Mandatory Reporting of Child Sexual Abuse

A Report by Brian Howlett on the IAHIP Information Day held on 23 March 1996

These are personal reflections on a well-attended Information and Dis­cussion Day held on 23 March 1996 for members of the Irish Association for Humanistic and Integrative Psychotherapy (IAHIP). The event was chaired by Barbara Fitzgerald, the new Chairperson of IAHIP, and had been arranged so that IAHIP psychotherapists could be consulted on what response, if any, IAHIP should make to Putting Children First, the Government’s Discussion Document on the mandatory reporting of child abuse, published in February 1996. The day included the provision of information from social work and legal specialists (Kieran McGrath and John Collins respectively), small group discussions on the main questions and issues that the topic raises for psychotherapists, reports and recommenda­tions from those small groups and some general conclusions and agreement for further action.

By the end of a very useful and productive day, my personal reckoning is that general agreement had been given as follows:

1. The IAHIP would submit a response to the Department of Health on Putting Children First. A small committee from among those present was appointed to prepare and submit that response.
2. That, at least for the present, the response would confine itself to current child sexual abuse and would endeavour to reflect such views from the group reports as had enjoyed a reasonable degree of consensus.
3. That whether or not mandatory reporting is introduced, psychotherapists within IAHIP are bound by their own Code of Ethics to put the protection of children currently at risk above all other considerations and interests.
4. That IAHIP would want to support any childcare system that is able to protect children, facilitate rehabilitation and minimise or reduce future abuse. If mandatory reporting is the best way to support such a childcare system, then IAHIP would endorse its introduction.
5. That mandatory reporting should not be introduced unless all appro­priate childcare services are properly in place and in a position to act effectively, not only in immediate investigative work but also in the pro­vision of on-going support and therapeutic services for child victims, perpetrators and the families affected.
6. That IAHIP would want the profession of psychotherapy to be of one mind on this subject and on the role of psychotherapists in whatever statutory provisions are made for the care of children. To this end, the Irish Council for Psychotherapy (ICP) will be consulted before the IAHIP response is submitted and consideration will also be given to the need, whether or not mandatory reporting is introduced, of establishing guidelines and advice facilities for psychotherapists generally who are faced in their work with the question of reporting actual or suspected child sexual abuse.

As a practitioner with limited professional experience of working with minors, and no experience with clients reporting current sexual abuse, the day was a remarkable eye-opener for me. While I was aware of the enormity of the problem of child abuse, particularly sexual abuse, I had not apprec­iated how complex and difficult are the problems it poses, in regard to reporting, for professionals working in the field of childcare, particularly for those in psychotherapeutic and counselling services. It may be of help to readers, and a stimulus to further debate in the pages of Inside Out, if I outline a few of the issues that people had to face on that Information Day. In fairness to the authors of the Government’s Discussion Document, they too acknowledged in their document the existence of issues such as these and they did so, I believe, in a very fair and open-minded way. The issues that follow are my own selection from those that arose at the Information Day, and I alone am responsible for the opinions and comments that go with them.

1. Could mandatory reporting undermine the aims of psychotherapy and counselling, prevent victims or others from seeking therapeutic help and thus drive the problem of child sexual abuse further underground?

So strongly are the concepts of trust and confidentiality held as indispens­able elements in the therapeutic relationship that any putting aside of them must be on grounds that demonstrably outweigh the potential loss of these therapeutic values. Those who fear to report should recall that the IAHIP code of ethics already requires reporting where, if the psychotherapist does not report, a child or other children would be left in further danger of sexual abuse. This ethical stance gives the psychotherapist freedom and discretion to consider with the client, assuming the client to be the victim, (or, as the case may be, with parents/guardians) how, when and by whom reporting should take place. For many clients, revealing sex abuse to the therapist may be the first step on a vital path towards acknowledging what has happened to them and retaking ownership of their lives and responsibility for dismant­ling the secrecy and concealment that can be so endemic to sexual abuse. The real danger for the client-therapist relationship would be a mandatory reporting code that left the therapist with no such scope for the sensitive management of reporting.

Another danger associated with mandatory reporting, and one that would certainly drive sex abuse problems underground, is that of a code that might put more emphasis on punishment than on cure. I believe in a childcare system that, subject to the protection of children at risk, will bend all its energies into rehabilitating the perpetrator, achieved, if at all possible, outside the legal system. Where it is necessary to prosecute, then I would like to see introduced – as I would also for other family law actions – a non-adversarial system of legal proceedings.

