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doi:10.1111/jpc.12714
ETHICAL DEBATE
Ethical dilemmas in child protection for paediatricians Dr Emma-Jane Roper Child Protection Unit, Mater Children’s Hospital, Brisbane, Queensland, Australia
I have recently taken some time to reflect on my personal experience as a child protection paediatrician, in relation to how the ethical principles of autonomy, justice, beneficence and non-maleficence are applied in my clinical practice, and how this may differ from general medical practice and adult forensic medical practice. It should be noted that the following discussion is my personal opinion, and does not necessarily reflect the opinions of other paediatricians. There is likely to be differences of opinion amongst individuals and variation in clinical practice across Australia and New Zealand, and it is hoped that this article will generate discussion that may inform future clinical practice. The forensic medical assessment of suspected child abuse is one of the key roles of the paediatrician,1 yet it is considered by many paediatricians to be one of the most difficult clinical scenarios to manage.2 The majority of child protection paediatricians in Australia and New Zealand have completed less than three months of formal child protection training before achieving Fellowship of the Royal Australasian College of Physicians, and most perceive this to be inadequate.3 The forensic role is considered to be one of the most stressful aspects of child protection work. There are several recent publications that give clear guidance for paediatricians in relation to their role in providing objective forensic opinions and medico-legal reports to the police or a local statutory child protection agency.4–8 There is, however, a dearth of literature in relation to the specific ethical dilemmas a paediatrician encounters while seeing a child and their caregiver(s) for the purpose of evaluating suspected child abuse and neglect. The primary purpose of forensic medicine is to serve the needs of the justice system, but this is rarely the sole objective of the medical consultation for the child protection paediatrician. Children may be referred for forensic examination by police or the local statutory child protection agency, in cases of suspected physical or sexual abuse. Although in these cases the medical consultation is primarily for forensic purposes, the paediatrician would typically provide a holistic assessment of the child’s physical, psychosocial and protective needs. In many cases children are referred to child protection paediatricians for further assessment of suspected child abuse, by other medical practitioners. There may not at that stage be a criminal or statutory child protection agency investigation, or there may be some lack Correspondence: Dr Emma-Jane Roper, email: emmajane_schofield@ yahoo.com Conflict of interest: The author has no conflict of interest to declare. Accepted for publication 20 December 2013.
of clarity about whether there should be based on what is currently known. It is these referrals in particular, which highlight the specific ethical and legal differences of forensic paediatric practice from the standard paediatric medical consultation. There is little research or guidance about best practices for child protection paediatricians who interview caregivers of suspected child abuse victims.9 The first ethical dilemma is the issue of consent for the medical consultation. As for the standard paediatric medical consultation, consent should be obtained from the child’s (person under the age of 18 years) caregiver (parent or legal guardian). In order for consent to be valid, it must be fully informed and voluntary, and the caregiver must have capacity to give consent.10 Secondly, there is the issue of the potential breach of confidentiality. In some states/territories of Australia, including Queensland,11 there is legislation requiring all practitioners to report suspicion of harm of a child to the statutory child protection agency, with varied terms in each legislation. There are penalties for failure to report, although these are rarely enforced. New Zealand is an exception. Whilst there is no legislation mandating reporting, District Health Boards have policies requiring health professionals to report suspected abuse to the relevant agency.12 There continues to be much debate about the benefits of mandatory reporting, which is balanced against the cost of over-reporting.13 Child protection legislation across Australia and New Zealand also allows health professionals to provide information obtained from the medical consultation or medical records, directly to the statutory child protection agency or police, if the information is relevant to the welfare and protection of a child or young person. How much of this information needs to be explicitly discussed prior to commencing the caregiver interview by the child protection paediatrician? In a typical presentation to a health service provider, consent to the consultation is implied by the fact that the caregiver has sought medical attention for their child. It is often during the course of the initial medical history and examination that concerns about possible child abuse or neglect arise, and a referral may then be made for further assessment by a child protection paediatrician. A reasonable suspicion of child abuse has already been formed. The paediatric consultation from this point can be particularly challenging to manage in terms of communication with the caregiver(s), when a detailed history and physical examination are vitally important to the further assessment of the child. The paediatrician with expertise in child protection, must introduce themselves to the caregiver(s), and explain why they have been asked to review their child. During the initial consultation the paediatrician needs to obtain a detailed history and examine the
Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians).
