By Kirsty van Rhyn, Case Manager, Medical Protection
Dr F consulted with a 16-year-old female for adjustment struggles after recently moving from her hometown, where she resided with her mother and stepfather, to live with her biological father. At first, the patient indicated that her reason for the move was to better her education, but later revealed to Dr F that she had been sexually assaulted by her stepfather’s friend; she was 15 years old at the time.
The patient knew the man that had allegedly assaulted her but did not want to take further criminal action, as she was nervous to tell her biological mother about the event. When pressed by her mother for a reason why the patient did not want to visit her, she was forced to disclose the assault and her fear of returning home.
The patient’s mother wanted to press charges against the alleged assailant, but the patient did not.
Dr F wrote to Medical Protection for legal advice on how to deal with the mother of the patient and to find out whether there was a legal duty to report the matter, as the patient was no longer at risk of further assault and did not want the matter to be reported to authorities.
How Medical Protection assisted
Dr F was immediately advised that there is a legal duty to report sexual assault in the case of a minor, even if the patient does not want the information to be disclosed.
The advice was based on various legislation, such as section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and section 110 (1) of the Children’s Act 38 of 2005, both of which create a mandatory duty to report sexual offences against children. Furthermore, should a person with knowledge of such an assault (Dr F in this instance) fail to report it, they shall be guilty of an offence themselves.
The HPCSA’s guidance, Confidentiality: Protecting and providing information, was also authoritative in this matter. Paragraph 9.4 creates a positive duty on a healthcare practitioner to report cases of abuse, even if consent cannot be given or if consent is withheld from the minor patient, and they believe that the disclosure would be in the best interest of the patient. In this instance, the healthcare practitioner was advised to inform the patient that they intend to disclose the information to the relevant authorities.
Dr F was provided with Form 22 (Reporting of abuse or deliberate neglect of child) and advised to report the matter to a child protection organisation, the provincial department of social development or a police official.
Dr F consulted with the patient and informed her of her intent to disclose. Subsequently the provided Form 22 was completed, and the matter was reported to the department of social development.
• “Children” is defined in section 1 of the Children’s Act to mean a person under the age of 18.
• Section 110 (1) of the Children’s Act creates a mandatory duty to report abused or neglected children and children in need of care and protection, and states that if there are reasonable grounds to suspect that a child has been abused in a manner causing physical injury, sexual abuse or deliberate neglect, such abuse must be reported on the prescribed form (Form 22).
• Section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 echoes the Children’s Act and states that knowledge of sexual abuse must be reported immediately. A person with knowledge of a sexual offence who fails to report it is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding five years, or both.
• If a practitioner has knowledge or suspects assault, in any manner whatsoever, and is unsure whether they should report or not, it is crucial that Medical Protection be contacted as soon as possible to assist.
• In cases such as these, it is important to keep all involved parties who have rights and obligations in respect of the patient informed of important developments.
• Your first obligation remains to your patient, in this instance the minor child.