Issues Related to Child Abuse Referrals From Therapists

We often represent clients who have been accused of committing child abuse by a Child Welfare Services agency after the agency receives a referral of potential child abuse by a therapist (such as a marriage and family therapist or MFT), licensed clinical social worker (LCSW), or other mental health counselor. We often find that the referrals are made by the therapists in haste or with not much substance to back up the child abuse allegation. In fact, we sometimes find what we regard as outright negligence on the part of the therapists. Here are some issues that we might take into account in these scenarios.

A continuing issue has been the failure of therapists to take accurate notes and, in some cases, any notes at all. While some experts may still say that there is a wide variance in the practice of therapists over keeping notes, the practical fact is that notes are essential for survival in this litigious age. Notes should not only be accurate, but should also be meaningful in terms of content. The notes should indicate what was said by the patient, as precisely as possible, and what the therapist did or said about the patient's communication. It is not necessary that the notes be written in plain English, but the notes should be an accurate picture of what was discussed. A therapist should never agree to not take notes at a patient's request. In fact, such a request from a patient should cause the therapist to seriously questions whether the patient has a secondary agenda.

A related issue to failure to take notes is the failure to obtain an adequate history. It is a common practice for licensing boards and civil plaintiffs to focus on the patient's history, to have the context of making an accurate diagnosis. The assertion that a therapist failed to obtain an adequate history is a common one, and in some instances is justified. As a general matter a history should include what the presenting symptoms are, what prior therapy the patient has been engaged in, what the history of mental illness is in the patients family of origin, whether the patient has been involved in litigation, what physical conditions the patient has that might contribute to the presenting symptoms, patient's educational history, patient's marital status, what medications if any the patient is taking, how long the presenting symptoms have lasted, whether the patient has had any recent physical examination, and/or medical evaluation.

An expert in civil litigation and for licensing boards, Dr. Jeffrey Younggren, has commented that therapists, in addition to being required to comply with the standard of care, must utilize common sense in weighing what patients tell them. The various cases that have dealt with repressed memory issues have articulated what amounts to a duty to utilize common sense or critical judgment, or a duty to be skeptical of a patient's implausible memories. To uncritically accept implausible memories of sexual abuse has been found to be below the standard of care by the California Board of Psychology.

As early as September of 1989 Dr. Gary Melton and Susan Limber in an article entitled "Psychologists' Involvement in Cases of Child Maltreatment" [American Psychologist Vol. 44, No. 9, pp. 1225-1233] commented on the inappropriate use by therapists of syndromes that are not found in the various versions of Diagnosis and Statistical Manual. There have been a proliferation of such syndromes over the last several years. At this point using syndromes which are not appropriately researched or acknowledged by the profession is below the standard of care. Some experts are of the opinion that among the syndromes which are controversial and which should not be represented as accepted in the therapist community are Child Sexual Abuse Accommodation Syndrome, Parental Alienation Syndrome, [Wiederholt v. Fischer 169 WIS 2d 524, 45 N.W. 2d 442 (1992)], False Memory Syndrome, and Malicious Mother Syndrome.