Mandatory reporting_

Mandatory reporting:
A grand gesture --But with perverse consequences?Laura HoyanoWadham College, OxfordIALS 10 December 2013
(1) The ‘Pontius Pilate’ effect
Deterioration in community cohesion and cooperation as every neighbour can become a reporter Isolation for families in need of support  Increased risk to childrenAfter a report has been made, those surrounding the child, including neighbours, teachers, and health professionals, relax their vigilance(Erroneous) assumption that the ‘experts’ (police, social services) will protect the child once they are notified [(egX v Beds CC(HL 1995)]MR laws = merely a reporting system, not intervention!Overwhelmedsocial services raise the barriers to investigationegVictoria (Aus) 1992-93: 92% of notifications investigated1993 MR introduced 1999-2000: only 40% investigatedHealth professionals spend more training time on how to protect themselves from criminal liability for failure to report than on how to detect, protect and treat children at risk(US Institute of Medicine, 2002)
(2) Child Protection Providers become Investigators notSafeguarders
Welfare concerns are treated as allegations of wrongdoing from the outset, without assessment of need for support servicesA tidal surge of allegations:US:MR in all states & territories [FederalChild Abuse Prevention and Treatment Act (1974)]2010: ca.3.3million reports to child protection agenciesUSGovt, Administrationon Children and Families,2003:1/8 of reports are screened out without investigation2/3of investigated reports arenever substantiatedsubstantial proportion of validated reports do not result inanyservices for the child“an enormously successful calamitous system”[Melton(2005)]which has caused “chronic and critical multiple organ failure” within the child protection system[US Advisory Board on Child Abuse and Neglect, 1990]
(2)InvestigatorsnotSafeguarders
AustraliaNew South Wales:>10% of children in entire population referred by age 5 – >190,000 referrals p.a.[NSW Department of Community Services (2005)]78.7%of notificationsunsubstantiated(1999-2000:Ainscough, 2002)Queensland:“an unsustainable increase in reports” from mandated reporters [QueenslandChild Protection Commission of Enquiry,2013, p. 22]Only 4,359 of 114,503 reports substantiated on investigation (2011-12)Fewer than ¼ of reports met the threshold for notification(“reasonable suspicion that child in need of protection”)78%of investigated reports concluded that the child’s safety wasnotat risk so no follow-up action (Queensland Child Protection Commission of Enquiry, 2013:"… Theover-reportingof children to Child Safety Services is inefficient, not to mention damaging to those families who are being unnecessarily reported.“)Western Australia:NO MR lawsSame period as NSW: only55.8%of notifications wereunsubstantiatedMandatory reporting rejected by the Government as counter-productive in 2002 (research study by Harries & Clare, 2002)
(3) Victims are deterred from seeking help from mandatory reporters
E.g. sexual health clinics, sexual assault crisis centres, child helplines, health professionals, schools, counsellors, community workersChildren may want intervention, protection and/or treatment, not criminal prosecution – the abuser deprives them of autonomy and choice, and the law should not do the same by making their secrets public against their wishes (obviously subject to any concerns about other children at risk).Children are catapulted into the criminal justice system without proper preparation whereas adult victims are given the time they wish.investigations are foiled where children cannot be persuaded to cooperateSO: mandatory reporting regimes can harm (1) the child’s well-being and recovery and (2) evidence-gathering for eventual prosecution [Hoyano & KeenanChild Abuse Law and Policy across Boundaries]
(4) Conflict of interest for professionals
Do they protect themselves from criminal liability by reporting, or exercise their professional judgment as to what is in the best interests of the child, respecting that child’s autonomy? (UN Convention on the Rights of the ChildArt 19)Breach of trust: undertakings of confidentiality are meaningless or not trusted by the victim deleterious impact on therapeutic relationships  children often perceive coerced involvement as secondary abuse [Harries & Clare, 2002]Self-censored record-keeping of disclosuresConcerns re historic abuse reports triggering liabilityUS: at least 2/3 of suspected maltreatment victims not reported by mandatory reporters [Sedlak(2011)]US: “Rampant civil disobedience” by professionals who are convinced the children are worse off as a result of reports, and do not receive protection services [Melton 2005]
(5) Families and offenders are deterred from seeking help
US: implementation of MR resulted in a dramatic decline in offenders’ revelations of child sexual abuse(Berlin, Mallon & Dean, 1991)Loss of confidentiality: health and social care professionals perceived as prosecutors not therapeutic supportersStigmatisation, not assistanceDisruption in any treatment already underwayDisruption to the familyLow Countries: new assurances of confidentiality increased families’ self-referral for help(Marneff1997)
Paucity of prosecutions against non-reporters
Extremely few criminal prosecutions in all jurisdictions with mandatory reportingUS & Canada: MR laws primarily used in support of civil negligence actions to set up the duty to actProblem of choosing whom to prosecute, especially in jurisdictions with universal reporting lawsHas not prevented cover-ups of institutional abuse, e.g. in clerical and residential school/care settings in all jurisdictions with MR laws
Conclusions
“overwhelming evidence that mandatory reporting systems are in chaos worldwide” (Harries & Clare research report commissioned by Western Australia Child Protection Council, 2002)Criminalising thepublic for failing to act is not the answerCoercing and undermining professionals by criminal law is not the answer – they are already accountable:to children (but not parents) in tort law [JD v East Berks]to childrenandparents in human rights law [ECHR Art 8] andto their professional disciplinary bodies.NO empirical evidence linking mandatory reporting with reduction of either child maltreatment or child deaths[Ainsworth (2002), Harries & Clare (2002), NSPCC (2007, 2012)]considerable empirical evidence that MR is counter-productive, consuming scarce resources on futile investigations and diverting police from major investigations such as child trafficking, and social workers from providing child protection services
The way ahead? (1)
Measures not requiring statutory interventionConfidence-buildingmeasures are needed:(1) Greater education of professionals and the public as to when and where toreport, and pragmatic, consistent and clear referral protocols and codes of ethics for professionals and agencies/institutionsWiderpublicity tothe current law:Public interest immunity protecting the identities of informants [DvNSPCC]Immunity from liability in defamationthrough absolute privilege for reports of suspected child abuse to prosecuting authorities [WestcottvWestcott]
The way ahead? (2)
Lessons fromSavile: Measures possibly requiring statutory interventionLimitedmandatory disclosure of abuse in aninstitutional settingi.e. allegations against the institution’s staff or volunteers conflict of interest where reputation at stakemandatory, non-discretionary, dutyto reportimposedupon a designated person (DP)within the institution(or alternate if DP is suspect)DP has a duty to refer all allegations of wrongdoing vis-à-vis a child to an independent monitor (by analogy to the Local Authority Designated Officer under the Education Act 2002 ss. 157, 175 and Guidance)Monitor can evaluate the allegation, make further inquiries and determine whether to refer to the police or social servicesApply to all institutions and organisations having regular contact with children e.g. churches (priest/penitent privilege already not legally recognised in England & Wales), schools, hospitals and other health care facilities,sports facilities, clubs etc.
The way ahead? (3)
(2) Statutory confirmation that reports of concerns about a child’s welfare to the police or social services areimmune from criminal or civil liabilityIssues requiring consideration:Should immunity be restricted to reports in good faith, as in Canada, US & Australia, or absolute privilege as currently in English common law so that even malicious reports are protected? (Reports motivated by malice may be true…)Should discussions of concerns with other people (neighbours, teachers, health visitor) also be immunised, and not just reports to statutory authorities?