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The Latest from the Blog

Investigating Complaints of Abuse by Carers

Harriet Witchell - Wednesday, February 22, 2017



When vulnerable individuals in our society are subjected to abuse by their carers, our response as a community is understandably one of outrage. It seems beyond belief that this could happen.But the sad reality is that some individuals within aged care facilities, disability care contexts, at home or in childcare centres can face abuse from the very people with whom they should feel entirely safe.

It is clear to us that employers and individuals within the care and community space want to know the best ways to identify, prevent and deal swiftly with allegations of abuse by carers. Accordingly, we closely examine definitional issues, NDIS implications, criminal factors and‘red flag’ phenomena such as unexplained injuries in care contexts. The often sinister and exploitative manifestations of financial abuse will also be placed under the spotlight.

As an organisation, Wise Workplace is passionate at about deploying our investigative, training and advisory resources for the purpose of enhancing work and community places. In this and upcoming articles,we’ll examine some of the complex challenges faced by investigators when allegations of abuse by carers arise.

Defining abuse, common offences and likely culprits 

Physical abuse can certainly be one of the more visual and confronting forms of abuse by carers. However, other less-obvious forms of abuse can be just as damaging and terrifying for the client involved.

Psychological and emotional abuse by carers can include violent anger, emotional manipulation and control strategies. And when discussing financial abuse by carers, the murky waters of ‘gift versus theft’ can be extremely difficult to traverse. Sexual abuse and manipulation also casts a shadow over care environments and the carer/ client relationship. As we have seen with the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian children have historically suffered terrible assaults at the hands of so-called carers.

In terms of the more common offences, these can include common physical assaults such as rough-handling or scalding, misuse of restricted practices, and excessive and humiliating discipline. Less visible yet still horrendous acts of omission can amount to criminal negligence by a carer, such as threatening or failing to provide fluids or food. Yet despite the subject matter, investigators must take care to remain objective and fair throughout the entire course of an abuse investigation. 

NDIS complaints system 

We certainly all hope that the National Disability Insurance Scheme (NDIS) will ease some of the financial suffering and lifestyle challenges for disabled individuals. The vision of the NDIS has always been strong and simple – to enable Australians with a disability to curate what we all aspire to: an ‘ordinary life’.

Complaints connected to the newly-fledged system were of course inevitable. The NDIS complaints system enables participants to voice concerns both with their individual situation andthe broader scheme. Yet how effectively the NDIS complaints scheme works for individual situations is still somewhat uncertain. Certainly, those with a disability can lodge an NDIS complaint about a provider of care, but the most that can currently happen is the removal of the provider from the scheme list. 

In NSW, reportable incidents affecting a person with a disability in a residential facility are required to be investigated and reported to the Ombudsman for oversight. The legislation does not cover in-home services and does not come with a national or even state-based ‘suitability to work with disability services’ checking system, like the sister child protection legislation now effective in NSW, the ACT and Victoria. 

There are national reporting schemes in place for aged care service providers, but these have limited scope and there’s no effective mechanism for preventing a carer found to have been abusive from finding further employment as a carer. 

Ultimately while the system is improving, protection will come from prevention through good governance and policy, and effective investigation of incidents when they come to light. 

Criminal conduct – likely conviction in children’s services, aged and disability sector 

Many relationships within the children’s services, aged care, and disability sectors can develop unique complexities that arise as a result of dealing with dependence.Stress and isolation are just two issues that can affect both people with this vulnerability, and their carers. Yet it hardly follows that criminal conduct on the part of a carer can be excused due to the stressful nature of the job. Assault, fraud and theft can and do arise.

Not only is abuse grossly under reported by vulnerable people due to the relative power imbalance of the carer/client relationship, fear of reprisal, not being believed and the very real possibility of the service being removed, but their reports are not treated as being equal to those of their non-dependent counterparts. 

Significant challenges are faced by the young, elderly and disabled when trying to communicate their story, and in being believed. 

When faced with a complaint from a client of abuse or abhorrent conduct by an employee or carer,employers are often forced to confront the unbelievable.The first reaction can be disbelief, and this is swiftly followed by the search for some rational acceptable explanation for the report, injury or loss. 

When matters are reported to the police, the justice system is constrained by the requirement of a high standard of proof and convincing verbal evidence to be provided to support the physical evidence, if there is any. 

While this approach can be very effective at conviction where serious criminal offences have left unquestionable physical evidence, the myriad offences where very little or no conclusive physical evidence is left leaves the criminal justice system rather lacking. 

For the safeguarding of the vulnerable and the safety of carers, a skilled independent investigation of complaints by the service provider is paramount.

Grooming and sexual manipulation: identifying the warning signs

Recognising the hallmarks of grooming can radically increase the opportunity for service providers to eliminate sexual and financial abuse in care situations.
 
