June 6, 2002 |
2002-R-0528 | |
MANDATED REPORTER LAW | ||
By: Sandra Norman-Eady, Chief Attorney Susan Price-Livingston, Associate Attorney | ||
You asked for a (1) brief summary and copy of any instructions the Department of Children and Families (DCF) provides mandated reporters, (2) copy of a letter the chief state's attorney recently sent to mandated reporters, and (3) summary of Connecticut cases that discuss the interplay between the mandated reporter laws and laws on confidential communication.
SUMMARY
By law, 29 named professionals (this number increases to 38 on July 1, 2002, the effective date of PA 02-138) and paid childcare providers working in licensed facilities are required to report suspected abuse, neglect, and at-risk situations to DCF. DCF offers training sessions to these mandated reporters on such matters as recognizing abuse and neglect, what must be reported, how to report it, anonymity, and immunity and penalties. The agency attempts to tailor the training sessions and handouts to the specific needs of the mandated professionals. Last year the 200+ employees who serve as trainers trained over 9,000 mandated reporters.
Chief State's Attorney John Bailey and DCF Commissioner Kristine Ragaglia co-signed a letter on April 11, 2002 reminding members of the clergy of their duty to report suspected child abuse and neglect, providing them with DCF's child abuse hotline number, and offering them free mandated reporter training through DCF's Training Academy. We have attached a copy of the letter for your information.
We have not found any Connecticut cases that specify the controlling statutes when a conflict arises between the mandated reporter laws and laws on confidential communications. The reason for this is probably because the professionals whose communications are confidential have not reported abuse. However if such a case is filed, courts must apply the rules of statutory construction and attempt to harmoniously construe the conflicting statutes. Where this is not possible, the more specific statute controls (McKinley v. Musshorn, 185 Conn. 616). Between the mandated reporter statute and the statute specifying privileged communications with members of the clergy, the former appears to be more specific. This is less apparent in other instances where this conflict may arise.
Nine of the professionals required to report child abuse or neglect have laws protecting all or certain communications from disclosure. Of these nine, five (psychologists, physicians, marital and family therapists, social workers, and professional counselors) have laws exempting from the privilege communications regarding child abuse or communications that some other law mandates they report. The law regarding three of the remaining four (clergy and battered women's or sexual assault counselors) does not exempt these communications even though the privileged communication could include discussions of child abuse. The ninth mandated professionals whose communications are privileged are schoolteachers, administrators, and counselors. However, their privilege is so limited that discussions of child abuse probably are not covered; thus, they are obligated under the mandated reporter statute to report suspected child abuse.
DCF'S MANDATED REPORTER TRAINING AND INSTRUCTIONS
DCF offers training to all mandated reporters who ask for it. The professionals required to make the reports choose the date and time they are available for training. DCF trainers then attempt to put together a training package that meets the professionals' needs.
In addition to providing them with summaries of the law on what must be reported, how to report it, anonymity, immunity, and penalties, DCF trains them to recognize child abuse and neglect. DCF has prepared a chart of the key physical and behavioral indicators of neglect (e. g. , a child is constantly hungry or begs for food) and physical (e. g. , a child has unexplained injuries), sexual (e. g. , a caretaker is extremely protective or jealous of a child), and emotional (e. g. , a caretaker treats siblings unequally) abuse (see attached).
DCF also provides trainees with a copy of the child abuse and neglect reporting form and instructions on completing it (DCF-136). This form asks for the child's name, age, sex, address, and guardian's name and address. It also asks for:
1. the perpetrator's name, address, and relationship to the child;
2. the date, time, nature, and extent of the abuse or neglect;
3. information on previous injuries to the child or his siblings;
4. the names and ages of any known sibling;
5. a description of how the reporter learned of the injuries or neglect;
6. a description of any action taken to assist the child;
7. the date of the oral report and the name of the hotline worker who received it; and
8. the reporter's name, agency, position, address, telephone number, and signature.
