MANDATED REPORTING , Adjunct Professor Monica Bogucki Copyright 2018 Monica Bogucki, BSW, JD

Attorney-Client Confidentiality Privilege Minnesota Rules of Professional Conduct 1.6

Confidentiality Privilege General Rule for other professionals: If a professional is being compelled to testify and a privilege exists, then that person cannot be compelled to testify unless the client waives the privilege OR there is a court order OR other law, statute.

Who owns the confidentiality privilege?

Battered Child Syndrome By 1967, every state had adopted a form of mandated reporting statutes What is the purpose/policy for mandated reporting statutes?

Mandated Reporting for children, Minn. Stat. 626.556 et. seq. Mandated Reporting for prenatal exposure to controlled substances, Minn. Stat. 626.5561 Controlled substances are defined in Minn. Stat. 253B.02, subd. 2

Mandated reporting for controlled substances and alcohol If a person knows or has reason to believe that a pregnant woman has used a controlled substance for nonmedical purposes during the pregnancy…or has consumed alcohol..during pregnancy that is habitual and excessive, then that person is mandated to report. Minn. Stat. 626.5561, subd. 1(b)

Voluntary Reporting Any person may make a voluntary report if a pregnant women who has consumed alcoholic beverages during pregnancy in anyway that is habitual or excessive Minn. Stat. 626.5561

Continued Mandated Reporting for Vulnerable Adults, Minn. Stat. 626.557 et. seq. Duty to Warn, Minn. Stat. 148.975

Analysis of Mandated Reporting Statute Who is a mandated reporter? What is to be reported? Where do you report? What happens if you do not report? What happens if you do report?

Who is a mandated reporter? Minnesota Statute 626.556, subdivision 3 (1) "a professional or professional's delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement…."

General rule for mandated reporting- persons mandated to report Minnesota Statute 626.556, subdivision 3 " A person who knows or has reason to believe a child is being neglected or physically or sexually abused (within the preceding three years…) Shall immediately report….

What is to be reported? Minn. Stat. 626.556, subdivision 2, et. seq.

What is to be reported? Physical Abuse, Minn. Stat., subd. 2 (k) Physical abuse includes: Physical injury Mental injury Threatened injury

Neglect, Minn. Stat. 626.556 subd. 2(g) Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so Poverty is not an automatic child protection issue

Minnesota Statute 626.556, subdivision 2 Neglect is also Minnesota Statute 626.556, subdivision 2 Failure to protect child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so What other actions are considered neglect? Education neglect, Minn. Stat. 626.556 subd. 2 (g)(4)

Emotional harm, Minn. Stat. 626.556 subd. 2 (g)(9) From a pattern of behavior which contributes to impaired emotional functioning of the child which may be demonstrated by a SUBSTANTIAL AND OBSERVABLE EFFECT in the child's behavior, emotional response, or cognition that is not within the normal range for the child's age and stage of development with due regard to the child's culture See also “mental injury” Minn. Stat. 626.556, subd. 2 (f)

Threatened injury Minnesota Statute 626.556, subdivision 2 (p) Statement, overt act, condition, represents SUBSTANTIAL RISK of physical or sexual or mental injury

Where do you report?

What happens to you if you do not report? Vulnerable to civil lawsuits Vulnerable to criminal charges-misdemeanor Vulnerable to professional licensing problems

What happens if you do report? If report in good faith, reporters are IMMUNE from any Civil liability or Criminal liability Employer shall not retaliate against a person reporting in good faith Keep in good standing with professional license Opportunity to protect a child-speak for the voiceless

Mandated Reporting Exercises

Duty to Warn History- Tarasoff v. Board of Regents, 551 P. 2d 334, 131 Cal. Rptr. 14 (1976) Minnesota Statute 148.975

Duty to Warn Minnesota Statute section 148.975 "the duty to predict, warn of or take reasonable precautions to provide protection from, violent behavior arises only when a client or other person has communicated to the licensee a specific, serious threat of physical violence against a specific, clearly identifiable potential victim.

How is the duty discharged? "the duty is discharged by the licensee if reasonable efforts are made to communicate the threat…to the potential victim, if unable to do this---communicate the threat to law enforcement agency closest to the potential victim.

Social workers' licensing laws Minnesota Statute 148E et. seq. refers to Minnesota Statutes 1448.975

Minnesota Rules of Professional Conduct “A lawyer MAY reveal information relation to the representation of a client if: (6) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm.”

Practice Tips Consult with supervisor before reporting Have supervisor sign off on report SW and Psy. Should have specific form explaining confidentiality privilege/informed consent Lawyers should consult with supervisors if duty to warn situation arises Hold firm to your values, ethics, justice