causes of the impact of sexual abuse, the problems are very real for victims and their families. A number of attempts have been made to conceptualize the effects of sexual abuse.  In addition, recent efforts to understand the impact of sexual abuse have gone beyond clinical impressions and case studies. They are based upon research findings, specifically controlled research in which sexually abused children are compared to a normal or nonsexually abused clinical population. There are close to 40 such studies to date.

Finkelhor, whose conceptualization of the traumatogenic effects of sexual abuse is the most widely employed, divides sequelae into four general categories, each having varied psychological and behavioral effects.

Traumatic sexualization. Included in the psychological outcomes of traumatic sexualization are aversive feelings about sex, overvaluing sex, and sexual identity problems. Behavioral manifestations of traumatic sexualization constitute a range of hypersexual behaviors as well as avoidance of or negative sexual encounters.

Stigmatization. Common psychological manifestations of stigmatization are what Sgroi calls "damaged goods syndrome" and feelings of guilt and responsibility for the abuse or the consequences of disclosure. These feelings are likely to be reflected in self-destructive behaviors such as substance abuse, risk-taking acts, self-mutilation, suicidal gestures and acts, and provocative behavior designed to elicit punishment.

Betrayal. Perhaps the most fundamental damage from sexual abuse is its undermining of trust in those people who are supposed to be protectors and nurturers. Other psychological impacts of betrayal include anger and borderline functioning. Behavior that reflects this trauma includes avoidance of investment in others, manipulating others, re-enacting the trauma through subsequent involvement in exploitive and damaging relationships, and engaging in angry and acting-out behaviors.

Powerlessness. The psychological impact of the trauma of powerlessness includes both a perception of vulnerability and victimization and a desire to control or prevail, often by identification with the aggressor. As with the trauma of betrayal, behavioral manifestations may involve aggression and exploitation of others. On the other hand, the vulnerability effect of powerlessness may be avoidant responses, such as dissociation and running away; behavioral manifestations of anxiety, including phobias, sleep problems, elimination problems, and eating problems; and revictimization.

Our understanding of the impact of sexual abuse is frustrated by the wide variety of possible effects and the way research is conducted. Researchers do not necessarily choose to study the same effects, nor do they use the same methodology and instruments. Consequently, a particular symptom, such as substance abuse, may not be studied or may be examined using different techniques. Furthermore, although most studies find significant differences between sexually abused and nonabused children, the percentages of sexually abused children with a given symptom vary from study to study, and there is no symptom universally found in every victim. In addition, often lower proportions of sexually abused children exhibit a particular symptom than do nonabused clinical comparison groups. Finally, although some victims suffer pervasive and debilitating effects, others are found to be asymptomatic.

In addition, a variety of factors influence how sexual maltreatment impacts on an individual. These factors include the age of the victim (both at the time of the abuse and the time of assessment), the sex of the victim, the sex of the offender, the extent of the sexual abuse, the relationship between offender and victim, the reaction of others to knowledge of the sexual abuse, other life experiences, and the length of time between the abuse and information gathering. For example, the findings for child victims and adult survivors are somewhat different.

It is important for professionals to appreciate both the incomplete state of knowledge about the consequences of sexual abuse and the variability in effects. Such information can be helpful in recognizing the wide variance in symptoms of sexual abuse and can prevent excessive optimism or pessimism in predicting its impact.

When children are victims, sexual comments are usually made in person. However obscene remarks may be made on the telephone or in notes and letters.

Activities in parenthesis are not illustrative of the sexual act being defined.

Sexual contact can be either above or beneath clothing.

The offender may inflict oral sex upon the child or require the child to perform it on him/her or both.

These statistics from the revised second National Incidence Study reflect the revised definition of child abuse and neglect, which includes the combined total children who were demonstrably harmed and threatened with harm.

Indicators Of Child Sexual Abuse

Sexual abuse may result in physical or behavioral manifestations. It is important that professionals and the public know what these are because they signal possible sexual abuse. However, very few manifestations (e.g., gonorrhea of the throat in a young child) are conclusive of sexual abuse. Most manifestations require careful investigation or assessment.

