Mandatory reporting of child abuse

If you are a medical practitioner touring around outback Australia in your caravan, combining leisure with some occasional locum work, then re-learning mandatory reporting of child abuse as you cross each state border probably isn’t at the top of your to-do list. But it does deserve some attention.

There are some immediate thoughts that may spring to mind for a doctor when a child abuse disclosure is made:

• Does this trigger my mandatory reporting obligations?
• Am I breaching doctor–patient confidentiality by reporting?
• Will the patient and their family become aware that I’ve made the report (and does that even matter)?
• What if I get it wrong?

There are differences in the legislation in both thresholds and definitions which impact on when a report must be made. This was summarised by Mathews et al (2020)¹ who noted:

‘… the laws are not uniform across jurisdictions, and there are broader and narrower models.

The first main dimension of difference is in which types of abuse and neglect must be reported … three of the eight jurisdictions – Victoria, Queensland, and the Australian Capital Territory – require reports of sexual abuse and physical abuse, but not of the other three kinds of maltreatment (emotional abuse, neglect, and exposure to domestic violence).

Other Australian jurisdictions require reports of only sexual abuse (Western Australia), or of all five types (for example, New South Wales).’

What a minefield!

Perhaps it’s useful to compare some of the key areas of difference among states.

In the NSW legislation, provided the doctor’s view is that there are no current concerns for the safety, welfare or wellbeing of a child – despite having knowledge of previous abuse – they are not required to report. The WA legislation, by contrast, requires a report of child sexual abuse irrespective of whether the child remains at risk.

Let’s look at the reporting thresholds in each jurisdiction.

What must be reported by doctors?²

• ACT – A doctor must report if a child or young person (< 18 years) has experienced or is experiencing, sexual abuse, or non-accidental physical injury.
• NSW – A doctor must report if a child (< 16 years) is at risk of significant harm. This is defined broadly and is not limited to sexual abuse.
• NT – All persons must report if a child (< 14 years) has been or is likely to be a victim of a sexual offence; and all persons must report a child (< 18 years) who has suffered or is likely to suffer harm or exploitation, or has been or is likely to be a victim of an offence under s128 of the NT Criminal Code (children > 16 under special care). Additionally, a doctor must report if a child (aged 14 to < 16 years) has been or is likely to be a victim of a sexual offence, and the difference in age between the child and alleged sexual offender is more than two years.
• Queensland³ – A doctor must report if a child (< 18 years) has suffered, is suffering, or is at an unacceptable risk of suffering, significant harm caused by physical or sexual abuse and may not have a parent able and willing to protect them from harm. All persons must report a child sexual offence in relation to a child (< 16 years; or a child 16-17 with an impairment of the mind) by another adult.
• SA – A doctor must report if a child or young person (< 18 years) is, or may be, at risk, which is defined very broadly.
• Tasmania – A doctor must report if a child (< 18 years) has been or is being abused or neglected, or there is a reasonable likelihood of a child being killed or abused or neglected by a person with whom the child resides. There are also reporting obligations for unborn children who are at risk after birth.
• Victoria – A doctor must report if a child (< 17 years) is in need of protection because the child has suffered, or is likely to suffer, significant harm as a result of physical injury or sexual abuse, and the child’s parents have not protected them or are unlikely to do so.
• WA – A doctor must report if a child (< 18 years) has been the subject of sexual abuse or is the subject of ongoing sexual abuse.

There are reporting requirements across the jurisdictions with respect to potential abuse or neglect that may be suffered by an unborn baby.

It’s important to note that, while mandatory reporting obligations arise as a result of a person being a doctor, some states have similar obligations for other health practitioners and persons generally.

Exceptions and penalties

There are limited exceptions to mandatory reporting in some jurisdictions’ legislation.

Penalties for a failure to report range from no penalty (NSW) through to imprisonment and substantial fines in other jurisdictions. Failure to report can also be the subject of health regulatory action.

Other considerations

The reassuring part for doctors is that ‘getting it wrong’ by reporting when the criteria for a mandatory report are not met doesn’t generally result in dire consequences, due to the protection from liability afforded by each jurisdiction’s legislation when mandatory and voluntary reports are made in good faith (subject to limited exceptions).

The identity of the reporter is generally protected from disclosure, although circumstances may lead to the alleged victim or their family being able to establish who the reporter is. You may be required to give evidence if the matter proceeds to court and you are subpoenaed as a witness.

If you’re unsure of your mandatory reporting obligations in any particular circumstance, you should contact our Medico-legal Advisory Services team for advice and assistance.

References

1. Comparing Reports of Child Sexual and Physical Abuse Using Child Welfare Agency Data in Two Jurisdictions with Different Mandatory Reporting Laws. B Mathews, L Bromfield and K Walsh published in Social Sciences – Critical Debates and Developments in Child Protection 2020, 9(5), 75.
2. Further information regarding mandatory reporting of child abuse and neglect has been published by the Australian Institute of Family Studies and can be found here.
3. Changes to the Criminal Law in Queensland in in July 2021 made it a criminal offence not to report sexual offending against a child by another adult to police. More information can be found here.

CASE STUDY

Daphne, a 16-year-old female who was six weeks pregnant to her 17-year-old boyfriend, attended with her mother to see Dr Flynn. He had never seen Daphne before, but she had seen other doctors at the same Victorian medical practice.

Upon review of Daphne’s clinical records, Dr Flynn noted a reference to recent trauma with domestic violence and depression. It wasn’t clear whether the domestic violence related to her current intimate relationship, or exposure more generally.

Dr Flynn questioned Daphne about her relationship to try to elicit any specific safety concerns. She denied any coercion, saying the relationship was consensual. When Dr Flynn enquired about how the relationship began, she said they had met through mutual friends.

Daphne stated she was considering going ahead with the pregnancy, but Dr Flynn was not entirely convinced of her competence. While Daphne’s mother was supportive and understanding, her view was that the pregnancy should be terminated.

Unsure of his obligations, Dr Flynn telephoned our Medico-legal Advisory Service for immediate advice.

The relevant Victorian legislation – Children, Youth and Families Act 2005 (Vic) – requires a report to be made in circumstances where a child is in need of protection because they have suffered, or are likely to suffer, significant harm as a result of physical injury or sexual abuse, and the child’s parents have not protected them or are unlikely to do so.

While this was not a ‘black and white’ case, given the reference to domestic violence in the records and further information being obtained by the doctor, it was significant that Daphne denied coercion, reported a consensual relationship, and had a supportive mother. Further, it was noted that the relationship had not commenced in circumstances where there was a power imbalance between the two, such as in a teaching or coaching arrangement.

After talking it through, Dr Flynn formed the view that Daphne’s circumstances would not trigger a mandatory report. He concluded that Daphne wasn’t in need of protection as she had not suffered (or was not likely to suffer) significant harm from physical injury or sexual abuse and, significantly, it appeared her mother was taking all reasonable steps to protect her and would continue to do so.

Dr Flynn was advised to confer with the patient’s regular GP at the practice to seek their views, including obtaining further information regarding the domestic violence referenced in the medical records.

As a follow-up, Dr Flynn enquired about his duty of confidentiality to a young person if, in another circumstance, he believed his mandatory reporting obligation did arise. We advised that, while it would depend on the specific circumstances, his duty of confidentiality would be overridden by his duty to report, and he would be protected from liability in this respect. In the interests of preserving the therapeutic relationship, he was advised that it may be prudent to inform the young person and/or their guardian about his obligations.

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