Aged Care Investigations: A Guide for Reportable Assaults

Vince Scopelliti - Wednesday, April 18, 2018

The thought that some of the most vulnerable in our society - the elderly - might be at risk of harm in residential aged care facilities is abhorrent. But even with the best of intentions and the proper guidelines in place, there is still potential for abuse and assault to occur. 

Abuse allegations in an aged care setting are highly emotional and challenging for all involved, especially the victims and their families. 

When investigating these allegations, it is essential that procedural fairness and objectivity are paramount.

the two types of reportable assaults

The Aged Care Act 1997 (Cth) sets out the requirements for when approved providers of residential aged care must report matters involving their residents to the police. 

Section 63-1AA of the Act defines 'reportable assaults' as either unlawful sexual contact with or the unreasonable use of force on a resident of an aged care facility. 

Unlawful sexual contact considers situations where the resident does not or is unable to provide consent. In cases where residents have cognitive impairment, it is particularly important to ensure that all allegations are properly investigated.

Unreasonable force is intended to cover situations where elderly residents are treated roughly, causing physical injuries. Given the manual nature of handling aged care residents, it is accepted that occasionally 'innocent' or accidental injuries do occur - however, any physical injuries should be adequately reported.

wHO TO REPORT TO, AND WHEN

The Department of Health oversees aged care facilities generally. The Australian Aged Care Quality Agency (AACQA) is required to assess aged care facilities for ongoing compliance with accreditation standards and reporting responsibilities. 

The aged care provider is required to notify the federal government's Department of Health, either by completing a form or calling the hotline, within 24 hours of a suspected reportable assault. The police must be contacted within the same timeframe. A failure to comply with these reporting requirements may result in sanctions being imposed by the Department of Health. 

Given the serious nature of elder assault, even in circumstances where it is unlikely that a suspicion will be proven to be correct, an aged care provider must undertake the necessary reporting within the required timeframe. 

Staff members who notify their employers of potential assaults are protected in accordance with the Act. This means that their anonymity must be maintained and they are protected from potential reprisals by colleagues. 

the role of the aged care complaints commissioner

Complaints relating to the quality of aged care can also be directed to the Aged Care Complaints Commissioner. 

The Commissioner is tasked with resolving complaints, taking action on issues raised in complaints and helping to improve the quality of aged care. 

Making a complaint to the Commissioner may be a more appropriate avenue for individuals who do not work in an aged care facility, but who wish to report suspect behaviour, such as family members or other concerned residents. 

Other responsibilities for providers

Additional responsibilities imposed on aged care providers include:

  • Requiring staff to notify suspect assaults -  In practice, this means ensuring that staff have sufficient information available to understand their obligations to report, and the methods by which they can inform their employer (or the Department of Health directly if they are concerned about protecting their jobs). They must also ensure staff understand the potential consequences of providing false or misleading information. 
  • Record keeping - Aged care providers are required to keep detailed records relating to all suspected incidents involving reportable assaults. Specific details which need to be noted include the date the allegation was made, the circumstances giving rise to the allegation, and more information surrounding the notification. The records must be available for viewing by the Department of Health or the Quality Agency, if requested. 
  • Privacy - Aged care providers are required to balance their obligations under the Act with all requirements imposed by privacy legislation, including protecting the identities of their staff and residents. 

When is an assault not reportable?

In certain circumstances, assaults need not be reported. These are set out in the Federal Aged Care Act. Broadly speaking, an assault is not reportable if:

  • The alleged person who has committed the assault is a resident who suffers from cognitive or mental impairments (such as dementia, depression or similar conditions) which are likely to have contributed to the assault, and appropriate arrangements are put in place immediately to deal with that behaviour. 
  • The same incidents have already been reported. 

If you or your organisation is responsible for safeguarding the aged, WISE Workplace's Investigating Abuse in Care skills-based short course will assist you in investigating claims of abuse and reportable conduct, in line with the legislation applicable in your state.

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.

    Grooming, or an Error in Judgment?

    Vince Scopelliti - Wednesday, October 18, 2017

    No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

    We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

    The definitions 

    In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

    Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

    • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
    • Any assault, ill-treatment or neglect of a child.
    • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

    In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

    A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

    By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

    For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

    grooming children - examples of common behaviours

    Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

    • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
    • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
    • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
    • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

    a case in point

    A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

    In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

    The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  

    gROOMING THE ELDERLY - FINANCIAL ABUSE

    Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

    • Traditional theft, such as taking money or items from a client's room.
    • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
    • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 

    THE DIFFERENCE BETWEEN GROOMING AND AN ERROR IN JUDGMENT

    A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

    • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
    • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
    • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
    • Whether there may be a reasonable alternative explanation for the behaviour.
    • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
    • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

    why codes of conduct are important

    If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

    If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.

    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. 

    Investigating Allegations of Abuse in Care in Aged Care Facilities

    Vince Scopelliti - Wednesday, August 02, 2017

    Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

    Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

    what is elder abuse?

    According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

    There are many different forms of elder abuse, including:   

    • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
    • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
    • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
    • Neglect or Abandonment - failing to provide a requisite standard of care. 
    • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
    • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

    what are the signs?

    Potential signs of the various types of elder abuse include:

    • A bad or unusual relationship between a care provider and recipient. 
    • Unexplained injuries
    • Insistence by the caregiver that the victim is never attended to without them being present.
    • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
    • Ongoing poor hygiene and living conditions.
    • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

    Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

    In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

    Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

    For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

    common risk factors for elder abuse

    In the context of care facilities, the greatest risk factors for elder abuse include: 

    • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
    • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
    • Excessive responsibilities and inadequate levels of support. 
    • Inappropriately vetted staff, including those with substance abuse issues. 
    • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
    • Inadequate complaint handling mechanisms. 

    Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

    How to prevent the risk of ELDER ABUSE

    Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

    • All resident and staff concerns are appropriately listened to and noted. 
    • All staff have have undergone criminal checks.
    • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
    • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  

    COMPLICATIONS ARISING FROM THE AGEING MEMORY

    Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

    In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

    In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

    Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

    This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

    Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help.