Mandatory reporting is just that, mandatory. It is not optional.
In NSW, psychologists’ mandatory responsibilities are prescribed under three pieces of legislation that cover three different types of mandatory reporting.
- The Children and Young Persons (Care and Protection) Act 1998;
- Health Practitioner Regulation National Law (NSW) No 86a; and
- The NSW Crimes Act 1900.
Psychologists also have a professional responsibility to those they become aware of as being at significant risk. In NSW, privacy is protected by two pieces of legislation:
- The Privacy and Personal Information Protection Act 1998 (PPIP Act); and
- The Health Records Information Privacy Act 2002 (HRIP Act).
Those who are not covered by these Acts are covered by the Federal Privacy Act 1988. Other useful documents include the APS Code of Ethics (adopted by the Psychology Board of Australia for the profession as a whole), and APS Ethical guidelines on confidentiality; Ethical guidelines on working with clients where there is a risk of serious harm to others; Ethical guidelines on reporting abuse and neglect, and criminal activity; Ethical guidelines relating to clients at risk of suicide; and Ethical guidelines on working with young people.
The Children and Young Persons (Care and Protection) Act 1998
Section 9 of the Child Protection Act is administered under the principle that “in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person is paramount”. This is vital, and runs contrary to the practice of some who, when believing they are about to hear something they may need to report, stop proceedings and warn the speaker of this possibility. While it is important that, as part of informed consent, we discuss our responsibilities in keeping people safe, stopping people mid-sentence to re-mind them does not place the safety of children and young people at the forefront of our thinking. When the training to support this legislation was originally introduced, it encouraged practitioners to act as if their piece of the jigsaw, when added to other pieces, may just be the information required to help make a child’s life safe. Put simply, we only know what we know; we do not know what else we don’t know.
In addition to the Child Protection Helpline (132 111), the NSW Government’s Keep Them Safe provides online mandatory reporter guides (MRGs) to assist mandatory reporters in meeting their obligations. There are eight MRGs covering physical abuse, neglect, sexual abuse, psychological harm, danger to self and others, relinquishing care, carer concern and unborn child. If you become a registered reporter, you can submit your completed MRGs online. (NB -- You continue to be a mandated reporter whether you register or not). Child Wellbeing Units are also available if you work for the Police Force, Department of Education and Communities, Health and affiliated services, and the Department of Family and Community Services (Housing; and Ageing, Disability and Home Care).
To increase the safety of children, mandatory reporters are able to share information under Chapter 16A of the Act where such sharing is for the safety, welfare or well-being of a child or young person. “If a person acts in good faith when providing any information under Chapter 16A, he or she: is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.” This link, along with information related to Chapter 16A, also provides checklists, sample letters, etc.
Chapter 16A enables communication between mandatory reporters and “requires prescribed bodies to take reasonable steps to coordinate decision making and the delivery of services regarding children and young people”. Under the Act, mandatory reporters are prescribed bodies.
Health Practitioner Regulation National Law (NSW) No 86a
Under the National Law, registered health practitioners, employers of health practitioners and education providers are mandated to report if they form a reasonable belief that a notifiable conduct has occurred. “A notification should be based on personal knowledge of facts or circumstances that are reasonably trustworthy and that would justify a person of average caution, acting in good faith, to believe that notifiable conduct has occurred or that a notifiable impairment exists. Conclusive proof is not needed.” (AHPRA Guidelines for mandatory notifications).
Section 140 of the National Law defines ‘notifiable conduct’ as when a practitioner has:
“a. practised the practitioner’s profession while intoxicated by alcohol or drugs; or
b. engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or
c. placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or
d. placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.”
a. Practising while intoxicated
Mandatory notification is not required if a practitioner is intoxicated when not practising.
b. Sexual misconduct
Engaging in sexual activity with a current patient or client will constitute sexual misconduct, regardless of consent. “Psychologists do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years of terminating the professional relationship with the former client.” Even after the two years have elapsed, “The burden of demonstrating there has been no exploitation rests with the psychologist” (APS Ethical guidelines on the prohibition of sexual activity with clients).
“Sexual misconduct also includes making sexual remarks, touching patients or clients in a sexual way, or engaging in sexual behaviour in front of a patient or client. Engaging in sexual activity with a person who is closely related to a patient or client under the practitioner’s care may also constitute misconduct … for example, the parent of a child patient or client.” (AHPRA Guidelines for mandatory notifications).
The National Law defines impairment as “a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practise the profession”. A notification is required when the practitioner’s impairment has placed the public at risk of substantial harm.
d. Departure from accepted professional standards
“The notifiable conduct of the practitioner must place the public at risk of harm as well as being a significant departure from accepted professional standards before a notification is required. However, the risk of harm just needs to be present – it does not need to be a substantial risk” (APHRA Guidelines for mandatory notifications).
The APHRA Guidelines for mandatory notifications provides examples and decision guides for each of the areas of notifiable conduct.
NSW Crimes Act 1900
Under section 316 of the Act, a person who knows or believes that he or she has information that might be of material assistance in securing the apprehension, prosecution or conviction in relation to a serious indictable offence must bring that information to the attention of a member of the NSW Police Force or other appropriate authority. An exception is provided if you are engaged in a ‘prescribed profession’, which includes the practice of psychology.
This exception does not, however, absolve us of responsibility where there is a significant risk of harm. Historically, psychologists have not been expected to act on risk unless there was an immediate and specified risk.
Following a Coroner’s case in Victoria and with reference to the Lindt Café siege in NSW, the APS Code of Ethics had a ‘patch’ added. Section A. 5 .2 (c) of the Code states that psychologists may disclose confidential information “if there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information”. Psychologists covered under the Federal privacy legislation may disclose client information if they believe the “disclosure is necessary to lessen or prevent a serious threat to life, health or safety of any individual, or to public health or safety. The threat does not have to be immediate or specific”.
If in doubt, and as appropriate, discuss with your supervisor, manager and/or senior colleague(s); contact your insurer if working privately; and/or contact the APS Professional Assistance Service.