Resident assault in the aged care sector: making sure the punishment fits the crime

The Department of Health has reported that the number of assaults against aged care residents has increased by 10% within one year.¹ With the number of assaults increasing, it follows that aged care providers will be required to conduct an increasing number of investigations into such incidents.

When conducting investigations, providers face a unique challenge in balancing their dual obligations to employees (including affording them procedural fairness) and to residents (including protecting residents’ health and safety and ensuring they comply with their various obligations under aged care legislation).

Failure to appropriately manage investigation

A key mistake providers often make is mismanaging investigations.

In one case before the Fair Work Commission (FWC), an employee was summarily dismissed following an allegation that she unreasonably used force, restrained and verbally abused a resident.²

The FWC found that, while she did make physical contact with the resident, a more thorough investigation by the provider, fewer assumptions by the investigators of the reasons for the employee’s conduct (which they relied upon to support a finding of guilt) and a better analysis of the evidence it had gathered (which included inconsistencies between the evidence of key witnesses) would perhaps have led the provider to the conclusion that summary dismissal was not warranted. The FWC found that, in the circumstances, the termination was harsh and ordered the employee be reinstated, issued with an appropriate warning and undergo retraining.

Failure to correctly analyse investigation findings

In another case before Fair Work Australia (FWA) (as the FWC then was), an employee was dismissed (and charged by police) after it was alleged that she assaulted a resident.³

FWA found that there was no valid reason for the employee’s dismissal. While the employee was afforded procedural fairness, and the correct process was followed in conducting the investigation, the findings of the investigation did not, in the opinion of FWA, give the provider a valid reason for dismissal because there were inconsistencies in the evidence of the only witness to the alleged assault, the evidence of that witness was not corroborated by any other person, and there were no physical markings on the resident to support him having been assaulted in the manner alleged.

Take away

It is vital that aged care providers have well drafted policies and procedures setting out how and when investigations are to be conducted, and that investigations are conducted in accordance with those policies and procedures.

Providers also need to ensure an astute analysis of the findings is undertaken. Despite their obligations under aged care legislation, providers cannot simply ‘err on the side of caution’ and dismiss an accused employee if the findings of the investigation do not support that course of action.

¹Department of Health, 2014-15 Report on the Operation of the Aged Care Act 1997.
²Bolden v Lyndoch Living Inc T/A Lyndoch Warrnambool Inc [2014] FWC 3259 at [196]
³Schnell v Retirement Care Australia Operations (2) Pty Ltd T/A Regis Group [2012] FWA 3400.