Posted: September 27th, 2024

Emergency Law and Ethics: Mandatory Reporting of Child Abuse and Neglect

What does mandatory reporting mean?

 

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It means the binding legal requirement, supported by penalties, to report suspected cases of child abuse and neglect. The phrase is not defined in the Act.

 

Mandatory reporting, taken alone, might be a requirement applied to other vulnerable categories of individuals: e.g., the frail elderly, and the disabled, just to mention two. At the present moment and with respect to your professional practice the set of individuals covered for protection is children. As the population ages this may well change to include the elderly. Elder abuse is already a common topic of social concern that gets attention in legal, medical and nursing circles.

 

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The mandatory reporting of professional misconduct is a feature of the new Health Practitioner Regulation National Law (South Australia) Act 2010. This requirement does not directly refer to the treatment or management of children, but to other health professionals and to some health professional students. This last aspect of the new Act might be worth drawing your attention to while we are on the topic:

143—Mandatory notifications by education providers

(1)      An education provider must notify the National Agency if the provider reasonably believes—

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(a)      a student enrolled in a program of study provided by the provider has an impairment that, in the course of the student undertaking clinical training as part of the program of study, may place the public at substantial risk of harm; or

(b)      a student for whom the education provider has arranged clinical training has an impairment that, in the course of the student undertaking the clinical training, may place the public at substantial risk of harm.

Note—

See section 237 which provides protection from civil, criminal and administrative liability for persons who make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.

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(2)      A contravention of subsection (1) does not constitute an offence.

(3)      However, if an education provider does not comply with subsection (1)—

(a)      the National Board that registered the student must publish details of the failure on the Board’s website; and

(b)      the National Agency may, on the recommendation of the National Board, include a statement about the failure in the Agency’s annual report.

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On the more general requirement to report what is called ‘notifiable conduct’:

Notifiable conduct by registered health practitioners is defined as:

• practising while intoxicated by alcohol or drugs
• sexual misconduct in the practice of the profession
• placing the public at risk of substantial harm because of an impairment (health issue), or
• placing the public at risk because of a significant departure from accepted professional standards.

see http://www.ahpra.gov.au/notifications/who-can-make-a-notification/mandatory-notifications.aspx

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Our scope is restricted to children, and the legal requirement mentioned is via the creation of statutes in state legislatures. This means that for us in SA the Children’s Protection Act 1993 (SA) covers the area. The reporting of suspicions of abuse or neglect is an obligation mandated by legislation for certain groups of professionals. Reporting for those not mandate as professionals is voluntary or optional.

 

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The legal term mandamus (from which mandatory comes) refers to an order issued by a court to compel a public official to exercise a power in accordance with his or her duty; the Latin means we command. So mandatory will for us mean made obligatory by legislation, or in other words, a statutory obligation that is imposed on those within its scope of operation. When something is mandatory then all room for discretionary compliance is ruled out.

 

Here is an example of the distinction between obligatory and discretionary: it is obligatory to wear seat belts in vehicles produced after a certain date if they are fitted, so drivers of cars with supplied belts have no legal discretionary power as to whether they use them or not. However, for older vehicles that were never fitted with belts in the first place it is not obligatory for the owner to fit them. So for those old cars their owner has discretion over whether to fit them or not and hence discretion over how the law applies to them in that vehicle. Once they are fitted the wearing of them is no longer optional.

 

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The professions mandated to report: section 11(2) of the Children’s Protection Act 1993 (SA) provides the list of professions whose members have the reporting duty.

 

The first thing to note is that not all health professionals are explicitly named in the list; pharmacists, medical practitioners and nurses, among others are explicitly listed.

 

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However, section 11(2)(j) is a catch-all under which, for example, paramedics and the management of the South Australian Ambulance Service are captured. Now, quoting in full:

 

(2)  This section [i.e., section 11(2)] applies to the following persons:

(a)     a medical practitioner;

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(ab)    a pharmacist;

(b)     a registered or enrolled nurse;

(c)     a dentist;

(d)     a psychologist;

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(e)     a police officer;

(f)     a community corrections officer (an officer or employee of an administrative unit of the Public Service whose duties include the supervision of young or adult offenders in the community);

(g)     a social worker;

(ga)    a minister of religion;

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(gb)    a person who is an employee of, or volunteer in, an organisation formed for religious or spiritual purposes;

(h)     a teacher in an educational institution (including a kindergarten);

(i)     an approved family day care provider;

(j)     any other person who is an employee of, or volunteer in, a Government department, agency or instrumentality, or a local government or non‑government organisation, that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children, being a person who—

(i)     is engaged in the actual delivery of those services to children; or

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(ii)     holds a management position in the relevant organisation the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children.

