February 29, 2024
By Kylee Sunderlin, Elizabeth Ling, Dipona Bandy, Noran Elzarka, Em Lawler

One of the most common causes of the criminalization of pregnant and postpartum people is
unnecessary reports to law enforcement or the family policing system (which you may know as child protective services) by medical providers. Here are some easy steps health care providers can take that make an enormous difference in the lives of families interacting with the family policing system.

Understand the CAPTA laws in your state
At If/When/How we often field questions from providers with concerns about if or when they are required to report substance exposure during pregnancy, especially as more providers see the harms of the family policing system firsthand. This new guide helps health care providers understand the reporting laws in their state.

Don’t report if you don’t have to
Reporting a patient, even with the hope of connecting the family to resources, often leads to more harm. Reporting is not resourcing, and not all—or even most—families will get the resources they need as a result of a report to the family policing system.

Genuine informed consent
Informed consent helps protect the patient-provider relationship. It is also a fundamental legal and ethical responsibility. True informed consent requires sharing the full explanation of the consequences of certain medical care with a patient. That full explanation includes the legal consequences of testing, screening, and potentially reporting patients for substance use during pregnancy, and sharing that they have the right to refuse certain tests.

Medical records
Medical records are often used against parents and their families in child welfare investigations and cases, so including positive observations of the family in the medical record can be protective of your patients. Some examples of helpful observations to chart include:

  • Any helpful information about the steps the parent took to obtain prenatal care and make a birth plan.
  • Information you counseled the family on and their positive reaction to that patient counseling and feedback.
  • Any observations you make or information the family shares that specifically mitigates the alleged risk in the report (e.g. discussed treatment options and is very open to finding the right provider; has a very supportive parent who will be staying with the family for the first 3 months).
  • Positive observations and lack of safety concerns for older children as well (e.g. child appears healthy, well-cared for, no child protective concerns).

If legally required to report, but would not absent the law
Explain in the abuse or neglect report that you do not have child protective concerns and are reporting because of state requirements.

Do not include or disclose any information about the family that does not need to be reported (e.g. medical diagnoses that are irrelevant to the report and private).

No subpoena, no records, no conversation
You are not legally required to speak to the police or to child protective caseworkers. The law does not require you to provide police or child protective caseworkers with medical records absent a subpoena signed by a judge, and doing so could be extremely harmful to your patients.

Help prepare the family
Let the patient know that you or someone else on their care team made a report, followed by what they can expect from the investigation.

Assist the family with safety planning, including sharing resources that might preemptively address the state’s child welfare concerns.

Ensure the family has a copy of the discharge summary or a signed letter/document, including: positive information included above; that you are the treating provider; and a description of their follow-up plan of care OR that you have no safety concerns and there is no need for follow-up care.

If you have questions about what a child protective investigation looks like, please contact If/When/How for technical assistance.