Chcleg001 work legally and ethically

CHCLEG001

WORK LEGALLY AND ETHICALLY

LEARNER RESOURCE

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T A B L E O F C O N T E N T S

TABLE OF CONTENTS ........................................................................................................................................ 2

UNIT INTRODUCTION ....................................................................................................................................... 4

ABOUT THIS RESOURCE ...................................................................................................................................... 4 ABOUT ASSESSMENT .......................................................................................................................................... 5

ELEMENTS AND PERFORMANCE CRITERIA ....................................................................................................... 7

PERFORMANCE EVIDENCE AND KNOWLEDGE EVIDENCE ................................................................................. 9

PERFORMANCE EVIDENCE ......................................................................................................................................... 9 KNOWLEDGE EVIDENCE ............................................................................................................................................ 9

ASSESSMENT CONDITIONS ............................................................................................................................ 11

PRE-REQUISITES ............................................................................................................................................. 11

TOPIC 1 – IDENTIFY AND RESPOND TO LEGAL REQUIREMENTS ...................................................................... 12

IDENTIFY, ACCESS AND INTERPRET SOURCES OF INFORMATION ABOUT THE LEGAL REQUIREMENTS THAT

APPLY TO THE WORK ROLE ............................................................................................................................ 12

CONFIDENTIALITY .................................................................................................................................................. 12 LEGISLATION GOVERNING CONFIDENTIALITY ............................................................................................................... 13 THE PRIVACY ACT ................................................................................................................................................. 15 CODE OF ETHICS/CONDUCT ............................................................................................................................. 16 REGULATIONS ....................................................................................................................................................... 16 WHAT ARE YOUR DUTIES / RESPONSIBILITIES AS A COMMUNITY SERVICE WORKER? ............................................................. 17 DIGNITY OF RISK .................................................................................................................................................... 19 INFORMED CONSENT .............................................................................................................................................. 19 MANDATORY REPORTING ........................................................................................................................................ 19 PRACTITIONER/CLIENT BOUNDARIES .......................................................................................................................... 28

IDENTIFY THE SCOPE AND NATURE OF OWN LEGAL RIGHTS AND RESPONSIBILITIES ..................................... 29

WHAT IS THE DUTY OF CARE? .................................................................................................................................. 29

ADHERE TO LEGAL REQUIREMENTS IN WORK PRACTICE ACCORDING TO WORKPLACE POLICIES AND

PROCEDURES AND SCOPE OF ROLE ................................................................................................................ 32

CONFIDENTIALITY .................................................................................................................................................. 32 IMPORTANCE OF CONFIDENTIALITY ........................................................................................................................... 33 LEGISLATION GOVERNING CONFIDENTIALITY ............................................................................................................... 34

Health Administration Act 1982 .................................................................................................................. 34 EXCEPTIONS TO THE GENERAL RULE OF CONFIDENTIALITY .............................................................................................. 34

RECOGNISE POTENTIAL OR ACTUAL BREACHES AND REPORT ACCORDING TO ORGANISATION PROCEDURES36

BREACHES OF CONFIDENTIALITY ............................................................................................................................... 36 BREACHING PROCEDURES ....................................................................................................................................... 36

TOPIC 2 – IDENTIFY AND MEET ETHICAL RESPONSIBILITIES ............................................................................ 38

IDENTIFY, ACCESS AND INTERPRET SOURCES OF INFORMATION ABOUT THE ETHICAL RESPONSIBILITIES THAT

APPLY TO THE WORK ROLE AND IDENTIFY THE SCOPE AND NATURE OF OWN ETHICAL RESPONSIBILITIES .... 38

WHAT DO WE MEAN BY WORKPLACE ETHICS? ............................................................................................................. 38

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MEET ETHICAL RESPONSIBILITIES ACCORDING TO WORKPLACE POLICIES AND PROTOCOLS, AND SCOPE OF

ROLE AND RECOGNISE POTENTIAL ETHICAL ISSUES AND DILEMMAS, AND DISCUSS WITH AN APPROPRIATE

PERSON ......................................................................................................................................................... 40

Position Descriptions ................................................................................................................................... 40 Reviewing Work Performance ..................................................................................................................... 40

PRINCIPLES OF ETHICAL DECISION-MAKING ................................................................................................................. 41

RECOGNISE OWN PERSONAL VALUES AND ATTITUDES AND TAKE INTO ACCOUNT TO ENSURE NON-

JUDGEMENTAL PRACTICE .............................................................................................................................. 42

USE EFFECTIVE PROBLEM SOLVING TECHNIQUES WHEN EXPOSED TO COMPETING VALUE SYSTEMS ............ 43

RECOGNISE UNETHICAL CONDUCT AND REPORT TO AN APPROPRIATE PERSON ........................................... 45

RECOGNISE POTENTIAL AND ACTUAL CONFLICTS OF INTEREST AND TAKE APPROPRIATE ACTION ................ 47

What is a conflict of interest? ..................................................................................................................... 47

TOPIC 3 – CONTRIBUTE TO WORKPLACE IMPROVEMENTS ............................................................................. 48

PRO-ACTIVELY SHARE FEEDBACK WITH COLLEAGUES AND SUPERVISORS...................................................... 48

WHAT IS FEEDBACK? ............................................................................................................................................. 48

IDENTIFY AND TAKE OPPORTUNITIES TO CONTRIBUTE TO THE REVIEW AND DEVELOPMENT OF POLICIES AND

PROTOCOLS AND IDENTIFY SITUATIONS WHERE WORK PRACTICES COULD BE IMPROVED TO MEET LEGAL

AND ETHICAL RESPONSIBILITIES .................................................................................................................... 50

REVIEWING WORK PERFORMANCE ........................................................................................................................... 50 REVIEWING POLICIES AND PROCEDURES ..................................................................................................................... 50 WHO CAN CONTRIBUTE? ......................................................................................................................................... 51 HOW CAN THEY CONTRIBUTE? ................................................................................................................................. 51

SUMMARY ..................................................................................................................................................... 52

REFERENCES ................................................................................................................................................... 53

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U N I T I N T R O D U C T I O N

This resource covers the unit CHCLEG001 - Work legally and ethically.

