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Legal focus - Know your obligations

Failing to report concerns regarding children and vulnerable persons is now a criminal offence. Edward Mathews discusses how this relates to nurses and midwives

It has long been recognised as an essential part of nurse and midwife’s practice that a duty exists to ensure the safety and dignity of those for whom they care. Existing policies and procedures in the health services include within this duty the mandatory reporting of concerns regarding the abuse of children and vulnerable persons. In addition to these professional obligations, there now exist criminal offences in this area by virtue of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012.

This is a relatively short piece of legislation that came into force on August 1, 2012 and provides, in connection with children and vulnerable adults, for offences of withholding information relating to the commission of certain arrestable offences; the Act applies to all persons. For the purposes of this Act, an arrestable offence is one for which a person of full capacity and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence.

A child in this context is a person under the age of 18, and a vulnerable person means either a person who is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person.

A vulnerable person may also be one who is suffering from an enduring physical impairment or injury, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person or to report such exploitation or abuse to the Garda Síochána, or both.

The Act creates two offences, Section 2 creates an offence of withholding information on certain offences against children, and Section 3 creates an identical offence save that it applies to information concerning offences against vulnerable persons.

The offences arise where one knows or believes that a relevant offence has been committed, and one has information that one knows or believes would be of material assistance in the apprehension, prosecution or conviction of a person who committed such an offence, and one fails without reasonable excuse to disclose that information to a member of the Gardaí. In this sense, liability arises not upon mere suspicion that an offence has been committed, rather one must at least believe it has been and one must in addition have material information to assist the Gardaí in the apprehension and prosecution of the offender.

The ranges of offences in relation to which one may have information, and which create the obligation to disclose the information to the Gardaí, differ in respect of children and vulnerable adults. In respect of children, there are 19 different offences including: rape, sexual assault, incest by a male or female, false imprisonment, child sexual abuse, assault, endangerment, abduction, child trafficking, child pornography, cruelty, and female genital mutilation, among others. In respect of adults, the relevant offences include rape, sexual assault, incest, trafficking and assault.

The duty to disclose information in relation to the foregoing sexual offences arises whether they occurred in this jurisdiction or not. In addition, it should be noted that liability under the Act arises where the information comes to one’s attention after the Act enters into force, ie. post August 2012, irrespective of when the offence was committed – either before or after that date.

If convicted for failing to disclose information, the penalty on conviction in the District Court is a maximum fine of €5,000 and/or 12 months imprisonment. Where convicted on indictment, ie. in a higher court, the penalty imposed is variable depending on what the maximum penalty would be for the person who committed the underlying offence, and the penalties range from three to 10 years’ imprisonment.

There are a number of defences which may be available to a person, including a nurse or midwife, who fails to disclose information in relation to such an offence. The first arises where the child is over 14 years, or they are a vulnerable adult, and they have expressed a view that they do not want the offence disclosed, and the person relies on that view and does not report the matter to the Gardaí. This defence will only apply where the child over the age of 14 was capable of forming a view as to reporting the matter, and similar provisions apply in relation to vulnerable adults. Where a child is under the age of 14, their own view on reporting will not amount to a defence.

Another important defence arises where a parent or guardian makes known their own view, or a view on behalf of a child or vulnerable person, that the matter should not be reported, where they are acting in the best interests of the child or vulnerable person, and the alleged perpetrator is not a family member. Where the alleged perpetrator is a member of the family, a person will have a defence for failing to disclose where a designated professional has made known a view, on behalf of the child or vulnerable person, that the offence should not be disclosed.

Furthermore and importantly, where a member of a designated profession, including nursing and midwifery, who is treating a child or vulnerable person for the harm arising from the alleged offence has reasonable grounds for forming a view that the matter concerned should not be reported for the purposes of protecting the health and wellbeing of that child or vulnerable person, and they act in the manner expected of their profession, then they will have a defence under the Act. In addition, the Act makes special provision, in similar terms to those relating to nurses and midwives, for persons working with organisations that are recognised by the Minister as providing services to these persons.

Key points
The key points that emerge from the Act, and which have the potential to impinge upon the practice of nurses and midwives, are:

  • If you know or believe any of the listed offences have been committed, and you have information which may assist the Gardaí in the apprehension and prosecution of the alleged perpetrator, then you have a duty to disclose this information
  • 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
  • The range of offences where this obligation arises is wide and covers all forms of sexual offence or abuse, trafficking, assault, and other exploitative offences
  • You may have a defence where your failure to report results from a wish expressed by a child over 14 or a vulnerable person who has capacity that the matter not be reported, similarly such views may be expressed on behalf of another by a parent or guardian
  • Specifically, nurses and midwives who are caring for persons in relation to the injury or harm arising from the alleged offence, and where they form the view in the best interest of the health and wellbeing 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.

The Act places onerous obligations on all persons to ensure that information relating to the commission of serious offences against children and vulnerable persons does not go undisclosed. This is an important obligation, and one which should be in the mind of nurses and midwives in the context of their day to day practice. Accordingly, one should be mindful that the obligations under this Act are not displaced by the reporting obligations that exist within the health services currently.

Thus, while in many circumstances the workplace reporting of information in relation to abuse, which amounts to one of the offences mentioned, may be sufficient, it is still important that where the nurse or midwife has information of the type described above, then they must assure themselves that some professional in the chain of care has reported the matter to the Gardaí, unless one of the exceptional circumstances militating against reporting exists.

Legal focus - Know your obligations


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