Final Reports by the Human Rights Commission

Consideration of a Complaint about
(a respite support service)

Final Report by the Health Services Commissioner under the Human Rights Commission Act 2005

Final Reports by the Human Rights Commission

The Human Rights Commission (theCommission) is an independent agency established by the Human Rights Commission Act 2005 to provide a fair and accessible process for dealing with complaints about:

services for children and young people;
disability services;
discrimination; and
health services and services for older people.

Under the Human Rights Commission Act, the Health Services Commissioner exercises functions for the Commission in relation to health services and services for older people.

The Commission deals with complaints by:

giving information and assistance to people who wish to complain;
assisting direct communication between providers and consumers;
consideration; and
conciliation.

The Commission may also consider, of its own initiative, matters of public safety or public interest, matters that may be complained about under the Health Records (Privacy and Access) Act 1997 (the Health Records Act) and matters related to the Commission’s functions. The Commission may also consider matters that the Minister has directed the Commission to inquire into.

The Commission closes a complaint by giving a written report (thefinal report) to the complainant and the person complained about. The Commission need not give a final report to close a commission-initiated consideration.

The Commission also receives complaints under the Health Records Actabout contraventions of the privacy principles or of a consumer’s right of access to his or her health records.

Under the Health Professionals Act 2004, the Health Services Commissioner and the relevant Health Professionals Board give joint consideration where a health professional may be contravening, or may have contravened the required standard of practice.

If the Commission were satisfied that the person complained about has acted inconsistently with an applicable standard, the final report may make recommendations to the person. If a recommendation recommends that action be taken, it must state a reasonable time for taking the action. In certain circumstances, the Commission may make recommendations to a third party, and may give a third party report to that person, or to the Minister.

Reports are not always made public. The Health Services Commissioner is subject to statutory secrecy provisions, and for reasons of privacy, confidentiality or privilege it may be inappropriate to publish all or part of a report.

TABLE OF CONTENTS

SECTION PAGE

1.EXECUTIVE SUMMARY4

2.COMPLAINT5

3.CONSIDERATION6

4.ISSUES7

4.1 (a respite support service)7

4.2 Fiduciary relationships7

4.3 Safeguards against Boundary Violation8

4.4 (a respite support service)’s response to the complaint8

4.5 The Support Worker9

5.CONCLUSIONS10

6.RECOMMENDATIONS11

7.SERVICE DELIVERY IMPROVEMENTS11

1.EXECUTIVE SUMMARY

On 9 December 2005, Mr A made a complaint to the Community and Health Services Complaints Commissioner about a respite care service. Mr A stated that his family, including his wife Mrs B and her son, were receiving support from (a respite support service). Mr A claimed that his wife suffered from a mental illness and post-natal depression, while his wife’s son has behavioural difficulties. Mr A stated that a Support Worker employed by (a respite support service) commenced a sexual relationship with his wife.

Mr A stated that by making his complaint to the Commissioner he hoped to prevent the Support Worker from pursuing a career in providing respite care to vulnerable families, and to instigate action against (a respite support service) for allowing this to occur and excusing the Support Worker’s actions.

Following an investigation of Mr A’s complaint, the Executive Director of (a respite support service) concluded that whilst the Support Worker had commenced a relationship with a client of (a respite support service), he “had not acted in an unprofessional manner and that no misconduct had occurred”.

On 1 November 2006, the Commissioner’s office and the ACT Human Rights Office were amalgamated to form a new agency, the Human Rights Commission. Mr A’s complaint was allocated to the Health Services Commissioner for consideration in accordance with the Human Rights Commission Act 2005.

The Health Services Commissioner was satisfied that the conclusions reached by (a respite support service), following its investigation of Mr A’s complaint, were unsupported by the facts. The Commissioner was satisfied also that (a respite support service) did not have in place policies and procedures to support clients following a professional boundary violation or to guide what action should be taken in relation to an employee who violated a professional boundary.

The Health Services Commissioner recommends that:

(a respite support service) develop policies and procedures that address the issues around boundary violations, including outlining what action will be taken in relation to an employee following a boundary violation and what support will be provided to a client; and
the Executive Director of (a respite support service) meet with the Support Worker and explain the newly developed policies and procedures, that the meeting be minuted and the Support Worker sign that he has understood the instruction given and that he undertakes to comply with the policies.

It appears that no body, considered by the Health Services Commissioner during the course of this inquiry, regulated or unregulated, which provides health or community services to the public has policies or procedures in place that support a client once a professional boundary has been violated and the client has been exposed to unsafe, incompetent or unethical conduct.

