child's broken arm in cast

Bioethics Forum Essay

Our System for Reporting Child Abuse is Unethical

A court case over alleged false accusations of child abuse began recently in Florida. The case concerns Maya, the subject of a recent documentary that depicts a powerful pediatrician specializing in identifying child abuse who, with other clinicians and the Florida Department of Children and Families, wielded complete power over Maya and her parents, forcing them to be separated because of alleged child abuse. Similarly, the NBC News podcast “Do No Harm” chronicles the stories of two Texas families who lost custody of their children after pediatricians reported child abuse but were incorrect. These are not isolated incidents. The system of mandatory reporting of child abuse is rife with ethical problems and can lead to unjustified custody loss.

 More than three million children a year are involved in child abuse and neglect cases in the United States. Bias is widespread in the process of reporting, investigating, and confirming these cases. Black children are reported at about twice the rate of white children and their cases are more likely to be investigated, confirmed, and brought to court. Black children are more likely to be removed from their families and to be removed for longer periods. Even so,  cases involving Black children are less likely to be substantiated, indicating that Black families face more false claims.   In one glaring example of disparate treatment, contrast the cases of two women, one Black and one white, whose breastfed babies died of malnutrition. Tatiana Cheeks, who is Black, was charged with homicide. Jillian Johnson, who is white, not only was not charged with a crime, but she started a nonprofit and could openly discuss breastfeeding failure.

In addition to bias, there are other important bioethical issues in child abuse pediatrics. Family separation causes severe harm. Temporary custody loss harms children and parents and should be deemed a cruel and unusual punishment in most cases. It should carry a high burden of proof because it is sometimes imposed based on false charges and mistakes.

The system for reporting and investigating child abuse should be reformed. Child protective services and mandatory reporters of child abuse in most states enjoy generous immunity from criminal charges and civil claims. The effect is a noteworthy exception to the legal standard of innocent until proven guilty.

There are inherent problems with mandatory reporting. First, child abuse is not a medical diagnosis. It is a legal finding. Medical diagnoses include injuries and bruises, which can be the result of abuse or other causes. Child abuse pediatricians’ training is focused on the legal finding. These doctors often become so suspicious of abuse that they ignore the many other possible explanations for injuries and bruises, including accidents and certain diseases.  Accusations of medical neglect and abuse can interfere with parents’ ability to seek multiple opinions on the causes of their children’s complex medical problems.

In many states, including New York, where I live, mandatory reporters face penalties for failing to report suspicion of child abuse. These penalties lead to overreporting for fear of criminal charges and civil liability. And there is immunity for those who report in “good faith,” i.e., with honest and fair intentions. It is very difficult to counter claims of good faith, since that is a subjective concept. Any child abuse pediatrician or social worker may feel they entered the field in good faith and that all their work is in good faith when, in fact, they have made false accusations.

The system of reporting child abuse should protect families from overreach by social services, child abuse pediatricians, the private companies that often operate through government and hospital contracts. Some refer to this system as the poverty industrial complex. State laws should comply with the U.S. Constitution. At minimum, they should protect people against unreasonable search and seizure, avoid cruel and unusual punishment, ensure equal protection under the law, and ensure that parents are read their rights. Being read their rights includes being informed that child abuse pediatricians might use their words against them legally.

I recommend doing away with mandatory reporting of child abuse. This would decrease the need for immunity and reduce false accusations. “Faced with confusion around mandatory reporting, many mandated reporters think it’s best to just report anything they think might be violence or abuse,” states the group Mandatory Reporting Is Not Neutral, one of several advocates for eliminating the practice.

Those who favor mandatory reporting would argue that false accusations are not as problematic as cases of unreported child abuse. But that is a false comparison. There is no evidence that legitimate cases of child abuse and neglect would be underreported without mandatory reporting. But eliminating mandatory reporting would reduce false accusations. Anyone can report child abuse and other serious crimes. While mandatory reporters work with children and therefore may be able to notice abuse, the mandatory aspect of making a report is not necessary.

 In addition, I recommend eliminating the subspecialty of  child abuse pediatricians. The work they do is best left to law enforcement. Absent the subspecialty, any appropriately certified pediatrician with knowledge relevant to the type of injury or illness at issue in a case could testify about injuries and illnesses as expert witnesses in trials, and both sides should be able to present medical views.

 If the subspecialty of child abuse pediatricians remains and these doctors continue to see patients, they should have to announce who they are and their role. They should explain to parents that anything the parents say may be used against them by social services organizations and in court. Bioethicists should advocate for this disclosure, and law and hospital policy should mandate it. All parents should have the opportunity to refuse an assessment by a child abuse pediatrician and the option to have a lawyer present for any discussion.

