Physical and sexual violence are unacceptable and must be dealt with promptly and appropriately. The Departmental Instruction on Responding to Allegations of Physical or Sexual Assault sets out management and reporting requirements relating to specified groups of clients or staff. Physical and sexual assault are crimes against the person. Organisations should be aware that many clients, including young people, and people with a disability, are at greater risk of physical and sexual assault than the general population.

Purpose

The aims of the Instruction are to:

• protect clients and staff from assault
• support clients and staff who report allegations of physical or sexual assault
• ensure duty of care requirements are met
• hold perpetrators of physical and sexual assault accountable for their actions.

Scope

The Instruction contains a set of minimum standards for supporting victims and reporting allegations of physical or sexual assault to Victoria Police. The instruction must be followed in conjunction with the department’s incident reporting system, and will apply:

• in all programs where the client resides in a residential service directly managed by the department, such as juvenile justice centres, juvenile justice regional residential units, secure welfare, or disability accommodation services
• where the child or young person is in out-of-home care (including respite care for clients with a disability)
• where the client has a disability and resides in a residential service funded by the department (including respite care)
• where the client has a disability and is receiving facility-based day programs, either directly from the department or through a funded organisation
• where the client has a disability and is receiving in-home or community based services and the allegation is against a staff member of either the department, or an organisation providing those services that has been funded by the department.

The situation may arise where a client has a disability and is receiving in-home or community based services, and a staff member becomes aware of an allegation of an assault on the client perpetrated by a non-staff member. In this instance, the staff member must support the client to seek support and to make a choice about reporting the alleged assault to Police:

• In-home support staff must contact police if they perceive an immediate risk of harm to the client from the physical of sexual assault (with or without consent).
• If a client is not at immediate risk of harm, and consent to report the allegation of assault to the police has not been obtained, the in-home support staff must liaise with their supervisor or the case manager to make the report to police or engage other services as appropriate (counselling, sexual assault counselling services, advocacy).
• A determination that a report to police is not made by the organisation can only be made after consultation with senior organisation management and where there is a planned referral pathway to appropriate services.
• Information regarding the obligations and requirements in relation to reporting allegations of assault must be made available to clients at initial contact.

If the client is within scope as described above, all allegations of physical or sexual assault must be responded to according to this instruction.

Arrangements for Home-based Care and Shared Family Care

For these services, the Guidelines for investigating allegations against home-based caregivers, Final draft March 2005 apply. It is expected these guidelines will be endorsed in mid-2005 and when this occurs the final endorsed guidelines will apply in these services.

Application of Instruction in Alcohol and Drug Treatment Services and Supported Accommodation Assistance Programs (SAAP)

On occasion, a client in out-of-home care, or a client who usually resides in a residential service directly managed by the government, may be receiving SAAP services or Alcohol and Drug Treatment Services. In such instances, where an organisation is aware of the client’s status (that is, that the client is from out-of-home care or resides in a residential service directly managed by government) all allegations of physical and sexual assault must be managed according to this Instruction. The organisation will act either directly or in collaboration with the primary support organisation for the client. The organisation that first becomes aware of the incident must follow through on the steps in this Instruction, unless a more appropriate program or organisation takes this responsibility. If the organisation or program which first becomes aware of the incident is not the lead organisation or organisation with primary responsibility for the client, then they must ensure that the lead or prime organisation is informed.

Minimum requirement

This Instruction and its coverage represent the minimum standards for reporting and managing allegations of physical or sexual assault. Program areas may develop operational guidelines for implementation, which take account of specific programmatic issues and needs.

Definitions

Physical assault
Physical assault is defined in the previous section on incident reporting.

Some incidents that do not cause physical injury may still constitute an assault under the law, but under this Instruction can be dealt with most appropriately through Departmental incident reporting. That is, some minor incidents involving, for example, one client shoving another with no injury caused, may be dealt with through incident reporting rather than being reported to Police. It is important that such incidents are documented and responded to appropriately, for example, through a behaviour management plan and monitoring. Assaultive behaviour of any type is unacceptable, regardless of the intent of the person committing the violence.

Sexual Assault
Sexual assault is defined in the previous section on incident reporting.

Compulsory requirement

This Instruction will apply in each of the following categories:

• allegation of assault of a client by a staff member or volunteer carer
• allegation of assault of a client by a client
• allegation of assault of a client by a visitor, family member, other non-staff member or member of the community
• allegation of assault of a staff member, visitor, other non-staff member, or member of the community by a client.

All allegations of physical or sexual assault as defined for the purposes of this document must be reported to the Police, whether or not the victim has consented to the matter being reported. All assaults as defined constitute Category One or Category Two Incidents under the department’s Incident Reporting Instruction. The only exceptions are incidents as described in the Instruction at:

• section 1.6, paragraph 3 (minor incidents such as shoving between clients);
• section 7.1.3 paragraph 2 (inappropriate touching by a disability client who lacks understanding of the behaviour); and
• section 7.1.4 (exposure in a public place by a disability client in some contexts).

