Health Impact News
The Family Defense Center
The Family Defense Center is a nonprofit organization whose mission is to advocate justice for families in the child welfare system. We advocate for families who need our help the most: families threatened with losing their children to foster care. Nothing is more painful for a child than to be taken from the only parents he or she knows. Yet, child protection systems throughout America frequently remove children from parents as a first resort, not a last resort. Many parents lose custody of their children to state foster care systems primarily because they are poor or because they are victims of abuse themselves. Far too many children in foster care bounce from home to home and are separated from siblings. Any family can be the victim of a false, harassing, or misguided Hotline call.
Medical Ethics Concerns in Child Abuse Investigations
In March of 2014, The Family Defense Center published a two-year research and writing project “Medical Ethics Concerns in Child Abuse Investigations.”
Here is the Executive Summary:
The Family Defense Center’s mission is to advocate justice for families in the child welfare system. In working on cases for wrongly-accused families who are targeted as a result of Hotline calls to child protective services, the Center handles many cases involving physical findings (typically bone fractures and/or bleeding on the brain or eyes) that are initially believed to give rise to suspicion of child abuse. In most of the Center’s cases, these medical findings eventually come to be seen as either the result of an accidental or medical condition or disease; in some cases, the findings that caused child protection investigations are determined not have to have been present at all.
While there may have been good reason to consider the possibility that the child was abused in these cases, careful consideration of alternative explanations yields the result that abuse is not a likely explanation, and certainly not a contention that can be proven in a court of law by a preponderance of the available evidence. In the typical Family Defense Center medically complex case, parents are eventually exonerated and children are returned home but only after intervention by the child protection system that lasted weeks, months or even years.
Does this typical fact pattern in Center cases show the child protection and medical assessment system works when child abuse has been alleged based on a medical finding? Or is the system for child abuse investigation, with extensive involvement by the medical profession every step of the way, failing the children and families who are the subjects of Hotline calls?
We submit, in this Paper, that this system of child abuse investigation and medical assessment is failing the children and families. We also submit that the failings are due at least in part to practices that are ethically questionable at best, or plainly unethical at worst. The harm of these practices occurs because, while the child may quickly recover from a toddler fracture, nursemaid’s elbow or subdural hematoma that is called in to child protection authorities as suspicious, the trauma families have experienced at the hands of the child protection system does not fade quickly or ever entirely disappear.
Moreover, the Center is able to represent only a tiny fraction of the wrongly accused family members in medically complex cases and resources like the Center provides are not available to the vast majority of family members who encounter the child protection and medical care establishment in these cases. Unfortunately, we see little sign that the child protection and medical care establishment are addressing in a meaningful way the harmful impact of erroneous child abuse reports that have resulted from questionable ethical practices that this Paper documents.
Indeed, for reasons this Paper documents, we believe that the medical profession has turned a blind eye to the treatment of children and families who are the victims of misplaced child abuse allegations and we are concerned about developments in the handling of medically complex allegations that make these problems worse, not better.
In this Paper, we deal only with cases in which the wrongly-accused parent has been exonerated. As to the exonerated parent, we ask the questions:
“What role did doctors play in the allegation being made in the first place and what were the ethical considerations for these doctors during the cases that eventually ended in an exoneration? Were there ethically required steps that doctors skipped in a rush to reach an ultimately unsustainable conclusion that child abuse was the likeliest explanation for the child’s injury? Has the medical care establishment established policies and practices that impede reaching the correct conclusion? Are family members’ interests in receiving information and making choices in the best interests of their children compromised by the processes currently in place? And if doctors’ medical ethics duties were violated, what policies and practices should be adopted so that the medical care establishment’s involvement in child abuse cases truly does no harm to the children?”
Focusing on the medical ethics duties involved in child abuse allegations that come to the attention of doctors, this Paper first presents five illustrative cases that document in detail how the medical profession interacted with the child protection system to disrupt the family life of children who were ultimately determined not to be victims of child abuse after all.
