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COULD a medical practitioner be imprisoned for failing to report child sexual abuse? Unlikely, but not impossible.
A 2006 Queensland study found a quarter of medical practitioners admitted to failing to report suspected child abuse at least once, though they were mostly aware of their responsibility to report suspected cases of abuse and neglect.
Last month a report from the Victorian Parliamentary Inquiry into the handling of child abuse by religious and other organisations made a number of recommendations, one of which has the potential for imprisonment for failing to report sexual abuse.
The inquiry has recommended widening an existing criminal offence of concealing offences for benefit, so a person will not have to receive personal benefit in order to be in breach of the law. The recommendation says:
Section 326 of the Crimes Act 1958 (Vic) currently requires proof that the person who concealed a serious indictable offence received a benefit. The Committee determined that failure to report knowledge of the commission of a serious indictable offence to police (including those relating to child abuse) and thereby concealing the offence should be punishable as a crime, regardless of whether any benefit is received.
The Victorian Government was reported to have immediately started to draft legislation. However, the precise form of that new law and the law reform outcomes from the other recommendations remains to be seen.
The wording of any new laws will assist in understanding what level of knowledge or belief may be required to have committed the offence, although it does seem likely that a direct disclosure from a victim or even a perpetrator will suffice.
In the UK similar calls for law reform followed the Jimmy Savile cases. The Church of England and the Roman Catholic Church are said to support such moves.
In Australia some mandatory reporting obligations already exist for medical practitioners. Writing earlier this year following the announcement of the Commonwealth Royal Commission to investigate institutional responses to child sexual abuse, I mentioned the laws requiring the reporting of child sexual abuse that have been part of Australian medical practice for some years.
In NSW, for example, health care workers who in their work have reasonable grounds to suspect that a child is at risk of significant harm must report the name of the child and the grounds of the suspicion to the Director General or to an assessment officer of a relevant agency.
Protections exist for those making such reports against action such as for defamation or civil liability.
These mandatory reporting laws override the wishes of the patient, similar to laws requiring notification of some diseases such as HIV/AIDS. The public interest in such circumstances takes precedence over the usual patient confidentiality expectation.
Severe disciplinary consequences may flow from a failure to report, including examples of cancellation of the right to practise.
The Victorian inquiry is the first of three to report recommendations on child sexual abuse in Australia. Following Victoria will be a NSW report, expected before mid 2014, from the Special Commission of Inquiry into matters relating to the police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle. The most extensive inquiry is that by the Commonwealth Royal Commission, which continues its work. An interim report is expected in June next year.
With three such high-profile inquiries, law reform seems inevitable.
Medical practitioners hearing of abuse may need to direct even more attention to their reporting obligations as well as patient advice and care.
Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.
Mandatory reporting requirements have come a long way in a short time. Today, suspected child sexual abuse, tomorrow all suspected sexual abuse then all forms of suspected abuse. Who knows what legislators might dream up next? The penalty for failure to report grows from a threat to registration to that of a criminal prosecution and a gaol term, surely a recipe to encourage reporting of slight suspicions just to be on the safe side. The proportion of cases where suspicions are disproved will surely rise. How many suspected victims and their families report the investigative and legal process to be relaxed, informal and stress free? Legal safeguards against an action for defamation are about as useful to practitioners and their patients as safeguards to protect whistleblowers. Think carefully and treat warily.
ex-doctor:
How is reporting child abuse injurous to the child’s physical and mental health and well-being?
Perhaps the privacy commissioner should be required to give guidance on the wording of a mandatory notice that must be displayed in all places of medical practice along the lines of, “CAUTION! The consultation you have with your doctor is not privileged in law. Things you say or do in relation to your private matters may be recorded and reported to the authorities as a matter of public benefit”. Or perhaps, “CAUTION! the medical care in this practice is governed by lawyers and may be injurious to your physical and mental health and wellbeing”.