Pursuit o f Ch. 415 Neglect or Abuse o f a Vulnerable Ad.docx

Pursuit o f Ch. 415 Neglect or
Abuse o f a Vulnerable Adult Claims
Against Hospitals in Florida
by Stephen P. Smith
F
lorida law provides statutory causes of action for
medical malpractice (F.S. Ch. 766) and neglect of a
vulnerable person (Ch. 415). This article discusses
efforts by injured p a tie n ts to recover ag a in st
hospitals under Ch. 415 ra th e r th a n Ch. 766. Specifically,
it addresses 1) w hether a Ch. 415 neglect of a vulnerable
adult claim is an available remedy for a p atient to pursue
recovery against a hospital; and 2) if so, w hat actions by
the hospital or its staff can serve as a foundation for a
patient’s Ch. 415 claim.
Regarding the first issue, Ch. 415’s statutory language
and the caselaw on this issue suggest patients, if they
qualify as a vulnerable adult under Ch. 415, have a right
of action under Ch. 415 separate from any other cause
of action available to them , including Ch. 766 medical
malpractice claims. Regarding the second issue, the same
caselaw also makes clear a Ch. 415 claim against a hospital
cannot be based on allegations of medical negligence.
These two principles seem straightforward; in reality,

they are anything but. Instead, the same caselaw th a t
suggests patients have a remedy under Ch. 415 against
a hospital independent of other claims the patient may
have against the hospital has created significant problems
in understanding 1) w hat actions by a hospital or its staff
could make the hospital a Ch. 415 caregiver (an essential
element of a Ch. 415 neglect of a vulnerable adult claim);
and 2) w hether allegations plead in support of a Ch. 415
claim are allegations of medical negligence.
Regarding the first point, Ch. 415’s statutory language
is clear a person or entity m ust affirmatively accept a care-
giver role before a vulnerable adult can pursue a Ch. 415
claim against th a t person or entity. Although two Florida
district courts of appeal have commented in dicta hospitals
may serve as Ch. 415 caregivers, neither decision provides
any analysis or discussion as to w hat actions by the hospi-
tal or its staff could indicate such affirmative acceptance.
N either does the language of Ch. 415 itself. Therefore, it is
nearly impossible to determ ine w hat actions by a hospital
or its staff could constitute such affirmative acceptance.
Second, Ch. 415 provides “neglect” of a vulnerable adult
can consist of a caregiver’s failure to provide a vulnerable
adult with medicine or medical services. Despite this lan -
guage, the caselaw referenced above states Ch. 415 claims
against hospitals cannot be based on allegations of “medical
negligence,” which Ch. 766 defines as a claim arising out of
the rendering of, or the failure to render, medical care or
services. Although Ch. 415’s definition of neglect provides
th a t a Ch. 415 neglect claim can be based on failing to
provide a vulnerable adult w ith medicine or medical ser-
vices, this caselaw reads into Ch. 415 a requirem ent th a t
a p atien t’s Ch. 415 claim m ust be based on actions by the
hospital or its staff th a t do not relate to the rendering or

failure to render medical care or services.
Establishing th a t a Ch. 415 claim against a hospital is
not based on allegations of medical negligence is difficult,
as an extensive body of caselaw construes virtually any
alleged actions by a hospital or its staff as allegations of
medical negligence, no m atter w hat claim is premised on
those actions. This caselaw suggests there are few allega-
tions a patient can make to support a Ch. 415 claim against
a hospital a court will not consider allegations of medical
negligence.
This is the correct result. Hospitals only provide medical
care or services and Ch. 766, not Ch. 415, was intended by
THE FLORIDA BAR JOURNAL/MARCH 2015 27
The legislature intended to give these individuals
“the same rights as other citizens and, at the same
time, protect the individual from abuse, neglect and
exploitation.” The act provides for assistance and services
for vulnerable adults, including protective supervision.
the Florida Legislature to be the sole
remedy for patients injured by health
care providers like hospitals. Patients,
therefore, should be confined to Ch.
766 to a sse rt any claims against a
hospital based on the hospital or its
staff’s actions.
The Relevant Statutes: F.S. Chs.

415 and 766
• Neglect o f a Vulnerable Adult: Ch.
415 — Ch. 415 was enacted as part
of the Adult Protective Services Act,
which was passed to assist “vulner-
able ad u lts,” whom th e act defines
as “a person 18 years of age or older
whose ability to perform the normal
activities of daily living or to provide
for his or her own care or protection is
impaired due to a mental, emotional,
sensory, long-term physical, or devel-
opm ental disability or dysfunction,
or brain damage, or th e infirmities
of aging.”1 The legislature intended
to give these individuals “the same
rights as other citizens and, a t the
same time, protect the individual from
abuse, neglect and exploitation.”2 The
act provides for assistance and ser-
vices for vulnerable adults, including
protective supervision.3 The act also
provides a civil remedy for any vul-
nerable adult who has been abused,
neglected, or exploited.4 U nder this
provision, a v u ln e ra b le a d u lt can
recover actual and punitive damages,
costs, and attorneys’ fees.5 The statute
also states, “The remedies provided
in this section are in addition to and
cumulative with other legal and ad-
m inistrative remedies available to a
vulnerable adult.”6
Ch. 415 defines “ab u se” as “any

willful act or threatened act by a re la-
tive, caregiver, or household member
which causes or is likely to cause sig-
nificant im pairm ent to a vulnerable
adult’s physical, mental, or emotional
health.”7 It defines “neglect” as:
[T]he failure or omission on the p art of the
caregiver or vulnerable adult to provide the
care, supervision, and services necessary to
maintain the physical and mental health
of the vulnerable adult, including, but not
limited to, food, clothing, medicine, shelter,
supervision, and medical services, which a
prudent person would consider essential
for the well-being of a vulnerable adult.
The term “neglect” also means the failure
of a caregiver or vulnerable adult to make
a reasonable effort to protect a vulnerable
adult from abuse, neglect, or exploitation
by others. “Neglect” is repeated conduct
or a single incident of carelessness which
produces or could reasonably be expected to
result in serious physical or psychological
injury or a substantial risk of death.8
A “caregiver” is defined by Ch. 415 as:
[AJ person who has been entrusted with
or h as assu m ed th e resp o n sib ility for
frequent and regular care of or services
to a vulnerable adult on a temporary or
perm anent basis and who has a commit-
ment, agreement, or understanding with
th a t person or th a t p erson’s g u ard ian
th a t a caregiver role exists. “Caregiver”

includes, but is not limited to, relatives,
household members, guardians, neighbors,
and employees and volunteers of facilities
as defined in subsection C9).9
F inally, “e x p lo ita tio n ” in clu d es
m is a p p ro p ria tin g th e v u ln e ra b le
ad u lt’s funds or property or failing
to use the vulnerable adult’s income
and assets for his or h er support or
m aintenance.10
• Medical Malpractice: Ch. 766— Ch.
766 is the vehicle for asserting claims
for medical negligence against health
care providers in Florida. The Florida
Legislature enacted Ch. 766 in 1985 “to
provide a plan for prompt resolution of
medical negligence claims.”11
Ch. 766 defines a “‘[c]laim for medi
cal negligence’ or ‘claim for medical
malpractice’ [as] a claim, arising out
of the rendering of, or the failure to
render, medical care or services.”12 To
prove a claim of medical negligence,
a plain tiff m ust prove “th e alleged
actions of the h ea lth care provider
represented a breach of the prevail-
ing pro fessio n al s ta n d a r d of care
for th a t health care provider.”13 The
prevailing professional stan d ard of
care is the “level of care, skill, and
trea tm e n t which, in light of all rel-
evant surrounding circumstances, is

recognized as acceptable and appro-
priate by reasonably p rudent similar
health care providers.”14 To determine
if a plaintiff is pursuing a medical
negligence claim versus some other
claim, a court m ust “look to w hether
the plaintiff m ust rely on the medi-
cal negligence standard of care as set
forth in [§]766.102(1).”15
Ch. 766 contains several procedural
requirem ents th a t m ust be satisfied
before suit can be filed.16 The claimant
first m ust conduct an investigation to
corroborate 1) there are reasonable
grounds to believe all prospective
defendants were negligent in his or
her tre a tm e n t or care; and 2) th a t
negligence resulted in injury.17 This
corroboration consists of “a verified
w ritten medical expert opinion” from
a medical expert, whom Ch. 766 de-
fines as a health care provider in the
same or sim ilar specialty as the alleg-
edly negligent h ealth care provider.18
After the presuit investigation is
complete, a claimant m ust give w rit-
ten notice to the allegedly negligent
health care provider(s) of his or her
intent to file suit.19 The notice m ust
be accompanied by the verified medi-
cal expert opinion.20 Upon receipt of
the notice, the health care provider’s
28 THE FLORIDA BAR JOURNAL7MARCH 2015

insurer or the health care provider (if
self-insured) has 90 days to investigate
the claim.21 During this presuit period,
the p arties can engage in informal
discovery, such as written questions,
docum ent re q u e sts, an d unsw orn
statem ents.22 If the claim is denied,
th a t denial m ust be accompanied by a
verified medical expert opinion.23 Upon
denial of the claim or the passage of
90 days from receipt of the notice, the
claimant has 60 days or the remain-
ing period in the two-year medical
m alpractice s ta tu te of lim itations,
whichever is greater, to file suit.24
The Relevant Caselaw
In Bohannon v. Shands Teaching
Hospital and Clinic, Inc., 983 So. 2d
717 (Fla. 1st DCA 2008), a p atien t
received a transplant at the defendant
acute care hospital and was alleg-
edly improperly intubated,25 leaving
th e p a tie n t in a vegetative sta te .26
The patient’s family term inated life
support after 79 days and sued the
hospital, asserting a Ch. 415 claim
for ‘“medical abuse and neglect result
ing in wrongful death.’”27 In support
of th is claim, th e plaintiffs alleged
the p atien t “entered the defendant