In the case of the three items listed above, a Category Three incident report must be completed and a behavioural management intervention implemented and monitored.

Consent to reporting the allegation

Reporting of allegations of assault to the Police is required whether or not the alleged victim has consented to the matter being reported. The alleged victim may choose not to participate in the Police investigation.

Both the Information Privacy Act and the Health Records Act contain provisions for the disclosure of personal information relating to criminal offences. The information handling procedures outlined in this document have been developed in consultation with the department’s Privacy Unit and Legal Services Branch.

Reporting the allegation to Police

Assess the situation

When an allegation is made, or a staff member becomes aware of an assault, staff should immediately assess the situation to ensure a safe environment. Once safety is established, the first priority is to care for the victim, and they must be given maximum support and assistance.

Allegations of assault should always be treated seriously. The victim’s feelings about themselves may be influenced by initial reactions to their allegation. If the victim senses a horrified or disbelieving response, this may reinforce and perpetuate feelings of guilt and shame. If a sexual assault is disclosed, or a staff member becomes aware of such an assault, a helpful response may include:

• telling the person that you believe them
• making it clear that whatever has happened is not their fault
• if the person disclosed the assault, reassuring them that they did the right thing
• telling the person that some people do wrong things and that the perpetrator is responsible for the assault
• doing everything possible to listen carefully to and reassure the person, including explaining the actions you will take next.

Emergency medical assistance

If the victim requires immediate medical attention a medical practitioner or ambulance should be called, or the victim conveyed to the nearest accident and emergency department.

Where a staff member is the alleged perpetrator of physical or sexual assault, any medical practitioner called should be independent of the service where the alleged assault took place.

Responsibility for reporting

The most senior staff member in the relevant work area (such as a house or unit) present at the time the allegation is made is responsible for reporting the allegation of assault to the Police. If the allegation is against the most senior staff member, then the next most senior staff member must make the report. The report must be made as soon as practicable, once immediate safety and medical needs are met. Where staff at a service can contact ‘on call’ staff quickly, they may do so to discuss the incident.

The worker who first becomes aware of the allegation must advise the reporting senior staff member in the relevant work area of details of the allegation.

The worker who first becomes aware of the allegation must be available to assist the Police with any investigation.

Advice to person of report to Police

In relation to a victim of assault, the worker who first becomes aware of the allegation must advise the person that the allegation will be reported to the Police. In relation to an alleged perpetrator, staff should consult with Police as to whether the person should be told of the report to Police. It is important that any steps taken do not undermine action that Police may instigate.

Call the Police

Where an immediate Police response is required, call 000.

The phone call will result in the allocation of the appropriate unit, which may be a Sexual Offence and Child Abuse Unit (SOCAU) for the area or a General Duties Police Unit.

At the time of contact, it is important that Police are advised if the client has impaired mental functioning and will need the support of an Independent Third Person during interview or when a statement is being taken.

Contact the local Centre Against Sexual Assault (CASA)

If the client consents, in instances of alleged sexual assault, the local CASA should be contacted at the same time the Police are informed of the allegation. The most senior staff member in the relevant work area has this responsibility. CASA should always be involved, unless the victim does not want contact with this service.

Forensic medical examination

In some instances, the Police may suggest that the Victorian Institute of Forensic Medicine (VIFM) be called to provide a Forensic Medical Officer, free of charge, to examine victims. Police will arrange this.

Assist the Police

The Police should be assisted in conducting their investigation. The investigation may involve the Police taking photographs of any physical injuries. The Police may need the worker’s assistance to explain this procedure to the client.

In relation to preserving evidence of sexual assault, it is helpful to:

• encourage the victim not to shower or change, or, if the victim feels they must shower or change, ask them to put the clothing they were wearing at the time of the assault in bags, which should be sealed, labelled and secured
• where possible, lock the door to the room or restrict access to the area where the assault occurred so any physical evidence inside that area remains undisturbed.

It is not necessary for a victim to decide immediately about whether to be involved in a prosecution. People may be distraught in the immediate aftermath of an assault and sometimes change their minds later. Some evidence, however, will only be present in the immediate period following assault. Forensic evidence collected at this time will assist the investigation, should the victim wish to proceed at a later stage.

