© Springer Science+Business Media Dordrecht 2015Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_8
8. Ethics and the Identification and Response to Child Abuse and Neglect
Department of Pediatrics, University of Colorado School of Medicine, Aurora, CO, USA
Center for Bioethics and Humanities, University of Colorado, Anschutz Medical Campus, 13080 E. 19th Ave, Aurora, CO, USA
Kempe Child Protection Team Faculty, The Kempe Foundation for the Prevention and Treatment of Child Abuse and Neglect, Aurora, CO, USA
Jacqueline J. Glover
KeywordsChild abuse and neglectPrenatal neglectChild obesityChild protectionDecision makingEthicsMandatory reportingHealthcare professionals
Child abuse and neglect continues to be a growing concern around the globe (Hart et al. 2011). To some, the ethics related to child maltreatment may seem to be relatively straightforward – maltreatment is wrong so don’t do it, and if you witness it, report it. But for professionals, communities, and families struggling to make good choices on behalf of children, the ethical issues are not so easy (Levi 2008). They involve conflicting obligations and require an ethical framework to think through the issues. What follows is the identification of an ethical framework and its application to clinical issues involving the thresholds of mandatory reporting, family as decision makers, end-of-life decision making, visitation and placement, funding priorities, research, and the two emerging controversial issues of reporting pregnant women whose substance use behaviors put their fetuses at risk and obesity as medical neglect.
An Ethical Framework
An ethical framework includes the articulation of the values of the stakeholders, identifying where they may be in alignment, and developing an argument for what values should take precedence when they are in tension. By definition, an ethical issue arises when values are in tension and people need to think through how best to balance their conflicting obligations. The concern about child abuse and neglect arises out of the deeply held values of non-maleficence (not harming) and beneficence (promoting well-being). Other important values include respect for the autonomy (self-rule) of patients and families and respect for the family relationships themselves. Privacy, confidentiality, compassion, promoting trust, and fidelity (promise-keeping) are also central. Justice is also a very important value, although it is one of the hardest values to agree about, especially in the sense of fair allocation of scarce resources. But justice is also central to our concept of advocacy on behalf of vulnerable children and undergirds the criminal justice system’s concerns about due process, fair punishment, and rehabilitation.
There has been a recent call to switch from a welfare framework in child abuse and neglect identification and treatment to a child’s rights or human rights framework (Hart et al. 2011). In the USA, where rights language predominates, one would expect that the ethical dialogue would already consider basic human rights. But that is not necessarily the case. There is much disagreement about which rights take precedence and rights language itself can be very polarizing. Consider, for example, the seemingly endless debate between a “right to life” on the one hand and a “right to choose” on the other hand. A call for universal healthcare in the USA prompts a debate between negative rights of noninterference (liberty interests) and a positive right to education, public safety, healthcare, and other necessary elements of an equal opportunity to flourish (Gostin 2010). Rights language tends to be used as a kind of trump card, thrown down as if it already answers the ethical questions. But what is a moral right in the first place? There is general agreement about legal rights – the processes and procedures guaranteed in constitutions, laws, and common law. But a moral right is different. It is a justified claim, and if you have a justified claim, there is a correlative obligation on the part of someone to refrain from doing it or to provide it. To call something a right is to identify something as being so supremely important that people must attend to these specific obligations. If rights language can be so polarizing in dialogue, why not simply discuss our obligations – what is owed and to whom?
This difference in ethical dialogue reflects some deep cultural differences, between an emphasis on the independent individual and his or her free choice, and an emphasis on interdependence in a community, and the obligations we share to promote a life well lived for all together. To some, the only rights are rights of noninterference (Sade 2012). But for others, rights are associated with positive welfare claims (Gostin 2010). Ethical dialogue in many parts of the world identifies human rights and human dignity as basic components of an ethical framework and ethical decision making. Article 19 and the General Comment 13 of the UN Convention on the Rights of the Child seek to use a child rights approach “to promote a worldwide reformulation of child protection priorities, policies and practices” (Hart et al. 2011). Underreporting and underfunding is a basic problem everywhere. And if rights language succeeds in drawing attention to these issues, it has served a very good purpose. And if rights language succeeds in bringing the issues of justice front and center, it also has served a very good purpose. At a policy level, what kind of society do we want to be? What do we owe our children, especially in an environment of limited resources to meet seemingly limitless needs?
