Legal and Ethical Case Study - Assessment Task 3

Case Study 2: Lydia


Lydia is a teenager with a psychiatric disability living in an institution. One day she alleges to a charge nurse that she has been sexually abused by Brendon, a nurse working on her unit. The charge nurse does not believe Lydia's allegations because of her long reputation of telling lies about sexual matters. Several years later, Brendon is arrested and convicted of a separate sexual assault, in which a member of the community was the victim. The senior management of the institution then decide to interview Lydia again regarding her initial allegations against Brendon. During this discussion Lydia alleges that Brendon has repeatedly abused her but, because her first allegations were ignored, she simply assumed that she was unable to do anything about these incidents.





13) Which agencies of organisation would be useful contacts.

CASA - centre for sexual assault 1800 806 292
Department of Human Services - Child Protection 9214 2111 or after hours emergency 131 278
Child FIRST (Frankston) 1300 721 383
Child Safety Commissioner 8601 5884

12) What organisational policies and procedures are relevant?

The Charge Nurse would have been aware of her mandatory reporting status and she should have made a report to Child Protection as soon as Lydia disclosed the abuse.
Disclosures of sexual abuse should always be taken seriously and the Charge Nurse should have responded to Lydia's complaint by very quickly by making a report to Child Protection. The institution should have internal Policy and Procedures in place to guide staff members through the process of forming a reasonable belief based on Lydia's complaint or behavioural changes this process includes making a decision to report the abuse.
Lydia should have been made aware of her right to make a complaint and assisted to do so through the organisations complaints and grievance policy.
Lydia could have complained to the Disability Services Commissioner when her complaint was ignored by the organisation, but she would have needed someone to inform her of her

right to make a complaint to someone like the Disability Services Commissioner or Victoria Police.

11) What legislation is relevant to this situation?

Charter of Human Rights and Responsibilities Act 2006
. The four basic principles of human rights are represented in this act, Freedom, Respect, Equality and Dignity. Lydia was not treated with dignity, respect or equality when she made a complaint and her freedom to act was removed when the people who had power in her life refused to believe her complaint.
Children Youth and Families Act 2005
. This Act legislates to promote safety, well being and development of Children, Youth and Families. This applies to Lydia's case because she was a child when she was assaulted.
. This Act also includes the legislation for mandatory reporting of physical injury or sexual abuse of Children and Youth, which applies to Lydia disclosure of sexual abuse. A report should have been made.
. Best Interests principles built into the Children's Youth and Families Act state that when resolving differences or making decisions the best interests of the child must always be paramount.
Child Wellbeing and Safety Act 2010 
. Legislates about how a Government or Government funded service or community service for children is run.
. Legislates for the employment of a Child Safety Commissioner.
. Lydia should have a say about how the Psychiatric service is run.
Working with Children Act 2005
. Lydia should have been protected from sexual offences, because the people working with her should have had their suitability checked by a government body.
. People with sexual offences will not be allowed to work with children. Brendon will not again be allowed into the same position of power that he held when he worked with Lydia.
Mental Health Act 1986
. States that patients must be given a printed statement stating their entitlement to legal representation and a second Psychiatric opinion. Lydia should have been given this statement and been made aware of her rights.
. This act states that information about this act and the Guardianship and Administration Act 1986 and a copy of the statement, the business address and the contact telephone number of the Board, the Public Advocate, the Chief Psychiatrist, the Community Visitors, Victoria Legal Aid, the Ombudsman, the Health Services Commissioner.
Health Services Act 1988
.The Psychiatric Service where Lydia resides has to comply with the residential services provision as applied in the Disability Act 2000000. her residential
. With regard to Lydia's privacy, dignity and security, the proprietor of the Psychiatric service must take reasonable steps to ensure that Lydia is treated with dignity and respect and with regard to her entitlement to privacy.
Wrongs and Other Acts (Law of Negligence) Act
. Standard of care to be expected of persons holding out as possessing a particular skill. The people working with Lydia should have behaved differently, they should have done "what could reasonably be expected of a person possessing that skill."
Commonwealth Disability Discrimination Act 1992
.Lydia was subject to direct discrimination. Because of her Mental health issues Lydia has told many lies in the past. This was used against Lydia when she disclosed the sexual abuse to the Charge Nurse, this is discrimination.

