Research findings regarding mandatory reporting of child abuse and sexually transmitted infections
Mandatory Reporting of Child Abuse Requirements in Australia
(From the Australian Institute of Health and Welfare 2000/01)
New South Wales
Since 1977, NSW medical practitioners have been required by law to report suspected cases of physical and sexual abuse and the Children (Care and Protection) Act 1987 mandated teachers, counsellors, social workers and early childhood workers to report cases of suspected sexual assault. In New South Wales, teachers are mandated to report sexual abuse but are also required by the Department of School Education to notify for cases of suspected physical and emotional abuse and neglect. The police and Department of Health workers are also required to report cases of child maltreatment. In 2000, the NSW Parliament proclaimed the Children and Young Persons (Care and Protection) Act. Under this Act the range of professionals working with children who are legally required to report children or young people who are at ‘risk of harm’ (which represents a broadening of the scope of mandatory reporting) has been expanded. They include people who deliver health care, welfare, education, children’s services, residential or law enforcement services to children, including managers and supervisors.
In 1993 the Victorian Government introduced mandatory reporting via legislative changes to the Children and Young Persons Act 1989. As a result Victorian doctors, nurses and police are mandated to report child physical and sexual abuse. Primary and secondary school teachers and principals were mandated to report physical and sexual child abuse, in 1994. While other professionals were identified for inclusion as mandated reporters in a planned third extension of mandatory reporting, this has been postponed indefinitely. As a result of the introduction of mandatory reporting in Victoria, by the end of 1994-1995 reports of child abuse had increased by 58%, and in 1995-96 there was a 91% increase in reports of child abuse (Goddard, Saunders, Stanley & Tucci 2002).
The Health Act 1937 mandates Queensland medical practitioners to report all cases of suspected child maltreatment. School principals are also mandated to report all forms of child abuse and neglect via an Education Queensland policy and teachers are required to report suspected abuse to principals, however this is not legislated. All officers of Family, Youth and Community Care Queensland and employees of licensed care services are required by the Child Protection Act 1999 to report when they suspect harm to children placed in residential care.
In South Australia the Children’s Protection Act 1993 mandates the following persons to notify the Department of Human Services (Family and Youth Services), if they suspect on reasonable grounds that a child is being abused or neglected: medical practitioners, nurses, dentists, pharmacists, psychologists, police, probation officers, social workers, teachers, family day care providers, and employees of, or volunteers in, government departments, agencies or local government or non-government agencies that provide health, welfare, education, childcare or residential services wholly or partly for children.
In Tasmania there are a number of professionals who are mandated to report all suspected cases of child abuse to the Child Protection Board. These professionals are: medical practitioners, registered nurses, probation officers, child welfare officers, school principals, kindergarten teachers, welfare officers appointed under the Alcohol and Drug Dependency Act 1968, guidance officers and psychologists.
Australian Capital Territory
Mandatory reporting was introduced in the ACT in 1997. Those mandated to report child abuse include doctors, dentists, nurses, police officers, teachers, school counsellors, public servants working in the child welfare field and licensed childcare providers. Mandated professionals are required to report if they reasonably suspect that a child or young person has suffered, or is suffering, sexual abuse or non-accidental physical injury (physical abuse).
In the Northern Territory it is mandatory for any person who suspects that a child is or has been abused or neglected (any form of maltreatment) to report their belief to a Family and Children’s Services office or police station.
Western Australia is the only state in Australia that has not introduced mandatory reporting of child abuse. Instead, as Goddard notes ‘as a consequence perhaps of the voluntary reporting system, more attention appears to be paid to procedures for specific disciplines’ (Goddard 1996: 100). That is, referrals to child protection services about possible harm to children are facilitated by a series of reciprocal protocols which are negotiated between government and non-government agencies. Although the rate of substantiated child abuse has been increasing since 1995/96, from 1.7 cases per 1,000 children, to 2.5 cases per 1,000 children in 2000/01, Western Australia still had the second-lowest rate of substantiated child abuse (AIHW 2002). However, because of differences between the way the various Australian jurisdictions count notifications (reports) of child abuse, it is no longer possible to directly compare the States or to create national statistics (AIHW 2002).
Child protection statistics
Western Australia is the state with the most radical approach to managing child protection reports. In 1995, Western Australia set up a new differentiated model of intake, where a report was classified as either a generic ‘child concern report’ (requiring a more generic, ‘problem solving’ approach) or as a ‘child maltreatment allegation’ (Tomison 1996b). Regardless of the ‘stream’ into which the report is initially designated, the intention of the model is that all reported children would undergo a full risk and needs assessment and would then receive professional supports, where necessary. However, only the ‘child maltreatment allegations’ are counted as child protection reports. Thus, one of the changes resulting from policy change was initially, a substantial drop in the number of reports recorded across the State. (See Tomison 1996b for a more detailed discussion of this issue). More recently, Parton and Mathews (2001) reported that the total number of reports received by the Department post-implementation of this new policy (‘child concerns’ and ‘child maltreatment concerns’), approximated the total number of reports pre-implementation. This was taken as an indication that reporting practice had not been negatively affected by the new approach, although this explanation may not take into account the subsequent increase in substantiated cases since 1995. (That is, the closure of the ‘gap’ may be due to increases in actual abuse, rather than demonstrating that the new policy had no impact).
