Subject: Child Abuse Complaints DATE: Wednesday, June 12, 1991 Health (ASH), Washington, D

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Subject: Child Abuse Complaints DATE: Wednesday, June 12, 1991 FROM: John Banzhaf, Exec. Dir of Action on Smoking and Health (ASH), Washington, D.C., (202) 659-4310 A MAJOR NATIONAL NEWS PROGRAM IS VERY INTERESTED IN IMMEDIATELY LOCATING A PHYSICIAN, SOCIAL WORKER, TEACHER, OR OTHER SIMILAR PERSON WHO MAY HAVE FILED -- OR IS CONSIDERING FILING -- A COMPLAINT OF "CHILD ABUSE," "CHILD NEGLECT," ETC. BASED UPON EXPOSING A SUSCEPTIBLE CHILD TO PARENTAL SMOKING (ENVIROMENTAL TOBACCO SMOKE). IF ANYONE KNOWS OF A PERSON WHO HAS FILED -- OR IS EVEN CONSIDERING FILING -- SUCH A COMPLAINT, PLEASE CALL JOHN BANZHAF AT (202) 659-4310. THE CONCEPT IS MORE FULLY DESCRIBED BELOW IN AN ARTICLE BEING PREPARED FOR THE ASH SMOKING AND HEALTH REVIEW. ITS SETS FORTH THE LAW IN TWO TYPICAL STATES, AND ADDRESSES SOME OF THE MAJOR CONCERNS PEOPLE MAY HAVE. Child Abuse Complaints: A New Weapon to Protect Nonsmokers? As a new weapon to protect innocent nonsmokers, and to be sure parents are aware of the deadly dangers their smoking poses for their children, ASH Executive Director John Banzhaf recently suggested in a major medical address that physicians are legally as well as morally justified in filing complaints of "child abuse" or "child neglect" in situations where parental smoking creates serious risks for minors. Here's what he said. Parents may be investigated as child abusers if they smoke in the presence of their infants or young children, especially if the minors have asthma, hay fever, allergies, or other conditions making them especially sensitive to secondhand tobacco smoke, suggested ASH Executive Director John Banzhaf. Presenting the prestigious Maurice Segal Memorial Lecture at Tufts University, Banzhaf told leaders of the medical profession in Boston that new scientific evidence and recent court decisions impose a legal duty upon physicians to report to authorities if parental smoking places children at serious risk, or causes or aggravates significant medical problems. Calling smoking in the presence of infants and children "the most prevalent yet least reported form of child abuse," Banzhaf said that deliberately exposing minors to a substance which doubles their risk of contracting lung cancer -- and may cause them to go into respiratory distress -- is inexcusable, and that doctors can no longer stand idly by while their young patients are "literally being poisoned by their parents." WHAT COURTS HAVE DONE Courts have now recognized that parental smoking may be a deciding factor in custody disputes, and have issued orders prohibiting parental smoking in the presence of children. In one case a judge even ordered a child removed from a home where parental smoking threatened the child's health, and both mother and father refused to modify their smoking behavior. Another indication of how far courts may be willing to go to protect children from harmful parental habits is the growing number of situations in which they have ordered the incarceration of pregnant women who use illicit drugs, or permitted the women to be prosecuted as criminals. Asking courts to deal with parents who smoke in the presence of their children should be far less contro- versial, suggests Banzhaf, for at least three reasons. First, he says, court-imposed restrictions on smoking in the pres- ence of a child apply equally to both sexes, unlike the incarcerations or prosecutions which only impact women. Second, a child is a "person" who is clearly entitled to the full protection of the laws, whereas the legal interests of a fetus -- which in many cases may lawfully be aborted -- are generally less than those of its mother. Third, and most importantly Banzhaf claims, is that a court can simply order a parent to smoke in a garage or porch, or even in another room, whereas forcing a female addict to cease using illicit drugs is far more difficult and more intrusive. Indeed, says Banzhaf, in the overwhelming majority of cases in which parents are told that smoking in the presence of a child may have to be reported as child abuse, they are likely to take the simple step of simply agreeing to do it elsewhere. Otherwise, they would risk having the doctor learn from a spouse, older sibling, or even the child himself that smoking was continuing to aggravate the child's medical condition, or from a routine blood test which detected elevated levels of carbon monoxide or nicotine's breakdown products. In cases where parental smoking in the presence of a child with serious asthma or other breathing problems can literally endanger the minor's life by triggering respiratory distress, a doctor has a clear obligation to his young patient to report the situation to the authorities, says Banzhaf. "Where a child has had to be rushed by ambulance repeatedly