According to Josh Howroyd, DCF's legislative program manager, DCF is in the process of revising mandated reporter training materials. We will send you this updated material after we receive it. In the meantime, we have attached the training materials that we think might be helpful to you.
Mandated Reporters
The following individuals must report allegations of child abuse and neglect:
1. licensed physicians and surgeons and unlicensed medical residents;
2. registered and licensed practical nurses;
3. medical examiners;
4. dentists and dental hygienists;
5. psychologists, social workers, and licensed marital and family therapists;
6. school teachers, principals, guidance counselors, and paraprofessionals;
7. the child advocate;
8. police officers;
9. members of the clergy;
10. pharmacists and physical therapists;
11. licensed osteopaths, chiropractors, podiatrists, and physician's assistants;
12. licensed substance abuse counselors;
13. sexual assault and battered women's counselors; and
14. child care providers working in licensed facilities (CGS § 17a-101).
Beginning July 1, 2002 (the date PA 02-138 becomes effective), the list of mandated child abuse reporters will also include: juvenile or adult probation officers; juvenile or adult parole officers; school coaches; licensed or certified emergency medical services providers; licensed professional counselors; certified substance alcohol and drug abuse counselors; child care providers in licensed group day care homes; DCF employees; and Department of Public Health employees who are responsible for licensing child day care centers, group and family day care homes, and youth camps.
PRIVILEGED COMMUNICATIONS
We were unable to find any cases that identified the controlling statute when there is a conflict between the mandated reporter and privileged communication statutes. Two attorneys who are involved in criminal and civil child sexual assault cases against local priests confirmed our results. Neither Judith Rossi, chief state's attorney's office, nor Jason Tremont, a Bridgeport attorney, were aware of any court decision that answers this question.
This type of conflict is possible with only three of the professionals required to report suspected child abuse (clergy and battered women's or sexual assault counselors). Where the conflict has arisen, Rossi and Tremont believe the professionals have probably opted not to report. Where Catholic priests are involved, an avalanche of recent cases has just begun to uncover the magnitude of alleged child sexual assault that went unreported. Table 1 shows mandated reporters whose communications are totally or partially privileged and any applicable exemptions.
TABLE 1: PRIVILEGED COMMUNICATION
Privilege Holder |
Type of Communication |
When Statute Permits Unconsented Disclosure |
Clergymen (CGS § 52-146b) |
Confidential communications made to clergy in their professional capacity; applies to any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding |
None in statute |
Psychologists (CGS § 52-146c) |
All oral and written communications and records relating to the diagnosis and treatment of a person between such person and the psychologist or between the psychologist and the patient's family members; applies in same settings as above |
1. When made in court-ordered examination, if person has been told communications are not confidential and person's mental state is at issue; 2. In civil proceeding, where person introduces his psychological condition as an element of the case, or after death, when someone brings a case on his behalf (A court must find interests of justice more important than protecting the relationship between the person and psychologist); 3. When psychologist believes that there is risk of imminent personal injury to the person or to other people or their property; 4. When psychologist has good faith suspicion of child abuse or abuse of an elderly, disabled, or incompetent person; 5. In collection matters (limited disclosure); or 6. To a homicide victim's immediate family, when (a) patient has been found not guilty by reason of insanity after July 1, 1989, (b) they ask for this information within six years, and (c) used in civil suit about the death |
Physicians (CGS § 52-146o) |
Communications made by, or information obtained from a patient or his conservator or guardian about any actual or supposed physical or mental disease or disorder or information obtained by examining the patient |
1. Pursuant to any statute or regulation or court rule; 2. To an attorney or malpractice insurer when a legal claim is pending or may be filed and the information is used in the doctor's defense; 3. To DPH when it is investigating a complaint against the doctor; or 4. When the doctor has a good faith suspicion of child abuse or abuse of an elderly, disabled, retarded, or incompetent person |
Psychiatrists (CGS § 52146d; also covered by CGS § 52-146o, above) |
