Law & Medicine

Mandatory reporting laws


 

Elder abuse

Elder abuse is broadly construed to include physical, sexual, and psychological abuse, as well as financial exploitation and caregiver neglect.3 It is a serious problem in the United States, estimated in 2008 to affect 1 in 10 elders. The figure is likely an underestimate, because many elderly victims are afraid or unwilling to lodge a complaint against the abuser whom they love and may depend upon.4

The law, which protects the “elderly” (e.g., those aged 62 years or older in Hawaii), may also be extended to other younger vulnerable adults, who because of an impairment, are unable to 1) communicate or make responsible decisions to manage one’s own care or resources, 2) carry out or arrange for essential activities of daily living, or 3) protect one’s self from abuse.5

The law mandates reporting where there is reason to believe abuse has occurred or the vulnerable adult is in danger of abuse if immediate action is not taken. Reporting statutes for elder abuse vary somewhat on the identity of mandated reporters (health care providers are always included), the victim’s mental capacity, dwelling place (home or in an assisted-living facility), and type of purported activity that warrants reporting.

Domestic violence

As defined by the National Coalition Against Domestic Violence, “Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. ... The frequency and severity of domestic violence can vary dramatically; however, the one constant component of domestic violence is one partner’s consistent efforts to maintain power and control over the other.”6 Domestic violence is said to have reached epidemic proportions, with one in four women experiencing it at some point in her life.

Virtually all states mandate the reporting of domestic violence by health care providers if there is a reasonable suspicion that observed patient injuries are the result of physical abuse.7 California, for example, requires the provider to call local law enforcement as soon as possible or to send in a written report within 48 hours.

There may be exceptions to required reporting, as when an adult victim withholds consent but accepts victim referral services. State laws encourage but do not always require that the health care provider inform the patient about the report, but federal law dictates otherwise unless this puts the patient at risk. Hawaii’s domestic violence laws were originally enacted to deter spousal abuse, but they now also protect other household members.8

Any individual who assumes a duty or responsibility pursuant to all of these reporting laws is immunized from criminal or civil liability. On the other hand, a mandated reporter who knowingly fails to report an incident or who willfully prevents another person from reporting such an incident commits a criminal offence.

In the case of a physician, there is the added risk of a malpractice lawsuit based on “violation of statute” (breach of a legal duty), should another injury occur down the road that was arguably preventable by his or her failure to report.

Experts generally believe that mandatory reporting laws are important in identifying child maltreatment. However, it has been asserted that despite a 5-decade history of mandatory reporting, no clear endpoints attest to the efficacy of this approach, and it is argued that no data exist to demonstrate that incremental increases in reporting have contributed to child safety.

Particularly challenging are attempts at impact comparisons between states with different policies. A number of countries, including the United Kingdom, do not have mandatory reporting laws and regulate reporting by professional societies.9

In addition, some critics of mandatory reporting raise concerns surrounding law enforcement showing up at the victim’s house to question the family about abuse, or to make an arrest or issue warnings. They posit that when the behavior of an abuser is under scrutiny, this can paradoxically create a potentially more dangerous environment for the patient-victim, whom the perpetrator now considers to have betrayed his or her trust. Others bemoan that revealing patient confidences violates the physician’s ethical code.

However, the intolerable incidence of violence against the vulnerable has properly made mandatory reporting the law of the land. Although the criminal penalty is currently light for failure to report, there is a move toward increasing its severity. Hawaii, for example, recently introduced Senate Bill 2477 that makes nonreporting by those required to do so a Class C felony punishable by up to 5 years in prison. The offense currently is a petty misdemeanor punishable by up to 30 days in jail.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.

References

1. Child Welfare Information Gateway (2016). Mandatory reporters of child abuse and neglect. Washington, D.C.: U.S. Department of Health and Human Services, Children’s Bureau. Available at www.childwelfare.gov; email: info@childwelfare.gov; phone: 800-394-3366.

2. Available at www.childwelfare.gov/topics/can.

3. Available at www.justice.gov/elderjustice/elder-justice-statutes-0.

4. Available at www.cdc.gov/violenceprevention/elderabuse/index.html.

5. Hawaii Revised Statutes, Sec. 346-222, 346-224, 346-250, 412:3-114.5.

6. Available at ncadv.org.

7. Ann Emerg Med. 2002 Jan;39(1):56-60.

8. Hawaii Revised Statutes, Sec. 709-906.

9. Pediatrics. 2017 Apr;139(4). pii: e20163511.

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