10) What strategies might you implement if you believe the person is being abused?

We should always assume that females who live in institutions have been or are being abused. A very large percentage of women living in institutions who were asked about non consensual sexual activity during their time in the institution stated they had experienced such activity.
Strategies that should be widely used when caring for any female are; talking about safe touch and non safe touch, using female to female staff and clients where possible, foster a workplace that asks for consent before touching.
In particular if I form a reasonable belief that a child that I have responsibility for has been assaulted or is being assaulted, I should record the things that I have observed that indicate abuse or neglect and ask other staff if they have noticed changes in behaviour, I could look at staff notes and other records. I should make a call to Child FIRST, who will advise me about what I should do and what I should not do. The child's wellbeing and safety is the foremost concern, so if I believe that the child is at significant risk of harm I should make a report to Child Protection. I would not start to behave differently around the child and I would not confront the person I believe is harming the child.

9) What indicators might alert you that the person is being abused or neglected?

When someone is being abused or neglected I would expect to observe changes in their behaviour. Mood swings and behavioural changes would cause me to ask questions about the person's situation. If I became aware that someone I was supporting could be in this situation I would find a resource where I could ask advice about how to approach the subject and how to receive the disclosure. The possibility that someone is being abused or neglected is a serious allegation. The potential behavioural changes could be self-harming or harming others, becoming more sexually promiscuous, fabricating events for attention and stealing, developing mental and physical health issues like depression, suffering from insomnia, becoming withdrawn or apathetic, begin over eating or under eating, developing undue fear based behaviour or risk taking behaviour, and having unusually emotional mood swings.

8) What type of abuse is the client experiencing or at risk of experiencing?

Lydia experienced assault and sexual abuse. 

Lydia also experienced neglect at the hands of the people who had power over her life, they could have protected her from further sexual abuse but they failed to do so.

7) Do the rights (from 5 and 6) interact?

Protecting Children is every one's business. Everyone has a role to play, the institution, the nurses and the community and parents. The National Framework for Protecting Australia's Children 2009, provides the foundation for improving the safety and wellbeing for vulnerable children. Lydia was a child when the offence happened, and she was particularly vulnerable due to the fact she had been living in an institution with a mental illness. Everyone has let Lydia down in this instance.
Professional ethics and code of conduct cause the institutions responsibilities and the workers responsibilities to interact with Lydia's rights. For instance; the institution has a responsibility to treat Lydia with respect and dignity, the workers have a responsibility to ensure that they do not fail to care properly for Lydia. Lydia also has responsibilities, such as, being a willing participant in her therapy to achieve her program goals. The interactions of these rights and responsibilities can cause friction. The institution policy and procedures, which may be set in place to improve an important area of the institution, i.e cleanliness. Could cause a removal of some of Lydia's rights, to enable efficient functionality of the institution the kitchen closes at 8pm and opens at 6am, in this case there is no availability for food in the closing hours.
The organisation is responsible to ensure that there are clear service policies and procedures for workers to follow. In this case it appears that the institution did not have policy regarding keeping children safe and this has let down the Charge Nurse who is now subject to prosecution and litigation, the Charge Nurse has a right to earn an income and this has been compromised by the fact that she will have a criminal record.

6) What rights and responsibilities do other players have?