The complex system of family surveillance penalizes the poor and people of color disproportionately, violates parental rights, and interferes with many parents who have their child’s best interests at heart. It is a system of guilty-until-proven-innocent that has harmed thousands of families, many of whom include parents who have been exonerated. I implore people, and especially bioethicists, to learn about those innocent families, and to advocate for repairing this broken system that harms them.

Anne Zimmerman, JD, MS, is founder and chair of Modern Bioethics and Innovative Bioethics Forum, chair of the New York City Bar Association Bioethical Issues Committee, and editor-in-chief of Voices in Bioethics. Her recent book, Medicine, Power, and the Law: Exploring a Pipeline to Injustice, explores the relationships between medicine, science, and technology and the criminal and civil justice systems.

Read More Like This
  1. This is an excellent and provocative article. However, as a physician who took care of many children, I suggest that the author use the term “suspected child abuse,” not “child abuse” in reporting. Physicans do not necessarily draw a conclusion in this area. We report what we observe. It is up to others to determine the cause and, if necessary, take corrective actions.

  2. Thanks for the comment. Yes, as a lawyer myself, I should be very careful with that language. In the cases to which I was referring, the line gets blurred as the pediatricians were drawing quite severe conclusions and their opinions were the decisive factors that swayed child protective services. Their suspicions were generally enough to lead to custody loss rather a starting point for building the case and corroborating with other evidence and testimony, etc. Thanks for reading!

  3. This is a strong article and a needed viewpoint. Mandatory reporting is not a serious policy solution for child maltreatment.

    I disagreed with the statement, “Any appropriately certified pediatrician with knowledge relevant to the type of injury or illness at issue in a case could testify about injuries and illnesses.” I am not sure this is true. As a Pediatric Emergency Medicine specialist, I have more training in child abuse evaluation than the average pediatrician, but expert consultation in many cases is still valuable. The evidence base around child abuse evaluation is evolving, and Child Abuse Pediatricians bring the most up-to-date knowledge to the cases they consult on. Perhaps just as important as investigators, they are responsible for producing much of the new information, which moves the field toward being more precise. Eliminating conflicts of interest, advocating for disclosure, and addressing inequity are all meaningful steps to improve Child Abuse Pediatrician consultation, but eliminating the profession altogether will leave a gap the current system is not ready to fill. Child Abuse Pediatricians are, in my experience, conscientious, empathetic people who have dedicated their lives to the well-being of children and families. They are better enlisted as allies in fixing the system than dismissed as inextricably linked to the underlying problem.

    1. The statement with which you disagree “Any appropriately certified pediatrician with knowledge relevant to the type of injury or illness at issue in a case could testify about injuries and illnesses” is the case as far as the professionals permitted to testify in court. I did not intend that sentence to mean that especially qualified ones do not testify – they do. And their testimony carries significant weight. That does not mean they are correct every time they suggest injuries are consistent with abuse. They do not always discuss all other possible causes of the injuries. Often, they are incorrect and more facts often from outside of medicine or opinions of different doctors that review scans and testify differently prove them wrong. Most courts do allow testimony from a breadth of pediatricians, and they highly value that as expert testimony. I did not mean to imply that everyone who testifies is unqualified as far as the medical part. I cannot agree that they all are expert detectives – the training varies and seems to promote suspicion and false positives. I question the system, the high rate of error and false accusation, and the victimizing of poor people and of Black and Hispanic New Yorkers. While some pediatricians may be allies in this movement to protect constitutional / parental rights, it is difficult to enlist the field of child abuse pediatricians in the work needed to reel them in, limit the weight of their testimony, and require transparency. Miranda warnings could help. The Family Miranda Rights Act in New York would require disclosures by child protective services. Something similar for child abuse pediatricians would be a small but worthy start. I am skeptical they would choose to advocate for that type of improvement, but perhaps you are right and they may become allies of organizations dedicated to ending predatory child protective services.

  4. This article offers a strong and informative perspective of the legal and ethical aspects of mandatory reporting. As a registered nurse practicing in pediatric urgent care and emergency medicine, while triaging, I pay attention to individual body language, behaviors, and the family dynamic. A lot is understood by the way a child and their caregiver interact when the child is unwell or in crisis. As a mandated reporter, I have the individual duty to recognize and report behavior that can be suspicious for child abuse. It is an essential part of my role to keep the child safe and healthy.

    To your point, “Child abuse is not a medical diagnosis. It is a legal finding”; I understand that it is often through medical diagnoses, some of which include physical injuries, chronic pain, and emotional distress, that children present to a medical facility for evaluation. The interconnection of healthcare and law occurs here. However, the role of healthcare providers, trained specifically in identifying child abuse, are essential in recognizing concerning behaviors. Once recognized, it is also our job to further evaluate whether the child is in imminent danger or if this is a stand-alone incident.