 

 

Moral obligations

 

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I have been freely using the terms, ‘duty’ and ‘obligation’ in what I have written so far, and I expect that none of you have a problem with those uses because they arise in and apply to performance within your future professional role. Duties and obligations are most plainly understood in terms of the class of persons to whom the duty applies. Professional roles are a sub-set of social roles and indicate social functions: those who play these roles are social functionaries. Often, whether you are aware of it or not, you inherit the duties and obligations along with acceptance of that role (when you put on the uniform so to speak).

 

These professional obligations are owed to others and often specified in role statements, but it is not always obvious how obligations in the wider world of human interactions are triggered. For example, consider the following:

 

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• parenting and its duties,
• when reciprocity makes demands on us,
• how far truthfulness in relationships is obligatory,
• how gratitude should be understood and so on.

 

You will notice that some or all of these examples are obligations that are not mandatory in any legal sense (aspects of the parental being the exception); what they allude to is a personal sense of being bound or tied to a course of action that is not mediated by some professional role. When people refer to the moral sense of ‘obligation’ this personal area is what they are referring to. That part of the world is where obligations are triggered or created by what you say and do.

 

The way that our Children’s Protection Act 1993 (SA) is drafted makes it clear that your duty – the obligation to report – connects to your professional role, not to you as a person who plays that role from time to time.

 

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(See section 11—Notification of abuse or neglect

 

(1) If—

(a) a person to whom this section applies suspects on reasonable grounds that a child has been or is being abused or neglected; and

(b) the suspicion is formed in the course of the person's work (whether paid or voluntary) or of carrying out official duties,

 

the person must notify the Department of that suspicion as soon as practicable after he or she forms the suspicion.

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Maximum penalty: $10 000.)

 

It follows that what you must do in your line of work you may choose not to do in your private capacity.

 

Dwell on this for a moment: you might come to the conclusion that anybody who thought that fulfilling their legal obligations completely exhausted their obligation to respond to children at risk was badly wrong. You might want to say that we are all morally obliged as people to report suspicions of child abuse; or again, you might say that you felt duty bound to report in your private capacity just as powerfully as when you were acting in the line of your official duty. Your feelings here open up the area of ethical or moral obligations once again.

 

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This area of felt moral obligations is broad and subjective as compared with the legal specification of duties attached to professional roles. There will be a discussion of integrity when we deal with ethics codes, and you might see that integrity - understood as the wholeness of a person’s character - will realistically only make sense in terms of this deeper moral dimension of obligation. If this is not obvious then consider what you would make of a person whose felt-responsibility to report suspicions of child abuse terminated when they took off their uniform and reengaged when they put it on again.

 

NOTE: a useful device to distinguish the precise nature of obligations is a question: ‘what circumstance is responsible for creating the obligation?’ A second question also helps, ‘how is this obligation enforced?’

 

 

The law

 

If we revert back to the legal realities (the duties of professionals) we are not necessarily moving away from ethical concerns. You will recall that I characterised the Objects section of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) as the expression of the ethical principle underpinning that Act: respect for individual autonomy. In the same way the Objects section of the Children’s Protection Act 1993 (SA) announces an equally strong ethical agenda:

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3—Objects of Act

The objects of this Act are—

(a)      to ensure that all children are safe from harm; and

(b)      to ensure as far as practicable that all children are cared for in a way that allows them to reach their full potential; and

(c)       to promote caring attitudes and responses towards children among all sections of the community so that the need for appropriate nurture, care and protection (including protection of the child's cultural identity) is understood, risks to a child's wellbeing are quickly identified, and any necessary support, protection or care is promptly provided; and

(d)      to recognise the family as the primary means of providing for the nurture, care and protection of children and to accord a high priority to supporting and assisting the family to carry out its responsibilities to children.

 

The ethical content of these objectives is obvious: to protect the interests of the vulnerable young. But interestingly the objects are backed up with a section titled fundamental principles:

 

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4—Fundamental principles

(1)  Every child has a right to be safe from harm.

(2)  Every child has a right to care in a safe and stable family environment or, if such a family environment cannot for some reason be provided, in some alternative form of care in which the child has every opportunity that can be reasonably provided to develop to his or her full potential.

(3)  In the exercise of powers under this Act, the above principles and the child's wellbeing and best interests are to be the paramount considerations.

