CRV v Anglicare NSW

Report of critical incident on the 26 March 2015

1. The file notes of the telephone discussion on 26 March 2015 taken by the case worker and contained in the critical incident report tendered by the respondent, state: [CRV] was clearly very escalated and heightened, and when I initially picked up the phone, I could hear [CRV] talking. [CRV] yelled, "I don't like any of the stuff you do either". [CRV] was aware I had picked up the call and heard this. [CRV] began to explain the incident that occurred at her property. [CRV] believes [AA] has been stealing food from children on the school bus and the food is high in sugar and causing [AA] to have behaviours. [CRV] stated there had been a few incidents with [AA] these past few weeks, and that she had spoken to the other case manager about these issues. [CRV] advised me that she had witnessed [AA] attempting to climb on the roof. [AA] had placed a basketball stand on 2 chairs and the top of the stand was almost touching the roof. [CRV] had walked out the back as [AA] had climbed down as a scuffle ensued whereby [AA] felt she needed to prevent [AA] from climbing back on to the pole and possibly the roof. [CRV] advised me that she grabbed [AA] by his hair and pulled him down. [CRV] then went on to say that she asked another young person to fetch her a skipping rope and proceeded to place [AA] on his stomach on the concrete and tied his hands behind his back. [CRV] then went on to say that this did not work and she then tied [AA's] hands to a pole. [CRV] did not state if it was the basketball stand or a different pole. [CRV] kept repeating that she didn't know what to do to stop [AA] from getting on the roof. [CRV] said if [AA] got on the roof she would be very scared for his safety, not knowing if he might try to jump off or perhaps the wind might knock him off balance. I asked [CRV] to tell me exactly where [AA] was at that time, and she advised he was down by the gate, pulling small branches off trees. [CRV] was adamant that she did not hurt [AA] at any time although she did say he was "squealing like a pig" but that she didn't believe he was feeling any pain, he just did not like being restrained. [CRV] said when incidents like this have happened before whereby [AA] has become escalated, he usually walks outside near the gate until it gets either too dark or too cold and then he comes back inside.
2. The respondent removed all the children from CRV's care the following day. The children were placed with other carers and CRV is not seeking a review of this decision.
3. On the 10 April 2015, two respondent caseworkers interviewed CRV to discuss the incident. As reported from the file notes tendered by the respondent and signed by the parties, CRV clarified her actions during the meeting. The notes state: [CRV] states that she did not pull him (AA) down to the ground when she grabbed his hair. She stated that when she inadvertently grabbed his hair, he stopped struggling, she then placed him in a bear hug and moved him over to another area… [CRV] said she criss-crossed each hand to the skipping rope, checking that it wasn't too tight and tied it off with a granny knot. [CRV] found another rope, tied it around his waist, got halfway through tying granny knot, then checked to ensure it wasn't digging into him…
4. On 11 May 2015, the respondent's Director of Human Services, Mr Vardanega took over the investigation. He sent a letter to CRV seeking further information about the critical incident. He advised her there was sufficient evidence to make a finding of 'reportable conduct'. This concerns an obligation under s.25 Ombudsman Act 1974 requiring an agency to notify the Ombudsman when there is an allegation that a child has been assaulted. The letter also stated that the respondent was considering de-authorising CRV as a foster carer.
5. On 20 May 2015, Mr Vardanega held a teleconference with CRV to further discuss the incident and possible outcomes. As reported in the file note record tendered by the respondent, CRV admitted wrongdoing in hindsight but she also made the best decision she could at the time. That is, she needed to stop AA from behaving dangerously while she retrieved her mobile phone.
6. On or around the 22 May 2015, Mr Vardanega emailed a copy of the draft investigation report to CRV. It contained a reference to a sustained finding of physical assault and the possibility of 'de-authorisation' as a foster carer.
7. On 19 June 2015, CRV met with Mr Vardanega for approximately two hours. In the file notes of meeting tendered by the respondent, CRV did not admit wrongdoing. She stated AA was aggressive and needed to be restrained. She received no training about what was appropriate and not appropriate restraint. The roof was very high and the consequences of falling very serious.
8. After the meeting on the 19 June 2015, CRV wrote to the NSW Ombudsman to complain about the respondent. She believed the respondent was paying insufficient regard to the severity of the situation that led to her actions. She also believed the respondent had already pre-determined the matter in favour of de-authorising her as a foster carer.