This unit describes the skills and knowledge required to identify and work within the legal and ethical frameworks that apply to an individual job role.

This unit applies to community services and health workers who play a proactive role in identifying and meeting their legal and ethical responsibilities.

The skills in this unit must be applied in accordance with Commonwealth and State/Territory legislation, Australian/New Zealand standards and industry codes of practice.

ABOUT THIS RESOURCE

This resource brings together information to develop your knowledge about this unit. The information is designed to reflect the requirements of the unit and uses headings to makes it easier to follow.

Read through this resource to develop your knowledge in preparation for your assessment. You will be required to complete the assessment tools that are included in your program. At the back of the resource are a list of references you may find useful to review.

As a student it is important to extend your learning and to search out text books, internet sites, talk to people at work and read newspaper articles and journals which can provide additional learning material.

Your trainer may include additional information and provide activities. Slide presentations and assessments in class to support your learning.

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ABOUT ASSESSMENT

Throughout your training we are committed to your learning by providing a training and assessment framework that ensures the knowledge gained through training is translated into practical on the job improvements.

You are going to be assessed for:

 Your skills and knowledge using written and observation activities that apply

to your workplace.

 Your ability to apply your learning.

 Your ability to recognise common principles and actively use these on the job.

You will receive an overall result of Competent or Not Yet Competent for the assessment of this unit. The assessment is a competency based assessment, which has no pass or fail. You are either competent or not yet competent. Not Yet Competent means that you still are in the process of understanding and acquiring the skills and knowledge required to be marked competent. The assessment process is made up of a number of assessment methods. You are required to achieve a satisfactory result in each of these to be deemed competent overall.

All of your assessment and training is provided as a positive learning tool. Your assessor will guide your learning and provide feedback on your responses to the assessment. For valid and reliable assessment of this unit, a range of assessment methods will be used to assess practical skills and knowledge.

Your assessment may be conducted through a combination of the following methods:

 Written Activity

 Case Study

 Observation

 Questions

 Third Party Report

The assessment tool for this unit should be completed within the specified time period following the delivery of the unit. If you feel you are not yet ready for assessment, discuss this with your trainer and assessor.

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To be successful in this unit you will need to relate your learning to your workplace. You may be required to demonstrate your skills and be observed by your assessor in your workplace environment. Some units provide for a simulated work environment and your trainer and assessor will outline the requirements in these instances.

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E L E M E N T S A N D P E R F O R M A NC E C R I T E R I A

1. Identify and respond to legal requirements

1.1 Identify, access and interpret sources of information about the legal requirements that apply to the work role

1.2 Identify the scope and nature of own legal rights and responsibilities

1.3 Adhere to legal requirements in work practice according to workplace policies and procedures and scope of role

1.4 Recognise potential or actual breaches and report according to organisation procedures

2. Identify and meet ethical responsibilities

2.1 Identify, access and interpret sources of information about the ethical responsibilities that apply to the work role

2.2 Identify the scope and nature of own ethical responsibilities

2.3 Meet ethical responsibilities according to workplace policies and protocols, and scope of role

2.4 Recognise potential ethical issues and dilemmas, and discuss with an appropriate person

2.5 Recognise own personal values and attitudes and take into account to ensure non-judgmental practice

2.6 Use effective problem solving techniques when exposed to competing value systems

2.7 Recognise unethical conduct and report to an appropriate person

2.8 Recognise potential and actual conflicts of interest and take appropriate action

3. Contribute to workplace improvements

3.1 Identify situations where work practices could be improved to meet legal and ethical responsibilities

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3.2 Pro-actively share feedback with colleagues and supervisors

3.3 Identify and take opportunities to contribute to the review and development of policies and protocols

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P E R F O R M A N C E E V I D E N C E A N D K N O W L E D G E E V I D E N C E

This describes the essential knowledge and skills and their level required for this unit.

PERFORMANCE EVIDENCE

The candidate must show evidence of the ability to complete tasks outlined in elements and performance criteria of this unit, manage tasks and manage contingencies in the context of the job role. There must be evidence that the candidate has:

 Completed workplace activities in accordance with legal and ethical

requirements in at least 3 different situations

 Developed appropriate responses to at least 3 different legal or ethical issues

relevant to the work role

 Identified and communicated at least 2 potential work practice

improvements designed to enhance workplace responsiveness to legal and

ethical requirements

KNOWLEDGE EVIDENCE

The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined in elements and performance criteria of this unit, manage the task and manage contingencies in the context of the work role. This includes knowledge of:

 Legal and ethical considerations (international, national, state/territory,

local) for people working in the community services and health context, how

they are applied in organisations, how these impact individual workers, and

the consequences of breaches:

o Children in the workplace

o Codes of conduct

o Codes of practice

o Complaints management

o Continuing professional education

o Discrimination

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o Dignity of risk

o Duty of care

o Human rights

 Universal declaration of human rights

 Relationship between human needs and human rights

 Frameworks, approaches and instruments used in the

workplace

o Informed consent

o Mandatory reporting

o Practice standards

o Practitioner/client boundaries

o Privacy, confidentiality and disclosure

o Policy frameworks

o Records management

o Rights and responsibilities of workers, employers and clients

o Industrial relations legislation relevant to employment conditions of

role

o Specific legislation in the area of work – objectives and key

components

o Work role boundaries – responsibilities and limitations

o Work health and safety

 Interrelationships, similarities and differences that may exist between legal

and ethical frameworks

 Legal issues in the context of the work role:

o Type of legal issues that arise

o Ways to respond

 Ethical practice in the context of the work role:

o Type of ethical issues that arise

o Ways to respond

 Workplace policies, procedures and protocols:

o How they are/should be developed

o Processes for review, including consultation and mechanisms for input

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A S S E S S M E N T C O N D I T I O N S

