Mutual Deference Between Hospitals and Courts

Abstract

This Article explores the phenomenon of “mutual deference” between the medical and legal systems to show that placing mandated reporting responsibilities on clinicians results in lasting harm for families. On the medical side, clinicians are obligated to defer any “reasonable suspicion” that a child may be at risk to the legal system; their concern may be mild or severe, medical or nonmedical in nature. But the legal system, comprised of lay-people in the field of medicine, is illequipped to evaluate a medical concern, and so defers back to the clinician’s report when making critical decisions around family integrity. Thisdeference often functions to elevate a clinician’s “reasonable suspicion” to a finding of “imminent risk,” justifying needless and prolonged separation of families. More systemically, mutual deference creates and reinforces medical and legal associations between low-income communities of color and notions of child maltreatment. Mutual deference insulates the medical reporter and the legal system from liability while imposing tremendous harm on the families caught in the middle. That mandated reporting laws discourage clinicians from considering this harm when deciding whether to report a family reflects the extent to which the family regulation system has prioritized prosecution over supporting families. Efforts to re-envision how society’s support for and protection of families can move away from state-sanctioned violence and towards strengthening families within their communities must begin with removing mandated reporter responsibilities from medical providers.