Page 19 - World of Irish Nursing April 2018

Focus 25

Mandatory

reporting

Edward Mathews looks at legislative developments

in the mandatory reporting of the abuse, or suspected
abuse, of children or vulnerable adults

The duty to ensure the safety and dignity The duty also arises where a child dis- satisfied that there is no material differ-
of those for whom they care has long been closes to a nurse or midwife in the course ence in capacity or maturity between the
recognised as an essential part of nursing of their professional practice that the child parties, and the relationship between the
and midwifery practice. existing policies and believes they have been harmed, are being parties engaged in the sexual activity is not
procedures in the health services include the harmed or at risk of being harmed, then intimidatory or exploitative of either party.
mandatory reporting of concerns regarding they must urgently report that disclosure If the child in question has said that they
the abuse of children or vulnerable per- to the Agency believe the activity has harmed them, is
sons. Moreover, such duties are implicit in The duty to report occurs if information harming them or is at risk of harming them
the NMBI’s Code of Professional Conduct meeting the above criteria comes to the then a report must be made. The child
and ethics. In addition to these professional attention of the nurse or midwife after the must have told you that the information
obligations, there are now mandatory 2015 Act came into force. That duty applies in relation to the sexual activity should not
reporting obligations and in some cases whether the information refers to issues of be disclosed to the Agency. This is clearly
criminal offences in this area by virtue of concern which occurred before or after the a somewhat complex exception, which
the Children First Act 2015 (2015 Act) and 2015 Act came into force. requires careful navigation.
the Criminal Justice (Withholding of Infor- The report, in most instances, must be The 2015 Act does not provide for any
mation on Offences Against Children and made using the ‘mandated report form’ pre- criminal law sanctions for a failure to
Vulnerable Persons) Act 2012 (2012 Act). pared by the Agency. The only exception is report, however, breach of the Act would
Children First Act 2015 where the nurse or midwife knows, believes no doubt be a relevant factor in any fitness
The Children First Act 2015 came into or has reasonable grounds to suspect, that to practise proceedings and, depending on
effect in December 2017. This Act applies a child may be at risk of immediate harm the circumstances, a failure to adhere to
to nurses and midwives, among others, and and should be removed to a place of safety. the requirements of the Act could amount
it refers solely to children (under the age of In this case they can report to the Agency to professional misconduct. Addition-
18 and not married). via other methods, but must subsequently ally, the 2015 Act is stated to operate in
The 2015 Act requires that where a nurse complete the mandated form. addition to, and not replace, any other leg-
or midwife knows, believes or has reason- If the sole source of the information islation, and it is to other obligations that
able grounds to suspect – on the basis of (that would normally require a manda- we now turn.
information that he or she has received, tory report) comes to your attention from Criminal Justice Act 2012
acquired, or becomes aware of in the another professional who has a duty to The Criminal Justice (Withholding of
course of his or her employment or pro- report – and who tells you that a report Information on Offences Against Children
fession – that a child has been harmed, is was made – then you do not have to make and Vulnerable Persons) Act 2012 is a rela-
being harmed, or is at risk of being harmed, a second report. however, where you have tively short piece of legislation which came
they must, as soon as practicable, report information from another source who into force on August 1, 2012, and provides
that knowledge, belief or suspicion to the does not have a duty to report then this for offences of withholding information
Child and Family Agency (the Agency). may require a separate report. In essence, relating to the commission of certain
This specifically refers to a duty that if the only way you know the information arrestable offences. For the purposes of
arises where the information relating to is through another professional telling you the 2012 Act, an arrestable offence is one
the concern comes to the nurse or mid- that a report was made to the Agency, you for which a person of full capacity and not
wife’s attention in the course of their role need not report again. previously convicted may be punished by
as a professional. It extends beyond knowl- A report is not required where the basis imprisonment for a term of five years or
edge and covers belief and reasonable for the concern is sexual activity of a child by a more severe penalty and includes an WIN Vol 26 No 3 April 2018
grounds for suspicion. Further, it refers to aged 15 or older but younger than 17, and attempt to commit any such offence.
harm that has occurred, is occurring or is at the partner in the activity is not more than A child in this context is a person under
risk of occurring. two years older. Additionally, one must be the age of 18, and a vulnerable person