The Law – Sexually Inappropriate Behaviour

The law about reporting sexual abuse and sexual offences, as it applies in the UK to psychotherapists and counsellors.

By Juliet Grayson

This will come as a surprise to many therapists, who mistakenly think they currently have a legal duty to report ‘harm to self or other’. The consultation document ‘Reporting and Acting on Child Abuse: Government Consultation’ provides clear verification when talking about the current child protection system in England. There is currently no general legal requirement on those working with children to report either known or suspected child abuse or neglect. [my italics] This clarifies that even teachers, child-minders, and those working with children, at present, do not have a legal duty to report child sexual abuse, general abuse or neglect – and nor do counsellors.

Statutory guidance, however, is very clear that those who work with children and families should report to the local authority children’s social care immediately if they think a child may have been or is likely to be abused or neglected. While statutory guidance does not impose an absolute legal requirement to comply, it does require practitioners and organisations to take it into account and, if they depart from it, to have clear reasons for doing so.

This statutory guidance applies to psychotherapists and counsellors who work for the NHS, certain agencies, and all health and care professionals working in occupations that parliament has said must be regulated. This includes ‘practitioner psychologists’ who have one of the psychologists ‘protected titles’ that are regulated by the Health and Care Professions Council (HCPC). What this means in practice is that whilst those therapists working for the NHS, certain agencies, psychologists regulated by the HCPC have no legal requirement to report child sexual abuse. They do have a duty, under their contract of employment, to report suspected child abuse to the authorities, as stated in the “Working Together to Safeguard Children” document produced by the government. To re-iterate, this is not a legal requirement. If a therapist working in the NHS fails to report child sexual abuse that would not constitute a criminal offence, but could lead to potential disciplinary action or sacking.

IT IS DIFFERENT FOR PSYCHOTHERAPISTS AND COUNSELLORS IN PRIVATE PRACTICE
Let’s consider a therapist or counsellor in private practice, in England and Scotland. There is no statutory regulation for psychotherapists and counsellors. Registration with UKCP, BACP or similar, is voluntary and optional. Thus a psychotherapist or counsellor in private practice is NOT bound by the statutory guidance. For them there is no current legal obligation to report child abuse to the authorities. Since they are self-employed, there is no duty under a contract of employment. This means that they have no duty to report at all, though ethically they may choose to. But it remains a choice, with no sanction for failure to report a case of child sexual abuse.

It is a different case in Northern Ireland. There, the law states that all citizens are bound to report illegal activity. There it is a criminal offence to fail to disclose any arrestable offence to the police under Section 5(1) of the Criminal Law Act (1967). This would obviously include psychotherapists and counsellors in private practice, and would include offences against children.

Wales brought in mandatory reporting in April 2016, via section 130 of the Social Services and Well-being (Wales) Act 2014. Reporting is required when there is suspicion that a child is at risk of abuse, neglect or other harm. But this duty to report applies to public bodies and their relevant partners of a local authority and the youth offending team, namely police, ministers, probation services, NHS trust, and the Local Health Board. It would apply to a therapist who works for the NHS. It does not apply to psychotherapists and counsellors in private practice.

New laws were passed in October 2015 with respect to female genital mutilation (FGM) in England and Wales. There is now a mandatory reporting duty which requires all regulated health and social care professionals, teachers, and police in England and Wales to report ‘known’ cases of FGM in under 18’s which they identify in the course of their professional work to the police. Regulated means people working in occupations that Parliament has said must be regulated. For example, doctor, nurse, pharmacist, paramedics and includes ‘practitioner psychologists’ registered with HCPC. Psychotherapists working within or employed on a contract through the NHS, certain agencies, and psychologists registered with HCPC would be bound by this duty to report. The duty to report FGM does not apply to psychotherapists and counsellors in private practice.

So, to summarise. Psychotherapists and counsellors who have a private practice in England, Wales, and Scotland, have no legal requirement to report female genital mutilation, child sexual abuse, general abuse or neglect. They can decide in consultation with their supervisor. Obviously this is an ethical decision and a personal choice for each counsellor. But at present, there is no duty upon them to report and no legal requirement to report.

Prepared by Juliet Grayson, Co-founder of StopSO The Specialist Treatment Organisation for Perpetrators and Survivors of Sexual Offences. www.stopso.org.uk

StopSO would like to thank Peter Jenkins, author of ‘Counselling, Psychotherapy and The Law’ for his advice on this paper, given in August 2016

This document is drawn from a report prepared by StopSO in relation to the Government Consultation on Mandatory Reporting of Child Abuse and Neglect in August 2016

To Cite: Grayson, J. (2016, August). The Law in the UK About Reporting Child Abuse: As It Relates to Counsellors and Psychotherapists. Retrieved from https://sexuallyinappropriatebehaviour.org/wp-content/uploads/2019/11/Law-in-the-UK-About-Reporting-Child-Abuse-by-JG.pdf https://sexuallyinappropriatebehaviour.org/articles/

