Preventing the Sexual Abuse of Adults with a Disability

Vince Scopelliti - Wednesday, September 12, 2018

Sexual abuse of people with a disability is a crime that unfortunately is often misunderstood, undetected and ultimately overlooked by organisations. Individuals with a disability are often uniquely vulnerable to sexual and other forms of abuse and deserve both strong protection and swift action in relation to any such allegations. 

Organisations responsible for the care of people with a disability are entrusted with the tasks of fully understanding the signs of sexual abuse, dealing with disclosures, and putting in place robust procedures for prevention and action.

the issue of consent

For organisations or individuals who care for a person with a disability, it can at times be difficult to ascertain the presence or absence of consent to sexual activity, particularly where the person accused is a spouse, partner or other close companion.

Part of this uncertainty is tied to society's historical myth that people with a disability are inherently non-sexual. Yet at the other end of the spectrum is the very real potential for sexual exploitation and abuse of people with a disability. Navigating the difficult issue of consent to sexual activity in these contexts requires a nuanced approach to each individual allegation. 

The above-mentioned nuanced approach only applies to adults with a disability. When children with a disability are concerned, the standard rule applies that children under the age of consent are unable to consent.

signs of abuse

In some cases, the individual with a disability will be able to quickly and clearly articulate their complaint of sexual abuse in care. 

However, just as each person with a disability is unique, so are the types and complexities of presenting issues. This can create challenges for those seeking to prevent and/or investigate sexual abuse allegations. For example, verbal or intellectual capacity issues can reduce the ability of carers and others to absorb the gravity of a situation. 

There are some key signs however that a person with a disability might be the victim of sexual abuse. Sudden changes in behaviour, temperament or activities can often raise the alarm. This could involve exhibiting fear towards an individual, acting out sexually or becoming uncharacteristically aggressive. 

Physical signs can include restraint marks, facial bruising or blood in the genital area. There are many more signs - some quite subtle - that a person with a disability has been subjected to sexual abuse. 

It is crucial that all staff and family members are aware of these and are prepared to take swift and appropriate action to further the matter. Further, investigators require utmost sensitivity and diligence during any investigation. 

Disclosure of abuse

Unfortunately, it is both the subtle, insidious and complex nature of sexual abuse of people with a disability that can prevent or delay the disclosure of the crime in question. The person with the disability may be hampered in their attempts to disclose - either by the nature of their disability or a lack of concern shown by those around them. Staff caring for the individual must therefore be trained and supported in the key steps needed to swiftly and effectively report any suspicions of sexual abuse against vulnerable individuals.

The organisations role

Organisations that are entrusted with the care of persons with a disability have a number of distinct obligations when it comes to the prevention and reporting of sexual abuse. At the heart of these requirements lies an ethic of care that embraces the right of all individuals to live free from harm. 

This inherently includes provision of care services that respect, protect and enhance the lifestyles of people with a disability. Moving outwards from this are legislative and policy requirements for management and professionals working in the care environment, as well as health and safety constraints that protect the welfare of all involved in disability care contexts. 

Yet perhaps the most important role for organisations is the development of robust policies and procedures designed to prevent, detect and act upon complaints of sexual abuse. Training all staff, family, clients and relevant community members in the content and application of these resources is essential to the welfare of those in care environments.  

If concerns have been raised in your organisation and you would like to conduct an investigation into the allegations, contact WISE today. Alternatively if your organisation requires a safe, secure environment to report concerns or complaints, WISE has a Confidential Whistleblower Hotline (Grapevine), enabling insightful management of complaints and the ability to bring about real cultural change and reduce risk. 

How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

When claims of abuse in care come to light, strong emotions can arise for all concerned. It is not surprising that when an unexplained injury is uncovered, family members, care staff, and employers will want immediate answers. 

However, it is vital that employers maintain clear thinking and remain objective when investigating allegations of abuse in care. 

Engaging an external workplace investigator can be helpful in maintaining neutrality, and conducting a detailed, unbiased investigation. Medical evidence is also highly relevant in these situations as it is collected in a scientific manner, without bias towards a particular party.

zero bias when investigating assaults 

In emotionally charged situations, family and friends may understandably demand immediate answers about the cause of a loved one's unexplained injury. When abuse appears to have occurred against a vulnerable individual, it is a disturbing thought for all involved. 