hospital for tran sp lan t surgery, was
im properly in tu b ated post-surgery,
and as a result, ‘developed profound
encephalopathy and persistent veg-
e ta tiv e s ta te .’”28 P lain tiffs fu rth e r
alleged the patient was a vulnerable
adult, the hospital and its employees
were “‘entrusted with, or assumed the
responsibility for, frequent and regu-
la r care of services to [the patient]
w ith th e com m itm ent, ag reem en t
or u n d ersta n d in g th a t w ith him a
caregivers [sic] role existed as th a t
term is defined in [§]415.103(4),’” and
the hospital had provided the patient
‘“with day or residential care or tre a t
m ent and is a ‘facility’ as th a t term is
defined by [§]415.102(8).’”29 Plaintiffs
further alleged:
At all times material hereto [defendant
had a non-delegable duty to provide to
the deceased, Scott Allen Gould, a patient
placed entirely and exclusively in their
[sic] care, the knowledge, skill and care
which is generally used in similar cases
and circumstances by healthcare provid-
ers in communities having similar medical
standards and available facilities, or that
level of care, skill and treatment which, in
light of all relevant surrounding circum-
stances, is recognized as acceptable and
appropriate by reasonably prudent similar
healthcare providers. 30
The d e f e n d a n t h o s p ita l m oved

to dism iss th e Ch. 415 claim and
“assert[ed ] th a t c h a p te r 415 ‘was
not enacted to impose civil liability
for medical negligence beyond th a t
already p erm itted u n d er F lo rid a’s
m edical m alpractice and wrongful
death statutes, especially not against
acute care hospitals which intend only
to provide limited short term surgi-
cal care to patients, and which never
intended to provide day or residential
care to a vulnerable a d u lt.’”31 The
hospital also argued Ch. 415 was “‘not
intended to apply to medical negli-
gence of the type described in Count
I of the [a] mended [c]omplaint’” and
th a t the plaintiffs’ Ch. 415 claim was
really a Ch. 766 medical negligence
claim, whose presuit requirements the
plaintiffs had not complied with.32 The
hospital furth er argued the plaintiffs
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failed to state a Ch. 415 claim because
they did not sufficiently allege there
was an agreem ent between the pa-

tient and the hospital to provide fre-
quent and regular care to the patient,
as required by Ch. 415.33
The trial court dismissed the Ch.
415 claim, noting, ‘“this is clearly a
medical malpractice case’ and ‘not a
case th a t involves a vulnerable person
and a caregiver.’”34 It gave plaintiffs
leave to file an amended complaint
asserting a medical negligence claim
under Ch. 766, which they did not do.36
The trial court entered final judgment
and plaintiffs appealed.36
The B ohannon court upheld th e
trial court’s dismissal of the Ch. 415
count, noting “th e plaintiffs/appel-
lants sought to make defendant/appel-
lee hospital vicariously liable for the
actions of its healthcare providers u n -
der a medical negligence standard of
care.”37 It further held the allegations
supporting the Ch. 415 claim were
allegations of medical negligence.38
Despite holding the plaintiffs’ al
legations in support of th eir Ch. 415
claim w ere alleg atio n s of m edical
negligence and upholding dismissal
on th a t basis, th e Bohannon court
was unwilling to rule a hospital could
never constitute a caregiver against
whom a Ch. 415 claim can be m ain-
tained, despite being urged to do so by
the defendant hospital and its amicus

curiae, the Florida Hospital Associa-
tion.39 The Bohannon court wrote: “We
reject the position of the hospital and
its amicus curiae because we can con-
ceive of scenarios in which acute care
hospitals m ight become ‘caregivers’
o f‘vulnerable adults’ under the [Ch.)
415 definitions, and might then ‘abuse’
or ‘neglect’ those vulnerable adults.”40
The court’s rationale was:
For example, once [patient] became coma-
tose, he arguably became a “vulnerable
adult” as th a t term is defined in [Ch.] 415,
and once the hospital undertook his care
in th a t condition for the period after the
improper intubation until life support was
term inated, instead of sending him to a
long term care facility, it arguably became
a “caregiver” as th a t term is defined in
chapter 415. If, during the period after the
improper intubation and before [patient]’s
life support was term inated, the hospital’s
agents or employees h ad in te n tio n ally
“abused” or “neglected” him, as those terms
are defined in chapter 415, the hospital
would arguably have been subject to suit
under [F.S. §1415.1111. However, there are
no allegations in the amended complaint
th a t the hospital “abused” or “neglected”
[patient] during the period after he entered
a “persistent vegetative state.”41
The B ohannon court also noted,
however, Ch. 415 “was not intended by
the Florida Legislature to provide an

altern ate cause of action for medical
negligence.”42
The takeaway from Bohannon is 1)
a hospital can be a Ch. 415 caregiver;
and 2) a patient cannot base a Ch. 415
claim against a hospital on allegations
of medical negligence.
Shortly after Bohannon, the Third
D istrict Court of Appeal decided Te-
net South Florida Health System s v.
Jackson, 991 So. 2d 396 (Fla. 3d DCA
2008). In Tenet, the personal repre-
sentative of a patient sued a hospital,
asserting a claim under Ch. 415.43 The
complaint alleged the patient received
pre-operative care a t the hospital, was
adm itted a week later for a carotid
artery procedure, and then remained
in the hospital for 11 days before be-
ing transferred out.44 The complaint
alleged the hospital was negligent in:
[Flailing to ad m in ister proper n u rsin g
care and other medical services and was
negligent by failing to perform an inpatient
nursing assessment; failing to implement
“latex precautions”; failing to adequately
assess and monitor; failing to appreciate
early implications of increasing respira-
tory rate and sore th ro at in a patient with
recent neck surgery and multiple allergies;
and failing to provide appropriate care and
treatm ent.45
The hospital moved to dismiss the

plaintiff’s Ch. 415 claim, arguing it
really was a claim for medical malprac-
tice under Ch. 766 and asserting the
plaintiff failed to comply with Ch. 766’s
presuit notice requirement.46 The trial
court denied the motion to dismiss and
the hospital filed a petition for a writ of
certiorari to quash the order denying
its motion to dismiss.47
The Third DCA reversed the trial
court’s denial of the motion to dismiss,
noting:
Chapter 415 was enacted to protect vulner-
able adults from neglect by caregivers and
specifically defines the terms caregiver and
neglect as used in the statute. Based on the
allegations of the [clomplaint, [defendant
hospital] neither meets the required defini-
tion of a caregiver, nor does the [clomplaint
allege neglect by [defendant hospital] as
defined by the statute.48
In support of this conclusion, the
Tenet court furth er noted:
Based on the allegations of the [clomplaint,
[defendant hospital] does not m eet the
[Ch.] 415 definition of a caregiver. The
allegations in th e C om plaint are th a t
[patient] was adm itted to [hospital], which
is a hospital, for the purpose of a surgical
procedure, a rig h t carotid endarectomy.
Nowhere in the complaint is th ere any al-
legation th a t there existed “a commitment,
agreement, or understanding...that a care-

giver role exist [ed]” between [defendant
hospital] and [patient].49
As in Bohannon, th e Tenet court
noted that, even if the plaintiff had suf-
ficiently alleged the hospital met the
definition of a caregiver under Ch. 415,
the Ch. 415 claim would still be one
for medical negligence.50 The court’s
rationale for this conclusion was:
The [clomplaint alleges th a t [the patient]
was adm itted to [the hospital] for a right
carotid endarectomy, a medical procedure.
[The plaintiff] alleges in ju rie s d u rin g
this hospitalization due to the failure to
perform an inpatient nursing assessment;
failure to implement “latex precautions”;
failure to assess and monitor; failure to
appreciate early implication of increas-
ing resp irato ry ra te and sore th ro at in
a p atien t w ith recent neck surgery and
multiple allergies; and failure to provide
appropriate care and trea tm e n t. These
are all medical care or services which the
p lain tiff claims were eith er negligently
rendered or not rendered a t all resulting
in injury. All of these allegations can be
proven only th ro u g h evidence th a t th e
alleged negligent action or inaction of
a h ealth care provider, i.e., th e n urse or
other medical care providers, fell below
th e prevailing s ta n d a rd of care in th e
community for th a t h ealth care provider
resulting in injury.51
Despite reversing the trial court’s

denial of the hospital’s motion to dis
miss, the Tenet court, like the Bohan-
non court, noted: “This is not to say
th a t a hospital such as [the defendant
hospital] cannot be a caregiver pur-
suant to the statute....W e state only
th at, based on the allegations in this
[clomplaint, [defendent hospital] does
not meet the [Ch.] 415 definition of a
caregiver.”52
M ost of th e p u b lish e d p o s t-Bo-
h a n n o n a n d T enet c ir c u it c o u rt
decisions considering a h o s p ita l’s
m otion to dism iss a p a tie n t’s Ch.
415 claim have denied th e motion
and allowed th e p a tie n t to p ursue a
Ch. 415 claim ag a in st th e hospital.53
In one such case, Baker v. Memorial
Healthcare Group, Inc., No. 16-2010-
30 THE FLORIDA BAR JOURNALVMARCH 2015
CA-2756, 2010 WL 9043410 (Fla.
Cir. Ct. 2010), th e court denied the
hospital’s motion to dismiss because
th e “[p]laintiff’s com plaint, unlike
the com plaint a t issue in Bohannon,
contains factual allegations, which if
viewed in th e light most favorable to
[pllaintiff, allege the elem ents of a
cause of action u n d er [§]415.1111.”
T hat court also noted: “The existence
of a cause of action for medical m al-

practice u n d er [Ch.] 766 does not
necessarily negate the existence of
a claim un d er [Ch.] 415.”54
Bohannon, Tenet, and Ch. 415
Seem to Suggest Patients Can
Bring Ch. 415 Claims Against
Hospitals55
Ch. 415 states the remedies provid-
ed under th a t statu te are in addition
to any other causes of action available
to a vulnerable adult. Specifically,
§415.1111 provides, “The rem edies
provided in this section are in addi-
tion to and cum ulative w ith other
legal and adm in istrativ e remedies
available to a vulnerable adult.”66 This
theoretically includes any Ch. 766
claims a vulnerable adult may have.67
U nder this statutory provision, Ch.
415, therefore, should be construed as
providing a cause of action separate
from Ch. 766.
The existence of a Ch. 415 cause
of action for hospital patients is also
implied in both Bohannon and Tenet ,68
If a hospital can be a patient’s care
giver, as both cases suggest, conceiv-
ably there are scenarios in which a
patient can pursue a Ch. 415 neglect
claim against a hospital, assuming the
patient can satisfactorily allege the
other elements of a Ch. 415 neglect
claim. This is a much more difficult

