The Children First Act 2015

Antonia Melvin

by Antonia Melvin, Solicitor
O’Connor Solicitors
Medisec Panel Solicitors

 

How the impending children first act 2015 will impact general practice, and what you can do to prepare for these changes.

The Children First Act 2015 was introduced by the Minister for Children and Youth Affairs as part of a programme for change which involved a suite of child protection legislation to include the National Vetting Bureau (Children and Vulnerable Persons) Act, 2012and the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012. Together this legislation is intended to copper fasten the State’s commitment to the protection of children.

The purpose of the bill was to put parts of the Children First: National Guidance for the Protection and Welfare of Children (2011) on a legislative footing and the new legislation will operate in tandem with those guidelines. Importantly, the existing 2011 Guidelines are being revised and updated to reflect the new legislative obligations and processes and to provide clarity and ensure consistency between them.

At present, only a small number of the Act’s sections have been commenced, including section 28 which deals with the abolition of the Defence of Reasonable Chastisement detailed below. However, the parts of the act most relevant to GPs are unlikely to commence until the guidelines are fully updated and we at Medisec will inform you as soon as this happens.

The key child protection measures in the Act are:

  • A requirement for mandated persons (including GPs) to report child protection concerns to the Child and Family Agency/Tusla.
  • A requirement for mandated persons to assist Tusla with their investigations, if requested.
  • A requirement for organisations providing services to children (including GP practices) to carry out a risk assessment and to formulate a Child Safeguarding Statement (see below).
  • Children First Interdepartmental Group put on a statutory footing.
  • The abolition of the Defence of Reasonable Chastisement.

 

Abolition of the Defence of Reasonable Chastisement

The Act amends the Non-Fatal Offences Against the Person Act 1997 by abolishing the Common law defence of reasonable chastisement, which was the last remaining defence to slapping a child. This was previously abolished with regard to schools but had not been extended to parents until now. It raises children’s rights to equal protection under the law as adults.

 

Mandatory Reporting

The Act provides for mandatory reporting of child protection concerns to Tusla for 28 designated categories of persons who are deemed to be Mandated Persons. This includes medical practitioners, nurses, physiotherapists, social workers and teachers. The focus is on individuals who routinely deal with children, and where their training, qualifications and professional experience make them well equipped to recognise risks to children, resulting in improved quality and consistency of reports received by Tusla.

Reporting:

  • A mandated person (MP) must report past harm, present harm or risk of harm to children as soon as possible to Tusla.
  • Harm means assault, ill-treatment, sexual abuse or neglect of a child in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare.
  • A report may be based on knowledge, belief or reasonable grounds for suspicion.
  • Applies only to information received by a MP in the course of their employment.
  • The information may have been received as a result of disclosure by a child.
  • The Act is retrospective as to harm but prospective as to when the information was received.
  • Reports are made to ‘authorised persons’ within Tusla; who are designated officers within the meaning of the Protection for Persons Reporting Child Abuse Act 1998.
  • Reports should be made on the prescribed form – (These are being updated at present).
  • In cases of emergency, reports can be made without a form but a form must be completed within three days of making the report.
  • Reports can be made jointly with another person.
  • While we await the specific guidelines, it is anticipated that best practice continues to be that a GP informs parents of the intended reporting in advance, unless this could result in further harm to the child.

Exceptions:

  • Section 14(3) of The Children First Act 2015provides for exceptions relating to sexual activity of older teenagers. Reporting is not required where a child is sexually active between the ages of 15 and 17 and the other party is no more than 2 years older than them and where the mandatory person believes that there is no material difference in capacity or maturity between the parties and the sexual activity is not intimidatory or exploitative of either party. To allow you to make an honest clinical assessment, this will necessitate a thorough consultation with the minor patient. We will need to await the guidelines but it would appear from the Act if you are faced with a sexually active 14 year old seeking contraception, you have an obligation to report. This provides a helpful legislative position in what is a difficult yet common scenario in general practice involving minors seeking contraceptive advice and treatment. A motivating factor for this section is to ensure that children are not deterred from going to GPs and pregnancy services for advice because of a fear of being reported.

  • Reporting is not required regarding second-hand information received from another MP who has already made a report. It remains to be seen if the guidelines will address whether a verbal confirmation or otherwise from another MP (such as from another GP in a practice) that a report has been made will suffice.

