Need to report abuse disclosed in counselling has ‘chilling effect’, HSE director says

Requirements on Health Service Executive counsellors to report all disclosures of past child abuse to Tusla, even against clients’ wishes, is having a “chilling effect” on abuse survivors, a senior official in counselling has said.

Tom McGrath, director of counselling for the HSE in the northwest, took a legal challenge in May 2022 over when counsellors are required to notify the State child and family agency of disclosures of historic child abuse.

He argued that HSE operating procedures were incorrect where they required counsellors to make reports to Tusla even if the client disclosing past abuse was an adult, there was no current risk of harm to a child, and the perpetrator was not identifiable.

The legal challenge centred around the interpretation of “child” in the 2015 Children First Act, which introduced mandatory reporting requirements for disclosures of alleged child abuse.

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In October, Ms Justice Siobhán Phelan ruled that the “plain meaning of the words” in the legislation led to an “unambiguous conclusion” that a reporting obligation still applied in cases where an adult disclosed childhood abuse.

Speaking to The Irish Times, Mr McGrath said he intended to take his case to the Court of Appeal.

“We feel strongly that the issue needs to be pushed as far as it can be… This is going to have a chilling effect on anybody coming to HSE services,” he said.

Under procedures revised in December 2021, the HSE national counselling service informs prospective clients that if they disclose instances of past abuse, staff are required to make a referral to Tusla.

‘Existential crisis’

Mr McGrath said he was “deeply disturbed at a professional level” by this requirement, which he believed was an “existential crisis” for the counselling service.

He said in cases where people made disclosures and staff believed there could be a current risk to children, referrals had always been made to Tusla.

But if clients did not name their abuser and had no wish to engage with Tusla, reporting the disclosure had “no practical” child-protection purpose, he said. The blanket reporting requirement could act as a “barrier” to survivors engaging with counselling, he said.

Mr McGrath said he believed the current HSE operating procedures were based on a “misinterpretation” of the Children First Act.

His judicial review was taken against the HSE which, Mr McGrath said, as an employee, was an “uncomfortable position” for him to be in.

If his legal appeal to the court ruling was unsuccessful, the HSE counselling director said the “anomaly” should be addressed by amending the law.

Internal correspondence shows the HSE previously raised concerns with Tusla over the impact of mandatory reporting, where adults did not name their abuser and did not wish to engage with the agency.

In a briefing sent to Tusla in February 2020, the HSE said counselling staff had concerns that making referrals in these situations “may result in significant risk to the client’s psychological stability”.

Therapeutic services

It could also lead abuse survivors “to drop out from counselling” or prevent clients coming forward in the first place, it said.

“There is concern that clients availing of therapeutic services may not be able to discuss previous experiences of childhood abuse,” which could impact on their recovery, it said.

The HSE later took legal advice on the matter and decided any disclosures of past abuse to counsellors should be reported to Tusla, according to an internal June 13th, 2022, briefing.

The legal advice provided to the HSE acknowledged there could be an “alternative, competing interpretation” of the Children First Act, as advocated by Mr McGrath.

However, the HSE decided the “more expansive interpretation” to reporting was the correct approach and updated its guidelines for counsellors, which led to Mr McGrath launching a legal case.

The internal briefings and correspondence were released to The Irish Times under the Freedom of Information Act.

A HSE spokeswoman said it was satisfied the recent High Court judgment had clarified its position and “presents an accurate interpretation of obligations” under the Children First Act.

A spokesman for the Department of Children said it was considering whether there should be “some element of flexibility to reporting requirements” when it came to counselling services for adults.