ta sk th a n one would think, however.
Difficulties Created by Bohannon,
Tenet, and Ch. 415
Although Ch. 415’s statutory lan
g u a g e a n d B o h a n n o n a n d Tenet
suggest there are scenarios in which
patients can pursue Ch. 415 claims
a g a in s t h o sp itals, a p la in tiff still
m ust satisfy two hurdles to do so: 1)
establish the hospital affirmatively
accepted a caregiver role; and 2) es-
tablish the hospital or its staff’s al
leged actions were not allegations of
medical negligence. These are difficult
hurdles to overcome, particularly the
second.
• What Actions Constitute the Hos
p ita l’s A ffirm a tive Acceptance o f a
Role as Caregiver?— The first hurdle,
which is presented by Bohannon and
Tenet, is their lack of guidance as to
what actions on a hospital or its staff’s
behalf could constitute the hospital’s
affirm ative acceptance of a role as
the p a tie n t’s caregiver, a necessary
element of a Ch. 415 claim.
Ch. 415 defines a “caregiver” as a
person “who has been entrusted with
or h as assum ed th e responsibility
for frequent and regular care of or
services to a vulnerable adult on a

tem porary or perm anent basis who
has a commitment, agreement, or u n -
derstanding with th a t person or th a t
person’s gu ard ian th a t a caregiver
role exists.”69 Absent affirmative ac
ceptance of such a role, a person is
not a caregiver for purposes of Ch.
415; however, Ch. 415 does not define
w hat would constitute such “affirma
tive acceptance.”60 N either do Bohan
non or Tenet. In fact, neither decision
provides any guidance on this issue.
In B ohannon, th e h o sp ita l’s “affir
mative acceptance” consisted of its
decision not to send the patient to a
long-term care facility after improper
intubation left the patient in a vegeta-
tive state.61 T hat court provided no
basis for concluding the decision not
to tra n sfe r th e p a tie n t constituted
a com m itm ent or ag reem en t w ith
the patient a caregiver relationship
existed. Clinically, it may have been
perfectly appropriate to keep a patient
in the hospital, but the case does not
address this issue. Similarly, Tenet
provides no discussion or analysis
regarding w hat facts could constitute
affirmative acceptance of a caregiver
role by a hospital other th a n noting
th a t “[n]owhere in the complaint is
th ere any allegation th a t there ex-
isted a ‘commitment, agreem ent or
understanding.. .th at a caregiver role
existed’ between [defendant hospital]

and [patient].”62
The Tenet and Bohannon decisions
leave plaintiffs, hospitals, and courts
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TH E FLO RIDA BAR JOURNAL7MARCH 2015 31

The Tenet and
i Bohannon decisions
leave plaintiffs,
hospitals, and
courts with no
guidance in
determining
what actions on a
hospital or its staff’s
part could constitute
affirmative
acceptance of a
role as a patient’s
caregiver.
with no guidance in determining what
actions on a hospital or its staff’s part
could constitute affirmative accep-
tance of a role as a patient’s caregiver.
The single factual scenario in which
a court has stated a hospital might
be a caregiver is if the patient is in a
vegetative state and the hospital does
not transfer the patient to a long-term
care facility. This complete lack of
guidance in Ch. 415, Tenet and Bo-
hannon as to what factual allegations
could establish a hospital’s affirma

tive acceptance of a caregiver role is
problematic because the facts of every
case involving a Ch. 415 claim against
a hospital will be different because of
each patient’s unique medical issues.
• When Does a Failure to Provide
a Vulnerable A d u lt w ith Medical
Care or Services Constitute Ch. 415
Neglect? — Ch. 415 defines “neglect”
as a failure to provide the care, super-
vision, and/or services necessary to
maintain a vulnerable adult’s physi
cal or mental health, including food,
medicine, or medical services.63 The
statutory language, thus, expressly
contemplates a Ch. 415 neglect claim
can be based on a caregiver’s failure
to provide a vulnerable adult with
medicine or medical services. Despite
this language, however, Bohannon
and Tenet both conclude a Ch. 415
claim cannot be based on allegations
of medical negligence.64
To find the definition of “medical
negligence,” one m ust refer to Ch.
766, which provides that a claim for
medical negligence is “a claim arising
out of the rendering of, or the failure
to render, medical care or services.”65
At least on the face of the two stat-
utes, therefore, it appears one could
base separate and independent Ch.
766 and Ch. 415 claims against the

same person or entity based on the
same failure to provide medical care
or services.
However, Bohannon and Tenet both
concluded a Ch. 415 claim against a
hospital cannot be based on allega-
tions of medical negligence.66 Ch.
415’s definition of neglect suggests
this is the wrong result; if a hospital
is a caregiver, the patient is a vul-
nerable adult, and the hospital fails
to provide the patient with medical
care or services, th at seems to be an
actionable violation of Ch. 415. Nev-
ertheless, courts are likely to dismiss
any Ch. 415 claim against a hospital
based on the failure to provide medi-
cal care or services, as the Bohannon
and Tenet courts did, because the
courts will construe the claim as be-
ing based on allegations of medical
negligence.
• A Ch. 415 C laim A g a in st a
Hospital Will Likely Be Classified
as a Ch. 766 Claim — Even to the
extent a vulnerable adult believes
him self or herself to have crafted
factual allegations supporting a Ch.
415 claim against a hospital that do
not constitute allegations of medical
negligence, another problem presents
itself in the extensive body of Florida
caselaw that construes virtually any

alleged action by a hospital or its
staff as relating to the rendering of
or failure to render medical care or
treatment, as constituting allegations
of medical negligence.67 In reviewing
this caselaw, it is striking how broadly
courts are willing to read Ch. 766’s
definition of medical negligence. The
cases reflect many disparate actions
on behalf of a hospital or its staff,
which courts invariably find to be al-
legations of medical negligence. The
consequence of the courts’ broad read-
ing of Ch. 766’s definition of medical
negligence is that, no m atter how
a claim is styled, courts likely will
treat virtually any claim against a
hospital or other health care provider
as premised upon allegations of medi-
cal negligence, thereby converting
the claim into a claim for medical
malpractice under Ch. 766.
This includes Ch. 415 claims. Tenet
held the hospital’s alleged “failure
to perform an inpatient nursing as-
sessment; failure to implement ‘latex
precautions’; failure to assess and
monitor; failure to appreciate early
implication of increasing respiratory
rate and sore throat in a patient with
recent neck surgery and m ultiple
allergies; and failure to provide ap-
propriate care and treatm ent” were
“all medical care or services which
the plaintiff claims were either neg-

ligently rendered or not rendered at
all resulting in injury.”68 These alle
gations all seem to be the types of al-
leged failures to provide a vulnerable
adult with medical care or services
th at could constitute a basis for a Ch.
415 neglect claim under Ch. 415’s def
inition of neglect. However, the Tenet
court still held these were allegations
32 THE FLORIDA BAR JOURNAL/MARCH 2015
of medical negligence that could not
support a Ch. 415 neglect claim.69 In
light of this decision and the caselaw
described above, it is difficult to see
w hat allegations a plaintiff could
make against a hospital to support a
Ch. 415 claim that a court would not
consider to be allegations of medical
negligence. For instance, in reviewing
the cited cases, a Ch. 415 claim could
not be based upon giving a plaintiff
the wrong food, incorrectly operating
medical equipment, failing to assess a
patient, screening of a donor’s blood,
or leaving foreign objects in a patient
during a medical procedure.70
The consequence of all this is that
a court is likely to tre a t anything
styled as a Ch. 415 claim against a
hospital as based on allegations of
medical negligence, therefore, consti-

tuting a Ch. 766 claim, no m atter the
factual allegations supporting that
claim.71 Successfully alleging a Ch.
415 claim against a hospital based on
allegations that are not allegations of
medical negligence, thus, is likely to
be a difficult task.
Conclusion
Although §415.1111 and Ch. 415’s
definition of neglect both suggest a
patient can bring a Ch. 415 claim
against a hospital based upon the
failure to provide a vulnerable adult
patient with medical care or services,
Bohannon and Tenet both suggest
a patient’s ability to pursue such a
claim is very limited. Both cases give
no guidance how a hospital indicates
affirmative acceptance of a role as a
patient’s caregiver, so a patient is left
in the dark how to sufficiently allege
that a hospital or its staff affirmative-
ly accepted a role as the patient’s Ch.
415 caregiver. Both cases also read
into Ch. 415 a requirement that a Ch.
415 neglect claim not be based upon
allegations of medical negligence, de-
spite language in Ch. 415 that seems
to suggest such a claim can be based
on a caregiver’s failure to provide a
vulnerable adult with medical care or
services. This prohibition against Ch.
415 claims based upon allegations of
medical negligence, when considered

in combination with caselaw th a t
holds virtually any claim against a
hospital to be based on allegations of
medical negligence, no m atter what
the alleged actions of the hospital
or its staff were, suggest attempting
to pursue a Ch. 415 claim against a
hospital likely will be a losing battle
for a patient.
This is the right result. Hospitals
provide medical care and services and
any claim against them necessarily
relates to such care and services.
Restricting a patient’s ability to bring
a Ch. 415 claim against a hospital
does not impair the patient’s ability
to recover for injuries the patient
suffered as a result of his or her care
or treatm ent at a hospital, as the pa-
tient retains a remedy under Ch. 766.
Bohannon made clear that Ch. 415 is
“not intended by the Florida Legisla-
ture to provide an alternate cause of
action for medical negligence.”72 Al
though doing so in a convoluted way,
Bohannon and Tenet achieve a result
consistent with that intention.□
1 F la. Stat. §415.102(27).
2 Fla. Stat. §415.101(2).
3 Fla. Stat. §§415.105-06.
4 Fla. Stat. §415.1111 (“A vulnerable
ad u lt who has been abused, neglected,

or exploited as specified in this chapter
has a cause of action against any perpe-
tra to r and may recover actual and puni-
tive damages for such abuse, neglect, or
exploitation. The action may be brought
by the vulnerable adult, or th a t person’s
guardian, by a person or organization act-
ing on behalf of the vulnerable adult with
the consent of th a t person or th a t person’s
guardian, or by the personal rep resen ta-
tive of th e e s tate of a deceased victim
w ithout regard to w hether th e cause of
death resulted from the abuse, neglect, or
exploitation.”).
5 Id.
6 Id.
7 F la. Stat. §415.102(1).
8 F la. S tat. §415.102(16) (em p h asis
added).
9 Fla. Stat. §415.102(5).
10 Fla. Stat. §415.102(7).
11 Fla. Stat. §766.201(2).
12 Fla. Stat. §766.106(l)(a).
13 Fla. Stat. §766.102(1).
14 Id.
15 Integrated Health Care Services, Inc.
v. Lang-Redway, 840 So. 2d 974, 980 (Fla.
20 0 2 ).
16 J.B. v. Sacred Heart Hosp. o f Pensacola,
635 So. 2d 845, 848 (Fla. 1994) (“Chapter
766, Florida S tatu tes (1989), which gov-

erns sta n d ard s for recovery in medical
malpractice and medical negligence ac-
tions, imposes certain notice and presuit
screening requirem ents upon a claimant.
These provisions must be m et in order to
m aintain a medical malpractice or medi-
cal negligence action against a healthcare
provider.”); Weinstock v. Groth, 629 So. 2d
835, 836 (Fla. 1993) (“It is clear th a t the
provisions of the Medical Malpractice Re-
form Act m ust be met in order to m aintain
an action against a healthcare provider.”).
17 Fla. Stat. §766.203.
18 Fla. Stat. §§766.203(l)-(2); 766.102(5).
19 Fla. Stat. §766.106.
20 Id.
21 Fla. Stat. §766.106(3).
22 Fla. Stat. §§766.106(6); 766.205.
23 Fla. Stat. §766.203(3).
24 Fla. Stat. §766.106(4).
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26 Bohannon, 983 So. 2d a t 717-18.
27 Id a t 718.
28 Id.
29 Id. a t 719.
30 Id. (emphasis removed).
31 Id. a t 720.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id. a t 721.
33 Id.
39 Id. a t 720.
40 Id.
41 Id. a t 720-21 (emphasis added).
42 Id. a t 721.
43 Tenet, 991 So. 2d a t 396.
44 Id. a t 398.
45 Id.
46 Id.
47 Id.
48 Id.