Workplace investigators understand that despite - or perhaps because of - such high emotions, the investigation must be coordinated and managed with an extremely steady hand. 

An experienced investigator will be acutely aware of the rules of evidence and how important the accurate collection and management of the evidence will become, should the matter be taken on review. Accordingly, from the very start of an investigation, it is understood that all information, statements, workplace documents, interviews and clinical data is to be gathered with a view to fairness, objectivity and clarity.

assessing medical evidence

Family members of the vulnerable person affected by the unexplained injury may not be aware of the detail of the circumstances of the injury. 

Factors such as the site of an unexplained injury, medical history and medications, client age, frailty and demographics, unique aspects of accommodation and access, care routines, staffing variables and medical documentation - to name a few - will all form part of the complex medical evidence matrix when evidence is being assessed. 

Delays in getting the victim medically examined or a delay in reporting incidents can often mean that the medical expert may need to rely on descriptions provided by witnesses or photographs taken of the injury. This will significantly diminish the quality of the medical evidence. Poor quality photographs and descriptions will make it even more difficult to obtain any reliable medical evidence. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 is generally regarded as authority for the idea that on the balance of probabilities, if a finding is likely to produce grave consequences, the evidence should be of high probative value.

In cases of alleged assaults in care, professional investigators will ensure that all evidence - medical and general - is collected and reported on with utmost care. This approach ensures that irrelevant factors are not given weight. 

When the medical evidence is combined with overall procedural fairness across the investigation, the resulting investigative report into an alleged assault will be of high quality and robust in terms of the weighing of the evidence and findings.

    why an impartial investigation is important

    When investigating abuse in care, the standard of evidence obtained is a crucial factor. By including sound medical evidence, the investigator brings an unbiased and highly detailed viewpoint to the allegations of assault. This expertise can mean the difference between a fair and objective investigative report and one that is tinged by the emotionally charged nature of the situation. 

    Should the matter be taken on review, the court will apply the 'reasonable person test' to the facts and evidence available. If the investigation is not fair, clear and comprehensive, then the court may find the resulting report does not meet this standard. 

    If your organisation requires a workplace investigation into an unexplained injury, our team can assist with either full or supported investigation services. WISE are highly experienced in the complexities of investigating unexplained injuries in care settings, including the assessment of medical evidence.

    Codes of Conduct and Different Professions

    Vince Scopelliti - Wednesday, October 04, 2017

    A Code of Conduct sets out the 'golden rules' or guidelines in which employers and industry bodies codify acceptable standards of behaviour in the workplace. 

    Individual businesses can develop their own Codes of Conduct applicable to their specific interests. Many professional bodies also implement standardised Codes of Conduct covering behaviour which is perceived as being a particular risk within that type of industry. 

    Why is a code of conduct important?   

    A Code of Conduct provides employees with clear parameters for what is appropriate and inappropriate at work. 

    The precise content of a Code of Conduct depends on the nature of the industry or business to which it applies. For example, the legal industry imposes strict requirements on confidentiality and integrity, which may be unnecessary in other industries. 

    One important aspect of a Code of Conduct is ensuring specific guidelines are in place regarding professional distance and potential conflicts of interest that may arise, whether actual or perceived. 

    Acceptable behaviour under these guidelines is likely to differ significantly depending on what is appropriate within a certain profession. For example, while a general practitioner or a physical therapist needs to have physical contact with their clients and patients in order to perform their duties, there is a completely different expectation on teachers, where specific types of physical contact can be inappropriate, in breach of the Code of Conduct or can even constitute reportable conduct. 

    The Code of Conduct should also address complaints handling and the specific disciplinary response for conflicts of interest and other breaches of the Code.

    dealing with vulnerable persons and a 'special class' of clients

    In addition to avoiding the more obviously inappropriate behaviours such as perceived sexual or excessive physical contact, professional Codes of Conduct have regard to the type of clients or customers their adherents are likely to encounter. 

    In the spheres of nursing, teaching, social work and psychology, practitioners will almost inevitably deal with vulnerable people. Indeed, the nature of the work and the clients' vulnerabilities may mean that they form inappropriate attachments or relationships with professional staff. Guidelines for dealing with these types of situations, including appropriate reporting requirements and the potential for independent observers to be used, are necessary parts of the Code of Conduct for these professions. 

