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.
Highlights
Race disparities pervade the foster system: families forcibly separated by the state are primarily families of color; Black and Brown children spend more time in the foster system than white children.[1]
Interrogation of the system that enforces this separation—historically referred to generally as “child protective services” and more recently as the “family regulation system”2—requires that we examine the mechanisms by which families come to the attention of the system in the first place
Parents’ due process rights are strongest when facing the possible removal of their child from their care:[68] in New York, the state must prove that the child would be at “imminent risk” of harm in their parents’ care, and the parent has a right to an emergency hearing to contest a removal.[69]
Summary
Race disparities pervade the foster system: families forcibly separated by the state are primarily families of color; Black and Brown children spend more time in the foster system than white children.[1]. Current mandated reporting laws require that certain professionals, including medical professionals,[9] defer any “reasonable suspicion” to the family regulation system. This low burden reflects the aspiration that a system of checks and balances will follow. Mutual deference is harmful for Black and Brown families given studies showing the disproportional reports and investigations of children from low-income families of color from hospitals.[10] And there is an ominous circularity to it: individual. Part IV illustrates how mutual deference harms families in practice It describes the experience of three parents in the Bronx who were separated from their children after seeking medical care at a hospital.
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