Skills must have been demonstrated in the workplace or in a simulated environment that reflects workplace conditions. The following conditions must be met for this unit:

 Use of suitable facilities, equipment and resources, including:

o Current legislation, regulations and codes of practice

o Organisation policies, procedures and protocols

 Modelling of industry operating conditions, including presence of problem

solving activities

Assessors must satisfy the Standards for Registered Training Organisations (RTOs) 2015/AQTF mandatory competency requirements for assessors.

P R E - R E Q U I S I T E S

This unit must be assessed after the following pre-requisite unit:

There are no pre-requisites for this unit.

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T O P I C 1 – I D E N T I F Y A N D R E S P O N D T O L E G A L R E Q U I R E M E N T S

IDENTIFY, ACCESS AND INTERPRET SOURCES OF INFORMATION ABOUT THE LEGAL REQUIREMENTS THAT APPLY TO THE WORK

ROLE

Just as you have to follow the rules and regulations required for road safety when driving a car, you are required to follow the rules and regulations that govern community services when you are working in the community services sector.

CONFIDENTIALITY

Confidentiality is the protection of personal information. Confidentiality means keeping a client’s information between you and the client, and not telling others including co- workers, friends, family, etc.

Examples of maintaining confidentiality include:

 Individual files are locked and secured

 Support workers do not tell other people what is in a client’s file unless they

have permission from the client

 Information about clients is not told to people who do not need to know

 Clients’ medical details are not discussed without their consent

 Adult clients have the right to keep any information about themselves

confidential, which includes that information being kept from family and

friends

The type of information that is considered confidential can include:

 Name, date of birth, age, sex and address

 Current contact details of family, guardian etc.

 Bank details

 Medical history or records

 Personal care issues

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 Service records and file progress notes

 Individual personal plans

 Assessments or reports

 Guardianship orders

 Incoming or outgoing personal correspondence

Confidentiality of client information must include:

 Verbal communications

 Written i.e. medical records, referral/request

 Video/audio tapes

 Radiographic films and images

 Computer files

Other information relating to ethnic or racial origin, political opinions, religious or philosophical beliefs, health or sexual lifestyle should also be considered confidential.

LEGISLATION GOVERNING CONFIDENTIALITY

All workers need to be aware that there are State and Federal laws that cover confidentiality. The following Acts relate to privacy and confidentiality of clients:

The Office of the Australian Information Commissioner (OAIC) deals with issues that are covered by the Privacy Act 1988 (Privacy Act), which regulates the handling of personal information by Australian, ACT and Norfolk Island government agencies, and certain private sector organisations.

For information on privacy regulation in the States and the Northern Territory, please refer to the appropriate links below. You may contact the OAIC Enquiries line if you have further questions about what aspects of privacy are dealt with by the OAIC.

Australian Capital Territory

The OAIC administers the Privacy Act, in a slightly amended version, on behalf of the ACT government. This legislation covers the handling of all personal information, other

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than health records held in the public sector in the ACT. The ACT Human Rights Commission handles health record privacy complaints.

New South Wales

The NSW Information and Privacy Commission undertakes the privacy functions conferred by the Privacy and Personal Information Protection Act 1998 (NSW) and Health Records and Information Privacy Act 2002 (NSW).

Northern Territory

The Office of the Information Commissioner for the Northern Territory is the independent statutory body responsible for overseeing the freedom of information and privacy provisions of the Information Act 2002 (NT).

Queensland

The Queensland Office of the Information Commissioner was initially established under the repealed Freedom of Information Act 1992 (Qld), and it continues under the Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act 2009 (Qld) (IP Act). The Information Commissioner is supported by two other statutory office holders appointed by the Governor-in-Council: the Right to Information Commissioner and Privacy Commissioner.

South Australia

South Australia has issued an administrative instruction requiring its government agencies to generally comply with a set of Information Privacy Principles and has established a privacy committee.

Tasmania

The Tasmanian Ombudsman may receive and investigate complaints in relation to the Personal Information and Protection Act 2004(Tas). This legislation applies to the public and local government sectors and the University of Tasmania.

Victoria

The Office of the Victorian Privacy Commissioner is an independent statutory office created by the Information Privacy Act 2000 (Vic). This legislation covers the handling of all personal information, other than health information, in the public sector in Victoria.

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Western Australia

The state public sector in Western Australia does not currently have a legislative privacy regime. Various confidentiality provisions cover government agencies and some of the privacy principles are provided for in the Freedom of Information Act 1992 (WA).

Commonwealth

Commonwealth legislation is available at: http://www.comlaw.gov.au/

THE PRIVACY ACT

The Privacy Act 1988 (Privacy Act) is an Australian law which regulates the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information. The Privacy Act includes:.