49 Id. a t 399.
60 Id. (“Even if the [c]omplaint were to al
lege sufficiently th a t [defendant hospital]
were a caregiver pu rsu an t to Chapter 415,
the claim is still one for medical m alprac-
tice and not for elder abuse.”).
61 Id.
62 Id. (citing Bohannon).
53 See, e.g., Carr v. Memorial Healthcare
Group, Inc., Ho. 16-2009-CA-017582,2010
WL 7124792 (Fla. Cir. Ct. 2010) (denying
hospital’s motion to dismiss and noting,
“In Bohannon v. Shands Teaching Hospi
tal and Clinics, Inc., 983 So. 2d 717 (Fla.
1st DCA 2008), the F irst D istrict Court
of Appeal held th a t plaintiff’s [sic] could
properly allege a cause of action under
C h ap ter 415 in th e event they alleged
facts supporting the statu to ry elements
of a v ulnerable adult, a caregiver, and
statutory neglect. In this case, the plaintiff
properly alleged those elements.”); S m ith
v. Memorial Healthcare Group, Inc., No.
16-2010-CA-002777, 2010 WL 9422526
(Fla. Cir. Ct. Ju n e 22, 2010) (same).
54 Baker, 2010 WL 9043410 a t *1 (citing
F la. Stat. §415.1111).
55 This article does not address w h at a
p atien t m ust allege to establish he or she
meets Ch. 415’s definition of a vulnerable
adult. N either Bohannon nor Tenet, nor
any other published opinion has addressed

th is issue, other th a n B ohannon’s com
m ent the improperly intubated patient in
th a t case “arguably became a ‘vulnerable
adult’” once he became comatose. Bohan
non, 983 So. 2d a t 720.
56 F la. Stat. §415.1111.
57 Baker, 2010 WL 9043410 at *1 (Fla. Cir.
Ct. 2010) (“The existence of a cause of action
for medical malpractice under Chapter 766
does not necessarily negate the existence of
a claim under Chapter 41 5 ”).
58 Bohannon, 983 So. 2d a t 719-20 (“We
reject the position of the hospital and its
amicus curiae because we can conceive of
scenarios in which acute care hospitals
m ight become ‘caregivers’ of ‘vulnerable
ad u lts’ under the Chapter 415 definitions,
and might then ‘abuse’ or ‘neglect’ those
vulnerable adults.”); Tenet, 991 So. 2d at
399 (“This is not to say th a t a hospital
such as North Shore cannot be a caregiver
p u rsu an t to the s ta tu te ”).
59 F la. S tat. §415.102(5) (e m p h a s is
added).
60 S.S. v. Dept, o f Children and Family
Services, 805 So. 2d 879,880 (Fla. 2d DCA
2001) (No caregiver relationship existed
between a daughter and m other because
“ [t] he facts here do not reveal th a t [daugh
ter] S.S. had any kind of commitment to
[mother] M.S. or th a t S.S. and M.S. had

any kind of agreem ent th a t S.S. would act
as M.S.’s caregiver”).
61 Bohannon, 983 So. 2d a t 720.
62 Tenet, 991 So. 2d a t 399.
63 F la. Stat. §415.102(16).
64 B o h a n n o n , 983 So. 2d a t 720-721
(upholding the dismissal of a plaintiff’s
Ch. 415 claim on the grounds the claim
improperly was based on allegations of
medical negligence and noting Ch. 415
“was not intended by the Florida Legis
la tu re to provide an altern ate cause of
action for m edical negligence”); Tenet,
991 So. 2d a t 399 (upholding dismissal of
Ch. 415 claim in p a rt because th e claim
was supported by allegations of medical
negligence).
66 F la. S tat. §766.1 0 6 (l)(a ) (e m p h a sis
added).
66 See note 64.
67 See, e.g., Stubbs v. Surgi-Staff, Inc., 78
So. 3d 69, 70 (Fla. 4th DCA 2012) (alleged
negligence in p atien t’s fall when patient
a ttem p ted to move from tre a tm e n t to
gurney under the direction of a hospital
orderly arose from the rendering of medi-
cal care or services); Palms West. Hosp.,
Ltd. Partnership v. Burns, 83 So. 3d 785,
788 (Fla. 3d DCA 2011) (claims against
hospital for negligent retention and con-
tinued staffing of doctors who failed to
tre a t patients were claims arising under
Ch. 766); Dr. Navarro’s Vein Centre o f the

Palm Beach, Inc. v. Miller, 22 So. 3d 776
(Fla. 4th DCA 2009) (patient’s burns suf
fered during laser h air removal arose out
of the rendering of medical care of services
because the procedure m ust be performed
or supervised by a physician); Puentas v.
Tenet Hialeah Health System, 843 So. 2d
356 (Fla. 3d DCA 2003) (claim th a t arose
from the hospital’s kitchen employees giv
ing plaintiff incorrect food was a claim for
medical malpractice); Goldman v. Halifax
Medical Center, Inc., 662 So. 2d 367 (Fla.
5th DCA 1995) (hospital employee’s al
leged failure to properly calibrate mam-
mography machine so p laintiff’s b reast
im plant ruptured was a claim of medical
negligence); Nellinger v. Baptist Hospital
o f M iami, Inc., 460 So. 2d 564 (Fla. 3d
DCA 1984) (p lain tiff who slipped on a
pool of amniotic fluid while getting off
an examination table alleged a claim for
nonmedical, simple negligence, bu t court
held it was a claim for medical malprac-
tice). Lifesouth Cmty. Blood Centers, Inc.
v. Fitchner, 970 So. 2d 379 (Fla. 1st DCA.
2007) (claim for negligent screening of
donor blood arose from the rendering of a
medical service); Lakeland Reg’l Med. Ctr.
v. Pilgrim, 107 So. 3d 505 (Fla. 2d DCA
2013) (patient injured when a piece of a
brush broke and lodged in h er pancreatic
d u ct d u rin g endoscopic procedure had
to comply w ith p resu it requirem ents for
medical negligence claims); M ount Sinai
Med. Ctr. v. Fotea, 937 So. 2d 146, 147

(Fla. 3d DCA 2006) (claim for improper
commitment under the Baker Act resu lt-
ing from erroneous blood and urine tests
arose o u t of th e re n d e rin g of m edical
services); Paulk v. N a t’l Med. Enters. Inc.,
679 So. 2d 1289 (Fla. 4th DCA 1996) (claim
against hospitals alleging they operated as
criminal enterprise to defraud patients by
extending hospitalization without medical
necessity to exhaust available insurance
coverage was claim for medical malprac-
tice); Tunner v. Foss, 655 So. 2d 1151 (Fla.
5th DCA 1995) (claim alleging physician
failed to refer p a tie n t to sp e cia list or
adm it him to hospital due to the physi-
cian’s economic self-interest arising out
of relationship w ith corporate healthcare
provider was one for medical malpractice).
68 Tenet, 991 So. 2d a t 399.
89 Id.
70 To be fair, however, courts also rou-
tinely hold th a t claims th a t could probably
be construed as claims for medical m al-
practice based upon the caselaw discussed
above are not based on the rendering of
medical care or treatm en t and, therefore,
are not subject to Ch. 766’s presuit screen
ing requirem ents. See, e.g., Q uintanilla v.
Coral Gables Hosp., Inc., 941 So. 2d 468,
470 (Fla. 3d DCA 2006) (nurse spilled
hot tea on patient); Mobley v. Gilbert E.
Hirschberg, P.A., 915 So. 2d 217, 219 (Fla.
4th DCA 2005) (plaintiff h it in the head
w ith a d e n ta l x-ray machine); Holmes
Reg’l Med. Ctr., Inc. v. Dumigan, 151 So.