Where a client is the alleged victim

Inform the client of the process

In order to assist the client to make an informed decision about whether or not to participate in the Police investigation, the following information must be provided to the client:

• The matter will be or already has been reported to the Police.
• The Police will investigate the incident.
• The Police may want to interview the client and take a statement. The client may choose whether or not to participate in the Police investigation:

• Clients with mental impairment must have an Independent Third Person (ITP) present during the interview. The role of the ITP is to facilitate communication, ensure that the client understands his or her rights, and to support the client. Police are responsible for arranging the ITP.
• Departmental and funded organisation staff should not act as the ITP.
• Where the alleged victim is under eighteen years of age, he or she must have a parent, guardian, or an Independent Person present when a statement is being taken. The role of the Independent Person is to provide support to the client, and ensure that their evidence is accurately recorded. If the young person has a mental impairment, then an ITP rather than an Independent Person should be present.
• The Police will decide whether or not to proceed with charging.
• If the matter is taken to court, the client will most likely be required to give evidence.

Advocacy

In the case of sexual assault, with the client’s consent, staff should consider contacting the Centre Against Sexual Assault (CASA), to support the client during this process and ensure the client does not feel pressured to act in a particular way.

Under no circumstances, however, should an advocate or ITP or staff member interview the client about the allegation – that is the role of Police. It is acknowledged that some discussion may be required to establish safety and a basic understanding of what has occurred. If the victim needs to talk about what happened, listen and show concern.

Notification of next of kin or guardian

• Note that in any following sections, senior staff member refers to the most senior staff member in the relevant work area, such as a house or unit, present at the time that an incident occurs or an allegation is reported.

The client is receiving disability services or juvenile justice services and is under 18 years.

The senior staff member must ensure that the next of kin or guardian is contacted. They must explain to the next of kin or guardian the nature of the allegation; the standard procedure for reporting allegations to the Police; that the client may choose whether or not to participate in the Police investigation; and any action taken by staff since reporting the allegation. The next of kin or guardian should be asked if they wish to be present at the interview.

The client is over 18 years and receiving disability or juvenile justice services

It is the client’s decision whether or not to inform the next of kin of the allegations. In the case of a client with an intellectual disability, where a decision is made not to advise the next of kin, it should be clearly documented how the client demonstrated that they made an informed decision. If the client chooses to notify next of kin, every attempt should be made to assist the client to make contact. If the client is unable to make an informed decision regarding contact and the client does not have an appointed guardian, the senior staff member should contact the next of kin, as appropriate.

The client has a legal guardian

The senior staff member must ensure that the legal guardian is contacted. They must explain the nature of the allegation; the standard procedure for reporting allegations to the Police; that the client may choose whether or not to participate in the Police investigation; and any action taken by staff since reporting the allegation. The guardian should be asked if they wish to be present while the client’s statement is being taken.

The client is on a Guardianship to Secretary Order

The senior staff member must contact the client’s allocated case worker and explain the nature of the allegation; the standard procedure for reporting allegations to the Police; that the client may choose whether or not to participate in the Police investigation; and any action taken by staff since reporting the allegation.

The case worker should be asked if they wish to be present while the client makes their statement; however this participation is ultimately at the discretion of the Police.

For clients within a juvenile justice custodial facility, the senior staff member will usually ensure that the next of kin or guardian is contacted. The senior staff member will explain the nature of the allegation; the standard procedure for reporting allegations to the Police; that the client may choose whether or not to participate in the Police investigation; and any action taken by staff since reporting the allegation.

The client is on a Custody to Secretary Order

The senior staff member will usually ensure that the next of kin or guardian is contacted. They will explain to them the nature of the allegation; the standard procedure for reporting allegations to the Police; that the client may choose whether or not to participate in the Police investigation; and any action taken by staff since reporting the allegation. The next of kin or guardian should be asked if they wish to participate in the interview.

An Office for Children or Juvenile Justice client does not wish their next-of-kin or guardian to be contacted

If the client is a young person who does not wish their next of kin or guardian to be notified, this should be discussed with the departmental Child Protection Manager in the region, or the Juvenile Justice Custodial Centre Chief Executive Officer. A decision in relation to notification will need to consider factors including the client’s age and capacity, where they are living, and their best interests. If necessary, legal advice should be sought, and if a decision is taken not to notify the next of kin or guardian, this must be clearly documented.

Clients from indigenous or culturally and linguistically diverse communities

For clients who are from culturally and linguistically diverse communities (CALD), or from indigenous communities, staff should consider referring the victim to specialist organisations or staff for additional support. It may also be necessary to arrange a translator.

Care plan

Agreed action for the client needs to be recorded on his or her care plan. This must include

• what steps are being taken to assure his or her safety in the future
• what treatment or counselling he or she can access
• modifications in the way services are provided (for example, same gender care or placement)
• how best to support the client through any action he or she takes to seek justice or redress
• any ongoing risk management strategy required, where this is deemed appropriate.

