Page 20 - World of Irish Nursing April 2018

26 Focus

means either a person who is suffering Key points emerging from the Act
from a disorder of the mind, whether as a
result of mental illness or dementia, or has The following have the potential to impinge on the practice of nurses and midwives:
an intellectual disability, which is of such • If you know or believe any of the listed offences have been committed, and you have information
a nature or degree as to severely restrict which may assist the Gardaí in the apprehension and prosecution of the alleged perpetrator, then you
the capacity of the person to guard him- have a duty to disclose this information
self or herself against serious exploitation • A person who fails to disclose this information, without reasonable excuse, can face a penalty on
conviction ranging from a fine of €5,000 and/or 12 months imprisonment, up to 10 years imprisonment
or abuse, whether physical or sexual, by • The range of offences where this obligation arises is wide and covers all forms of sexual offence or
another person. A vulnerable person may abuse, trafficking, assault, and other exploitative offences
also be one who is suffering from an endur- • You may have a defence where your failure to report results from a wish expressed by a child over 14
ing physical impairment or injury which is years or a vulnerable person who has capacity, that the matter not be reported; similarly such views
of such a nature or degree as to severely may be expressed on behalf of another by a parent or guardian
restrict the capacity of the person to guard • Specifically, nurses and midwives who are caring for persons in relation to the injury or harm arising
themselves against serious exploitation or from the alleged offence, and where they form the view in the best interest of the health and wellbeing
abuse, whether physical or sexual, or to of that person that the offence should not be reported, and their actions are in accordance with best
practice, will not be liable under the Act
report such to the Garda Síochána, or both,
as the case may be. post-August 2012, irrespective of when the has reasonable grounds for forming a view
The 2012 Act creates two offences: Sec- offence was committed – either before or that the matter concerned should not be
tion 2 creates an offence of withholding after that date. reported for the purposes of protecting the
information on certain offences against Penalties health and wellbeing of that child or vul-
children; and Section 3 creates an iden- If convicted for failing to disclose infor- nerable person, and they act in the manner
tical offence except that it applies to mation the penalty on conviction in the expected of their profession, then they will
information concerning offences against District Court is a maximum fine of €5,000 have a defence under the 2012 Act.
vulnerable persons. and/or 12 months imprisonment. Where Accordingly, one should be aware that
Offences convicted on indictment, ie. in a higher the obligations under this Act are not dis-
The offences arise where one knows or court, the penalty imposed is variable placed by the reporting obligations that
believes that a relevant offence has been depending on what the maximum penalty exist within the health services currently.
committed, and one has information that would be for the person who committed the Thus, while in many circumstances, the
one knows or believes would be of material underlying offence, and the penalties range workplace reporting of information in rela-
assistance in the apprehension, prosecution, from three to 10 years imprisonment. tion to abuse, which amounts to one of the
or conviction of a person who committed Defences offences mentioned, may be sufficient, it is
such an offence, and one fails without rea- There are a number of defences availa- still important that where the nurse or mid-
sonable excuse to disclose that information ble to a nurse or midwife in this situation. wife has information of the type described
to a member of the Gardaí. In this sense, The first arises where the child is over 14, above, then they must assure themselves
liability arises not on mere suspicion that or they are a vulnerable adult, and they that some professional in the chain of care
an offence has been committed; rather one have expressed a view that they do not has reported the matter to the Gardaí,
must at least believe it has been, and one want the offence disclosed. This defence unless one of the exceptional circum-
must have material information to assist will only apply where the child is over 14 stances militating against reporting exists.
the Gardaí in the apprehension and prose- was capable of forming such a view. Similar General obligation
cution of the offender. provisions apply in relation to vulnerable The 2015 Act has introduced an impor-
The range of offences about which one adults. Where a child is under 14, their tant general obligation and while not
may have information, and which carry the own view on reporting will not amount to carrying a criminal sanction the Act would
obligation to disclose the information to a defence. no doubt be of relevance in Fitness to Prac-
the Gardaí, differ in respect of children and Another defence arises where a parent tise proceedings, and of course it has been
vulnerable adults. In respect of children, or guardian makes known their own view, enacted to give legislative force to a strong
there are 19 different offences including: or a view on behalf of a child or vulner- moral message that children must be pro-
rape, sexual assault, incest by a male or able person, that the matter should not tected, and behaviour or circumstances of
female, false imprisonment, child sexual be reported. This applies where they are concern must not be ignored. Additionally,
abuse, assault, endangerment, abduction, acting in the best interests of the child or and potentially referring to some cases
child trafficking, child pornography, cru- vulnerable person and the alleged perpe- which would come within the mandatory
elty, and female genital mutilation, among trator is not a family member. Where the reporting provisions of the 2015 Act, the
others. In respect of adults, the relevant alleged perpetrator is a member of the 2012 Act places onerous obligations on all
offences include rape, sexual assault, family, a defence for failing to disclose can persons to ensure that information relat-
ing to the commission of serious offences
be made when a designated professional
incest, trafficking, and assault.
WIN Vol 26 No 3 April 2018 tion to the foregoing sexual offences arises child or vulnerable person, that the offence does not go undisclosed. This is an impor-
against children and vulnerable persons
The duty to disclose information in rela-
has made known a view, on behalf of the
whether they occurred in this jurisdiction
should not be disclosed.
tant obligation, and one which should be
Where a member of a designated profes-
in the mind of nurses and midwives in the
or not. In addition, it should be noted that
sion, including nursing and midwifery, who
context of their day-to-day practice.
liability under the 2012 Act arises where
the information comes to one’s attention
is treating a child or vulnerable person for
Edward Mathews is INMO director of Regulation and
after the 2012 Act enters into force, ie.
the harm arising from the alleged offence
Social Policy