    In a similar vein, aged care, legal or financial service providers must ensure that there cannot be any misconception of inappropriate behaviour constituting potential financial abuse or conflict of interest, such as putting undue and improper pressure on a client to make a financial bequest or confer a financial advantage.

    Abuse of power

    Explicit Codes of Conduct governing conflicts of interest and biased behaviour are vital in professions that are open to abuse of power. For example, there is considerable potential for corruption, fraud and conflicts of interest to arise in the case of staff employed in Local Government or in procurement, public servants and police officers. 

    a case in point

    David Luke Cottrell and NSW Police [2017] NSWIRComm1030 is a recent example of a breach of a Code of Conduct by a police officer, which ultimately resulted in his dismissal. Constable Cottrell was dismissed from his position after he received payments for tipping off a local tow truck driver about the location of motor vehicle accidents. In essence, Constable Cottrell was passing on confidential information and in doing so, directly created a conflict of interest for himself, and also provided an unfair commercial advantage to the tow truck operator. 

    Given that by the very nature of their work, police officers ought to be paragons of moral behaviour, this arrangement clearly breached appropriate professional ethics. This was notwithstanding the police officer's argument in response to his dismissal that he was trying to be 'effective' by clearing accident sites and did not realise that the leaked information was controversial. 

    Ultimately, it was held that he had breached the appropriate Code of Conduct by failing to meet the expected high standards of behaviour of a police officer, and did not appreciate the gravity of his misconduct, failed to protect the confidentiality of information and did not carry out his duties impartially.

    Determining whether a breach has occurred

    Conflicts of interest and inappropriate behaviour can occur inadvertently, and are not always a result of intentional wrongdoing. For this reason, it's important that Codes of Conduct are effectively communicated to staff, and that the penalties for breaches of the code are clearly defined. 

    If you suspect that one of your employees may have breached an applicable Code of Conduct, it will become necessary for you to conduct a workplace investigation. WISE Workplace can provide full or supported investigation services to assist you in determining whether any breaches have occurred. 

    To find out more about professional distance and conflicts of interest, check out our series on this topic. 

    How Can Employers Assist Workers with Acquired Brain Injury

    Vince Scopelliti - Wednesday, August 16, 2017

    A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them. 

    In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts. 

    QH initially accommodated her working requirements. However, despite QH's apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment. 

    In its defence, QH argued that working nights was a 'general occupational requirement' for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards. 

    The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement. 

    Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce - including when it comes to conducting workplace investigations. 

    What is an acquired brain injury?

    Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson's disease. This term is used to describe both permanent and temporary injuries. 

    Those suffering from an ABI are likely to experience ongoing difficulties with: 

    • Concentration
    • Processing information at speed
    • Fatigue
    • Memory
    • Problem Solving and lateral thinking
    • Organisation of thoughts and activities 
    • Planning
    • Self-control and monitoring
    • Insight into personal behaviours
    • Emotional lability
    • Restlessness (physical and emotional) 

    tips for managers of employees with an abi

    Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers. 

    In the context of an ABI, this is likely to take the form of:

    • Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody's needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties. 
    • Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises. 
    • Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee's potential. 
    • Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.

    undertaking workplace investigations involVing an ABI

    The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted - regardless of whether the employee with an ABI is the victim, the respondent or a witness. 

    In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including: 

    • Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness' communication, including skills, abilities and whether they use any types of communication aids. 
    • Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI. 
    • Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview). 
    • Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
    • Giving frequent reminders of the next step - this is particularly important from a procedural perspective. From an employer's perspective, this is also important to avoid any allegations of abuse of process or discrimination. 
    • Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed. 
    • When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand. 

    Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.

    Complaints Management Under the NDIS

    Vince Scopelliti - Wednesday, August 09, 2017

    The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

    REGULATORY FUNCTIONS OF THE NDIS

    Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

    The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

    The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

    Providers who wish to operate within the NDIS must:

    • Comply with all state and federal laws
    • Participate with the NDIS Code of Conduct
    • Engage in the NDIS Resolution Process

    mandatory reporting regime

    In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

    Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

    In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

    According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

    These include: 

    • Fraud-related incidents
    • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
    • Obvious neglect
    • Serious unexplained injury
    • The death of a scheme participant (This must be notified regardless of how the participant died)
    • Unauthorised use of restrictive practices

    It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

    How the ndis complaints procedure works

    Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

    The Commissioner will also:

    • Investigate serious incident reports
    • Review breaches of the NDIS Code of Conduct

    In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

    In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

    Finally, the Senior Practitioner is entitled to hear matters relating to:  

    • Inappropriate or unauthorised use of a restrictive practice
    • Unmet disability support needs. 
    The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

    Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

    The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

    A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

    WHAT ARE PROVIDERS REQUIRED TO DO?

