Substantiating Claims of Reportable Conduct

Vince Scopelliti - Wednesday, May 01, 2019

It is one of society's great shames that our most vulnerable individuals are often open to abuse by those entrusted with their care. However, it is somewhat edifying to know that stringent legal and regulatory measures are in place in Australia to ensure that employers and others act quickly when allegations arise of abuse in care. 

In the case of issues involving children, organisations such as the Ombudsman mandate that 'reportable conduct' must be swiftly acted on by employers. In particular, a thorough investigation must be made into the situation to determine whether allegations of abuse in care have been substantiated. 

It is also important to note that organisations involved in regular contact with children are required to have proactive and preventative measures in place. After all, there is no more important issue in society than the protection of vulnerable individuals.

what is reportable conduct

Across Australian states and territories there is general uniformity in the way in which 'reportable conduct' is defined and applied. Section 25A(1) of the Ombudsman Act NSW defines reportable conduct as:

  • Any sexual offence or sexual misconduct committed against, with or in the presence of a child - including a child pornography offence.
  • Any assault, ill-treatment or neglect of a child.
  • Any behaviour that causes psychological harm to a child - even if the child consented to the behaviour. 

It is apparent that the legislation targets all manner of abuse, including sexual, physical and psychological. The net is wide and for good reason: any employee or other associate of an organisation who crosses the bounds of propriety and trust with a child should and will be held accountable for their actions. The legislation also covers situations of alleged consent by the child to the behaviour. There can be no doubt that the imbalance of power inherent in these situations is taken into account under the legalisation.

substantiating reportable conduct

While it is essential that inappropriate conduct be reported, facts must first be verified. Upon being notified of allegations related to child abuse, employers must ensure that a professional and objective investigation takes place. If there is insufficient expertise to carry out this serious task, expert advice and investigative services should be sourced externally.

Once the workplace investigation has concluded, the employer will be provided with a report which indicates whether reportable conduct has in fact been established.

Report to which body?

For employers it can be a little confusing to know which conduct to report - as well as who exactly to report issues to. This is in part because Australia has clear distinctions between states, territories and the Commonwealth, and in the field of reportable conduct there are subtle changes to be aware of. The Australian Institute of Family Studies has compiled a Resource Sheet that explains the different reporting requirements across jurisdictions, including the right body to approach in the context of an employer's place of business. 

Discipline and internal procedures 

Once there is a finding that reportable conduct has in fact occurred, attention then turns to the questions of what disciplinary measures might be appropriate in a given context. These will vary in strength and reach. For example, conduct that is substantiated but is of a lower gravity - such as slapping a child's hand for example - might be met with a requirement for training and/or a reprimand by the employer. More serious abuse of a child could lead to the dismissal of the employee and/or criminal charges being founded.

It is crucial that employers within child-related areas train their staff on the nature and consequences of reportable conduct, in addition to having robust procedures in place for dealing with such unfortunate situations. Some larger organisations such as the Department of Education will have quite extensive material and processes in this area. Yet for smaller businesses and organisations, it is vital to understand reportable conduct and to educate staff around this pressing issue. There are serious legal consequences for an organisation and its staff concerning the failure to identify and report child reportable conduct. 

WISE provides Investigating Abuse In Care training, which is specifically developed for organisations dealing with vulnerable clients. Alternatively, we are highly experienced at investigating reportable conduct matters, through our investigation services.       

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.