This report will look at mandatory
reporting in cases of child abuse and neglect.
See Appendix one for the full report on Sarah a six month old baby who
was abandoned by her family. This report
will look at the legislation involved, any legal breeches or offenses and
protection afforded to those who report.
This report will identify the branch of law involved and any major
ethical issues involved in mandatory reporting.
Lastly this report will suggest a risk management strategy to help
eliminate or reduce any risks identified by this report. In this paper a child is defined as a person
less than 18 years of age.
“There
is no universal definition of child abuse but it is generally considered to be
any sign of abusive act that causes physical or emotional harm to a child, or
if a child is harmed because of an adults failure to provide adequate care (SA
government, 2006, cited in Piltz & Wachtel, 2009).
In Australia the changes in
reporting of child abuse has resulted in an increase in the number of cases
reported (Hunter, 2008). Mandatory
reporting is a legal requirement to report suspected cases of child abuse and
neglect (Department of Health and Families, 2010). Notification has been made
mandatory for a couple of reasons. By
introducing mandatory reporting there is an acknowledgement of the seriousness
of child abuse, a moral responsibility and legal obligation to protect children
from harm and to prevent further abuse (Higgins, Bromfield, Richardson, Holzer
& Berlyn, 2009; Northern Territory Government, 2010). There is no national child protection
legislation in Australia, each state and territory has different laws and
requirements, mandatory reporting legislation is in place in all states and
territories except Western Australia.
The legislation requires that nurses either as health professional or as
adults report suspicions of child abuse (Piltz & Wachtel, 2009; Northern Territory of Australia Child
and Protection of Children Act, 2009). Northern Territory of Australia Child and
Protection of Children Act, 2009; section 20 (p19), states that
When child is in need of care and protection
A child is in need of care and
protection (child is in need of
protection) if:
a) The child has suffered or is likely to
suffer harm or exploitation because of an act or omission of a parent of the
child; or
b) The child is abandoned and no family members
of the child are willing and able to care for the child
In the Northern Territory any
person can report suspected physical, sexual, emotional, or psychological abuse
as well as neglect and exposure to physical violence such as domestic violence
between other family members on the grounds that they believe a child has or is
likely to suffer harm (Higgons et al, 2009; Department of Health and Families,
2010; Northern Territory of Australia
Child and Protection of Children Act, 2009).
Northern
Territory of Australia Child and Protection of Children Act, 2009 Division
3 General obligations about reporting,
section 26 Reporting obligations
states
1) A person is guilty of an offence if the
person :
a) Is a health practitioner or someone who
performs work of a kind that is prescribed by regulation; and
b) Believes, on reasonable grounds, any of the
following:
(i)
A
child has suffered or is likely to suffer harm or exploitation;
(ii)
A
child aged less than 14 years has been or is likely to be a victim of a sexual
offence
(iii)
A
child has been or is likely to be a victim of an offense against section 128 of
the criminal code; and
c) Does not, as soon as possible after forming
that belief, report (orally or in writing) to the CEO or a police officer:
(i)
That
belief; and
(ii)
Any
knowledge of the person forming the grounds for that belief; and
(iii)
Any
factual circumstances on which that knowledge is based.
Maximum penalty: 200 penalty points
In the case of Sarah it is neglect
which occurs “when a parent is unable or unwilling to provide for a child so
that the child can develop normally” (Department of Health and Families, 2010). Neglect can occur in the following ways –
failure to provide food, clothing, shelter, medical and other health care,
education, attention, appropriate supervision and at its worse abandonment of a
child (Department of Health and Families, 2010). In the Northern Territory it is a legal
requirement that the staff report this incident, the staff involved can seek advice
from senior staff members but they cannot delegate this responsibility, it is
the staff on duty and that have had contact with the child that must report the
incident (Department of Health and Families, 2010). If Registered Nurse’s Ben and Julie fail to
report this instance of serious neglect they can be held liable and legal action
can be brought against them (Department of Health and Community Services, 2010). Failure to report child abuse is a crime under
the Northern Territory of Australia Child and Protection of Children Act, 2009.
