This article discusses considerations for workplaces when responding to complaints of allegations of abuse and misconduct relating to the safety of children and vulnerable persons. Organisations must be able to identify when an investigation is required and how the investigation should be conducted.
Organisations working with vulnerable people are legally required to have an effective system for the management and resolution of complaints, including complaints of abuse and misconduct by employees. The NDIS Practice Standards, the Aged Care Quality Standards and the Victorian Child Safe Standards all require organisations working with vulnerable people, to have a robust complaints management system where organisations receive and appropriately respond to allegations of abuse and harm.
Why are investigations important?
Safeguarding investigations should form part of your organisation’s broader complaints handling framework and should be designed to focus on the vulnerable persons they are intended to protect. A poorly designed and executed investigation places your organisation’s most vulnerable people at risk, and your organisation potentially liable for breaching its duty of care, not to mention reputational damage.
The Royal Commission into Institutional Responses to Child Sexual Abuse identified that many organisations had poor investigation standards and failed to properly investigate complaints, which meant that many children were not adequately protected. The Royal Commission into Aged Care Quality and Safety also identified that complaints made to the Department of Health were often taken on face value, without investigation, which contributed to a lack of transparent and reliable information about older people’s experiences of care.
A clear investigation process contributes to organisational transparency and the identification of systemic failures which may result in improvements in the organisation to protect vulnerable people from harm.
Regulatory obligations to investigate
There are different obligations to investigate complaints in different sectors. Organisations may be required to investigate allegations of abuse and misconduct in relation to children under the Reportable Conduct Scheme, incidents in relation to aged care residents under the Serious Incident Response Scheme, and matters relating to the care of persons with a disability under the Incident Management and Reportable Incidents Scheme. Regardless of where the regulatory obligation arises, the basis of an effective investigation is the same.
Should the investigation be conducted internally or externally?
Once it has been determined that an investigation is necessary, it is important to consider who should be appointed to investigate. The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that investigations should be carried out by an impartial, objective and appropriately trained investigator.
In determining whether an organisation should appoint an internal or external investigator, an organisation should consider:
- the gravity and seriousness of the allegations;
- the potential for any conflict arising from an internal investigation;
- the complexity of the investigation and likelihood of facts being contested;
- the skill and experience of an investigator to investigate and forensically examine the evidence in order to make findings; and
- whether the organisation intends to rely on the investigation report being subject to legal professional privilege.
At a minimum, the investigator should be fully independent and not have a conflict of interest in respect of the matter being investigated or the potential participants in the investigation. This is particularly relevant for investigations undertaken internally.
The investigator should also be equipped to work with vulnerable participants using a trauma-informed approach, including identifying and overcoming any barriers to ensure that victim survivors, children and vulnerable people are empowered to fully participate in the investigation.
What makes a good investigation?
Once an investigator has been appointed, there are a number of factors which must be considered in order to conduct an efficient investigation which withstands regulatory scrutiny and potential future litigation. Some of our tips include:
- Take the time to plan the investigation to ensure that it efficiently and effectively responds to the complaint and is proportionate to the seriousness of the complaint. At this stage, consider what resources and documents the investigator will need, the process for identifying and contacting witnesses, and identify any regulatory or practical timeframes that the investigator will need to be aware of.
- A good investigation should prioritise procedural fairness to all parties, including the complainant, victim/survivor, witnesses and respondent. Procedural fairness or ‘natural justice’ requires a fair and transparent process which permits all parties to be heard and treated equally. It also minimises the opportunity for decisions arising from the results of the investigation to be challenged.
- Similarly, documenting decision making processes and maintaining appropriate record management assists with transparency and positions the investigator to respond to any future scrutiny of the findings.
- Investigations should also remain focused on determining all relevant facts related to the scope of the investigation, whether that is to identify a breach of a regulatory requirement, code of conduct, policy or procedure, and whether the person poses a risk to safety. It should not be treated as a ‘fishing expedition’.
- Participants in the investigation should be appropriately informed of the nature of the investigation before consenting to participate and should be offered relevant supports before, during and after the investigation.
To help with managing these often competing considerations, many organisations engage experienced external investigators. This is particularly relevant when conducting safeguarding investigations, as investigators need appropriate skills to interview vulnerable people. A skilled investigator will understand the impact that age, a medical and psychological diagnosis, or trauma may have on a person’s ability to participate in an investigation, and ensuring the person is empowered to participate in the investigation.
Experienced investigators will also understand the regulatory context to safeguarding investigations and ensure that the investigation complies with relevant legislation including obligations under workplace laws. There is also a significant benefit in involving lawyers in an investigation process. In the Fair Work Commission case of Tainsh and Willner v Co-Operative Bulk Handling Ltd (2021) 73 AILR ¶103-362;  FWC 3381, an organisation was able to rely on legal professional privilege to limit the respondent’s access to an investigation report on the basis that it was prepared for the dominant purpose of obtaining legal advice. By engaging a lawyer and having a discussion about legal professional privilege from the outset, organisations can be properly informed about the conduct of an investigation and use of documentation arising out of the investigation.
Organisations should also ensure that investigators who do not have a current Legal Practicing Certificate, are licenced under the Private Security Act 2004 (Vic) to ensure the investigation can be relied upon in any future proceedings.
How we can help
Moores works with many clients to oversee and coordinate safeguarding and workplace investigations to ensure that the investigation is conducted efficiently and withstands regulatory scrutiny and future disciplinary action. Our Special Counsel, Patrice Fitzgerald, is available to conduct independent safeguarding investigations for those organisations seeking to appoint an external investigator.
If your organisation receives a complaint which requires investigation, please get in touch with our Safeguarding and Workplace Relations teams so we can help you to design an investigation that meets your regulatory and operational requirements.
Please contact us for more detailed and tailored help.
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