Unfortunately, early efforts at cataloging indicators of sexual abuse were problematic. They included extremely rare findings, such as blood in a child's underpants and signs that could be indicative of many problems or no problem at all, such as "comes early to school and leaves late." Recent efforts to designate signs of sexual abuse are more helpful.

They differentiate between physical indicators and psychosocial indicators. Although physical indicators may be noted by many people, a definitive determination is generally made by a medical professional. Similarly, anyone may observe psychosocial indicators; however, often but not always, a mental health professional is responsible for forming an opinion that the symptoms are indicative of sexual abuse.

A differentiation is made between higher and lower probability indicators. That is, some indicators are diagnostic of sexual abuse, whereas others may be consistent with or suggestive of sexual abuse but could indicate other circumstances or conditions as well.

In this chapter, higher probability findings and lower probability physical indicators are discussed first. A comparable discussion of psychosocial indicators will follow. It should not be surprising that the indicators specified in this chapter are similar to the effects described in the previous chapter since indicators are to a large extent the effects of sexual abuse before disclosure. Therefore, these indicators should become a focus of treatment and not simply used to support or rule out an allegation of sexual abuse.

Medical Indicators of Child Sexual Abuse

Significant progress has been made in the medical field in the determination of sexual abuse. Medical professionals are no longer limited to the presence or absence of a hymen as the indicator of possible sexual abuse. A variety of types of genital findings have been documented. In addition, notable progress has been made in identifying anal findings. Moreover, physicians are able to describe the effects of different kinds of sexual activity, and subtle findings can be documented using magnification (a colposcope or otoscope).

However, this progress is not without its controversies. Knowledgeable and conscientious physicians may differ regarding conclusions about certain physical findings. This difference of opinion is primarily due to the fact that data collection regarding the physical signs of sexual abuse has preceded careful documentation of characteristics of genitalia and anal anatomy of children who have not been sexually abused and of variations among normal children. These legitimate differences of opinion have been augmented by challenges to the medical documentation from defense attorneys, their expert witnesses, and alleged offenders.

It is also important to appreciate that for the majority of sexually abused children there are no physical findings. These findings, particularly vaginal ones, are most useful with prepubertal victims. As children become older, the possibility of consensual sexual activity needs to be considered. Further, changes that occur with puberty render insignificant some symptoms that have great significance in young children.

Two High-Probability Physical Indicators

Despite the progress noted above, the highest probability indicators are ones identified over 10 years ago. They are:

pregnancy in a child and

venereal disease in a child.

The reason these findings are high probability is because there is little dispute over the fact that they require sexual activity.

Psychosocial Indicators of Child Sexual Abuse

Comparable efforts to identify the psychosocial indicators of child sexual abuse have been made by mental health professionals. In 1985, 100 national experts in sexual abuse met to develop criteria for the "Sexually Abused Child Disorder," in the hope that it would be included in the Diagnostic and Statistical Manual Three-Revised (DSMIII-R). It was not, but the effort remains important. The criteria of the "Sexually Abused Child Disorder" differentiate three levels of certainty (high, medium, and low) and vary by developmental stage. These criteria include both sexual and nonsexual indicators.

The work of Friedrich focuses on sexualized behavior, indicators unlikely to be found in other traumatized or normal populations. His Child Sexual Behavior Inventory has been field-tested on 260 children between 2 to 12 years of age, who were alleged to have been sexually abused and 880 children not alleged to have been sexually abused. It was found to reliably differentiate the two types of children. However, a substantial proportion of children in Friedrich's research, determined sexually abused, are not reported to engage in sexualized behavior. Moreover, children who learn about sex from nonabusive experiences may engage in sexualized behavior.

Two-category typology of behavioral indicators:

sexual indicators, generally being higher probability indicators; and

nonsexual behavioral indicators, usually considered lower probability.

Sexual Indicators

Sexual indicators vary somewhat depending on the child's age. The discussion of these indicators will be divided into those likely to be found in younger sexually abused children (aged 10 or younger) and those likely to be found in older sexually abused children (older than age 10). However, this distinction is somewhat arbitrary, and within these two groups there are children at very different developmental stages. Finally, indicators that are important for children of all ages are noted.