Adverse Finding against CRV

1. On 6 July 2015, the respondent made an adverse finding against CRV for - physical assault- inappropriate use of restraint. The report tendered by the respondent, sets out the following analysis; The incident commenced with what appears to have been a degree of robust physical engagement between [CRV] and [AA] designed to prevent [AA] from endangering himself by climbing on the roof. The roof is high and does present safety risk. It is noted that children do place themselves at risk of climbing, including trees and other structures, and that such risk can be said to be ever-present in most environments where children are cared for. Physical restraint would be justified simply because climbing posed a risk. However, [AA]'s behaviour was elevated and he can pose a risk to himself and others so the decision by CRV to physically intervene to ensure his safety appears reasonable. The contact with [AA]'s hair was incidental to that purpose and the use of the 'bear hug' presents plausibly as appropriate physical restraint in such circumstances. While this physical contact did occur this is considered reasonable for the care of [AA] in light of the risk and therefore the appropriate finding for the allegation of physical assault - pushing /shoving / grabbing is 'not reportable conduct'. At this point, [AA] has been removed from the danger presented by the roof and is restrained appropriately by [CRV]. The subsequent use of the skipping rope to tie [AA]'s hands and then to secure him to the pole is far more serious. Physical restraint of this nature is dehumanising, degrading and potentially criminal in nature. It could not be regarded as appropriate except in the most serious of circumstances involving clear and present danger of the most serious kind. It is doubtful that even climbing the roof justified the action subsequently taken but even if it did [AA] was already removed from that risk. [CRV] had demonstrated through the use of the 'bear hug' the ability to restrain him without recourse to inappropriate measures. The evidence shows that [CRV] resorted to securing [AA] with the skipping rope in order to leave the scene, locate her mobile phone and contact Anglicare. This seemed a prudent course of action to her at the time but doesn't indicate a situation of such criticality to justify a physical assault on [AA]. No attempt was made to contact emergency services, for example. And [AA} was just left to free himself. [CRV] denied understanding or being trained in the difference between appropriate and inappropriate restraint. And did not recall signing the Carer Agreement with its restrictions on restraint. In this case, [CRV] is not being accountable to a higher standard as a result of special knowledge where a child is tied up and secured to a pole must be judged by the utmost seriousness. The evidence supports the finding of 'sustained' in relation to the allegation of physical assault - inappropriate restraint.
2. On 26 August 2015, the respondent wrote to CRV advising her that a finding of 'physical restraint - inappropriate use of restraint' had been found against her. The letter also advised the respondent would be in contact with her around the 30 September 2015 to discuss her future as a foster carer. However, no further contact or meeting took place between the respondent and CRV. The respondent say they tried on a few occasions to contact CRV but CRV disputes this.
3. On 2 November 2015 wrote to CRV and advised her of their decision to de-authorise her as a foster carer.
4. In December 2015 CRV contacted the respondent to discuss the decision. She then made complaints in relation to the process of the investigation. She also made complaints regarding unrelated allegations of behaviour of children previously in her care. The respondent investigated these allegations.
5. After extensive correspondence and discussion between CRV and the Respondent's Chief Executive Officer (CEO), Mr Halcrow, on 24 May 2016, Mr Halcrow wrote to CRV confirming the decision to de-authorise her as a carer. In his email he stated, 'Whilst initially management considered the option of providing you with retraining to support you in dealing with the complex and challenging needs of the young person then in your care, ultimately you failed to demonstrate that you understood the seriousness of your behaviour in resorting to unapproved physical restraint.'
6. On 24 August 2016, CRV filed her application for review of the decision to de-authorise her as an authorised carer.

Role of Tribunal

1. The decision to de-authorise a foster carer is a reviewable by this Tribunal. (s 245(1)(a) and (c) Care Act read in conjunction with s. 38 Administrative Decision Tribunal Act 1997 and s 28 Community Services (Complaints, Reviews and Monitoring) Act 1993).
2. In conducting this review, the Tribunal stands in the shoes of the administrator and is required to determine what is the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time the original decision was taken as well as any further material that is relevant as at the time of the hearing (Administrative Decisions Tribunal Act 1997 s 63 and s 115; YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]). This includes any material that postdates that decision.
3. The Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it or to set it aside and remit it back to the Administrator (Administrative Decisions Tribunal Act 1997 s 63 (3)).