Child rights language is used to highlight the importance and significance of children and the appreciation of the particularity of each and every individual child. “The particular child has never existed before and will not again…..Every child deserves respect and promotion of its unfolding/emerging added value to life” (Hart et al. 2011). This is a far cry from the history of children as replaceable chattel – only valued instrumentally for what they could do for their parents (Murray 1996).
In the clinical setting, obligations toward the child have to be balanced with obligations toward the family. In the USA, there are movements promoting both patient-centered care and family-centered care (AAP, Committee on Hospital Care and Institute for Patient- and Family-Centered Care 2012). In pediatrics, the decision framework is referred to as the “best interest” standard. In the absence of an adult patient with values and preferences of his or her own, parents are presumed to be the most appropriate decision makers for their children. Out of love and a deep sense of responsibility, it is assumed that parents will act in their children’s best interests. But as we have been discussing, children don’t only belong to their families. They are also members of communities and the broader society who are concerned for their welfare and providing them an open future (Feinberg 1980) and a fair chance to participate in community life (Glover and Caniano 2011). Healthcare professionals, acting on behalf of these larger societal values, often have to challenge parents who seem to be making decisions or are behaving in ways that are not in their children’s best interests. Parents and families are important, but their decisions and actions are not unqualified. This balancing of obligations to families with independent obligations to children is the ethical framework identified by the Committee on Bioethics of the American Academy of Pediatrics (1995). So the stakeholders in the ethical framework include the child, siblings, parents, other family members and friends, healthcare professionals, and social institutions like hospitals, clinics, the criminal justice system, social services, and other governmental entities.
Some in the literature have argued that this “best interest” standard is too vague and subjective to guide decision making in pediatrics and that something more like the “harm threshold” should be used instead (Diekema 2004). Parents should be given wide latitude to make decisions on behalf of their children unless it reaches the threshold of “harm.” But Diekema’s harm standard assumes that we can more readily calculate harm than benefit. That may be true, but there still are remaining questions about how much harm is enough to trigger a report of child abuse or medical neglect, which would be the mechanism to override parental decision-making authority.
Levi identifies uncertainty about what counts as abuse or reasonable suspicion that abuse has occurred as being at the heart of the ethical issues in child abuse and neglect (Levi 2008). At stake are the values of not harming, promoting benefit, respecting cultural differences, and justice. He gives the example of spanking to illustrate cultural differences in the use of corporal punishment. Intention and proportionality play a role. But in spite of the fact that there may be gray zones, “….no reasonable person would dispute the notion that an adult who non-accidentally inflicts serious harm on a child commits an act of abuse” (Levi 2008). And although intention plays a role in some contexts (injuring a child by pushing the child out of the way of an oncoming car), good intentions do not render any practice immune from being judged abuse (Levi 2008).
Where should the threshold be for mandatory reporting? If the threshold is too low, we risk violating principles of justice and not harming. Mandated reporters are more likely to suspect and report children whose ethnic and socioeconomic profiles are different from their own (Levi 2008). Reports and investigations of child abuse can destroy families and careers (Levi 2008). The ideal would be sensitive and careful investigations and help for at-risk families, but often the reality can be very different and families are damaged in the process (Levi 2008). Additionally, some are concerned that reporting is not the best way to protect a child’s interests. Levi’s discussion of these factors is meant not to suggest that reporting is wrong, but the counterbalancing values should be included in a calculus of when to report (Levi 2008). Also, setting the threshold too high for mandatory reporting risks not protecting children from harm and losing the opportunity to intervene on behalf of an at-risk family.