Of these three indicators, the last is most compelling. One study found that 90 percent of female adolescent prostitutes were sexually abused. Although there has not been comparable research on male adolescent prostitutes, there are clinical observations that they become involved in prostitution because of sexual abuse.

A High-Probability Sexual Indicator for All Children

Finally, when children report to anyone they are being or have been sexually abused, there is a high probability they are telling the truth. Only in rare circumstances do children have any interest in making false accusations. False allegations by children represent between 1 and 5 percent of reports.  Therefore, unless there is substantial evidence that the statement is false, it should be interpreted as a good indication that the child has, in fact, been sexually abused.

Nonsexual Behavioral Indicators of Possible Sexual Abuse

The reason that nonsexual behavioral symptoms are lower probability indicators of sexual abuse is because they can also be indicators of other types of trauma. For example, these symptoms can be a consequence of physical maltreatment, marital discord, emotional maltreatment, or familial substance abuse. Nonsexual behavioral indicators can arise because of the birth of a sibling, the death of a loved one, or parental loss of employment. Moreover, natural disasters such as floods or earthquakes can result in such symptomatic behavior.

As with sexual behaviors, it is useful to divide symptoms into those more characteristic of younger children and those found primarily in older children. However, there are also some symptoms found in both age groups.

Nonsexual Behavioral Indicators in Young Children

The following symptoms may be found in younger children:

sleep disturbances;

enuresis;

encopresis;

other regressive behavior (e.g., needing to take transitional object to school);

self-destructive or risk-taking behavior;

impulsivity, distractibility, difficulty concentrating (without a history of nonabusive etiology);

refusal to be left alone;

fear of the alleged offender;

fear of people of a specific type or gender;

firesetting (more characteristic of boy victims);

cruelty to animals (more characteristic of boy victims); and

role reversal in the family or pseudomaturity.

Nonsexual Behavioral Indicators in Older Children

eating disturbances (bulimia and anorexia);

running away;

substance abuse;

self-destructive behavior, e.g.,

- suicidal gestures, attempts, and successes and

- self-mutilation;

incorrigibility

criminal activity; and

depression and social withdrawal.

Nonsexual Behavioral Indicators in All Children

Three types of problems may be found in children of all ages:

problems relating to peers,

school difficulties, and

sudden noticeable changes in behavior.

Summary

Sexually abused children may manifest a range of symptoms, which reflect the specifics of their abuse and how they are coping with it.

Suspicion is heightened when the child presents with several indicators, particularly when there is a combination of sexual and nonsexual indicators. For example, a common configuration in female adolescent victims is promiscuity, substance abuse, and suicidal behavior. Similarly, the presence of both behavioral and physical symptoms increases concern. However, the absence of a history of such indicators does not signal the absence of sexual abuse.

An Emotional Reaction Consistent With the Abuse Being Described

Children may have a variety of emotional reactions to sexual abuse, depending on the characteristics of the child and the abuse. The following are common emotional reactions and associated child or abuse characteristics:

reluctance to disclose: characteristic of most children except possibly for very disturbed or very young children;

embarrassment: a rather mild response often found in disturbed and young children;

anger: more characteristic of boy victims (but not always evident);

anxiety: noted frequently in adolescent girls;

disgust: a typical reaction to oral sex;

depression: often present in victims who care for the abuser or feel they are responsible;

fear: typical of cases in which the child has been injured or threatened during the course of the victimization; and

sexual arousal: another response sometimes found in disturbed and young children.

Situations In Which the Clinical Criteria May Not Be Found

The small number of studies that examine clinical criteria in proven cases (which are usually substantiated with offender confession) find that a substantial number of children's accounts lack the expected criteria.   For example, in Faller's study, only 68 percent of accounts contained all three criteria. Young age of the victim and being a boy were associated with not satisfying the expected criteria. Younger children were less likely to provide contextual detail and to evidence an emotional response consistent with the account. Similarly, boy victims were less likely to describe the abuse and to exhibit affect.

