Compulsory reporting part one: reportable assaults

Welcome to our three part guide to compulsory reporting.

In part one, we explain the approved provider obligations for reporting alleged assaults. Please read part two for information about the discretion not to report assaults in certain circumstances and part three for information about compulsory reporting of missing residents.

Compulsory reporting is an important responsibility all approved providers of residential aged care must be aware of. We hope this three part guide sheds some light on the subject and helps approved providers to fulfill their obligations.

Part one: compulsory reporting of assaults

What is a reportable assault?

 A reportable assault is defined as:

• alleged unlawful sexual contact with a resident of an aged care home, and/or
• alleged unreasonable use of force on a resident of an aged care home.

‘Unlawful sexual contact’ is any sexual contact, without consent, that is unlawful under any Commonwealth, state or territory law.

If no resident involved in the sexual contact has a cognitive or mental impairment that affects their ability to consent, and all parties involved consent, it is not an unlawful sexual contact. A resident has the right to select and maintain personal relationships with anyone without fear, criticism or restriction.

If the sexual contact involves a resident with a cognitive or mental impairment, the resident might not have the capacity to provide informed consent. If the resident does not have the capacity to provide consent, the contact is a reportable assault. A person’s capacity to consent to physical or sexual contact may vary from situation to situation or from day to day.

Approved providers may exercise their discretion not to report allegations or suspicions of assaults in some circumstances when the assault is committed by a resident with an assessed cognitive or mental impairment. There is detailed information about this in part two.

What are approved provider obligations for reporting assaults?

When an approved provider receives an allegation or suspicion of a reportable assault they are required to do the following under the Aged Care Act 1997(the Act):

• lodge a report with the police and the Department of Health and Ageing (the department) within 24 hours of the most senior person on duty becoming aware of an allegation or having a suspicion of a reportable assault
• take steps to ensure staff members report allegations or suspicions of reportable assaults to the most senior person on duty soon as reasonably practicable
• take reasonable measures to protect the identity of any staff member who makes a report of an alleged incident and protect them from victimisation
• ensure that swift action is taken to support the victim
• advise the relevant care recipient’s family or guardian
• ensure that appropriate actions are taken to protect residents and provide a safe and secure environment
• put in place and document arrangements to manage the offending care recipient’s behaviour within 24 hours OR review behavioural management arrangements already in place within 24 hours
• ensure that all affected parties are offered support and counselling
• log the incident in their consolidated record of reportable assaults
• have documented procedures in place to deal with reportable assaults and make sure employees are aware of these procedures.

These obligations may not apply where an approved provider exercises their discretion not to report assaults. There is important information about discretion not to report in part two.

Even if the alleged or suspected assault occurred between family members or spouses, it is still compulsory to report it.

An approved provider’s obligations under the Act are broader than just reporting an allegation or suspicion of a reportable assault. Additional responsibilities are outlined in the Act and in the compulsory reporting guidelines for approved providers of residential aged care. These broader responsibilities apply even where an approved provider exercises their discretion not to report.

What are the roles of the department and the police?

The police are responsible for collecting evidence and conducting investigations into what could be a criminal matter.

The role of the department is to determine if the approved provider is meeting its responsibilities under the Act. The department may:

• disclose relevant information to the police if the police have not been advised of the assault
• disclose relevant information to the approved provider if the report is from another source
• determine whether the approved provider has procedures in place to deal with reportable assaults and whether employees are aware of these procedures
• determine whether the approved provider and staff have followed their procedures
• determine if a police check was undertaken, if the alleged perpetrator is a staff member or an unsupervised volunteer.

Suspicions of assaults must be reported

If an approved provider suspects, on reasonable grounds, that an assault has occurred in their service, they must report it to the police and the department immediately. Suspicion includes where staff notice signs of assault and/or where an alleged assault was not witnessed by staff. If you would like more detail about what constitutes a suspicion on reasonable grounds, please refer to the compulsory reporting section of the Residential Care Manual and the compulsory reporting guidelines for approved providers of residential aged care.

There is an equal obligation to report allegations and suspicions of assaults.

Compulsory reports are not the same as complaints

Compulsory reports are not recorded against an approved provider as complaints. The initial report of an assault is treated as a notification.

The department monitors compulsory reporting of reportable assaults. If an approved provider fails to make a compulsory report, or if they have not met their other responsibilities in relation to compulsory reporting, the department may investigate the matter.

More information

For more information please refer to the compulsory reporting guidelines for approved providers of residential aged care.

If you would like more information or have any questions, please leave a comment below.