DUTY TO REPORT

by George K. Bryce

legal counsel to the BCACC

Current to: April 22, 1999

Preamble

This is the text of a two part article which appeared in two consequitive 1999 issues of Insights as "The Counsellor's Counsel". Editorial changes may have been made to this version before it was published in Insights.

Topic

Reporting suspected child abuse or neglect - an exception to a counsellor's duty of confidentiality

Question

A counsellor writes: "I have been providing group counselling to a family for the past six months. The teenage daughter phoned me a week ago and wanted to speak to me separately. At our interview yesterday, she told me that her father has been physically abusing her and, I expect, also sexually abusing her. She showed me some bruises and talked about being depressed. What should I do? Do I have to have her permission to speak to the police? Do I have to tell her parents if I report this to the police?"

The duty to report

At sometime during their professional careers, clinical counsellors are likely to find themselves in a situation where they may have to report suspected child abuse or neglect to the authorities. As the topic title suggests, a counsellor's legal duty to report suspected child abuse or neglect is an exception to the general duty of confidentiality. This exception has been created under the authority of the Child, Family and Community Service Act (CFCSAct).

In general, if a counsellor has a reason to believe that a child under 19 years of age has been or is likely to be physically harmed, sexually abused or sexually exploited, or needs protection, the counsellor has a legal duty under the CFCSAct to report that belief to the authorities. This statutory duty to report overrides the counsellor's duty of confidentiality to the extent necessary to fulfill the reporting obligations.

Section 14 of the Act states:

Duty to report need for protection

14 (1) A person who has reason to believe that a child

(a) has been, or is likely to be, physically harmed, sexually abused or sexually exploited by a parent or other person, or

(b) needs protection under section 13 (1) (e) to (k)

must promptly report the matter to a director or a person designated by a director.

(2) Subsection (1) applies even if the information on which the belief is based

(a) is privileged, except as a result of a solicitor-client relationship, or

(b) is confidential and its disclosure is prohibited under another Act.

(3) A person who contravenes subsection (1) commits an offence.

(4) A person who knowingly reports to a director, or a person designated by a director, false information that a child needs protection commits an offence.

(5) No action for damages may be brought against a person for reporting information under this section unless the person knowingly reported false information.

(6) A person who commits an offence under this section is liable to a fine of up to $10 000 or to imprisonment for up to 6 months, or to both.

(7) The limitation period governing the commencement of a proceeding under the Offence Act does not apply to a proceeding relating to an offence under this section.

Section 13 provides details as to when a child needs protection:

When protection is needed

13 (1) A child needs protection in the following circumstances:

(a) if the child has been, or is likely to be, physically harmed by the child's parent;

(b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent;

(c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child;

(d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent;

(e) if the child is emotionally harmed by the parent's conduct;

(f) if the child is deprived of necessary health care;

(g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment;

(h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care;

(i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being;

(j) if the child's parent is dead and adequate provision has not been made for the child's care;

(k) if the child has been abandoned and adequate provision has not been made for the child's care;

(l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

(2) For the purpose of subsection (1) (e), a child is emotionally harmed if the child demonstrates severe

(a) anxiety,

(b) depression,

(c) withdrawal, or

(d) self-destructive or aggressive behaviour.

Discussion

The discussion of the duty to report is framed by asking a series of questions.

1) Who must report?

The duty to report applies to anyone who becomes aware of circumstances that should be reported. This includes counsellors, other health care providers, family members and the general public. A counsellor must report, even if the counsellor believes that someone else has reported or will be reporting. Further, even if the counsellor knows that the authorities are already involved, if the counsellor becomes aware of a new situation, another report must be filed.

2) Is the child at risk under 19 years old?

The legal duty to report under the CFCSAct is activated only if the child at risk is eighteen years old or younger. If, at the time the child is disclosing possible abuse or neglect, the child is nineteen years old or older, the provisions of CFCSAct do not apply, at least in relation to that old child.

However, if the older child's report indicates that other children under the age of nineteen may be at risk, then the duty under the CFCSAct would be activated. Both the older child and the counsellor would then have a duty to report.

Therefore, it is important for the counsellor to ascertain if any child under the age of nineteen may be effected by possible abuse or neglect, be this the child client or some other child.

3) Is there abuse or neglect?

Defining what constitutes abuse or neglect of a sufficient magnitude to activate a counsellor's duty to report under the CFCSAct is perhaps the most difficult question to answer. This determination can be difficult because the outcomes of some forms of abuse are going to be obvious (e.g. bruising or broken bones) while some outcomes may be more subtle (e.g. anxiety or depression). The situation can be further complicated when the risk to the child arises not from abuse but from some form of neglect (e.g. failure to feed or shelter the child, or failure to safely supervise the child).

There is a distinction between what information a counsellor needs to report and what information the authorities need to take action under the CFCSAct or possibly the Criminal Code of Canada. The counsellor does not need to obtain proof of actual abuse or neglect. The legislation creates a lower threshold: when the counsellor has a reason to believe that a child may be at risk.

The way the threshold has been set, the counsellor does not have to undertake a thorough investigation of the suspected child abuse or neglect. A formal investigation would be undertaken by either the child protection staff or the police; sometimes both working together.

