Healthcare professionals are often faced with an ethical dilemma when a child1 discloses information relating to a potentially serious criminal offence, but specifically requests that this information not be 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 20122 and the Health Service Executive (HSE) Children First: National Guidance for the Protection and Welfare of Children 2011 are designed to assist practitioners in this regard.
The existing 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 or the police. However, the act goes one step further and provides a statutory obligation to report such information to the police, meaning that 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 the police 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 the police, 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; therefore, where a child specifically requests non-disclosure, decisions should be made on a case-by-case basis. Despite this, 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 guidelines.3
For practitioners making non-disclosure decisions, it is recommended that all discussions with the patient are clearly documented – in particular, that:
- the patient has been thoroughly counselled;
- disclosure was recommended; and
- any decision made regarding disclosure has been in the child's best interests.
It is expected that the Children First Bill will be enacted before the end of 2013. If so, the act will put certain aspects of the guidelines and reporting to the HSE on a statutory footing. The bill will be a welcome development in assisting practitioners with their reporting obligations.
Footnotes
1. Or vulnerable person, as defined in the act.
2. The act came into effect on August 1 2012.
3. Section 29 of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 7th Edition, 2009.
This article was first published by International Law Office on 20 November 2013.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.