McGrath v Health Service Executive
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 08 December 2023 |
| Neutral Citation | [2023] IECA 298 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Record Number: 2022/286 |
[2023] IECA 298
Donnelly J.
Ní Raifeartaigh J.
Binchy J.
Appeal Record Number: 2022/286
THE COURT OF APPEAL — UNAPPROVED
JUDGMENT of Mr. Justice Binchy delivered on the 8 th day of December 2023
. This appeal concerns an issue of statutory interpretation.
The statutory provision concerned is s.14(1)(a) of the Children First Act 2015 (“the 2015 Act”). The long title to the 2015 Act, in material part, states that it is:
“ An act for the purposes of making further and better provision for the care and protection of children…. to require certain persons to make reports to the Child and Family Agency [i.e. Tusla] in respect of children in certain circumstances.…”
. Part 3 of the Act deals with mandatory reporting, and s. 14(1) provides:
“ 14.(1) Subject to subsections (3), (4), (5), (6) and (7), where a mandated person knows, believes or has reasonable grounds to suspect, on the basis of information that he or she has received, acquired or becomes aware of in the course of his or her employment or profession as such a mandated person, that a child —
(a) has been harmed,
(b) is being harmed, or
(c) is at risk of being harmed,
he or she shall, as soon as practicable, report that knowledge, belief or suspicion, as the case may be, to the Agency.”
. “Child” is stated in s.2 of the 2015 Act to have the same meaning that it has in s.2 of the Child Care Act 1991 (“the 1991 Act”). Section 2 of the 1991 Act defines “child” as meaning “a person under the age of 18 years other than a person who is or has been married.”
. “Harm” is defined as meaning:
“ in relation to a child —
(a) assault, ill treatment or neglect of the child in a manner that seriously affects or is likely to seriously affect the child's health, development or welfare, or
(b) sexual abuse of the child.”
. “Mandated Person” is defined in schedule 2 to the 2015 Act, and is very broad in its scope, including, as it does, inter alia, registered medical practitioners, registered nurses, physiotherapists, occupational therapists, dentists, psychologists, psychotherapists, social care workers, social workers, teachers, gardaí and guardians ad litem appointed under the 1991 Act.
. The appellant, who is the director of counselling within the respondent's organisation, holds a professional doctorate in counselling psychology and is also an Associate Fellow of the British Psychological Society. The appellant and the respondent are in disagreement as to the scope of s.14 1(a) of the 2015 Act. The appellant contends that the word “child” as used within s.14 1 (a) of the 2015 Act refers only to a person who is a “child” – as defined in the 2015 Act, at the time that the mandated person referred to in s.14 (1) receives, acquires or becomes aware of the information referred to in that section. The respondent, on the other hand, contends that, properly construed within the context of the statute as a whole, and its objectives, the word “child” includes any person who has been harmed when a child, even though that person may now be an adult. This disagreement between the parties as to the scope of s.14 (1) (a) of the 2015 Act came to a head following upon the publication by the respondent, on 14 th November 2019, of a document entitled the HSE Child Protection and Welfare Policy (the “Policy”).
. As one might expect from the title, the Policy is a detailed and comprehensive document in the introduction to which the following is ( inter alia) stated:
“ Every HSE staff member has a responsibility and duty of care to ensure that children/young people availing of, or attending a HSE service, are safe and protected from harm (physical/emotional/sexual abuse or neglect). With the full commencement of the Children First Act 2015, there are legal obligations for certain staff known as mandated persons.
The HSE Child Protection and Welfare policy sets out the roles, responsibilities and procedures assigned to ensure the effective management of child protection and welfare concerns in the HSE. It is one of a number of policies on procedures in the HSE that contribute to safeguarding children and young people. This policy should be used in conjunction with all other relevant HSE policies, as necessary.”
. The Policy, which runs to 92 pages, is divided into eight sections and contains four appendices. Section 8 provides general reporting information as well as guidance to assist staff with some of the complexities that may arise in relation to managing child protection or welfare concerns.