3d 1282 (Fla. 5th DCA 2014) (hospital’s
failure to remove drug from its inventory
when it knew or should have known it had
been recalled over four months after the
m anufacturer’s recall); Burke v. Snyder,
899 So. 2d 336 (Fla. 4th DCA 2005) (doctor
committed sexual battery during exam);
Tenet St. M ary’s, Inc. v. Serratore, 869 So.
2d 729 (Fla. 4th DCA 2004) (hospital em-
ployee, attem pting to re tu rn the p atien t’s
chair to an upright position by kicking the
footrest, inadvertently kicked the patient).
71 The previously discussed circuit court
cases are c o n tra ry to th is conclusion.
However, those decisions are too sparse
of detail to determine w hether they are
consistent w ith the tru e th ru s t of Bohan-
non and Tenet.
72 Bohannon, 983 So. 2d a t 721.
S teph en P. S m ith is an associate at
Sm ith Hulsey & Busey in Jacksonville and
former law clerk to Judge Gary R. Jones
o f the U.S. District Court for the Northern
District o f Florida. He is a graduate o f the
University o f Notre Dame and Vanderbilt
Law school, and practices in the areas o f
medical malpractice, health care litigation,
and commercial litigation.
34 THE FLORIDA BAR JOURNAL/MARCH 2015
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Teachers’ Duty to Report Child Abuse and
Neglect and the Paradox of Noncompliance:
Relational Theory and “Compliance”
in the Human Services
KELLY GALLAGHER-MACKAY
Based on in-depth interviews with thirty-eight individuals on
the front line of child
welfare (educators, mothers, and child protection workers) this
study analyzes
the attitudes behind educators’ acknowledged noncompliance
with mandatory
reporting of child abuse and neglect by teachers. Regulatory
theory posits that
“compliance” is affected by a mix of sanctions, capacity,
motivation, and the
perceptions of legitimacy and moral purpose associated with
particular rules.
Paradoxically, while the educators in this study were
knowledgeable and support-
ive of the rule in principle, their accounts of reporting decision
making were highly
contextualized and ambivalent. The interview data suggests that
existing theories

of compliance may be usefully supplemented with an explicitly
relational
approach that better accounts for decision making in the
contexts of care and
dependency that characterize regulatory fields of human
services such as educa-
tion and child welfare.
There is an extensive, mandatory, and detailed legislative
framework for
reporting suspected child abuse or neglect in every North
American jurisdic-
tion, and in most jurisdictions, professionals, such as teachers,
are under an
even higher duty to report; teachers face significant penalties
for failing to
report (see Child Welfare Information Gateway 2010, and links1
in the Cana-
dian Child Welfare Research Portal). In the province of Ontario,
Canada, for
example, any person must report directly to a Children’s Aid
Society (CAS)
if they suspect that a child is being physically or emotionally
harmed, or at
risk of harm; at risk of or experiencing sexual molestation; is
abandoned; or
is not receiving necessary care or services. Those with
professional or official
duties with respect to children, including teachers and other
school board
This research emerged from my doctoral research, and I
appreciate all the support from
faculty at OISE and UT Social Work, especially my outstanding
supervisory committee, Jane
Gaskell, Joseph Flessa, and Shelley Gavigan from Osgoode

Hall. Particular thanks to Joanna
Birenbaum, Jeannie Samuel, David Szablowski, and Eleanore
Cronk for input and support in
the writing of this article.
Address correspondence to Kelly Gallagher-Mackay, 192
Crawford Street, Toronto, ON M6J
2V6, Canada. Telephone: (416) 532 6208; E-mail:
[email protected]
bs_bs_banner
LAW & POLICY, Vol. 36, No. 3, July 2014 ISSN 0265–8240
© 2014 The Author
Law & Policy © 2014 The University of Denver/Colorado
Seminary
doi: 10.1111/lapo.12020
personnel, are guilty of an offense punishable by a $1,000 fine
if they do not
report a suspicion arising in the course of their duties.
After police, educators are the group that reports suspected
maltreatment
most frequently in both Canada and the United States
(Children’s Bureau
2011; Public Health Agency of Canada 2010). Despite these
figures, however,
there is clear international evidence of underreporting—many
studies over
the past twenty years have shown that teachers often do not
report suspected
abuse or neglect (e.g., Alvarez et al. 2004; Kenny 2004;
National Committee
for the Prevention of Child Abuse 1997; Abrahams, Casey, and

Daro 1992).
In a study of schools, child protection services, and families, I
conducted
in-depth interviews with educators (twenty-two), social workers
(eight), and
mothers (eight) whose children had been found in need of
protection due to
abuse, neglect, or exposure to domestic violence.2 These
interviews included
extensive discussions of reporting decisions. I was initially
surprised when the
interviews quite consistently included acknowledgement that
teachers often
do not report abuse and neglect. Interview data suggest that
participants are
knowledgeable about the law, which contains explicit and
significant legal
and social sanctions. It also suggests that the reporting regime
is widely
regarded by affected professionals as legitimate, morally
appropriate, and
quite helpful in the conduct of work with very vulnerable
children. The
patterns of nonreporting evident in this data (and reflected in
the quantitative
studies above) represent something of a paradox for dominant
approaches to
ideas of compliance in regulatory theory, which posits that a
mix of knowl-
edge, deterrence, and intrinsic or normative motivations are
factors most
likely to predict compliance with the law. In this exploratory
study, I use my
data as a case study to investigate and articulate how a
relational approach,

in which individual decision making is viewed as being heavily
shaped by a
range of contextual, institutional, and emotional factors, goes
some way to
explaining this paradox and provides a supplement or even, in
some cases, a
corrective to conventional regulatory theory.
Finally, I hypothesize that this type of seemingly paradoxical
noncompli-
ance is more likely to occur within the regulatory fields of
human services
such as education and child protection. Human services have
been treated as
exceptional in a range of legal theories (see, e.g., Noonan,
Sabel, and Simon
2009; following Fuller 1978) but have been a primary focus of
research into
so-called street-level bureaucracies (Lipsky 1980). Mandatory
reporting is a
legal requirement that seeks to protect vulnerable children by
regulating the
actions of educators in both their capacity as officials ensuring
that the state
performs its responsibilities to children—and as individuals. An
understand-
ing of questions of compliance in this context—indeed, the
strength of regu-
latory theory more broadly—will be enhanced to the extent that
it grapples
explicitly with relational approaches. This research suggests
that with this
additional lens, regulatory theory may have a great deal to offer
our under-
standing of the human services area as well as the better-
researched stomping

grounds of economic and environmental regulation.
Gallagher-Mackay TEACHERS’ DUTY 257
© 2014 The Author
Seminary
CHILD WELFARE AND SCHOOLS
There is a strong societal consensus that public action is
required to ensure
the safety and improve the lives of children experiencing abuse
and neglect,
and to enhance their prospects for the future. Overwhelming
evidence points
to the immediate and long-term vulnerability of this group of
children (see,
e.g., Gilbert et al. 2009; Springer et al. 2007; Cicchetti and Toth
2005; English
et al. 2005; Hildyard and Wolfe 2002). Overstretched child
protection ser-
vices cannot do their job acting alone. Public schools, as a near-
universal
service for children four years of age and over, are a critical
partner. School
is a key environment for children’s development, healthy or
otherwise
(Geenen & Powers 2006; Lerner et al. 2002), and educational
success is a key
element of children’s immediate and long-term well-being (see,
e.g., World
Health Organization 2012; Public Health Officer of Canada
2009).

Educational outcomes for children experiencing abuse and
neglect are
far below average, however (e.g., Brownell et al. 2010;
Wulczyn, Smithgall,
and Chen 2009; Leiter 2007; Kufeldt 2006; Smithgall et al.
2004), and most
observers point to the prevalence of policy and bureaucratic
silos across
different children’s services and the fact that there is relatively
little legislative
or policy guidance about how schools and child protective
services should
work together. The one exception is the duty to report, for
which there is a
clear and detailed legislative and policy framework that
explicitly defines the
responsibilities of educators who suspect abuse or neglect with
respect to
child protection.
REGULATORY THEORY, COMPLIANCE, AND
MOTIVATION
It is a basic insight of law and society scholarship that there is a
considerable
gap between prescription and action: law “on the ground” (see,
e.g., Sarat
1993) is both more pervasive and more unpredictable than the
well-ordered
dictates and processes of law books and policy manuals. Formal
legal
requirements operate in a variety of ways (for a recent typology,
see Barnes
and Burke 2011). Among these, regulatory theory, over the last
two decades,

has emphasized the challenges of identifying better ways to
address inevitable
gaps between the law on the books and the law in action, and to
identify
strategies, formal and informal, that better accomplish
regulators’ desired
goals in an array of settings (e.g., Huising and Silbey 2011;
Baldwin and
Black 2008; Thaler and Sunstein 2008; Baldwin 1990).
Within regulatory theory, the issue of compliance with legal
regimes has
been significant: Under what conditions will people obey the
law? (see, e.g.,
Tyler 1990, 2008; Braithwaite 2002; Sparrow 2000; Kahan
1999; Ayres and
Braithwaite 1992; Levi 1988). There is a substantial literature
on this ques-
tion, in which both negative (also called social control,
deterrence, or in-
strumental) and affirmative (or normative) factors have been
identified as
258 LAW & POLICY July 2014
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important for compliance (see, e.g., May 2004). In negative
“carrot and
stick” approaches, compliance is seen as an outcome of
sanctions, or more
commonly, the threat of sanctions and “discourses of

deterrence,” in which
both the severity and the probability of consequences are taken
into account
(Kahan 1999; Nagin 1998). Rule following is seen as a way to
reduce the
economic cost of noncompliance (e.g., Shover and Hochstetler
2006;
Simpson and Koper 1992). Positive approaches emphasize
issues such as
capacity (knowledge and resources) and motivation or attitude
(Baldwin
1990). Empirical work has demonstrated that motivation is
affected both by
the moral purpose to which the rule is directed (Tyler 2008;
Thompson 1980)
and by the procedural and substantive legitimacy of the rules
(Tyler 2008).
The concept of legitimacy incorporates social, cultural, or
subcultural under-
standings about the value and importance of the rules in
particular contexts.
Legitimacy, in this sense, is a product of both procedural norms
(transpar-
ency, fairness, participation) and organizational culture (defined
sociolo-
gically as “ ‘the way we do things around here,’ or, in more
formal terms,
as involving ‘shared values [what is important] and beliefs [how
things
work] that interact with an organization’s structures and control
systems
to produce behavioural norms’ ”) (Uttal 1983, cited in
Gunningham and
Sinclair 2009a, 869). It is closely linked to the concept of
“integrity” (Ivec,
Braithwaite, and Harris 2012; Braithwaite 2009) with its

emphasis on
both procedural fairness and a fit between purposes and actions
on
the part of the regulator. The work of Simon Halliday (2004) on
“legal
conscientiousness”—the extent to which officials (or frontline
workers) have
an internal commitment to complying with the law, which he
suggests oper-
ates on a sliding scale depending on context and the nature of
the legal
requirement—reflects a balance between individual decision
making and
organizational context.
Theories of responsive regulation (e.g., Braithwaite 2002; Ayres
and
Braithwaite 1992) work from the assumption that different
individuals have
different—and even conflicting—motivations for complying or
not comply-
ing with the law. From a regulator’s perspective, then, it is not
so much a
choice between strategies as an effort to determine an
appropriate and cost-
effective mix of “contradictory, but well supported, theories
that seek to
explain the impact of regulatory enforcement strategies on
regulatory com-
pliance” (Nielsen and Parker 2009, 378).
COMPLIANCE IN THE CONTEXT OF HUMAN SERVICES:
STREET-LEVEL BUREAUCRACY AND BEYOND
Although there are some notable exceptions (e.g., Halliday et al.

