October 11, 2019

The doctor will report you now: healthcare and the smacking ban in Scotland

The Scottish Parliament has passed the long-awaited smacking ban. Wales is likely to follow suit. Doctors, teachers and social workers already have to consider child protection issues, including whether to report concerns of abuse to the relevant authorities. Does this change in the law bring clarity for the healthcare profession, or will it mean many more referrals to child protection agencies?

Although the Children (Equal Protection from Assault) (Scotland) Bill was touted as a smacking ban, in fact it only removes the defence of reasonable chastisement where a parent hits their child. The law already prohibited any blow to the head, shaking or use of an implement.

What, then, will be the impact on health professionals? Respondents to the Scottish Parliament believed that it would provide clarity. One respondent said: "This is tricky territory. If a health visitor goes into a home and the parent askes, "is this [punishment] okay?", they cannot really answer that question unequivocally; at the moment, it is a value judgement, and the response is usually, "well, not really, but …". The Bill would provide absolute clarity."

Good news, then. Doctors, nurses and healthcare professionals can be clear with patients that all smacking falls foul of the law.

But what then of a doctor's responsibility to take action where they consider a child is being abused? Abuse covers physical abuse, and physical abuse includes assault – which is what a smack amounts to.

The GMC guidance, "Protecting Children and Young People: The Responsibilities of All Doctors" last updated in 2018 does not reflect the smacking ban. It states: "You must act on any concerns you have about a child … who may be at risk of, or suffering, abuse or neglect." The doctor should then work with parents to make sure that the child is receiving the care they need. If they still have concerns that a child is at risk of or is suffering abuse, they must tell an appropriate agency.

There is still some discretion for the doctor. The guidance states that they may, exceptionally, decide that sharing information immediately with an appropriate agency would not be in the child's best interests. But even then, they are to discuss this with the child or their parents, keep in contact with them and regularly review their decision.

So while we have clarity for the doctor on their parenting advice, there is some discretion – and some risk – as they consider whether to report that to an appropriate agency.

One purpose of reporting is to ensure that multiple minor incidents, which in totality may be serious, are not overlooked. And no doubt the standard response ought to be to report. However, there are inevitably complicating factors.

First, what about the doctor/patient relationship for both parent and child? The doctor will have to consider whether supporting the parent in making better decisions is an adequate reason not to share information immediately. What about proportionality? If every parent who smacks their child is reported to an outside agency, then in the early days at least there may be some degree of overloading. And what about the wider impact and unintended consequences that may flow from outside agency involvement?

As ever, part of the answer lies in all professionals carefully recording their decisions and their reasoning. But the GMC will surely also update its guidance to cover this change