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.