when parental smoking triggered an asthmatic attack and prevented him from breathing, and the parents refuse to heed the doctor's warnings and continue smoking next to the child, a physician's moral, professional, and legal obligations are clear," he says. Even in situations where immediate physical harm cannot yet be detected, physicians may nevertheless be justified in reporting their suspicions for evaluation by the authorities, says Banzhaf. Noting a recent study in the New England Journal of Medicine proving that parental smoking can literally double a child's risk of eventually contracting lung cancer, he suggests that forcing a child to bear those risks constitutes "maltreatment." After all, he says, if a doctor found out that a child was being needlessly exposed to significant levels of asbestos, benzene, radioactive particles or other proven carcinogens at home, he would certainly be justified in taking action before a malignancy was detected, and tobacco smoke contains all of those substances as well as thirty other chemicals known to cause cancer. SOME CONCERNS ANSWERED As with any other new concept, there are some questions or concerns. Here are some of the major ones. First, some have argued that it may be unfair to even suggest (which is all the initial report does) that a person may be a "child abuser" if he or she does not realize or appreciate the danger ETS can pose for children. The answer is that such a report should be made only after a physician has fully advised the parents of the dangers their tobacco smoke poses for the child, and they continue to subject the child to these dangers. This approach is consistent with the language found in child abuse and child neglect statutes in various states. [SEE STATUTE BOX] Second, some -- knowing of the difficulties and uncertainties which are often involved in determining whether more traditional types of child abuse (such as beatings and sexual contacts) have occurred -- may be concerned that it will be equally difficult to determine if a young child has or is being exposed to tobacco smoke in the privacy of the home, and that permitting child abuse complaints to be based on ETS may lead us into a quagmire of proof. However, in many cases where a parent continues smoking in the presence of a young child, there will be another spouse, or unrelated adult, or an older child living in the home, and therefore in a position to report and document the action. Where there is not, a simple blood, urine, or saliva test for the breakdown product of nicotine would provide conclusive proof that the child was being exposed to high levels of tobacco smoke. Third, some may wonder if exposing a child to tobac- co smoke can be considered as serious as the more traditional sorts of child abuse (like beatings and sexual contact), and whether treating ETS exposure as "child abuse" or "child neglect" will require substantial resources to investigate, resolve, and provide continuing monitoring of such situations which could be better used dealing with more traditional abuse situations. However, since children with asthma, bronchitis, and other medical conditions can experience life-threatening respiratory failure from exposure to ETS, it can in some cases be as serious as the more traditional forms of child abuse. In addition, because of the millions of young children who are exposed to tobacco smoke in the home, the cumulative effects of this form of child abuse may be many times more serious (in terms of lives affected, dollar costs, etc.) than the much smaller number who are victims of more traditional forms of child abuse. Fortunately, however, the problem would seem to be one which can be remedied far more easily than tradi- tional cases. In those latter situations, the beatings or sexual contacts usually arise from deep-seated mental or behavioral disorders which cannot easily be modified by those afflicted despite protective orders, the fear of sanctions, etc. Therefore, enormous resources may often be necessary to protect one child. In sharp contrast, the overwhelming percentage of parents who smoke have no such mental problems, and may reasonably be expected to cease smoking in the presence of their children once they are warned that it may constitute child abuse. Indeed, the remedy sought when such complaints are filed -- that the parent stop smoking in the presence of the child, and confine smoking to other portions of the home -- requires only a very minor behavioral modification, even if the parent might find it difficult if not impossible to cease smoking entirely. Finally, although we tend to read reports only about the most egregious examples of child abuse, many are far less serious. For example, a D.C. area couple were recently found guilty of child neglect, and had their 10 year old child removed to a foster home, because they left him along for a few hours in the