Mandatory reporting obligations within the context of health research: Grappling with some of the ethical-legal complexities

• Jurisdiction: South Africa
• Date: 01 April 2023
• Pages: 4-8
• Author: A Strode,C Badul
• Published date: 01 April 2023
• DOI: 10.7196/SAJBL.2023.v16i1.e824

4 April 2023, Vol. 16, No. 1 SAJBL

ARTICLE ARTICLE

Mandatory reporting is aimed at the early detection of abuse and

neglect to facilitate the identification of persons in need of care

and/or protection and then to ensure state intervention.[1,2] Globally,

it has been in place since the 1960s.[3] Initially only doctors had a

legal duty to report suspicions of child abuse under mandatory

reporting laws.[4] Later, further obligations were added to require

reporting by other professionals, and the circumstances in which

information should be reported were extended.[5]

In some instances, researchers and other members of the study

team may encounter reportable information. This issue must be

considered in the design, implementation and review of health

research. There are complexities involved because of the differing

approaches of the law and ethical guidelines. The law requires

mandatory reporting and in most cases there is limited discretion

regarding not complying with this obligation. However, ethical

guidelines advocate a more nuanced approach, allowing in some

instances non-compliance with the law. This creates an ethical

dilemma of whether to report information or not. There is also

the unanswered question of how to establish when it would be

ethically justified not to comply with the law. This article builds on

earlier work.[6-8] Its main objectives are to describe the mandatory

reporting obligations in South African (SA) law; to discuss the

ways in which these provisions apply within the context of health

research; and to propose some factors which could be used to

determine whether it is ethical to not report information.

Mandatory reporting in SA law

There are two main clusters of reporting obligations in SA law.

The first relates to special protections for three vulnerable groups:

children, the mentally disabled and the elderly. The second relates

to knowledge of crimes that have been committed.

Reporting aimed at protecting members of

vulnerable groups

Reporting in terms of the Children’s Act of 2005

There are several mandatory reporting obligations regarding children.

They relate to certain harmful behaviours by adults or other children and

to some circumstances in which children require protection. S110(1) and

(2) of the Children’s Act use mandatory reporting obligations to facilitate

the identification of and the providing of assistance to vulnerable

children to protect them from further harm.[9]

S110(1) of the Act lists persons who must make such reports, including

for example, medical practitioners, nurses, psychologists, social service

professionals and social workers.[9] There is also a broader category of

voluntary reporting in s110(2) where ‘any person who on reasonable

grounds believes that a child is in need of care and protection’ may report

such a belief.[9] The use of the word ‘may’ implies that such persons are not

compelled to report.

In terms of s110(3)(a) the reportable information must be submitted

to the provincial Department of Social Development, a designated child

protection organisation such as Child Welfare or the police for further

investigation.[9] If the reporter acts in good faith, they are protected from

civil liability in terms of s110(3)(b) of the Act.[9] In other words, even if the

information later turns out to be inaccurate or false, they cannot be held

liable. Against this background the following are reportable:

(a) Physical, sexual and emotional abuse

Abuse is defined very broadly in s1 of the Children’s Act as any

form of harm or ill-treatment deliberately inflicted on a child,

This open-access article is distributed under

Creative Commons licence CC-BY-NC 4.0.

Mandatory reporting obligations within the context of

health research: Grappling with some of the ethical-legal

complexities

A Strode, PhD; C Badul, PhD

School of Law, University of KwaZulu-Natal, Durban, South Africa

Corresponding author: A Strode (harwooda@ukzn.ac.za; strodea@ukzn.ac.za)

Mandatory reporting of various forms of abuse, from violence to corruption, is an attempt by the state to intervene in circumstances where there

is a public or a private interest that ought to be protected. This intrusion of the state into what is often a very personal space, such as the home, is

largely justified on the basis of the need to provide protection to prevent further harm, and in services to vulnerable populations such as children,

the disabled or the elderly. In some instances, researchers and other members of the study team may encounter reportable information requiring

the consideration of mandatory reporting in the design, implementation and review of health research. This is not simple. There are complex and

competing interests at play, particularly as there are differing approaches in law and ethical guidelines. This article aims to describe the mandatory

reporting obligations in South African law, discussing the ways in which these provisions apply within the context of health research, and to propose

some factors that could be used to determine whether it is ethical or not to report information.

S Afr J Bioethics Law 2023;16(1):e824. https://doi.org/10.7196/SAJBL.2023.v16i1.e824