(4)  In determining a child's best interests, consideration must be given to the following:

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(a)  the desirability of keeping the child within the child's own family and the undesirability of withdrawing the child unnecessarily from a neighborhood or environment with which the child has an established sense of connection;

(b)  the need to preserve and strengthen relationships between the child, the child's parents and grandparents and other members of the child's family (whether or not the child is to reside with those parents, grandparents or other family members);

(c)  the need to encourage, preserve and enhance the child's sense of racial, ethnic, religious, spiritual and cultural identity and to respect traditions and values of the community into which the child was born;

(d)  if the child is able to form and express his or her own views as to his or her best interests—those views;

(e)  the undesirability of interrupting the child's education or employment unnecessarily.

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(5)  In relation to an Aboriginal child, the Aboriginal Child Placement Principle is to be observed.

(6)  A child who is placed or about to be placed in alternative care—

(a)  must be provided with—

(i)   a nurturing, safe and stable living environment; and

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(ii)  care that is, as far as practicable, appropriate to the child's needs and culturally appropriate; and

(b)  must be allowed to maintain relationships with the child's family (including the child's grandparents) and community, to the extent that such relationships can be maintained without serious risk of harm; and

(c)  must be consulted about, and (if the child is reasonably able to do so) take part in making, decisions affecting the child's life, particularly decisions about the child's ongoing care, where the child is to live, contact with the child's family and the child's health and schooling; and

(d)  must be given information that is appropriate, having regard to the child's age and ability to understand, about plans and decisions concerning the child's future; and

(e)  is entitled to have his or her privacy respected; and

(f)   if the child is in alternative care and under the guardianship, or in the custody, of the Minister—is entitled to regular review of the child's circumstances and the arrangements for the child's care.

(7)  All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.

 

 

The practical definitions

 

What we are covering here is largely included in a document taken from the Department of Families and Communities web site: http://www.dfc.sa.gov.au/pub/tabid/485/itemid/1427/default.aspx

 

For the sake of your reporting obligation a child is defined in the Act as, ‘a person under 18 years of age’ (s 6). Notice that the term ‘child’ is variable between pieces of legislation and the Consent to Medical Treatment and Palliative Care Act 1995 (SA) defines it to be ‘a person under 16 years of age’ (s 4). In different circumstances (where consent to sexual relations is at issue) the age will be 17.

 

Abuse is defined in section 6(1) as:

 

abuse or neglect, in relation to a child, means—

(a)     sexual abuse of the child; or

(b)     physical or emotional abuse of the child, or neglect of the child, to the extent that—

(i)     the child has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or

(ii)     the child's physical or psychological development is in jeopardy

 

abused or neglected has the corresponding meaning

 

Section 10 adds:

 

10—Interpretation

In this Division—

abuse or neglect, in relation to a child, has the same meaning as in section 6(1), but includes a reasonable likelihood, in terms of section 6(2)(b), of the child being killed, injured, abused or neglected by a person with whom the child resides.

 

 

Your legal education up to this point should prompt you to ask, “What exactly does ‘reasonable likelihood’ mean in the context of me operating under this legislation?” This idea is related to ‘grounds for suspicion’ (s 11(1)(a)) but for direction look at Child Safe Environments – Reporting Child Abuse & Neglect: Guidelines for Mandatory Notifiers (May 2007 SA Gov). What you will find there are four bases or grounds on which you may come to suspect that child abuse and/or neglect is occurring:

 

 

WHAT IS CHILD ABUSE OR NEGLECT?

 

In general, child abuse or neglect is categorized in four ways.

 

1. Physical abuse

This is commonly characterized by physical injury resulting from:

 

hitting, punching, kicking (e.g., marks from belt buckles, fingers) shaking (particularly young babies) burns (e.g., irons, cigarettes) biting

pulling out hair or the administration of alcohol or other drugs.

 

2. Sexual abuse

This occurs when someone in a position of power to the child uses that power to involve the child in sexual activity. It can include:

 

sexual suggestion exhibitionism, mutual masturbation, oral sex, showing of pornographic material, e.g., DVDs, internet using children in the production of pornographic material penile or other penetration of the genital or anal region, or child prostitution.

 

3. Emotional abuse

This tends to be a chronic behavioral pattern directed at a child so that a child’s self esteem and social competence are undermined or eroded over time. It can include:

 

devaluing ignoring rejecting corrupting isolating terrorizing or chronic or extreme domestic violence in the child’s presence.

 

4. Neglect

This is characterized by the failure to provide for the child’s basic needs. It may include:

inadequate supervision of young children for long periods of time failure to provide adequate nutrition, clothing or personal hygiene

failure to provide needed or appropriate health care, or medical treatment disregard for potential hazards in the home forcing the child to leave home early, or

allowing the child to engage in chronic truancy.

