MANDATED REPORTING, Adjunct Professor Monica Bogucki Copyright 2013 Monica Bogucki

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 et. seq. ▪Mandated Reporting for prenatal exposure to controlled substances, Minn. Stat ▪Mandated Reporting for prenatal exposure to alcohol abuse, Minn. Stat (Repealed in 2007)

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

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 , 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 , 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 , subdivision 2

What is to be reported? ▪Physical Injury, Minn. Stat., subd. 2 (g) ▪Physical injury also includes mental injury and threatened injury

Neglect, Minn. Stat subd. 2(f) ▪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

Neglect is also Minnesota Statute , subdivision 2(c)(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?

Emotional harm, Minn. Stat subd. 2 (f)(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

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

Prenatal exposure Controlled substances as defined in Minn. Stat. 253B.02, subd. 2 –Evidenced by infant’s withdrawal symptoms at birth –Developmental delays that indicate prenatal exposure to controlled substance –Presence of fetal alcohol spectrum disorder

Sexual Abuse Criminal sexual conduct in the –First degree, Minn. Stat –Second degree, Minn. Stat –Third degree, Minn. Stat –Fourth degree, Minn. Stat –Fifth degree, Minn. Stat –Minor involved in prostitution –Threatened sexual abuse-parent or household member is required to register as an offender.

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

Prenatal Exposure to Alcohol ▪Minnesota Statute (Repealed in 2007)

Prenatal Exposure to Controlled Substances ▪Minnesota Statute

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

Duty to Warn ▪Minnesota Statute section ▪"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 Rules , subpart 2 (B) ▪When the client communicates to the social worker a specific, serious threat of physical violence against a clearly identified or identifiable potential victim, or against the client's self or against society in general.

Minnesota Rules of Professional Conduct ▪Minnesota Rules of Professional Conduct 1.6 ▪“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