Confidentiality issues and mandatory reporting
Does the legislation provide legal protection for people involved in making a mandatory report? Yes. The legislation provides protection for:
• A person who makes a mandatory report (the reporter).
• A person who provides information which forms the basis of the report or causes a report
to be made (the informant).
What is a reporter and an informant protected from?
Reporters and informants who act in good faith will be protected from:
• Civil or criminal liability.
• Breach of a duty of confidentiality.
• Breach of professional ethics, standards, codes of conduct or from engaging in unprofessional
conduct,which would normally arise from the actions involved in making a mandatory report.
Will a mandatory reporter’s identity be protected?
Yes. As a general rule, both the reporter’s and informant’s identities must not be disclosed to others.
The mandatory reporting legislation provides strong confidentiality protection for mandatory
reporters and for those who provide information on the basis of which a report is made, or who
otherwise cause a report to be made.
A reporter’s identity can be disclosed in only limited circumstances. There are penalties of up to a $24,000 fine and 2 years imprisonment for people who breach these confidentiality provisions.
The mandatory reporting legislation is intended to strictly manage information about a reporter's identity in the interests of promoting the protection of children as well as protecting and supporting mandatory reporters.
Is there a penalty for disclosing the identity of a reporter?
Yes, it is an offence to disclose the identity of a reporter that carries a maximum fine of $24,000 and imprisonment for two (2) years.
This includes disclosing information which does not directly name the reporter or informant, but might allow others to work out who they are.
There may be cases where disclosing identifying information is necessary to protect a child or is unavoidable. The legislation has made allowances for these cases.
However, identifying information should not be revealed just because the legislation allows it. People still need to carefully consider whether a person’s safety would be put at risk by revealing their identity.
When might a reporter’s identity be disclosed?
Revealing identifying information about a reporter or informant will be allowed where:
• The Department sends a copy of every written report to the Western Australia Police (as required
by law), that includes the reporter’s details.
• A person is performing functions under the Children and Community Services Act 2004.
• A Department officer finds it necessary to do so during child protection, family
law or adoption proceedings relating to the child.
• A person is being prosecuted for an offence relating to mandatory reporting (for example, making
a misleading report).
• The reporter consents in writing to the identifying information being revealed.
In other cases, a Court must give permission for identifying information to be revealed and can only do so where:
• satisfied that it is necessary to safeguard and promote the wellbeing of the child, or critically
important in the proceedings and there is compelling reason in the public interest to make the
disclosure; or
• the person has consented to the disclosure.
Similar limits apply to the use of the report as evidence and the questioning of persons about the report during legal proceedings. Even where disclosure of identifying information is allowed, a Department officer can object where they believe that the disclosure endangers, or is likely to endanger, a person’s safety or psychological health.
How does mandatory reporting impact on professional confidentiality principles?
A person who, in good faith, makes a mandatory report about child sexual abuse is protected, in making the report, from breaching any duty of confidentiality or secrecy, professional ethics, standards or principles of conduct which would normally apply (for example, doctor/patient confidentiality).
Mandatory reporters must comply with the legislative requirements to report child sexual abuse, despite internal organisational policies, professional codes of conduct or confidentiality requirements which would normally apply.
Are mandatory reporters protected from liability for making a report?
Yes. Mandatory reporting legislation provides legal protection to mandatory reporters who make a report, in good faith, about child sexual abuse. If reporters are complying with their obligation to make a mandatory report, they will not incur any civil or criminal liability by making the report.
What should a mandatory reporter do if they have concerns that, as a result of making a report, they may be placed in danger of being identified or at risk of retribution?
For example… A community health nurse in a remote community has formed a belief that a child has been the subject of sexual abuse on or after 1 January 2009, or is the subject of ongoing sexual abuse. The child’s family is known to be violent, and the health worker is concerned that if he/she is identified or suspected of being the reporter, his/her welfare will be at risk.
When mandatory reporters are concerned for their own safety, it is important that the mandatory reporter’s organisation has a risk management plan in place, and that the mandatory reporter is able to contact their supervisor, manager or other key staff in their regional office for support.
Mandatory reporters in this situation can also contact their local Western Australia Police office about their concerns.
The mandatory reporter can advise the Mandatory Reporting Service officer at the time of making the report that they have a concern for their own welfare.
The mandatory reporting legislation does provide strong confidentiality protection for reporters by limiting the circumstances in which the identity of a reporter can be disclosed. There are penalties of up to a $24,000 fine and 2 years imprisonment for people who breach these confidentiality provisions.
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FAQ
About mandatory reporting legislation
Making a mandatory report
Information provision in a mandatory report
After a report is made
Responding to a child who makes a disclosure
Indicators of child sexual abuse
Training and information for mandatory reporters
Additional resources to implement mandatory reporting
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