Abuse of Older Adults in Community and Residential Care

1. Abuse of Older Adults in Community and Residential Care Presenter P. M. Carter CEO St Andrew’s Village Ballina Ltd

2. Background Aust. Government introduced a package of reforms in relation to residential, and community care; New Complaints investigation procedures Creation of a new Age Care Commission Police Checks for certain age care workers and volunteers. Regimes of Compulsory reporting of certain types of assaults in residential age care Legislative protections for approved providers and their staff who make reports on such assaults.

3. What strikes you about this? “The introduction of compulsory police background checks for aged care workers and volunteers was one element of the Howard Government’s $100 million responseto the small number of serious instances of abuse of the elderly which came to light early in 2006.” Senator Santoro, media release 5 January 2007

4. On the back of reported sexual assault in a Victorian Nursing Home, the then Minister, Senator Santo Santoro instigated measures which he said would “safeguard older Australians and provide greater access to justice for those who suffered abuse”.Measures include:

5. Federal Government Initiatives • Increase in unannounced spot checks in residential care commenced 2006 • Compulsory police checks implemented March to September 2007 • New complaints system implemented May 2007 • Creation of the Office of Aged Care Quality and Compliance • The Establishment of the Aged Care Commissioner • Compulsory reporting of assaults in residential care from July 2007

6. Police Checks • Compulsory police check for all residential and DoHA-funded community care workers and volunteers • Before any recruitment • Every three years for existing staff • Statutory declaration required for citizens or permanent residents of another country after turning 16 years old • Exclusion of people with • Conviction of murder • Conviction of sexual assault • Conviction and sentence to imprisonment for any other form of assault • Contractors must also police check staff • Funding only provided for Community Visitors Scheme

7. Compulsory Reporting and Complaints Reforms 2007 changes to Aged Care Act to: • Establish a scheme for compulsory reporting of abuse • Provide protection for Approved Providers and staff who disclose • Establish a new complaints investigation scheme and independent Aged Care Commissioner

8. Compulsory Reporting • Requirement to report (residential care only) • Unlawful sexual contact with a resident • Unreasonable use of force with a resident • Timeframe for reporting • To police and DoHA within 24 hours • Discretion not to report • Alleged assaults perpetrated by residents with an assessed cognitive or mental impairment • Subsequent reports of the same or similar incident

9. Compulsory Reporting: Provider Responsibilities • Requiring staff members to report to • Provider • One of their key personnel • Another person authorised by provider to receive reports • Police; or • DoHA • Having internal policy on abuse • Training staff • Maintaining records of assaults, resident assessments and behaviour plans

10. What is a reportable Assault? • “Unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles and constituting an offence against a law of the Commonwealth or a State or Territory, that is inflicted on a person when; 1. The person is receiving residential care in respect of which the approved provider is approved ; and 2. Either: a. Subsidy is payable under Chapter 3 for provision of care to the person; or b. The person is approved under part 2.3 as the recipient of that type of residential care. X x Age care Act 1997 s.63-1AA(9) x Harcourt . Victor, Russell Kennedy.

11. Reportable Assaults As from the 01/07/07 approved providers are responsible for: • Reporting reportable assaults • Requiring staff members to report reportable assaults; • Ensuring staff members who make reports are not victimised; and • Protecting the identity of any person who makes a report .a a. Aged care Act 1997 s.63-1AA,96-8

12. Protecting Evidence for Criminal Investigation • Follow guidelines from NSW Interagency Protocol for Responding to Abuse of Older People • Protect scene by • In a sexual assault case, not bathing victim until police arrive • Not washing clothes • Isolating area and restricting entry • Not questioning victim to reduce contamination of their recall and cause confusion about the event

13. 1. If an approved provider receives an allegation of, or starts to suspect on reasonable grounds, a reportable assault, it must be reported as soon a reasonably practicable and no later than 24 hours, to a Police officer and the Secretary to the Department of Health and Ageing ; a2. You cannot discount an allegation on the basis that it is unreasonable, unsubstantiated or far fetched. That is the responsibility of the Police and the Secretary.3. Legislation does not make it compulsory for staff members to report but imposes the obligation on the approved provider to take reasonable measures to require each of its staff members who suspect on reasonable grounds that a reportable assault has occurred to report it as soon as reasonably practicable to any of the following; a. Ibid s.63-1AA(2) b. Ibid s.63-1AA(5)