Relevant Legislation

1. The decisions to de-authorise CRV as a carer is a decision taken under the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") and regulations.
2. The objects of the Care Act are set out at section 8 and provide as follows: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
3. The principles to be applied in the administration of the Care Act are contained at section 9. Relevantly subsection (1) states: (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
4. Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136). Section 137 of the Care Act defines what is meant by the term 'authorised carer'. This includes the principal of a 'designated agency' and 'a person who, in accordance with the regulations, is authorised as a carer.'
5. The conditions of authorisation are set out in clause 34 of the Regulation, which include a requirement that the authorised carer 'must comply with the code of conduct for authorised carers.' The 'code of conduct' is defined to mean the code of conduct for authorised carers approved by the Minister. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.
6. Clause 41 of the Regulation makes provision for the management of behavior of children and young persons. Clause 42 makes provision for the cancellation or suspension of an authorisation of a carer. The clauses are in the following terms: 41. Management of behaviour of children and young persons (1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care: (a) must not use: (i) any physical coercion or physical punishment (including corporal punishment), or (ii) any punishment that takes the form of immobilisation, force-feeding or depriving of food, or (iii) any punishment that is intended to humiliate or frighten a child or young person, and (b) must, in any event, use only behaviour management practices approved by the designated agency. (2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency. (3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed: (a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or (b) by changing the placement arrangements. 42. Cancellation or suspension of authorisations by designated agencies A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer: (a) is no longer a suitable person to be an authorised carer, or (b) has failed to comply with any condition of the authorisation, or (c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or (d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children's Guardian under section 157 (3) of the Act, or (e) has failed to uphold the Charter of Rights prepared under section 162 of the Act. A copy of the relevant code of conduct was tendered into evidence. The code of conduct provides as follows: Follow the behaviour management policy of the designated agency. This will include ways to encourage positive behaviour in children and young people and appropriate actions to respond to challenging behaviours. Only use behaviour management practices as described in the behaviour management policy or approved by the designated agency. The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted. Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within the designated agency.
7. The code of conduct also describes what authorised carers can expect. This includes being respected for their opinion and being consulted on decisions about the care of the child or young person in their care and support and training on ways to encourage positive behaviour in children and how to respond appropriately to challenging behaviours.

The Evidence

1. In this matter, extensive documentary evidence, submissions, reports and letters have been filed by both parties. However, the Tribunal has only considered evidence relevant to the respondent's decision to de-authorise CRV.
2. CRV and Mr Vardanega, on behalf of the respondent provided detailed statements and affidavits. CRV also provided further submissions on the legal principles applicable to her case. Both were cross-examined.

CRV

1. CRV takes issue with some aspects of the respondent's report of the critical incident. However, she self-reported the incident and agrees with the substance of the allegations against her that she grabbed AA to prevent him from climbing onto a roof and held him in a bear hug. She then tied his hands up with skipping rope and tied the rope to a pole.
2. Her consistent response and evidence was that she took the action she did to prevent AA climbing onto the roof and to prevent him from a potentially dangerous situation. She also stated the respondent never instructed or trained her as to what was appropriate and inappropriate physical restraint.
3. In evidence CRV stated that prior to the incident on 26 March 2015, she had been presented with AA's serious behavioural problems. This included AA being 'out of control', aggressive and being cruel to animals living on her property. She reported these matters to the respondent but received no support. An assessment tool dated 31 October 2013 and tendered by CRV, identified AA as a child with disruptive behaviours, being physically violent and aggressive and exhibiting behaviours that were difficult to manage. However, there was no other evidence tendered by CRV reporting any difficult behaviours to the respondent leading up to 26 March 2015. There was a carer review meeting in October 2014. File notes of this meeting tendered by the respondent suggest it was a positive meeting. There were no complaints by CRV about the children in her care and she described the respondent's out of home team support for her as 'fantastic'. In evidence CRV agreed with the notes of the meeting.
4. CRV was cross-examined about her training and engagement with the respondent. She completed the two day foster care training course conducted by the respondent on the 17 to 18 November 2012. She signed the 2012 Carers Agreement on the 13 February 2012. This document sets out the expectations and responsibilities of both parties. It states at paragraph 2 on Page 6, that carers agree: To abide by the Managing Difficult Behaviours Policy, not to use corporal punishment, not to deprive a child/ young person of food or shelter, not to deprive a child/ young person of access to their birth family or respondent staff, and to only use restraint if such a practice has been approved by the Organisation and the Community Services, and is a documented strategy in the child's/ young person's Behaviour Management Plan.
5. In evidence, CRV agreed that she signed the 2012 Carer's Agreement and must have read the document but 'cannot remember word for word what it said'.
6. The Agreement attached the Code of Conduct for Authorised Carers being schedule 2 of the Children and Young Persons (Care and Protection) Regulation 2000 (as it then was) and CRV signed this document as part of her training requirements.
7. CRV denies signing the 2014 Carer's Agreement and believes the signatures on this document are not hers and have been forged.
8. Much of the evidence of CRV concerned complaints she had with the respondent's investigation process and the respondent's failure to properly support her as an authorised carer. She believed Mr Vardanega had pre-judged her actions and had already decided to de-authorise her as a carer during the investigation process. She also complained about the lack of consultation by the respondent prior to its decision, despite the respondent making written undertakings to do so. Most of this evidence is not relevant to the decision being reviewed by the Tribunal. However, the Tribunal notes these complaints and refers to them later in these reasons.

