51 a and school counselor liability powerpoint

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51 a and school counselor liability powerpoint

  1. 1. SCHOOL COUNSELORSCHOOL COUNSELOR LIABILITY AND CHILD ABUSELIABILITY AND CHILD ABUSE REPORTINGREPORTING
  2. 2.  History of Mandated ReportingHistory of Mandated Reporting  Dr. C. Henry Kempe – pediatrician alarmed atDr. C. Henry Kempe – pediatrician alarmed at inordinate # of nonaccidental injuries in hisinordinate # of nonaccidental injuries in his practicepractice  1961 – hosted American Academy of1961 – hosted American Academy of Pediatrics Symposium on child abuse – drewPediatrics Symposium on child abuse – drew widespread attention to the epidemic of childwidespread attention to the epidemic of child abuseabuse  Dr. Kempe coined phrase “battered childDr. Kempe coined phrase “battered child syndrome”syndrome”
  3. 3.  By late 1960s, because of Dr. Kempe’s work, allBy late 1960s, because of Dr. Kempe’s work, all states had enacted child abuse mandated reportingstates had enacted child abuse mandated reporting statutes requiring physicians to report suspected childstatutes requiring physicians to report suspected child abuse/neglect to authoritiesabuse/neglect to authorities  Dr. Kempe’s work led to Congress enacting ChildDr. Kempe’s work led to Congress enacting Child Abuse Prevention & Treatment Act of 1974Abuse Prevention & Treatment Act of 1974  By late 1970s, state mandated reporting statutesBy late 1970s, state mandated reporting statutes were expanded to include other professionals,were expanded to include other professionals, including school personnel such as teachers andincluding school personnel such as teachers and school counselorsschool counselors
  4. 4.  Why include school personnel?Why include school personnel?  On the frontlines -- with children every dayOn the frontlines -- with children every day  Highly unique profession, having daily, consistent,Highly unique profession, having daily, consistent, ongoing contact with children, allowing schoolongoing contact with children, allowing school personnel to notice even subtle changes inpersonnel to notice even subtle changes in studentsstudents  Many say school personnel are in best position toMany say school personnel are in best position to observe signs of possible child abuse/neglectobserve signs of possible child abuse/neglect
  5. 5.  StatisticsStatistics  4 children die each day due to child4 children die each day due to child abuse/neglectabuse/neglect  3 million reports of suspected child3 million reports of suspected child abuse/neglect in 2005abuse/neglect in 2005  But actual incidence of abuse estimated byBut actual incidence of abuse estimated by experts to be 3 times that numberexperts to be 3 times that number  Experts note that child abuse is significantlyExperts note that child abuse is significantly underreportedunderreported
  6. 6.  Rate at which school personnel reportRate at which school personnel report suspected abuse/neglect simply notsuspected abuse/neglect simply not consistent with daily contact with children &consistent with daily contact with children & known prevalence of child abuseknown prevalence of child abuse  While school personnel in general have beenWhile school personnel in general have been shown to underreport child abuse/neglect,shown to underreport child abuse/neglect, school counselors in particular have beenschool counselors in particular have been said to be among the worst offenders in failingsaid to be among the worst offenders in failing to report suspected abuse/neglectto report suspected abuse/neglect
  7. 7.  School counselors fail to report and thus underreportSchool counselors fail to report and thus underreport abuse/neglect despite fact that counselors state thatabuse/neglect despite fact that counselors state that encountering suspected cases of abuse/neglect is aencountering suspected cases of abuse/neglect is a common occurrencecommon occurrence  School counselors have expressed anxiety & fearSchool counselors have expressed anxiety & fear when confronted with having to decide whether towhen confronted with having to decide whether to report a case of suspected abuse/neglectreport a case of suspected abuse/neglect  In fact, child abuse reporting is 2In fact, child abuse reporting is 2ndnd most frequentlymost frequently cited ethical dilemma encountered by schoolcited ethical dilemma encountered by school counselors, with 1counselors, with 1stst being suicide determinationsbeing suicide determinations
  8. 8.  Reasons for Failing to ReportReasons for Failing to Report  School counselors consistently cite fear ofSchool counselors consistently cite fear of being sued by parents/guardians/allegedbeing sued by parents/guardians/alleged perpetrators for reporting suspected abuseperpetrators for reporting suspected abuse that is later found to have beenthat is later found to have been unsubstantiatedunsubstantiated  This is a grave misconceptionThis is a grave misconception  InIn ALLALL states, it is FAILURE TO REPORTstates, it is FAILURE TO REPORT that triggers liability, NOT reporting what turnsthat triggers liability, NOT reporting what turns out to be an inaccurate reportout to be an inaccurate report