An offence against this act is an offence to which part 11AA of the criminal
code applies (Department of Health and Families, 2010). There are penalty points (monetary fine) or
jail time, depending on the offence (Department of Health and Families,
2010). There is a maximum penalty of 200 penalty
points for failure to report child abuse (Northern Territory of Australia Child
and Protection of Children Act, 2009.) Criminal
law is the body of rules with the potential for severe penalties as punishments
for failure to comply; this will depend on the offense and can include jail,
probation, parole or fines (McIlwraith & Madden, 2009). Criminal law is typically enforced by the
government where as civil law is usually enforced by private parties
(McIlwraith & Madden, 2009). A
criminal act is an act which is committed by a person that violates a law which
is punishable by the government, civil law on the other hand has nothing to do
with punishments and the police force but exists to enable us to resolve
disputes and differences of a personal and property nature that arise between
members of a community that they cannot resolve themselves (McIlwraith &
Madden, 2009; Staunton & Chiarella, 2008).
The Australian Federal Parliament and the Parliament of the Northern
Territory are two of the bodies that set out legislation documents which are
obligations, rights, penalties and procedures that bind citizens or a
particular group of citizens (McIlwraith & Madden, 2009). These bodies pass law in the form of statues
or acts of parliament, such as the Nurse and Midwifery Act and the Northern
Territory of Australia Child and Protection of Children Act (McIlwraith &
Madden, 2009). It is an offence to
breech these acts and the penalty will be set out in the act, these offences
are often triable in a magistrate’s court that is without a jury, and are
considered minor criminal offences (McIlwraith & Madden, 2009). Major criminal offences would include murder,
rape, serious assault, armed robbery and would be tried in a supreme court
usually with a jury (McIlwraith & Madden, 2009).
Normally disclosure of a patient’s
information would result in a breach of confidentiality. This is taught to all nursing students and
often reinforced in the workplace. The Professional
Code of Conduct for Nurses 2010 recognises, that nurses have a “legal and
ethical obligation to protect the privacy of people requiring and receiving
care” (p4). This is in conjunction with
the Guidelines to the National Privacy Principles 2001, however it is
recognised that nurses may be required by law to disclose certain information
(Code of Professional Conduct for Nurse in Australia, 2010). However as Julie and Ben did report as set out in the Community Welfare Act,
s14(2); “ a health professional making a report in good faith or with the
reasonable belief that a child has been abused will not be in breach of
confidentiality” (Department of Health
and Community Services, 2010). See also section
26 of the Northern Territory of Australia
Child and Protection of Children Act, 2009
Protection of person making
report
1) A person acting in good faith in making a
report under section 26 is not civilly or criminally liable, or in breach of
any professional code of conduct:
a) For making the report; or
b) For disclosing any information in the
report.
Grounds for suspension or
cancellation of nursing registration includes the conviction of a criminal
offence and professional misconduct (McIlwraith & Madden, 2009). McIlwraith
and Madden, 2009 list the following case - Failure to properly assess and treat
injuries to child medical board of South Australia v Christpoulos (2000) SADC
47 (Australian Health and Medical Law Report), p416, it was determined that the
Doctor was guilty of unprofessional conduct for failing to report suspected
child abuse, failure to report can also leave a health professional open to
civil action based on breach of statutory duty and negligence (McIlwraith &
Madden, 2009). A criminal conviction does not necessarily
lead to disqualification; the registration bored will carry out an
enquiry. Under section 22 of the Health
Practitioner Regulation (Administrative Arrangements) National Law Act 2008 –
Entitlement to Registration or Enrolment - an applicant is entitled to be
registered or enrolled in a category of registration or enrolment to which the
application relates if the relevant board is satisfied that the applicant ....
“(f) is of good character”
B. Harper (2010, pers. comm., 10th
may) a registered Nurse with the Northern Territory Nursing and Midwifery Board
states that each individual case is reviewed separately and that the Board will
decide if that nurses good character has been called into question, and if yes
what will the penalties be in terms of registration. Professional misconduct means an
unsatisfactory professional conduct of a sufficiently serious nature to justify
the removal of the nurse from the register, such conduct includes failure to
comply with any professions set out in the nurse and midwifery act or if
knowledge, skill or judgement possessed falls below the reasonable standard
expected of a nurse with an equivalent level of training or experience (Nurse
and Midwifery Act, 1992). Negligence is
the failure to use reasonable care it can consist of action or inaction i.e.:
failure to report child abuse. A person
is negligent if they fail to act as a ordinary prudent person would act in the
same circumstances, criminal negligence requires a greater degree of
culpability than civil negligence (Staunton & Chiraella, 2008).
