Sometime a while back clients were assured almost complete confidentiality; however, over the course of time laws were enacted requiring psychologists to report upon their clients. This, of course, destroyed the relationship between a psychologist and the client, but that didn’t matter. All that mattered is that “feel good” legislation was passed and that it felt as though the government was “taking control.”
While this has proven to be beneficial in certain cases, but in many cases it has been a disaster. For one, there is no longer “a safe place.” There is no more confidentiality, anywhere. Records are subject to subpoena and psychologists are subject to being forced to testify against the best interests of their clients. We have become “The Thought Police.”
My last supervising psychologist during my 4 1/2 years of postdoc internship & residency, Louis Masur, III, Ph.D., Clinical Director lamented that he lost 19% of his business because of this change in statutes. Once mandated reporting became the law, it was no longer necessary for psychologists to weigh the costs & benefits of notifying authorities about possible child abuse, exploitation or neglect. They needn’t think about the possibility of destroying a fragile relationship. Nor did they need to think about the benefits achieved and the current status of the child even when the child was completely safe under the current circumstances of treatment. All that mattered was one was required to report upon threat of being charged with a felony for failure to report as mandated by law.
So, while mandated reporting as required by legislated mandate made it a “no-brainer” and removed any stress from the psychologist regarding whether or not to report, mandated reporting destroyed many therapeutic and beneficial relationships. Dr. Louis Masur lamented that he lost 19% of his practice due to this. Those were parents who appeared in his office because they feared that they might be possibly harming their child because of the discipline they were administering
Generally, it was a mildly “neurotic” concern because the parents were not harming their child but it was so difficult for them to administer appropriate discipline including corporal punishment. It was neurotic meaning it was an unfounded fear, but at least at that time prior to the change in statutes they could go in confidence and seek the opinion of the professional and be assured that they were not harming her child without fear of being it turned into law enforcement and/or the power of the state. They would seek and receive the sense of support they needed in rearing their children properly. For the vast majority it was really merely a confirmation that they were doing what was right.
For a few parents they were trying to work through their leftover issues from their own childhood including discipline. This is not an uncommon experience. Often as we progress along the trail rearing children we are reminded of our past and we get to relive our own childhoods to a certain extent. And work through them again and resolve them, hopefully successfully, as we rear our home children. This is why the lyrics “as the child is the father of the parent” make so much sense.
Nonetheless, the fact is that in many ways state legislatures have attempted to turn psychologists into “The Thought Police.” During my training I learned one critical aspect: that is there is no relief in the statute from the requirement to report. Even should the matter have already been reported or even if it’s actually been adjudicated, psychologists are always required to report reasonable suspicion of child abuse, child exploitation, or child neglect. All it takes is a simple phone call and a corresponding entry in the client’s files.
It is the psychologist’s prerogative but the psychologist’s duty. It is not the psychologist’s choice but the psychologist’s imperative—regardless of what he or she thinks. We are not allowed to consider our own value judgment. At times we are forced to ignore our clinical judgement and even our gut feelings. If there is any reasonable suspicion, we are forced to report to authorities.
In a certain sense this makes it easier for psychologists. Why? Because we don’t have to think about it; we merely have to do it. We have to perform the behaviors required by law. Most statutes provide for protection for psychologists who filed a report in good faith.
But it would be better if we were not required to report. For one, in those many instances that we know the child is safe and we can conduct therapy confidently knowing that the child is safe, we must risk losing the therapeutic relationship with the parents or parents because of obligations and our duty to report. For another, multiple reports may have already been filed and the authorities often vocalize their frustration over receiving another report about the same matter they have for over and over.
Also, when it involves a crime, it is not our duty to collect evidence nor is it our duty to prosecute; nonetheless, police and other authorities often try to impose unreasonable duties upon us. These include collection of evidence, possibly revealing diagnoses, treatment methods and prognosis when such confidential matters have nothing to do with the possible child abuse by the interrogators merely seek power is beyond what they actually need and/or are entitled to.
In many ways it would be better to create “safe places” by removing such mandated reporting especially redundant mandated reporting. Nonetheless, we as a society have seen fit to make it a felony to fail to file a report. When we come upon a case in which a psychologist has failed to file an obvious we mandated report, we sometimes try to “accommodate” and “excuse” that psychologist’s failure in order to avoid such serious criminal prosecution.
As in all such matters today things all too often and so quickly take out a political overtone. For instance should the psychologist who fail to make the report be a conservative or a registered Republican, then we hold their feet to the fire and we burn them. On the other hand should the psychologist who failed to file the report be a liberal or a registered Democrat, then we bend over backwards to make excuses for them and avoid having to enforce the “feel good laws” with all of their terrible penalties that we once thought were so wonderful we eagerly engaged in creating them making it a life changing event when a professional might be prosecuted for dereliction of duty, failure to report.
Such is the case in RFI Number 08-21 Daniel Christiano, Ph.D. When I heard the case presented and defended before the State of Arizona Board of Psychologist Examiners Complaint Screening Committee on Wednesday, December 17, 2008, my immediate reaction was to acknowledge that the psychologist had failed in his mandated duties to file a proper report and that a “letter of concern” should be entered into his file and no more action be taken.
However, then I thought I heard significant confusion over “who is the client.” Then again I thought I heard that Dr. Christiano was assigned a duty by the court to protect the child. It appeared Dr. Christiano may have never met the child and that the report was filed against him as part of a child custody strategy or in retaliation. Whatever it is doesn’t matter. It was stupid to fail to file a report, especially considering it appears it was a court ordered matter subject to even more litigation.
But does Christiano deserve prosecution of a felony? Strictly speaking, it appears the law has been broken and it requires enforcement. The punishment is a felony conviction. But is that justice? No, there is no provision for “mercy” or relief in the Arizona Revised Statures. Nonetheless, a couple of CSC members bent over backwards trying to accommodate logically why this psychologist failed to make his report. There is no justice in laws that are not enforced and there certainly is no justice when laws and their consequences are so tightly (rigidly and nonfunctionally) written so that a judge is denied the option to show mercy.
In this case, a letter of concern placed in Dr. Christiano’s file is the least action the Board may take. However, they are certain to consider “dismissal” in order to remove the possibility of felony prosecution.
We need more “flexible” laws that are more functional and enforceable. The motivation of the complainant is also highly questionable. This is further evidence for the need to change complaints before the Arizona Board of Psychologist Examiners from “fully privileged” to “partially privileged.”