All oral and written communications and records relating to diagnosis or treatment of a patient's mental condition between the psychiatrist and patient, psychiatrist and patient's family, or between them and a person participating under the supervision of a psychiatrist in accomplishing the objectives of diagnosis and treatment, including a mental health facility's records |
1. To other people treating or diagnosing the patient when the doctor deems it necessary and tells the patient; 2. When the doctor determines there is substantial risk of imminent physical injury to the patient or others or needs to disclose to hospitalize or commit the patient; 3. In collection matters (limited information); 4. When examination has been ordered by a court or in connection with a conservatorship application and (a) the patient is a party or his mental competence is at issue, (b) he has been informed that disclosure may occur, and (c) disclosure is limited to issues involving his mental condition; 5. In lawsuits when the patient introduces his mental condition as an element of the case and the court finds it more important to the interests of justice that the communications be disclosed than that the relationship be protected; 6. To the public health or mental health and addiction services commissioner in connection with facility inspections, investigation or examinations authorized by law; 7. To immediate family members or legal representatives of homicide victims, under same circumstances as psychologists; 8. To the Department of Mental Health and Addiction Services (DMHAS) in connection with a behavioral health service contractor's payment claim (limited information) or services provided to DMHAS clients; or 9. To researchers in some circumstances |
Marital and family therapists (CGS § 52-146p) |
Oral and written communications and records relating to the diagnosis and treatment of a person between the person or a family member and the therapist |
1. Where mandated by any other provision of the general statutes, 2. Where therapist has good faith belief that failure to disclose presents a clear and present danger to a person's health or safety, or 3. In collection matters (limited information and prior notice to client required) |
Social workers (CGS § 52-146q) |
Oral and written communications and records relating to the evaluation and treatment of a person between the person or a family member and a social worker or someone acting under the social worker's supervision |
1. To other treaters; 2. When there is a substantial risk of imminent physical injury to the person or someone else, or when disclosure is otherwise mandated by statute; 3. In court-ordered evaluations, when court finds need for justice outweighs protecting confidentiality; 4. In lawsuits when the client introduces his mental condition as an element of his claim or defense; and 5. In collection matters (limited information) |
Professional counselors (CGS § 52-146e) |
Oral and written communications and records relating to diagnosis and treatment between the person or family members and a counselor |
1. In court-ordered mental health assessments, when judge finds that the person has been told that communications are not confidential, and only on issue of the person's mental condition; 2. In lawsuits, where the person has introduced his mental condition as an element of his claim or defense; 3. Where mandated by other statutes; 4. Where counselor has good faith belief that failure to disclose presents a clear and present danger to a person's health or safety or there is risk of imminent personal injury to a person or property; 5. Where counselor has good faith suspicion of child abuse or abuse of an elderly, disabled; and incompetent person; or 6. In collection matters (limited information) |
Battered women's or sexual assault counselors (CGS § 52-146k) |
Information transmitted between a victim and counselor in the course of that relationship and in confidence, by a means which, so far as the victim is aware, does not disclose the information to a third person other than anyone who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which the counselor is consulted; includes all information received by, and any advice, report, or working paper given or made by the counselor in the course of the relationship with the victim |
Communications made after 10/1/83 cannot be disclosed in civil, criminal, administrative, or legislative proceedings. But the privilege does not apply: 1. when proving chain of custody of evidence or the physical appearance of the victim at the time of the injury or 2. when the counselor knows that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed |
Elementary and high school teachers, administrators, and nurses (CGS § 10-154a) |
Communications made privately and in confidence by a student, when information concerns the student's alcohol or drug abuse or any alcoholic or drug problem |
Must turn over physical evidence obtained from a student indicating that a crime has been committed to school administrator or law enforcement within two days in most cases; not required to disclose student's name |
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