Sarah was treated and admitted to
hospital. Under the Northern Territory of
Australia Community Welfare Act , 2007,section 15a), a person in charge of a
hospital can detain a child in hospital for up to 48 hours for the purpose of
examination and treatment. Under this
act Family and Child Services (FACS) must be notified of the child and
examination and treatment as soon as practical.
Once FACS has been notified they then become responsible for further
protection and maintenance of the child as well as notifying the family members
(Department of Health and community services, 2010).
Nurses should “promote, protect
& uphold the fundamental rights of people who are both the recipients and
providers of health care” as per the Code of Ethics Australia (p1) (www.anmc.com.au). Failure to report child abuse would be
unethical. In Sarah’s case if this
neglect were to continue for the long term it could result in failure to thrive
(with no organic cause), Sarah could engage in criminal acts and risk taking
behaviours such as drug and alcohol abuse as she got older, and poor school
attendance (Northern Territory Government, 2010). In Sarah’s case the neglect is glaringly
obvious in some cases child abuse and neglect particularly that which does not
show physically is not always easy to identify (Northern Territory Government,
2010). Penalties imposed on nurses force mandatory reporting which can
overburden the system with notifications that may not prove to be substantial
but cost substantially and be time consuming for services that are targeted at
the most at risk families and children (Piltz & Wachtel. 2009; Freed &
Drake, 1999). The nurse must take into account the fact that
reporting does not necessarily make the child safe and in actual fact can cause
further harm to that child (Piltz & Wachtel. 2009; Freed & Drake,
1999). Nurses find there are some
barriers to reporting child abuse, in small communities nurses can be worried
about community and family members finding out who made the report and this can
potentially impact on their personal lives especially if the family in question
reacts or retaliates in an aggressive manner (Piltz & Wachtel, 2009). Reporting could also alienate the
family/community members from attending the health service (Piltz &
Wachtel, 2009). Also there is the
ethical responsibility to protect a patient’s confidentiality (Piltz &
Wachtel, 2009).
In order to help nurses make a decision they can turn to ethical theory. Beneficence – health care should benefit the
patient and on the other side of the coin – non maleficence which is to do no
harm (McIlwraith & Madden, 2009). In
terms of mandatory reporting there are also two sides to the coin. Reporting abuse can benefit by potentially
keeping the child safe, allowing the offender to get treatment or punishment
and by decreasing the incidence of abuse, allowing the reporter the
satisfaction that they may have prevented further abuse (Freed & Drake,
1999). However reporting can also
violate the principle of non-maleficence by causing retribution of the victim
or others , reporting may cause the victim future discrimination and legal,
financial and emotional abuse (Freed & Drake, 1999). Nurses should promote patient self determination
the ethical principle of autonomy (McIlwraith & Madden, 2009). Mandatory
reporting takes this away as the nurse is legally obligated to report (Freed
&Drake, 1999). Justice refers to
equal access to health care and benefits available (McIlwraith & Madden,
2009). In terms of mandatory reporting –
what gets reported who will receive services and what services will be
available, is still being worked out, if the system becomes overburdened those
at serious risk may not receive the services they need (Freed & Drake, 1999;
Piltz & Wachtel, 2009; Ainsworth, 2002).
Mandatory reporting has been
introduced into the Northern Territory with little education for nurses on
child abuse, the signs and risk factors, the legislation regarding reporting
and the nurses requirements in regards to reporting (Piltz & Wachtel, 2009; Ainsworth, 2002).
Further education is needed to help
reduce confusion and unease about reporting (Piltz & Wachtel, 2009). It has been suggested that there is over
reporting due to the mandatory reporting legislation which has overburdened the
system (Piltz & Wachtel, 2009; Ainsworth 2002), further education will give the nursing
staff confidence in recognising child abuse and reporting it, some child
services are regarded with unease, and subsequently there is a poor working
relationship between these services an health professionals (Piltz &
Wachtel, 2009; Ainsworth 2002). Education
about the services need to be provided and an understanding of how they work
and what happens once child services becomes involved may ease nursing staffs
view of child services and help them to see the help the children will be
receiving. A regular in-service or
meeting between the nursing staff and child services staff to help ease
relations is needed. Education can be provided through university, in services,
staff meetings, included in mandatory training and folders in the workplace. More research is needed to evaluate the level
of nurses understanding and develop essential training services and reporting
guidelines.
In conclusion mandatory reporting
of child abuse is a legal and ethical issue for nursing staff. Improved education and a good working
relationship with child services will go a long way toward helping nurses
understand and cope with the legal and ethical consequences of reporting child
abuse.