There can be other good reasons why children fail to manifest the expected clinical criteria. Affect may be absent because the child dissociates, the child has told about the abuse many times, or the trauma has already been addressed in treatment. In addition, emotionally disturbed children, who have suffered many other traumas, may not become upset about sexual abuse because, compared to their other life experiences, it is not as bad. Detail may be absent because the abuse has been repressed or because it happened long ago and has been forgotten.

It is legitimate to substantiate a case with only a description of the sexual abuse.

Moreover, it is important for interviewers to appreciate that a child's inability to describe sexual abuse does not mean it did not happen. It means that sexual abuse cannot be confirmed, but that is different from it not having happened. Research on adult survivors indicates that many victims never tell.

Criteria for Confirming an Allegation From Other Sources

There are other sources of information that can support a finding of child sexual abuse.

Forming a Conclusion about Sexual Abuse

In order to arrive at a conclusion about the likelihood of sexual abuse, the professional weighs the clinical findings from the child's interview as well as confirming evidence from other sources. Rarely is the professional 100-percent sure that the abuse occurred as described, with absolutely no room whatsoever for doubt. On the other hand, it is extremely difficult to determine without any doubt that the sexual abuse did not occur. In this regard, Jones has developed a useful concept, a continuum of certainty. Cases fall somewhere along a continuum from very likely to very unlikely.

Treatment of Child Sexual Abuse

Treatment of child sexual abuse is a complex process. Orchestration of treatment in the child's best interest is a genuine challenge. Moreover, it is often difficult to know how to proceed because there are so few outcome studies of treatment effectiveness.

In this chapter, case management issues are discussed; a model for understanding why adults sexually abuse children is proposed; treatment modalities are described; and treatment issues are examined. The focus of the discussion is primarily on intrafamilial abuse.

Case Management Considerations

One of the reasons sexual abuse treatment is such a challenge is that it occurs in a larger context of intervention. Therefore, coordination is of utmost importance and ideally is provided by a multidisciplinary team. Treatment issues are then handled by the team as part of overall intervention.

The team usually consists of the various professionals directly involved in the case and their consultants and, as noted earlier, begins its activity at the time of case investigation. The composition and functioning of teams vary by locality, and the level of participation of team members often varies depending on the stage of the intervention. In an intrafamilial case, the members active at the treatment stage will ordinarily include the Child Protective Services (CPS) and/or foster care workers, the therapists treating various family members, professionals providing other services (e.g., homemaker, parenting guidance), a representative from the prosecutor's office, and relevant consultants. The frequency of meetings will depend on the needs of the case and how the team is structured.

The following issues are the most important of those the team should consider at this stage of intervention: separation of the child and/or the offender from the family, the role of the juvenile court, the role of the criminal court, the treatment plan for the family, visitation, and family reunification.

Case management decisions are often provisional; that is, they are based on what information about the family members and their functioning is available when decisions are made. Treatment is often a diagnostic process. The positive or negative responses of family members to treatment determine future case decisions. Outcomes of court proceedings can impinge upon and alter case management decisions and treatment.

The team meets periodically to assess progress and make future plans. Because of the complexity of case management decisions and the fact that a decision in one realm can have an impact on other aspects of the case, especially on treatment progress and outcome, multidisciplinary decision making is crucial. In the absence of a multidisciplinary team, such decisions should be made in consultation with other relevant professionals.

Before the implementation of the treatment plan, the following case management decisions should be addressed:

Should the child remain a part of the family?

Do the courts have a role in the case?

Is there a question of visitation?

Guidelines for making these decisions will be discussed.

Should the Child Live With the Family?

The preferred outcome in cases of sexual abuse, as in other types of child maltreatment, is that after intervention the family will be intact.

Generally at the time of disclosure of the sexual abuse, the offender is not separated from the family. The victim may be removed if the mother is unable or unwilling to protect and support the victim or if the victim wishes to be removed. Many professionals advocate the removal of the offender even in circumstances in which the victim is removed.

After these initial decisions, a longer term plan must be made about whether the child should be a part of the family and, if so, whether or not that family should include both parents. This plan will be based on an assessment of each parent.