It is also probably true to say that the Kilkenny Incest case, heard in early 1993, and the subsequent Investigation headed by Judge Catherine McGuinness, along with the many well-publicised cases of clerical sexual abuse of children and the recent Report of the Irish Catholic Bishops’ Advisory Committee on Child Sexual Abuse by Priests and Religious will have done much to gain public acceptance of the idea of a legal obligation being imposed on professionals – and perhaps on citizens too – to report child sexual abuse. The statistics for the reporting of child abuse (including sexual abuse), all done in the absence of a mandatory code, speak for themselves: in 1984 the total number of cases reported to Health Boards amounted to just under 550; by 1994 that figure had grown to over 4,600, the major increases having started in 1988, just after the Department of Health had published its Child Abuse Guidelines, providing guidance generally for personnel working with children, and particularly for Health and Social Service agencies, on the identification, investigation and management of child abuse.

2. If mandatory reporting is introduced, will psychotherapists and counsellors be included among the ‘designated professionals’ obliged to report? Which is in the better interests of our profession – to be included or not to be?

There have been two major reports in Ireland on child sexual abuse, the Law Reform Commission Report (1990) and the Report of the Kilkenny Incest Investigation Team (1993). While both reports recommended manda­tory reporting, they differed, inter alia, on who should be covered by the legal obligation to report. Neither of them, however, specifically named psychotherapists and counsellors as people to be mandated. In most countries where mandated reporters have been listed, the list includes men­tal health professionals such as psychologists, therapists and counsellors. It seems likely, therefore, that if mandatory reporting is introduced, those mandated to report, i.e. designated professionals, will include psycho­therapists and counsellors.

Will that be in the better interests of the profession and the clients we serve? It can be argued that since our code of ethics already obliges us to report where we become aware of children currently at risk of sexual abuse, there is no need to bind us to a mandatory code, particularly if such a code were crude or simplistic in its application. By that I mean a code that might require automatic reporting, whether or not the abuse had already been reported, whether or not a prosecution had already taken place and/or adequate remedial action had already been taken to prevent further abuse; or whether there were circumstances in which a report would not be in the child’s best interests.

On the other hand, it can be argued that psychotherapists and counsellors would be better protected if reporting were mandatory. There would be much greater legal protection against charges of breach of confidentiality or defamation. We would be freer to report risks affecting non-clients, to whom (strictly speaking) we do not owe a ‘duty of care’. Our task would be made simpler in cases where clients are resistant to a report being made or are reluctant to take on reporting responsibilities themselves.

The overriding consideration on the question of reporting is the protec­tion of children at risk. Whether members of our profession should act from within a self-regulated voluntary code or out of legal obligation depends on how sensitive a mandatory code can be to the complex and varied needs of victims and perpetrators.

3. Are there alternatives to mandatory reporting?

From what emerged at the Information Day, it appears that there are. While a number of European countries, including France and Italy, do have mandatory reporting systems in operation, others – notably the Netherlands, Belgium and Germany – have voluntary reporting systems in place. In the Netherlands there exists a Bureau of Confidential Doctors, and anyone suspecting that a child is being abused can contact them for advice on how to handle the situation or to refer the case to professionals, whereupon the confidential doctor verifies the request and organises the most adequate assistance among existing services. In the UK, there is as yet no system of mandatory reporting. In 1985 an interdepartmental working party in England came out strongly against any proposal for a compulsory reporting law on the grounds that it would be counterproductive and would increase the risks to children overall, first by weakening the sense of personal responsibility among professionals and secondly by casting the shadow of mere automatic reporting over their work.

It is a pity that the Childcare Policy Unit in our Department of Health, who produced the discussion document Putting Children First, have not been able as yet to provide any evaluation of the non-mandatory reporting systems that operate in other countries, and I hope that such information might become available before final decisions are made about mandatory reporting in Ireland. The Childcare Policy Unit have provided detailed information about the impact that mandatory reporting has had in the USA. Among the criticisms of it that should receive careful attention here before final decisions are made are the following:

– Mandatory reporting has led to an explosion in child abuse reports. However, the increase in the number of reported cases has not been matched by a commensurate increase in the number of substantiated cases. The number of unsubstantiated cases has risen from 35% in 1976 to 65% in 1992.

– Many critics feel that the increase in the volume of reports has resulted in
the child protection system becoming ‘swamped’ to the extent that it is now
in danger of collapse.

– It is argued that a disproportionate share of resources is being spent on investigations rather than on services for children and their families. The majority of cases investigated by child protection agencies receive no additional services.

– Insufficient funding has been provided for the training of mandated reporters and for putting in place the infrastructure for providing the follow-up to reports of abuse.

I started this report by observing that the IAHIP Information Day had been a real eye-opener for me. If this report has the effect of opening other eyes to the difficult and complex issues – and I have touched on only a few of them – raised by the prospect of introducing mandatory reporting of child sexual abuse, a purpose will have been well served.