Mr Vardanega

1. Mr Vardanega gave evidence that he and the respondent were extremely concerned about the actions of CRV in using a rope to tie up an 8 year old child. The following day, the respondent decided to remove the four children in CRVs care based on their concerns. The actions of tying up a child was not approved by the respondent and could only be justified in extreme circumstances. CRV's actions could not be justified in the circumstances she described. That is, she confronted a climbing risk which is often present in outdoor environments. She had already held AA in a 'bear hug' type hold and she could have continued to be a physical barrier to stop him from climbing until the situation had abated. In his judgement, the risk of harm to AA did not justify the extreme physical restraint used by CRV.
2. When Mr Vardanega took over the investigation he had several discussions with CRV. At the meetings in May 2015 she acknowledged her actions were wrong in hindsight. However, at the lengthy meeting on the 19 June 2015, CRV did not admit any wrongdoing and stated her actions were justified in the circumstances. She said she had no choice but to take the actions she took to ensure the safety of AA.
3. Despite an adverse finding against CRV, Mr Vardanega stated the respondent was still considering the possibility of providing further training to CRV to address the knowledge and skill deficits arising from the critical incident. However, Mr Vardanega was concerned that CRV did not acknowledge or seem to understand or have insight as to why her actions were wrong. This did not foster confidence in CRV's capacity to develop and improve her skills and knowledge in the care of children and to be a long-term foster carer into the future. He also stated that CRV was very emotional throughout his dealings with her and focused on the investigation process rather than her actions in managing difficult behaviour and her future as a foster carer.
4. Mr Vardanega stated that he did not train or work with CRV but referred to the training of foster carers as including information about managing difficult behaviour and how to identify appropriate and inappropriate physical restraint. The respondent program for training foster carers, 'Shared Stories, Shared Lives' was tendered in evidence. He referred to CRV signing the 2012 and 2014 Carer's agreement which outlined the prohibition on unapproved physical restraint of children. He also referred to community standards and common sense, that in his view would judge tying up of a child in most circumstances as extreme and wrong.

Consideration and Findings

1. The Tribunal regards CRV's actions in tying up a child's hands with a skipping rope and tying the rope to a pole to be contrary to the safety, welfare and well-being of a child. This action can be degrading and traumatising for any child. For children in care, the impacts of such action may be greater due to their own history of abuse, neglect and trauma from previous placements or experiences that brought them into care. Such action may also risk physical and psychological injury to the child.
2. Physical restraint of children is only justified when the safety of the child is imminently at risk or when the risk of potential harm is greater than the actual harm caused by the physical restraint. The Tribunal agrees with the respondent's assessment that the circumstances CRV faced did not justify her actions in restraining AA by tying him to a rope and tying the rope to a pole.
3. The Tribunal finds that CRV did not demonstrate insight or understanding that her actions in restraining CRV were not only unapproved by the agency but were wrong. Throughout the investigation and in evidence she continued to justify her actions by explaining that she had no other alternative but to take the action she did to ensure the safety of AA. When asked in cross-examination whether she thought it was unacceptable to use physical restraint as she did and she replied, "Is it unacceptable to ask for help and not get it". In her response and evidence, CRV demonstrated an inability to reflect on her actions and consider all the circumstances including the potential harm to AA in being tied to a pole and other more acceptable responses. For these reasons, the Tribunal does not have confidence, that if placed in a similar situation, CRV would not repeat her actions and risk harming a child.
4. The Tribunal found CRV to be genuine in her concern for the children in her care. It is also to her credit that she initiated a self-report of the incident. The Tribunal also acknowledges that many children in care present multiple and complex needs and being a foster carer can be an extremely difficult and challenging role. However, the paramount concern of this Tribunal is the safety and welfare of the children in care. The Tribunal must be satisfied, on consideration of all the relevant evidence, that children placed with CRV would not be at risk. In the circumstances, the Tribunal cannot be satisfied that a child placed into the care of CRV would not be at risk.

