Linda Starr - School of Nursing and Midwifery, Flinders University - Five Gates to Justice


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Linda Starr, Associate Professor, School of Nursing and Midwifery, Flinders University presented this at the 2nd Annual Forensic Nursing Conference.

This is the only national even of its kind promoting research and leadership for Australia's Forensic Nursing Community. The program addresses future training of forensic nursing examiners, forensic mental health consmers, homicide and its aftermath, ethical dilemmas in clinical forensic medicine, child sexual abuse, providing health care to indigenous patients in the forensic arena and more.

To find out more about this conference, please visit

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Linda Starr - School of Nursing and Midwifery, Flinders University - Five Gates to Justice

  1. 1. Five Gates to Justice Forensic Nursing Conference Sydney, February 2014 Associate Professor Linda Starr
  2. 2. Speaking for the Silent Witness • To explore mandated reporters experience in making a report • To determine what helps or hinders mandated reporters in their role • Identify how this impacts on the capacity of investigating officers/police to investigate and prosecute these cases • To contribute and extend the body of knowledge on effective compulsory reporting in elder abuse
  3. 3. Unexpected expectations • • • • • Ageism - baby boomers Lack of ‘interest’ Critique of law Lack of reform – despite clear policy deficits Perfect example of the need for multi disciplinary forensic overhaul – education, research and practice at all levels – bedside to court room – front desk to CEO’s desk
  4. 4. Environmental Context • Productivity Commission Inquiry 2011 • `Caring for Older Australians’ Key points: - age care system suffers weaknesses - difficult to navigate - services limited as is consumer choice - quality variable - coverage of needs, pricing, subsidies and user cocontributions inconsistent or inequitable - workforce shortages exacerbated by low wages and some workers have insufficient skills
  5. 5. Legal Context • Historically Commonwealth Government rejected mandatory reporting options for abuse against vulnerable older people living in Australia • Some individual States/Territories responded with various position statements but not as far as compulsory reporting • DDP v Alexander [2008] VSCA 191 • Amendment to Aged Care Act 1997 (Cth) To : ‘safeguard older Australians and provide greater access to justice for those who suffered abuse’ through the : Introduction Compulsory reporting : All Staff to report any allegations or suspicions of physical or sexual assault of residents within Commonwealth funded aged care facilities to the police and the Department of Health and Ageing
  6. 6. Mandatory Reporting of Notifiable Conduct  Difficult in hierarchical system  Whistle blowing - not an appealing activity  Concern over adequacy of protection   Reconcile conflicting desire to ensure patient safety by truth telling with desire to protect and remain loyal to MO (Courtney J) Issue for junior doctors and other health professionals to report – may not have ‘evidence, experience, wisdom or confidence to make a judgement (Breen K 2009)
  7. 7. Reportable Assaults Defined • Reportable Assault : broad to capture assaults ranging from deliberate and violent physical attacks on residents to use of physical force • Unlawful Sexual Contact : intended to capture any sexual contact without consent that is unlawful under any Commonwealth, State or Territory law. • Unreasonable use of force and assault : captures assaults ranging from deliberate and violent physical attacks on residents to use of unreasonable force eg hitting, punching or kicking despite whether or not it causes injury • NB recognises injury through care – injury alone not conclusive of evidence of unreasonable force or assault
  8. 8. However, • Mere presence of law is not enough – law cannot enforce itself • Relies on particular personnel to enforce it : - Those compelled to report notifiable conduct - the police - the prosecution - judicial officers • At each level there is a gate and each party a gate keeper • The key to the gate significantly relies on the use of discretion • Discretion paves the path to compromise • Outcome dependent on gate keepers use of discretion
  9. 9. First Gate : The Law ‘safeguard older Australians and provide greater access to justice for those who suffered abuse’ • • • • • • Meeting the threshold test – the Act’s criteria: The abuse occurred in Cth funded residential aged care facility The abuse falls within the Act’s definition of reportable abuse That a person compelled to report witnessed/reasonable suspicion of abuse That the person reports the abuse through the defined channels Those making the report are protected • Discretion – who will and who will not benefit from the law • Not protected : private providers, those living in the community from any form of abuse Not covered : psychological, financial, neglect (Christine Thorenson) •
  10. 10. HCC v Perera [2010] NSWNMT 15 • ‘the incident involved the accusation against the nurse in charge of the shift and that she was a trainee assistant in nursing, stating that she had been worried about her traineeship and her job and also worried about being given a hard time by other staff members’ • (Manager) …. while she did not condone it, she understood “that there's a longstanding culture of intimidation and harassment of staff who do report against other staff” within the Metro Residences.