  9. 9.  Statutory Liability/Criminal LiabilityStatutory Liability/Criminal Liability for failure tofor failure to report -- in all states – failure to report is areport -- in all states – failure to report is a misdemeanor – punishment varies state to state,misdemeanor – punishment varies state to state, ranging from 10 day – 1 year jail sentence and/orranging from 10 day – 1 year jail sentence and/or $500 - $1000 fine$500 - $1000 fine  Immunity from liabilityImmunity from liability exists in all states -- even ifexists in all states -- even if it is later established that no abuse/neglect existed,it is later established that no abuse/neglect existed, school counselors are immune from liability forschool counselors are immune from liability for reporting suspected abuse/neglect so long as theirreporting suspected abuse/neglect so long as their report was made in good faithreport was made in good faith
  10. 10.  Another reason cited for failure to report suspectedAnother reason cited for failure to report suspected abuse/neglect is fear of job lossabuse/neglect is fear of job loss  While in some states, school counselors can andWhile in some states, school counselors can and have faced disciplinary action, job termination, andhave faced disciplinary action, job termination, and professional license suspension or loss, for filingprofessional license suspension or loss, for filing report that later turns out to be unsupported, in MA,report that later turns out to be unsupported, in MA, the mandatory reporting statute fully protects schoolthe mandatory reporting statute fully protects school counselorscounselors  In MA, again, so long as report was made in goodIn MA, again, so long as report was made in good faith, school system cannot “discharge, or in anyfaith, school system cannot “discharge, or in any manner discriminate or retaliate against” a schoolmanner discriminate or retaliate against” a school employee who makes a good faith reportemployee who makes a good faith report
  11. 11.  Civil liability for failure to reportCivil liability for failure to report – some states– some states have allowed mandated reporters to be sued byhave allowed mandated reporters to be sued by parents/guardians for negligence in failing to file aparents/guardians for negligence in failing to file a report of suspected abuse/neglect –report of suspected abuse/neglect – parents/guardians allowed to recover damages ($$!)parents/guardians allowed to recover damages ($$!) caused by failure to reportcaused by failure to report  NOT in MANOT in MA – It has been held by the Courts in MA– It has been held by the Courts in MA that thethat the onlyonly liability for failure to report arises fromliability for failure to report arises from the mandated reporter statute -- misdemeanor withthe mandated reporter statute -- misdemeanor with imposition of fine of up to $1,000 – parents/guardiansimposition of fine of up to $1,000 – parents/guardians have no right to sue for failure to reporthave no right to sue for failure to report  Bottom lineBottom line – no private right of action– no private right of action  Cannot be sued by, for example, parents/guardians, for filingCannot be sued by, for example, parents/guardians, for filing report that later turns out to be unsubstantiated.report that later turns out to be unsubstantiated.  Cannot be sued for failing to file report – criminal fine only.Cannot be sued for failing to file report – criminal fine only.
  12. 12.  Because child abuse/neglect is significantlyBecause child abuse/neglect is significantly underreported, some child abuse advocatesunderreported, some child abuse advocates are pushing to increase civil and criminalare pushing to increase civil and criminal liability to encourage more reportingliability to encourage more reporting  Existing potential liability – e.g., just a fine --Existing potential liability – e.g., just a fine -- not seen as enough to encourage reportingnot seen as enough to encourage reporting  Also, criminal sanctions are not being pursuedAlso, criminal sanctions are not being pursued and prosecutedand prosecuted
  13. 13.  Legal & Ethical Duty to ReportLegal & Ethical Duty to Report  Ethical guidelines require school counselorsEthical guidelines require school counselors to report suspected abuse/neglect – see ACAto report suspected abuse/neglect – see ACA and ASCA ethical standards – must discloseand ASCA ethical standards – must disclose otherwise confidential information to preventotherwise confidential information to prevent danger to student and/or where legaldanger to student and/or where legal requirements demand disclosurerequirements demand disclosure  ASCA Position Statement: ChildASCA Position Statement: Child Abuse/Neglect Prevention –Abuse/Neglect Prevention –  professional school counselors have a legal, moralprofessional school counselors have a legal, moral and ethical responsibility to reportand ethical responsibility to report  professional school counselors are instrumental inprofessional school counselors are instrumental in early detectionearly detection
  14. 14.  Statutes supersede ethical guidelines – it’sStatutes supersede ethical guidelines – it’s not merely an ethical issue – you have a legalnot merely an ethical issue – you have a legal duty to reportduty to report  MA statute – M.G.L. c. 119, s. 51A (“51A”) – ifMA statute – M.G.L. c. 119, s. 51A (“51A”) – if in your professional capacity you havein your professional capacity you have “reasonable cause to believe” that child under“reasonable cause to believe” that child under 18 is suffering physical or emotional injury18 is suffering physical or emotional injury due to abuse or neglect by adue to abuse or neglect by a caretakercaretaker, you, you MUST report to DSS “immediately”MUST report to DSS “immediately”