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Ethical dilemmas in child protection
E-J Roper
child, before explaining to the caregiver(s) what investigations are needed to medically evaluate the child, which includes assessment of the presence of any medical conditions that may resemble injury or predispose the child to injury from minimal force. An effective rapport with the child’s caregiver(s) is essential to gathering information that can clarify the specifics of a potentially abusive event or situation.9 History taking needs to remain objective, and without judgement of the caregiver(s). In my opinion, rapport between paediatrician and caregiver(s) would be extremely difficult to establish if the consultation started with an explanation that the details of the consultation were unlikely to remain confidential, and that information of concern in relation to possible child abuse would be passed on to the local statutory child protection agency and police, which could potentially result in criminal proceedings and placement of their child into foster care. Caregivers have the right to autonomy and would be well within their rights to decline any further conversation at this stage, leaving the child at potential risk of further harm, including death. However, it could be considered by some that consent for the consultation is not valid if caregivers are only partially informed about the true nature of the forensic medical evaluation and possible outcomes, and the paediatrician could be considered biased in their forensic medical opinion if the consultation proceeds without fully informed consent from the caregiver(s). The issues of informed consent and breach of confidentiality can arise in any medical consultation, when during the course of the consultation, a health professional forms a reasonable suspicion of harm to a child. When a paediatrician with expertise in child protection is asked to consult on a case by another health professional, the likelihood of a requirement by that paediatrician, to report suspicion of harm of a child, to police and the statutory child protection agency may be higher. However the child protection concerns may also be resolved, requiring no further action. In some circumstances, it can become apparent during the course of the consultation that there is a clear medical explanation for a suspected injury (e.g. suspected bruising to the buttocks of an infant diagnosed as Mongolian blue spots), or that the injury is adequately explained by the circumstances of the injury event provided by the carer or other witness, and inflicted injury has been assessed as extremely unlikely. These scenarios do not usually require any further investigation or reporting to the statutory child protection agency. In other circumstances the degree of suspicion of child abuse may heighten as the consultation progresses, based on history and examination findings, and valuable collateral information from the psychosocial assessment. The end of the consultation may be a more appropriate time to explain to the caregiver(s), the requirements by law for doctors to report concerns of possible child abuse to the statutory child protection agency and police. This also allows an opportunity to discuss what is likely to be the next step in the investigation process, and to offer social work support to the caregiver(s) and their family. Following the Victoria Climbie inquiry in the UK (2003), Lord Laming recommended that ‘investigation and management of a case of possible deliberate harm to a child must be approached in the same systematic and rigorous manner as would be appropriate to the investigation and management or any other potentially fatal disease’.14 As with all medical investigations on a 358
child, consent must be obtained from the parent or other legal guardian. For consent to be informed, the paediatrician needs to communicate the purpose of the investigations, potential risks and complications, including exposure to radiation.15 Radiological investigations in cases of suspected physical abuse of a child may include plain radiographs, bone scan, neuroimaging and in some cases abdomino-thoracic imaging, with either CT or MRI. In addition these investigations may require sedation or general anaesthetic. International guidelines recommend that a skeletal survey should always be performed in cases of suspected physical abuse in a child who is under 2 years of age.16–19 The skeletal survey is a series of up to 21 separate radiographs, aiming to image almost the entire axial skeleton. The incidence of occult fractures in children under 2 years of age, where there is a strong suspicion of physical abuse is reported to be between 11% and 33%.20–23 However, occult skeletal injuries associated with child abuse rarely require specific medical or orthopaedic management, but their identification is highly significant medically and forensically. This presents quite a unique ethical dilemma for the child protection paediatrician, when faced with obtaining consent for such an investigation from the person who may actually be responsible for the abuse. By consenting they are potentially assisting with identifying medical information that may lead to criminal proceedings against them or someone close to them. From a narrow health perspective the additional findings of the skeletal survey are unlikely to change acute care, but they may be vitally important in the evaluation of suspected child abuse, which has relevance for considering the child’s safety. In addition, if the parent or legal guardian refuses to give consent for certain investigations that are considered to be in the best interest of the child, and necessary to complete the medical assessment of the child at risk of physical abuse, their autonomy can be overruled by an order from the Children’s Court by the statutory child protection agency. Police are usually very prompt in responding to reported concerns of child abuse, and typically will commence an investigation by interviewing the caregiver(s), often in the hospital setting. In some cases police may request that the paediatrician withhold information about clinical findings of occult injuries from the caregiver(s), until police have had an opportunity to conduct their interviews. This is a very difficult ethical situation for the paediatrician, as withholding clinical information from caregivers would be a significant departure from usual medical practice and can detrimentally impact on the rapport and trust between the caregiver(s) and paediatrician. Even if caregivers are suspects in a police investigation, the paediatrician should never allow unproven assumptions to alter their obligation to treat a child’s caregiver(s) and family according to the normal principles of medical ethics. Police interviews of hospital patients should not interfere with patient care, and diagnostic or therapeutic procedures should not be delayed to accommodate police questioning, if delay might reasonably be expected to worsen patient’s outcomes.24 After all the medical investigations are complete, the paediatrician would typically meet again with the caregiver(s) to discuss the clinical findings, the results of any investigations, and a preliminary opinion at that stage regarding the causation of those findings, which has relevance to the statutory
Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians)
E-J Roper
assessment of the child’s safety. It should be explained to the caregiver(s) that this is the opinion that will be provided in the form of a written report to the police and the statutory child protection agency. Prior to police interviews, it is recommended that in any discussion with caregivers, paediatricians are very general and specifically avoid answering questions about specific mechanisms of injury,9 to avoid introducing bias into the police interview, which may lead the caregiver(s) into reporting a false alternative explanation for the injury. Following police/ statutory agency interviews, caregivers may wish to discuss the forensic medical opinion with the paediatrician who has provided the forensic medical report. This discussion should be limited to defining what the findings are, whether the suspicion of harm is sustained or resolved, and to what extent. The paediatrician should take care not to ‘diagnose abuse’ although their opinion may get very close. The issue of whether a child has been abused is for the statutory child protection agency to finalise a decision on, after carefully considering all of the evidence from their own investigation, the police investigation, and the medical opinion(s). I have previously been asked by police if it would be possible to surreptitiously audio-record the medical consultation, in order to assist with the police investigation. Caregivers may also ask to audio-record a discussion with the paediatrician, or may do so surreptitiously. In Queensland, it is in fact legal under the Invasion of Privacy Act 1971,25 for a face-to-face conversation to be secretly recorded by a person who is party to the conversation. This is, however, in breach of ethical medical guidelines,26 which require informed consent for consultations to be audioor video-recorded. Confessions to medical practitioners are uncommon in child abuse cases.27 Confessions are a special kind of admission in criminal matters whereby the accused gives a full acknowledgement of guilt. Voluntary confessions are admissible to court. A judge has the discretion to exclude confession evidence on the ground that it is highly prejudicial, not reliable or for public policy reasons (Evidence Act 1977).28 Ethically, to surreptitiously audio-record the medical consultation would be a major departure from usual medical practice, deceives the caregiver(s) and transforms the paediatrician from a clinician into an investigator. It does not add any benefit to the child medically over and above the standard paediatric consultation, and could cause harm to the paediatrician–caregiver relationship in the individual case, but also for the wider public. Considering these principles, it would seem that covert audiorecording of the paediatric consultation cannot be justified. Similarly, if the ethical principles are applied to in hospital covert video-surveillance in cases of suspected smothering or poisoning of a child, such practice is extremely difficult to justify, as the risk to the child is unacceptably high. For example, if there are sufficient concerns of suffocation then there is usually sufficient justification to immediately protect the child using statutory child protection legislation, even if the required standard of proof for the criminal jurisdiction may not be met, as it is unjustifiable to continue to expose risk to the child without protection. The United Nations Declaration of the Rights of the Child29 states that every child has the fundamental right to life and dignity, and is entitled to optimal medical care. Child protection legislation upholds the principle that all children have the right to
Ethical dilemmas in child protection
be protected from harm. The child protection paediatrician’s role is to clearly and thoroughly document medical evidence of injury, and to communicate their objective forensic medical opinion clearly to the local statutory child protection agency, police, and usually the caregiver(s) and other members of the child’s family. This should include what the medical findings are, whether any medical condition has been identified, which might account for the findings, and the extent to which the findings are explained by events that have been reported. Whenever possible, paediatricians should advocate for respect and action concerning the rights of children.30 The paediatrician’s role is supported through child protection legislation, which allows breaches in confidentiality of the doctor–patient relationship, in the best interest of keeping the child safe from harm. Communication with caregivers in cases of suspected child abuse is particularly challenging for many paediatricians. There is very little specific guidance in the literature as to how these consultations are best conducted in practice, and this warrants further exploration. An empathic and honest approach is imperative to achieve confidence between the doctor, the child and the caregiver(s). The child also has a right to information and involvement in medical decisions at a level appropriate for their age and developmental level. It is never appropriate to lie to the child or their caregiver(s), and withholding information from the caregiver(s) would be a conscious and deliberate departure from standard medical practice. Breaches in confidentiality should be explained to the caregiver(s), including the moral, ethical and legal reasoning of the paediatrician for their action, and to keep the caregiver(s) fully informed. Although it is essential that the statutory child protection agency, police and the paediatrician communicate effectively with each other when cases of suspected child abuse are being investigated, to ensure the future safety of the child, it is important to remember how different the objectives and working framework are for each agency. The paediatrician needs to be well informed of the specific issues that arise from child protection work, in order to feel confident in their ability to practice within the ethical and legal boundaries of this challenging field of medicine.
References 1 Protecting Children is Everybody’s Business. Paediatricians Responding to the Challenge of Child Abuse. Paediatrics and Child Health Division, Royal Australasian College of Physicians Health Policy Unit, 2000. 2 Cooper C, Hewson P. The most difficult clinical situations: a survey of Victorian general paediatricians. J. Paediatr. Child Health 2002; 38: 455–8. 3 Cruickshanks P, Skellern C. Role of the tertiary child protection paediatrician: expert and advocate. J. Paediatr. Child Health 2007; 43: 34–49. 4 David T. Avoidable pitfalls when writing medical reports for court proceedings in cases of suspected child abuse. Arch. Dis. Child. 2004; 89: 799–804. 5 Skellern C. Medical experts and the law: safeguarding children, the public and the profession. J. Paediatr. Child Health 2008; 44: 736–42. 6 American Academy of Pediatrics. Committee on medical liability and risk management. Expert witness participation in civil and criminal proceedings. Pediatrics 2009; 124: 428–38.