 

 

 

A likelihood of something occurring is the probability of its occurrence, and probabilities are quantifiable; however, that is not covered in the documents so assume that grounds for your suspicions will be spelt out by you in terms of your evidence under the four bases above. The Act requires that a statement of grounds of suspicion be provided detailing, ‘observations, information and opinions on which the suspicion is based.’ (s 11(3))

 

Risk is defined in terms of being at risk in the following way (s 6(2)-(3)):

 

 

(2)     For the purposes of this Act, a child is at risk if—

(aa)    there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing against which he or she should have, but does not have, proper protection; or

(a)     the child has been, or is being, abused or neglected; or

(b)     a person with whom the child resides (whether a guardian of the child or not)—

(i)     has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or

(ii)     has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or

(c)     the guardians of the child—

(i)     are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or

(ii)     are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child; or

(iii)    are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or

(d)     the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or

(e)     the child is under 15 years of age and is of no fixed address.

(3)        It is immaterial for the purposes of this Act that any conduct referred

subsection (2) took place wholly or partly outside this State.

 

 

Professional liability issues

Section 12—Protection from liability for voluntary or mandatory notification

A person who (whether voluntarily or pursuant to a requirement of this Act) notifies the Department of a suspicion that a child has been or is being abused or neglected or provides any information to the Department in respect of such a notification—

(a)     cannot, by virtue of doing so, be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted form of professional conduct; and

(b)     insofar as he or she has acted in good faith, incurs no civil or criminal liability in respect of the notification or the provision of the information.

 

PLEASE NOTE: merely reporting suspected abuse may not be enough to satisfy the requirements under the Act. Section 11(5) says:

‘A person does not necessarily exhaust his or her duty of care to a child by giving a notification under this section’

Exactly what this amounts to is not clear, but the imminence of the danger to the child will have a bearing on how duty of care is judged. For the moment I want you all to notice that the idea of a duty of care to a child in imminent danger is a much broader duty than the statutory duty to report.

The obvious question will be about removal and who might do that removing under the prevailing circumstances. Here is were that is covered in the Act:

 

15—Interpretation

In this Division— officer means—

• (a)  a police officer; or
• (b)  an employee of the Department authorised by the Minister to exercise powers under this Division.

16—Power to remove children from dangerous situations

(1) If an officer believes on reasonable grounds that a child is in a situation of serious danger and that it is necessary to remove the child from that situation in order to protect the child from harm (or further harm), the officer may remove the child from any premises or place, using such force (including breaking into premises) as is reasonably necessary for the purpose.

(2) An officer's powers under this section are subject to the following limitations:

• (a)  a police officer below the rank of inspector may only remove a child from a situation of danger with the prior approval of a police officer of or above the rank of inspector unless he or she believes on reasonable grounds that the delay involved in seeking such an approval would prejudice the child's safety;
• (b)  an employee of the Department may only remove a child from the custody of a guardian with the Chief Executive's prior approval.

(3) An officer who removes a child under this section must, if possible, return the child to the child's home unless—

• (a)  the child is a child who is under the guardianship, or in the custody, of the Minister; or
• (b)  the officer is of the opinion that it would not be in the best interests of the child to return home.

(4) If an officer removes a child under this section, and the child is not returned to the child's home under subsection (3), the officer must deliver the child into the care of such person as the Chief Executive, or the Chief Executive's nominee, directs.

(5) If the Minister does not already have custody of a child who is removed from a situation of danger under this section, the Minister has custody of the child until—

• (a)  the end of the working day following the day on which the child was removed; or
• (b)  the child's return home,

(whichever is the earlier).

Disclosure of your identity:

 

13—Confidentiality of notification of abuse or neglect

(1)    For the purposes of this section, a notifier is a person who notifies the Department that he or she suspects that a child has been or is being abused or neglected.

(2)    Subject to this section, a person who receives a notification of child abuse or neglect from a notifier, or who otherwise becomes aware of the identity of a notifier, must not disclose the identity of the notifier to any other person unless the disclosure—

(a)    is made in the course of official duties to another person acting in the course of official duties; or

(b)    is made with the consent of the notifier; or

(c)    is made by way of evidence adduced in accordance with subsections (3) and (4).

Maximum penalty: $5 000.

 

Penalty for proven failure to notify:

11—Notification of abuse or neglect

(1)    If—

(a)      a person to whom this section applies suspects on reasonable grounds that a child has been or is being abused or neglected; and

(b)      the suspicion is formed in the course of the person's work (whether paid or voluntary) or of carrying out official duties,

the person must notify the Department of that suspicion as soon as practicable after he or she forms the suspicion.

Maximum penalty: $10 000.

 

Reports

 

For the purpose of reporting the Act refers to ‘the Department’. Here is the link to Families SA:  https://my.families.sa.gov.au/IDMProv/landing.html

 

 

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