Mandatory Reporting – the costs and benefits
There have been many arguments both in favour of, and against, the introduction of mandatory reporting laws for child abuse. Those who support mandatory reporting suggest that children ‘have the right to be protected’, that it ‘makes a public commitment to child protection’ and increases the general public’s awareness of child abuse (Goddard 1994: 6). Those in favour also suggest that mandatory reporting assists in establishing the true nature and incidence of child abuse (Goddard 1994). It has been suggested that professionals generally have a reluctance to ‘break well-entrenched and long established habits of professional confidence’ and have an ‘unwillingness to become involved in legal proceedings, which may expose them to professional discipline and criticism by their peers’, factors which may contribute to a disinclination to report (Quinton 1991: 5). Legislation can overcome this reluctance to become personally involved by imposing a public duty to do so. Indeed, mandatory reporting laws have been said to provide safeguards for professionals involved in cases of child abuse and serve to protect relationships with parents because professionals can explain that they are compelled to report. However, in reality very few people are ever prosecuted for not reporting child abuse, even if mandated (Goddard, Saunders, Stanley & Tucci 2002). In contrast, arguments against mandatory reporting suggest that such laws may: drive families underground and discourage them from seeking help for fear of being reported to ‘the Welfare’; remove discretion from workers who are in a sensitive position; and, be used by governments as a cheap substitute for services for prevention (Goddard 1994). What has been apparent since the 1990s, however, is that mandatory reporting substantially increases the number of reported cases of child abuse (Quinton 1991; Tomison 1996b). This increase in reports has often resulted in system overload for child protection services, with a resultant failure to adequately assess and support those families most in need. This leads to a need for greater resources and often produces a raising of the child protection ‘threshold for intervention’. That is, stricter gate-keeping is employed to ensure that only those most in need are accepted for investigation and case management. For example, a recent Victorian study (Goddard et al. 2002: 13) found that in response to mandatory reporting requirements, ‘statutory child protection services appear to have responded by steadily restricting the criteria which trigger a protection’. In addition, in order for mandatory reporting to be effective it would seem important for mandated professionals to be aware of their responsibilities. However, a Victorian study found that 19% of a sample of community professionals did not correctly identify their obligations to report cases of child abuse, and 29% of community professionals in the sample were misinformed or uncertain about their obligations to report cases of child abuse under Victorian law (Goddard et al. 2002). Further, few professionals found the decision about whether or not to report a child to be straightforward, 63% finding this decision to be difficult or complex. Being a mandated professional did not make the reporting decision any easier. For many, the decision was based on a range of factors which included expectations about the outcome for the child, factors relating to the child’s family, such as cultural factors and fear of parental response, and factors associated with the professional’s work (Goddard et al. 2002).
Mandatory Reporting of Sexually Transmitted Diseases and Child Sexual Abuse
The West Australian Coroner presiding over the inquiry into the death of Susan Taylor stated that: ‘in my view in every case where a young person has been infected with a sexually transmitted disease there should be mandatory reporting by medical practitioners and other health workers to the Department of Community Development and the Police Service and statistics should be maintained as to the outcome of any investigations’. This comment was made following disturbing evidence presented at the Coroner’s Inquiry by Dr Sandra Thompson, Medical Co-ordinator of the Sexual Health Centre of the Western Australia Department of Health. Her evidence, and a background paper that was submitted to the Inquiry by the Sexual Health Centre (SHC unpublished), offers detailed insight into the WA guidelines for the reporting of Sexually Transmitted Infections (STI) in young people. It states that ‘at present health care professionals are not mandated to report signs or suspicions of child abuse to child protection authorities’ (SHCunpublished). It also states that the Department of Health has a set of Guidelines for the Management of STI’s including a section on appropriate actions when a child is diagnosed with an STI. It states that ‘based upon reasonable suspicion, Health Care Professionals (HCP) should report cases to the Department of Community Development for investigation and action as necessary’, however, there is no legal obligation for a health care professional to do so (SHC unpublished). Unlike some other countries, such as the United States, which has had legislation for the mandatory reporting of sexually transmitted infections in minors across every state for more than 30 years (Baker 1978), Australia has no legal requirement to report STIs. However, the mandatory requirement of medical practitioners to report child abuse and neglect in every state except WA, does provide a ‘fallback’ position for the protection of children with STI’s in these states. This fallback position, of course, relies on the assumption that medical practitioners will make the connection between sexual assault and STI’s in minors. Thus, by not having mandatory reporting of child abuse and neglect, there is a greater risk in WA that