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7 Skellern C, Donald T. Suspicious childhood injury: formulation of forensic opinion. J. Paediatr. Child Health 2011; 47: 771–5. 8 Skellern C, Donald T. Defining standards for medico-legal reports in forensic evaluation of suspicious childhood injury. J. Forensic Leg Med. 2012; 19: 267–71. 9 Snyder K, Currie M, Stockhammer T. Interviewing caregivers of suspected child abuse victims. In: Jenny C, ed. Child Abuse and Neglect: Diagnosis, Treatment and Evidence, 1st edn. St Louis, MO: Saunders, 2010; 51–60. 10 FOR4003. Ethics, Medicine and The Law. Unit Book. Department of Forensic Medicine, Monash University, 2013. 11 Public Health Act 2005 (QLD). 2014. Available from: www.legislation .qld.gov.au [accessed August 2014]. 12 Memorandum of Understanding Between Child, Youth and Family, New Zealand Police and District Health Boards. 2011. Available from: http://www.cyf.govt.nz/documents/working-with-others/microsoft -word-final-mou-cyf-police-dhbs-august-2011.pdf [accessed December 2013]. 13 Queensland Child Protection Commision of Inquiry. Taking Responsibility: A Roadmap for Queensland Child Protection. 2013. Available from: http://www.childprotectioninquiry.qld.gov.au [accessed December 2013]. 14 Lord Laming. The Victoria Climbie Inquiry. 2003. Para. 11.53. Available from: http://www.official-documents.gov.uk/document/cm57/5730/ 5730.pdf [accessed December 2013]. 15 Miglioretti DL, Johnson E, Williams A et al. The use of computed tomography in pediatrics and the associated radiation exposure and estimated cancer riskcomputed tomography in pediatrics. JAMA Pediatr. 2013; 167: 700–7. 16 American Academy of Pediatrics. Section on Radiology. Diagnostic imaging of child abuse. Pediatrics 2009; 123: 1430–5. AAP. 17 American College of Radiology. American College of Radiology Practice Guideline for Skeletal Surveys in Children. 1997. 18 British Society of Paediatric Radiology. Standard for Skeletal Surveys in Suspected Non-Accidental Injury (NAI) in Children. 2003. Available from: www.bspr.org.uk [accessed December 2013].
19 The Royal College of Radiologists and The Royal College of Paediatrics and Child Health. Standards for Radiological Investigations of Suspected Non-accidental injury. 2008. 20 Duffy S, Squires J, Fromkin J, Berger R. Use of skeletal surveys to evaluate for physical abuse: analysis of 703 consecutive skeletal surveys. Pediatrics 2011; 127: e47–52. 21 Day F, Clegg S, McPhillips M, Mok J. A retrospective case series of skeletal surveys in children with suspected non-accidental injury. J. Clin. Forensic Med. 2006; 13: 55–9. 22 Lindberg DM, Harper NS, Laskey AL et al. Prevalence of abusive fractures of the hands, feet, spine, or pelvis on skeletal survey: perhaps ‘uncommon’ is more common than suggested. Ped. Emerg. Care 2013; 29: 26–9. 23 Merten D, Radkowski M, Leonidas J. The abused child: a radiological reappraisal. Radiology 1983; 146: 377–81. 24 Jones P, Appelbaum P, Siegel D. Law enforcement interviews of hospital patients: a conundrum for clinicians. JAMA 2006; 297: 822–5. 25 Invasion of Privacy Act 1971 (QLD). 2013. Available from: http://www.legislation.qld.gov.au [accessed December 2013]. 26 General Medical Council. Making and Using Visual and Audio Recordings of Patients. General Medical Council Supplementary Guidance. 2011. Available from: www.gmc-uk.org/guidance [accessed December 2013]. 27 Adambaum C, Graber S, Mejean N, Rey-Salmon C. Abusive head trauma: judicial admissions highlight violent and repetitive shaking. Pediatrics 2010; 126: 546–55. 28 Evidence Act 1977 (QLD). 2014. Available from: www.legislation.qld.gov.au [accessed August 2014]. 29 United Nations General Assembly. Declaration of the Rights of the Child. 1959. Available from: http://www.un.org/ cyberschoolbus/humanrights/resources/child.asp [accessed December 2013]. 30 Kurz R, Gill D, Mjones S. Ethical issues in the daily medical care of children. Eur. J. Pediatr. 2006; 165: 83–6.
Ethics Air by Henry Kilham.