  15. 15.  ““Caretaker” very broadly defined – parents,Caretaker” very broadly defined – parents, guardians or any other person entrusted withguardians or any other person entrusted with responsibility of child’s health or welfare –responsibility of child’s health or welfare – includes babysitters, and can even be aincludes babysitters, and can even be a babysitter who is under 18babysitter who is under 18  BUT, it is NOT up to you to determine ifBUT, it is NOT up to you to determine if alleged abuser is a “caretaker” – it is DSS’salleged abuser is a “caretaker” – it is DSS’s job to screen for thisjob to screen for this  Signs & symptoms not always “black & blue” –Signs & symptoms not always “black & blue” – but any “reasonable cause to believe”but any “reasonable cause to believe” requires reporting – must file 51A reportrequires reporting – must file 51A report  ““Reasonable cause to believe” intentionallyReasonable cause to believe” intentionally sets a very low thresholdsets a very low threshold
  16. 16.  Minimal degree of suspicion is all that isMinimal degree of suspicion is all that is required – even slight suspicion is enough torequired – even slight suspicion is enough to trigger reporting dutytrigger reporting duty  Do NOT need proof of abuse/neglect – youDo NOT need proof of abuse/neglect – you are NOT a fact-finder or an investigator – thatare NOT a fact-finder or an investigator – that is DSS’s jobis DSS’s job  You also are not even allowed to weighYou also are not even allowed to weigh credibility issues – can get stickycredibility issues – can get sticky
  17. 17.  So what if you have some suspicions but they areSo what if you have some suspicions but they are clouded by doubts, as well – even with someclouded by doubts, as well – even with some uncertainty, filing a report is always adviseduncertainty, filing a report is always advised  Can consult with colleagues – but bottom line is, if youCan consult with colleagues – but bottom line is, if you have even slight suspicion, you must reporthave even slight suspicion, you must report  When you consult, do not identify the child unlessWhen you consult, do not identify the child unless absolutely necessaryabsolutely necessary  Can call DSS even anonymously to run matter byCan call DSS even anonymously to run matter by agency – determine if reportableagency – determine if reportable
  18. 18.  Again, so long as “reasonable cause toAgain, so long as “reasonable cause to believe” exists, reporter is immune from allbelieve” exists, reporter is immune from all liability, both civil & criminal, for reportingliability, both civil & criminal, for reporting even what turns out to be a false report soeven what turns out to be a false report so long as report was made in good faithlong as report was made in good faith  And again, in MA, your job is safeAnd again, in MA, your job is safe  Purpose of granting immunity and jobPurpose of granting immunity and job protection is to encourage reporting withoutprotection is to encourage reporting without fear of litigation or job lossfear of litigation or job loss
  19. 19.  Note, however, that in MA, a “frivolous” reportNote, however, that in MA, a “frivolous” report is subject to a fine of up to $1,000is subject to a fine of up to $1,000  In addition to knowing your statutory duty toIn addition to knowing your statutory duty to report, you must know your school’s policy –report, you must know your school’s policy – but if a superior advises you not to report, ifbut if a superior advises you not to report, if you have a suspicion, you nevertheless mustyou have a suspicion, you nevertheless must reportreport  You expose yourself to liability ONLY whenYou expose yourself to liability ONLY when you FAIL to reportyou FAIL to report
  20. 20.  In MA, 51A provides very broad safety net forIn MA, 51A provides very broad safety net for mandated reporters for reporting theirmandated reporters for reporting their suspicions – no risk of liability or job loss --suspicions – no risk of liability or job loss -- authorities would rather have you risk beingauthorities would rather have you risk being wrong and report your suspicions, than riskwrong and report your suspicions, than risk being wrong and not reportbeing wrong and not report
  21. 21.  Education & TrainingEducation & Training  Research shows that school counselors andResearch shows that school counselors and other school personnel are not knowledgeableother school personnel are not knowledgeable about:about:  their statutory dutiestheir statutory duties  signs & symptoms of abuse or neglectsigns & symptoms of abuse or neglect
  22. 22.  Need to know how to recognize & reportNeed to know how to recognize & report abuse/neglectabuse/neglect  Extensive education and training needed onExtensive education and training needed on duties, misconceptions and facts re: potentialduties, misconceptions and facts re: potential liability and signs & symptomsliability and signs & symptoms  Education and training also needed on how toEducation and training also needed on how to handle a child whom school counselorhandle a child whom school counselor believes is being abused or neglectedbelieves is being abused or neglected
