Attorneys Are Not Required To Report Child Abuse

Elijah W. v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed May 8, 2013

Elijah W. was the subject of a wardship petition. To assist in the preparation of his defense to the petition, Elijah W. sought the appointment of Dr. Catherine Scarf, a psychologist. Elijah W. sought the appointment of Dr. Scarf rather than a member of the Superior Court’s Juvenile Competency to Stand Trial (JCST) panel because members of the panel had informed Elijah W.’s counsel that if, in the course of their work, they discovered any evidence of child abuse or neglect they would report that to the appropriate authorities as required by the Child Abuse and Neglect Reporting Act (CANRA) (Pen. Code section 11164, et seq.).

The trial court denied Elijah W.’s request.

The Court of Appeal held this was an error.

A lawyer is obligated to preserve the confidentiality of client information. As a narrow exception to this duty, a lawyer may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm. An expert engaged to assist the lawyer in his representation of a client is similarly obligated to maintain the confidentiality of client communications obtained in the course of accomplishing the purpose for which the lawyer was consulted.

Under the Child Abuse and Neglect Reporting Act (CANRA), psychiatrists, psychologists, clinical social workers and other mental health professionals are “mandated reporters” and, as such, have an affirmative duty to report suspected child abuse or neglect to a child protective agency or other appropriate authority. Failure to report suspected abuse is a misdemeanor. The duty to report is not excused or barred by the psychotherapist-patient privilege of Evidence Code section 1014. Lawyers, however, are not mandated reporters.

In view of what seemed to be contradictory requirements and in the absence of clear legislative guidance, the appellate court declined to read into CANRA a reporting requirement that contravened established law on confidentiality and privilege governing defense experts and potentially jeopardized a criminal defendant’s right to a fair trial.

If all of the panel members were willing to report suspicions of abuse or neglect, then Elijah W. was entitled to an expert who was not on the panel and would maintain confidentiality.