The Constitutional Court’s finding that corporal punishment cannot be justified removed any discretion that doctors previously had as to whether the force applied amounted to a reportable offence under the Children’s Act, writes Salona Lutchman of the University of Cape Town in SA Medical Journal. While trifling incidents might not be prosecuted, if a medical doctor — or indeed any health professional — suspects that corporal punishment has been inflicted on a child, reporting it is mandatory.
“The FORSA judgment removes any sliding scale of severity that a medical doctor could previously use to decide whether evidence of corporal punishment amounted t a reportable offence,” Lutchman told MedicalBrief. There are no shades of grey, reporting is now mandatory and failure to do so is an offence, also under the professional conduct and ethics regulations of professional oversight bodies like the Health Professions Council of SA.”
Lutchman, a Senior Lecturer in Public Law, writes in the SAMJ:
Corporal punishment or reasonable chastisement has a long and cruel history in South Africa (SA). Used as a form of corrective discipline since time immemorial, it has been used to inflict intentional violence on certain members of society. Over the course of time, SA has abolished the punishment in its varied contexts, finding it to infringe numerous human rights. In September 2019, the SA Constitutional Court held in the Freedom of Religion South Africa (FORSA) judgment that corporal punishment inflicted by parents (including guardians and caregivers) on their children was unconstitutional. With this judgment, corporal punishment has finally been completely eradicated from the SA law books.
What does the FORSA judgment mean for medical doctors who suspect that a child has been inflicted with corporal punishment at home? Children are right holders. The Constitution and the Children’s Act provide children with a suite of rights, the most foundational being that the best interests of the child is of paramount importance in every matter regarding the child.
In addition to the best interests principle, the Constitutional Court in FORSA has singled out particular rights that bear crucial importance. The first is that the child has freedom and security of person, which entails a right to be free from all forms of violence, whether enforced by public or private sources. Furthermore, the child’s dignity is to be respected. Medical doctors currently have certain statutory reporting duties in relation to children who have been abused. In terms of section 110(1) of the Children’s Act, if a medical doctor reasonably believes that a child has been abused in a manner causing physical injury, sexual abuse or deliberate neglect, she must report that conclusion in the prescribed form (Form 22) to a designated child protection organisation, the provincial department of social development or a police official.
If the report has been made in good faith, the medical doctor cannot be sued in court on the basis of the report. However, if one fails to make the report when there are reasonable grounds to do so, there is the possibility of criminal sanctions. Form 22 requires the following: details of the informant and the child; information providing evidence of the alleged abuse or neglect; the possible perpetrator and his/her identifying details; any previous history of abuse known to the informant; any prior children’s court interventions; details of the circumstances in which the present abuse or neglect occurred; details regarding medical interventions; and previous social work interventions or police actions taken in relation to the abuser.
There is quite a high threshold that must be satisfied – the medical doctor must complete the report on reasonable grounds, not a mere suspicion. This ensures that reports are limited to those cases where intervention from the authorities is actually required. Medical doctors are not the only health professionals with such a duty. Dentists, midwives, nurses, occupational therapists, physiotherapists, psychologists, speech therapists, homeopaths and traditional health practitioners also bear this duty.
There is a high standard of proof – the reporter must reach the conclusion on reasonable grounds that abuse and/or neglect has occurred (my emphasis). This means that the medical doctor must have some evidence to show that the abuse or neglect has occurred. The duty to report is triggered when the prohibited conduct caused physical injury, sexual abuse or deliberate neglect. The Children’s Act defines ‘abuse’ as: ‘[ …a]ny form of harm or ill-treatment deliberately inflicted on a child, and includes – (a) assaulting a child or inflicting any other form of deliberate injury to a child; (b) sexually abusing a child or allowing a child to be sexually abused; (c) bullying by another child; (d) a labour practice that exploits a child; or (e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally; …’.
Given that the harm suffered by a child due to corporal punishment takes a physical form that potentially impacts the physical, psychological and emotional wellbeing of the child, it seems safe to assume that corporal punishment is a reportable conduct. Prior to the FORSA judgment, a doctor would not be bound to report a known incidence of corporal punishment, as the harm inflicted by the parent could be reasoned away as being corrective discipline or reasonable chastisement. Of course, if the doctor believed that the physical force inflicted was beyond the bounds of what would be considered reasonable, then the defence would fall away. Under these circumstances, the doctor was statutorily required to report the abuse to the relevant authorities.
However, it would seem that the FORSA judgment removes this spectrum of discretion given to the medical doctor. The Constitutional Court found that corporal punishment could not be justified, as it breached a child’s right to human dignity and to be free from all forms of violence. In terms of the Children’s Act, ‘abuse’ includes any form of harm or ill treatment deliberately inflicted on a child, whether causing physical injury or psychological or emotional harm. It would therefore be safe to conclude that if a medical doctor witnessed or suspected that a parent or guardian inflicted corporal punishment on a child, that doctor would be statutorily obliged to report such conduct.
Would it make a difference if the corporal punishment was only to a slight degree, i.e. a minor infraction? Here it would seem that the law is unclear. While the Constitutional Court has said that even the minutest of infractions still results in the conduct being unlawful, it may not result in the prosecution of the parent on the basis of the de minimis non curat lex principle (the law does not concern itself with trifles). This would seem to indicate that the reporting obligation remains (despite the degree of infraction) and the discretion to prosecute rests on the usual legal authorities. The only discretion to be exercised by the medical doctor is to determine if there are reasonable grounds to suspect that the corporal punishment has been inflicted.
Study details
Corporal punishment in the home: Is there a legal duty on the medical doctor to report it?
Author: S Lutchman
Published in SA Medical Journal in July 2021
Full article in South African Medical Journal (Open access)
See more in the MedicalBrief archives:
Less aggression among the young when corporal punishment banned
Impact of physical abuse and punishment on kids
HPCSA accused of dragging its heels over complaint against doctor
More spanking, more problems — 50-year meta-analysis