Aspects of the functioning of both parents outlined previously in the discussion of risk assessment should be examined in deciding about the child's future living situation. These include the following factors for the offender:

the extent of the offender's sexually abusive behavior;

the degree to which the offender takes responsibility for the sexual abuse;

the number and severity of the offender's other problems, for example;

- substance abuse,

- violent behavior,

- mental illness, and

- mental retardation.

Regarding the nonoffending parent, the following factors should be assessed:

reaction to knowledge about the sexual abuse,

quality of relationship with the victim,

level of dependency on the offender, and

the number and severity of other problems.

Other possible problems are similar for the nonoffending parent and the offender.

Although these factors are universally useful to consider, in specific cases other factors may be important or even overriding.

Offenders who have engaged in a small number of sexual acts, have taken responsibility for their behavior, and have few other problems are judged to have positive findings in these key areas and are usually treatable. Negative findings in these three areas mean that the prognosis for positive treatment outcome is quite guarded. When mothers are protective of victims when they discover the sexual abuse, have good relationships with victims, are not unduly dependent on the offender, and do not have other significant problems, their treatment prognosis is positive. Again negative findings mean that the treatment prognosis is poor.

These proposed variations in parental functioning suggest four possible combinations: both parents may have positive findings, indicating a good treatment prognosis (case type 1); the nonoffending parent may have positive findings, and the offender negative ones (case type 2); the offender may have positive findings and the nonoffending parent negative ones (case type 3); and finally, both parents may have negative findings (case type 4).

Different combinations argue for different intervention plans and long-term goals.

This matrix suggests how professionals hope to be able to make decisions. However, the parents are usually more complex than the matrix suggests. Probably in the majority of cases, the parents present a mixed picture, rather than appearing to have either a very good or bad prognosis. Moreover, as already suggested, there may be gaps in information about the family when treatment planning is undertaken and parental functioning is not static. Progress or lack of progress in treatment may result in reconsideration of the initial placement and treatment plan. Because of these complexities, most sexually abusive families should and do receive a trial of treatment. This generally entails individual treatment for all parties and the appropriate use of groups. Initial case decisions are periodically evaluated based on treatment outcome and reassessed accordingly. In addition to being useful in placement and treatment planning decisions, the matrix may offer guidance in terms of court intervention. Most professionals would agree that the Juvenile Court should be involved in all four types of cases, perhaps with the exception of a small number of those falling into case type 1. These might be cases in which the offender confesses to his wife or family, the family seeks treatment, and the abuse is then reported to CPS by their therapist.

There is also increasing consensus that criminal charges should be filed, even though the offender appears treatable. Some professionals feel that even treatable offenders should do some jail time, while others see the criminal process as a means of ensuring that the treatable offender will take responsibility for his behavior and/or enter into treatment. However, criminal prosecution is especially important in cases categorized as case types 2 and 4 to offer some protection to both the family and society from the offender.

In addition, factors related to the child should also be considered. These include the child's wishes. To be more precise, if the child does not wish for a reunified family, that desire should be given a great deal of weight. A child's wish for the offender not to leave the home, however, should generally not be granted. In addition, some sexually abused children are so damaged, because of the abuse and other conditions, that they require specialized care outside the home.

The same assumption is made here as in earlier chapters, that there is a single offender, usually a father figure, and a nonoffending parent, usually a mother figure. If that is not the case, and there is more than one offender, especially within the family, prognosis is much poorer. Even more problematic are cases in which both parents are offenders; in such instances, family reunification is extremely unlikely to be in the child's best interest.

The Role of the Courts

Two or three courts are potentially involved in a sexual abuse case—the Juvenile Court, responsible for child protection; the Criminal Court, responsible for offender prosecution; and the Divorce Court, if either parent decides to pursue divorce.

Court involvement can be either a help or a hindrance to therapeutic goals. The challenge is to integrate court involvement into the overall intervention. Early decisions about the role of the court can facilitate its role in the therapeutic process.

The court can be helpful in compelling family members, especially offenders, into treatment; in protecting victims and families from offenders; and in effecting alternative living situations for offenders (or victims, if necessary).

