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Decision 07HDC10991
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Names have been removed to protect privacy. Identifying
letters are assigned in alphabetical order and bear no relationship
to the person's actual name.
Caregiver, Mr B
A Disability Service
Provider
A Report by the Deputy Health and Disability Commissioner
Parties involved
Ms A, Consumer
Mr B, Provider/caregiver
Ms C, Complainant/Ms A's housemate
Mr D, Ms A's father
Ms E, Care coordinator, disability service
provider
Ms F, Manager, disability service provider
Mr G, Caregiver
Ms H, Service Manager, disability service
provider
Ms I, Manager, disability service provider
Ms J, Manager, disability service provider
Disability service provider, Disability service
provider/Provider
Support Service 2, Another disability service
provider/Provider
Complaint
On 26 April 2007, the Commissioner received a complaint from Ms
C, via the Nationwide Health and Disability Advocacy Service, about
the appropriateness of the relationship between caregiver Mr B and
his client, Ms A. The following issues were identified for
investigation:
- The appropriateness of services provided to Ms A by a
disability service provider.
- The appropriateness of services provided to Ms A by Support
Service 2.
- The appropriateness of the relationship between Mr B and Ms
A.
An investigation was commenced on 21 June 2007.
Information reviewed
Information from:
- Ms A
- Mr B
- Ms C
- Mr D
- Ms E
- Mr G, caregiver, the disability service provider[1]
- Ms A's neighbour
- Ms H, Service Manager, the disability service provider
- The disability service provider
-
Support Service 2
Information gathered during investigation
Chronology
In 2005, Mr B lived with a disabled relative and his partner,
whom he assisted with personal and housekeeping care. Ms A was a
neighbour, and she and Mr B became friends.
On 12 September 2005, a disability service provider began
providing home-based support services for Ms A. The disability
service provider describes the home help services it provides:
"Home help services support people
where disability, health issues or rehabilitation from an accident
make it difficult for clients to maintain their personal hygiene,
or organise or control their household. The services are delivered
in the client's home to enable them to continue living in their
community.
Home support services include
household management, personal care, and advanced personal care
services. In addition we offer overnight care which provides an
in-home household management and personal care service
overnight.
…
Home based support for household
management, personal care, advanced personal care and overnight
care is assessed through a Needs Assessment Service Coordination
Agency (NASC). You can ask your NASC to refer you to [us] to
provide your support."
Ms A suffers from a disorder that affects the peripheral
nerves,[2] and requires some assistance with
her personal care, but mostly requires help with general household
management. The disability service provider's "Basic Needs Service
Plan" of 12 September 2005 states that "[Ms A] is wheelchair
dependent, for personal cares she can shower, dress herself except
in washing and drying her hair." A caregiver was to attend for
three mornings a week (Monday, Wednesday and Friday) and every
evening, with the main duties being to assist with household
management.
Ms A's father, Mr D, advised that he had met Mr B on a number of
occasions prior to Mr B becoming his daughter's carer, and both Mr
B and his daughter had told him that they were "boyfriend and
girlfriend". Mr D added that Mr B said that "he was in love with
her and would be good to her". However, Mr D advised that the
relationship lasted only six weeks. Mr B stated that he and Ms A
had had sexual intercourse after they had drunk too much alcohol,
but this was prior to him becoming her carer.
On 26 September 2005, Mr B was employed as a caregiver by the
disability service provider, to work exclusively as Ms A's
caregiver, at her request.
Ms A's care coordinator was Ms E. She stated that her role was
"to coordinate between the support workers and the client", and
that her job was to meet the needs of the client. Ms E said that Mr
B was a "nominated carer", having been chosen by Ms A. In relation
to nominated carers, Ms E advised:
"[W]e may feel that she or he is not
the right person for the clients and if the clients insisted on
using that [person] as the carer … then we have no choice but … to
use that person nominated. Yeah, it's [the client's] preference
…"
Ms E interviewed Mr B, and her understanding at the time he was
appointed was that he was "a very good friend" of Ms A. Ms E stated
that she did not discuss in more detail the relationship between Ms
A and Mr B. Ms E stated:
"I didn't think … I have the right to
ask about the relationship. I didn't think it was my role …"
There is an induction training for all new employees of the
disability service provider. Mr B's induction was performed by Mr
G, a care coordinator who worked with (and sat next to) Ms E. Mr G
does not specifically recall Mr B's induction training, but stated
that normal practice would be to work through the disability
service provider booklet given to all staff. Mr G added that,
specifically in relation to professional boundaries, he would
explain that there was a need for some distance to be maintained
between the carer and the client.
The disability service provider provided a copy of Mr B's
"Orientation Content Checklist" (signed by Mr B on 26 September,
and Mr G on 27 September 2005). The checklist includes a section on
"Professional Conduct", and the relevant section of the disability
service provider booklet states:
"Boundaries - Care/service plans must
be followed. Client/provider relationships must be maintained at a
professional level. Where boundaries are difficult to establish or
maintain, you must report this to the Co-ordinator.
… Clients are only to be visited in
accordance with your rostered work times."
