“My client told me that [fill in the blank with the disclosure of your choice]. Am I required to report that?”
AAMFT’s legal and ethics consultation service regularly receives calls from therapists inquiring about their reporting obligations. Common variations of these scenarios include concerns about suspected child abuse or neglect, concerns about a colleague’s or another professional licensee’s conduct, concerns about domestic violence, and concerns about minors and sexual conduct.
Regardless of the particular scenario that you are dealing with, Standard 2.2 in the AAMFT Code of Ethics is a starting point for analyzing potential reporting obligations. (We’ll leave aside questions about reporting a colleague for a future post.)
As previously discussed on this blog, Standard 2.2 states:
Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.
For the purposes of this post, we’re going to focus in on the first sentence: Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law.
When confronted with the possibility of breaking client confidentiality to fulfill a reporting obligation, MFTs must be aware of the law in their jurisdiction. Mandatory reporting scenarios are often governed by local law (e.g. state or provincial law). MFTs should be aware of all applicable laws that might mandate a disclosure, as well as all applicable laws that might create a permissive disclosure situation.
Common Mandatory Reporting Laws
Common mandatory reporting laws applicable to MFTs include those pertaining to the reporting of suspected child abuse and neglect, suspected elder abuse and neglect, and suspected abuse and neglect of vulnerable adults. In some jurisdictions MFTs may also be required to report when disclosures of domestic violence or intimate partner violence are made, but this is not as common as the other mandatory reporting scenarios. Some jurisdictions’ laws may not require a report from an MFT based on a disclosure of domestic violence in and of itself, by may require a report if the alleged domestic violence occurred in the presence of a minor.
When examining your jurisdiction’s laws on these issues, paying particular attention to definitions (e.g. definition of minor or child, definition of elder or vulnerable adult, definitions of reportable conduct), reporting timelines, the type of knowledge that creates a reporting obligation (e.g. reasonable suspicion, reasonable cause to believe), and the entity to which a report is to be made is advisable. In some situations, you may need to speak with a local attorney for interpretation of the law in question or for assistance applying that law to a particular situation.
Mandatory Reporting and Informed Consent
Taking guidance from Standard 2.1 in the AAMFT Code of Ethics, the duty to report should be one of the instances included in your “informed consent” document that may require a breach in confidentiality.
Standard 2.1 states:
Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.
Generally speaking, clients should be given notice that, as a mandatory reporter, you are required to breach confidentiality if clients disclose conduct that you are required by law to report. The exact language that you include in your informed consent documentation will vary based on your preferences and applicable laws.
Mandatory Reporting When You’re “Off the Clock”
Therapists may occasionally wonder about their reporting obligations when they observe or learn about suspected abuse or neglect in their personal lives or when they are “off the clock,” so to speak. In some jurisdictions the laws are written in a way that would require a report only when a person who is a mandatory reporter learns of the information in their official or professional capacity. In other states, the language may state otherwise, or may even be written in a way that requires anyone who suspects abuse or neglect to report, regardless of profession.
If a report is not required because a person who is otherwise a mandatory reporter witnesses something while the person is not acting in their official or professional capacity, the person typically could still choose to make a report if they wish.
Most mandatory reporting laws provide immunity from civil and criminal liability for making a report. The immunity laws may even protect the therapist if the therapist was negligent in concluding that a report was required. However, some states require that, in order to be entitled to immunity, the mandated reporter must have acted “in good faith.” While these immunity provisions do not necessarily prevent a therapist from being sued, they do provide the therapist the opportunity to assert immunity as a defense.
Aside from consulting with a local attorney knowledgeable about mandatory reporting issues, other resources available to therapists who have questions about mandatory reporting obligations include peer consultation, supervision, the relevant protective agency based on the situation (e.g. child protective services, adult protective services), and your professional liability insurer. AAMFT’s legal and ethics consultation service is also available to members who wish to discuss their questions in a general manner.
As should be clear by now, because mandatory reporting obligations are largely matters of local law (e.g. state law, provincial law), it is critical that therapists know the law in their jurisdictions.