It is best to err on the side of caution. If a counsellor is at unsure whether what the child client has said, etc. constitutes a form of reportable child abuse or neglect, the counsellor should simply contact the child protection authorities (see below) and discuss the situation without disclosing the child's identity. Further discussion with the authorities can help to ascertain whether the child is in need of protection and, therefore, whether the counsellor must then report the child's name, address, etc. to the authorities.

That said, the counsellor does not have to report when it is clear that the child's injury or other harm is accidental or resulted from circumstances outside the control of the parent or other responsible parties. An example would be a playground injury suffered when the child tripped while playing at school during recess.

4) Who to report to?

The counsellor must report to the Ministry for Children and Families. If the counsellor knows that the child is native, the counsellor should contact the applicable First Nations welfare agency.

The blue pages in local phone books provide the day time, week day phone numbers for the local Ministry office. During after hours and on weekends or holidays, phone the Operator and ask for Zenith 1234. (This toll-free number can also be used 24 hours a day, seven days a week.)

If the counsellor believes that a child is in immediate danger, the police should be called through 911 or the telephone operator.

It is important that the counsellor not contact the alleged offender to attempt to resolve the situation. Either the child protection authorities or the police will make this contact during their investigation. Likewise, it is best to leave any contact with an employer of the alleged offender to the authorities.

If the alleged offender is someone the counsellor is also providing counselling services to (e.g. in a family therapy setting), then it would be best to discontinue those services (at least in relation to the identified alleged offender) until the authorities have completed their investigation. To do otherwise may compromise the formal investigation.

5) Basic information to provide

When making a report of suspected child abuse or neglect, the counsellor should be prepared to provide as much relevant information as possible. For example:

· the name, age and location of the child at risk;

· concerns about any immediate risk to the child, in particular any special vulnerabilities of the child;

· why the counsellor believes that the child is at risk;

· information provided by the child and the names of any witnesses;

· information concerning the alleged offender, as well as relevant information about the parents, siblings or other family members or friends;

· information about any special needs of the child and the name, etc. of any key support persons;

· knowledge of any previous incidents or concerns regarding the child, whether or not they have been previously reported;

· any other relevant information about the child or the circumstances, such as language or culture.

The counsellor should contact the authorities even with partial information. The counsellor does not have all the information listed above to initiate a report. The authorities can help identify specific information they may require from the counsellor.

While counsellors will be required to tell the authorities who they are, that information is not normally disclosed to others without the counsellor's consent, unless required during a court hearing.

Some of this information may have to be disclosed with the consent of the child client. If such consent is not given, the counsellor could provide it only under the authority of a court order, which would be obtained by the investigating staff.

6) When to report?

The counsellor must report as soon as possible. Depending on the circumstances and the apparent risk to the child, the counsellor should normally report to the authorities at the first available opportunity; for example, at the end of the clinical session before seeing the next client. If the child is in imminent danger, the call should be made immediately.

Answer to the Counsellor's question

The information the teenager provided to the counsellor appears sufficient to trigger the counsellor's duty to report. The daughter showed the counsellor bruising and her behaviour was consistent with someone who had been abused, either physically or sexually. The low threshold of "reason to believe" has probably been met.

If it is appropriate or possible in the circumstances, the counsellor should tell the teenager that the counsellor has a legal duty to report what the client had reported, but that support services would be provided.

The counsellor should not speak to the parents. That step should be left to the proper authorities.

While a report could be filed with the police, in these circumstances it does not appear as though the teenager is in immediate danger. So the counsellor should report to local Ministry office. That office can always direct the counsellor to the police, if need be.

The only remaining issue would be to determine whether the teenager was nineteen years of age or older. But, even if the counsellor was dealing with an older child, if there were other younger children at risk, the counsellor would have a duty to report in relation to those younger children.

Need more information?

The Ministry of Children and Families has produced a helpful reference text, the BC Handbook for Action on Child Abuse and Neglect. It is available from the Ministry through its Child Protection Services website or from Crown Publications in Victoria: phone (250) 386-4636.

The handbook provides useful guidance on such topics as:

· what constitutes child abuse and neglect;

· recognizing indicators of possible child abuse and neglect;

· what to do when you suspect that a child may have been abused or neglected;

· how to handle disclosures made by children;

· what to do to help the child who has disclosed abuse or neglect;

· when to contact the police or other authorities;

· abusive behaviour between children;

· the consequences of failing to report or making a false report;

· what steps a child protection staff person will take when investigating reports of child abuse and neglect;

· additional support for children and their families, including victim services and Criminal Injury Compensation program.

There is also a chapter on promoting well-being and preventing abuse and neglect.

Counsellors who work with children or families should read and be familiar with the handbook.

Post script / Disclaimer

This column is intended to help clinical counsellors gain a better understanding of legal issues that are relevant to their practice. It is not meant to be a substitute for legal advice. If you have a particular concern about an issue that you are facing in your practice, you should seek independent legal advice from your lawyer. The BCACC cannot provide individual counsellors with legal advice and assumes no responsibility for the content of this column.

What other legal issues interest you?

If you have a practice question that you feel raises a legal issue that should be of concern to all counsellors, please mail that question and any background information in confidence to: The Counsellor's Counsel c/o BCACC Head Office.