Pediatric dentists and the law of child abuse.

Legal issues for the pediatric dentist confronted with suspected child abuse or neglect include: what must be reported, to which agency, with what certainty, and with what liabilities and protections. Reporting laws are part of an overall protective structure which extends to children victimized either within families or by unfamiliars. Dentists need to be at least generally aware of the requirements for documenting cases for court, as well as their potential role as witnesses. Consultation with physicians, lawyers, and other professionals when indicated is part of modern, multidisciplinary practice. health professionals a common effort to improve the lives of children harmed within or outside of the home. Health professionals failing to respond knowingly to children in need also risk individual and corporate liability. The dentist’s specific duties and liabilities under the law are part of a larger child protection framework. The Legal Structure of Child Protection With the advent of mandatory reporting of suspected child abuse in the early 1960s, the documented incidence and prevalence of child abuse and neglect began to increase dramatically. Reporting of child abuse is thus part of an overall protective system, and serves a case-finding function comparable D e n t i s t s participating in the diagnosis and management of child abuse and neglect share with other 116 DENTAL NEGLECT: Loochtan et ai. to that of infectious disease reporting. Similarly mandated, social services agencies, and sometimes law enforcement agencies, are required to respond to reports by evaluating the report, child, and general circumstances of the child's care. Given that an important goal and common result of reporting is further information about a child's wellbeing or endangerment, no reporting professional is responsible for "proving" a case of child abuse or neglect. The law can be a tool for assuring that a thorough examination of the child's safety is completed without depriving a child or parent of procedural safeguards. Without the authority of law, many abused or neglected children would not have their situations thoroughly investigated. Allaying suspicions about parental caretakers also serves the child and the family, and may lead to other explanations for harm observed. Other explanations developed may include not only quite rare medical conditions, but less rare harms to children by individuals other than parents. Finally, the law can help assure that local standards of minimal care for children in effect, what the community will tolerate as minimally acceptable care -will be observed for each child. Without these procedures, parents and professionals are left to speculate, without a clear normative structure, as to the relative responsibilities of professionals treating children when the health of a child is jeopardized by the very individuals empowered to make decisions on behalf of the child. Law as a Therapeutic Tool While use of the courts to solve conflicts is not an immediately attractive course of action, it is an available response to harms inflicted by one person on another. Moreover, perhaps the courts can have a surprisingly beneficial influence in some cases of abuse or neglect. In one study, families court-ordered into therapy were 5 times more likely to complete the indicated therapy than a group of families initially agreeable to services. Both sets of families were confirmed to be abusive, although the voluntary parents "admitted by agreeing to services whereas the courtordered families were found by a judge, in a formal trial, to have abused their children.' Court-ordered supervision in the home, special day care arrangements, or foster care to protect a child who cannot be protected in the home, all are possible only through the courts if parents refuse services. In the worst cases, court-ordered dissolution of the parent-child legal relationship will increase the chances that a child will be given adequate care and safety to maturity. Imprisonment of a parent for severe abuse may or may not be appropriate, depending on the special facts of a case,* but alone cannot assure the long-term safety obtained by a permanent placement for the child. Crimes against Children Knowledge of the signs and symptoms of nonaccidental trauma, neglect, and sexual abuse are important to dentists treating children for reasons other than possible parental abuse or neglect. Children are victimized in many ways, and by many individuals, not always recognized by parents or professionals. Interpretation of bite marks, identification of victims through dental charts, and observations of behavioral signs and symptoms associated with victimization all are potential contributions to the safety of children. A parent truly caring for a child is likely to be quite grateful to the professional who uncovers harm to that child by another person, as in the instance of undisclosed sexual abuse. Care of the "whole child" depends on health professionals able to understand the general circumstances of a family, the developmental stage of a given child, and the use of specialists from within and outside of dentistry to help in diagnosis and management of child maltreatment. Specific Laws of Child Protection Applied to the Dentist Reporting of a suspicion of child abuse or neglect is expressly required of dentists in some ~ t a t e s . ~ All but 5 states require reporting by medical professionals, defined in different ways,4 and those 5 require reporting by e~e ryone ,~ which reasonably could