 11 Information Privacy Principles that apply to the handling of personal

information by most Australian, ACT and Norfolk Island public sector

agencies

 Ten National Privacy Principles that apply to the handling of personal

information by large businesses, all health service providers and some small

businesses and non-government organisations

 Credit reporting provisions that apply to the handling of credit reports and

other credit worthiness information about individuals by credit reporting

agencies, credit providers and some third parties

The Privacy Act also:

 Regulates the collection, storage, use, disclosure, security and disposal of

individuals' tax file numbers

 Permits the handling of health information for health and medical research

purposes in certain circumstances, where researchers are unable to seek

individuals' consent

 Allows organisations to have and to enforce their own privacy codes. It also

permits small business operators, who would otherwise not be subject to the

National Privacy Principles, to opt-in to being covered by the Privacy Act.

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More information on codes and opting-in is available on the privacy registers

page

 Has two sets of privacy regulations which generally relate to:

o The application of the National Privacy Principles to specific entities

o The authorised disclosure of personal information during

emergencies.1

CODE OF ETHICS/CONDUCT

All Health and community service workers must up hold the code of ethics/conduct, which comes under the Code of Conduct for the public sector (Allied Health). For example: The Uniting Care Health Code of Conduct is a statement of how you conduct your business, treat our colleagues, our patients and our community. The code clearly identifies the standard of conduct that is expected of Uniting Care Health leaders, employees, volunteers, accredited practitioners and service providers in all occupational streams, service delivery and administration settings.

The code also identifies our values and aligns those values to expected standards of workplace behaviours.

A code of ethics is a set of moral principles and practice standards which a profession uses to guide practice.

Codes of ethics are usually voluntary controls and not laws that serve as a means of regulation within a profession. For a team, ethics means that all members have certain obligations, and responsibilities, to their clients.

REGULATIONS

In addition to legislation, you are required to have an understanding of Regulations specifically for community services. A Regulation is a document devised by a government department that outlines specific requirements. Community services Regulations detail the legal requirements that need to be followed by a community service.

1 http://www.oaic.gov.au/privacy/privacy-act/the-privacy-act

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Regulations are unique to each state and territory. Community Services Regulations are therefore developed by each state and territory and set the minimum standards for the provision of Services.

In general, the minimum standard refers to:

 The minimum staffing levels and qualifications

 Ensuring the facilities are safe and well maintained (equipment and

premises) administrative requirements

 Health (including infection control)

 Safety of clients and staff (risk reduction)

 Programming requirements to ensure the programs cater to the needs and

interests of each individual person using the service

Occupational health and safety (OHS) — in each workplace, a set of guidelines or safe work practice procedures are established so that all staff and clients remain safe, and staff members are able to assess any risks that could occur. The objective of any workplace health and safety Act "is to prevent a person's death, injury or illness being caused at a workplace, by workplace activities."

It is important for you to familiarise yourself with the relevant community service Regulations in your state or territory.

WHAT ARE YOUR DUTIES / RESPONSIBILITIES AS A COMMUNITY SERVICE WORKER?

As a community service worker, you have an endless amount of responsibilities. Below is an outline of the most common responsibilities you will have while working in the community service sector.

 Work with staff members to ensure the smooth operation of the day to day

running of the facility in accordance with policies and procedures (which you

must be familiar with)

 Contribute to and assist in the development and/or evaluation of the program

(it doesn't matter what qualification you have, it's important for all staff to

share their thoughts and ideas on the program)

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 Assist staff in the daily routine of caring for people with disabilities

 Supervise and engage in the activities of groups

 Positively interact with all clients, promoting their confidence, self-esteem

and independence

 Assist in planning for the on-going development of each individual (this also

includes maintaining up to date observations and care planning

 Assist in the recording of client development

 Participate in maintaining client safety

 Ensure clients are provided with a clean and healthy environment (this may

require you to do every day cleaning as part of your duties)

 Communicate with clients, family members, advocates, guardians,

caseworkers, health care workers and other professionals from other

organisations as required.

 Perform incidental administrative duties (filling out accident/incident

reports when necessary)

 Attend staff meetings, training and information sessions

 As required carry out other duties, that are within the knowledge, skills and

capabilities of you as the worker.

Now that's a lot of responsibilities that we are handling on a day to day basis but remember this is only a basic outline. As I earlier mentioned your duties and responsibilities are also based on your qualification. If you are working with a certificate 4 in community services, your responsibilities regarding paperwork (such as observations, programming and planning) will be far less than those with the qualification as a diploma or higher. If you are working on certificate 4 level, you will be asked for your input on programming as well as assist in the observations and maintaining records for clients. However you will not be held responsible for it, that's what the diploma qualified worker is for.

Each and every one of your duties is guided by the legislation and regulations that cover your sector. Whilst you may work relatively unaware of any legislation your organisation will have designed policies and procedures that ensure you are working to all legal requirements. It is their role to ensure they provide you with the policies and procedures and your role to ensure you follow them.

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DIGNITY OF RISK

Associated with duty of care is the concept of dignity of risk. Dignity of risk refers to a person’s right to experience all that life has to offer, such as learning a new skill or taking part in an activity that may entail some element of risk, but has benefits that might include gaining greater self-esteem and independence.

Most people with disabilities wish to lead lives which are as close as possible to that of people who do not have a disability and this inevitably involves taking some risks. Courts and the law of negligence do not, therefore, expect community sector workers to shield their clients from all possible risks. They do, however, expect workers to take reasonable care (to be sensible and cautious) in their work.

This concept arises out of the key principles of the Disability Services Act. For example ‘People with disabilities have the same rights as other members of Australian society to realise their individual capacities for physical, social, emotional and intellectual development’ (Parsons, 1997). It can, however, pose concerns and dilemmas for staff. Value clashes between clients and workers also can play a role here as well.

INFORMED CONSENT

All medical procedures require informed consent. Given that the consequences of being tested may be substantial, it is important to realise that, while running tests may be standard for the health care practitioner, receiving the results may be anything but routine for the patient. The provision of information should allow the health care practitioner to discuss the risks and benefits to the client in their particular situation, thereby facilitating their decision-making process.

