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Healthcare practitioner's duties to report domestic violence in South Africa

  • Market Insight 20 July 2020 20 July 2020
  • Africa

  • Healthcare

With the rise of incidents of gender-based violence in South Africa, a situation which has been exacerbated by the global pandemic, healthcare practitioners are faced with a dilemma, if they should and can report suspected cases of abuse.

Healthcare practitioner's duties to report domestic violence in South Africa

Gender-based violence (GBV) has received increasing attention at a national and international level with calls for interventions and measures to mitigate the situation. While South Africa has made strides in uplifting women in the country, despite this progress, incidents of gender-based violence remain unacceptably high. The situation has unfortunately been exacerbated by the COVID-19 pandemic.

During lockdown Level 5 which lasted 35 days, there were approximately 1500 cases reported of gender-based violence in the Gauteng Province alone. As the lockdown restrictions began to ease incidents of gender-based violence decreased; however, due to the unbanning of alcohol sales in lockdown Level 3, tragically the number of cases began rising again.

A key issue with GBV is that it goes unreported. Various surveys have found that up to 40% of men abuse their partners but very few of these cases are reported to the authorities. As healthcare practitioners are on the frontlines and see the consequences of gender-based violence, they are faced with the dilemma of whether they may report it in instances where they suspect their patient is being abused.

Currently in South Africa, there is no mandatory legislation where a healthcare practitioner is obligated to report incidents of abuse in adults. Furthermore, while there is legislation regarding the reporting of abuse in minor children, this is not the case for adults, making the position unclear.

Healthcare practitioners are, in essence, not required by law to report the domestic violence and they cannot be sanctioned in law to do so; nevertheless, healthcare practitioners are naturally concerned for the safety of their patients thus they may wish to take further action.

Unfortunately, reporting the abuse without the patient's consent does carry a risk for healthcare practitioners as they will not be automatically civilly protected for disclosing confidential information without the patient's consent. Yet a healthcare practitioner may feel that their patient is in imminent, serious danger, warranting intervention and thus may deem it necessary to report it to the authorities. 

The National Health Act provides that there are only certain circumstances in which confidential information may be disclosed:

  • Where the patient consents to the disclosure of the information in writing;
  • Where a court has made an order to that effect or if any law requires that disclosure;
  • Where the non-disclosure of the information represents a serious threat to public health.

In addition, the HPCSA's Ethical Guidelines provide that:

  • Healthcare practitioners should honour the trust of their patients;
  • Respect the privacy, confidentiality and dignity of patients.

Disclosure of a patient's information without consent is only warranted where the failure to do so may expose the patient or others to risk, death or serious injury.

Furthermore, healthcare practitioners should be cautioned that reporting abuse to the authorities without the appropriate support (such as therapy, financial support and/or protection orders), could also expose their patients to harm by the abuser. Therefore, it's crucial to ensure that suitable measures are in place first before reporting it to the authorities.

If the healthcare practitioner is confident that their patient has the appropriate measures in place, the healthcare practitioner would also need to:

  • Inform their patient that they wish to obtain such consent in order to report the domestic abuse to the relevant authorities;
  • Explain to their patient that the abuser may be arrested and that the patient may be called to testify as a witness if the matter goes to trial;
  • Explain the possible harm that may befall the patient if the matter is not reported and that the patient could further be held legally liable if the harm is caused to the patient's minor children and the patient, being aware of the abuser's tendency toward violence, did not report it;
  • Explain that if the patient did not consent the healthcare practitioner may nonetheless exercise their right and responsibility to report the matter in the public interest;
  •  Record the steps taken to obtain adequate consent and if the healthcare practitioner intends reporting the abuse to authorities that the healthcare practitioner intends doing so irrespective of obtaining their patient's consent.

If the patient refuses to provide consent and the healthcare practitioner has done everything they can think of to persuade the patient but to no avail, the healthcare practitioner may consider reporting the matter to the relevant authorities, but it does carry risks.

Thus in the case of suspected adult abuse, it is preferable for healthcare practitioners to counsel the patient to report the violence herself/himself and to always bear in mind that reporting abuse without her/his consent may cause her/him more financial, emotional and psychological harm. 

The situation for reporting abuse of minor children is different and Section 110 of the Children's Amendment Act requires a variety of professionals, including therapists, to report abuse where there is a suspicion that a child has been abused in "a manner causing physical injury, sexual abused or deliberately neglected".  The suspicion of the abuse must be based on reasonable grounds i.e. a reasonable person would also conclude that there is likely physical abuse of the minor children.  

The Children's Amendment Act provides an indemnity for practitioners who report abuse to escape liability for breach of confidentiality.  However, reporting abuse to the authorities in the absence of clear events of abuse may well be an insufficient basis to report to the authorities and therefore if the children have not yet been affected, there would be no obligation to report it to the authorities. 

Notably, the failure to report abuse in children, by a professional could result in criminal sanctions.  Reporting of physical abuse of children is required as soon as the suspicion is formed on reasonable grounds.  In the case of suspected sexual abuse reporting in terms of the Sexual Offences Act, must be made immediately.

Similarly, the Older Persons Act creates a responsibility for any person who suspects that an older person has been abused or suffers from an abuse-related injury to report the abuse to the relevant authorities. It goes without saying that such a responsibility also vests in healthcare practitioners.

The healthcare practitioner can be clearly guided by the legislation governing the reporting of suspected abuse of minor children and the elderly while, the case remains far more ambiguous for adults. Healthcare practitioners may feel that they have an ethical and moral duty to report suspected cases of abuse but they should proceed with caution and rather assist their patients in getting appropriate support and counselling them to report the abuse on their own accord.

 

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