The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL



CHILD PROTECTION LAW:

MENTAL HEALTH CODE:

Duty of community mental health professional to report child abuse


Section 3 of the Child Protection Law does not impose a duty on a community mental health professional to report child abuse when an adult recipient of community mental health services discloses that he or she was abused as a child or when an adult recipient discloses having abused a child, who is now an adult, unless there is reasonable cause to suspect that there is a threat of harm to a child.

A community mental health professional has a duty, under section 723(1), (2) and 9) of the Mental Health Code, to report criminal abuse of a recipient of mental health services that occurred within one year of the date on which the abuse becameknown to the community mental health professional unless the professional has knowledge that the criminal abuse has already been reported to the appropriate law enforcement agency.


Opinion No. 6934

March 19, 1997


Honorable Sharon L. Gire
State Representative
The Capitol
Lansing, Michigan 48909-7514

Honorable Nick Ciaramitaro
State Representative
The Capitol
Lansing, Michigan 48909-7514


You have asked two questions concerning the duty of community mental health professionals to report child abuse. You first ask if section 3 of the Child Protection Law, 1975 PA 238, MCL 722.621 et seq; MSA 25.248(1) et seq, imposes a duty on a community mental health professional to report child abuse when an adult recipient of community mental health services discloses that he or she was abused as a child or when an adult recipient discloses having abused a child, who is now an adult, in the past.

Section 3 of the Child Protection Law provides:

A physician, coroner, dentist, registered dental hygienist, medical examiner, nurse, a person licensed to provide emergency medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, certified social worker, social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, or regulated child care provider who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department [Michigan Department of Social Services1]. Within 72 hours after making the oral report, the reporting person shall file a written report as required in this act.

In the situation you raise, a community mental health professional is in one of the categories of mandatory reporters listed above. If the reporter has reasonable cause to suspect child abuse or neglect, the reporter must make an oral report and then a written report to the Family Independence Agency.

The problem you ask about arises when an adult reveals that the adult was abused as a child, or when an adult admits to having abused a child in the past, who is now an adult. The question is whether either of these situations triggers a duty to report child abuse to the Family Independence Agency under the Child Protection Law.

In section 2(c) of the Child Protection Law "[c]hild abuse" is defined as follows:

[H]arm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare, or by a teacher or teacher's aide, that occurs through nonaccidental physical or mental injury; sexual abuse; sexual exploitation; or maltreatment.

Under section 2(b) of the same law a "'[c]hild' means a person under 18 years of age."

Based on its title, the Child Protection Law was passed to protect children, not adults, from abuse. This is confirmed by the plain language of the statute. Section 3(2) of the Child Protection Law requires that the written report of child abuse contain "the name of the child," the names of "the child's parents, the child's guardian, the persons with whom the child resides, and the child's age." (Emphasis added.) Section 8 of the same statute, dealing with the investigation of reported child abuse, contains numerous references to the "child." There is no language in the Child Protection Law relating to the protection of adults who were abused as children.

Finally, the judicial interpretation of the Child Protection Law confirms that it was passed to protect children rather than adults who were abused in the past. In Williams v Coleman, 194 Mich App 606, 614-615, 623; 488 NW2d 464 (1992), the court carefully reviewed the history of this statute and concluded that "[t]he statute [Child Protection Law] was created to protect children from the results of neglect and abuse."

While section 3 of the Child Protection Law ordinarily does not impose a duty on a community mental health professional to report child abuse when an adult recipient of community mental health services discloses that he or she was abused as a child or when an adult recipient discloses having abused a child, who is now an adult, there are two exceptions to this rule. First, if an adult recipient discloses having been abused as a child, and that abuser is now responsible for another child's health or welfare, the factual circumstances disclosed may trigger the reporting requirements under sections 2(c) and 3 of the Child Protection law if they provide reasonable cause to suspect a threat of harm exists to that other child. Second, if an adult recipient discloses having abused a child, who is now an adult, but that recipient is now responsible for another child's health or welfare, the factual circumstances may trigger the reporting requirements under sections 2(c) and 3 of the Child Protection Law if they provide reasonable cause to suspect a threat of harm exists to that other child.

