Mandatory Reporting in the Age of Medical Marijuana: Ask an Attorney
Updated: Nov 15, 2019
This question and answer was printed in a Monroe County Medical Society 2019 Bulletin.
During a recent well child visit at my family practice, the exam room smelled strongly of marijuana smoke. The parent appeared tired and had bloodshot eyes. The parent also reported driving the child to the appointment. What are my obligations as a physician and does this require mandatory reporting to child protective services?
New York State requires all mandatory reporters, including physicians, to report suspected child abuse or maltreatment when there is a reasonable suspicion of abuse or maltreatment. Abuse includes inflicting or creating a substantial risk of serious physical injury upon a child. Maltreatment, which includes neglect, means that a child’s physical, mental or emotional condition has been impaired, or placed in imminent danger of impairment, by the failure of the child’s parent or guardian to exercise a minimum degree of care. This includes the misuse of drugs.
The standard for reporting suspected child abuse or maltreatment is significantly lower than the standard for removal of a child after a Child Protective Services report.
Pursuant to New York State law, this situation should be reported to the New York Statewide Central Register of Child Abuse and Maltreatment (SCR) because of the suspicions that the parent has recently used marijuana and reported driving to the appointment. Driving under the influence of marijuana could pose a substantial risk of serious physical injury to the child. Additionally, misuse of drugs, including marijuana, may constitute neglect.
With the increased use of medical marijuana in New York State and the likelihood that recreational marijuana use will be legal in the coming years, pediatricians and family practitioners will increasingly face the legal obligation to report parental marijuana use to the SCR.
The likelihood that children will ingest medical or recreational marijuana products will also increase as these products become more common. No state has authorized medical marijuana for use for children. A parent may, however, travel to a state where recreational marijuana is legal in hopes of helping a sick child suffering from chemotherapy induced nausea or intractable seizures. Despite the parent’s desire to help the child, a physician would be legally mandated to make a SCR report if he or she became aware of a parent providing marijuana to a child.
As the country’s views on marijuana use shift, tension between a physician’s legal and ethical duties will invariably occur. Practitioners must continue to balance their legal obligations as mandatory reporters with the importance of maintaining patient relationships. Ultimately, whether a situation will be reported to the SCR is determined by the physician’s judgment and whether the doctor believes the situation poses a risk of abuse or maltreatment. A teenager’s accidental ingestion of a parent’s medical cannabis lozenge may not warrant a report to the SCR, but heavy marijuana smoking by the parents of a newborn may require a referral.
The willful failure to report a case of suspected child abuse is a Class A misdemeanor for which the maximum punishment is one year in jail or three years of probation and a fine of up to $1,000.00. When in doubt, call a knowledgeable health care attorney to discuss the situation and your legal obligations.
More information on mandatory reporting can be found at the Office of Children and Family Services website at: https://ocfs.ny.gov/main/cps/Mandated_Reporter_Training.asp
As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.