CRV complaints against the Respondents

1. CRV made the following complaints about the respondent:

• CRV gave evidence of dealing with AA's difficult and challenging behaviour whilst he was in her care and up to the incident on the 26 March 2015. CRV also tendered an assessment tool relating to AA before he came into her care. Mr Vardanega investigated the matter but was not aware of the assessment tool for AA and did not make any enquiries regarding the background of AA. This was unfair as AA's behaviour leading up to the incident was an important factor in explaining her actions on the 26 March 2015.
• CRV admits to signing the 2012 Carers Agreement but did not receive training or instruction on what was appropriate and inappropriate physical restraint. She denied signing the 2014 Carer's Agreement. She also stated she only received an earlier version of the Code of Conduct when she first became authorised and never received the current version.
• CRV believes the investigation was poorly executed and that the respondent had already decided to de-authorise her as a carer during the investigation. She refers to a meeting with Mr Vardanega on 19 June 2015 in which he told her during the meeting that de-authorisation was the likely outcome. CRV was the only person interviewed in the investigation. The child, AA was not interviewed. CRV's husband or other potential witnesses were not interviewed.
• CRV was not property consulted during the investigation process and was not given information about the investigation and what to expect from the investigation. The respondent's letter of 26 August 2015 advised CRV that they would contact her on or around 30 September 2015 to discuss her future as foster carer and raise any issues. This did not happen and the next correspondence she received was the letter of 2 November 2015 notifying her of the de-authorisation decision.

1. The Tribunal agrees that CRV's complaints are legitimate and clearly lead to the breakdown of trust with the respondent. The Tribunal also agrees that designated agencies must ensure best practices to cultivate and maintain good relationships with carers, which is in the best interests of children. The Tribunal, therefore makes the following comments and observations and would urge the respondent to consider them and if appropriate, review current practice. 1. The child, AA was assessed as having challenging and difficult behaviours prior to being placed with CRV. The respondent was not aware of this assessment in carrying out the investigation, but agreed in evidence before the Tribunal, this was relevant information the investigator should have known. The respondent was also not able to advise if AA had his own Behaviour Intervention Support Plan and CRV was not aware of a plan. Given the information contained in the initial assessment tool, CRV would have benefited from a Plan outlining approved strategies to manage AA's behaviour. 2. The Tribunal noted the respondent CEO, Mr Halcrow's email of 24 May 2016 to CRV in which he acknowledged the respondent's communication with her was not satisfactory. 3. The correspondence to CRV during and after the investigation contained minimal information about the process. For example, the letter of 2 November 2015 notifying CRV of the de-authorisation decision set out the decision and very little other information. Only after CRV complained to the Ombudsman did the respondent write to CRV on 24 May 2016 providing detailed information about their reasons for the decision and future options. CRV would have benefited from regular updates at each stage of the investigation including information about the process, expectations, timelines, possible outcomes and future options including appeal rights. Standardised letters and meeting agendas would assist this process. 4. The Ombudsman provided feedback to the respondent about the investigation in their letter of 30 July 2015; 'it may have been useful to gather evidence from the alleged victim and young person who allegedly provided the rope to [CRV]. Such evidence may have assisted in confirming the context in which the incident occurred and whether the pulling of the alleged victim's hair was indeed an 'accident'. While I do not suggest any further investigative action, it may be useful to interview the alleged victim and witness when reviewing [CRV]'s authorisation'.

Conclusion

1. The complaints made by CRV do not, in our view, effect the Tribunal decision. That is, the Tribunal's decision is based on the safety, welfare and well-being of children. In light of CRV's use of unapproved physical restraint against a child and her demonstrated lack of insight, any failures of process or procedure by the respondent is of little relevance to the decision.
2. Having regard to all the evidence, we find the respondent's decision to de-authorise CRV as an authorised carer is the correct and preferable decision

ORDERS 1. The decision to de-authorise the applicant, CRV as an authorised carer is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2017