Key points:
However, there is no obligation on pharmacists to report, sexual activity between children as set out in Section 14 of the 2015 Act if those children present at a pharmacy for treatment (for example requesting emergency hormonal contraception).
This article gives an overview of the obligations placed on pharmacists by Children First Act 2015 (the “2015 Act”). The 2015 Act provides the statutory framework for the 2017 edition of Children First: National Guidance for the Protection and Welfare of Children (“Children First”). This edition replaces the earlier widely used 1999 edition of these guidelines. It was envisaged by the legislature that the Act and Children First would be utilised side by side.
The overall purpose of the Act is to make further and better provision for the care, welfare and protection of children in Ireland.
Children First sets forward principles of good practice in the identification and reporting of suspected child protection concerns. All pharmacists and pharmacy owners should be familiar with Children First.
Child abuse and neglect are categorised in Children First into four main categories of neglect, emotional abuse, physical abuse and sexual abuse. While such abuse or neglect may take many forms, Chapter 2 of Children First provides detailed examples of signs and symptoms of each category together with guidance on how to recognise each. Pharmacists should familiarise themselves with this Chapter. The safety and wellbeing of children should always take priority.
Other legislation that will be considered in this article is the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (the “Criminal Justice 2012 Act”).
The operative provisions of the 2015 Act, namely Part 2 of the Act, were commenced on 11 December 2017 and provide that a Relevant Service has three months from the date of commencement to undertake a risk assessment and prepare a written statement referred to as a “Child Safeguarding Statement” (“CSS”).
Section 2 of the 2015 Act defines a child as being “a person under the age of 18 years other than a person who is or has been married”.
Paragraph 4 of Schedule I provides that the term Relevant Service applies to “[a]ny work or activity which consists of treatment (including assessment which may lead to treatment), therapy or counselling provided to a child”. In addition, Paragraph 5(c) of this Schedule provides that “[a]ny work or activity which consists of the provision of formal consultation with, or formal participation by, a child in respect of matters that affect his or her life . . . “. This may also apply to community pharmacies.
In particular, services such as the children’s flu vaccination service, the upcoming Common Conditions Service, advice on contraception including the emergency hormonal contraception service, and counselling on prescription-only and non-prescription medicines as provided for in Regulation 9 of the Regulation of Retail Pharmacy Businesses Regulations 2008 and Clause 9 of the Community Pharmacy Contractors Agreement would very likely bring the services provided by pharmacies into this category.
Section 11 of the 2015 Act as set out above was commenced on 11 December 2017 and provides for a period of three months in which “relevant services”, in addition to preparing the CSS, must appoint a relevant person to be the first point of contact in respect of any child safety issues.
Pharmacists and pharmacy owners should ensure that the risk assessment and child safeguarding statement:
Following this risk assessment the pharmacist should:
A copy of the child safety statement should be available to members of staff, the public, and/or any member of the TUSLA if requested and a summary of the statement should be displayed within the pharmacy premises in a place that is accessible to members of the public.
The statement should be reviewed at least every 24 months and sooner if appropriate or necessary.
Failure to comply with the requirements of the 2015 Act outlined above in the first instance may lead to TUSLA providing written notice to the pharmacy to inform them of the failure, requesting a copy of the child safeguarding statement and risk assessment and providing the timeframe in which to comply.
Failure to comply with this request may lead TUSLA to issue an “advance notice” advising the pharmacy that it intends to issue a non-compliance notice.
Submissions may be made to TUSLA within 14 days of the issue of such an advance notice. If TUSLA is satisfied with these submissions, no further action is taken.
If it decides to proceed it may issue a non-compliance notice which is appealable to the District Court within 21 days of its issue. If the notice comes into effect the relevant service will be entered onto a “Register of non-compliance” which is a public register. The entry is subsequently removed once the risk assessment and child safeguarding statement have been issued.
Per paragraph 10 of the 2015 Act, pharmacists are not “mandated persons” as defined at Schedule II of the Act. Therefore, pharmacists are not mandated to report concerns to TUSLA under the Act.
As such, there is no obligation on pharmacists to report, for example, sexual activity between children as set out in Section 14 of the 2015 Act if those children present at a pharmacy for treatment (for example requesting emergency hormonal contraception).
However, a variety of issues, such as the need to report child welfare concerns to appropriate authorities, or the potential entitlement of parents or legal guardians to access their child’s records under the Freedom of Information Act 2014, may compromise a young person’s rights to confidentiality and privacy. It is important that a young person is never promised absolute confidentiality. Confidentiality may be compromised where there are reasonable grounds for believing that:
Pharmacists have general reporting obligations under Children First and any knowledge, or reasonable grounds for concern, that a child may have been, is being, or is at risk of being sexually abused, harmed or neglected must be reported to TUSLA without delay.
The following are examples of reasonable grounds for concern:
This list is not an exhaustive list of reasonable grounds for concern.
Under the Criminal Justice 2012 Act, it is an offence for any person (and not just Mandated Persons), to fail to disclose to An Garda Síochána, without reasonable excuse, information concerning certain serious offences committed against a child or vulnerable person. These serious offences are listed in Schedule 1 and Schedule 2 to the Criminal Justice 2012 Act. Schedule 1 deals with offences committed against a child and includes most sexual offences and offences such as assault causing harm or serious harm, cruelty to a child, abduction of a child, manslaughter and murder (all are offences that carry a penalty of imprisonment lasting five years or more). Schedule 2 deals with offences committed against vulnerable persons and includes most sexual offences, offences such as assault causing harm or serious harm and human trafficking.
Under the Criminal Justice Act penalties vary from fines and up to 12 months in prison to sentences of five or more years for the non-reporting of serious offences such as assault causing harm; assault causing serious harm; cruelty to a child; child abduction and manslaughter.
The Act acknowledges that in certain circumstances a person may have a reasonable excuse for not making a report. Such a reasonable excuse may be considered a defence to not making a report to An Garda Síochána. The defences that are anticipated in the Act are set out below. However, it may ultimately be a matter for a court to decide if the excuse is reasonable:
In conclusion, the 2015 Act places significant legal and ethical obligations on pharmacists and pharmacy owners to safeguard the welfare and protection of children who may engage with their services. While pharmacists are not designated as mandated persons under the 2015 Act, they still have important responsibilities under both the Children First guidelines and the Criminal Justice Act 2012. These include the preparation of a CSS, carrying out risk assessments, and ensuring appropriate policies, training, and reporting procedures are in place. Failure to comply with these duties may result in serious legal consequences, including penalties under criminal law.
Ultimately, pharmacists should be vigilant, informed, and proactive in identifying and addressing potential risks to children, ensuring that the pharmacy environment remains a safe and supportive space for all young people.
About the authors: Niall Sexton is a Senior Associate and Micaela Fitzpatrick is an Associate in DAC Beachcroft Dublin Regulatory, Professional & Public Law team which is led by Gary Rice, Partner. DAC Beachcroft has advised the IPU and its members for many years and specialises in the legal aspects of pharmacy practice. For more information, please contact Niall or Micaela. For more information on any legal aspect of pharmacy practice, please contact Gary Rice.
A Template of the Child Safeguarding Statement is available at ipu.ie > Professional > SOPs and Supporting Materials > Templates.DAC Beachcroft Professional and Regulatory Practice Team
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