Sanctions:

  • There are no sanctions for MPs who fail to report, however, medical practitioners should be aware that a failure to report could give rise to employment disciplinary sanctions or complaints to and initiation of Fitness to Practice procedures by the Medical Council. It is therefore imperative that you act in full compliance with the Act and Guidelines when introduced. If uncertain, you can seek guidance from Medisec.
  • Any MP making a report will receive an acknowledgement from Tusla noting the date of the report. You shoud retain this as proof of a report made.

Post Report Obligations:

  • MPs must assist Tusla promptly with investigations, if requested. This may involve providing information, reports, documents or attendance at meetings. This may give rise to legitimate concerns about further demands on your limited time and resources and it will be important to monitor the manner in which this part of the Act is operated.

Protection to MPs

  • MPs cannot be sued on the basis of information given to Tusla upon request and it cannot be used in evidence against them in civil or criminal proceedings.

Duty to Keep Information Confidential

  • Any person who receives information from Tusla in the course of an investigation of a report shall not disclose that information to a 3rd party unless authorised in writing by Tusla. Doctors in larger practices must bear this in mind and will be obliged to seek authorisation to inform others within the practice if patients are seen by different doctors.
  • Disclosure constitutes a criminal offence punishable by a fine and/or up to 6 months in prison and can apply to a body corporate where senior members can be held liable.
  • It is advisable that employee confidentiality agreements within a GP practice specifically refer to information from Tulsa and the fact that unauthorised disclosure of such information constitutes a criminal offence.

 

Obligations on Organisations:

GP practice, as a designated “organisation” providing “relevant health services” to children and young people will be required to:

  • Undertake an assessment of any risks to a child while the child is availing of its services.
  • Use this as the basis for developing a Child Safeguarding Statement (CSS) which will outline the policies and procedures in place to manage the risk of harm to children whilst they are availing of the organisation’s services.
  • Appoint a relevant person to be the first point of contact in respect of the organisation’s CSS.
  • Review the CSS every 24 months, or after any material change in what it relates to.

Other existing statutory obligations relevant to the protection of children, such as the requirement to obtain Garda vetting of staff engaged in activities related to children, will continue in parallel.

Organisations will have three months after the relevant sections of the Act are commenced to comply with the obligations. The Act provides that the Child Safeguarding Statements (CSS) must be in accordance with guidelines issued by the Minister and Tusla. As already mentioned, these guidelines are being updated and will likely include guidance regarding the form and content of Child Safeguarding Statements (CSS). Once the relevant guidelines are implemented, Medisec will give you more advice around drafting child safety statements and other practical steps to help you comply with the legislation. If you have any queries about the impact of the legislation on your practice, please contact Medisec.

At the moment, we know that Child Safeguarding Statements (CSS) must assess the risk and specify the procedures in place for:

  • Managing identified risks
  • Dealing with allegations against staff
  • Recruitment of suitable staff
  • Reporting welfare and abuse concerns to Tusla
  • Providing child protection information, instruction and training to staff
  • Listing mandated persons within the practice
  • Appointment of a relevant person

The CSS must be provided to staff and must be given to parents, members of the public and Tusla if requested. The Act establishes a Register of Non Compliance for organisations which fail to provide Tusla with a Child Safeguarding Statement (CSS) when requested and this register will be open for public inspection.

 

To conclude:

While the true impact of this Act will, to a large extent, depend on the quality of resources provided in response to reports made to Tusla, the provisions of the Act provide a clear and public statement; that child abuse is something that society will no longer tolerate, and that people who work with children know they have a voice.

In the words of Kofi Anan:

“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”

For now, medical practitioners should be aware that The Children First Act 2015 is being implemented, all be it on a piecemeal basis, and that as a result there will be fundamental changes in the law concerning the protection and welfare of children. This will impact on General Practice, and Medisec will work with you to prepare for these changes.

The contents of this article are indicative of current developments and contain guidance on general medico legal queries. It does not constitute and should not be relied upon as definitive legal, clinical or other advice and if you have any specific queries, please contact Medisec for advice. This article appeared originally in our Spring 2016 newsletter which can be found here:
https://medisec.ie/clipart/Newsletter/medisec_newsletter_spring_2016.pdf


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