Doctors’ responsibilities in child protection cases
June 2004
Part three: statutory child care proceedings
- Children Act 1989
- The concept of ‘significant harm’
- Emergency protection proceedings
- Referral to social services departments
- Section 47 enquiries
- Criminal proceedings
The Children Act 1989 places specific duties on agencies to co-operate in the interests of vulnerable children. Of particular relevance to doctors are Section 17, which places a general duty on every local authority to safeguard and promote the welfare of children within their area who are in need, and Section 27, which provides that a local authority may request help from any health authority, Special Health Authority or National Health Service Trust in pursuance of its duty to provide support and services for children in need. Section 47 places a similar duty on the same bodies to respond to a request to help a local authority in its enquiries in cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm. Doctors should respond to a request for assistance in making enquiries unless ‘doing so would be unreasonable in all the circumstances of the case’. [Go to reference 14]
It is important that doctors who may come in contact with children in need are familiar with the relevant parts of the statutory proceedings for the care and protection of children. These can be quite complex, and the key areas that doctors are likely encounter are given below. Doctors should bear in mind however that local procedures may vary.
The concept of ‘significant harm’
The Children Act 1989 introduced the concept of ‘significant harm’ as the threshold for compulsory intervention in child protection cases. As discussed above, where local authorities have reasonable cause to suspect that a child is suffering, or is likely to suffer significant harm they are under a duty to investigate the claim. Furthermore, courts can only make a care or supervision order if they are satisfied that:
- The child is suffering, or is likely to suffer, significant harm; and
- That the harm or likelihood of harm is attributable to a lack of adequate parental care or control.
Any doctor working with children who may have to refer children onward for treatment or investigation should also ensure that they are familiar with appropriate professionals among the local providers of specialist health services, such as paediatricians.
Emergency protection proceedings
Where there is a risk to the life of a child or a likelihood of serious immediate harm, an agency with statutory child protection powers – either the local authority, the police or the NSPCC – can act quickly to secure the immediate safety of the child. Doctors do not have powers to intervene directly, and their role here is usually limited to the initial process of referral or to the subsequent provision of information where required. Where doctors believe that a child is immediately at risk of serious harm, they should inform the police or social services without delay, usually by telephone, and confirm the telephone referral in writing.
When considering emergency action the agency needs to take account of whether action is also required to safeguard other children in the same household or residential institution. Responsibility for taking emergency action rests with the local authority in whose area the child is found although this sometimes involve advice or action by other service providers, such as the police or the education department.
Referral to social services departments
Social services have a duty, under the Children Act 1989, to provide assistance to all children whose health or development may be impaired without the provision of support or services. Where a doctor or other health professional has reason to believe that a child or young person is suffering, or may be at risk of suffering significant harm, then those concerns should be referred promptly and in detail to the social services. Ordinarily it is quicker to make the initial report by telephone, but any such contact should be followed up immediately in writing. Any contact should be fully noted in the medical record, and copies of any letters sent or received should also be kept in the record. Where the child is competent, referral should ordinarily proceed with the consent of the child, although in certain circumstances, where, for example, the child or third party is at risk of serious harm, it may be necessary to act without the child’s express consent. If time permits, children should be given the opportunity to consider the possibility of consensual referral. If a decision is made to go ahead without consent, the reasons for this should be discussed with the child. Where the child lacks competence, any decision to refer should ordinarily be done with the agreement of parents or carers, provided this would not put the child at increased risk of harm.
At the end of the discussion about a child, both the health care professional, and the social services department should be clear about who will be taking what action, or that no further action is to be taken. These decisions, and the reasons for them should be clearly documented in the child’s medical record.
The social services department normally makes a decision about the next course of action within 24 hours of receiving the original referral. It decides whether there are grounds for concern about the child’s health or welfare, and whether there is any potential or actual harm. Referrals may lead to no further action, to the direct provision of services, including emergency intervention, or to a fuller assessment of the child’s needs. Any decision that social services make, including a decision to take no further action, should be relayed back, along with its justification, to the referring health care worker. This information should be clearly held in the child’s medical record, bearing in mind that children and carers have rights of access to the medical record. (For further information about rights of access to medical records, see the BMA’s guidance note, Access to health records by patients. [Go to reference15])
Section 47 enquiries
As discussed above, Section 47 of the Children Act 1989 places a duty on Trusts to respond to a request to help a local authority in its enquiries in cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm. Where doctors are asked to respond to Section 47 enquiries, the consent of the child, where he or she has capacity, should be sought. If the child lacks capacity, the consent of the parent or career should be sought. Information can be released without consent, however, where seeking consent is likely to increase the risk to the child or children concerned, or to a third party.
Criminal proceedings
Significant harm to children gives rise to both child welfare and law enforcement concerns. The police have a duty to carry out thorough and professional investigations into allegations of crime, and the obtaining of good evidence is often in the best interests of a child, as it may make it less likely that a child victim will have to give evidence in court. It also contributes to the development of a sound empirical base upon which to develop future support and help for the child and family. On the other hand, children should not be exposed to multiple intimate examinations simply in an attempt to provide evidence for court proceedings. Doctors and other health care workers therefore need to keep in mind that child protection work can lead to criminal proceedings. Leading or suggestive communication with children or other members of the family should always be avoided. Advice should be sought either from the police or the Trust legal team where a doctor believes that criminal offences may have been committed. Initially, such discussions should respect the confidentiality of the individuals concerned, unless or until evidence of harm is established when it may be necessary to proceed without the consent of parents, carers, or, exceptionally, the children concerned.