14. Preconditions which must be met before you are exempt from reporting • Within 24 hours of receipt of the allegation or the start of the suspicion, you must form an opinion that the assault was committed by a resident of your facility; and • Before you received the allegation or held the suspicion, the resident must have been assessed by an appropriate health professional as suffering from cognitive or mental impairment; and

15. Preconditions cont’d • Within 24 hours you put in place arrangements for the management of the resident’s behaviour ; and • You have a copy of the assessment or other documents showing the resident’s cognitive or mental impairment and you record the arrangements you put in place to manage the resident’s behaviour.

16. Who is a staff member?1. Anybody you employ, or2. Hire; or3. Retain; or4. Contract to provide care or other services, whether directly or through an employment or recruiting agency5. Staff members do not include volunteers.

17. Questions to be posed1. Will this new legislation require you to include in all of your employment and contractor agreements a direct obligation on the staff member to report a suspicion of a reportable assault?2. To what extent will this require the staff members or contractors to be bound by the same obligation?

18. Questions Continued 3. The question arises as to why only staff who made a report about a reportable assault were given protection under the legislation, and not others such as residents, family members, visitors and advocates. The department justified the exclusion of these people by saying they were not required to report the abuse, and the protections were there only for those who were required, by compulsory reporting requirements, to report reportable assaults.

19. Opinion Given • In the opinion of Victor Harcourt - partner in Russell Kennedy, such measures go beyond what is reasonable in the circumstances. The dept in its’ submission to the Community Affairs Committee, recognised that there were limits to the control an approved provider could exercise over the behaviour of staff members. 1 . It is cited as an example of reasonable measures as education and training. It did not go as far as to suggest there needs to be express contractual provisions requiring reporting. • 1 Submission 13,p6 (Department of Health and Ageing) (DoHA) • Victor Harcourt . Partner Russell Kennedy, member of the Kennedy Strang Legal Group.

20. Whistleblower Protection • A person qualifies for protection if • A staff member or approved provider • Disclosure made to appropriate person • Discloser provides name before making disclosure • Discloser has reasonable grounds to suspect a reportable assault has occurred • Disclosure made in good faith

21. Whistleblower Protection • Under these conditions, discloser protected from • Criminal or civil liability (unless they are the perpetrator), or defamation • Termination of employment • Victimisation • These protections do not apply if confidential information released to wrong people

22. Complaints Investigation • Establishment of Office of Aged Care Quality and Compliance (OACQC) • Located in DoHA • $92m for 100 new bureaucrats • Role of new Office • Power to investigate all concerns, complaints and information • Intake and prioritisation by trained staff • Power to determine whether a breach has occurred • Power to issue notices of required action and take compliance action

23. Aged Care Commissioner Independent body to hear complaints about: • Action taken by OACQC; and • Conduct of the Aged Care Standards and Accreditation Agency and its assessors

24. What About Other Forms of Abuse? • Most common forms of abuse not subject to compulsory reporting regime • Financial abuse • Changes to Powers of Attorney or Will may require legal intervention • Theft of objects or money may require police investigation • Psychological / emotional abuse or neglect • If perpetrated by staff, may require work on staff culture or individual performance management • If by family members, may require counselling or assessment by ACAT

25. Background International Research suggests 4% to 6 % of older people are victims of elder abuse when all types of abuse considered. a More severe forms of abuse , such as physical and sexual assault were rare. a The information about the prevalence of elder abuse which exists in Australia also tends to suggest that the incidence of physical and sexual abuse is much smaller than instances of financial or psychological abuse or neglect. a Aged and Community Services Australia, Confronting elder abuse an aged care industry response, March 2006 Aged and Community Services Australia, “Elder Abuse: A holistic response background paper”, March 2006

26. 3 Grey Areas • High index of suspicion versus leaping to conclusions • Balancing beneficence with duty of care • Assessing decision making competence