NB This is an accurate representation of the law as at September 2018 – and still the case as at June 2021

FURTHER NOTES INCLUDING THE THINGS THAT COUNSELLORS HAVE A LEGAL DUTY TO REPORT

1. Counsellors have a legal duty to report terrorism
The Terrorism Act 2006

Requires disclosure of information regarding terrorist’s offences.
Required to inform on the basis of belief or suspicion
If this information occurs in the course of your profession or employment
The counsellor commits an offence for failure to inform. This can lead to a fine, imprisonment for up to 5 years, or both.
So it may seem to be ethical to inform your client first, but it is illegal to do so

2. Counsellors have a legal duty to report money made through drug trafficking
The Drug Trafficking Act 1986

Obliges a disclosure of persons making money through drug trafficking.
If this information occurs in the course of your profession or employment
It is a separate offence to inform the person concerned that you have informed the authorities
So again it seem to be ethical to inform your client, but it is illegal

3. Counsellors might have a legal duty to report someone who is unsafe to drive, this is a grey area
Road Traffic Act 1988

Sec 94 – if a person knows he is suffering from a relevant or prospective disability, he must inform DVLA. Failure to do so without reasonable excuse is an offence.
Sec 172 – any person who is aware that the driver of a vehicle is committing an offence, shall provide information “if required” that will lead to the identification of the driver. Failure to do so is an offence.
It is arguable whether this is a legal requirement to initiate information, but certainly is an ethical consideration

4. Counsellors do not have a legal duty to report child abuse
The Children Act 1989

There is no requirement within the Act itself to report suspected child abuse
Section 47 requires local authorities to investigate allegations, and other agencies, including health authorities to cooperate fully providing the relevant information
So child protection procedures are established at local/regional levels, and you need to establish a copy of what those procedures specifically require you to do

4. Counsellors do not have a legal duty to report harm to others

There is no UK legal requirement to report harm to others, although GMC & BMA recommend disclosure if concerned
In the USA they have the Tarasoff ruling. This gives USA counsellors a duty to protect people who are at risk of harm from others
There is no UK legal obligation to report harm to others

5. Client Notes: Counsellors do not have a legal duty to share any notes made about a client if asked for them by a solicitor or police.

The exception to this is when the counsellor has been asked for them through a court order signed by a judge.
Clients can ask to have their notes shared, and if it is individual work, explicit consent by the client is sufficient for a therapist to share notes with anyone, including the legal system.
However, clients often do not consider the consequences – that once shared everyone in the case may get to see all of the client’s notes and thus they are in the public domain.
If the counsellor has seen a couple as ‘the client’ then explicit consent is needed from both parties.
The counsellor’s duty is to try to ensure the confidentiality and to preserve the integrity of their notes
Counsellors can therefore resist production of their notes for solicitors, employers, etc., if they consider it is not in our client’s best interests to do so, even if the client has consented to their release
Counsellors cannot resist court orders signed by a Judge
Counsellors can resist police asking for notes

6. Defensible Decision Not To Disclose: The following would be important to consider, and record, if one was making a defensible decision not to disclose and report a client who was at risk of crossing the legal line with regard to child abuse images or contact.

Client did not disclose behaviour or intention that breached a confidentiality policy of the agency the therapist was working for, or known child protection agreements
The client reported no escalation or risky behaviour
The counsellor was working with client to move them towards safe behaviour
The counsellor was concerned that if the counsellor stopped therapy & the client disappeared, this might put children at increased risk
The counsellor did not know child’s details, such as name and address
The counsellor had discussed the case with their supervisor / Stop It Now helpline / StopSO / another professional who is very experienced in this field.

7. How can society make it safer for clients, who know they are sexually attracted to children, to come forward and ask for therapeutic help never to act on that attraction?

Where a known child is at an actual, current risk, counsellors have an ethical duty to take action.
But where a counsellor is working with a client who poses no actual risk, but who has ‘worrying thoughts’ – perhaps of being sexually attracted to children – it is important to have a ‘proprotionate response’
The counsellor should not over react. Nor under react. But the counsellor should make a realistic evaluation of the risk involved and have a proportionate response to the risk
NB There is no one in the UK who is considered ‘no risk’. For example, the counsellor, if undergoing a ‘risk assessment’ would be likely to be considered a ‘low risk’.
In Germany it is illegal for a counsellor to break confidentiality and report a client, even if they are sexually attracted to children. The German government has decided that this makes their society safer. It allows everyone who has sexually inappropriate behaviour to come forward and ask for therapeutic help, knowing that they will not be reported under any circumstances.

SEE ALSO BACP Guidelines updated July 2019
https://www.bacp.co.uk/media/6305/bacp-managing-confidentiality-legal-resource-gpia014-july2019.pdf