The inclusion of grooming as a set of behaviours in the NSW Reportable Conduct legislation is no accident. 
Common behaviours of grooming include showing special attention to one client over others, buying gifts and establishing often secret private communication networks. Tapping into our most basic human need to be loved, adults and children alike are vulnerable to this tactic. 

The aim of the abuser is to establish a perception of a special relationship that facilitates the request of favours that would otherwise be denied. These favours may be sexual or financial. 

Clear policy guidelines, recurrent education of carers about professional boundaries and the important role of bystander observation are all critical in preventing grooming in care situations. Often only possible in high trust relationships, grooming and abuse can flourish when alternate support and social systems are degraded through loneliness or isolation. 

The investigation of breaches of professional boundaries or grooming behaviour requires an intimate knowledge of this behaviour and careful consideration of the communication systems in place. 

Investigating unexplained injury in care facilities 

It goes without saying that injuries occur in all workplaces, not just the community sector. Yet there are certain injuries that can arise in care environments that understandably cause warning bells to ring for employers and loved ones alike.

Bruising to the head and upper body can be a clear sign that all is not well. Unexpected bed sores, scalds or unusual abrasions can also indicate that the ‘care’ in care facility might need immediate attention. 

Yet like the collection of any evidence, workplace investigators must be extremely careful not to jump to conclusions when an unexplained injury arises.

If we see a vulnerable individual with an injury, it is essential that facts be collated with a clear head. With the right investigation tools,careful and informed analysis of expert medical and other objective evidence,valuable decisions can be made.

Financial abuse: what does it look like?

For both professional and volunteer carers, there is no doubt that the task of caring can be rather thankless. As a result, the temptation to use power inappropriately for financial gain can be all too real. Minors can also be taken advantage of financially.

Financial abuse of those in a care situation can take on a number of forms. A Power of Attorney might be deployed in a manner that sees unexplained money disappear from a patient’s bank account. Aged, disabled and/or child clients can also be cajoled or tricked into signing documents that place their finances in peril. Sometimes a carer will suggest they ‘look after’ the patient’s sizeable home and then send them to live in poverty. 

At a more basic level, we sometimes simply see valuables and cash removed from rooms, or heavy-handed tactics being used on pension day to allow ATM access.  Emotional weapons are often deployed.

Abuse by carers – a fair investigation is crucial

Whether you need to inquire about the investigation of suspected abuse by a carer, want training around the issue, or are seeking advice on your safeguarding processes, Wise Workplace can provide a suite of solutions designed for your situation. 

Abuse against vulnerable children, the elderly and/or people with a disability unfortunately persists across society. However,safeguarding and investigation of alleged abuse by carers is an area of strength for us – give us a call.

What Does Child Protection Look Like in 2017?

Harriet Witchell - Wednesday, February 15, 2017

There is no doubt that the sobering outcomes of the Royal Commission into Institutional Responses to Sexual Abuse have caused Australian organisations to take stock of their child protection strategies. Investigating and preventing abuse in care has become a non-negotiable priority issue for many citizens and institutions across the nation. So what is the current state of play?

Abuse in Care: NSW initiatives

We reported in 2016 that the NSW legislature had made considerable headway into strengthening the state’s response to allegations of child abuse. NSW was the first state to draft and implement Reportable Conduct laws, which set out details of the types of events, behaviours and history that require reporting. This can include the insidious phenomenon of grooming conduct, whereby children are encouraged to trust a person who later engages in child abuse. Boundary violations are also one of the many behaviours that employers now must monitor. Last year, we also saw the powers and involvement of the NSW Ombudsmen gain traction, with better coordination of information around reports of child abuse in care

Child protection developments nation-wide

As we head into 2017, we are seeing some further promising action happening in other Australian states and territories. The ACT is leading the charge to stamp out child abuse, with the introduction of its own Reportable Conduct legislative scheme. Working off the NSW model, the ACT is embedding similar mandatory reporting mechanisms into the fabric of the territory government’s business-as-usual practices, yet as with NSW, there are inevitable challenges around information sharing across agencies.

Victoria has begun its own task of developing and implementing a range of up-to-date laws dedicated to fighting child abuse in care environments. The state is not as far advanced as the ACT in these initiatives, but there are positive signs that the state government will do what it can to improve information sharing within the bounds of privacy requirements.

Protecting against abuse in 2017 and beyond

The work ahead is considerable. As we can see, not all states and territories are currently on board with the necessary structures to counter child abuse. Yes, it is certainly a considerable task – to implement new legislation on reportable conduct, to link agencies more effectively and to update enforcement knowledge and skills. And for those employers investigating child abuse, any uncertainty around legal requirements can create unique investigative challenges. 

As the Royal Commission has painfully shown, no work is too arduous when it comes to protecting Australia’s children from abuse – and indeed protecting any vulnerable individual such as the elderly or disabled in institutional settings.

