Children First Mandated Reporting: Clarification from the High Court

The High Court has provided welcomed clarification on the obligation of Counsellors and therapists to make a Mandated Report to Tusla following a disclosure by an adult of historic child abuse.

The issue arose following a challenge to HSE Child Protection and Welfare Policy 2019 (“2019 Policy”), which provides that a service user should be informed at the outset that if any child protection issues arise, including disclosures of retrospective abuse, that this information must be passed to Tusla where there are reasonable grounds for concern that abuse has occurred as there may be current or potential risk to children (identifiable or not).

The policy reflects the requirements of the Children First Act 2015 (“2015 Act), which outlines a system of mandatory reporting of harm to children. In this article, Patrice O’Keeffe, Partner and Anna McCormack, Intern give an overview of the case and highlight some of the key points of discussion.

Challenge

The applicant in this case is a HSE Director of Counselling. It was contended that s. 14(1) of the 2015 Act does not require mandated persons to report disclosures by adults where there is no identifiable risk to children and the perpetrator of the alleged abuse is not identifiable. It was also contended that the 2019 Policy does not reflect clinical concerns that mandated reporting in some instances may cause serious harm to the patient and undermine the relationship of trust between patient and counsellor.

HSE contended that the 2019 Policy reflects the proper interpretation of s 14(1) of the 2015 Act.  A person becoming an adult does not ‘rewrite history’, and the fact that the former child no longer falls within the definition of “a child” has no effect on the provision as it relates to harm against them when they were a child.  It was also contended that there is no exemption provided in the 2015 Act from the reporting obligation to make a mandatory report where the making of the report may cause harm to the service user.  Furthermore, it was submitted that as the statutory body charged with child protection, it is for Tusla to assess the risk, not the mandated person.

Judgment

Ms. Justice Phelan, finding in favour of HSE and rejecting the challenge to the 2019 Policy concluded as follows:

1) Section 14(1) imposes a reporting obligation by a mandated person to notify Tusla where an adult discloses past harm suffered as a child, where that harm falls within the definition of “harm” in the 2015 Act.

2) Consent is not necessarily required before a report is to be made to Tusla.  However, this does not obviate the necessity to ensure informed consent to treatment and there is an obligation on the counsellor to properly inform the individual of how confidentiality in counselling is managed and the limitations of confidentiality, including the mandatory reporting obligations imposed under the 2015 Act.

3) There is no requirement to know the identity of the alleged perpetrator before a report is made.  It is for Tusla to determine what investigation or further steps ought to be taken in relation to the report.

4) The purpose of the Act is to ensure that reports are provided to Tusla, so as to enable Tusla to assess whether there is a risk to current identified child.  It is not for a Counsellor, school, religious institution to decide not to report to Tusla on the basis that there is no current risk to a child because the perpetrator is retired or has died.  Information disclosed to a mandated person may take on a different complexion when considered by Tusla in light of other information Tusla holds it its capacity as Agency with statutory responsibility in this area.

5) It is not for the Court to assess policy behind legislation.  Absent a constitutional challenge, the Court cannot depart from the application of legislation derived from a literal interpretation, unless that literal approach leads to an absurdity, which does not arise in this case.

Conclusion

This judgment clarifies the legal basis for the 2019 Policy and provides assurance to mandated persons where they are faced with making a disclosure without the consent of the relevant person.  However, informed consent must be considered prior to treatment and the limitations of confidentiality should be made clear at the outset.

If you have any questions relating to this article, please contact a member of our Healthcare or Child Care Team.