Court involvement can be problematic because legal safeguards for the defendant may prevent certain evidence from being admitted; because the adversarial process may interfere with the therapeutic process, including disruption of offender treatment by incarceration; and because it allows procedural delays that may prevent timely intervention.

Finally, testifying in court may have a positive or negative effect on the child. The effect, in part, depends on its outcome. That is, if the case is won, the impact of court testimony is more likely to be positive.

Victims may gain a sense of mastery over the sexual abuse from testifying. If they are believed, they may derive a degree of vindication when they see that the offender has to pay for what he did. Completing the court process may also engender a sense of closure for the victim.

On the other hand, victims may experience court testimony as additional trauma. Some are required to confront their abusers, endure lengthy cross-examination, and reveal shameful experiences to an audience. If possible, the courtroom should be cleared during the child's appearance. Testifying in court, which rarely entails a single appearance, may enhance the child's perception of him/herself as a victim, rather than a normal child. Moreover, because the court process tends to be protracted, it may delay resolution of the victim's treatment issues. For more detailed information on the role of the court in child abuse and neglect cases, the reader is referred to another manual in this series entitled Working With the Courts in Child Protection.

Elder and Dependent Adult Abuse Reporting

Mandated Reports: A mandated reporter must report a known or suspected instance of elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she (1) has observed or has knowledge of an incident that reasonably appears to be physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; (2) is told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, neglect, financial abuse, abandonment, abduction, or isolation; or (3) reasonably suspects abuse.

Optional Reports: Mandated reporters may report a known or suspected instance of elder or dependent adult abuse when they have knowledge of or reasonably suspect that a form of elder or dependent adult abuse for which a report is not mandated has been inflicted upon an elder or dependent adult or that the elder or dependent adult's emotional well-being is threatened in any other way.

Definition of Elder: An “elder” is a person who is age 65 years or older.

Definition of Dependent Adult: a dependent adult is a person, between the ages of 18 years and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.

What Must Be Reported: Under the current law, mandated reporters, including therapists, are now required to report the following:

Instances of known and reasonably suspected physical abuse of an elder or dependent adult. Instances of known and reasonably suspected neglect, financial abuse, abandonment, abduction, and/or isolation of an elder or dependent adult, and any other treatment that results in physical harm, pain, or mental suffering.

As a mandated reporter, a psychotherapist is required to make a report of known or suspected elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she has observed or has knowledge of an incident that reasonably appears to be abuse, is told by an elder or dependent adult that he or she has experienced behavior constituting abuse; and/or reasonably suspects abuse.

Abuse of an elder or dependent adult includes the following categories: Physical abuse, neglect, financial abuse, abandonment, abduction, isolation, and any other form of treatment that results in physical harm, pain, or mental suffering. Mental suffering may consist of fear, confusion, severe depression, agitation, or other serious emotional distress caused by threats, harassment, or other forms of intimidating behavior.

Physical Abuse includes assault, assault with a deadly weapon or with force likely to cause great bodily injury; battery; sexual assault, unreasonable physical restraint; prolonged or continual deprivation of water or food; and the use of physical or chemical restraint for punishment, for a period of time beyond that for which the medication was ordered through instructions from a licensed physician or surgeon caring for the elder or dependent adult, and/or for any purpose not authorized by the elder or dependent adult's physician or surgeon.

Neglect refers to the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a similar position would provide. Neglect also includes self-neglect, the negligent failure of an elder or dependent adult to provide a reasonable degree of care to himself or herself.

Specific examples of neglect include the failure to assist in personal hygiene or in the provision of food, clothing, or shelte,; the failure to provide medical care for physical or mental health needs and the failure to prevent malnutrition or dehydration.

Financial Abuse means concealing, taking, or appropriating an elder or dependent adult's property or money to any wrongful use or with the intent to defraud.

Abandonment, desertion or willful abandonment by a person having the care or custody of the elder or dependent adult person under circumstances in which a reasonable person would continue to provide care and custody.