Clients are not able to consent to the use of their information if they are unclear where the information will go and why. If possible, clients should be advised of the use of their information when it is collected, which can occur through usual communication during a regular consultation.

MANDATORY REPORTING

What is mandatory reporting? Mandatory reporting is a term used to describe the legislative requirement imposed on selected classes of people to report suspected cases of child abuse and neglect to government authorities. Parliaments in all Australian states and territories have enacted mandatory reporting laws of some description. However, the laws are not the same across all jurisdictions. The main

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differences concern who has to report, and what types of abuse and neglect have to be reported. There are also other differences, such as the state of mind that activates the reporting duty (i.e., having a concern, suspicion or belief on reasonable grounds - see Table 1) and the destination of the report. This sheet focuses on the major differences features of state and territory laws regarding who must report and what must be reported.

Table 1: Key features of legislative reporting duties: "state of mind" that activates reporting duty and extent of harm.

Jurisdiction State of mind Extent of harm

ACT Belief on reasonable grounds

Not specified: "sexual abuse ... or non-accidental physical injury"

NSW

Suspects on reasonable grounds that a child is at risk of significant harm

A child or young person "is at risk of significant harm if current concerns exist for the safety, welfare or wellbeing of the child or young person because of the presence, to a significant extent, of ... basic physical or psychological needs are not being met ... physical or sexual abuse or ill-treatment ... serious psychological harm"

NT Belief on reasonable grounds

Any significant detrimental effect caused by any act, omission or circumstance on the physical, psychological or emotional wellbeing or development of the child

QLD Becomes aware, or reasonably suspects

Significant detrimental effect on the child's physical, psychological or emotional wellbeing

SA Suspects on reasonable grounds

Any sexual abuse; physical or psychological abuse or neglect to extent that the child "has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or the child's physical or psychological development is in jeopardy"

TAS

Believes, or suspects, on reasonable grounds, or knows

Any sexual abuse; physical or emotional injury or other abuse, or neglect, to extent that the child has suffered, or is likely to suffer, physical or psychological harm detrimental to the child's wellbeing; or the child's physical or psychological development is in jeopardy

VIC Belief on reasonable grounds

Child has suffered, or is likely to suffer, significant harm as a result of physical injury or sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type

WA Belief on reasonable grounds

Not specified: any sexual abuse

https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect#table-1
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Australia Suspects on reasonable grounds

Not specified: any assault or sexual assault; serious psychological harm; serious neglect

Adapted from relevant state and territory legislation.

Who is mandated to make a notification? The legislation generally contains lists of particular occupations that are mandated to report. The groups of people mandated to notify cases of suspected child abuse and neglect range from persons in a limited number of occupations (e.g., Qld), to a more extensive list (Vic.), to a very extensive list (ACT, NSW, SA, Tas.), through to every adult (NT). The occupations most commonly named as mandated reporters are those who deal frequently with children in the course of their work: teachers, doctors, nurses, and police. What types of abuse are mandated reporters required to report? In addition to differences describing who is a mandated reporter across jurisdictions, there are differences in the types of abuse and neglect which must be reported. In some jurisdictions it is mandatory to report suspicions of each of the four classical types of abuse and neglect abuse (i.e., physical abuse, sexual abuse, emotional abuse, and neglect). In other jurisdictions it is mandatory to report only some of the abuse types (e.g., Vic., WA). Some jurisdictions also require reports of exposure of children to domestic violence. It is important to note that the legislation generally specifies that except for sexual abuse (where all suspicions must be reported), it is only cases of SIGNIFICANT abuse and neglect that must be reported. Reflecting the original intention of the laws, the duty does not apply to any and all "abuse" or "neglect", but only to cases which are of sufficiently significant harm to the child's health or wellbeing to warrant intervention or service provision. However, reflecting the qualitative differences presented by sexual abuse as opposed to other forms of abuse and neglect, five jurisdictions apply the reporting duty to all suspected cases of sexual abuse without requiring the reporter to exercise any discretion about the extent of harm which may have been caused or which may be likely (ACT, NT, SA, Tas., WA). In the other three jurisdictions, the practical application of the duty to report sexual abuse would still result in reports of all suspected sexual abuse being required, as sexual abuse should always create a suspicion of significant harm. Suspicions of more minor child abuse and neglect may be referred to child and family welfare agencies, especially where jurisdictions have made more extensive provision for this (e.g., Vic., NSW, Tas.). It is also important to note that the duty to report also applies to suspicions that significant abuse or neglect is likely to occur in future, not only suspected cases of significant abuse or neglect that have already happened. Table 2 provides an overview of the key features of the legislation in each state and territory: who must report, and what must be reported.

Table 2: Mandatory reporting requirements across Australia

Who is mandated to

report? What must be

reported? Abuse and neglect types which

must be reported Legal

provisions

ACT

A person who is: a doctor; a dentist; a nurse; an enrolled nurse; a midwife; a teacher at a school; a

A belief, on reasonable grounds, that a child or young person has

 Physical abuse  Sexual abuse

Section 356 of the CHILDREN AND YOUNG PEOPLE ACT 2008 (ACT)

https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect#table-2
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person providing education to a child or young person who is registered, or provisionally registered, for home education under the EDUCATION ACT 2004; a police officer; a person employed to counsel children or young people at a school; a person caring for a child at a child care centre; a person coordinating or monitoring home- based care for a family day care scheme proprietor; a public servant who, in the course of employment as a public servant, works with, or provides services personally to, children and young people or families; the public advocate; an official visitor; a person who, in the course of the person's employment, has contact with or provides services to children, young people and their families and is prescribed by regulation

experienced or is experiencing sexual abuse or non-accidental physical injury; and

the belief arises from information obtained by the person during the course of, or because of, the person's work (whether paid or unpaid)