Further, this case again highlights the lack of a regulatory framework for personal care workers in the ACT, a concern that has been highlighted by former Community and Health Complaints Commissioners/Health Services Commissioners in successive Annual Reports.

One object of the Human Rights Commission Act is to promote improvements in the provision of health services. Accordingly, the Health Services Commissioner has decided, in accordance with section 83(1)(iii) of the Act, to provide a de-identified third-party report to the following the:

ACT Minister for Health and Minister for Disability and Community Services, and the ACT Attorney-General;
Health Professions Boards; and
body which provides (a respite support service)’s funding,

to highlight the issues around the lack of a regulatory framework for personal care workers in the ACT, and the need for the development of policies in relation to boundary violations. The Health Service Commissioner recommends that the regulation of personal carers in the ACT be considered.

2.COMPLAINT

On 9 December 2005, Mr A made a complaint to the Community and Health Services Complaints Commissioner about (a respite support service). Mr A stated that his family, including his wife Mrs B and her son, were receiving support from (a respite support service). Mr A claimed that his wife suffered from a mental illness and post-natal depression, while his wife’s son has behavioural difficulties. Mr A stated that a Support Worker employed by (a respite support service) commenced a sexual relationship with his wife. Mr A stated that:

“given that my wife and her son were clients of this man I find this morally, ethically and professionally disgusting”.

Mr A stated that when he contacted (a respite support service) to report the actions of its employee, he was told that nothing would be done as the Support Worker was no longer supporting the family as an employee of (a respite support service). Mr A stated that:

“I find this baffling as this service deals with families who are under enough strain with dealing with ill children and tenuous relationships then you welcome any help and bring these workers into your home when you are at most vulnerable for things like this to happen”.

Mr A also stated that the Support Worker had involved himself in proceedings between himself and Mrs B before the Family Court of Australia concerning the residence of their daughter.

3.CONSIDERATION

Mr A’s complaint was received by the office of the Community and Health Services Complaints Commissioner on 9 December 2005.

During the assessment process, a response to the complaint was received from (a respite support service). The assessment revealed that while the entire family received the services provided by (a respite support service), only Mrs B and her son were considered to be (a respite support service)’s primary clients, as Mr A is not the biological father of Mrs B’s son. Further, he did not have his wife’s authority to make the complaint. As Mr A was not a client of (a respite support service) he was not eligible to make a complaint in accordance with section 21(b) of the Community and Health Services Complaints Act 1997 (the Health Complaints Act).

On 13 September 2006, the Commissioner commenced an own initiative investigation under section 40(1)(d) (ii) of the Health Complaints Act, as the complaint appeared to raise a significant question as to the practice of a provider, and issues in terms of section 22(1)(g)(iv) that a provider has acted in disregard of the generally accepted standard of service delivery.

On 19 October 2006, Investigations Officers met with the Executive Director of (a respite support service), to outline the investigation process and to issue (a respite support service) with a Notice to Provide Information in accordance with section 45(1)(a) of the Health Complaints Act. The Commissioner requested information in relation to the Support Worker identified in the complaint and the actions taken by (a respite support service) in response to Mr A’s complaint.

On 8 November 2006, the Health Services Commissioner received (a respite support service)’s response to the investigation.

Policies and procedures regarding boundary violation of regulated professions were reviewed, including the ACT Medical Board, the ACT Nurses and Midwifery Board, and the Australian Psychological Association. Policies and procedures regarding boundary violation of unregulated professions were also reviewed, including the Australian Association of Social Workers, and Home and Community Care. A literature review was conducted of recently published articles concerning professional boundary violations in home care and clinical settings.

A draft final report was prepared and a copy given to (a respite support service) and to the Support Worker, as provided for by section 80(2) of the Human Rights Commission Act. This section states that the Commission must not include an adverse comment in relation to a person in the final report unless the Commission has given the person a reasonable opportunity to respond to the proposed comment.

A written response was received from the Executive Director of (a respite support service), who agreed to implement the two recommendations specifically identified for (a respite support service).

4.ISSUES

4.1 (a respite support service)

4.2Fiduciary relationships

A fiduciary duty is the highest standard of care imposed by law on a person (the fiduciary) who is in a trust relationship with vulnerable others. A fiduciary is expected to be loyal to the person to whom they owe the duty. The fiduciary must not put their personal interests before the duty, and must not profit from their position as a fiduciary.

The helping professions have long acknowledged that the relationship between a practitioner and a client is a fiduciary one in the service of the client’s best interests and well-being. It is also a relationship with an inherent power imbalance, marked by the practitioner’s control through knowledge and skill, and the client’s vulnerability to exploitation.

