Is it OK? Duty of care, law & ethics in NSW youth work:
A guide to common legal and ethical dilemmas
(2006) by Nick Manning
contents list
Youth workers need to understand their child protection obligations. The basic reference guide is the NSW Interagency Guidelines for Child Protection Intervention (2006) at
www.community.nsw.gov.au/html/comm_partners/childprotection_guidelines.htm
Here we focus on 2 questions which youth workers often ask:
- Is it OK... to not report a young person's underage sex to DoCS?
- Is it OK... to give out condoms (to all ages)?
Is it OK... to not report a young person's underage sex to DoCS?
Paid youth workers have a legal obligation in NSW to report to the NSW Department of Community Services (DoCS) a child (under 16) who is "at risk of harm" because current concerns exist for the safety, welfare, or well-being of the child.
"At risk of harm" includes where the child has been, or is at risk of being, sexually abused. It is important to understand the definition of sexual abuse. According to NSW Interagency Guidelines for Child Protection Intervention (2005): 2.1.5 About sexual abuse:
"Child sexual abuse is any sexual act or sexual threat imposed on a child or young person. Adults or adolescents or older children, who sexually abuse children or young people, exploit their dependency and immaturity. Coercion that may be physical or psychological is intrinsic to child sexual abuse and differentiates child sexual abuse from consensual peer sexual activity."
This means that you need to distinguish between:
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under 16s who are being coerced into sexual activity > this is reportable child abuse
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under 16s who are engaging in consensual sexual activity with someone who isn't a peer > this is reportable child abuse
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under 16s who are engaging in "consensual peer sexual activity" > this is not child abuse and therefore not reportable. (There may be other things you should do to assist a child in this situation as part of your professional duties).
Making this distinction is not always straightforward. "Consensual" and "peer" are not defined in the law or the guidelines. Youth workers should be trained and supervised to assist them to play their part in child protection.
For more information see NSW Interagency Guidelines for Child Protection Intervention (above) or call the Department of Community Services Helpline on 132 111 for advice.
Is it OK... to give out condoms (to all ages)?
It is common practice for youth services in NSW to provide condoms to young people regardless of their age. There is no legal obstacle to doing this.
The fact that a young person asks for, or takes, condoms, is not sufficient grounds for a child protection report.
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The young person may simply want to handle a condom and see what it is like (and this is a useful part of their health education).
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The young person may be engaging in "consensual peer sexual activity", which is not child abuse and therefore not reportable (see About sexual abuse above).
Any person who has sex with someone under 16 years of age is committing an offence. However merely providing an under 16 year old with safe sex advice and equipment in a professional way is not an offence.
Providing safe sex advice and equipment to young people of all ages is not required under a youth worker's duty of care, but neither is it a breach of your duty of care. It is accepted professional practice in NSW.
NSW Health Department policy for their own agencies is that condoms and lubricant should be made available to any person who is currently involved in sexual activity, regardless of their age (NSW Health Frontline Procedures for the Protection of Children and Young People (2000) p56). This policy does not apply to non-government youth services, but it is useful as a guide to good practice, and you can refer to it to justify your own agency policy.
In some rural areas the youth service may be the only place a young person can get advice or safe sex equipment with confidentiality and non-judgement.
Young people can get free condoms from their local sexual health service. Check with your local service about the possibility of bulk supplies for youth services.
Notes
Published: 2006. Opinions are the author's and not necessarily YAPA's.
Applicable to NSW youth services (non-government agencies & local councils) providing accommodation, welfare, social or recreation services to young people. May not be consistent with laws and guidelines in, schools, out-of-home care or health services. "young people" - aged roughly 12-25 years old (unless stated otherwise).
Be careful! YAPA and the author took reasonable care to ensure that this information is correct. However government regulations, laws and standards are complex and changing constantly. The author/s have no health, occupational health and safety, or legal qualifications (unless stated), and information provided is general - it is not specific legal or professional advice. Do not rely on it - check with other publications and authorities and if necessary get qualified legal or professional advice for your situation.
Copyright 2006 Nick Manning. You can: a) quote small amounts of text if you acknowledge the author, publisher, web address & date; b) print out multiple copies of this web page but only if you print the whole web page. No other use permitted without prior consent. Do not put large amounts or all of the text in any other document, including: a policy & procedure manual; a presentation (eg. Powerpoint); a training/learning resource book (eg. for TAFE); a web page. Copyright and training enquiries: nmanning@pnc.com.au