NSW

A person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services or law enforcement, wholly or partly, to children; and

Reasonable grounds to suspect that a child is at risk of significant harm; and

those grounds arise during the course of or from the person's work

 Physical abuse  Sexual abuse  Emotional/psychological

abuse  Neglect Exposure to

domestic violence

Sections 23 and 27 of the CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 (NSW)

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A person who holds a management position in an organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services or law enforcement, wholly or partly, to children

NT

Any person

A belief on reasonable grounds that a child has suffered or is likely to suffer harm or exploitation

 Physical abuse  Sexual abuse  Emotional/psychological

abuse  Neglect  Exposure to physical

violence (e.g., a child witnessing violence between parents at home)

Sections 15, 16 and 26 of the CARE AND PROTECTION OF CHILDREN ACT 2007 (NT)

Registered health professionals

Reasonable grounds to believe a child aged 14 or 15 years has been or is likely to be a victim of a sexual offence and the age difference between the child and offender is greater than 2 years

 Sexual abuse

Section 26(2) of the CARE AND PROTECTION OF CHILDREN ACT 2007 (NT)

QLD

An authorised officer, a public service employee employed in the department, a person employed in a departmental care service or licensed care service

Awareness or reasonable suspicion of harm caused to a child placed in the care of an entity conducting a departmental

 Physical abuse  Sexual abuse

Sections 9, 148 of the CHILD PROTECTION ACT 1999 (Qld)

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care service or a licensee

Relevant persons: doctors; registered nurses; teachers; police officers; child advocates

Has a reasonable suspicion that a child has suffered, is suffering or is at an unacceptable risk of suffering significant harm

 Physical abuse  Sexual abuse

Part 1AA, Section 13a and 13b of the CHILD PROTECTION ACT 1999 (Qld)*

School staff

Awareness or reasonable suspicion that a child has been or is likely to be sexually abused; and the suspicion is formed in the course of the person's employment

 Sexual abuse

Sections 364, 365, 365A, 366, 366A of the EDUCATION (GENERAL PROVISIONS) ACT 2006 (Qld)

SA

Doctors; pharmacists; registered or enrolled nurses; dentists; psychologists; police officers; community corrections officers; social workers; teachers in educational institutions including kindergartens; family day care providers; employees/volunteers in a government department, agency or instrumentality, or a local government or non-government agency that provides health, welfare, education, sporting or recreational, child care or residential services

Reasonable grounds to suspect that a child has been or is being abused or neglected; and

the suspicion is formed in the course of the person's work (whether paid or voluntary) or carrying out official duties

 Physical abuse  Sexual abuse  Emotional/psychological

abuse  Neglect

Sections 6, 10 and 11 of the CHILDREN'S PROTECTION ACT 1993 (SA)

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wholly or partly for children; ministers of religion (with the exception of disclosures made in the confessional); employees or volunteers in a religious or spiritual organisations

Tas.

Registered medical practitioners; nurses; midwives; dentists, dental therapists or dental hygienists; registered psychologists; police officers; probation officers; principals and teachers in any educational institution including kindergartens; persons who provide child care or a child care service for fee or reward; persons concerned in the management of a child care service licensed under the CHILD CARE ACT 2001; any other person who is employed or engaged as an employee for, of, or in, or who is a volunteer in, a government agency that provides health, welfare, education, child care or residential services wholly or partly for children, and an organisation that receives any funding from the Crown for the provision of such services; and any other person of a class

A belief, suspicion, reasonable grounds or knowledge that:

a child has been or is being abused or neglected or is an affected child within the meaning of the FAMILY VIOLENCE ACT 2004

 Physical abuse  Sexual abuse  Emotional/psychological

abuse  Neglect  Exposure to family

violence

Sections 3, 4 and 14 of the CHILDREN, YOUNG PERSONS AND THEIR FAMILIES ACT 1997 (Tas.)

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determined by the Minister by notice in the Gazette to be prescribed persons

Vic.

Registered medical practitioners, midwives, registered nurses; a person registered as a teacher under the EDUCATION, TRAINING AND REFORM ACT 2006 or teachers granted permission to teach under that Act; principals of government or non- government schools; and members of the police force

Belief on reasonable grounds that a child is in need of protection on a ground referred to in Section 162(c) or 162(d), formed in the course of practising his or her office, position or employment

 Physical abuse  Sexual abuse

Sections 182(1)(a)-(e), 184 and 162(c)-(d) of the CHILDREN, YOUTH AND FAMILIES ACT 2005 (Vic.)

WA

Doctors; nurses and midwives; teachers; and police officers

Belief on reasonable grounds that child sexual abuse has occurred or is occurring

 Sexual abuse

Sections 124A and 124B of the CHILDREN AND COMMUNITY SERVICES ACT 2004

Court personnel; family counsellors; family dispute resolution practitioners, arbitrators or legal practitioners representing the child's interests

Reasonable grounds for suspecting that a child has been: abused, or is at risk of being abused; ill treated, or is at risk of being ill treated; or exposed or subjected to behaviour that psychologically harms the child.

 Physical abuse  Sexual abuse

Sections 5, 160 of the FAMILY COURT ACT 1997 (WA);

* This section has not yet been proclaimed and is likely to occur early in 2015 due to other legislative changes required as a result.

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Commonwealth law

In addition to state and territory laws, the FAMILY LAW ACT 1975 (Cth) creates a mandatory reporting duty for personnel from the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia. This includes registrars, family counsellors, family dispute resolution practitioners or arbitrators, and lawyers independently representing children's interests. Section 67ZA states that when in the course of performing duties or functions, or exercising powers, these court personnel have reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

What protections are given to reporters?