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Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians)
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doi:10.1111/jpc.12714
ETHICAL DEBATE
Ethical dilemmas in child protection for paediatricians Dr Emma-Jane Roper Child Protection Unit, Mater Children’s Hospital, Brisbane, Queensland, Australia
I have recently taken some time to reflect on my personal experience as a child protection paediatrician, in relation to how the ethical principles of autonomy, justice, beneficence and non-maleficence are applied in my clinical practice, and how this may differ from general medical practice and adult forensic medical practice. It should be noted that the following discussion is my personal opinion, and does not necessarily reflect the opinions of other paediatricians. There is likely to be differences of opinion amongst individuals and variation in clinical practice across Australia and New Zealand, and it is hoped that this article will generate discussion that may inform future clinical practice. The forensic medical assessment of suspected child abuse is one of the key roles of the paediatrician,1 yet it is considered by many paediatricians to be one of the most difficult clinical scenarios to manage.2 The majority of child protection paediatricians in Australia and New Zealand have completed less than three months of formal child protection training before achieving Fellowship of the Royal Australasian College of Physicians, and most perceive this to be inadequate.3 The forensic role is considered to be one of the most stressful aspects of child protection work. There are several recent publications that give clear guidance for paediatricians in relation to their role in providing objective forensic opinions and medico-legal reports to the police or a local statutory child protection agency.4–8 There is, however, a dearth of literature in relation to the specific ethical dilemmas a paediatrician encounters while seeing a child and their caregiver(s) for the purpose of evaluating suspected child abuse and neglect. The primary purpose of forensic medicine is to serve the needs of the justice system, but this is rarely the sole objective of the medical consultation for the child protection paediatrician. Children may be referred for forensic examination by police or the local statutory child protection agency, in cases of suspected physical or sexual abuse. Although in these cases the medical consultation is primarily for forensic purposes, the paediatrician would typically provide a holistic assessment of the child’s physical, psychosocial and protective needs. In many cases children are referred to child protection paediatricians for further assessment of suspected child abuse, by other medical practitioners. There may not at that stage be a criminal or statutory child protection agency investigation, or there may be some lack Correspondence: Dr Emma-Jane Roper, email: emmajane_schofield@ yahoo.com Conflict of interest: The author has no conflict of interest to declare. Accepted for publication 20 December 2013.
of clarity about whether there should be based on what is currently known. It is these referrals in particular, which highlight the specific ethical and legal differences of forensic paediatric practice from the standard paediatric medical consultation. There is little research or guidance about best practices for child protection paediatricians who interview caregivers of suspected child abuse victims.9 The first ethical dilemma is the issue of consent for the medical consultation. As for the standard paediatric medical consultation, consent should be obtained from the child’s (person under the age of 18 years) caregiver (parent or legal guardian). In order for consent to be valid, it must be fully informed and voluntary, and the caregiver must have capacity to give consent.10 Secondly, there is the issue of the potential breach of confidentiality. In some states/territories of Australia, including Queensland,11 there is legislation requiring all practitioners to report suspicion of harm of a child to the statutory child protection agency, with varied terms in each legislation. There are penalties for failure to report, although these are rarely enforced. New Zealand is an exception. Whilst there is no legislation mandating reporting, District Health Boards have policies requiring health professionals to report suspected abuse to the relevant agency.12 There continues to be much debate about the benefits of mandatory reporting, which is balanced against the cost of over-reporting.13 Child protection legislation across Australia and New Zealand also allows health professionals to provide information obtained from the medical consultation or medical records, directly to the statutory child protection agency or police, if the information is relevant to the welfare and protection of a child or young person. How much of this information needs to be explicitly discussed prior to commencing the caregiver interview by the child protection paediatrician? In a typical presentation to a health service provider, consent to the consultation is implied by the fact that the caregiver has sought medical attention for their child. It is often during the course of the initial medical history and examination that concerns about possible child abuse or neglect arise, and a referral may then be made for further assessment by a child protection paediatrician. A reasonable suspicion of child abuse has already been formed. The paediatric consultation from this point can be particularly challenging to manage in terms of communication with the caregiver(s), when a detailed history and physical examination are vitally important to the further assessment of the child. The paediatrician with expertise in child protection, must introduce themselves to the caregiver(s), and explain why they have been asked to review their child. During the initial consultation the paediatrician needs to obtain a detailed history and examine the
Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians).
