Consultation on mandatory reporting of child sexual abuse

NHS Employers has responded to a consultation which proposes a legal requirement to report child sexual abuse.

8 December 2023

NHS Employers has responded to the Home Office's consultation on the recommendations made by the Independent Inquiry into Child Sexual Abuse (IICSA) to establish a mandatory reporting regime. 

IICSA's recommendation is based on gathered evidence which suggests that in many abuse cases, no action was taken to inform relevant authorities after a disclosure had been made to a responsible adult.

The Home Office initially sought views on how a duty to report child sexual abuse might affect children, organisations, workplaces and volunteers. This was followed by the launch of a consultation in November 2023 to set out proposals for delivering a mandatory reporting duty.

NHS Employers’ response highlights the existing legal duty to make referrals to the DBS and requests clarification on the details of the proposed regime, how it would align and how it would differ. 

Our full submission can be read below:

    • We are pleased to have the opportunity to respond to the Home Office consultation on mandatory reporting of child sexual abuse. 
    • We have a shared interest in supporting health and care professionals and services to provide the safest possible care. Instead of responding to the full series of consultation questions, we have focused on where we can add most value. Below we have outlined comments and observations about the proposed new mandatory duty which we hope will be helpful in shaping the policy, communication, and implementation of the new duty. 
    • A mandatory reporting regime already exists in the form of the Home Office legal duty to refer to the Disclosure and Barring Service (DBS). It will be vital to the successful implementation of a new duty, to be clear with those subject to it that although the new ‘mandatory duty to report child sexual abuse’ will trigger the ‘duty to refer to the DBS’, it does not override the rules and / or processes that currently exist under the DBS duty to refer. 
    • Pre-existing DBS guidance states that the employing organisation must follow its local safeguarding and disciplinary procedures to establish facts so that they can consider whether the person should be referred after this process. There may well be an automatic referral under pre-existing rules, depending on the gravity of the case and the danger to (child) patient. Any decision to refer to the DBS must meet two conditions: 

    I. The individual has either been removed from Regulated Activity with children or they are subject to restricted duties (i.e., have been moved into a non-regulated role) until facts are established to either corroborate or allay any allegations. This also applies where the individual concerned resigns from their job before an investigation/referral is concluded and the employer would have taken any such actions to mitigate risk had they remained in post. 

    AND one of the following: 

    II. There are reasonable grounds to think the individual has engaged in relevant conduct and that, the action / inaction has harmed or could put a child at risk of harm, or they have satisfied the harm test, or they have been cautioned or convicted of a relevant offence (i.e., an automatic barring is triggered). 

    • Relevant conduct regarding children is already set out in these duties to refer to the DBS and includes any action/inaction which: 
    1. Endangers a child or is likely to endanger a child.
    2. If repeated, would endanger the child or be likely to endanger the child. 
    3. Involves sexual material relating to children (including possession of such material). 
    4. Involves sexually explicit images depicting violence against human beings (including possession of such images). 
    5. Is of a sexual nature involving a child. 
    • To aid understanding, it would be helpful to have a visual representation / flow diagram to demonstrate how in practice this new duty to report child sexual abuse is intended to work with pre-existing employment practice and legal duties (e.g., DBS referral duty and professional regulatory body fitness to practise arrangements). 
    • The legal duty to refer to the DBS applies only to those who are working in Regulated Activity (RA), so it will be essential for the Home Office to provide clarity around who falls in scope of the new mandatory duty to report child sexual abuse (i.e., those in RA and others). We are pleased to see proposals to set out a bespoke list of additional roles which should be subject to the duty, rather than relying on ‘positions of trust’ as a definition. And we welcome further consideration about how this list of roles will be maintained. 
    • Using the same professional and barring measures for the perpetrator and individual who should have referred in line with the new duty and did not, seems disproportionate if applied to everyone. But there may be cases when this is the right course of action. We would like to see different forms of penalty be available based on the context and severity of failures. 
    • Breaches of the new duty to report should be investigated, once it is known or suspected a breach has taken place. At this point the investigator should decide whether to refer to the DBS for a barring assessment, based on current guidance from the DBS, or suggest a different outcome. And if the individual holds professional registration the regulatory body will be contacted to review under fitness to practise arrangements. The investigation into the facts of the case is the critical part and this should be commissioned by the organisation/s where the incident has taken place.

    Further information will be provided when the Home Office publishes a summary of the responses received.