afternoon! Fourth, some may suggest that many things and ac- tivities create a risk for children, and that it would be unreasonable to complain about suspected "child abuse" or "child neglect" simply because a parent permits a child to ride a bicycle, eat a hamburger or some ice cream, or breath the air pollution found in most cities. But children engage in activities like riding a bicycle, hiking, playing football, etc. primarily for their own enjoyment and pleasure, and because it helps them to develop physically and mentally. In virtually all such cases the risk is small compared with the expected benefits. However, in the case of being forced to breath a parent's tobacco smoke, the activity of smoking is carried out entirely for the parent's gratification, and the child clearly derives no benefits from it. Similarly, although eating too much beef or ice cream can lead to medical problems, the children achieve both pleasure and nutrition from eating such foods, and the danger lies only in excessive consumption. In the case of tobacco smoke, the child derives no benefit whatsoever. Moreover, since tobacco smoke does cause serious health problems for children, there is no justification for exposing them to it, even if there were some incidental benefit. For example, if a child is known to be so allergic to nuts that consumption can trigger serious medical complications, a parent who feeds the child products containing nuts is probably guilty of "child abuse" or "child neglect," even if eating the food products provides some nutritional benefit and pleasure to the child. Finally, there are some dangers -- such as that caused by outdoor air pollution -- which are unavoidable, and thus the failure to protect the child cannot be regarded as "child abuse" or "child neglect" since both concepts require that there be some viable alternative. [SEE STATUTE BOX] STATUTE BOX: THE LAWS OF MICHICAN AND MASSACHUSETTE The Child Protection Law of Michigan, 722.622 defines two related concepts. The first, "child abuse," means" harm or threatened harm by a person to a child's health or welfare which occurs through nonaccidental physical . . injury . . or maltreatment." The second, "child neglect" means: harm to a child's health or welfare by a parent, legal guardian, or person who has custodial care of the child which occurs by: . . (ii) Placing a child at an unreasonable risk to the child's health or welfare by failure of the parent, legal guardian, or person who has custodial care of the child to intervene to eliminate that risk when that person is able to do so and has knowledge of the risk." Moreover, 722.623 provides that any "physician" 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." Section 722.625 provides that: "a person acting in good faith who makes a report, cooperates in an investigation, or assists in any other requirement of the act shall be immune from civil or criminal liability which might otherwise be incurred thereby.". . . "a person making a report or assisting in any other requirement of this act shall be presumed to have acted in good faith. However, in sharp and direct contrast, Section 722.633 provides that: (1) A person, required to report an instance of suspected child abuse or neglect, who is required to report under this act and who fails to do so, is civilly liable for the damages proximately caused by the failure. (2) A person, required to report an instance of suspected child abuse or neglect, who is required to report under this act who knowingly fails to do so, is guilty of a misdemeanor. Massachusetts C. 119, `15 51A provides that a physician must report to the authorities for investigation and possible intervention if he or she has "reasonable cause to believe" that a child under 18 is suffering from "serious physical injury" or "maltreatment." Moreover, these terms have been defined by an official opinion of the Attorney General. In it he ruled that "reasonable cause to believe" means a "relatively low degree of accuracy," suspicion, suspected, etc. He has also determined that ""serious physical injury" includes "all but the most negligible or de minimis injuries to children." In one case mere bruises satisfied this minimal requirement. This expansive interpretation is not surprising in view of the very strong legislative intent expressed in C. 119, `15 1: "to insure that the children of the commonwealth are protected against the harmful effects resulting from the absence, inability, inadequacy or destructive behavior of parents or parent substitutes." WHAT YOU CAN DO 1. Bring copies of this article to the attention of physicians, teachers, social workers, etc. 2. Help educate parents about the dangers tobacco smoke causes for young children and even teenagers. 3. Write letters to the editor and call local talk shows about this new approach to protecting nonsmokers.

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