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.
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.
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.
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.