be interpreted to include dentists. The protective services agency should receive the report in most cases, although the police also can receive reports. Dentists who report are immune from criminal or civil liability" as long as their suspicion has a reasonable basis, meaning that unless they are reckless with their diagnosis or know a report is false, immunity is complete. Even in those states which do not expressly require reporting by dentists, any dentist reporting a reasonable suspicion of child abuse or neglect is likely to be under a statutory grant of immunity or protected under common law.7 If a diagnosis of child abuse or neglect is suspected, the reporting process is intended to assure that the possible diagnosis is verified or ruled out. Sometimes appropriate professionals cannot be sure and, therefore, further intervention cannot be justified. The dentist can determine whether there is a basis to suspect child abuse or neglect. Other professionals similarly must decide within their own competency, e.g., social work, medicine, mental health, or law enforcement, whether there is a basis to proceed. If legal action is taken, lawyers present the available evidence, but a judge or jury must determine whether PEDIATRIC DENTISTRY: May 1986Nol. 8 Special Issue 1 117 or not abuse or neglect is confirmed for legal purposes. Even if there is an admission of harm by the caretaker, a judge often must rule formally to accept the admission if it is to have legal force. The dentist must prove nothing, except that a reasonable basis for reporting existed at the time of the report, and then only if the report is challenged. Failure to report does not carry the same degree of protection for the dentist. If a dentist either knew or should have known that a child was abused or neglected, he may be prosecuted criminally in some states or may be held civilly liable in monetary terms for not reporting. A general medical practitioner pleaded ”no contest” to charges of manslaughter in Los Angeles in 1984 after failing to report a case of child abuse which eventually led to the child’s death.8 At least 3 other physicians have been sued for failure to r e p ~ r t . ~ One settledTo and one lost at trial and was ordered to pay $186,851 in damages.ll In summary, current legislation and case law clearly favor the reasonable reporter. The Dentist as Witness Careful documentation of dental findings may prevent a child from having to appear as a witness, as well as saving a child from futher harm by a perpetrator. Findings should be kept in a business-like, contemporaneous manner. In suspected cases of abuse, X rays, laboratory test results, and sometimes even back-up samples for retesting, bite impressions, hair and similar physical evidence must be identified as to source, time obtained, and the person obtaining the information. Maintaining the evidence in a rigorous way in the custody of responsible individuals preserves the ”chain of evidence.” When in doubt as to these procedures, a district or state’s attorney should be contacted. The dentist called to testify should initiate contact with any lawyer who is calling the dentist to the stand, if he is unsure as to the issues of fact or law in at least general terms. On the stand, the dentist has rights which include being able to state that a response of “yes” or “no” would be misleading; although a yes or no answer still can be required subsequent to explanation, the dentist can request a chance to review his own records or charts to refresh his memory, and request to have a question restated or clarified. The Dentist as Diagnostic Team Member Child protection teamsT2 are common at medical facilities handling a large number of child abuse and neglect cases, and also are found frequently at the community level, where they generally are established by departments of social services. In a complex diagnostic area like child abuse, the ability to consult quickly with other professionals is invaluable. The use of multidisciplinary teams increases the chances that an appropriate diagnosis will be made, and decreases the chances that diagnosing professionals can be sued successfully for malpractice. The Dentist and the Child Patient Among the persons who may abuse or neglect children must be included professionals who come in contact with or care for children. Not surprisingly, sexual abuse of a patient may lead to criminal prosecution, monetary damages, and professional disciplinary pr0~eedings.l~ Similarly, physical abuse can be a basis for criminal or civil complaints. Techniques such as physical restraints, hand-over-mouth, and other applications of force should be considered carefully before use. Limited physical force is permissible only in special situations, for example as self-defense. The dentist wishing to act as an effective steward for children has many opportunities to do so. Improving techniques for reassuring children, obtaining consent appropriate to their developmental age, preventing inappropriate procedures by colleagues, and acting against the various forms of sexual or physical abuse, as well as physical and emotional neglect are among the ways that pediatric dentists can act within dentistry and more broadly as advocates for children.14 Mr. Bross is an associate professor in pediatrics (family law) at the University of Colorado Health Sciences Center, and legal counsel for The C. Henry Kempe National Center for the Prevention and Treatment of Child Abuse and Neglect. Reprint requests should be sent to: Mr. Donald C. Bross, 1205 Oneida St., Denver, CO 80220.