those children who have been sexually assaulted and have contracted a STI, may remain unprotected. The ‘Sexual Health Centre Background Paper’ does offer some arguments in favour of mandatory reporting of STIs. These include the fact that it would send a clear message that the state does not condone child sexual abuse, and more cases of abuse would be uncovered and interventions made to protect children. However, more detailed discussion in the Paper is directed towards the reasons against introducing mandatory reporting of STIs. These reasons include the fact that ‘there are other physical and/or medical presentations which may also signal sexual abuse, including pregnancy in a minor . . . as both live births and terminations of pregnancy in children under the age of 16 are indicators of carnal knowledge and potential sexual abuse’ (SHC unpublished). The Background paper also warns, that ‘we would not want legislation that discourages individuals from being tested for an STI. This would seem to be a risk with linking STI diagnosis with mandatory reporting’ (SHC unpublished). It also suggests that the introduction of mandatory reporting would undermine current practices where, if a child who presents to a health care professional is considered mature enough to accept or decline treatment, they may do so without fear of the matter being taken further. At present a Health Care Professional must seek the child’s consent before disclosing abuse or suspected abuse to a third party, which may be the police, or the Department of Community Development. The Paper also raises the issue that ‘if reporting were to be mandated up to a certain age, an appropriate age for the use of discretion by the medical practitioner would need to be determined. At what age should the presence of an STI prompt a suspicion of sexual abuse?’ (SHC unpublished). Finally, some concern is expressed regarding the introduction of mandatory reporting in WA, based on the experiences of other states, where ‘mandatory reporting (not just upon diagnosis of an STI) leads to an increased concentration on forensic aspects of case work which alienates the reporting professionals and the child’s family, reducing trust and engagement with services’ (see above). Overall, it is clear that a number of issues would need to be resolved prior to the introduction of mandatory reporting, however in the opinion of the authors of this brief, these do not provide a compelling case for not reporting. It is important to remember that in such situations where a child is being abused, a criminal offence is being committed, from which a child has the right to be protected. All adults, whether they are mandated to report or not, have a moral obligation to ensure that the most vulnerable members of our society who have been subject to violence, are given the assistance and protection they deserve. The introduction of mandatory reporting of STI legislation would send this message to the community and provide better information on the scope and nature of the children’s sexual contact and sexual assault in West Australian communities.
The mandatory reporting of Sexually Transmitted Diseases and its effect on Aboriginal Communities
The ‘Sexual Health Centre Background’ paper states that the rates of STI are high across all Aboriginal age groups, including minors. At the Coroners Inquiry into the death of Susan Taylor it was suggested by Dr Thompson that the gonorrhoea rate in 10-14 year olds is a rate approximately 186:1 for Aboriginal to Non-Aboriginal notifications (Hope 2001). She also stated that the rates of Chlamydia in the same age group is 124:1 (Hope 2001). Submissions to the Fitzgerald Inquiry (2001) stated that ‘girls as young as seven or eight are now being diagnosed with sexually transmitted diseases’ (2001: 20). It is therefore suggested that the impact of introducing mandatory reporting of STI’s ‘will impact proportionately more heavily on Aboriginal Communities. The higher rate of STI in Aboriginal minors is an indication that sexual activity – consensual and non-consensual – is more frequent in young Aboriginal people in some communities’ (Sexual Health Centre unpublished). Given the high rates of STI’s in Aboriginal Communities, the introduction of mandatory reporting of STI’s has the potential to benefit Aboriginal children in particular. However the Centre also warns that ‘if reporting of STI in children were to be made mandatory, professionals currently aware of abuse and likely to begin reporting would be those in culturally and/or geographically remote areas where a nurse or Aboriginal Health Worker is the primary health provider’ (SHC unpublished). It suggests that this would be problematic as ‘those professionals in remote areas may find that although they report suspected abuse, the services are not in place to investigate and protect the child. In addition, health care professionals in remote communities themselves may be ostracised and/or endangered’ (SHC unpublished). While the failure to have an effective professional support system in place is cause for concern, and may lead to negative outcomes for the children, families and professionals involved, detailed consideration is required before a decision is taken to oppose the introduction of mandatory STI reporting. The failure to introduce mandatory reporting may send the community the message that government is not concerned with the high rate of sexual abuse and STI’s. Further, consideration needs to be given to the harms that may be caused by the failure to report, in conjunction with a failure to take action, or to work to provide sex education or to prevent sexual assault. Mandatory reporting would highlight the nature and size of the problem (especially in Aboriginal communities) and may be a vehicle to increase funding for support and investigative services in these areas, rather than merely sending services into crisis.