Dr Thomas McCaffrey, Associate Dentolegal Adviser at Dental Protection, reviews the new legislation on reporting harm to a child and outlines your responsibilities as practitioners

Everyone who deals with children is responsible for safeguarding children and dentists play a crucial role in protecting children from abuse and neglect.

What is new?

The Children First Act 2015 was enacted in November 2015 and came fully into effect in December 2017. The Act places a number of statutory obligations on specific groups of professionals and on particular organisations providing services to children.

In particular it places a legal obligation on certain people, (“mandated persons”), to report child protection concerns at or above a defined threshold to Tusla – the Child and Family Agency. These “mandated persons” must also assist Tusla, on request, in its assessment of child protection concerns about children who have been the subject of a mandated report. As healthcare professionals, dentists are mandated persons in relation to the Children First Act.

Your responsibilities to disclose information as a dental practitioner

Section 14(1) of the Children First Act 2015 came into force on 11 December 2017. Since that date “mandated persons”, including registered medical and dental practitioners, are under a duty to report harm to a child over a certain threshold to Tusla.

Section 14(1) states:
“Subject to subsections (3), (4), (5), (6) and (7), where a mandated person knows, believes or has reasonable grounds to suspect, on the basis of information that he or she has received, acquired or becomes aware of in the course of his or her employment or profession as such a mandated person, that a child:
(a) has been harmed,
(b) is being harmed, or
(c) is at risk of being harmed,

he or she shall, as soon as practicable, report that knowledge, belief or suspicion, as the case may be, to the Agency.”

“Harm” includes sexual abuse which itself is specifically defined. It includes rape, sexual assault and defilement (sexual activity) of a child. This is not an exhaustive definition.

There are several issues which may trigger the threshold to make a mandatory report and these include:
• neglect
• emotional abuse/ ill-treatment
• physical abuse
• sexual abuse.

If you are unsure whether your concern reaches the legal definition of harm for making a mandated report, you can discuss the concern with a Tusla social worker. However, the ultimate responsibility for making the decision rests with you as a mandated person under the Act.

For the mandatory reporting obligation to arise, the information must come into the possession of the dentist “in the course of his or her employment or profession as such a mandated person”.

You should also bear in mind that the requirement to report suspected child abuse is also a professional obligation on a dentist in accordance with the Dental Council’s Code of Practice Relating to Professional Behaviour and Ethical Conduct where the victim is a patient of the dentist.

However, there may still be an obligation under the act to report information obtained outside of your role as a dentist.

Reporting information outside your role as a dentist

The Children First Act 2015 is accompanied by an excellent guidance document published by Tusla entitled ‘Children First National Guidance for the Protection and Welfare of Children’. This guide states:

“The legal obligation to report under the Act applies only to information that you acquire in the course of your professional work or employment. It does not apply to information you require outside your work, or information given to you on the basis of a personal rather than a professional relationship. While the legal obligation to report only arises for employment or professional duties, you should comply with the requirement of this Guidance to report all reasonable concerns to Tusla.”

Finally, you should consider whether you have a duty to report the concerns about abuse to An Garda Síochána under Section 2 of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable) Act 2012iii. Section 2(1) states:

“A person shall be guilty of an offence if: 
(a) he or she knows or believes that an offence, that is a Schedule 1 offence, has been committed by another person against a child, and
(b) he or she has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.”

Section 1 of the 2012 Act lists out a number of offences including rape, sexual assault, defilement (for example, sexual activity) of a child.

It should also be noted that a person reporting suspected child abuse to designated officers of Tusla, the HSE or members of An Garda Síochána is protected under the Protection of Persons Reporting Child Abuse Act 1998 provided the report is made in good faith and is not malicious.

In summary

Everyone who deals with children is responsible for safeguarding children. Sharing information is important – it can ensure children get the help that they need.