The Cambridge textbook of bioethics

that they are indeed abusive (Adinma, 1999; Eke and Nkanginieme, 1999; Nkwo and Onah, 2001; Msuya et al., 2002; Nour, 2003).

Separate from concerns about intention or even thresholds for harm are questions about what should count as cause to suspect child abuse and when is it appropriate to actually report suspected abuse to child protective services (CPS) agencies. According to a recent report, 82% of countries sanction voluntary reporting of suspected child abuse, while 65% require reporting from at least certain individuals (Daro, 2006). In the USA, CPS agencies screen approximately 60 000 reports of alleged abuse per week, investigating two-thirds of them (Gaudiosi, 2006). Most reports are initiated by individuals who qualify as mandated reporters in that their professional work brings them into routine contact with children. At a minimum, this includes teachers, law-enforcement personnel, firefighters, healthcare professionals, social services providers, and child care workers – though in 18 US states any competent adult qualifies as a mandated reporter (National Clearinghouse on Child Abuse and Neglect Information, 2001, 2003). Of note, countries that have mandatory reporting have a significantly lower mortality rate for children under five years of age ( 0.46; p <0.0001; Daro, 2006).

As mentioned above, there are known risk factors for abuse. So, too, there is an extensive medical and social science literature that documents clinical indicators of abuse (Kempe et al., 1962; Warner and Hansen, 1994; Reece and Ludwig, 2001; Giardino and Giardino, 2002; Vasquez and Pitts, 2006). At times, these resources combined with good interviewing skills and clinical acumen will cause mandated reporters to be certain in their judgement that abuse has occurred. Still, we will be less than certain in most instances. Hence our judgement and eventual decision to report will of necessity be grounded in a calculus, whose cofactors will include physical findings, observed behavior, risk factors, and so on. Though such a calculus is itself unavoidable, several ethical issues arise in how it is utilized.

The first has to do with bias, in terms of whom we suspect and report, and why. We know from

research that mandated reporters are more likely to suspect and report children whose ethnic and socioeconomic profiles do not resemble their own (Hampton and Newberger, 1985; Brosig and Kalichman, 1992; Bonardi, 2000). Perhaps we presume that people like ourselves are not likely to have abused a child. But it is interesting that ethnic and socioeconomic resemblance seem to make us more prone to identify with a child’s caregiver, exonerating them from suspicions of abuse, rather than make us more protective of the child who has been harmed (Adler, 1995). However this bias is to be explained, it is a problem of justice that minorities are several times more likely to be reported and investigated for suspected abuse (Sinal et al., 1997; Lane et al., 2002).

Were there little downside to being reported and investigated, this might be of minor concern. However, reports and investigations of child abuse are events that can destroy families and careers (Renke 1999). The ideal, of course, is that CPS agencies will carefully and sensitively investigate reports of child abuse, coordinate with social services and law enforcement to rehabilitate or remove offenders, and work with at-risk families to stabilize the home environment. But the reality is that families are stressed and disrupted – and sometimes blown apart – by the very process of state intervention into their lives (Thompson-Cooper et al., 1993; Beck and Coloff, 1995; Richman, 2000). Moreover, because the CPS system is fundamentally underfunded and overburdened, support services frequently do not materialize, leaving families no better off than before (Murphy-Berman, 1994; Melton et al., 1995; Melton, 2005; Gaudiosi, 2006). For these reasons, significant numbers of mandated reporters who have had experience with CPS agencies are wary of reporting further cases of suspected abuse (Applebaum, 1999; Flaherty et al., 2002; Melton, 2002; Flaherty et al., 2004).

None of this is to say that reporting suspected child abuse is, on balance, wrong to do. Rather it is to acknowledge that as currently configured the system is not without risks – which must be entered into our calculus of whether to report.

