Pediatric Protective Custody

Author: Matthew Pirotte, MD (Assistant Professor, Assistant Residency Director, Department of Emergency Medicine, Feinberg School of Medicine) // Edited by: Alex Koyfman, MD (@EMHighAK, EM Attending Physician, UTSW / Parkland Memorial Hospital) and Brit Long, MD (@long_brit)

Consent for treatment has long been considered a cornerstone in ethical medical practice. Children are considered to lack capacity to consent under the law, and therefore consent for their treatment falls to their legal guardians. In 2011 the American Academic of Pediatrics issued a policy paper on emergency care for children which states that “a child’s legal guardian… is required to act in the best interests of the child. When a legal guardian refuses to consent to medical care or transport that is necessary to prevent death, disability, or serious harm to the child, law enforcement officers may intervene.”1 When an emergency physician (EP) is faced with a scenario in which he or she does not believe a legal guardian is acting in the best interests of the child, further investigation and possibly action is required. In cases where the child’s health or safety are in question, the EP may consider taking temporary protective custody of a minor under their care.

Case 1

A four-year-old female is sent to the emergency department (ED) by her pediatrician with her grandmother with the chief complaint of bruising. The child resides with the grandmother as a result of a care plan created by a prior contact with the Child Protective Services (CPS) during the child’s last visit to the emergency department for a similar complaint. During the EP assessment it becomes clear that the child has new bruising and bruising of various ages. A medical evaluation has been performed as an outpatient by the child’s primary care physician which excludes medical or hematologic etiologies of her diffuse bruising. During the last visit it was suspected that the child was being physically abused by her mother’s boyfriend and a requirement of the care plan was that she remain in the custody of her maternal grandmother with no access or visitation by the suspected abuser. Upon further questioning of the grandmother it becomes apparent that she does not believe that the mother’s boyfriend is abusing the child and instead is insistent that the bruises are the result of repeated falls from bed. CPS and Social Work (SW) are consulted but the grandmother continues to insist that the bruising is the result of falls rather than non-accidental trauma and refuses to acknowledge that the person under investigation is a potential abuser. She is evasive when asked if she can guarantee no further contact between the child and the mother’s boyfriend. The CPS worker is on scene but is considering discharge if the grandmother can promise no further contact. The EP elects to take protective custody of the child and admit her to the hospital until a more appropriate safety plan could be assembled.

Case 2

A seven-year-old female is brought to the emergency department by medics after a generalized tonic clonic seizure at school. The child has a long history of epilepsy managed by a pediatric neurologist with valproic acid. Review of the record also indicates that the child has difficult home situation; she is cared for by a working single mother who has two other children with frequent seizures. As part of a routine evaluation a valproic acid level is sent to the lab and returns at an undetectable level. The EP and social worker open a conversation with the mother about this undetectable level, and the mother states that she has been providing the child her medication on a regular basis with no missed doses. When the EP explains to the mother that this is not possible given that the child now has an undetectable blood level of valproic acid, the mother becomes angry and states that the EP and hospital laboratory are falsifying the value so as to remove the children from her home. The mother insists on immediate discharge and states she will continue to care for her daughter in the same manner she always has. The child’s neurologist is called and states the mother has frequent stressors and occasionally misses dose but that he is surprised by an undetectable level. Despite this he recommends discharge. Risk management is called and disagrees with the neurologist, stating that the child should not be allowed to leave the facility until a more complete evaluation in finished. Ultimately the EP makes the decision that this undetectable drug level is evidence of neglect and takes the child into protective custody.

The two cases described above both occurred at a quaternary care academic medical center in Illinois. The Illinois Abuse and Neglected Children Reporting Act states that “a physician treating a child may take or retain temporary protective custody of the child without the consent of the person responsible for the child’s welfare, if (1) he has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child’s welfare without endangering the child’s health or safety; and (2) there is not time to apply for a court order.”

For most emergency care providers the decision to take protective custody of a child can be a difficult one.

In Case 1 the EP judged that the grandmother’s refusal to engage with the suspicion of the mother’s boyfriend as a potential source of harm to the child was a potential threat to the child’s safety. While there was no indication that the grandmother herself was perpetrating the abuse, the EP determined that no home care plan could adequately guarantee that the child would be safe.

In Case 2 the EP disagreed with a consulting physician about the safety of the child. The distinction between potential neglect and sub-optimal care and attention to a child can be a difficult one. According to the Child Abuse Prevention and Treatment Act, neglect is failing to provide for the child’s basic needs, including physical, educational, or emotional necessities. The definition encompasses a wide range, from allowing truancy or substance abuse to inadequate supervision or delaying health care. Other federal definitions limit physical neglect to situations that “seriously endanger the physical health of the child” and allow that “the assessment… requires consideration of cultural values and standards of care as well as recognition that [neglect] may be related to poverty.”2 If the child’s drug level had been sub-therapeutic but not undetectable or if the mother had admitted that her exhaustion from caring for 3 children led her to make medication errors would the EP have viewed the case in the same manner? In this case the mother’s angry denial of any lapses in medication administration was the key factor in the EP’s decision to take the child into protective custody.