2009;
Braithwaite, Makkai, and Braithwaite 2007; Cowan and
McDermont 2006)
the preponderance of research in regulatory theory has been
developed
in areas, such as economic and environmental regulation, or in
industrial
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relations contexts, such as health and safety. A handful of
scholars of
responsive regulation have looked explicitly at the field of child
welfare with
a strong emphasis on developing approaches to decision making
and inter-
vention that bridge coercive and support functions and better
engage the
resources of families and communities (see Ivec, Braithwaite,
and Harris
2012; Harris 2011; Braithwaite, Harris, and Ivec 2009; Harris
and Wood
2008; Burford 2004; Pennell 2004). Defining features of child
welfare and
the human services context more broadly are not only what
Fuller (1978)
termed “polycentrism” and a mix of formal and informal
organizational
structures and processes, but even more fundamentally, the
juxtaposition

between the individual needs of clients served (often on a
mandatory,
“come-as-you-are” basis), the mass nature of service provision,
multiple and
ill-defined goals, and even more diverse means to accomplish
those goals
(Lipsky 1980). These contexts are significant both for clients
and for those
working on the front lines.
Interdisciplinary research around street-level bureaucracy (see
Maynard-
Moody and Portillo 2010) has focused on discretion and
decision making by
frontline personnel in exactly these sectors. This literature
conceives frontline
workers’ decision making as being “weakly constrained by
rules” (Schram
et al. 2009, 225) yet demonstrably shaped by organizational
structures and
relationships (ibid.). Frontline workers are understood as
“rational actors
operating according to a practice logic derived from the
interaction between
formal policy provisions and other key features of
organizational life”
(Brodkin 2011, 255).
In the context of schooling, sociologist Dan Lortie, in a leading
text on
teachers’ work, described educators’ fundamental working
conditions in
very similar terms, as being dominated by “endemic
uncertainties,” where
“[i]ntangibility and complexity impose a toll; built-in
difficulties include

assessing performance, balancing demands and relationships
and managing
the self under provocation. In each instance the technical
culture falls short
of resolving the issue” (2002, 159). Lortie argues that the
outcome of these
uncertainties is a culture of normative permissiveness (ibid.,
194) and a lack
of “normal expectations within the profession.” The complexity
and intangi-
bility of teachers’ work was indirectly acknowledged by the
Organization
for Economic Cooperation and Development (OECD 2005),
which, in a
major cross-national survey of the teaching profession,
identified a very
wide range of roles and competencies that are expected of a
teacher in the
twenty-first century (ibid., 97–100). In a backhanded
acknowledgement of
the challenges that complexity poses to regulating teachers’
work, the review’s
major recommendation—which they identify as a prerequisite to
effective
governance—was the development by governments of an
authoritative profile
to identify “what teachers are expected to know and be able to
do” (ibid., 131).
The lack of consensus on the elements of such a profile—
alongside the scale
of educational provision—reflects directly on the challenges of
regulating the
profession, or “mandating what matters” (McLaughlin 1987). As
predicted by

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street-level bureaucracy theory, this context has significant
implications for
teachers’ attitudes towards regulation.
In health, education, and child welfare, organizational life
necessarily
implicates ongoing relationships of care and dependency. This
particular
context implies that workers are not only “rational actors” but
predictably
affected by emotional and relational factors. A smaller group of
scholars has
emphasized not only the complexity of teachers’ work but the
inherently
relational aspects of teaching as well. Strong research suggests
that teachers’
relationships with students are not only inevitable but an
essential aspect of
effective teaching and learning, alongside high expectations and
academic
press (National Research Council/Institute of Medicine 2004;
Lee and Smith
1999; Pianta and Walsh 1996; McLaughlin 1993). The core
notion of the
instructional triangle, which is at the heart of schooling (see,
e.g., Cohen,
Raudenbusch, and Ball 2003), emphasizes interactions and
relationships
between teacher, learner, and content in specific environments.

In a recent
large-scale study of Canadian teachers, caring was identified as
the personal
characteristic most associated with aspirational teaching
(Canadian
Education Association/Canadian Teachers’ Federation 2012).
Caring rela-
tionships are also a critical source of emotional support and
resilience for at
least some vulnerable children (see, e.g., Learning Partnership
[Ontario]
2009; Wolkow and Ferguson 2001; Howard, Dryden, and
Johnson 1999;
Rutter 1987).
Nevertheless, “pervasive conceptions of teaching as a calling,
and of teach-
ers as adults who do what they do mostly because they care so
deeply about
children” (Acker 1999, 19) often obscure the centrality of
caring relationships
to teachers’ work and effectiveness. In teaching and beyond,
“[S]ocial expec-
tations that women’s caring work should blur the distinctions
between labour
and love” (ibid., 105) contribute to the policy invisibility of
“caring work” or
“emotional labour” (Hochschild 1983). Carol Pateman has
argued that “the
welfare state has always depended on a good deal of social care
being pro-
vided, unpaid” (Pateman 1997, 5), and others have pointed to
the significance
and undervaluing of caring even within certain categories of
paid work (e.g.,
Folbre 2001; Gannerud 2001; Staden 1998; Freedberg 1993).

There are of
course exceptions to the general tendency to ignore caring work
in education
(see, e.g., Leithwood and Beatty 2008; Noddings 1983, 2005;
Fullan 1997),
but the extensive itemization of teachers’ expanded roles by the
OECD (2005)
is typical in making no reference to the work of building and
maintaining
relationships with children and their parents, sustaining
attention, providing
support for children’s physical and mental well-being, ongoing
conflict reso-
lution, or crisis management.
RELATIONAL THEORY AND COMPLIANCE DECISION
MAKING
By contrast, relationships and relatedness are at the center of
“rela-
tional theory”—an umbrella concept closely associated with
feminist
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thought—which examines issues of agency, autonomy, and
rights (see,
e.g., Mackenzie and Stoljar 2000; Koggel 1998; Nedelsky 1989,
1993;
Minow 1990) alongside rationality, emotion, and embodiment

(see,
e.g., Code 1991; Young 1987). Relational theory has
contributed to and
emerged from significant developments in philosophy, ethics,
legal theory,
and psychology. Particularly important to relational theory is
the concept
of the self, which is understood not in liberal, individualistic
terms, but
instead, as “socially connected, interdependent, socially
encumbered,
emotional, relationally constructed, socially constituted and
embodied”
(Downie and Llewellyn 2008, 196). This notion of the self has
significant
implications for the concept of autonomy and decision
making—including
compliance decisions—particularly in its recognition that
effective self-
determination is a product not so much of independent action as
of rela-
tionships that provide essential support and guidance (see, e.g.,
Nedelsky
1989). This account of the subject is not only descriptively
nuanced, it pro-
vides a strong basis for theorizing about social ordering that
takes into
account such central issues as care and dependency.
Relational theory, as defined above, is significant for theorizing
compli-
ance in three ways.3 First, rather than emphasizing self-interest
as the
exclusive basis of decision making, it suggests that in many
circumstances,
there may be a blurred distinction between self-interest and the

interests
of (inter)dependent others. Second, it affirms the significance of
emotion
alongside reason in making decisions. Third, relational theory
identifies
care as a discrete basis for ethical judgment. The salience of
these relational
considerations in decision making provides a sound theoretical
basis for
understanding the coexistence of both strong moral support for
a set of
well-understood rules and widespread disregard for the rules in
practice.
A BROADENED VIEW OF SELF-INTEREST
A central aspect of relational theory that is relevant to decision
making by
teachers is a broadened concept of self-interest, based, again, on
a connection
to others. Even among the most carrot-and-stick–oriented
compliance theo-
rists, there is some recognition that consideration for others will
shape behav-
ior (e.g., Scholz 1984), perhaps as a complement to narrowly
legal sanctions.
However, a broadened conception of self-interest in the
relational sense
accepts that under certain conditions—particularly in the
context of intimate
relationships or those between a caregiver/caretaker and
dependent—a deci-
sion maker “attends to and voices the needs and desires of her
charge in
addition to, and sometimes at the expense of, her own . . . even
her under-

standings of her own needs are enmeshed with the needs of a
vulnerable other
whose fundamental well-being is entrusted to her” (Kittay 1995,
11–12; see
also Horsburgh 1992). Within relational theory, this kind of
“altruism” is not
only a foreseeable part of life and a descriptive reality, it is
essential for social
cooperation and reproduction.
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EMOTIONS AND DECISION MAKING
There is a growing literature on law and the emotions (see, e.g.,
Maroney 2006;
Bandes 1999). The field encompasses “a wide range of legal
constructs, includ-
ing substantive and procedural doctrine, behavioural models
underlying legal
rules, and the impact of emotion on law-relevant decision
making” (Maroney
2006, 120). Rather than defining “emotion,” Susan Bandes
wrote, “[em]otion
is a variable, messy, interdisciplinary, soft and feminine, fact-
based, difficult to
categorize, non-rational—in short it has all sorts of attributes
that interfere
with a claim for overarching, transcendent status” (2001, 101).
She goes on to

list love, fear, dependency, maternal bonding, sexual jealousy,
anger, and
intimacy as examples of fundamentally emotional experiences
with direct
relevance in questions of agency and decision making.
However, with a few
notable exceptions (e.g., Lange 2002), most of the theoretical
and empirical
work on emotions and law-related decision making focuses on
the law nar-
rowly defined, however, and the decision making in question is
often adjudi-
cators’ (see, e.g., Feigenson and Park 2006). Regulatory theory
has been
influenced by behavioral economics and conceptions of bounded
rationality
(e.g., Kahneman 2011), but the main take-up of the literature
within regula-
tory theory has been to work around the distorting deviations
from a rational
ideal-type (e.g., Thaler and Sunstein 2008). Alternately, studies
of legal con-
sciousness often address the impact of emotions on situated
groups’ relation-
ship to aspects of the legal regime and how those groups will
use or be affected
by the law (see, e.g., Abrego 2011 or Braithwaite 2009).
Feminist scholarship
on emotions in relation to law has evolved considerably (see
Abrams 2005).
The underlying approach, however, suggests that emotions
(however con-
structed or situated) are an integral part of how situations are
perceived and
how decisions get made. Moreover, there is a developing
theoretical and