A second and related ethical issue has to do with the threshold that has been set to trigger mandated reporting, which varies from country to country, and even region to region. Across the USA, for example, there are 11 distinct thresholds; five use some variant of belief, while six use some variant of suspicion (National Clearinghouse on Child Abuse and Neglect Information, 2003). From a conceptual standpoint, there are important differences between believing and suspecting (White, 1993; Levi and Loeben, 2004), and various statutes have been changed in recognition of this (National Clearinghouse on Child Abuse and Neglect Information, 2001). In an nutshell, the problem with ‘‘belief’’ is that it involves holding an idea to be true, whereas in the context of mandated reporting one is seldom sure that abuse occurred but instead concerned that it might have occurred.

Collectively, the various statutory thresholds are referred to by the legal penumbra of reasonable suspicion. As such, mandated reporters typically are instructed that reporting is required any time they have reasonable suspicion that a child has been abused (Myers, 2001). The problem, however, is that there is no consensus what reasonable suspicion means (Deisz et al., 1996; Kalichman, 1999; Levi and Loeben, 2004; Levi and Brown, 2005; Levi et al., 2006). For some, it means whenever the thought of child abuse goes through your head, even if it goes right out (Deisz et al., 1996). For others, it requires a substantial likelihood that abuse actually occurred. For example, one survey of over 2000 pediatricians found that 15% of respondents indicated that abuse would need to be over 75% likely to qualify as reasonable suspicion; while a quarter of respondents set the threshold at a 60–70% likelihood; another quarter set it at 40–50%, and 35% of respondents set the threshold as low as 10–35% probability (Levi and Brown, 2005).

Surprisingly, the professional literature on child abuse provides no substantive clarification on this (Deisz et al., 1996; Kalichman, 1999; Levi and Loeben, 2004), nor does the law (Myers, 2001; Levi and Loeben, 2004). Mandated reporters are ‘‘left to define their own personal standards for what

constitutes a reasonable suspicion of child abuse’’ (Kalichman, 1999): the result being an ad hoc system that ensures neither equal protection for children nor justice for those who are reported. In addition, this absence of a standard can create significant burdens for conscientious mandated reporters trying to determine the right thing to do (Flaherty et al., 2004). So, too, it can foster conceptual confusion, as was shown in one study where physicians interpreted reasonable suspicion differently for severe versus minor injuries (Levi et al., 2006). Though perhaps clinically understandable, this is conceptually problematic because the question is not whether physicians should have a heightened level of suspicion when the stakes are higher, it is whether they are clear on the concept itself. By way of analogy, it may be more important to look for fever in an obtunded patient than in someone with an itchy rash; but what constitutes ‘‘fever’’ (i.e., the properties that make up one’s conceptual understanding of fever) should not vary with the clinical situation. Moreover, because the vast majority of child abuse cases do not involve severe injury (and prior severity of injury is not predictive of subsequent severity; Levy et al., 1995), to safeguard children it is important that mandated reporters regard all instances of harm with the same level of careful consideration.

From a systems standpoint, the absence of a standard is equally troubling. Imagine that police were directed to write speeding tickets for motorists driving ‘‘too fast’’ but given no clear guidelines for judging what should count as ‘‘too fast.’’ In the case of mandated reporting, the result is a system of indiscriminate reporting (Blacker, 1998) that not only disrupts families in which no abuse has occurred, and misses cases that warrant investigation, but also diminishes the effectiveness of CPS by dispersing already scarce resources and by eroding confidence in the legitimacy of child abuse investigations (Applebaum, 1999; Flaherty et al., 2000; Richman, 2000; Melton, 2005).

Preliminary evidence suggests that statutory wording can significantly influence how individuals interpret and apply the threshold for mandated

reporting. Two studies in particular have shown that mandated reporters express significantly greater willingness to report abuse when the threshold is defined as there being a 25% chance or greater that abuse occurred (Blacker, 1998; Flieger, 1998). This is not to say that ‘‘25% probability’’ is the appropriate threshold to endorse. But it does demonstrate that specifying the threshold in more concrete terms makes a significant difference.