. Section 8.2 is under the heading of “Disclosures of retrospective abuse”. The first paragraph of this section states:
“Some adults may disclose abuse that took place during their childhood. Such disclosures may come to light when an adult is attending counselling, receiving palliative care, or is being treated for psychiatric or other health issues. Service users should be informed at the outset of contact with a service, as appropriate, that if any child protection issues arise, including disclosures of retrospective abuse, that this information must be passed on to Tusla where there are reasonable grounds for concern that abuse occurred, as there may by a current or potential risk to children (identifiable or not).”
. On 16 th December 2019, the National Counselling Service (“NCS”), which I understand to operate within the organisational structure of the respondent, published a document entitled: Proposal for Implementation of the HSE Child Protection and Welfare Policy in the National Counselling Service”, (the “NCS Proposal”). This document expresses concerns about the directions given by the respondent to counsellors in the Policy, insofar as counsellors are required by the Policy to report information received from adults about incidents of abuse in their childhood. The NCS expresses concerns about the impact of such mandatory reporting on its clients. It expresses the view that it is very likely that vulnerable clients who need the services of the NCS will no longer avail of those services if they are informed that any disclosure by them of childhood abuse must be reported to Tusla, even if they do not provide any information identifying the abuser. The result, according to the NCS, will be not just an increased risk of harm to those NCS clients, but also an increased risk to children. According to the NCS, children will be less protected rather than more protected by such a requirement because, as a result, fewer adults will avail of NCS counselling services, and this in turn will (the NCS claims) inevitably reduce the extent of existing reporting of historic childhood abuse to Tusla rather than increase it. The NCS maintain that when their clients (i.e. adults who experienced childhood abuse) address reporting in the context of a safe therapeutic relationship, they are more likely to engage with Tusla, and this increases the likelihood of a positive outcome in terms of child safeguarding.
. The NCS Proposal recognises that the 2015 Act lays down legal obligations for mandatory reporting, but the NCS in effect contends that the respondent, in its directions to counsellors and therapists as set forth in the Policy, has gone further than the 2015 Act requires, to the determinant both of children who may be at risk of abuse, and adults who are in need of its services.
. In order to address these concerns, the NCS recommended the following to its counsellors and therapists:
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• In line with the Children First Act and HSE Child Protection and Welfare Policy NCS Counsellors/therapists will report all current concerns to Tusla where they have reasonable grounds (see appendix 1) to suspect harm or risk of harm to any child currently under the age of 18 child (sic) from physical, emotional, sexual abuse or neglect.
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• NCS counsellors/therapists will report all retrospective disclosures of childhood abuse (physical, sexual, emotional abuse and neglect) as soon as practicable where there is identifiable information about the person(s) who is the subject of the allegation of abuse.
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• NCS counsellors/therapists will report all retrospective disclosures of childhood abuse as soon as practicable where there are reasonable grounds for concern to suggest that a child is currently at risk from the person who is the subject of the allegation even if this person is not identified by the adult complainant. This is in line with the purpose of the Act which is to mitigate past, current and future harm to children currently under the age of 18.
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• If no reasonable grounds for concern regarding current risk to a child are identified and no identifiable information is provided about the person who is the subject of the abuse allegation, NCS counsellors/therapists will work with the client to encourage their engagement with Tusla and identification of the person who abused them. This will optimise the opportunity to protect children as it would allow a full assessment by Tusla of potential risk arising from the client's past abuse.
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• In circumstances where the adult is vulnerable to psychological distress, self-harm or suicide as a result of reporting the concern, the counsellor/therapist will seek an informal consultation with Tusla with a view to considering how best to support the adult who discloses, whilst ensuring the welfare of any child who may currently be at risk of abuse.
. Following upon the publication of the NCS Proposal in December 2019, the respondent had concerns that it did not properly reflect the obligations created by s.14 (1)(a) of the 2015 Act. Accordingly, the respondent sought and obtained legal advice on the issue, and, in the light of the advice so obtained published, on 8 th December 2021, an interim standard operating...
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