The Potential Downside of Mandatory Reporting Laws & a Possible ...

After mandatory reporting laws for domestic violence victims were passed in California, one Los Angeles County doctor called the California Alliance Against Domestic Violence to report an incident he found too troubling.[1] The doctor had recently treated a patient in the emergency room for facial injuries inflicted by the woman?s husband.[2] Pursuant to the mandatory reporting laws that required physicians to report injuries resulting from domestic violence, the doctor reported the injuries. Shortly after, the police arrested the woman?s husband who was waiting in the hospital waiting room.[3] When the patient returned home, she found her husband was already released and back home.[4] He was so angry that he beat her to the point where she had to return to the hospital for additional treatment.[5]

This story highlights the increased dangers that women face when the dynamics of a physically abusive relationship are disrupted by external forces such as a treating physician. Any time the status quo of a physically abusive relationship is disrupted, whether it is by the victim herself or an external actor, the risk of the victim being injured increases.[6] Therefore, when external actors choose to intervene in an abusive relationship, it is imperative they do so with caution and deliberation and ideally, only after some sort of safety plan or preparation is in place.

When outside intervention takes place at the wrong time or in the wrong way, it can interfere with a woman?s safety in one of two ways. One way is by forcing her to leave prematurely with no safety plan in place in order to protect herself from her abuser, who is now furious at being reported. Another way she is placed in danger is if she chooses not to leave and instead, risks suffering more abuse by her partner due to being reported.

Mandatory reporting laws applied to medical personnel and physicians generally require that treatment of domestic violence injuries be reported to law enforcement regardless of whether the woman consents. A woman in a physically abusive relationship may have various reasons for not consenting to a report being made to the police. By reporting without her consent, a physician may jeopardize a woman?s safety or escape plan, if one is in place and still incomplete. Reason being, after the report is made, the batterer is on high alert that he is losing control over the relationship, which is an essential part of a physically abusive relationship. This feeling leads to anger and in turn places the woman at an increased risk of being injured by her abuser.

While mandatory reporting laws have certain benefits, the dangers they pose to victims of domestic violence who are unprepared for the consequences of a police report being made against their partners are too great.

Mandatory reporting laws should be modified so that physicians do not have to report non-emergency injuries to law enforcement. In place of law enforcement, medical personnel should be required to report a potential domestic violence victim with non-emergency injuries to an on-site attorney partnered with a medical-legal partnership (MLP). In this way, MLPs would play a critical role in conjunction with mandatory reporting laws in assisting domestic violence victims.

MLPs have generally been used to solve problems in which families are not obtaining the government benefits they are entitled to, resolve issues regarding safe and affordable housing for families, and help mediate family problems to ensure that children?s basic needs are met.[7]

The general model of an MLP consists of one medical practice and one law practice, with a partnership medical director and a partnership legal director.[8] For those partnerships that are more focused on pediatric health, the MLP is a relationship between a children?s hospital or the pediatric department of a major hospital and a local legal aid office.[9] For those MLPs with a more comprehensive focus, the relationship is between a legal aid office and the hospital as a whole. With a typical MLP model, the attorneys are very easily accessible. They are usually on-site in the hospital and are readily available for ?case consultations.?[10] This is when a doctor presents a question about a patient situation to the attorney and receives a quick answer as to whether further legal intervention would be beneficial or not.[11] While MLPs vary among different hospitals, they all share the same general idea, which is trying to provide legal intervention as easily as possible when a health problem of a patient requires one.

In addition, to advising patients and consulting with physicians, the legal directors and attorneys of the MLP also educate physicians and other medical personnel. For example, they educate physicians about basic legal rights of children and their families and ways that they can recognize health problems in their patients that potentially have legal solutions.[12] Moreover, working together, physicians and attorneys also create screening tools and efficient referral mechanisms.[13]

MLPs have provided legal and medical solutions to deep-reaching problems associated with living in poverty. In light of this success, MLPs should be considered as a real solution to helping domestic violence victims, who also often come from low-income backgrounds, safely leave physically abusive relationships.

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[1] Shari Roan, Law Against Domestic Abuse May Be Backfiring, L.A. TIMES (Dec. 31, 1996), http://articles.latimes.com/1996-12-31/news/ls-14329_1_domestic-violence.

[6] See Mia M. McFarlane, Mandatory Reporting of Domestic Violence: An Inappropriate Response for New York Healthcare Professionals, 17 BUFF. PUB. INT. L.J. 1, 23 (1998-1999) (discussing the increased risk of danger that women face in physically abusive relationships when police reports are filed against their abusers or orders of protection are sought).

[8] Jane R. Wettach, The Law School Clinic as a Partner in a Medical-Legal Partership, 75 TENN. L. REV. 305, 307 (2008) (when Barry Zuckerman initially established a medical-legal partnership he started by hiring one attorney to represent his patients).

Source: http://www.lawschoolblog.org/the-potential-downside-of-mandatory-reporting-laws-a-possible-solution/

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