A third ethical issue in our calculus of when to report abuse is where society should set the threshold for mandated reporting. Setting the threshold too low – say, 10% estimated probability – not only would bring about considerable disruption to families where no abuse has occurred but also would greatly stretch already limited CPS resources. Moreover, it would potentially overload the legal system, strain relationships between parents and mandated reporters, and (if reporting requirements are seen as unreasonable) increase disrespect for the law (Applebaum, 1999; Melton, 2005). These implications are further compounded when mandated reporters have immunity from criminal and civil prosecution, as occurs in the USA (State of Minnesota v. Curtis Lowell Grover, 1989). In point of fact, mandated reporting systems often provide little check or balance of mandated reporters’ power, little recourse for non-malicious reporting injustices, and no ready mechanism for constructive feedback to educate mandated reporters (Thompson-Cooper et al., 1993; Kalichman, 1999). So, setting an extremely low threshold risks indiscriminate reporting with little prospect for amelioration.

By contrast, setting the threshold for mandated reporting too high – say, 75% estimated probability – risks overlooking children who have been abused, since the signs of child abuse are often ambiguous (Giardino and Giardino, 2002). Consequently, some balancing is in order to identify an appropriate threshold. This, in turn, will require deciding how much we are willing to invest to protect children from abuse, as well as how much harm and what kinds of harm we are willing to tolerate. For this, we will need public dialogue and debate, as well as a

much better understanding of the costs and benefits of various cutoff points: 25% estimated probability versus 35%, 50%, and so on.

A temptation to be resisted is the construction of different thresholds for different kinds of abuse, depending on the severity of risks in play. The reason is that there is simply too great a variability in education and expertise among the millions of mandated reporters to expect individuals to discern accurately which threshold ought to apply for one kind of abuse versus another.

Even if there was a well-defined threshold, however, there is a fourth ethical issue in our calculus of when to report abuse. What should we do when we have reasonable suspicion that a child has been abused, but do not think that their interests are best served by reporting the abuse? From a legal standpoint, the answer is clear: mandated reporters are required to report whenever they have reasonable suspicion of abuse and the suspected abuser is either a parent or a person responsible for the child’s welfare. In many jurisdictions (e.g., throughout the USA), failure to report makes one guilty of a misdemeanor (punishable by a fine and up to several months in jail) and civilly liable for damages if the abused child (or another child) is further victimized because of the failure to report.

Despite this, large numbers of mandated reporters regularly do not report suspected abuse (Singley 1998; Kalichman 1999; Delaronde et al., 2000; Flaherty and Sege, 2005), though prosecutions for this are rare (Singley 1998; State of Missouri v. Leslie A. Brown, 2004). Reasons that mandated reporters do not report suspected abuse include the many ambiguities and uncertainties discussed above, as well as competing interests that mandated reporters often experience – such as worries about their relationship with a family, costs (financial, social, professional), and so on. In addition, the decision whether to report suspected abuse weighs heavily on many mandated reporters precisely because reporting does not always benefit the child (Johnson, 1999; Flaherty et al., 2000, 2004). Relatedly, some competing interests can be intricately intertwined with the interests of a given child. For

example, we know that child abuse is present in 50–80% of families in which domestic violence occurs (Garbarino et al., 1991; Appel and Holden, 1998; Edleson, 1999), but it is not at all clear that it is in the interests of all (or even most) children exposed to domestic violence to be reported for suspected child abuse just because of the known association between the two. Another, and perhaps more problematic, example of intertwined interests involves instances where a parent who has committed child abuse is in therapy. Here, the concern is that reporting parents’ abusive behavior could impede not only their own rehabilitation, but also (if such reporting were standard practice) prevent other child abusers from coming forward for help (Berlin et al., 1991; Budai, 1996).

take responsibility for their safety; (iii) all other lawabiding alternatives would (in your estimation) also conduce to significant harm; and (iv) you are prepared to defend your decision publicly, and if need be accept the legal penalties for not carrying out your responsibilities as a mandated reporter.

