Teen sex reporting rule may threaten doctor-patient confidentiality

Kansas officials want doctors to report any sexual activity by someone younger than 16 as sexual abuse, a requirement that physicians say would harm adolescents instead of helping them.

A federal appeals court is now considering a challenge to a temporary injunction against the attorney general's interpretation of a Kansas state law on which this requirement is based.

Physicians say they fully support protecting children from sexual abuse, but they say mandatory reporting will breach sacred patient-physician confidentiality. And without confidentiality, physicians say adolescents who need to see a doctor will be afraid to seek medical care and won't.

These concerns led Aid for Women, a Kansas City (Kan.)-based practice that provides general care and abortions for women; a number of physicians and other health care professionals to sue the state attorney general in October 2003.

A lower court last year issued a preliminary injunction so that physicians don't have to report every case while the challenge is under way. But the state is appealing the injunction, and it is now up to the 10th U.S. Circuit Court of Appeals to decide whether Kansas physicians will need to follow this reporting requirement.

The outcome of this case is expected to be precedent-setting. While the courts have ruled extensively on an adult's right to privacy in the doctor's office, case law for adolescents isn't as developed, said Bonnie Scott Jones, a staff attorney for the Center for Reproductive Rights, which is representing the clinic and physicians suing the state.

There have been rulings on adolescents and abortion, she said, but not on consensual sexual activity.

"The public health implications of this ruling is enormous," Jones said. "When confidentiality isn't guaranteed, it hurts patient care."

Kansas authorities push reporting

Like other states, Kansas requires physicians to report suspected child abuse, including sexual abuse.

The state law criminalizes intercourse, kissing, fondling and other touching with a child younger than age 16, even if the sexual contact is consensual or if the people are of a similar age.

A previous attorney general in 1992 interpreted the measure in a way that let physicians and other health care professionals use their judgment to decide which cases to report. He reasoned that sexual activity involving someone younger than 16 may harm the child, but not necessarily.

In 2003, though, now Attorney General Phill Kline issued a new opinion on the subject, saying that every case a physician encountered needed to be reported, even if the doctor believed that the sexual act was consensual and with someone near the same age. Kline reasoned that children might not truthfully tell physicians about the nature of the sexual relationship.

"An abused child states whatever the abuser tells her to say," Kline said in a statement. "And so, the 13-year-old child tells the abortion intake nurse that she is pregnant because of her 15-year-old boyfriend while the 27-year-old abuser who got her pregnant waits in the car outside."

State investigators have a duty to protect children by following up on each incident to determine whether abuse had in fact taken place, Kline said. He points to health care professionals who have endorsed the state's opinion.

In an affidavit, Parsons, Kan., family physician Gary Yarbrough, MD, said minors are not honest about their sexual histories, especially when it comes to physical, emotional or sexual abuse.

"Minors in abusive relationships will frequently lie about the relationship, saying that it is not abusive," Dr. Yarbrough said in a statement. "Because it is so difficult to tell if a minor is truthfully describing the nature of a relationship, sexual or otherwise, I believe that to protect minors under the age of 16 it is important to report for further investigation all instances of sexual intercourse."

Doctors argue for privacy

Many physicians disagree.

The American Academy of Family Physicians, American Medical Association, American Medical Women's Assn. and nearly a dozen other physician, nurse and social work organizations argue that patient care will suffer under mandatory reporting. The groups filed a friend-of-the-court brief on behalf of Aid for Women.

Doctors and others point out that Kansas' reporting laws require that the physician should have "reason to suspect that the adolescent has been injured." They say the attorney general's interpretation removes that professional discretion.

But an even bigger concern in this situation is that mandatory reporting puts physicians in a position where they have to breach patient-physician confidentiality.

"The cornerstone of medicine is the patient-physician relationship," said AMA President John C. Nelson, MD, MPH.

"Extremely personal information is being exchanged. Drug-abuse history. Sexual history. Menstruation. That relationship has got to be based in trust so that patients have the ability to share feelings," Dr. Nelson said.

And a mandatory reporting requirement breaches that trust, physicians say.

The fear of being reported leads adolescents -- abused or not abused -- to choose not to go to the doctor, even if something appears to be wrong with their health.

"Studies show that adolescents ... will forgo treatment if they believe their confidentiality will be breached," AAFP's general counsel Tom Robinett said.

And those who do seek care will be less likely to share vital information, Dr. Nelson said. That's especially concerning, he said, because studies have shown that women who have experienced violence are more comfortable talking to their physician about it rather than talking to the police or other authorities.

"Eighty-five percent of a diagnosis is made by the history that physicians take," Dr. Nelson said. "You're not going to tell me if I'm going to rat on you."