  11. 11. Cynthea Thoreson • • • • • • 88 yr old woman – dementia Previous fall fractured hip partial replacement Socially isolated totally reliant on her daughter 3 weeks before admission fractured femur Remained in bed until evacuated by ambulance Pain, physical deterioration, covered faeces, urine, pressure sores • Died due to pulmonary embolism due to fractured right femur due to fall 3 weeks later
  12. 12. Expert Opinion • …suggest a severe case of neglect by family members • 3 week delay in getting treatment…..I consider neglectful to the point of cruelty … • Reasons given for delay…..patently ridiculous • Failure of family to show concern ……not for 3 days and then stayed less than 5 minutes and did not speak to staff…..
  13. 13. Investigating Officer • …there is insufficient evidence to support a successful prosecution in the circumstances and in the context of the existing law • He suggested a review of the legislative regime to create a new offence more akin to the offences relating to ‘cruelty to children’. (Inquest into the death of Cynthea Thoresen 2013 QLD Coroners Court) ‘safeguard older Australians and provide greater access to justice for those who suffered abuse’
  14. 14. Second Gate : Internal discretion • Who you report to : approved provider, key personnel of approved provider, another person approved by approved provider to receive reports, a police officer or the Secretary. S 63-1AA s 5) • Discretion : decision to report or not initially • • • • Knowledge and understanding of what constitutes abuse, skills and confidence in making a report Lack knowledge what to report Fear of whistleblowing Recognising who are ‘key personnel’ • When staff report internally – further discretion as to whether this person will make a report or not to the police and the department Poor knowledge and understanding of roles ie not investigators Interpretation of the law Poor understanding of natural justice principles • • •
  15. 15. Social Media : R v Manuel • OMG that is soooo disgusting!!! She should never be allowed to nurse again.... • Pity the dobber of this act....there is also a saying ‘the worm turns’ • Maybe it is an accusation that went to far and Amanda is innocent?
  16. 16. HCC v Perera [2010] NSWNMT 15 • Under cross-examination in the Local Court, Ms Riddle was asked about why she had not reported the incident that she had observed on 10 April 2005. • She pointed out that the incident involved an accusation against the nurse in charge of the shift and that she was a trainee assistant in nursing, stating that she had been worried about her job and her traineeship. • She had also been worried about being “given a hard time by the other staff members”. • She stated that she had been “shocked” and had “wanted to tell someone” but had not known what to do.
  17. 17. Response • Participant completed the SSQ and returned with consent form • Í was ignored – 4 reports I made • ‘I was told I made it up and I just had a personal vendetta against the male worker I reported • ‘I was threatened’
  18. 18. Gate Three : The Police • Police primary responsibility as first responder to reports of elder abuse • Power of discretion to intervene, , determine what charge, that a crime has been committed and whether or not to take any action • Before charging someone must be sure on reasonable grounds the individual has committed an offence • Primary gate keeper for entrance into the criminal justice system
  19. 19. Gate Three : The Police • Police investigation ‘a systematic search and collection and analysis of information’ collected to identify the perpetrator of the crime and to prepare the brief of evidence for the court • Reliant on witnesses and evidence collected from the scene
  20. 20. Responses… • The police were called and they decided that there was not enough evidence for a case of assault due to the mental incapacity of the residents to support my story, despite the serious nature of my allegations.