empirical literature on emotions—such as compassion—and
positive relation-
ships both between staff and in relationships with clients as a
key element of
organizational strength (see, e.g., Stephens, Heaphy, and Dutton
2011;
Hoffer-Gittell 2009; and Dutton et al. 2006).
Of course, a legal or policy focus on the role of emotion
includes some
risks. “More emotion is not always better,” noted one leading
scholar of
education reform, given the real possibilities of distracting,
sentimental
“postemotional excess” or of using emotional connection to
justify “warm
yet welfarista” environments that neglect a focus on long-term
achievement
(see Hargreaves 2000, 813). Too much emphasis on the
emotional side of
teaching may also increase the risk of burnout in the face of
working
conditions—particularly hyperrationalized ones—that
undermine effective
relationship building (Gutierrez 2000).
AN ETHIC OF CARE
The third aspect of relational theory that is clearly relevant for
an under-
standing of compliance decision making is the strong focus on
care as a
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Seminary
central ethical tenet. An ethic of care has a foundation in both
psychology
and philosophy, and is most associated with the work of Carol
Gilligan
(1982). Notwithstanding heated critique (see, e.g., 11:2 Signs
[1986], a special
issue on A Different Voice), feminists (and others) have
articulated and
applied an ethic of care over the last several decades in various
domains
including medical ethics (e.g., Downie and Llewellyn 2008),
social service
accountability (e.g., Tronto 1993, 2010), or claims for
institutional abuse
(Hankivsky 2004). Mary Daly and Jane Lewis (2000) argue for
the double
meaning of “care” as both work and obligation:
[C]are is more than just unpaid personal services but is
inherently defined by the
relations within which it is carried out, relations that tended to
be characterized
by personal ties of obligation, commitment, trust and loyalty.
The process of
care is emphasized, explored in terms of “loving, thinking and
doing.”
The sources of obligation for caring work are important, in that
caring work
frequently arises in the context of social relations of
dependency and within an

ethical or normative context that emphasizes relatedness. (283)
In education, Nel Noddings has been particularly influential,
using the
concept of care not only to describe the essential educational
importance
of connected relationships (teacher–student and between
students), but also
articulating how care could be a sound basis for curriculum and
learning
(1983, 2005). Other key characteristics of an ethic of care are
the centrality of
context in decision making and the strong emphasis on
protecting and main-
taining relationships (see, e.g., Minow and Shanley 1996).
Harris and his
colleagues have argued that developing a regulatory approach
that is focused
on building and maintaining essential relationships with
families and com-
munities is a key aspect of meaningful child welfare reform
(Ivec,
Braithwaite, and Harris 2012; Harris 2011).
PUTTING RELATIONSHIPS AT THE CENTER:
IMPLICATIONS
In sum, the notion of the self in relational theory has strong
philosophical,
sociological, and psychological sources and implications. In the
context of
regulatory theory, it offers an additional basis for understanding
decision
making, particularly in policy fields where the regulated
activities encompass,
on a daily basis, relationships of dependency and care.

Relational theory
is relevant to decision making in its identification of an
expanded sense
of self-interest, an active role for emotions (not simply as an
obstacle to
rationality), and because of the relevance of an ethic of care
based on par-
ticularism and preserving relationships.
STUDY METHODOLOGY AND CHALLENGES
This study emerged from a qualitative examination of the
exercise of respon-
sibility for children’s well-being between child welfare
authorities, schools,
© 2014 The Author
Seminary
and families, with a focus on the children who remain at home
in the face of
a concern about abuse, neglect, or exposure to domestic
violence.4 Based on
frontline accounts from these children’s mothers, teachers, and
child welfare
workers, as well as various policy officials,5 the larger study
looked at differ-
ent processes through which workers in different institutions
define and
manage points of overlap in their responsibilities and
interactions with fami-

lies, and what those processes revealed about the organizations
within which
they work. This article focuses specifically on decision making
by educators
about reporting child abuse and neglect. An examination of the
factors that
shape the decision to comply with this legal requirement reveals
a great deal
about the organizational considerations or structures—“ruling
relations”—
which shape and inform the work of these frontline staff.
Institutional ethnography is a well-established sociological
approach to
connecting microlevel, near-narrative data with macro issues of
context and
institutions. It is “not meant as a way of discovering the
everyday world as
such, but of looking out beyond the everyday to discover how it
came to
happen as it does” (Smith 2006, 13). As a methodology, it
presupposes a
diversity of methods, including in-depth interviews (DeVault
2006).
In the main study, a central challenge was to grasp how
institutional
routines and assumptions shaped the actions of frontline
workers in a policy
area requiring cooperation between bureaucracies and active
maintenance
of relationships with both children and their parents (usually
mothers), not-
withstanding serious concerns about neglect or abuse. Rather
than focusing
simply on the perspective of one group, the study looked at the

issues of
shared responsibility from multiple perspectives. The initial
design of the
study called for linked interviews about particular children to
“tell a story”
about how the different parts of the system work together (or do
not). In
Ontario, there are seventy-two publicly funded school boards
and fifty-two
CASs with often-overlapping geographic jurisdiction. After
recruiting and
interviewing parents (across a large metropolitan area) whose
children’s
aid cases were recently closed, I sought their consent to
interview the family
service worker and the teacher who had worked with the child
while the case
was open. This strategy meant that the teachers and workers I
interviewed
came from different school boards (n = 5), different agencies (n
= 3) and
different schools (n = 21). In this urban context, institutional
heterogeneity is
one of the features of how child welfare and schools work
together, and one
of the factors that makes regulation of the field organizationally
challenging.
There were strong similarities between the observations of
frontline workers
across boards and agencies.
Naturally, there were numerous layers of permission seeking
involved
before I could conduct linked interviews with mothers and the
professionals
involved in their children’s lives. Although one large CAS was

extremely
facilitative, a number of school boards and agencies did not
approve the
research despite ethics approval from the university. The
research was able
to proceed based on a revised ethics protocol, relying on section
2 of the
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Tri-Council Policy Statement on Research Ethics (Canada)
(Canadian
Institute of Health Research, Natural Sciences and Engineering
Research
Council, Canadian Social Sciences and Humanities Research
Council 1998),
which specifies that institutions such as corporations or
government are not
required to consent to research about them and should not have
the right to
veto research.
However, the lack of institutional support from different boards
and agen-
cies shaped my sample, because it limited certain types of
recruitment, and
some professional participants were unwilling to proceed in the
absence of
approval from their employer. Ultimately, I supplemented the
linked inter-

views with a series of unlinked interviews with teachers and
social workers.
Early interviews also emphasized the importance of school
personnel other
than teachers—particularly principals and school social
workers—in sup-
porting children where there were concerns about abuse and
neglect and
managing relationships with children’s aid, so in the interests of
better under-
standing my subject, I added interviews with those groups.6
RESEARCH PARTICIPANTS
In total, I interviewed eight mothers (six linked), ten teachers
(five linked,
five unlinked), eight family service workers (two linked, six
unlinked), six
school principals (unlinked), and six student support workers
(unlinked) as
my frontline group. There were only two fully triangulated
cases. In addition
to frontline personnel, I also interviewed leaders from different
points in the
structures of CAS and school systems, conducting a total of
fifty-seven
interviews, which ranged from forty minutes to more than two
hours in
length. All frontline interviews lasted more than one hour.
ANALYSIS OF THE DATA
Participants had the opportunity to review and revise detailed,
near-verbatim
notes of the interviews (only two made changes).7 The
trustworthiness of data

and interpretation was ensured through the use of various
strategies (Padgett
2008), including prolonged engagement (the principal
researcher was per-
sonally engaged in conducting all the interviews and coding the
data), and
regular debriefs with faculty and institutional stakeholders who
possessed the
substantive and methodological expertise to check bias and
tangents. The use
of multiple data sources—informants positioned differently in
the system and
textual analysis—and analytic triangulation helped enhance
trustworthiness.
There was some limited member checking, as participants had
the chance to
see and modify their transcripts.
The transcripts were coded manually. For institutional
ethnography,
Smith argued against line-by-line–type coding in favor of
organizing data
into broader conceptual chunks, akin to indexing a book (cited
in DeVault
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Seminary
2006). Accordingly, I looked at the data under broad headings
(e.g., decisions
about reporting). Within those headings, I was able to see fairly

distinct
subthemes (e.g., impact of reporting, lack of information from
CAS, feelings
about the decision to report). I organized the data by subtheme
and by
the background of participants. Consistent with the constant
comparison
approach in grounded theory (see, e.g., Charmaz 2000), I began
coding and
recoding the data while still conducting interviews, so for
example, when the
theme of nonreporting emerged from early data, I followed up
with more
specificity in later interviews; I was particularly struck by the
contrast that
emerged between support for the regime in principle and
acceptance that it
was normal to act in a way inconsistent with those rules, which
caused me
to look at the larger literature on compliance and then seek a
broader set
of theories (i.e., relational theory, street-level bureaucracy
theory) that
addressed the paradox that was so manifest in my data and
relatively absent
in the literature around compliance.
FINDINGS AND ANALYSIS: THE DUTY TO REPORT
SUSPECTED
ABUSE AND NEGLECT
As noted, all jurisdictions in North America have established a
legislated
duty on all members of the public to report suspected
maltreatment; in

