Healthcare professionals are often faced with an ethical dilemma when a child2 discloses information relating to a potentially serious criminal offence but specifically requests that this information is not disclosed to the authorities. It is critical that healthcare professionals are aware of their obligations at all times.
The Criminal Justice (Withholding of Information and Offences against Children and Vulnerable Persons) Act 20123 and the HSE Children First: National Guidance for the Protection and Welfare of Children 2011 are designed to assist practitioners in this regard.
As it currently stands, the Guidelines promote best practice and are a valuable guide for all healthcare practitioners. They encourage practitioners to report concerns or suspicions regarding the abuse or neglect of children to the HSE Children and Family Services and / or an Garda Síochána. However, the Act goes one step further and provides a statutory obligation to report such information to an Garda Síochána, meaning practitioners may face prosecution for failing to do so.
However, so that children are not deterred from seeking support, limited defences are established under the Act. It is a defence for a healthcare practitioner to determine that it is not in the interests of a child’s health and welfare to report an offence to an Garda Síochána if they have reasonable grounds for forming this view. It is also a defence where a child over 14 years of age specifically requests non-disclosure. If the child is under the age of 14, it is a defence to show that the parent or guardian has formed the view that the matter should not be reported to an Garda Síochána, provided that the offender is not a family member.
In essence, the ethos of the Act and Guidelines is that practitioners must report information to the relevant authorities. However, the premise of both the Act and Guidelines is that the welfare of the child is of paramount importance and therefore, where a child specifically requests non-disclosure, decisions should be made on a case by case basis. Despite the above, a practitioner may disclose patient information to the appropriate health authorities and statutory bodies, without a patient’s consent, in justifiable circumstances to protect the public interest in accordance with ethical guidelines4.
For practitioners making non-disclosure decisions we recommend that all discussions with the patient are clearly documented, in particular that the patient has been thoroughly counselled and that disclosure was recommended and that any decision made regarding disclosure has been in the child’s best interests.
It is expected that the Children First Bill (“Bill”) will be enacted before the end of this year. If so, the Act will put certain aspects of the Guidelines and reporting to the HSE on a statutory footing. The Act will be a welcome development in assisting practitioners with their reporting obligations.