Isolation, deliberately preventing an elder or dependent adult from receiving his or her mail or phone calls. False imprisonment; and/or the physical restraint of an elder or dependent adult for the purpose of preventing him or her from meeting with his or her visitors.

Reporting Elder Abuse

Reports of known or reasonably suspected elder or dependent adult abuse must be filed by telephone immediately or as soon as practically possible. A written report must then be sent within two working days.

Reporters should generally make reports to their county's adult protective agency or a local law enforcement agency. There are two exceptions to this, however: First, if the abuse occurred in a state mental health hospital or state developmental center, the report should be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services or to the local law enforcement agency. Second, if the abuse occurred in a long-term care facility (other than a state mental hospital or a state developmental center), reports should be made to the local ombudsman or to the local law enforcement agency.

Any person legally required to report elder or dependent adult abuse who knowingly fails to report can be found guilty of a misdemeanor that is punishable by not more than six months in the county jail or a fine not to exceed $1,000 or both imprisonment and a fine. A therapist who fails to make a timely mandated elder or dependent adult abuse report may also face disciplinary action by their governing board and civil action for damages. The law provides that no person required to make a report of elder or dependent adult abuse shall be criminally or civilly liable for such a report, as long as it cannot be proven that the report was made falsely.

Psychotherapist-Patient Privilege

Holder of Privilege

Holder of the privilege means: (a) The patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator. (c) The personal representative of the patient if the patient is dead. Except as otherwise provided in the information below, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

Patient means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.

 

Confidential communication between patient and psychotherapist means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

 

Holder of the privilege" means:

   (a) The patient when he has no guardian or conservator.

   (b) A guardian or conservator of the patient when the patient has a guardian or conservator.

   (c) The personal representative of the patient if the patient is dead.

 

 The patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:

   (a) The holder of the privilege.

   (b) A person who is authorized to claim the privilege by the holder of the privilege.

   (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

  

The relationship of a psychotherapist and patient shall exist between a psychological corporation, a marriage and family therapy corporation, or a licensed clinical social workers corporation, and the patient to whom it renders professional services, as well as between those patients and psychotherapists employed by those corporations to render services to those patients. The word "persons" includes partnerships, corporations, limited liability companies, associations and other groups and entities.

 

There is no privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by:

   (a) The patient;

   (b) Any party claiming through or under the patient;

   (c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

   (d) The plaintiff in an action brought  for damages for the injury or death of the patient.

 

There is no privilege if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition.

 

There is no privilege if the psychotherapist is appointed by the Board of Prison Terms to examine a patient.

  

There is no privilege if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

 

 

There is no privilege as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

 

There is no privilege as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.

  

There is no privilege as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

 

There is no privilege as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

 

There is no privilege in a proceeding initiated at the request of the defendant in a criminal action to determine his sanity.

 

There is no privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.

  

There is no privilege in a proceeding brought by or on behalf of the patient to establish his competence.

  

There is no privilege as to information that the psychotherapist or the patient is required to report to a public employee or as to information required to be recorded in a public office, if such report or record is open to public inspection.

 

There is no privilege if all of the following circumstances exist:

   (a) The patient is a child under the age of 16.

   (b) The psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.

Recordkeeping

Record Keeping Requirements for Licensed Marriage and Family Therapists and Licensed Clinical Social Workers: the failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is considered unprofessional conduct.

It is your responsibility to maintain the confidentiality of the records. Patient records should be kept in locked containers except when in use. They should be shredded when they are discarded to avoid the potential of having the notes fall into the hands of others. Office staff and others who handle the files should be made aware of the importance of confidentiality. Handle these records as if they were notes made by your own therapist about you. Your patient feels the same need to have the notes be private. Office staff, filing clerks, billing agencies, and others do not have the same burden of confidentiality as does the clinician. However, it is the responsibility of the therapist to inform the staff about the importance of confidentiality and to take reasonable action to be certain that staff does not violate the patient's confidentiality. While this is a solid part of HIPAA, it seems to be regularly violated by clerks and other office staff. Often my patients who work for or with counselors in the community or in government report cases which are confidential which they have read with avid interest. Try to keep this sort of clerk off your staff.

