What is unlawful sexual contact or inappropriate sexual conduct?
You must notify the Commission of any incident of unlawful sexual contact or inappropriate sexual conduct that:
- happens in your service, regardless of who committed the act (including workers, visitors, or consumers)
- somebody has alleged happened at your service
- you suspect may have happened at your service.
What is unlawful sexual contact or inappropriate sexual conduct?
You must notify the Commission of any incident of unlawful sexual contact or inappropriate sexual conduct that:
- happens in connection with the care that your service provides
- somebody has alleged happened in connection with care
- you suspect may have happened in connection with care.
- any sexual behaviour that is an offence under state, territory or Commonwealth laws (such as sexual assault)
- sexual contact or conduct where a consumer is unable to consent (for example, where a consumer has a cognitive impairment that limits their capacity to consent)
- any conduct or contact of a sexual nature inflicted on the consumer by a worker, or a person who provides care or services for the provider or while that person is providing such services (e.g. volunteers on duty).
- sexual intercourse or penetration of a consumer without consent (including by another consumer)
- touching a consumer’s genital area (or other private areas) without a genuine care need
- a person (including another consumer) masturbating or exposing their genitals in the presence of a consumer
- undressing in front of a consumer or watching a consumer undress where there is no need for supervision
- inappropriate exposure of a consumer’s sexual behaviour to others
- taking an intimate image of a consumer
- using sexually explicit language or innuendo in front of a consumer
- showing pornography to a consumer or using a consumer in pornography
- grooming, stalking or making sexual threats to or in the presence of a consumer
- forcing, threatening, coercing or tricking a consumer into sexual acts.
- consensual acts of affection such as greeting someone with a kiss on the cheek or hug
- consensual sexual relations between a consumer and somebody who is not a worker or volunteer on duty
- consensual sexual relations between two consumers receiving services from the provider
- gestures of comfort, like rubbing a consumer’s back (if this aligns with the consumer’s preferences)
- performing care tasks, like helping a consumer wash or toilet (when done in accordance with professional standards).
Unlawful sexual contact and inappropriate sexual conduct could be inflicted on a consumer by anyone. To determine whether the contact or conduct of a sexual nature was unlawful or inappropriate, your service will need to assess each individual case.
Any conduct or contact of a sexual nature inflicted on a consumer by a worker is a reportable incident, including where the consumer consented to the conduct or contact.
What is 'in connection with care'?
You must manage and report all incidents (including alleged or suspected incidents) of unlawful sexual contact or inappropriate sexual conduct in connection with care.
Incidents that occur in connection with care and that have (or could reasonably have been expected to have) caused harm to a consumer or another person, include incidents:
- that occur while care and services are being provided
- that arise out of a failure to provide care and services
- where the harm (or potential harm) is connected to care and services provided, even if the harm did not occur during delivery of service.
Workers may also witness incidents which are not connected with care. This may include acts committed by members of a consumer’s household or community who are not affiliated with you. While incident management and prevention requirements do not apply to these incidents, you still have a broader responsibility to protect the safety, health and wellbeing of consumers. You must take protective steps when you become aware of neglect or abuse (including suspected or alleged incidents) of consumers.
If an incident may be unlawful, such as a physical or sexual assault, or if there is any ongoing danger to any person, you should contact the police.
You should also support consumers dealing with elder abuse or other issues by connecting them to further assistance, such as:
- OPAN (website) – the Older Persons Advocacy Network provides free, confidential, and independent support to older people seeking or receiving care and their families or representatives.
- 1800 ELDERHelp (1800 353 374) – a free and confidential National Elder Abuse phone line.
All incidents of unlawful sexual contact or inappropriate sexual conduct are Priority 1 reportable incidents and must be reported to the Commission within 24 hours of your service becoming aware. This includes incidents where the subject of the allegation lives with a cognitive impairment.
Work tool
The SIRS Decision Support Tool can help you explore what kinds of incidents are unlawful sexual contact or inappropriate sexual conduct.
Warning signs
Incidents of unlawful sexual contact or inappropriate sexual conduct are not always witnessed, and not all affected consumers will report that an incident has happened.
There are other warning signs that might suggest that an incident has happened at your service. These include when a consumer:
- drop hints that seem to be about abuse
- has sudden changes in behaviour or character, like depression, anxiety attacks, social withdrawal or emotional withdrawal
- shows signs of distress that are out of character, like
- crying
- sweating
- trembling
- agitation
- anger
- violence
- absconding
- seeking comfort and security
- shows visible signs of injury, like bruises, pain, swelling and bleeding, especially around the breasts, thighs or genitals
- develops unexplained urinary tract infections or sexually transmitted disease
- has torn or stained clothing or bedding
- avoids or is fearful of a particular person or gender
- refuses to go to bed or has disturbed sleep
- wishes to go to bed fully clothed
- refuses personal care or showering
- requests a lock on the door to their room.