In all jurisdictions, the legislation protects the reporter's identity from disclosure. In addition, the legislation provides that as long as the report is made in good faith, the reporter cannot be liable in any civil, criminal or administrative proceeding.

About whom can notifications be made?

Legislation in all jurisdictions except New South Wales requires mandatory reporting in relation to all young people up to the age of 18 (whether they use the terms "children" or "children and young people"). In New South Wales, the legislative grounds for intervention cover young people up to 18 years of age, but it is not mandatory to report suspicions of risk of harm in relation to young people aged 16 and 17.

What type of concerns must be reported, and what may be reported?

Mandatory reporting laws specify those conditions under which an individual is legally required to make a report to the relevant government agency in their jurisdiction. This does not preclude an individual from making a report to the statutory child protection service if they have concerns for the safety and wellbeing of a child that do not fall within mandatory reporting requirements. All statutes enable people to report concerns for a child's welfare even if they do not compel such reports. Any voluntary non-mandated reports will receive the legal protections referred to above regarding confidentiality and immunity from legal liability.

Although particular professional groups (such as psychologists) or government agencies (such as education departments in some states) may have protocols outlining the moral, ethical or professional responsibility or indeed the organisational requirement to report, they may not be officially mandated under their jurisdiction's child protection legislation. For example, in Queensland, teachers are required to report all forms of suspected significant abuse and neglect under school policy, but are only mandated to report sexual abuse under the legislation.

In what cases can child protection and welfare agencies respond?

A common assumption is that mandatory reporting requirements, the legislative grounds for intervention, and research classifications of abusive and neglectful behaviour are the same. In fact, mandatory reporting laws define the types of situations that must be reported to statutory child protection services. Legislative grounds for government intervention define the circumstances and, importantly, the threshold at which the statutory child protection service is legally able to intervene to protect a child. Researchers typically focus on defining behaviours and circumstances that can be categorised as abuse and neglect. These differences arise because

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each description serves a different purpose; the lack of commonality does not mean that the system is failing to work as policy-makers had intended.2

For further information on mandatory reporting please go to: https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect

PRACTITIONER/CLIENT BOUNDARIES

Setting and maintaining professional practitioner/client boundaries is critical to an effective relationship. Maintenance of these boundaries could be achieved by regular examination a re-evaluation of the client/practitioners relationship. During this re- evaluation, process application of the organisations policy for communicating with clients should be reviewed. Methods of communicating with a client may for example include:

 Office email

 Office phone calls

 Receptionists

 Other written formats, such as letters

Boundaries protect clients from exploitation, practitioners from liability and protect the professional relationship. Some examples of boundaries may include:

 Intimacy - inappropriate physical contact, not including, for example, holding

a client’s hand to express compassion

 Personal benefit (monetary gain) - borrowing/lending money, being named

in a will

 Emotional/dependency needs - may include, for example, the client

continuously coming to you for emotional reassurance or depending on you

only for their emotional needs

 Altruism - for example giving a client a ride home, purchasing items for them,

this can create dependency or give the wrong impression to the client.

You should ensure that at all times you not only put boundaries in place but you adhere to them strictly. in this way you will be meeting your duty of care to your clients and colleagues and will enable you to set a good example for others in your organisation.

2 https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect

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IDENTIFY THE SCOPE AND NATURE OF OWN LEGAL RIGHTS AND RESPONSIBILITIES

WHAT IS THE DUTY OF CARE?

The fundamental obligation that anyone working in the community service sector whatever the type of service and whatever their role, is to maintain the health and safety of the client.

The legal term duty of care refers to this obligation and has major implications for the organisation and operation of services. It is interesting to look at the duty of care not only as it applies to people with disabilities but also in a broader context.

For example, teachers have responsibility for their students, parents for their children and employers for their employees. 3

Duty of care requires that an acceptable standard of care that is ‘reasonably practicable’ be provided to ensure the health and safety of those at the workplace and also to those affected by the work that you do.

Therefore, any services and responses to clients must comply with this duty of care and fall within the accepted standards outlined in your Code of Conduct.

Allied Health, Community and Disability services workers often face many ethical dilemmas in their day-to-day work with clients. Examples include:

 Deciding whether to accept a gift from a grateful client

 Deciding how to respond to a request for out-of-work hours contact with a

client

 Deciding whether to notify about a crime which a client has told you about

 Dealing with a young client’s request for a cigarette

 Deciding what to do about a client’s dishonesty in not declaring their

employment income to Centrelink

3 https://learning.opencolleges.edu.au/Jack/Repository/file/921fc869-4b45-19e1-a1d...

https://learning.opencolleges.edu.au/Jack/Repository/file/921fc869-4b45-19e1-a1d6-c26ca95a899c/6/21867A_readings1.pdf
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 Deciding what to do about a co-worker’s inappropriate use of agency

resources

In order to respond effectively to dilemmas like these, you need to be given clear guidelines for your work; these guidelines are usually contained within the policy and procedures of your organisation. All workers should be introduced to these at their induction.

Professional supervision is another avenue where critical decision-making problems can be discussed and resolved. Most effective organisations have a clear process for supervising their staff; regular supervision sessions are scheduled into a worker’s timetable.

If you are in an agency where this does not happen, it is your right as an employee to seek guidance from your supervisors on any matters where there are no clear-cut guidelines.

It is important for workers to raise these issues within the staff environment as many other workers may be facing the same problems; consultation might signal the need for a new or revised policy to deal with the issue.