Despite a general paucity of formal didactic training in child abuse, emergency medicine residents have been shown to be similar to pediatric residents in terms of their comfort with interpreting exam findings of abuse and discussion of said findings with authorities.3 However physicians in general under-report child abuse and may even be skeptical as to the benefits of reporting such cases to CPS.4,5 In a qualitative study, emergency care providers identified several barriers to optimal care in these challenging situations including time required to report suspected cases of abuse to CPS and potential negative consequences to providers such as protracted legal involvement.6 Some pediatric providers have even reported fear of personal retaliation from families.7 This is problematic and potentially criminal as physicians are mandated reporters in every state in the United States.

After the decision has been made to take protective custody, there are important considerations. Hospital security or local law enforcement should be consulted prior to disclosure to the accompanying guarding if one is present, as this has a high potential to be an emotionally charged conversation. The EP should remain objective in their discussion of facts with the guardian but clear and firm in their indication that the child leaving the facility with the guardian has been legally removed as an option. It is prudent to keep discussions with guardians focused on the safety of the child rather than specific accusations of mistreatment. Discussion of the case with the departmental administrator, hospital administrator, and risk management officer is encouraged. Children being removed from abusive or neglectful homes should have a careful physical examination and evaluation as they often have significant medical, nutritional, preventative, and psychological needs.8,9 The ability to carry out this examination at the level of comprehensive detail that should be undertaken will likely be outside the scope of practice of the EP, and consultation with a pediatrician or a clinician specializing in child mistreatment is strongly recommended. Careful documentation of objective findings and the physician’s thought process with respect to the potential of harm to the child is essential. Recommendations for documentation include specific concern for abuse or neglect, characteristics and location of all injuries, laboratory or radiographic abnormalities that support the diagnosis of abuse or neglect, severity of illness, and anticipated need for follow-up care.10

Key points

  • Emergency physicians are generally permitted to take temporary custody of children in particularly high risk situations where the safety of the child is in question.
  • Individual state laws may vary slightly, and it is important to be familiar with laws governing your sites of practice.
  • After a decision has been made to take temporary protective custody of a child, collaboration with hospital security, law enforcement, hospital administration, and child protective services is prudent.
  • Documentation should be detailed and include specific concerns about the safety of the child in question.
  • Many children taken into temporary protective custody by emergency physicians will have complex medical, psychological, and social needs. A multidisciplinary approach including consultation with a pediatric specialist is encouraged.


References/Further Reading:

  1. Committee on Pediatric Emergency M, Committee on B. Consent for emergency medical services for children and adolescents. Pediatrics. 2011;128(2):427-433.
  2. Isaacman DJ, Poirier MP, Baxter AL, Bechtel K, Pierce MC. Abuse or not abuse: that is the question. Pediatr Emerg Care. 2002;18(3):203-208.
  3. Starling SP, Heisler KW, Paulson JF, Youmans E. Child abuse training and knowledge: a national survey of emergency medicine, family medicine, and pediatric residents and program directors. Pediatrics. 2009;123(4):e595-602.
  4. Flaherty EG, Sege R. Barriers to physician identification and reporting of child abuse. Pediatric annals. 2005;34(5):349-356.
  5. Marshall WN, Locke C, Jr. Statewide survey of physician attitudes to controversies about child abuse. Child abuse & neglect. 1997;21(2):171-179.
  6. Tiyyagura G, Gawel M, Koziel JR, Asnes A, Bechtel K. Barriers and Facilitators to Detecting Child Abuse and Neglect in General Emergency Departments. Ann Emerg Med. 2015;66(5):447-454.
  7. Gunn VL, Hickson GB, Cooper WO. Factors affecting pediatricians’ reporting of suspected child maltreatment. Ambulatory pediatrics : the official journal of the Ambulatory Pediatric Association. 2005;5(2):96-101.
  8. Committee on Early Childhood A, Dependent C, American Academy of P. Health care of young children in foster care. Pediatrics. 2002;109(3):536-541.
  9. Simms MD, Dubowitz H, Szilagyi MA. Health care needs of children in the foster care system. Pediatrics. 2000;106(4 Suppl):909-918.
  10. Kellogg ND. Working with child protective services and law enforcement: what to expect. Pediatr Clin North Am. 2014;61(5):1037-1047.


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