Ontario, this duty is part of the Child and Family Services Act
(CFSA; 1990).
For educators, the duty to report is operationalized through
detailed proto-
cols established between school boards, child protection
agencies, and the
police. The professional and personal duty of educators to
observe and share
information with child welfare authorities is an essential part of
a system of
collective responsibility to take action to protect children.
Compliance with the duty to report suspected neglect or abuse
can be
achieved by the act of making a phone call to report a suspicion
of abuse or
neglect to a child welfare agency. While this act—compliance—
seems simple
enough, it presents numerous challenges. First, a potential
reporter has to
be able to identify signs of abuse or neglect and make a
judgment about
whether what she or he observes raises a suspicion of
maltreatment. Once a
person has decided to report a suspicion, she or he must manage
the aware-
ness that a report of neglect or abuse has the power to define
both a child
and a family in ways that are beyond the control of the reporter.
A report
has the potential to activate needed support or to unleash
powerful machin-
ery that can (sometimes necessarily) result in huge
consequences for children
and parents. It is very likely to result in stigma that may affect
both parents

and children. Even consciousness of the potential to report or to
be reported
has the power to shape behavior and interactions. Thus, while
the mechan-
ics of compliance with the duty to report are simple enough,
teachers’ deci-
sions about compliance are significantly shaped by their
organizational
environment.
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RELUCTANCE OR UNWILLINGNESS OF TEACHERS TO
REPORT
I was initially surprised by how many of my informants were
quite clear that
teachers will often not only struggle with a decision to report,
but actually
avoid doing so on a more than occasional basis. Although a few
mentioned,
for example, that teachers “are vigilant” about reporting
(Teacher D), it was
more common for educators to talk about teachers who, at least
some of the
time, do not report suspected abuse and neglect:
There are some teachers where something reportable has
happened and they
haven’t done anything, they’ve played social worker and hoped

it would go
away. . . . I become aware after the fact when a student has told
me something
in my office. (Principal F)
Teachers sit on the fence sometimes: “If I call and nothing
happens, and I have
just blown the relationship, what is the point?” (School Social
Worker K2)
When someone discloses to a teacher, the teacher may come to
me, saying,
“I think something is wrong, but I don’t want to continue.” That
happens
often, especially with my mentees. (Teacher L)
(Teachers) understand it is abuse or neglect—but their jaws hit
the floor when
they see what CAS doesn’t respond to. Most reports get thrown
back, so most
veteran teachers rarely disclose. (School Social Worker W)
We had these two Vietnamese boys, twins. One had bruises all
down him—
which I thought were bruises—but [when I talked to the
principal we] found out
they do that hot stone thing, medicinal rubbing of sorts. I do
believe there was
controversy over whether we should call or not, if it was
actually hurting the
children—that time we didn’t call. (Teacher E)
The extent to which most informants looked at significant
reluctance
or even failure to report suspected abuse as routine and
unexceptional was

noticeable. In the next section, I analyze my data to try to
understand what
factors may contribute to this situation.
CAPACITY AND KNOWLEDGE
A prerequisite for regulatory compliance is capacity and
knowledge on the
part of those expected to enact a regulatory scheme. At one
level, there was
clear evidence of knowledge about the legal requirements. All
of my infor-
mants were familiar with the legal duty to report child abuse
and neglect, and
most reported that there was at least one annual discussion of
the duty at
their school, as required by policy at all the boards in my study.
However,
many participants pointed to a lack of knowledge about key
contextual
information and a lack of knowledge about what is likely to
happen when a
call is made to children’s aid.
The crucial knowledge underlying the duty to report is the
ability to assess
whether there are grounds for making a report: this
“knowledge” requires a
© 2014 The Author
Seminary

mix of experience, judgment, and confidence. Social workers,
principals, and
senior teachers I interviewed emphasized how challenging
teachers find the
decision to report, and how, often, context-specific advice and
moral support
are required before and after making a call. One social worker
talked about
being called upon if there is a concern about maltreatment:
“Often, social
workers will see the child . . . to help the teachers make a
decision about
reporting” (School Social Worker W). Another commented, “We
spend a lot
of time supporting teachers—I say, again and again, ‘the lucky
part of our
job is that we don’t have to decide if it is real—if it falls within
parameters,
report it and you are off the hook’ ” (School Social Worker K2).
One teacher
talked about relying upon her principal or vice-principal to
decide whether
circumstances warranted a call, explaining, “Anyone scared to
make the call
would hopefully get support and encouragement. They’d make
you do it
anyways. I find generally that the principal or VP has been
supportive—a
couple of times I have gone in because I am not 100 percent
sure and then
learn a little history” (Teacher E). Principal S explained that
support in
following through on the duty to report was an integral part of
helping
teachers understand their responsibilities: “When I make staff

aware of the
duty and responsibility to report, I always say, if you have
questions, come
in, I will assist with the call” (Principal S).
Access to the sort of context-specific advice and support that
these
educators identify as very important to reporting decisions
depends both
on resources and school culture or relationships. In terms of
resources, if
social workers do play a key role, it is worrying that over a
third of Ontario
schools do not have regularly scheduled access to a social
worker (People for
Education 2011). It is also a truism that working relationships
between staff
and administrators vary tremendously between schools. While
the principals
I interviewed described themselves as regularly providing
support to teachers
who needed to report (and some teachers described receiving
that support), in
another school, the teacher explained that a feature of their
school culture
was that teachers would not tell their administrator about
making a report.
She said, “it can be a strange sort-of-political issue—the
administrator would
like it if teachers would tell her, but it’s as if it’s a favor. Some
people feel like
they don’t need to—it’s an anti-admin thing. And they don’t see
the benefit”
(Teacher L). In that type of school culture, and in light of what
many
informants report about the usefulness of contextualized

pressure and
support to report, it appears less likely that teachers would
ultimately “make
the call.”
Legitimacy and the Motivation to Comply
While teachers may find it difficult or stressful to report, there
is little ques-
tion that doing so is considered highly legitimate by all
interviewees.
Even several of the mothers who were involved in the child
welfare system
expressed an understanding of the school’s responsibility to
report them
© 2014 The Author
Seminary
where there was suspected abuse, neglect, or risk to children.
For example,
a mother who had been reported by the school on a suspicion of
abuse
expressed confidence in the school’s judgment. By contrast, she
had been very
angry with her psychiatrist, who had reported her on another
occasion:
I got very angry with my doctor. . . . I got over that after a
while, but at first,

I wouldn’t even see the doctor any more. I told her, “Up yours.
I hate you.
You’ve been my doctor forever, I let you into my personal
world.”
You never had those kinds of feelings with the school, though,
even though they
reported you?
No. Not the school because [pause] that’s their job. . . . I feel
that my doctor is
trying to help me and I just felt that I was betrayed a bit there.
With the school
I wasn’t as angry. With my doctor, I was a bit more angry, I was
like, “How
dare you. I’m telling you everything and you’re . . .” But the
school, I’m
cool with.
They’re there for the kids? That’s their job?
Yeah. They’re there for the kids, yeah. And like I said, a few of
them know a bit
more of our personal life. . . . Because I know quite a few of the
teachers, I feel
comfortable to talk to them. If it helps my kids, sure. (Mother
C)
Another mother described having had her son apprehended from
the school:
I figure somebody at the school must have called them. . . . I
felt that it was
unfair. There are a lot of women out there who don’t have a
place to live, or
stable places with their children. That doesn’t mean I am a bad

mom.
Did your relationship with the school change?
I didn’t really address my feelings about it to them. Didn’t
really. . . . I wasn’t
sure who made the report. I wouldn’t know how to answer that
question. But
I felt like they treated me the same [after the temporary
removal]. Maybe they
didn’t know to the extreme what happened, but I didn’t feel like
they were
treating me different. . . . They cared about what was going on
outside of school
but they cared more about what was happening with M. when he
was in school.
(Mother A)
While she felt that the apprehension was ultimately unfair, the
role of the
school in making the report was not something this mother
questioned. She
felt like she had a good relationship with the school and her
child’s teacher,
and she seemed confident that the school had been acting out of
care for her
son (she was much less happy with the new school her son
attended since she
had moved to a shelter, however, where she felt the staff was
nosy and
interfering).
Asked if the school had reported a suspicion of neglect or abuse
during
what she had described as a long, difficult period of recovery,
Mother D

answered, “I think maybe once or twice they might have, but
then I called,
© 2014 The Author
Seminary
I just blasted them, ‘What the hell are you doing calling them, if
you have a
problem, you call me, you don’t go calling them.’ ” The actions
of school
staff reporting her suspected maltreatment was balanced by her
recognition
that during this time, the school had provided substantial
practical help and
other support for her whole family: “I don’t want to say
favoritism, but it’s
just they have seen me for a long time, they have seen me
struggling. . . . They
were looking out for us.”
The accounts of these mothers—even though they acknowledge
anger
or frustration about the experience—confirm the widespread
legitimacy
of teachers’ exercise of their duty to report. From a different
perspective,
Principal K acknowledged the challenges of reporting but
ultimately sup-
porting the legitimacy and underlying purposes of the duty:
Most of the time when we have to make a call, it is a nonissue—

a misunder-
standing, a minor thing—but it sure causes a lot of damage.
Parents or families
are devastated, humiliated to think that someone called CAS due
to their poor
parenting skills. They feel society has lost trust in them. Our
job is to keep the
dignity of everybody intact; however, I still believe that we
need to call CAS,
because we don’t know what is really going on.
In addition to the perceived legitimacy of the role of teachers
and other
educators as reporters of potential child maltreatment, the
strongest positive
motivation likely comes from their strong sense of moral
purpose.
Moral Purpose
The educators I interviewed were eloquent about the importance
of the work
of child protection services, which they saw as playing an
important part in
protecting children from possible harm. Principal K explained,
“Every child
deserves to be safe. As a principal—or a teacher—our students
are like your
own children: you expect to not have anybody damage them
emotionally or
physically. When I was a teacher, my principal mentioned that I
was like
a mother duck, with all my ducklings. You are very protective
of your
students.” Principal S recalled confronting the uncle of a
student on the

[Jewish] high holidays after a call to CAS when the student
reported he was
afraid to be beaten when he brought his report card home: “I am
here to
protect your child, not your rights.” Teacher E was able to
describe a number
of occasions on which she had not just reported suspected
maltreatment but
had become significantly involved in advocating for services
with CAS. For
example, she had waited with a child in the CAS office late on a
Friday night
until a social worker promised to investigate:
How do you see your job?
If I suspect strongly that a kid is being abused I feel like I need
to follow it
until—not necessarily until something is resolved
satisfactorily—but at least
until I know there is someone looking out for him.
© 2014 The Author
Seminary
Where does that sense of responsibility come from?
Ultimately we see kids more than their parents see them during
the school year
and, on some level, if we’re in tune with our kids. . . . I just feel
responsible for

them, I care about them quite a lot. If some harm is coming to
them, I can’t
come and take the child away from their parents, and I know
that the kids don’t
even want to be taken away. . .so you have to do something.
These quotes illustrate a common theme across all educators’
interviews—
ensuring children are safe and protected is fundamental to
educators’ sense
of personal and professional responsibility (Gallagher-Mackay
2011).
Educators’ sense of responsibility to keep children safe is
coupled by a
sense that they lack the necessary tools to do so—by contrast,
educators
point to capacities on the part of children’s aid, which they
perceived as far
exceeding their own institutional powers. A few educators
talked about the
ultimate power of CAS to protect children by taking them away
from their
parents. Teacher T—who reported having a good relationship
with CAS, and
making a call to CAS at least once or twice a year—explained,
“[t]hey have
been helpful in a way that they have removed kids from homes,
provided
counseling services, that kind of thing.” Family Service Worker
D describes
“bad experiences with a school, where the principal is telling
me, you need to
apprehend the kid right away, this kid is dangerous, this kid is
going to kill
somebody.” School social workers were particularly aware of

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