Your obligations – Assaults and reporting of domestic violence

Scenario A 
Dr Jones was working at the local emergency department late one Saturday evening when a patient arrived via ambulance following a period of unconsciousness. The report provided by a family member to the ambulance crew was that the patient had slipped in the bathroom and hit her head on the tiles. On questioning, the patient reported to Dr Jones that she had been hit in the back of the head with a baseball bat by a family member. The patient was reluctant to report the matter to the police. After clearing the patient of any head injury, but before further discussion can occur, the patient absconds from the hospital.
 
Scenario B 
Dr Smith has a patient who has presented on three occasions reporting altercations with her partner which have resulted in bruising to various parts of her body and face. At each presentation, Dr Smith notices that the extent of the bruising is becoming more severe. At each consultation, the patient has been adamant that she does not want to report the matter for fear of reprisal but informs Dr Smith that her husband has threatened that he will kill her. Her young children have witnessed the violence. She also divulges that during the most recent assault he raped her.
 
Scenario C 
Dr Bates is working at the emergency department when an 18 year old male presents with serious stab wounds to his arm. The male is refusing to provide any information as to the events that led up to the incident and becomes aggressive when Dr Bates indicates the police will be contacted.
 
The three scenarios described above represent situations a number of our members are confronted with in their day-to-day practice. Frequently the member rings MIGA for advice. The underlying concern that most doctors have in this situation is whether they have a duty, or are required, to disclose the physical assault to the authorities where the patient refuses to do so or to otherwise take steps to ensure their safety. Doctors we speak to are understandably concerned that if they fail to take action when the patient refuses to, further violence may occur which could be life-ending.
 
Maintaining a patient’s privacy is a fundamental component of the doctor-patient relationship and the platform upon which mutual trust is built. This is now enshrined in the Privacy Act 1988 including the Australian Privacy Principles and some State legislation.
 
The role of a health practitioner when managing adult patients who are experiencing physical violence is to provide medical care as opposed to legal advice. However it is important for health practitioners to have a good understanding of the legal framework so that information can be given to the victim patient who can then make an informed decision.
 
We highlight below some important considerations to bear in mind when confronted with adult patients who have encountered acts of violence.
 
Medico-legal considerations: 
When treating a patient who is suffering from, or is worried about, threats of violence:

• MIGA recommends that practitioners record a detailed history of the assault,  violent incident or threat.
• Those notes may ultimately become evidence in legal proceeding so it is important they provide a clear, accurate and contemporaneous account of the patient’s presentation.
• If you are required to provide a statement to the police or give witness evidence in a legal proceeding, the more detailed your notes are the better your evidence will be.

 
Reporting obligations and steps to take: 
The mandatory reporting obligations vary between States and Territories however, we provide some key information regarding doctors’ obligations below:

• Unlike in the case of the sexual or physical assault of children, there is no mandatory obligation to report physical harm to the police in Australia except in the Northern Territory, where there is a mandatory obligation to report any instance of serious physical harm from domestic violence. There are protections for persons who make reports in good faith.
• In the Northern Territory, New South Wales and Tasmania there are legislative requirements to report the exposure of a child to domestic violence. If you practise in these jurisdictions, ensure you have obtained sufficient history from the patient to assess whether you are required to make a mandatory report.
• When taking the patient’s history, it is important to assess the patient’s safety and inform them of options such as seeking police assistance, the availability of court protection orders and what local support services are available.
• If the patient doesn’t want to report, continue to support the patient by adopting a multi-disciplinary approach and assist the patient to engage with local support services.
• If the injury is serious and potentially life-threatening involve appropriate hospital or local support services and consider seeking the patient’s agreement to notify police.
• Under the Privacy Act 1988 and relevant State and Territory legislation and policy directives, disclosure without consent is permissible in some circumstances including to lessen or prevent a serious threat to the life, health or safety of any individual or to public health or safety.
• Gunshot or knife wounds may require reporting in your State or Territory.

 
Sexual Assaults:
Domestic violence can often lead to a patient disclosing allegations of sexual assault including rape. Where a patient presents that has suffered from sexual assault:

• A physical examination is best performed as soon as possible after the patient presents.
• If you are not trained in the collection of forensic evidence, refer the patient to a sexual assault service.
• Refer the patient to a counselling service whether or not the patient chooses to report the assault to the police.

 
Ultimately your patient may decide not to take any action. As difficult as that is, it is important that you continue to support the patient and provide them with options. They may not report initially but with the right support and information available, some patients will go on to take steps to address the violence they have encountered.
Please note that this article does not constitute legal advice. If you are uncertain about your obligation to report an assault or act of violence involving a patient, we encourage you to call MIGA’s claims and legal services team who can assist you to obtain the advice you need.
 
If you or someone you know is at risk of or has experienced physical or sexual violence, you can call the free 24 hour national counselling service on 1800 RESPECT.

 

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Other resources:

Clinical Guidelines – Abuse & Violence - RACGP has produced a detailed resource in their clinical guidelines which outlines various forms of abuse and the applicable state legislative framework and services available.
Mandatory reporting concerning children - Australian Institute of Family Studies provides a summary of mandatory reporting law across jurisdictions
MIGA article – Firearms and reporting obligations