Articles on Shifting Sands
Repeal the FGM mandatory reporting law
A new duty under the Serious Crime Act 2015 is making it compulsory for regulated professionals to report cases of FGM in under 18 year old girls direct to the police. This came into force in England and Wales on 31st October 2015.
Lawmakers hope this duty will result in better protection of girls, as well as securing prosecutions and discouraging potential perpetrators. But I fear that in using this hammer to crush a nut approach, the law will damage relationships with professionals and generate fear and mistrust among communities. It should be repealed.
The new duty applies to regulated professionals like Social Workers, Nurses, Doctors and Teachers. It is a personal duty of care that cannot be transferred to anybody else, because FGM is a crime.
Professionals have been reassured that compliance with the duty does not breach data protection laws or patient confidentiality. Health minister, Jane Ellison wrote recently ‘We have worked closely with the Royal Colleges, NHS professionals and FGM survivors to ensure the duty makes sense to staff and is workable.’
Despite the minister’s assurance, this development is causing major concern, among health professionals in particular, because they fear that the ensuing change in practice will undermine the relationships of trust they try to foster with their patients. And they worry that it is likely to prevent young girls seeking health care from e.g. GP’s out of fear of the consequences for them and their families.
Communities who have traditionally practiced FGM worry that this initiative is yet another way of stigmatising them. Girls likely to be identified will most likely have undergone the practice outside of Britain before they became residents or habitual ones. Many communities have worked hard at abandoning the practice here as is evident by the small numbers of girls presenting with cut genitals.
The new law makes it compulsory for regulated professionals to inform the police when a girl under 18:
1 Says that she has undergone FGM
2 The physical signs are observed on the girl, and there is reason to believe the surgery was not necessary for the girl’s physical or mental health, or was not surgery on a girl in labour or who had just given birth, for purposes connected with the labour or birth
3. Has had genital piercings (type 4 FGM under WHO classification)
Cases must be reported to the police by calling the national, non-emergency 101 number and should be done ideally by the end of the next working day but absolutely within a month. The information must include the girl’s identity, age and address and why the report is being made. The police also need to be told what if any safeguarding/child protection action has been undertaken.
Professionals do not have to obtain consent before making the police report. Ideally they should contact the girl and/or her parents or guardians to explain why it is being made. But if they believe that telling the child or the parents of the reporting might result in a risk of serious harm to the child or another person, or of the family fleeing the country, they are advised that the reporting should not be discussed. The professionals’ designated safeguarding lead has to be told also.
If professionals do not comply with the legislation and this is later discovered, they will be dealt with according to ‘fitness to practise processes’. Nurses and midwives e.g. have to adhere to a Code which states they must have knowledge of and keep to the relevant laws and policies about protecting and caring for vulnerable people. And are reminded ‘failure to comply with the duty may result in an investigation of the nurse or midwife’s fitness to practise.’ Ultimately they could be struck off the register.
GPs were already subject to a professional requirement to report suspected FGM to the police, under GMC guidance. And from October 1st, together with mental health trusts, they have been required to collect FGM patient identifiable information to help the Department of Health build up a national picture of its prevalence. This type of data has been collected by acute trusts since April 2014 is the subject of ethical concerns to some health professionals.
Now, if a doctor fails to report, the GMC says: ‘Our guidance is clear that doctors must disclose information where it is required to satisfy a specific statutory requirement (paragraph 17 of Confidentiality). Failure to follow our guidance may put a doctor’s registration at risk.’
The public health minister, in attempting to allay the understandable concerns that some professionals have about breaching patient confidentiality by reporting them to the police, said: ’But do not worry, we want to empower health professionals, not target them. You have the backing and support of your employers, professional bodies and government. When you see a girl who has FGM we will all support you to take the first step to make sure she gets the help and support she needs. That is what the mandatory reporting duty is about; in many cases it will also help us to safeguard another girl in the family or address the health needs of a survivor.’
Others suggest using a ‘carrot and stick’ approach with regard to the NHS, the rationale being that because of the high regard in which it is held among immigrants, and knowing that cut girls who use it would be identified by health professionals, it will prevent them being cut to ensure their continued access to the service.
I believe that this duty is hugely problematic for a number of reasons:
- It demands a major change to the way that health professionals practice yet does not appear to concern the Royal Colleges or regulatory bodies anything like enough.
- It prevents professionals from making their own independent assessment of a situation and encourages them instead to ‘whistle-blow’.
- In the fevered political climate around FGM, (despite any evidence of the projected epidemic) the need to ‘cover their back’ might encourage some professionals to mistrust their judgement and report a case where they might not have done previously, just to be on the safe side.
- An under 18 year old girl who underwent FGM in her/her family’s country of origin as a child should be of no interest to the police or even healthcare professionals except where it impacts negatively on her health. Many will have undergone the less severe types of FGM which cause fewer health problems, despite scary and sensational headlines to the contrary.
- It will open the door to calls for further child protection legislation making it compulsory for everybody who suspects ‘child abuse’ (and that’s open to subjective interpretations) to report concerns to the police.
- It may give organisations like the Department for International Development additional reasons to intervene in countries where FGM is traditionally practiced overseas: in the interest of ‘prevention rather than cure’
The ramifications of this law could be far reaching, but not in the way the Government anticipates. Girls and women who’ve undergone FGM often feel ashamed and guilty. This is compounded by the interest that the public as well as professionals have been showing in this declining cultural practice. And contrary to official data, estimates and guesstimates, there is no FGM epidemic.
If presenting for health care results in girls being reported to the police, and their families visited by them, they will think long and hard about approaching any health care provider. Involvement with the police is a frightening prospect for many young people, particularly ethnic minorities, some who live on the margins of British society.
That could in turn lead to health problems going undetected or untreated. Already there are reports of women and girls going abroad to seek the health care they should be entitled to here, but won’t ask for now, out of fear of the potential consequences.
It is not in the public interest to prosecute for genital piercings. It should be de-classified as FGM thereby making mandatory reporting unnecessary.
Communities who have stopped cutting their girls should be applauded. Currently they get no acknowledgement or recognition for these efforts but are criminalised instead.
FGM continues to be a complex and challenging issue and one we should be careful about attempting to address through legislation. Mandatory reporting is being introduced to the detriment of the relationships of trust that should exist between professionals, girls who’ve undergone FGM, their families and communities. It should be repealed before it does even more damage.
About the Author - Bríd Hehir
Bríd is a retired health professional. She started her career as a nurse and midwife in Africa where she worked for almost four years. She encountered FGM/C in Ethiopia. She then moved to London where she worked in the National Health Service as a midwife, community nurse, health visitor, reproductive and sexual health nurse and manager over a period of 30 years. She did not encounter FGM/C during that time despite working with immigrant communities who are reported to practice it still. She is puzzled by the current reported prevalence of the practice, the official response and associated activism. And is worried that they might cause more harm than good.