If a matter is taken to court, the factors considered in determining negligence are:

 Does one person owe a legal duty of care to another?

 Has there been a breach of that duty of care?

 Has damage or injury resulted from the breach of duty of care?

The way the court interprets the decision will depend on a range of factors and circumstances, including the following:

 What would be expected of a ‘reasonable’ person in the same situation?

 The worker’s roles and responsibilities within the organisation

 The training and experience of the worker

 The practicalities of the situation

 Current community values about acceptable practice

 Standards generally seen as applicable to the situation

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 Other relevant laws such as the Workplace Health and Safety Act

 Meeting legislative and other procedural requirements

When working with clients, you and your agency need to be very aware of any legal and other responsibilities that must be followed. These responsibilities could include:

 Statutory requirements of clients, such as those relating to

o Protection requirements (e.g. who they can and can’t see or live with,

Restraining Orders)

o Court orders and any special conditions

o Reporting (e.g. Mandatory Reporting, who to report to, how to report)

o Temporary Protection Visas (for people seeking asylum in Australia)

 Funding Service Agreements. (The responsibility of the agency regarding use

of that funding, e.g. the agency’s role in supporting clients at risk)

 Meeting the health and safety requirements of workers and users of agency

programs (Workplace Health and Safety Act requirements)

 Agency and/or departmental regulations and guidelines (policies and

procedures)

 Providing inclusive programs that do not discriminate against those from

other cultural backgrounds or who have special requirements because of a

disability, etc. 4

4 http://legacy.communitydoor.org.au/resources/etraining/units/chccs402a/section2/section2topic08.ht ml

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ADHERE TO LEGAL REQUIREMENTS IN WORK PRACTICE ACCORDING TO WORKPLACE POLICIES AND PROCEDURES AND

SCOPE OF ROLE

CONFIDENTIALITY

Confidentiality is the protection of personal information. Exercising confidentiality involves keeping client information between the client and the relevant persons providing care and services to the client. It is the responsibility of all people working in community services to ensure that confidentiality is maintained at all times.

The following are examples of maintaining confidentiality:

 Not sharing client information with others not working with the client

 Ensuring that client details are stored when they cannot be accessed by

unauthorised persons e.g. Making sure that files are locked and secure

 Making sure that any information disclosed is done so with the express

permission of the client

 Not sharing medical details without consent

 Not sharing financial details without consent

Examples of confidential information may be:

 Personal details such as name and address

 Family or next of kin details

 Bank or finance details

 Medical records or results

 Care plans

 Progress notes

 Individualised plans

 Incident reports

 Legal information

 Letters or other correspondence

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Confidentiality refers to the obligation of data custodians (agencies that collect information) to keep the confidential information they are entrusted with secret. This obligation is recognised in the Privacy Act 1988. The obligation to protect confidential information is also reflected in legislation governing the collection, use and dissemination of information for specific government activities. Examples include the Social Security (Administration) Act 1999, the Taxation Administration Act 1953, and the Census and Statistics Act 1905 (see examples below). Penalties apply if the secrecy provisions set out in these Acts are breached. As well as the requirements set out in legislation, obligations to protect a person’s or organisation’s identity and privacy are also outlined in government policies and principles. These provide advice on the protocols and procedures required to manage information safely. ‘High Level Principles for Data Integration Involving Commonwealth Data for Statistical and Research Purposes’ is one example of a set of principle-based obligations for Commonwealth government agencies.5

IMPORTANCE OF CONFIDENTIALITY

Maintaining confidentiality is important for numerous reasons. One of the critical aspects of confidentiality is that it allows for a bond of trust to be established between the client, the worker and the organisation as a whole. Once this trust is established, the client is more likely to freely share important information which will benefit the provision of their care.

When gathering information from the client, it is ideally done directly with the client. If there is the necessity to gather information from other sources, for example, family members or other agencies, then this should be done with the consent of the client. The client should never feel that information is being collected from their back.

Privacy is essential in order to maintain confidentiality. When discussing personal matters with the client, it should be done in an environment which is quiet and discreet.

Discussions about client matters should only take place in the workplace and should never be audible to the general public. The client’s details should never be discussed with anyone without their consent.

5 http://www.nss.gov.au/nss/home.nsf/pages/Confidentiality+- +the+obligation+to+protect+identity+and+privacy

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It is essential that all staff respect the confidentiality of the client at all times. Respect for client confidentiality and staff personal information should be a high priority for all community services to comply with legislation that governs disclosure of information. All organisations associated with the care and services delivered to the client need to have policies and procedures in place that provide guidelines for workers. Appropriate worker behaviour can also be incorporated into a code of conduct.

LEGISLATION GOVERNING CONFIDENTIALITY

All community service workers need to be aware that there are State and Federal laws that cover confidentiality. The following Acts relate to privacy and confidentiality of clients.

HEALTH ADMINISTRATION ACT 1982

The Health Administration Act relates to any information that is provided or recorded within the health system. It stipulates that information cannot be disclosed, without the consent of the person to whom the information relates or for the purpose of legal proceedings, such as a court order or subpoena that allows access to health information on a client.

EXCEPTIONS TO THE GENERAL RULE OF CONFIDENTIALITY

There are few exceptions to the general rule of confidentiality, and they all have a legal basis. These include:

 If the client tells you they have committed a serious crime

 If the client is a child and is being abused or is at risk of abuse

 If you are concerned that the client might harm themselves or someone else

 If a child is under the age of 16 years, and especially under the age of 14,

parents legally have the right to know what happens in counselling

 Making records available to the police if they have a warrant to inspect

documents

 Making information available in the case of suspected or confirmed physical

or sexual abuse

 Responding to a summons or subpoena

 Responding to a request for freedom of information legislation

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