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Ethical dilemmas in child protection
E-J Roper
child, before explaining to the caregiver(s) what investigations are needed to medically evaluate the child, which includes assessment of the presence of any medical conditions that may resemble injury or predispose the child to injury from minimal force. An effective rapport with the child’s caregiver(s) is essential to gathering information that can clarify the specifics of a potentially abusive event or situation.9 History taking needs to remain objective, and without judgement of the caregiver(s). In my opinion, rapport between paediatrician and caregiver(s) would be extremely difficult to establish if the consultation started with an explanation that the details of the consultation were unlikely to remain confidential, and that information of concern in relation to possible child abuse would be passed on to the local statutory child protection agency and police, which could potentially result in criminal proceedings and placement of their child into foster care. Caregivers have the right to autonomy and would be well within their rights to decline any further conversation at this stage, leaving the child at potential risk of further harm, including death. However, it could be considered by some that consent for the consultation is not valid if caregivers are only partially informed about the true nature of the forensic medical evaluation and possible outcomes, and the paediatrician could be considered biased in their forensic medical opinion if the consultation proceeds without fully informed consent from the caregiver(s). The issues of informed consent and breach of confidentiality can arise in any medical consultation, when during the course of the consultation, a health professional forms a reasonable suspicion of harm to a child. When a paediatrician with expertise in child protection is asked to consult on a case by another health professional, the likelihood of a requirement by that paediatrician, to report suspicion of harm of a child, to police and the statutory child protection agency may be higher. However the child protection concerns may also be resolved, requiring no further action. In some circumstances, it can become apparent during the course of the consultation that there is a clear medical explanation for a suspected injury (e.g. suspected bruising to the buttocks of an infant diagnosed as Mongolian blue spots), or that the injury is adequately explained by the circumstances of the injury event provided by the carer or other witness, and inflicted injury has been assessed as extremely unlikely. These scenarios do not usually require any further investigation or reporting to the statutory child protection agency. In other circumstances the degree of suspicion of child abuse may heighten as the consultation progresses, based on history and examination findings, and valuable collateral information from the psychosocial assessment. The end of the consultation may be a more appropriate time to explain to the caregiver(s), the requirements by law for doctors to report concerns of possible child abuse to the statutory child protection agency and police. This also allows an opportunity to discuss what is likely to be the next step in the investigation process, and to offer social work support to the caregiver(s) and their family. Following the Victoria Climbie inquiry in the UK (2003), Lord Laming recommended that ‘investigation and management of a case of possible deliberate harm to a child must be approached in the same systematic and rigorous manner as would be appropriate to the investigation and management or any other potentially fatal disease’.14 As with all medical investigations on a 358
child, consent must be obtained from the parent or other legal guardian. For consent to be informed, the paediatrician needs to communicate the purpose of the investigations, potential risks and complications, including exposure to radiation.15 Radiological investigations in cases of suspected physical abuse of a child may include plain radiographs, bone scan, neuroimaging and in some cases abdomino-thoracic imaging, with either CT or MRI. In addition these investigations may require sedation or general anaesthetic. International guidelines recommend that a skeletal survey should always be performed in cases of suspected physical abuse in a child who is under 2 years of age.16–19 The skeletal survey is a series of up to 21 separate radiographs, aiming to image almost the entire axial skeleton. The incidence of occult fractures in children under 2 years of age, where there is a strong suspicion of physical abuse is reported to be between 11% and 33%.20–23 However, occult skeletal injuries associated with child abuse rarely require specific medical or orthopaedic management, but their identification is highly significant medically and forensically. This presents quite a unique ethical dilemma for the child protection paediatrician, when faced with obtaining consent for such an investigation from the person who may actually be responsible for the abuse. By consenting they are potentially assisting with identifying medical information that may lead to criminal proceedings against them or someone close to them. From a narrow health perspective the additional findings of the skeletal survey are unlikely to change acute care, but they may be vitally important in the evaluation of suspected child abuse, which has relevance for considering the child’s safety. In addition, if the parent or legal guardian refuses to give consent for certain investigations that are considered to be in the best interest of the child, and necessary to complete the medical assessment of the child at risk of physical abuse, their autonomy can be overruled by an order from the Children’s Court by the statutory child protection agency. Police are usually very prompt in responding to reported concerns of child abuse, and typically will commence an investigation by interviewing the caregiver(s), often in the hospital setting. In some cases police may request that the paediatrician withhold information about clinical findings of occult injuries from the caregiver(s), until police have had an opportunity to conduct their interviews. This is a very difficult ethical situation for the paediatrician, as withholding clinical information from caregivers would be a significant departure from usual medical practice and can detrimentally impact on the rapport and trust between the caregiver(s) and paediatrician. Even if caregivers are suspects in a police investigation, the paediatrician should never allow unproven assumptions to alter their obligation to treat a child’s caregiver(s) and family according to the normal principles of medical ethics. Police interviews of hospital patients should not interfere with patient care, and diagnostic or therapeutic procedures should not be delayed to accommodate police questioning, if delay might reasonably be expected to worsen patient’s outcomes.24 After all the medical investigations are complete, the paediatrician would typically meet again with the caregiver(s) to discuss the clinical findings, the results of any investigations, and a preliminary opinion at that stage regarding the causation of those findings, which has relevance to the statutory
Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians)
E-J Roper
assessment of the child’s safety. It should be explained to the caregiver(s) that this is the opinion that will be provided in the form of a written report to the police and the statutory child protection agency. Prior to police interviews, it is recommended that in any discussion with caregivers, paediatricians are very general and specifically avoid answering questions about specific mechanisms of injury,9 to avoid introducing bias into the police interview, which may lead the caregiver(s) into reporting a false alternative explanation for the injury. Following police/ statutory agency interviews, caregivers may wish to discuss the forensic medical opinion with the paediatrician who has provided the forensic medical report. This discussion should be limited to defining what the findings are, whether the suspicion of harm is sustained or resolved, and to what extent. The paediatrician should take care not to ‘diagnose abuse’ although their opinion may get very close. The issue of whether a child has been abused is for the statutory child protection agency to finalise a decision on, after carefully considering all of the evidence from their own investigation, the police investigation, and the medical opinion(s). I have previously been asked by police if it would be possible to surreptitiously audio-record the medical consultation, in order to assist with the police investigation. Caregivers may also ask to audio-record a discussion with the paediatrician, or may do so surreptitiously. In Queensland, it is in fact legal under the Invasion of Privacy Act 1971,25 for a face-to-face conversation to be secretly recorded by a person who is party to the conversation. This is, however, in breach of ethical medical guidelines,26 which require informed consent for consultations to be audioor video-recorded. Confessions to medical practitioners are uncommon in child abuse cases.27 Confessions are a special kind of admission in criminal matters whereby the accused gives a full acknowledgement of guilt. Voluntary confessions are admissible to court. A judge has the discretion to exclude confession evidence on the ground that it is highly prejudicial, not reliable or for public policy reasons (Evidence Act 1977).28 Ethically, to surreptitiously audio-record the medical consultation would be a major departure from usual medical practice, deceives the caregiver(s) and transforms the paediatrician from a clinician into an investigator. It does not add any benefit to the child medically over and above the standard paediatric consultation, and could cause harm to the paediatrician–caregiver relationship in the individual case, but also for the wider public. Considering these principles, it would seem that covert audiorecording of the paediatric consultation cannot be justified. Similarly, if the ethical principles are applied to in hospital covert video-surveillance in cases of suspected smothering or poisoning of a child, such practice is extremely difficult to justify, as the risk to the child is unacceptably high. For example, if there are sufficient concerns of suffocation then there is usually sufficient justification to immediately protect the child using statutory child protection legislation, even if the required standard of proof for the criminal jurisdiction may not be met, as it is unjustifiable to continue to expose risk to the child without protection. The United Nations Declaration of the Rights of the Child29 states that every child has the fundamental right to life and dignity, and is entitled to optimal medical care. Child protection legislation upholds the principle that all children have the right to
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be protected from harm. The child protection paediatrician’s role is to clearly and thoroughly document medical evidence of injury, and to communicate their objective forensic medical opinion clearly to the local statutory child protection agency, police, and usually the caregiver(s) and other members of the child’s family. This should include what the medical findings are, whether any medical condition has been identified, which might account for the findings, and the extent to which the findings are explained by events that have been reported. Whenever possible, paediatricians should advocate for respect and action concerning the rights of children.30 The paediatrician’s role is supported through child protection legislation, which allows breaches in confidentiality of the doctor–patient relationship, in the best interest of keeping the child safe from harm. Communication with caregivers in cases of suspected child abuse is particularly challenging for many paediatricians. There is very little specific guidance in the literature as to how these consultations are best conducted in practice, and this warrants further exploration. An empathic and honest approach is imperative to achieve confidence between the doctor, the child and the caregiver(s). The child also has a right to information and involvement in medical decisions at a level appropriate for their age and developmental level. It is never appropriate to lie to the child or their caregiver(s), and withholding information from the caregiver(s) would be a conscious and deliberate departure from standard medical practice. Breaches in confidentiality should be explained to the caregiver(s), including the moral, ethical and legal reasoning of the paediatrician for their action, and to keep the caregiver(s) fully informed. Although it is essential that the statutory child protection agency, police and the paediatrician communicate effectively with each other when cases of suspected child abuse are being investigated, to ensure the future safety of the child, it is important to remember how different the objectives and working framework are for each agency. The paediatrician needs to be well informed of the specific issues that arise from child protection work, in order to feel confident in their ability to practice within the ethical and legal boundaries of this challenging field of medicine.
References 1 Protecting Children is Everybody’s Business. Paediatricians Responding to the Challenge of Child Abuse. Paediatrics and Child Health Division, Royal Australasian College of Physicians Health Policy Unit, 2000. 2 Cooper C, Hewson P. The most difficult clinical situations: a survey of Victorian general paediatricians. J. Paediatr. Child Health 2002; 38: 455–8. 3 Cruickshanks P, Skellern C. Role of the tertiary child protection paediatrician: expert and advocate. J. Paediatr. Child Health 2007; 43: 34–49. 4 David T. Avoidable pitfalls when writing medical reports for court proceedings in cases of suspected child abuse. Arch. Dis. Child. 2004; 89: 799–804. 5 Skellern C. Medical experts and the law: safeguarding children, the public and the profession. J. Paediatr. Child Health 2008; 44: 736–42. 6 American Academy of Pediatrics. Committee on medical liability and risk management. Expert witness participation in civil and criminal proceedings. Pediatrics 2009; 124: 428–38.
