Introduction to relevant legal issues

The Children and Young Persons (Care and Protection) Act 1998 replaces the Children (Care and Protection) Act 1987. It was passed by Parliament in 1998 and has been progressively enacted.

Child or young person at risk of harm

In The Children and Young Persons (Care and Protection) Act 1998 a child or young person is at risk of harm from abuse or neglect if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence of any one or more of the following circumstances:

• the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met
• the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care
• the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated
• the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm
• a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm.

Responsibilities to report

Under the Section 27 of the Children and Young Persons (Care and Protection) Act, 1998 it is mandatory for Health staff to report suspected risk of harm relating to children if they deliver health care wholly or partly to children.

It is also mandatory for Health managers whose duties include direct responsibility for, or direct supervision of the delivery of health care wholly or partly to children, to report risk of harm to a child. Health staff who fail to comply with mandatory reporting requirements are guilty of an offence.

The maximum penalty for a breach of Section 27 is a fine of 200 penalty units, currently
$22,000. NSW Health Circular 2003/16.

In addition to this legal requirement, under ministerial directive (NSW Health Circular 2003/16) all Health staff who have reasonable grounds to suspect that a child is at risk of harm from abuse or neglect, irrespective of whether the Health staff are delivering a service to the child, must make a report to DoCS. Health staff who fail to comply with a
ministerial directive may be subject to disciplinary action (NSW Health Frontline Procedures for the Protection of Children and Young People (2000).

Under Section 24 of the Children and Young Persons (Care and Protection) Act, 1998, Health staff may report concerns about risk of harm relating to a young person aged 16 or 17 years.

The Children (Care and Protection) Amendment (Disclosure of Information) Act 1996 extends voluntary reporting to any person who believes on reasonable grounds that a child who is aged 16 or 17 years has been, or is in danger of being, abused. The Department of Community Services has a discretion rather than a duty to investigate a report in respect of 16 and 17 year olds.

Privacy Principles and the Responsibility to exchange information

NSW Health employees have a general responsibility to ensure the privacy of client/patient information is protected.

Privacy principles include:

• personal information should only be collected for a lawful purpose directly related to a function or activity of the agency
• personal information should normally be collected directly from the individual concerned who should be advised why it is being collected and who else will have access to the information.
• agencies should not disclose personal information to other parties except with the consent of the person; to prevent a serious threat to a person’s life or health; as required or authorised by law.

See the Privacy and Personal Information Protection Act, 1998 and NSW Health Information Privacy Code of Practice, 1998.

By law Area Health Services staff must provide relevant information they have available when asked (in writing) to do so by the Department of Community Services.

SWSAHS is required under Section 248 of the Children and Young Persons (Care and Protection) Act, 1998 to provide information relating to the safety, welfare and well-being of a child or young person to the Department of Community Services (DoCS) upon request.

Maintaining the confidentiality of a client is not a sufficient reason for SWSAHS to fail to respond to a Section 248 request for information from DoCS.

Protections for workers in health services reporting or exchanging information

The Children (Care and Protection) Act 1987 made provision for the safeguarding of the identity of the person who makes the report. The making of a report does not breach professional standards or make the person making the report liable for defamation or other similar proceedings.

The Children and Young Persons (Care and Protection) Act 1998 maintains the same provisions for the safeguarding of the identity of the person who makes the report.

Reporting or furnishing information to the Department of Community Services in accordance with the provisions of the Children (Care and Protection) Act 1998 will:

• not be held to constitute a breach of professional etiquette or ethics or a departure from acceptable standards of professional conduct
• not constitute grounds for liability for defamation
• not constitute a ground for civil proceedings for malicious prosecution
  where the information is provided in good faith and with reasonable care.

The report or its contents are not admissible in any proceedings as evidence against the person who made the report.

A person cannot be compelled to provide the report or give any evidence as to its contents.

(These protections may be overridden on rare occasions where information about the report is crucial to court proceedings.)

No agency may disclose to a parent, alleged perpetrator, employer or other person the identity of a person who makes a report to DoCS.

Grievance proceedings cannot be initiated or allowed to progress against any person in relation to that person's report of suspected child abuse to the Department of Community Services.

If as a result of making a report to DoCS a person is threatened or fears personal violence, this should be reported to the police, who may apply for and pursue on their behalf, an apprehended violence order.

Female genital mutilation

In NSW female genital mutilation (FGM) is a crime. The Crimes (Female Genital Mutilation) Act 1995 states that anyone who is found guilty of practising female genital mutilation or who aids, abets, counsels or procures someone else to practise female genital mutilation on another person is liable to penal servitude of up to seven years.

It is also illegal for FGM to be practised outside NSW, on anyone who is normally a resident of NSW. Workers in health services who suspect that a child has been subjected to or is at risk of female genital mutilation have a duty to report to the Department of Community Services.

Allegations of abuse against SWSAHS employees

The Ombudsman is now responsible for overseeing and monitoring the handling of child abuse allegations and convictions against employees of government departments and non-government agencies. (Child Protection: Your New Responsibilities, NSW Ombudsman, 1999).

SWSAHS is required by the Ombudsman Amendment (Child Protection and Community Services) Act, 1998, to ensure a system is in place for the prompt report to the Ombudsman, of an allegation of abuse by a SWSAHS employee.

In addition to the requirements for Area Health Services in dealing with child abuse allegations/convictions against an employee outlined in Circular 97/80, there are now additional requirements for Area Health Services. These additional requirements relate to the Ombudsman's role and are contained in NSW Health Circular 99/65.

SWSAHS has a separate policy: Allegations of Child Abuse against a Health Service Employee, 2000, which is based on these two circulars.