  21. 21. Inconsistency • We went through all the hard work…..everyone was devastated and traumatised ..interviewed by police…in the end ….they said too many inconsistencies … action was taken, nothing was resolved’
  22. 22. Gate Four : The Prosecution • DPP guidelines for running a case • Prosecutor scope in decision making with range of discretionary powers – essentially decision rests on whether there is a reasonable chance of securing a conviction • Makes this decision on basis of admissible evidence, reliability of witnesses, eliminating uncertainty
  23. 23. Lack of MO support • I have many examples when you either have witnessed a physical assault or suspect that the injury you assess in the client is a result of an assault and the MO refuses to come • We have no medical confirmation that any injury has occurred at all
  24. 24. Lack of recall on Crime Scene Detail • R v Alexander – position of bed • R v Manual – type of chair - position of furniture - entry / exit points in corridor - position of victims, witnesses defendant
  25. 25. Weakening the Credibility • QC in cross examination of two main prosecution witnesses put to them a number of statements made by them earlier to senior staff, police or prosecutor during investigation • On a number of occasions they did not agree they had made the statements or only partially agreed with them or sought to explain their earlier statements
  26. 26. Gate Five : The Judge • Impartial • Determines all questions of law that arise in a trial • Discretion over what evidence is admitted and what is not • Finding of guilt or innocence (No jury) • Discretion over sentencing restricted with mandatory sentencing
  27. 27. HCCC v Gregorio (No 2) [2010] • Alleged RN witnessed domestic staff member drag client by ankles along a cement path • Failed to record or report the incident • Failed to record any injuries sustained by the client • Domestic Staff member charged and convicted common assault • 2 years after the event Gregorio reported to NSW nursing board
  28. 28. HCCC v Gregorio cont - Witness • Magistrate ‘ I see no reasons why I should not accept Natalie Oraz a young girl who is basically a whistle blower and needed some courage in the circumstances…..[to make the report]
  29. 29. HCCC v Gregorio cont Witness • …an honest witness making every effort to tell the truth. She listened carefully to the questions and answered them without hesitation. Her description of the incident remained unchanged throughout the at least five occasions when she gave her account.
  30. 30. HCCC v Gillies [2010]NSWNMT 7 • RN charged and found guilty of the offence assault occasioning actual bodily harm – no conviction entered • Refused to be interviewed by police • 12month good behaviour bond
  31. 31. The complaint • The nurse used rude, insulting and abusive language to Patient A, telling her that she hated her and saying words to the effect of: – “You’re a dirty, filthy, disgusting woman. We should not have to put up with this”; – “You’re nothing but a disgusting woman and you’ll end up with an infection, but I don’t care because we won’t have to clean you up any more;” • the nurse turned Patient A onto her back by grabbing Patient A’s wrists and moving her forcibly; • At approximately 11pm on 29 March 2008, the nurse wiped Patient A’s left eye roughly on two occasions causing a laceration and bleeding under the eye;
  32. 32. Magistrates Comments • The magistrate noted there was no doubt that excessive force was used to cause the bruise and cut to Patient A’s left cheek just below her eye. • The magistrate also noted that the Respondent had ‘lost’ her employment and was suffering from a ‘great deal of anxiety’ as a result of the incident. He also noted that the Respondent had provided 37 years of dedicated service as a nurse. • The magistrate took into account the plea of guilty, the facts and circumstances of the offence, the fact that this was the Respondent’s first offence, the impact the incident has had on the Respondent and the fact she had sought treatment from a psychologist.
  33. 33. HCCC v Perera [2010] NSWNMT 15 • The Complaint against Nalin Perera alleges that he is guilty of both unsatisfactory professional conduct and professional misconduct within the meaning of section 4 of the Nurses and Midwives Act 1991 in that he: • (i) has demonstrated a lack of adequate knowledge, experience, skill, judgment and/or care in the practice of nursing; and/or (ii) has been guilty of improper or unethical conduct relating to the practice of nursing. • • • • • The particulars allege the following: In April of 2005 the nurse was employed by the Department of Ageing Disability and Home Care and was based at the Tariro Unit of the Metro Residences at Westmead (hereinafter referred to as “Tariro Unit”) as a Registered Nurse. Client A was a resident at the Tariro Unit under the care and control of the nurse. On 10 April 2005 the nurse put Client A in a headlock and walked her backwards down the hallway from the dining room area. On 10 April 2005, there was a discussion between the nurse and a trainee nurse during which Client A kept interrupting them. The nurse slapped Client A.
  34. 34. HCC v Perera [2010] NSWNMT 15 • aspects of the evidence of Gettings that are consistent in the accounts she has given to the police, to the Local Court and to the Tribunal. • However, also significant inconsistencies among the accounts given by Gettings on different occasions. • Gettings pointed out the delay of 16 months since the events in question.
  35. 35. HCC v Perera [2010] NSWNMT 15 • The Tribunal notes that the earliest written record made by Gettings was made 6 weeks after the date of the events. Ms Getting's own written notes in Client A's file for that shift give no hint of the alleged incident.
  36. 36. Criminal Case • Mr Perera was found guilty of two counts of assault on Client A • both convictions were quashed on appeal by the District Court. • The appellate judge, Ellis J, in his Judgement of 8 June 2007, stated that • “the Court would be satisfied on the balance of probabilities” but would not be satisfied beyond reasonable doubt,” having regard to the very strong character evidence, particularly that of Ms Maharaj.”