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7 Skellern C, Donald T. Suspicious childhood injury: formulation of forensic opinion. J. Paediatr. Child Health 2011; 47: 771–5. 8 Skellern C, Donald T. Defining standards for medico-legal reports in forensic evaluation of suspicious childhood injury. J. Forensic Leg Med. 2012; 19: 267–71. 9 Snyder K, Currie M, Stockhammer T. Interviewing caregivers of suspected child abuse victims. In: Jenny C, ed. Child Abuse and Neglect: Diagnosis, Treatment and Evidence, 1st edn. St Louis, MO: Saunders, 2010; 51–60. 10 FOR4003. Ethics, Medicine and The Law. Unit Book. Department of Forensic Medicine, Monash University, 2013. 11 Public Health Act 2005 (QLD). 2014. Available from: www.legislation .qld.gov.au [accessed August 2014]. 12 Memorandum of Understanding Between Child, Youth and Family, New Zealand Police and District Health Boards. 2011. Available from: http://www.cyf.govt.nz/documents/working-with-others/microsoft -word-final-mou-cyf-police-dhbs-august-2011.pdf [accessed December 2013]. 13 Queensland Child Protection Commision of Inquiry. Taking Responsibility: A Roadmap for Queensland Child Protection. 2013. Available from: http://www.childprotectioninquiry.qld.gov.au [accessed December 2013]. 14 Lord Laming. The Victoria Climbie Inquiry. 2003. Para. 11.53. Available from: http://www.official-documents.gov.uk/document/cm57/5730/ 5730.pdf [accessed December 2013]. 15 Miglioretti DL, Johnson E, Williams A et al. The use of computed tomography in pediatrics and the associated radiation exposure and estimated cancer riskcomputed tomography in pediatrics. JAMA Pediatr. 2013; 167: 700–7. 16 American Academy of Pediatrics. Section on Radiology. Diagnostic imaging of child abuse. Pediatrics 2009; 123: 1430–5. AAP. 17 American College of Radiology. American College of Radiology Practice Guideline for Skeletal Surveys in Children. 1997. 18 British Society of Paediatric Radiology. Standard for Skeletal Surveys in Suspected Non-Accidental Injury (NAI) in Children. 2003. Available from: www.bspr.org.uk [accessed December 2013].
19 The Royal College of Radiologists and The Royal College of Paediatrics and Child Health. Standards for Radiological Investigations of Suspected Non-accidental injury. 2008. 20 Duffy S, Squires J, Fromkin J, Berger R. Use of skeletal surveys to evaluate for physical abuse: analysis of 703 consecutive skeletal surveys. Pediatrics 2011; 127: e47–52. 21 Day F, Clegg S, McPhillips M, Mok J. A retrospective case series of skeletal surveys in children with suspected non-accidental injury. J. Clin. Forensic Med. 2006; 13: 55–9. 22 Lindberg DM, Harper NS, Laskey AL et al. Prevalence of abusive fractures of the hands, feet, spine, or pelvis on skeletal survey: perhaps ‘uncommon’ is more common than suggested. Ped. Emerg. Care 2013; 29: 26–9. 23 Merten D, Radkowski M, Leonidas J. The abused child: a radiological reappraisal. Radiology 1983; 146: 377–81. 24 Jones P, Appelbaum P, Siegel D. Law enforcement interviews of hospital patients: a conundrum for clinicians. JAMA 2006; 297: 822–5. 25 Invasion of Privacy Act 1971 (QLD). 2013. Available from: http://www.legislation.qld.gov.au [accessed December 2013]. 26 General Medical Council. Making and Using Visual and Audio Recordings of Patients. General Medical Council Supplementary Guidance. 2011. Available from: www.gmc-uk.org/guidance [accessed December 2013]. 27 Adambaum C, Graber S, Mejean N, Rey-Salmon C. Abusive head trauma: judicial admissions highlight violent and repetitive shaking. Pediatrics 2010; 126: 546–55. 28 Evidence Act 1977 (QLD). 2014. Available from: www.legislation.qld.gov.au [accessed August 2014]. 29 United Nations General Assembly. Declaration of the Rights of the Child. 1959. Available from: http://www.un.org/ cyberschoolbus/humanrights/resources/child.asp [accessed December 2013]. 30 Kurz R, Gill D, Mjones S. Ethical issues in the daily medical care of children. Eur. J. Pediatr. 2006; 165: 83–6.
Ethics Air by Henry Kilham.
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Journal of Paediatrics and Child Health 51 (2015) 357–360 © 2015 The Author Journal of Paediatrics and Child Health © 2015 Paediatrics and Child Health Division (Royal Australasian College of Physicians)
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