It is my opinion, therefore, that section 3 of the Child Protection Law does not impose a duty on a community mental health professional to report child abuse when an adult recipient of community mental health services discloses that he or she was abused as a child or when an adult recipient discloses having abused a child, who is now an adult, unless there is reasonable cause to suspect that there is a threat of harm to a child.

You next ask about the duty of a community mental health professional, under section 723(1) and (2) of the Mental Health Code, MCL 330.1001 et seq; MSA 14.800(1) et seq, to report abuse of a recipient of mental health services. Under section 100c(12) of the Mental Health Code, a recipient is "an individual who receives mental health services from the department [of mental health2 ], a community mental health services program, or a facility or from a provider that is under contract with the department or a community mental health services program." Section 722(1) of the Mental Health Code provides that "[a] recipient of mental health services shall not be subjected to abuse or neglect."

The requirements for reporting criminal abuse are set forth in section 723(1) and (2) of the Mental Health Code as follows:

(1) A mental health professional, a person employed by or under contract to the department, a licensed facility, or a community mental health services program, or a person employed by a provider under contract to the department, a licensed facility, or a community mental health services program who has reasonable cause to suspect the criminal abuse of a recipient immediately shall make or cause to be made, by telephone or otherwise, an oral report of the suspected criminal abuse to the law enforcement agency for the county or city in which the criminal abuse is suspected to have occurred or to the state police.

(2) Within 72 hours after making the oral report, the reporting individual shall file a written report with the law enforcement agency to which the oral report was made, and with the chief administrator of the facility or agency responsible for the recipient.

(emphasis added).

Under the Mental Health Code, recipients of mental health services may be adults or children. Thus, age is irrelevant to the duty to report criminal abuse of a recipient of mental health services.

By its terms, section 723(1) of the Mental Health Code only applies to suspected criminal abuse of recipients of mental health services. Under section 700(a)(v) of the Mental Health Code, criminal child abuse includes "a violation or an attempt or conspiracy to commit a violation of section 136b of" the Michigan Penal Code, MCL 750.136b; MSA 28.331(2).

In addition, section 723(9) of the Mental Health Code expressly provides a limitations period for reporting abuse as follows:

This section does not require a person to report suspected criminal abuse if either of the following applies:

(a) The individual has knowledge that the incident of suspected criminal abuse has been reported to the appropriate law enforcement agency as provided in this section.

(b) The suspected criminal abuse occurred more than 1 year before the date on which it first became known to an individual who would otherwise be required to make a report.

(emphasis added).

Thus, the Mental Health Code is primarily targeted at the detection and investigation of criminal abuse inflicted upon statutorily defined recipients of mental health services that occurred within one year of the date on which the abuse became known to the community mental health professional. This is different from the stated purpose of the Child Protection Law to protect abused and neglected children. The Mental Health Code provides for mandatory reporting not only of child abuse as defined in the Michigan Penal Code, but also for other criminal abuse of both adult and child recipients i.e., assault, murder, criminal sexual conduct, and vulnerable adult abuse. See, section 700(a)(i)-(v) of the Mental Health Code.

It must also be noted that the more limited reporting obligations imposed by the Mental Health Code do not obviate the necessity for also complying with the broader reporting obligations imposed by the Child Protection Law as to children. Section 723(6) of the Mental Health Code provides that "[t]his section does not relieve an individual from the duty to report criminal abuse under other applicable law."

It is my opinion, therefore, in answer to your second question, that a community mental health professional has a duty, under section 723(1), (2) and (9) of the Mental Health Code, to report criminal abuse of a recipient of mental health services that occurred within one year of the date on which the abuse became known to the community mental health professional unless the professional has knowledge that the criminal abuse has already been reported to the appropriate law enforcement agency.


FRANK J. KELLEY
Attorney General

1 Now known as the Family Independence Agency under MCL 400.1; MSA 16.401.

2 Renamed the Department of Community Health. in Executive Order No. 1996-1,
at p 2.