  37. 37. Tribunal Case concerns • no other evidence which corroborates Ms Getting's account(s) of Nalin Perera slapping Client A. • Mr Perera himself denies the allegation. • The file and notes for Client A • show that in the week prior to 10 April 2005, she had swelling and tenderness on the right side of her jaw as a result of dental infections. • Client A's note for 10 April include observations recorded by Ms Gettings about the latter's state of mind in which she refers to the client wanting “to go for another drive.” Nothing in the notes for the shift gives any indication of an assault or similar incident.
  38. 38. HCC v Perera [2010] NSWNMT 15 • The allegation is even less plausible given Client A had been receiving antibiotics for a dental infection , pain and swelling on the right hand side of her mouth. • The Respondent, would have been aware of this, making the alleged hard slap to the right side of the face difficult to believe. • The Tribunal did not find Ms Gettings evidence sufficiently cogent or credible to establish to the level of comfortable satisfaction that RN deliberately and apparently out of the blue, committed an outright assault on a client, as alleged.
  39. 39. Police v Manuel 2011 • Charged with 5 counts of assault by intentionally applying force directly to three separate victims • Pleaded not guilty to each count • Convicted • Appealed • Each count alleges circumstances of aggravation in that the victim was over 60 yrs. of age and the defendant abused a position of trust in committing the offence knowing the victim was vulnerable due to physical/mental disability
  40. 40. Weakening the Credibility • QC in cross examination of two main prosecution witnesses put to them a number of statements made by them earlier to senior staff, police or prosecutor during investigation • On a number of occasions they did not agree they had made the statements or only partially agreed with them or sought to explain their earlier statements
  41. 41. QC claims • Witness either untruthful or • Their evidence so poorly given with so many inconsistencies and difficulties it should be treated as being unreliable and insufficient for the fact finder to conclude beyond a reasonable doubt the D’s guilt
  42. 42. Judges comments on testing the evidence • Accept many inconsistencies, differences, changes in account and problems with the prosecution evidence • As the trier of fact have to subject the evidence and the witnesses to close analysis re general reliability and creditworthiness of each witness and make some observations of their evidence
  43. 43. Evidence?? • • • • • Inconsistencies Lies Untruth Poor Memory No Recall • Trier of fact has to be satisfied both that a witness was truthful and reliable before being satisfied beyond a reasonable doubt as to their evidence
  44. 44. Problems with presentation of evidence • Delays – over three years • Number of time witnesses have had to recount their version of what occurred • Nonetheless impossible to ascribe reasons as why the principal prosecution witnesses gave such large numbers of inconsistent statements or introduced new versions of incidents over the period of time
  45. 45. Points on Documentation • Clear nursing home had in place practices and procedures for reporting incidents and reporting detection of wounds • No such reports made in relation to any of these counts • No reports made to management • These two witnesses only questioned after another person had made a report to the manager
  46. 46. Judges comments • In my view the total absence of any documentation and any report of the incidents reflect poorly on the credibility of the prosecution witnesses • It increases my concern that when faced with a denial by the defendant that any such events happened • Coupled with their inconsistent statements – relevant to credibility and reliability – not prepared to make a decision beyond a reasonable doubt based upon their testimony
  47. 47. Comments re the Defendent • Evidence far more consistent that the witnesses • But unconvinced she was fully truthful during the trial • Curious disconnect between what she said and the various reports and statements made about her by witnesses • Not particularly persuaded by the defendant’s denials and lack of explanation about how this all came about
  48. 48. Finding • In this case I have not come to a settled position about whether one side or the other was telling the truth. • In particular I find the 2 principal prosecution witnesses were lacking in sufficient credibility and reliability to enable me to make findings of fact beyond reasonable doubt what would establish various counts. • Case dismissed.
  49. 49. Conclusion-?Justice • Imperative that all gate keepers are aware of each others role and work collaboratively to ensure each one enables the next to ‘open the gate’ • Effective laws that consistently define abuse and mandate reporting • Need to get it right from the beginning - education on the intricacies of elder abuse from bedroom to court room to assist those responsible in the identification, investigation and prosecution of cases - multi D collaboration • Development of an identified case base that will assist the judicial system in understanding the subtle complexities of elder abuse • Focus on the development of a Forensic Approach to health care in aged care!