Harmonisation of anti-child abuse measures

One major outstanding task is the harmonisation of child protection legislation and policies around Australia. There is little hope of tightening the system if alleged perpetrators can simply cross borders into ‘’more relaxed” jurisdictions. COAG has ear-marked this coordination of child abuse responses as a priority area in 2017. We are hopeful that the council will show the necessary chutzpah to pull the states and territories into line on this urgent task of protecting children against abuse.

Even if the federal nature of Australian government makes Commonwealth measures difficult to implement in this space, harmonisation of separate schemes is far from impossible. There are many precedents demonstrating that the states can unify when the subject matter is sufficiently pressing. Surely this is perhaps the most pressing issue imaginable?

Investigating the abuse of children and other vulnerable people

At Wise Workplace, we help employers to monitor and investigate alleged abuse at the ground level. While various governments around Australia are doing their best to learn and act from the Royal Commission, we are determined to give every employer the opportunity to establish the strongest possible strategies against child abuse that they can – right now.

Whether you are seeking advice on workplace audits, workplace investigations into abuse of children or others, the current legal state-of-play on reportable conduct – or indeed all of the above, then please do not hesitate to give us a call.

We’re also excited to announce our first training offerings in NSW and Victoria on the particulars of the abuse in care schemes, successful investigations and some important steps to take in every workplace. We can’t emphasise how important this is for all employers to take on board. Make sure you book in soon, as numbers are limited. Hope to see you there!

 

 


Unpacking the Concept of Reasonableness

Vince Scopelliti - Wednesday, February 08, 2017


Across all Australian workplaces the phenomenon of bullying is without doubt a front-and-centre topic. And as a result, overt instances of bullying in the workplace now tend to be more readily identified than ever before. 

One challenging idea for all concerned however is this; is it possible that management action that is entirely reasonable could be misconstrued by a worker as an act of bullying? In both workers’ compensation matters and industrial relations more broadly, the linked concepts of ‘reasonable management action’ carried out in a ‘reasonable manner’ have certainly been difficult to pin down. 

We take this opportunity to explore the complex concept of reasonableness as it related specifically to management action and workplace bullying. 

Workplace bullying - the basics

When proposals arose to include bullying within Fair Work’s mandate, employers were understandably uncertain. ‘Bullying’ has a very broad and subjective interpretation among the general public; surely one person’s harmless banter could be another person’s bullying?

Yet when changes to the Fair Work Act were made and the commission explained the new initiative to stakeholders, it was clear that the definition under 789FD(1)contained certain helpful boundaries. Significantly, the unreasonable behaviour needed to be repeated and not just a one-off incident. Further, the activity needed to cause a demonstrable risk to workplace health and safety. The description of particular unacceptable behaviours – such as belittling, humiliating, spreading rumours and having unrealistic expectations – also went some way to assisting employers in the creation of sound anti-bullying mechanisms.

Reasonable management action…

Yet what about business-as-usual management? – for example when a worker needs constant reminders and oversight by management in order to fulfil their role? Could this type of standard management action actually be construed as ‘bullying’? 

The commission foresaw this potential for definitional constraints to disrupt the operational needs of many businesses. Consequently, garden-variety management action such as performance management, work monitoring, instruction, direction and disciplinary action are generally outside of the definition of bullying. These actions are simply the core of most management roles. However, the analysis doesn’t end there.

Carried out in a reasonable manner

A full understanding of the interplay between alleged bullying and reasonable management action requires that employers be aware of the crucial third element of the equation – was the reasonable management action carried out in a reasonable manner? This might seem like splitting definitional hairs, but it is this particular nuance that sometimes gets overlooked. Let’s take an example:

The employer receives notification of a bullying claim from the FWC, made against a manager by a worker. The action in question appears to be quite reasonable management action – let’s say a routine performance management process has been commenced. HR assisted with documentation and there was clear objective evidence of the worker’s underperformance. This was clearly – in and of itself – reasonable management action on the part of the manager.

However, what can lead to difficulties for any employer is when the management action is not carried out in a reasonable manner. If the manner is found to be oppressive, aggressive, belittling and/or with completely unrelenting expectations regarding outputs – then there is a high likelihood that a bullying claim can be substantiated. In other words, all the good work involved in reasonable management action can come undone if it is administered in a bullying manner.

Train for reasonable management action

Most employers have become adept at the creation of healthy and safe workplaces. Layout and resource issues are quickly dealt with and the corporate culture is usually a point of workplace pride. 

It pays however to ensure that the less-obvious hazards are still kept in focus. While employees might generally be monitored to prevent bullying issues, it is the manner in which managers carry on their tasks that also has ramifications for employers. 

Our consultants have over 10 years of experience in determining what is and what is not ‘reasonable management action’ so if you have a matter where you need clarification or an investigation, talk to one of our consultants for advice on 1300 580 685. 

If you think your managers could benefit from toolbox training on successful performance management, managing bullying complaints or ‘bullying, harassment and discrimination’ awareness, talk to one of our training consultants about our HR Pop-Up Professional Development initiatives and toolbox training.


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