In regulated helping professions, such as medicine, clear boundaries are established and the practitioner carries all the responsibility to create a safe and predictable place where treatment can unfold. For example, the ACT Medical Board published Standard Policy Paper 28 “Medical Practitioners and Sexual Misconduct” which states that: “It is the responsibility of the practitioner to behave responsibly at all times and to maintain professional boundaries with patients”.

Nadleson and Notman[1] explained that:

“the patient is not necessarily in a situation where he/she is exercising his/her best judgment, because of the emotional aspect of the clinical encounter. Patients develop feelings toward their doctors that have to do with their expectations of the power of the physician to heal and to help”.

Galletly[2] explained why sexual exploitation has very destructive effects on patients. Galletly stated that:

“intense shame, guilt, depression, post-traumatic stress disorder, suicidal thoughts, increased drug and alcohol use, break-up of relationships and loss of employment have all been reported amongst patients after sexual misconduct by doctors, therapists and other practitioners. In addition, these patients often have difficulty trusting the medical professional again, thus compromising their future healthcare”.

Sarkar[3] stated further that: “it is doubtful whether consent could be truly expressed in a relationship that is so evidently imbalanced in terms of power and dependence.”

As outlined by Wright[4], establishing and maintaining boundaries can be challenging for home care. Wright states that while providing home care, practitioners may have extended interactions with patients and other family members involved in the care plan; home care provides the practitioner with more autonomy and less supervision; and makes it easier to develop a personal relationship with a patient and lose sight of the professional nature of the therapeutic relationship.

Galletlyand Walker and Clark[5] also acknowledged that a decreased formality and an increase in non traditional roles of service providers in the provision of health care makes it more difficult for practitioners to maintain clear professional and personal boundaries. More importantly, clients engaged in home care are disenfranchised individuals who are at greater risk for exploitation.

4.3Safeguards against Boundary Violation

As stated by Walker and Clark, “in-home services, case management, and other non-traditional services expose clients and clinicians to informal private sessions. Without regular, proactive supervisions, clinicians and other providers can easily lapse into boundary problems”.

The literature review confirmed that education in relation to professional boundaries, professional standards, employer policies and procedures, is paramount in preventing the violation of professional boundaries.

(A respite support service) recognises that inherent in the relationship between its clients and Support Workers is a power imbalance, marked by the client’s vulnerability to exploitation. To ensure that Support Workers are aware of and maintain professional boundaries, (a respite support service) provides training in relation to professional boundaries as a component of its Induction Program. The Induction Program specifically highlights “sexual relationships/relationships” as a “context in which boundary violations are likely to occur”.

The training provides participants with the distinction between social and professional boundaries; outlines the importance of professional boundaries; and assists the participant to identify their professional boundaries through a number of practical exercises. The course also provides participants with examples of how a professional boundary may be violated, including scenarios relevant to their workplace, and addresses what action should be taken once a boundary has been violated.

4.4(a respite support service)’s response to the complaint

The Executive Director of (a respite support service) advised that the Support Worker provided respite to Mrs B and her son on one occasion on 27 July 2005.

The Executive Director advised that (a respite support service) became aware of the relationship between Mrs B and the Support Worker, when Mrs B informed (a respite support service) Coordinator about the relationship during a home visit. The Coordinator was responsible for coordinating support arrangements for Mrs B. The Executive Director advised that when the Coordinator became aware of the relationship, it was agreed that the Support Worker would not continue as a Support Worker for Mrs B and her son. Alternative arrangements for support were made.

On 1 November 2005, Mr A made a complaint direct to (a respite support service) about the relationship. He stated that he became aware of the relationship during proceedings between himself and Mrs B at the Family Court of Australia concerning their daughter. He stated that the Support Worker had attended the court proceedings to support Mrs B.

In response to the complaint, the Executive Director met with the Support Worker. The Executive Director made a file note of the meeting on 15 November 2005. In this file note the Executive Director recorded that the Support Worker verified that he had worked with Mrs B and her son on one occasion during which they “both realised that a relationship might develop between them and that it would be preferable to provide a freely given relationship, rather than a paid one”.

Following an investigation of Mr A’s complaint, the Executive Director concluded that whilst the Support Worker had commenced a relationship with a client of (a respite support service), the Support Worker “had not acted in an unprofessional manner and that no misconduct had occurred” because:

“Support Worker had only provided one session to the family and support arrangements were altered to ensure our Support Worker did not work as a Support Worker for the family again;
Support Worker was aware of professional boundaries having completed the Induction Program and various other workshops;
Other clients, including the mother in question, expressed appreciation and support of the Support Worker and (a respite support service); and
Case worker from Family Services supported the personal support provided by our Support Worker to the mother.”

4.5 The Support Worker