Nurses are professional people who are prescribed mandatory  reporters. The charge Nurse has failed to make a report. The workers have a duty of care to act in a way that a reasonable person in that worker's position would do in the circumstances. The staff breached their Duty of Care to Lydia when they failed to act on her complaint and she was harmed by their lack of action (i.e. continuing abuse) The staff are responsible to follow best work practices, work in a professional manner, to protect Lydia and provide a safe environment for her. Staff are also responsible to make sure that Lydia is aware of her rights and the availability of advocacy.
The institution has the responsibility to inform their staff of the standard of behaviour that is expected from their employees.
Staff have a responsibility to act with impartiality towards the residents. The Charge Nurse should have acted in the way she would have towards any of the residents making a complaint of sexual abuse, instead she chose to disbelieve Lydia because she was known to lie in the past. Staff have a responsibility to not allow their personal opinions to affect the professional performance of their duties.
Staff have the right to be supplied with the tools that they require to do their jobs. Their employers must not ask staff to break the law as a result of doing their jobs, such as not asking staff to write certain elements of their day in a report. Staff have the right to freedom to earn an income.

It appears that the institution did not choose to bury the information that Lydia gave them about Brendon. It is a good sign that because it shows the institution has some integrity and transparency to keep a record of what Lydia told them and ask her to tell them again about what Brendon had done to her years earlier. This is an action that makes me believe that the institution have behaved with some responsibility and may have some redeemable qualities.

5) What rights does the clients have?

Lydia has the right to respect and the right to dignity such as being believed when she made an allegation of assault. Lydia has the right to be treated fairly and equally without discrimination. She also has the right to reliable and up to date information about services regardless of her age. She has the right to individual security such as to live free from abuse. She has the right to receive necessary care, attention, aid and guidance as required due to the fact that she is a dependant person. She has the right to have an independent guardian and administrator to protect her rights and advocate for her.

4) What are the potential impacts?

Lydia has the potential to express the hurt inflicted on her by people with power in her life in many different psycho-social and emotional ways, examples could be, harming herself or others, becoming more sexually promiscuous, fabricating events for attention and stealing. Lydia may also internalise her hurt in many ways, some examples could be developing depression, becoming apathetic, begin over eating or under eating, developing undue fear based behaviour, harming herself or others and suffer from insomnia.
Lydia may choose to bring a complaint against the institution in a civil court.

The Institution is subject to charges of neglect, and be penalised under the law, the institution may have operating restrictions placed on it.

The Senior Management may lose their jobs and be prosecuted.

The Charge Nurse may be prosecuted for her failure to report and have a criminal record, lose her career and be financially impacted by these events.

Brendon may be sentenced to incarceration. He will potentially have a criminal record, be listed on the sex offenders register, lose his career and be financially impacted by these events.

The Member of the Community has many many months of police investigation and court dates to integrate into their life, causing emotional distress and impacting the initial trauma of the crime. This could cause significant and lasting impact to their emotional state and psychological health, their presence in the community and their view of their personal safety and freedom, additionally affect their career and financial status, 

3) What are the main issues at stake

Lydia has been assaulted and sexually abused.

Lydia will be subjected to continuing abuse because no-one has made it stop.

Lydia’s human rights are not protected by the people who have the power to protect them.

Lydia feels powerless in protecting herself.

Brendon is enabled to continue to sexually abuse Lydia and others and he was allowed to continue working at the institution.

The Charge Nurse has neglected her Duty of Care and allowed a criminal act to avoid prosecution, being an accessory to the crime after the fact.

The institution have failed in their Guardianship to protect Lydia and provide a safe residential environment for her.

2) What are the relationships between the players?

Lydia resides in an institution. The institution has responsibility to care for Lydia.
The Nurse Brendon has a Duty of Care to Lydia because she is cared for in an institution that Brendon is employed by. Brendon has power over Lydia’s life. Lydia is abused by Brendon.
The Charge Nurse has a greater level of Duty of Care to Lydia because Lydia is cared for in an institution that The Charge Nurse is employed by. and The Charge Nurse holds a higher position in the institution than is held by Brendon. The Charge Nurse also has greater power over Lydia's life. Lydia confides in The Charge Nurse, and The Charge Nurse chooses to disbelieve Lydia’s allegations although she did inform the Senior Management.
Senior Management are ultimately accountable for Lydia’s well-being but they did not choose to pursue further enquiries at the time of the complaint.
The Member of the Community has become a victim of Brendon’s continuing criminal activity.

1) Who are the players involved in this situation.

Lydia, Brendon, Charge Nurse, Senior Management, Member of the community.