    I understand there is evidence to suggest that mandated reporting has led to false claims of child abuse and increased problems for families leading to separation and legal system involvement. I would argue that we must consider the social determinants of health when evaluating patients. This is to ensure our concerns are valid and there are no other predisposing factors we must rule out before making a claim consistent with child abuse.

    In cases where this is the first event that brings the child to our attention, we need to establish our role as healthcare providers and our duty to empathize and build rapport to ensure the child and family members know we are here to support them in this encounter. Full disclosure of our role in this team and working with the family to understand what brought them here is essential in providing inclusive care. This is one step we can take to prevent making claims that can potentially negatively impact a family.

    With proper training to triage, taking a history and physical assessment, coupled with the appropriate teams of individuals involved, we can help keep children safe, families together, and prevent subsequent episodes. Mandated reporting is a tool that helps fill a gap in care that allows us to advocate for children’s safety and well-being.

  5. Thank you for this very compelling and thought provoking article. As a social worker and board certified behavior analyst who has worked with children for many years, I have witnessed firsthand the ways in which our current child welfare system disproportionately targets people of color, single-parent households, people who live in poverty, and people who diverge from cultural norms. In addition to all of this, I have also seen the child welfare system being weaponized by one parent against another in tumultuous custody battles, by schools against parents, and by other parties, often to the severe social-emotional detriment of children. I agree that our current system is completely biased and broken. While I’m admittedly still struggling with the notion of completely overhauling mandated reporting, I definitely believe that something needs to change so that we can do better by children and families.
    I also really appreciate your bringing up the Maya documentary. I have to admit that as a mandated reporter myself, there was a part of me that empathized with the physicians who were tasked with providing care for Maya. As depicted in the documentary, Maya’s mother chose to treat her daughter’s neuropathic pain using an unconventional intervention–namely, administering ketamine infusions–that has a yet-to-be determined evidence base. While there was a lot of grey area in this story, and while the physicians in this story could have opted to respect this mother’s wishes and to follow her lead in treatment based on their clinical judgment, our current system of mandated reporting leaves no room for grey area. As stated in this article, countless physicians overreport for fear not only of being criminally prosecuted, but for fear of losing their licenses to practice should the worst case scenario occur. The Gabriel Fernandez story, in which social workers were criminally charged for not removing Gabriel from his home after receiving reports of horrendous child abuse, and others like this instill deep fear into the hearts of countless medical and helping professionals that they may wind up handcuffed in court if they do not do their due diligence.
    I did want to mention that contrary to widespread belief, although mandated reporters are technically immune from the consequences of mandated reporting, they often do face civil penalties, retaliation, and harassment from family members after reports are made. Although immunity and anonymity are good concepts in theory, in actuality they do not always play out and I believe this leads to a lot more underreporting than we realize. My concern is that completely doing away with mandated reporting will only further deter professionals from making reports when reports are warranted to protect children in profoundly dangerous situations. I’m not quite sure what the solution is, but it’s definitely time for some type of reform so that we can better serve our kids.

    Jennifer Lebowitz, MSN, LBA, LMSW

  6. Thanks so much for your comment. The Maya case is definitely made complex by the ketamine. Yet the hospital was treating the pain condition that the complex of doctors, social workers, etc. deemed fake, making the claims of Munchausen syndrome by proxy. The defense just rested its case and the family (Maya and her father) will testify. While I do oppose mandatory reporting, there are possible compromises. Too often, reporting leads to an investigation and later claims are deemed unsubstantiated. Families are completely torn apart in the meantime. There should be constitutional protection that include search warrants, due process prior to custody loss, clear and convincing evidence as a standard…without these, families are guilty until proven innocent.

  7. So pleased to update that the Kowalski family was awarded 261 million dollars — the jury found the hospital engaged in false imprisonment and battery and contributed to Maya’s mother’s suicide. The jury also awarded an additional $50 million in punitive damages. Hopefully, this verdict will deter child protective services and hospitals. The hospital does plan to appeal.