One of the most interesting discussions in the Levi chapter is about your obligations when you genuinely think that reporting is not going to help the child. Your obligations to support the law and protect the child from harm are at odds. Conscientious refusal is only justified when certain conditions are met: (1) you genuinely believe that reporting suspected abuse will result in net harm, (2) you are confident that the child is not at risk for subsequent harm and you are willing to take responsibility for their safety, (3) all other law-abiding options are also conducive to significant harm, and (4) you are willing to defend your choice publicly and accept the legal penalties for not reporting (Levi 2008). A possible concern with this approach is overconfidence in your ability to protect a child. “However imperfect, CPS agencies provide the only systematic approach for investigating and safeguarding a child’s well-being” (Levi 2008). The American Medical Association’s Code of Medical Ethics recognizes the values underlying the law. Principle III states, “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient” (http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page).
The literature has shown that there are a constellation of concerns and barriers to reporting. A concern that the response will be worse than the status quo is only one of potentially many. Professionals are also concerned about what will happen to their relationships with patients and families. They also identify a need for further education and raising general awareness of these issues (Pietrantonio et al. 2013). Rather than relying solely on the mandatory reporting mechanism, some would propose switching the ownership of the problem of abuse from just some to all of us. A colleague, when talking with students, identifies this preemptive approach. He teaches, “When you see a stressed mom in the grocery store screaming at one of her children and threatening to hit the other because the child is pulling candy from the shelf, we, as caring citizens/neighbors should intervene and say something like “you seem really stressed – can I help you by picking up the candy?” and then put yourself between the child and the mom while –picking up the candy” (Krugman 2014, School of Medicine, University of Colorado, Researcher in Child Abuse and Neglect, personal communication). It seems overly simple and very difficult to measure in an evidence-based way, but it could change the culture and be a visible sign that we value our children and we won’t let them be treated badly.
Another approach is to view mandatory reporting not as the problem to be solved but as an opportunity of sorts in that it can be a gateway to services. It represents the identification of people at risk and could be associated with various primary prevention strategies. If you fail to report a situation where a child may be at risk – if there are other children in that home – they could be harmed as well. Reporting can also be viewed as part of the resilience process, where the law sets the stage for child safety and child and family well-being planning (Wekerle 2013).
Finally, to address concerns about the values of trust and preserving relationships with patients and families, some are proposing that it is possible to partner with families through the reporting process. Professionals need to develop certain communication skills, akin to the SPIKE method for breaking bad news. They report that it is possible to preserve the relationship even through reporting (Pietrantonio et al. 2013).
SPIKE (Pietrantonio et al. 2013) stands for:
Setting – It is important that the setting be private with little chance of interruptions. It should be away from the child(ren). Providing privacy and respecting confidentiality preserves caregiver dignity. Conversations about the limits of confidentiality at the beginning of the relationship could help mitigate concerns further down. If there are concerns for physical reprisal (which is rare), additional support (staff or security) can be nearby.
Perception – The first step is to assess the caregiver’s percepts of the concerns. “What have you been told? What is your understanding?” A health professional who shows patience and a willingness to take the time to ensure that the caregiver has understood, can aid in lessening confusion. By engaging the caregiver in a discussion of what might happen to the child with a report to CPS and soliciting their opinions, professionals can suggest a non-judgmental and collaborative approach.
Invitation – It is not appropriate to ask permission to make a report to CPS. The goal is to maintain honest and open communication by sharing with the caregiver your concerns and what your obligations are in light of them. “I’m afraid that someone has hurt your child and these are my responsibilities.” It may be helpful to negotiate the scope of information to be shared with CPS or to even have the caregiver present for the call.
Knowledge – It is important to share information about clinical findings that led to the decision to report in a clear and understandable way. Among the information to be shared is information about possible outcomes.
Emotions – Responding to emotions is essential throughout the conversation. It is important to observe any emotions, identify them and the reason for the emotion and perhaps most importantly, let caregiver know that the emotion has been understood. Although it may be difficult to withhold judgment, an empathic response toward the caregiver and withholding criticism strengthens the therapeutic relationship. (Pietrantonio et al. 2013)