What these conditions reflect is the strength of conviction necessary for true conscientious refusal of mandated reporting. In weighing one’s resolve, however, one must be careful of overconfidence in predicting either a child’s safety or one’s ability to intervene on their behalf (Adler, 1995). However imperfect, CPS agencies provide the only systematic approach for investigating and safeguarding a child’s well-being.

How should I approach child abuse and neglect in practice?

Putting such twists aside, the question remains whether a mandated reporter should follow the law and report suspected abuse when doing so does not appear to be in a child’s interest. At root, it is a matter of conflicting obligations: obligation to follow the law versus obligation to protect children from harm. What makes the matter particularly difficult is that, unlike many laws or countervailing ethical principles such as patient confidentiality (see Ch. 7), mandated reporting laws were constructed with the protection and well-being of children specifically in mind. Hence, the tension is between following a rule specifically designed to protect children from abuse and following one’s own judgement about how best to ensure a child’s safety and well-being.

I think it is possible ethically to justify such acts of conscientious refusal (Rawls, 1971) that are grounded in one’s professional principles and responsibilities. But to do so certain conditions must be met: (i) you genuinely believe that reporting the suspected abuse will result in a net harm for this child; (ii) you are confident that the child is not at risk for subsequent injury, and you are willing to

The case

In the case presented at the outset, a careful physical examination revealed no other injuries, and a thorough review disclosed no evidence of prior suspicious injuries, frequent visits to the emergency room, or bleeding abnormalities. While the evidence does not point to abuse as the most likely explanation for the injury, it is not ruled out. In this case, the default decision must be to report suspected abuse, unless the physician has a strong relationship with the family and can meet the four criteria for conscientious refusal mentioned above.

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This section deals with complex technological issues that we often read about in the media because they are either very new or are controversial. The ethical issues are broad, falling under the umbrella of ELSI (ethical, legal, and social issues) or, for example in Canada, under GE3LS (genetic ethics, environmental, economic, and legal issues).

Chapter 20, deals with traditional organ transplantation, which has been one of the notable biomedical successes of the second half of the twentieth century. It has raised a host of difficult bioethical issues, many of which revolve around organ donation. In the 1980s, it was considered unseemly to consider donation other than from the dead or from genetically related living donors. Today, the range of ethically acceptable potential donors, both cadaveric and living, has expanded substantially in response to the rising need and demand – a measure of transplantation’s success. Living donations from spouses and friends are common, and those from acquaintances and even strangers (Good Samaritans) are increasing. Donations from the recently deceased now include the controversial non-heart-beating donors of various types (actually harking back to the early days of cadaveric donation). The two cases discussed in Ch. 20 illustrate a number of important transplantrelated issues such as consent, altruism, systems of just allocation of public resources, transplant tourism as well as and other substantive issues.

The life sciences are developing so rapidly that it is perfectly possible to think of regenerative medicine as the next stage in the evolution of organ

transplantation, and indeed of organ functionreplacement therapies. The tools of regenerative medicine include the controversial, highly charged, and politicized technology of stem cells. The two cases used in Ch. 21 illustrate the challenges encountered by primary physicians faced with patients seeking information about, and access to, cutting edge experimental therapies that they have read about in the media or on the Internet. Regenerative medicine is new even to specialists in other fields, and so Ch. 21 begins by defining the field and then goes on to highlight issues and approaches in experimental, innovative therapies. It talks of the distinction between therapy and enhancement, of media hype, the regulation of embryo and stem cell research internationally, and the obligation of clinicians to keep abreast of scientific and technological developments. It just touches upon neuroregenerative therapy and hints at the whole emerging and important domain of scholarly inquiry, dealt with in Ch. 63.

Much has been written about genetic testing, but it takes a world expert of the caliber of Ruth Chadwick to lucidly tease out the many complex, confusing, and evolving issues surrounding this subject. She asks the perennial question ‘‘Is there something special about genetic information?’’ and goes on to discuss confidentiality, sharing of information, the right not to know, stigmatization, testing of children, etc. Her discussion of secondary use of data derived from DNA analysis in Ch. 22 sets the scene very well for the next chapter, on bio-banking.