27. Suspicions v Conclusions • Most experts recommend a high index of suspicion • Signs and symptoms of abuse or neglect are often subtle • E.g. signs of fear or withdrawal, bruises where older people often bruise • Equally, acting on unfounded suspicions can damage all parties • Accused abusers whose careers, personal lives can be ruined • Supposed victims who are put through extensive investigation process for no reason • Reputation of aged care provider • Example of ACS member’s experience of false rape allegation

28. Doing Good or Doing Right? • Beneficence is the principle of acting in a manner that will do good, and remove or prevent harm • Encompasses a worker’s and organisation’s duty of care • Autonomy is the principle of self determination • Rights of others to make their own decisions must be respected • Older people are capable of making decisions for themselves unless severely impaired by dementia or other psychiatric illness • Ethical dilemmas occur where there are tensions between beneficence and autonomy • E.g. case of victim wishing to stay in an abusive situation

29. Assessing Competence • A key principle on which any intervention must be planned is the thorough assessment of whether the victim is: • incapable of making his or her own decision; • capable of making a decision and wanting to remain in current accommodation; or • capable of making a decision and wanting to be separated from the abuser • Assessing competence is not always straightforward • Involvement of ACATs or other health professionals • Actually a legal, not medical, issue

30. Managing Employment Relationship • Prevention before cure • Recruitment and selection with police checks • Induction • Use ACSA elder abuse brochure for staff (available via ACS) • Have policy on abuse in place • Ongoing education and communication • Create a positive workplace culture • Including encouragement to report suspected abuse • Responding to allegation of abuse • Treat employee fairly, provide support, don’t assume guilt • In more serious cases, suspend on pay pending investigation • As employer, act on balance of probabilities, not criminal test of beyond reasonable doubt • Document carefully

31. Managing Governments • Make sure you advise funding Department before it hears about a serious incident from family, police or (even worse) media • Comply with compulsory reporting requirements in residential care • Be conscious incidents of abuse may trigger ‘spot check’ • Quality systems review by DoHA, Aged Care Standards Agency (DVA or DADHC for community care) • Policies and procedures • Staff training • Staff screening

32. What To Do on this subject • Develop a Framework by which residents can be assessed. • Get the clinicians to advise you whether the existence of cognitive impairment renders the resident incompetent to consent within the clinical framework. • Obtain assessments from health professionals about whether your residents are suffering from cognitive or mental impairment.

33. Obligations in record keeping • The records you must keep are contained in the Records Principles 1997. x • The date when you received the allegation or started to suspect on reasonable grounds, that a reportable assault had occurred; and • A brief description of the allegation or the circumstances giving rise to the suspicion; and • Information about whether a report was made or, if it was not made because it was subject to an exemption. X section 19.5 AA

34. Managing Grey Areas and Risks • Abuse is real, and needs to be taken seriously • Don’t dismiss reported incidents • But react in a manner which is proportionate to the real risks and does not damage staff, families or older people • Be proactive and prepared • Be honest • Be thorough • Seek help

35. In Conclusion • Look at your existing incident reporting system to allow for the recording of abuse and assault matters. • Look at your risk management systems • Look at the system you will use to investigate these matters.

36. Legislation framework supporting the new complaints investigation, compulsory reporting and whistleblower protection arrangements are contained in the following:a) Aged Care Amendment (Security and Protection) Act 2007b) investigation Principles 2007c) Accountability principles 1998d) Records Amendment Principles 2007 (number 1)

37. Resources • ACSA www.agedcare.org.au • Elder Abuse: A Holistic Response background paper • Confronting Elder Abuse position paper; policies and procedures resource guide • Benevolent Society model policy • www.bensoc.org.au • DoHA Guidelines on Compulsory Reporting and Police Checks • www.health.gov.au/internet/wcms/publishing.nsf/Content/ageing-quality-factsheet-index.htm • NSW Advisory Committee on Abuse of Older People research papers and reports & NSW Interagency Protocol for Responding to Abuse of Older People • www.dadhc.nsw.gov.au

38. Resources Continued • Mr Paul Sadler- CEO Presbyterian Age Care • Victor Harcourt, Partner Russell Kennedy- member of The Kennedy Strang Legal Group