THE RAMIFICATIONS OF a High Court ruling stating that therapists must always notify Tusla where they are informed of historical sexual abuse has been flagged by experts working in the area, out of concern it could “put unnecessary pressure” on survivors to relive traumatic incidents.

The fresh interpretation of the Children First Act, which was introduced in 2015, has found that therapists are always required to send a report to Tusla when an adult client makes a disclosure of historical child abuse.

This has caused concern for some working in the area as they believe certain clients will not be ready to go forward with speaking further about their abuse.

Under the clarified approach, an adult undergoing counselling for historical sexual abuse could kickstart a process which would see Tusla required to launch an investigation and, potentially, interview people in relation to the abuse they suffered. 

It arises from a legal challenge by a HSE counselling director in Sligo who contended, as per a policy issued in 2019, that counsellors were obliged to report current concerns where they had “reasonable grounds to suspect harm or risk of harm to any child currently under the age of 18″, and if the alleged perpetrator was identifiable during therapy sessions.

In her judgment, Ms Justice Siobhán Phelan came to the “unambiguous conclusion” that a reporting obligation applies to a disclosure of child abuse by an adult.

Therefore, counsellors may be mandated to report the abuse to Tusla where it will then be the Child and Family Agency’s decision “to determine what investigation or further steps ought to be taken” in relation to the allegations of abuse.

In its submission, the HSE contended there was no exemption from a counsellor’s obligation to make a report to Tusla in the event that the reporting might cause harm to the client.

Anne Scully, ditector of the Wateford Rape and Sexual Assault Centre, a member of the Rape Crisis Network, told The Journal that counsellors are awaiting clarification on how it extends to some of their clients.

“If everything has to be reported on, then we need to report even if somebody’s abuser is dead? That would be my understanding of it. I don’t see how that makes sense or, for example, if a perpetrator is completely incapacitated.

“We know it’s difficult enough for survivors as it is to come forward for help, because it’s something that they may never have talked about and they may have tried their best to forget so, for them, opening it up is painful.”

If Tusla receives a report notifying it of sexual abuse, then it makes an assessment as to whether or not it needs to conduct an investigation, some of which will be based on a potential danger to children.

Scully noted that as part of that investigation, Tusla may look to interview the survivor, and may also inform the person subject to allegations of abuse that an allegation has been made.

“We do say to people, that there are instances where we will absolutely have to report the abuse to Tusla. What I mean by that is that it’s very clear from the immediate moment that children are in danger from suppression and that’s not something that anybody can countenance leaving,” she said.

“Obviously we work with them in as sensitive a way as we possibly can. We make everybody aware of the limitations to confidentiality before we start any process with them.

“But I have to say for myself, I don’t see the point in reporting the situation where I’m putting that pressure on a survivor where, for example, the abuser is dead, completely incapacitated, or maybe they don’t even know who their abusers are. We need that clarified.”

Joseph Mooney, who is an assistant professor of social work at UCD, said there is a risk the change puts an “adult in a therapeutic relationship in a difficult situation”, and the current form of reporting can often be too “blunt”.

“I think the judgement is an accurate reading of the law as written. What is hidden, or perhaps exposed, by the judgement is the poor consideration of trauma in such legislation,” he said.

“The other side of that, is that where these is an immediate risk of harm identified that needs to be acted on immediately. So that balance needs to be struck.”

Wiggle room may be found if the Oireachtas were to to legislate for a special statutory provision for counsellors, as Ms Justice Phelan indicated in her judgement.

She said that if she were to allow special provision in her judgement for counsellors, it would “undermine” the scope of mandatory reporting obligations of professionals, but that any reasons which “might justify a different treatment of some professionals” would be “a matter for the Oireachtas” to decide. 

According to Mooney, a mechanism preventing automatic reporting in historical cases may allow the law to deal with the area in a “trauma informed way”, but which could only be addressed by the Oireachtas. 

In research published last year examining retrospective disclosures of childhood sexual abuse, Mooney found an average of 238 referrals being made every month to Tusla in 2020. It also found 74% of people disclosed more than a decade after their abuse.