    It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

    Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

    WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

    In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

    In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

    If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

    It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

    When the Line Blurs: Restrictive Practices vs Assault

    Harriet Witchell - Wednesday, June 14, 2017

    It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

    As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

    However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

    WHAT ARE RESTRICTIVE PRACTICES?

    According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

    This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

    Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

    Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

    KEY CONCERNS WITH RESTRICTIVE PRACTICES

    As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

    While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

    Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

    While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

      WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?

      The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

      Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

      At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.   

      Does the NDIS Complaints System Have Enough Reach?

      Harriet Witchell - Wednesday, March 08, 2017


      For those vulnerable people across Australia living with disability, the introduction of the National Disability Insurance Scheme (NDIS) has been heralded as a much-needed security net. And for those caring for disabled individuals, the NDIS provides a framework for sustainable care arrangements. 
       
      In many ways, the introduction of the NDIS is the ultimate ‘good news’ story. Essential services and funds for disabled individuals can now be accessed. Particularly, the types of care that exhausted families have provided around the clock can now be augmented by paid carers under the scheme. 

      Yet such a vast and complex scheme necessarily requires safeguards against unfortunate phenomena that can arise in care environments, such as child abuse, elder abuse or other forms of abuse by carers. 

      A responsive and effective complaints system is an essential adjunct to the NDIS, which will eventually sustain some 460,000 disabled Australians under the age of 65. As at February, 61,000 Australians have been brought into the scheme.

      How the NDIS complaints system operates

      The NDIS complaints system is intended to help participants in the scheme provide feedback, or make complaints about their own experiences or the system in general.   

      There is some concern, however, that the complaints system is a somewhat toothless watchdog. Individuals suffering with a disability can lodge a formal complaint about a care provider, for example, but the care provider can at most be removed from the list of scheme-approved providers. There is no mechanism under the system for more significant sanctions.    

      This may be appropriate in circumstances where the care provider has simply provided poor treatment or has an unpleasant manner or clash of personalities with the recipient of care, but falls far short of the mark in circumstances where, for example, there is abuse or unexplained injury.  

      On such occasions, the scheme participant may have to look to other procedures to try and address any serious grievances.

      What other mechanisms for complaint are available?

      In NSW, if a person living with a disability in a residential facility suffers a reportable incident at the hands of a care service provider, that incident must be investigated and reported to the appropriate Ombudsman, in accordance with the Ombudsman Act 1974.

      A reportable incident includes the commission of sexual offences or misconduct (including those committed in the presence of the person suffering the disability), assault, fraud or financial abuse, and ill-treatment or neglect by a carer. Unexplained injuries also fall within the same category of reportable incidents.  

      However, this only covers those clients who are living in residential care – and misses the many participants of the NDIS who rely only on in-home services.  Similarly, there is no legislation which provides any requirement for a ‘suitability to work with disability services’ check, unlike the child protection legislation now effective in NSW, the ACT and Victoria. 

      Those utilising aged care services are able to rely on national reporting schemes, but regrettably even a carer who has been conclusively found to be abusive or otherwise guilty of misconduct is not restricted from being able to obtain employment with another care service provider in the future.
       

      Effectiveness of the system still uncertain

      Given the potential risks of abuse within the system of allocating a carer to a disabled Australian, it is essential that the NDIS is paired with an effective and efficient complaint and resolution scheme. 

      Ultimately, the current NDIS complaint service has significant room for growth before it can be considered to be effectively safeguarding the rights of disabled Australians. True improvement will play out most importantly by imposing greater penalties and consequences on carers who are found to have transgressed against their clients in any serious fashion. 

      As the NDIS matures as a scheme, it is to be hoped that many teething issues with the complaint management system will be ironed out naturally.  

      However effective investigation of incidents relating to abuse as soon as they are reported or otherwise come to light will remain the most important safeguard of the rights of disabled Australians, along with general prevention of potential abuse or misconduct by carers through a strong governance and policy regime.   Contact us about our specialised Investigating Abuse in Care training courses.  