  8. This article and the facts of the Kowalski case offer a heartbreaking backdrop for reforming a legally inequitable and morally unethical system for reporting suspected child abuse and neglect on a national level. The sheer lack of consistency in oversight and implementation of constitutional due process protections with basic evidentiary standards is shocking. Search warrants, due process prior to custody loss, clear and convincing evidence, etc. are certainly not novel concepts to any state enforcement agency.
    Inconsistency in state reporting and removal standards is magnified by what seem to be intentionally vague and overly broad statutorily defined terms. State variation in child welfare laws include highly subjective neglect standards and broad immunity for good faith claims that disproportionately impact low-income populations and chronically underserved communities in cyclical fashion – effectively perpetuating and penalizing poverty by proxy.
    Sweeping mandatory reporting requirements for suspected abuse or neglect do not add value where the system lacks necessary transparency and oversight, the reporter lacks necessary accountability or training, and the reporting process lacks necessary uniform constitutional protections and evidentiary due process standards.
    Neglect as defined in terms of public health is different from the broader legal definitions used in many state statutes and child welfare laws. The lack of consistent child welfare reporting requirements with built-in legal protections informed by constitutional due process fuels traumatic false positives in child abuse and neglect cases that can have immediate and long-term negative impacts on child welfare.
    Mandatory reporting liabilities tend to undermine social trust where potential civil and criminal charges incentivize over-reporting in an already overburdened child welfare system. The resulting increase in unsubstantiated reports have the potential to do long-term damage to family support systems and remove resources otherwise available to families in need. The long-term negative impacts of child welfare laws enforced without judicial oversight leave families in vulnerable populations without necessary protections from unequal treatment under the law.
    Implicit and explicit biases may present as unconscious, conscious, individual, or institutional and in this case seem inherently linked to subjective standards mandated by state child welfare laws. The risk of trauma to the child and family is pre-existing in child welfare systems with a demonstrable history of structural biases that disproportionately impact chronically underserved low-income and indigenous populations.
    Reporting and removal practices between states also vary significantly and can make meaningful reform seem elusive without actionable national standards with built-in constitutional protections and oversight. For example, in some rural low-income areas like Oklahoma, child welfare interventions were imposed even before statehood to systematically assimilate and abuse the region’s indigenous and multiracial populations. Federal minimum standards and state guidance for on-going reform efforts continue but well over a hundred years later challenges remain to enforcing protective provisions of the Indian Child Welfare Act.
    The destructive socio-cultural and economic impacts of biased intervention systems have proven long term in the U.S. and are acutely felt in vulnerable low-income populations across the nation. Bias has made its way into practically every meaningful social system of governance we have developed – at both the state and national levels.
    Proactive legal policy reforms and culturally inclusive procedural safeguards are necessary to ethically address the structural inequities that contribute to growing wealth disparities and fuel inequitable health outcomes for chronically underserved populations impacted by the poverty industrial complex.

  9. While I appreciate the motivation behind the desire to remove mandatory reporters, implementing such a change risks allowing numerous instances of genuine child abuse to slip under the radar, potentially going unnoticed or unreported. I do, however, concur with the notion of discontinuing the subspecialty of child abuse pediatricians. The arguments presented in this article are not only compelling, but also highlight the risk that a physician focused solely on “child abuse” may overlook alternative explanations for a child’s bruises, cuts, or injuries due to their skewed perceptions, potentially leading to overreporting of cases that may not need to be reported in the first place. Nevertheless, even if it is acknowledged that there are several instances of suspected child abuse that ultimately prove to be false allegations, shouldn’t physicians, bound by the Hippocratic Oath’s directive to “do no harm,” and guided by the principles of beneficence and nonmaleficence, maintain the fiduciary duty to report suspicions of child abuse? What if the eradication of mandatory reporting leads to numerous cases slipping through the cracks, and numerous children left in unsafe homes? If mandatory reporting is abolished, it is possible there may be a potential decrease in false allegations, however, there is an equally plausible risk of legitimate child abuse cases escaping detection and subsequent action. Clinicians might find themselves hesitant to report suspicions due to uncertainty about the validity of their concerns. Without the directive to report, they may choose not to err on the side of caution, possibly to spare families and children from the involvement of Child Protective Services and associated measures in cases where abuse may not actually be occurring. That being said, we must explore alternative approaches to ensure that mandatory reporting does not disproportionately affect any particular race or group of people, a challenge that presents considerable complexity within itself. This concern extends beyond child abuse cases alone, although for the sake of discussion, let’s narrow our focus to that particular topic for now. Wouldn’t it be more equitable to ensure that a mandate is in place, so that any parent suspected of abusing their child is reported and questioned, rather than leaving it up to the clinician’s discretion on who they report, leaving the door open for inadvertent prejudice or discrimination? I believe that clinicians should bear the responsibility of initiating reports, as cases might otherwise stay under the radar since other individuals with authority in a child’s life, such as teachers or coaches, may not detect subtle signs as readily as a pediatrician would. However, I also recognize and agree with the point that child abuse is a legal matter rather than a medical diagnosis, even further highlighting the importance of clinicians filing the initial report, with subsequent handling by legal professionals. This approach prioritizes caution over potential oversight—a stance rooted in the paramount importance of a child’s safety, even if it entails occasional false allegations. A physician’s obligation lies with the patient, in this case, the child, rather than with the parent who may face unfounded accusations.

Leave a Reply

Your email address will not be published. Required fields are marked *