Professional Law and Ethics, LPCC, 18 credits, BBS approved, Online Credit

 

Standards For Client Records

 

 

The documentation standards are described below under key topics related to client care. All standards should be addressed in the client record; however, there is no requirement that the record have a specific document or section addressing these topics.

 

A. Assessments

 

1. The following areas should be included as appropriate as a part of a comprehensive client record.

 

• Relevant physical health conditions reported by the client should be prominently identified and updated as appropriate.

• Presenting problems and relevant conditions affecting the client’s physical health and mental health status should be documented, for example: living situation, daily activities, and social support.

• Documentation should describe client strengths in achieving client plan goals.

• Special status situations that present a risk to client or others should be prominently documented and updated as appropriate.

• Documentation should include medications that have been prescribed by mental health plan physicians, dosages of each medication, dates of initial prescriptions and refills, and documentation of informed consent for medications.

• Client self report of allergies and adverse reactions to medications, or lack of known allergies/sensitivities should be clearly documented.

• A mental health history should be documented, including: previous treatment dates, providers, therapeutic interventions and responses, sources of clinical data, relevant family information and relevant results of relevant lab tests and consultation reports.

• For children and adolescents, pre-natal and perinatal events and complete developmental history should be documented.

• Documentation should include past and present use of tobacco, alcohol, and caffeine, as well as illicit, prescribed and over-the counter drugs.

• A relevant mental status examination should be documented.

• A five axis diagnosis from the most current DSM should be documented, consistent with the presenting problems, history, mental status evaluation and /or other assessment data.

 

B. Client Plans

 

1. Client Plans should:

• have specific observable and/or specific quantifiable goals

• identify the proposed type(s) of intervention

• have a proposed duration of intervention(s)

• be signed (or electronic equivalent) by :

• the person providing the service(s), or

• a person representing a team or program providing services

• when the client plan is used to establish that services are provided under the direction of an approved category of staff

• a physician

• a licensed/”waivered” psychologist

• a licensed/registered/waivered social worker

• a licensed/registered/waivered Marriage, Family and Child Counselor or

 

• In addition:

 

• client plans should be consistent with the diagnoses, and the focus of intervention should be consistent with the client plan goals, and there should be documentation of the client’s participation in and agreement with the plan. Examples of documentation include, but are not limited to, reference to the client’s participation and agreement in the body of the plan, client signature on the plan, or a description of the client’s participation and agreement in progress notes.

• client signature on the plan can be used as the means by which it documents the participation of the client

• when the client is a long term client, and

• the client is receiving more than one type of service

• when the client’s signature is required on the client plan and the client refuses or is unavailable for signature, the client plan should include a written explanation of the refusal or unavailability.

• the clinician should give a copy of the client plan to the client on request.

 

2. Timeliness/Frequency of Client Plan:

• Should be updated at least annually.

• The clinician should establish standards for timeliness and frequency for the individual elements of the client plan described in item 1.

 

C. Progress Notes

 

1. Items that must be contained in the client record related to the client’s progress in treatment include:

• The client record should provide timely documentation of relevant aspects of client care

• Clinicians should use client records to document client encounters, including relevant clinical decisions and interventions

 

• All entries in the client record should include the signature of the person providing the service (or electronic equivalent); the person’s professional degree and licensure

 

• All entries should include the date services were provided

• The record should be legible

• The client record should document referrals to community resources and other agencies, when appropriate

• The client record should document follow-up care, or as appropriate, a discharge summary

 

Patient Access to Records

The holder of the privilege also has the right to read all information in his or her file with the exception of your personal notes which belong solely to you. Some therapists find this requires them to keep separate files so their personal notes do not become part of the patient's legal record. Your patient can read all notes which have their identifying information, diagnosis, treatment plan, prognosis, and other information including billing and information from other sources which you have included in the file such as notes from other physicians and hospitals. Any spare notes in the patient's file also have information which must be passed to the patient. All information in HIPAA notes are the patient's property and must be released. The file is the property of the clinician so copies must be made if the patient requests a copy of their file.

Professional Law and Ethics BBS APA LPCC MFT Interns

 

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