Issue 8 / 11 March 2013

“A PROFESSIONAL violinist killed herself after giving evidence at the trial of her former music teacher, who was found guilty of five counts of indecent assault on Friday”, began the sombre report in The Guardian, which was published as I began writing this article.

The sad story highlights the deeply personal fabric of child sexual abuse, which may challenge doctors and lawyers called upon to support individuals involved in the recently announced Royal Commission into Institutional Responses to Child Sexual Abuse.

The inevitable media attention and public discussion regarding the Royal Commission may lead to some patients disclosing past abuse to their doctors.

Legislation mandating the reporting of child sexual abuse has been part of medical practice for some years. In NSW for example, health care workers who, as part of their work, have reasonable grounds to suspect that a child is at risk of significant harm must report the name of the child and the grounds of the suspicion to the Director-General of the Department of Family and Community Services.

The NSW legislation does not appear to require a report if the person is no longer a child, defined as under the age of 16 years. However, if the disclosure indicates that the abuse affects others who are children, an obligation to report may arise.

Disciplinary proceedings have arisen previously as a result of failures to report or delays in making reports, such as in one NSW Supreme Court, which involved a finding of professional misconduct against a psychologist who failed to report after a man revealed during treatment he had engaged in inappropriate touching and sexual thoughts about a child.

Some submissions regarding the scope of the terms of reference of the Royal Commission suggested that a mandatory reporting framework, similar to that which now applies to doctors, should apply to members of churches and other institutions. That possibility appears to have been accepted and features prominently in the second term of reference, which asks the Commissioners to inquire into what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts.

A similar Royal Commission in Ireland took many years to complete its work and produced a 2600-page final report. Guidelines later developed from the report included reporting to be reinforced by legislation confirmed at a referendum in November last year.

A hearings schedule for the Royal Commission in Australia is yet to be announced.

In the meantime, the strongest reporting pathway is that required of health care workers, along with those involved in welfare, education, children’s services, residential services, or law enforcement.

Doctors may have to consider these reporting obligations if patients do raise issues of past abuse when the Royal Commission hearings start.

Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.

Posted 11 March 2013

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