There has been recent media coverage in relation institutional responses to to child sexual abuse in schools, however, hospitals and other health care providers who provide children's health services should also implement risk minimisation strategies.
Child safety strategies include:13
- A statement of commitment to the safety and wellbeing of children and the protection of children from harm;
- A code of conduct for interacting with children and young people;
- Recruitment, selection, training and management procedures for paid employees and volunteers (including working with children checks);
- Policies and procedures for handling disclosures and suspicions of harm, including reporting guidelines;
- A plan for managing breaches of the risk management strategy;
- Risk management plans for high risk activities and special events;
- Policies and procedures for compliance with legislation, including regular reviews of the operation and effectiveness of the organisation's child safe policies and practices; and
- Strategies for communication and support including:
- written information for parents/carers, paid employees and volunteers outlining the organisational child safe policies; and
- training material for paid employees and volunteers to help them identify risks of harm and handle disclosures.
The laws regarding working with children checks differ from state to state. In some States, such as New South Wales, you are required to have a working with children check if you have face to face contact with children and work in children's health services.14
However, this is not the case in all States, for example Victoria, where, if you are supervised you do not need the working with children check.15
The Royal Commission released its report on Working With Children Checks on 17 August 2015, recommending a national approach. The Royal Commission into Institutional Responses to Child Sexual Abuse commenced its public hearings in Sydney on 6 May 2015 to inquire into a number of matters including:
- The experience of a number of people who were sexually abused as children in:
- private medical practices; and
- private hospitals;
- The experience of a number of complainants who made complaints against a medical practitioner to the New South Wales Health Care Complaints Commission (HCCC) and the then New South Wales Medical Board;
- The systems, policies, practices and procedures for receiving, investigating and responding to complaints against medical practitioners of child sexual abuse of:
- the HCCC;
- the Medical Council of New South Wales; and
- the Royal North Shore Hospital;
- The experience of an out-patient who alleged child sexual abuse by a psychologist at the Royal North Shore Hospital, in the late 1960s;
- The systems, policies and procedures of the Northern Sydney Local Health District and the NSW Ministry of Health for preventing, detecting and responding to child sexual abuse;
- The experience of an in-patient who was allegedly abused by a volunteer at Royal Children's Hospital, Melbourne in the early 1980s;
- The response of the Royal Children's Hospital, Melbourne, to an allegation of child sexual abuse made against a hospital volunteer; and
- The systems, policies and procedures of the Royal Children's Hospital, Melbourne, for preventing, detecting and responding to child sexual abuse.
Persons believing they have a direct or substantial interest in the scope and purpose of the public hearing were invited to lodge written applications for leave to appear at the public hearing by 22 April 2015. The hearings have for the moment concluded. One aspect of institutional response is the way in which claims are dealt with by the institutions. Many civil claims are being made well past the limitation period for claims for damages for personal injury under statute. Respondents are regularly requested not to rely on technical defences and to agree on a process to allow such claims to be dealt with on their merit. Claimants also regularly seek suspension of limitation periods during the conduct of an agreed claims process. Such process is aimed at resolving claims without recourse to litigation.
In appropriate circumstances, an agreed resolution process might enable the parties to resolve abuse claims in ways which are respectful and dignified and minimise the risk of re-traumatization otherwise inherent in the adversarial process.
Insurance issues may also arise in respect of the acts of employees or others for whom the principal might be vicariously liable by reason of a non-delegable duty of care or otherwise or the costs involved in directors and officers managing the claims process.
If a complaint or claim arises in relation to child sexual abuse, consideration should be given to:
- The question of any insurance cover and, if so, notification of the claim;
- Consideration of liability as a principal, vicariously or otherwise;
- Consideration of limitation or permanent stay issues; and
- Subject to the above, consideration of a non-adversarial resolution of the claim.
Holman Webb Lawyers has recently acted for a number of religious organisations and schools in relation to claims in connection with child sexual abuse.
13 Queensland Commission for Children and Young People and Child Guardian "Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse", October 2103.
14 Section 6 of the Child Protection (Working with Children) Act 2012 (NSW). 15 Section 9 of the Working with Children Act 2005 (Vic).
15 Section 9 of the Working with Children Act 2005 (Vic).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.