You should always investigate or escalate to an appropriate person when there are changes in a consumer’s behaviour or where these warning signs are shown.
Remember, if you suspect that a reportable incident has happened, you must notify the Commission. You should not wait for definitive proof.
Consumer reactions to unlawful sexual contact or inappropriate sexual conduct
There may be a range of emotional, behavioural, and physiological responses to unlawful sexual contact, including symptoms related to post-traumatic stress, such as depression and withdrawal. Sometimes these will mirror symptoms of cognitive impairment such as agitation, distress and confusion.
There may be no discernible response. This does not mean that the person has not suffered from trauma or does not need treatment and support.
Relationships with consent
The SIRS is designed to protect vulnerable consumers, not to restrict their sexual freedoms.
Consumers have the right to sexual freedom, and the right to give and receive affection.
Under the Aged Care Charter and Quality Standards, you must support consumers to exercise choice and independence, to make connections with others and to maintain relationships of choice. These rights and freedoms apply equally to consumers with a mental or cognitive impairment.
You must balance your responsibility to provide a safe environment with the consumers’ right to maintain relationships of choice.
Responding to unlawful sexual contact or inappropriate sexual conduct
When an incident happens at your service, your first priority is always to ensure the safety and wellbeing of your consumer.
For an incident of unlawful sexual contact or inappropriate sexual conduct, this could mean:
- separating the affected consumer from the person who inflicted the unlawful sexual contact or inappropriate sexual conduct
- contacting a health practitioner such as a nurse or doctor as soon as possible
- ensuring a full assessment of the consumer is conducted by a health practitioner to check for and treat any physical or psychological injury
- contacting the police in cases of unlawful sexual contact.
While managing the incident you must continue to give the consumer support and practice open disclosure by letting the consumer, or their representative, know the steps you are taking to respond.
Further info
Celebrate Ageing has created a number of resources to help you understand the impact of sexual assault, and to help you understand how to respond when a sexual assault happens in your service.
You can access these resources at www.celebrateageing.com.
All incidents of unlawful sexual contact or inappropriate sexual conduct are Priority 1 reportable incidents. You must notify the Commission within 24 hours of becoming aware.
Incidents that are unlawful or considered to be of a criminal nature (for example sexual assault), must also be reported to police within 24 hours of the provider becoming aware of the incident.
Reporting unlawful sexual contact or inappropriate sexual conduct
A quality incident notification requires more than simply transcribing the details from progress notes about the incident or copying text from your incident management system. It is important that the person making the notification is familiar with:
- what happened
- when the incident happened
- where the incident happened
- who was involved including the affected consumer, workers involved in the incident, and other affected people
- what actions were taken after the incident
- what caused the incident (if known)
- what changes will be made as a result of the incident (if known).
If you become aware of further information after submitting your initial notification, you should update the Commission.
When you provide clear and comprehensive information early on, it is less likely that the Commission will need to:
- ask for further details
- require you to conduct an investigation
- directly investigate the matter itself.
Tool tip
It is easier to make a good quality notification to the Commission if you have the information you need at hand.
Educating workers to report incidents correctly within your IMS will make it easier to notify the Commission when a reportable incident happens.
Work tool
The fact sheet, Reportable incidents: unlawful sexual contact or inappropriate sexual conduct, provides more detailed guidance for reporting of incidents in a residential service relating to this incident type.
The example Unlawful sexual contact and inappropriate sexual conduct notification shows the level of detail the Commission expects when receiving a notification about this incident type.
You can use the Practical tips guide to ensure your notification contains the required information.
Work tool
The fact sheet, Reportable incidents: unlawful sexual contact or inappropriate sexual conduct, provides more detailed guidance for reporting of incidents in a home or community setting relating to this type of reportable incident.
Facilitated Workshops
The Commission provides facilitated workshops to sector participants. All current workshops are available on the Commission’s Workshop page.
Facilitated Workshops
The Commission provides facilitated workshops to sector participants. All current workshops are available on the Commission’s Workshop page.
Online learning
The Commission’s Aged Care Learning Information Solution, Alis provides free online education for employees of Commonwealth-funded aged care providers, including a module covering Unlawful sexual contact or inappropriate sexual conduct.
You can access Alis at learning.agedcarequality.gov.au.
Disclaimer
The information contained on this page is intended to provide you with general guidance, however it is your responsibility to be aware of your legislative requirements.
