By Dr Graham Howarth, Medical Protection Society (MPS) Medical South Africa Lead
I anticipate that if one asked the average healthcare professional what their reporting obligations are regarding abuse of a vulnerable patient, many would mumble something about the Children’s Act. They would not be wrong.
The threshold for reporting abuse under the Children’s Act is quite high in the sense that one must conclude or believe on reasonable grounds that abuse has occurred.
However, two amendment Acts were introduced a couple of years ago to indicate how seriously the government is taking the issue of abuse of the vulnerable. In these amendment Acts the threshold for reporting is lower than the threshold in the Children’s Act and failure to report may result in a fine and/or a criminal charge and theoretically even imprisonment – essentially criminalising non-disclosure.
Under the Sexual Offences and Related Matters Amendment Act anyone who has a reasonable belief or suspicion that a sexual offence has been committed against a vulnerable individual is obliged to report it to the police immediately.
The definition of vulnerable individual specifies children and those with a mental disability. However, a vulnerable individual could also include, among others, females up to 25 if they are in higher education or receiving vocational education or are resident in a residence.
The Domestic Violence Amendment Act, meanwhile, uses unusual terminology but in essence if one believes or suspects on reasonable grounds that a child, a person with a disability or an older person is being abused in a domestic environment one is obliged to report it. It is also important to remember that the Constitutional Court has determined that any form of corporal punishment is unlawful and would constitute abuse.
The Older Persons Act has also been on the statute books for many years with similar obligations and consequences. Under this legislation any person who suspects an older person has been abused or suffers from an abuse-related injury is obliged to report it.
So why should you contact your indemnifier if you suspect abuse?
• The various Acts are long and complicated and, in some cases, use unusual language that requires expert interpretation. An example being the Domestic Violence Amendment Act that refers to victims as ‘respondents’ and uses the term ‘functionary’ to refer to a healthcare professional.
• It is important to appreciate that suspicion is a low threshold for mandatory reporting and differs from reasonable suspicion or suspect on reasonable grounds. In law, language is of cardinal importance. In the Older Persons Act the threshold is suspicion. In the Domestic Violence Amendment Act the threshold is suspect on reasonable grounds. While suspect in the Older Persons Act is subjective, the Domestic Violence Amendment Act introduces an objective element where you have to suspect on reasonable grounds. The Sexual Offences and Related Matters Amendment Act, meanwhile, refers to “…reasonable belief or suspicion”. If reasonable modifies suspicion an objective element is also introduced. If an individual in one of the protected groups discloses abuse, to you, and you believe they are not being dishonest, and are willing to justify your reasoning if necessary, does that not cross the threshold of suspicion, suspicion on reasonable grounds or reasonable suspicion? This may seem like semantics, but it may be of critical importance in law.
• The consequences of reporting may be dire for both the alleged abuser and the victim of the alleged abuse. Families may be torn apart. The obligations placed on a healthcare professional are onerous and expert advice regarding one’s actions and potential consequences are important.
• In the case of a woman under 25 who qualifies as a vulnerable individual as defined by the Sexual Offences and Related Matters Amendment Act, the legislation may require you to disclose sexual abuse where the patient requests you not to disclose. There is a tension between your obligation of confidentiality, and the statutory reporting obligations. Similar tensions may arise when required to report abuse of an elderly person with decision-making capacity or an older child with clear decision-making capacity.
• The shield: all the Acts have good faith reporting indemnity, which means as long as you are reporting in good faith and not out of a sense of malice you are protected from censure. Different Acts give different indemnities.
• And the sword: failure to report under the Sexual Offences and Related Matters Amendment Act or the Older Persons Act may result in a fine and/or imprisonment not exceeding five years. Interestingly a healthcare professional who fails to report abuse under the Domestic Violence Amendment Act may escape censure; protection not extended to a member of the public not reporting identical information.
• Different Acts require different reporting obligations to different officials or agencies and different documentation that requires completion.
There are two other interesting thresholds to reflect upon. The Mental Health Act requires reporting of abuse if witnessed – in reality a factual question.
The Health Professions Council of South Africa’s Ethical Rule 25, meanwhile, requires a registrant to report a fellow registrant’s impairment only if convinced of such impairment – a high threshold. Interestingly a registrant is obliged to report their own suspected impairment – a low threshold for disclosure.
So to summarise, when working with vulnerable patients you need to be aware not only of the possibility that they have been a victim abuse, but also what your obligations may be should you suspect such abuse. Given the potential consequences of reporting, seeking expert advice from your indemnifier is probably the most prudent approach.
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This article was
originally published in Medical Brief and is
republished with permission.