These cases all arose in Illinois and are representative cases in the Center’s much larger experience in medically-involved child abuse cases. After the detailed presentation of these cases, the Paper reaches several important conclusions that, we submit, require attention by medical and child protection policy makers as well as individual practitioners in these fields.
To summarize these conclusions:
1. The duty of physicians not to become law enforcement officers or to engage in interrogations is violated by practices under which children are detained at hospitals
while medical staff (child abuse pediatricians or social worker under their direction) interrogate parents using police-type tactics that have no place in a medical treatment
context (Discussion Section I).
2. After a Hotline call has been made, parents’ decision-making as to their children’s medical care and their access to their child may be impaired by misplaced assumptions about parental responsibility for suspected child abuse. This impairment deprives children of their rights to have their parents make essential health care decisions on their behalves. (Discussion Sections II and VI). In addition, doctors have an ethical duty to protect the child’s familial relationships. If physicians become advocates or willing partners in state child protection actions seeking restricted contact between parents and their children or the removal of a child from her parents, they are acting contrary to medical ethical principles recognizing the importance of “family-centered care” to children. (Discussion Section VI).
3. The development of the child abuse pediatrics subspecialty, which was recognized by the American Board of Pediatrics in 2009, has led to the child abuse pediatrician becoming the lead voice with child protection agencies in their determination of whether they believe child abuse occurred and parental access to children should be restricted. The idea that the child abuse pediatrician’s has greater expertise than other subspecialists has been more broadly accepted than is justified, especially if the child abuse pediatrician fails to fully consult with subspecialists in forming her abuse conclusions. (Discussion Section III, VIII).
4. As a result of the development of the child abuse pediatrics specialty, treating physicians and other doctors increasingly are pressed are pressed to give deference to opinions of the child abuse pediatrician, and they appear to be succumbing to that pressure in large numbers. This deference leads to economic and other benefits for treating doctors, but reduces the reliance on physicians who have potentially important information that supports the child and family relationship. Deference, to the exclusion of other opinions, harms the interests of children and families and reduces the quality of information considered by the child protection system in reaching a fair determination of whether child abuse has occurred. (Discussion Section IV).
5. The rights to privacy and confidentiality of medical information are not supposed to be lost as a result of child abuse reporting, though current practices appear to assume a right to share a child’s confidential medical information may be shared with state and local authorities and with forensic evaluators without parental consent whenever a child abuse report has been made. This overbroad sharing of information beyond the Hotline call itself is a potentially serious breach of medical ethics (Discussion Section V).
6. Physicians and medical institutions who hold contracts with child protection agencies have a duty to notify parents of children who are being evaluated for child abuse as to these third-party contractual relationships. When parents are not informed of the role of the child abuse pediatrician, or given the informed rights to participate or decline to participate in the child abuse pediatrician’s assessment of the Hotline call, including the right to refuse consent to access to records, medical ethics requirements of disclosure and informed consent are violated. (Discussion Section VII).
7. In arriving at medical opinions in connection with legal proceedings, physicians have ethical duties to be honest, objective independent and guided by current scientific thought. These duties encompass recognition of the limits of the physician’s expertise, the need to consult with other specialists, a duty to be objective rather than an advocate for a particular outcome, and a duty to maintain a reasonable caseload. The expertise of other disciplines such as orthopedics to the determination of child abuse is discussed at some length. If a child abuse pediatrician strays from his duties to be objective and sets himself up as the superior doctor whose opinion is the sole opinion the child protection system needs to consider, he violates this central canon of medical ethics (Discussion Section VIII).
8. Physicians also have an ethical responsibility to mitigate damage to families. Yet, in no case handled by the Center has this responsibility been met by the medical community; after exoneration, no family has received any offer of assistance or healing by any of the physicians who have caused them injury.
This default is the result of the medical profession’s failure to acknowledge the harm that wrongful child abuse allegations cause to children and families and to take meaningful steps to remedy that harm. Reconsidering policies and practices that cause the harm to occur would be an important first step in mitigating this damage. (Discussion Section IX and Summary of Conclusions and Recommendations).
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