  23. 23.  Common SenseCommon Sense  Director of Guidance – lack of common sense & basicDirector of Guidance – lack of common sense & basic knowledgeknowledge  You need to know that ignorance of statutoryYou need to know that ignorance of statutory reporting requirements is NEVER a defense for yourreporting requirements is NEVER a defense for your failure to report a case of suspected abuse/neglect –failure to report a case of suspected abuse/neglect – you are required to report and assumed to know youryou are required to report and assumed to know your statutory dutystatutory duty  Too many news reports exist of children being foundToo many news reports exist of children being found severely abused, neglected and even murderedseverely abused, neglected and even murdered where school counselors had suspicions but failed towhere school counselors had suspicions but failed to reportreport
  24. 24. QUESTIONS:QUESTIONS: 1.1. You are a MA school counselor who reported a case ofYou are a MA school counselor who reported a case of suspected abuse to DSS involving a 5suspected abuse to DSS involving a 5thth grade studentgrade student at your school. The stepmother is the allegedat your school. The stepmother is the alleged perpetrator. DSS finds report to be unsupported. Aperpetrator. DSS finds report to be unsupported. A lawyer advises the father and stepmother to file suitlawyer advises the father and stepmother to file suit against you for defamation and negligence, claimingagainst you for defamation and negligence, claiming you defamed them and acted negligently in reportingyou defamed them and acted negligently in reporting false abuse, causing them to suffer significant damagefalse abuse, causing them to suffer significant damage and loss as a result of your false report.and loss as a result of your false report. Do you agree with the lawyer’s advice?Do you agree with the lawyer’s advice?
  25. 25. 2.2. You are a MA school counselor who fails toYou are a MA school counselor who fails to report a case of suspected abuse with respectreport a case of suspected abuse with respect to one of your 4to one of your 4thth grade students despite thegrade students despite the fact that you had some concerns that thefact that you had some concerns that the student was being abused. The student isstudent was being abused. The student is found dead, having been raped and murderedfound dead, having been raped and murdered by an 18 year old babysitter. A lawyer advisesby an 18 year old babysitter. A lawyer advises the student’s parents to file suit against youthe student’s parents to file suit against you claiming you were negligent for failing toclaiming you were negligent for failing to report suspected abusereport suspected abuse.. Do you agree with the lawyer’s advice?Do you agree with the lawyer’s advice?
  26. 26. 3.3. You have been a school counselor for two yearsYou have been a school counselor for two years in MA. During this time, you have reported 6in MA. During this time, you have reported 6 cases of suspected abuse to DSS, none of whichcases of suspected abuse to DSS, none of which have been found to be supported by DSS. Youhave been found to be supported by DSS. You have another student whom you suspect is beinghave another student whom you suspect is being abused. What do you do?abused. What do you do?
  27. 27. 4.4. You are a MA school counselor out shopping at aYou are a MA school counselor out shopping at a department store. When entering the dressingdepartment store. When entering the dressing room, you see one of your assigned students,room, you see one of your assigned students, Jessie, who is in 8Jessie, who is in 8thth grade, entering the dressinggrade, entering the dressing room with her mother. While in the dressing room,room with her mother. While in the dressing room, you overhear a woman say, “Jessie, if you don’tyou overhear a woman say, “Jessie, if you don’t shut up and stop complaining, I am going to beatshut up and stop complaining, I am going to beat you again when we get home.”you again when we get home.” Are you mandated to file a 51A report?Are you mandated to file a 51A report?
  28. 28. 5.5. You are new as a school counselor at a MA school. AYou are new as a school counselor at a MA school. A student gets in trouble for yelling and swearing at astudent gets in trouble for yelling and swearing at a teacher and may be suspended – decision has not yetteacher and may be suspended – decision has not yet been made. In the meantime, he is in your office andbeen made. In the meantime, he is in your office and tells you that his mother beats him almost nightly, andtells you that his mother beats him almost nightly, and he says she will literally kill him if he is suspended.he says she will literally kill him if he is suspended. You want to file a 51A report, but your principal tellsYou want to file a 51A report, but your principal tells you not to because the boy has been known to lie inyou not to because the boy has been known to lie in the past and is a troublemaker. What do you do?the past and is a troublemaker. What do you do?

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