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. 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.

The issue arose due to the statutory interpretation of the word “child” in the Act.

Tom McGrath, director of counselling with the HSE at John Street, Sligo submitted that the procedures, which apply to National Counselling Service staff, wrongly do not distinguish between current and retrospective harm.

The ramifications have been flagged by experts working in the area, who are concerned it could “put unnecessary pressure” on survivors to relive traumatic incidents. The new interpretation of the Children’s First Act, which was introduced in 2015, has found that therapists are always required to send a report to Tusla when an adult client makes a disclosure of historical child abuse.

Delivering judgment in the case, Ms Justice Siobhán Phelan held that the provisions of the legislation were clear and applied to counsellors in the HSE National Counselling Service even where the report, in the counsellor’s opinion, might cause harm to the service user.

Further, it was held that the proper construction of the 2015 Act required a report to be made where an adult disclosed past harm suffered as a child to a counsellor.

The NCS was concerned that the reporting obligations would pose a risk of harm to clients. However, the HSE was satisfied that the policy reflected the legal position under the 2015 Act. As such, the applicant issued proceedings challenging the policy.

Anne Scully, director of the Waterford Rape and Sexual Assault Centre, a member of the Rape Crisis Network, told The Journal that counsellors are awaiting clarification on how it extends to some of their clients. “If everything has to be reported on, then we need to report even if somebody’s abuser is dead? That would be my understanding of it. I don’t see how that makes sense or, for example, if a perpetrator is completely incapacitated. …we know it’s difficult enough for survivors as it is to come forward for help, because it’s something that they may never have talked about and they may have tried their best to forget so, for them, opening it up is painful.”

In research published last year examining retrospective disclosures of childhood sexual abuse, Joseph Mooney, Assistant Professor of Social Work at UCD found an average of 238 referrals being made every month to Tusla in 2020. It also found 74% of people disclosed more than a decade after their abuse.

 

NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.