Where a client is the alleged perpetrator

Police involvement and informing the client

Staff must consult with Police about whether to inform the client of the report to Police. The Police may want to interview the client and take a statement. Clients with mental impairment must have an ITP present during the interview, and this will be arranged by Police.

Where the client is under the age of eighteen years, an ITP must be present during the Police interview.

Legal representation

Staff must contact the worker most directly responsible for the client’s care, who will ensure that the client has legal representation and is assisted during the investigation and hearing. For a client with a disability who has no appointed case manager, departmental Intake and Response should be contacted in relation to legal representation.

Notification of next of kin or guardian

Next of kin or guardian should be notified of the alleged assault, following the instructions set out in section 5.3.

Support client

The client’s worker should ensure the client is referred for counselling and appropriate intervention. Under no circumstances should an advocate or ITP or staff member interview the client about the allegation – that is the role of Police.

Care plan

Agreed action for the client needs to be recorded on his or her care plan. This must include:

• what treatment or counselling he or she can access
• modifications in the way services are provided (for example, same gender care or placement)
• how best to support the client through any action to prevent recurrence
• any ongoing risk management strategy required, where this is deemed appropriate.

Incident report and client file

An incident report must be completed (see previous section regarding assault categorisation) and information on the allegation must be recorded on the client file. Relevant information includes:

• a copy of the incident report
• whether or not the client wished to participate in the Police investigation
• the client’s physical and emotional condition
• details of the action taken in relation to the client’s condition: ambulance or doctor called, time, date
• whether or not the client wished to notify the next of kin. (If the client has a legal Guardian, the Office of the Public Advocate should be notified).
• the time and date of notification to the next of kin or guardian, and the name of the person who made the notification
• follow up report regarding the outcome of investigation of the allegation.

Criminal injuries compensation and victim support

Application for Criminal Injuries Compensation may be pursued by the client or their Legal Administrator, after the incident has been reported to the Police.

Where the alleged victim and the alleged perpetrator reside, attend or work in the same setting

Prevent further contact

After reporting to the Police, every attempt must be made to ensure the safety of the victim, and to prevent any further contact between the alleged victim and the alleged perpetrator.

Plan for relocation

Thorough consideration must be given to the relocation of the alleged victim, the alleged perpetrator, or in rare cases, both parties. In principle, the alleged perpetrator should be moved from the immediate work area, such as a house or unit while an investigation is undertaken.

Relocating a client with a disability

For clients with a disability, a decision to remove a person from a setting must be made on an individual basis, in consultation with the most senior staff member in the facility. More guidance is provided in the Instruction.

Where a staff member is the alleged perpetrator

Sexual and physical assaults are crimes. Apart from more general provisions, the Crimes Act 1958 has specific provisions relating to the sexual exploitation of young people and people with mental impairment:

• Section 51 prohibits a carer from taking part in sexual acts with mentally impaired people in their care. Consent is not a defence.
• Section 52 prohibits sexual acts between residents with mental impairment and carers in residential facilities. Consent is not a defence.
• Sections 48 and 49 prohibit a person from participating in an act of sexual penetration or indecent acts with a person aged 16 or 17 to whom he or she is not married and who is under his or her care, supervision and authority. Consent is not a defence.

Follow organisation disciplinary procedures

After reporting to the Police, the line manager must be immediately notified of the report. The manager must then notify the Regional Director, who will prepare a briefing for the relevant Executive Director.

Where an allegation is made against a staff member or volunteer carer of an organisation providing services funded by the department, reference should be made to program guidelines and the organisation’s disciplinary procedures.

The rights and care of the client are the paramount concern.

Where a staff member is the alleged victim of a physical or sexual assault by a client

Access to medical and support services

The senior staff member must ensure that the alleged victim has access to medical attention and support services (for example, debriefing, CASA), and that a safe working environment is maintained. It is essential that the alleged victim is given maximum support and assistance. Support should be meaningful and delivered with care by managers and colleagues. General arrangements may include allocating a safe place for retreat, giving staff the option of being immediately and temporarily relieved of their duties, providing communication with families and offering to organise transport home. Managers are also responsible for providing ongoing support to staff exposed to physical or sexual assault.

Follow incident, DINMA and Police reporting procedures

After reporting to the Police, the line manager must be immediately notified of the incident. The manager must investigate the incident and follow incident reporting procedures, including the development of strategies to minimise the likelihood of recurrence.

Should the staff member be opposed to reporting the matter to Police, this must be discussed with the senior departmental program manager in the region. Should a decision be made not to report to Police, this must be clearly documented.

Victim may choose whether to participate in the Police investigation

The alleged victim may choose whether or not to participate in the Police investigation.

Alex McGillivray, Manager Funding and Monitoring Unit Ph: (03) 9096 1371
Authorised by: Brendan Fogarty, Director Business Development Branch

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