      Abuse by Carers - Defining a Sad Reality

      Harriet Witchell - Wednesday, March 01, 2017

      It is quite clear that employers in aged, disability and other care environments do their best to keep staff and clients safe, yet one dark phenomenon that can raise its ugly head in care contexts is abuse by carers. For many complex reasons, vulnerable people such as the aged, children, and disability clients, can be abused by the very people who are entrusted with their wellbeing.

      ‘Abuse’ is a broad term that has developed multiple sub-definitions in recent decades. We have seen the basic idea of physical abuse making room for more complex forms such as emotional abuse, sexual abuse, financial abuse and disability abuse. As Australia has witnessed via the recent Royal Commission, child sexual abuse has a truly distressing history. 
      When an allegation of abuse by a carer arises, investigating the abuse objectively becomes a number one priority. Reportable conduct legislation is now developing across all states and territories; it is essential to understand definitional issues as reportable incidents arise.

      Physical acts and omissions

      Assault is perhaps the most common of the physical offences experienced in care environments. Rough handling of a client or patient can occur in any number of scenarios such as moving, changing, bathing, providing medication/ injections and feeding. And omissions such as failing to provide food, warmth, medication or post-fall assistance can also amount to offences of neglect. We often see this neglect as a form of abuse of the disabled or elderly. Feeding and changing neglect can also occur as a form of child abuse in care environments. Establishing what is truly accidental versus what is indisputably abusive is a very difficult task indeed.

      The question of intent is certainly difficult, and investigations of abuse must weigh the elements involved in defining reportable conduct. For example, what appears at first glance to be abuse might turn out to be an accident or one-off omission.

      Sexual abuse and manipulation

      It goes without saying that children are one of the most vulnerable subsets of society, particularly in care situations (whether due to disability or family circumstances). Children are also frequently the target of sexual abuse or its precursor, grooming.

      In almost all occasions of longer-term sexual abuse, the perpetrator undertakes a grooming process, designed to obtain the trust of the intended victim.
      These behaviours can include paying undue attention to one specific care client, engaging in keeping secrets, purchasing gifts or trying to establish independent communication channels.

      Once the grooming has taken place, and the abuse has commenced, the child or adult care client may act out, which is demonstrated by either an overtly hostile relationship with the carer (such as avoiding them or engaging in public conflict with them) or an unnaturally close relationship, which may be based on an attempt by the client to appease or satisfy the abuser.
       
      The above red flags, identified by the Royal Commission into Institutional Responses to Child Sexual Abuse, must be understood by workplace investigators in order to ensure that the most vulnerable potential victims are best protected.

      Non-physical abuse by carers

      Due to changing values in both public and private settings, the term ‘abuse’ now has a wider and more complex scope. Psychological, financial, and emotional abuse at the hands of carers is now a real hazard across multiple industrial contexts.

      Some paid and unpaid carers of the aged, older children and the disabled have been known to trick, steal and/or cajole financial benefit from their charges. This can of course provoke angry and emotional responses from all parties involved, not least of which can be outrage from loved ones. One difficulty that investigators face is gathering material from a shaken and, in some cases, infirm victim. It is essential that specialist investigative expertise be employed in such cases.

      High evidentiary standards

      In the criminal realm, the evidentiary standard is quite high in cases of alleged criminal assault and/ or neglect by carers. Up-to-date legal advice on these and related issues is essential if a reportable incident is suspected.

      For many employers who are made aware of alleged abuse by a carer, it can be hard not to react swiftly against this individual. However, all parties are entitled to be heard in a fair and unbiased way.
      For example, an unexplained injury might not signify abuse by a carer, but an undiagnosed medical condition.

      The ‘culprit’ might be assumed to be a carer who sees the elderly, disabled or young client each and every day. Yet transitory people in carer environments such as cleaners, aides and kitchen staff must also be carefully vetted whenever allegations of abuse surface during a workplace investigation. Investigators must resist the temptation to draw inferences or assumptions throughout the investigation.

      Understanding the way abusers work and the nature and pressures on carers are critical for investigators. Knowing how to define and classify behaviour is a crucial component of determinations over abuse allegations.
      These details and advice on what evidence to collect, and how to evaluate evidence are all covered in our new Investigating Abuse in Care course. Positions are still available for courses in March and May 2017. Book now to secure a seat! 

      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.