The High Court has clarified that Health Service Executive counsellors and therapists are always required to send a report to Tusla when an adult client makes a disclosure of historic child abuse.
Tom McGrath, director of counselling with the HSE at John Street, Sligo, challenged the HSE’s adoption of new operating procedures which put into practice a revised interpretation of the statutory obligations imposed under the 2015 Children First Act.
The issue arose due to the altered statutory interpretation of the word “child” in the Act.
Mr McGrath submitted that the procedures, which apply to National Counselling Service staff, wrongly do not distinguish between current and retrospective harm. A report must be sent to Tusla, even if the client is now an adult, there is no current risk of harm to a child and the alleged perpetrator is not identifiable.
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He said that, prior to the commencement of counselling, an adult client must consent in writing to a report of their account of abuse being sent to Tusla. A person is denied access to the service until written consent is obtained, he said.
Under the previous policy, issued in 2019, he said, counsellors were obliged to report current concerns where they had “reasonable grounds to suspect harm or risk of harm to any child currently under the age of 18″. They also had to report abuse allegations if the alleged perpetrator was identifiable.
The HSE submitted there was no exemption from the obligation to make a report to Tusla in the event that the reporting might cause harm to the client.
In a judgment, Ms Justice Siobhán Phelan said the “plain meaning of the words” in the 2015 Act leads to an “unambiguous conclusion” that a reporting obligation applies to a disclosure of child abuse by an adult.
The 2015 Act does not require the consent of the person who has been harmed before the report must be made to Tusla, she said.
The obligation is on the counsellor to properly inform an individual about how confidentiality in counselling is managed and the limitations on confidentiality, including the reporting obligations.