New employees are also provided with a copy of the disability
service provider Code of Conduct; section 1.5 refers to the
consumption of alcohol and prohibited drugs:
"Occasionally residents of our homes
consume alcohol socially, and on these occasions employees may
sometimes consume alcohol with them. However this may occur only
with the approval of the Manager. Outside such approval, no alcohol
is to be consumed in clients' houses or on Company premises. No
prohibited drugs are to be brought into, or consumed on Company
premises or in clients' houses."
On 27 February 2006, a neighbour of Ms A telephoned Ms E, and
complained that there "may be an improper relationship [between]
client and carer". As a result of this complaint, Ms E stated that
a female carer was employed to provide personal care in the
mornings.
Ms E claimed that she told her manager at the time, Ms I, about
the complaint that had been made about the appropriateness of the
relationship between Ms A and Mr B. However, the disability service
provider stated that there is no record of Ms E having informed
anyone in the organisation of concerns about Mr B's relationship
with Ms A. (Ms I no longer works for the company, and cannot be
contacted.)
Mr G said that, although he had not been able to recall Mr B's
orientation, he did recall Mr B, and added:[3]
"I understood that there was a
personal involvement between [Mr B] and [Ms A] and [Ms E] was aware
of it … I remember saying [to Ms E] that I thought there was an
ethical issue … my understanding from [Ms E] was that there was a
romantic involvement."
In August 2006, Ms A complained to her carer that Mr B had been
using her EFTPOS card, drinking alcohol at work, had been accessing
internet pornography on her computer, and had been involved in a
fight at Ms A's house. Ms E completed a complaint form on 25 August
2006, and wrote a note on this form dated 28 August that "[Ms A's]
grandmother rang wanting to know if [the disability service
provider] can stop [Mr B] from working for [Ms A]". Ms E
recommended that Mr B's employment be terminated as soon as
possible, and Mr B advised that Ms E had told him that his
employment was terminated.
On 28 August 2006, Ms A's father, grandmother and aunt sent a
letter by facsimile to four addressees, including Ms E and Ms A's
NASC. The letter stated:
"As the family of [Ms A] we would
like to bring to your attention our concerns about her in regard to
her health and safety, while living alone …
[Ms A] was recently admitted to
hospital with pneumonia … During the time she spent in hospital her
home situation was examined a bit closer by us and she gave us some
information that was quite frightening.
She let us know about situations that
occur in her home and she reports many alcohol and drug taking
(mainly marijuana) sessions that happen when she is visited
regularly by her 'friends'. [Ms A] does admit to participating in
some of these occasions and we feel that her current caregiver '[Mr
B]' also is party to these episodes.
…
[Ms A] thinks [Mr B] is great, but as
a family we have serious concerns about his intentions. And from an
ethical aspect how can you be paid to look after someone and take
such advantage of them?"
Ms E claimed that she told her manager, Ms J, about this letter.
The disability service provider advised that there is no record of
Ms E informing anyone of this letter, and that Ms J had finished
working for the disability service provider on 16 June 2006.
Mr D said that he was "100% certain" that he told Ms E in August
or September 2006 that Mr B and his daughter had been in an
intimate relationship, and added that "there is no way [he] would
have missed that out".
On 11 September 2006, a meeting took place involving Ms E, Mr B,
a social worker and the disability service provider's General
Manager for the area, Ms F. The disability service provider's file
note of the investigation of the complaint before this meeting
states:
"[Ms A] explained that [Mr B] had
arrived drunk a few weeks ago but that he brought a friend to cook
for [Ms A]. … She reported that there had been no drinking on shift
but they sometimes drank after [Mr B's] shift. She stated that this
was always at her invitation."
As a result of this meeting, and at Ms A's request, Mr B was
reinstated as Ms A's carer. The outcome of the meeting was
documented, and stated that there was no need for Ms A to give Mr B
access to her EFTPOS; that he was not to use her computer for
internet access; and that he could only drink alcohol with Ms A
outside work hours. Ms E was interviewed during the HDC
investigation, and she was accompanied by Ms H, the disability
service provider's Service Manager:
"Interviewer:
I'm reading from the [minutes of the meeting on] 11th of
September, [and] [Mr B] wasn't going to be allowed access to [Ms
A's] EFTPOS card and he wasn't allowed … to have computer access.
And the third thing says: 'alcohol outside of work'. I'm just
wondering if you can expand on what that meant.
[Ms E]:
What they do after the hours they're supposed to be there is their
own.
Interviewer:
Is that your view or is that [the disability service
provider's]?
[Ms E]:
That's what I was told.
Interviewer:
Told by?
[Ms E]:
By the person in the offices.
Interviewer:
Who was?
[Ms E]:
That was [Ms I] at the time, yeah.
[Ms H]:
I would say though, that going back to professional boundaries,
that [the disability service provider's] view is that we don't
encourage people to socialise with clients outside of work
hours.
Interviewer:
Okay, because I was going to ask with the … booklet … that staff
get given which has a section on professional conduct. And it says
'clients are only to be visited in accordance with the rostered
work times' and … [there] seems to be [a] conflict [in] allowing
someone to have a drink after work hours and saying you mustn't go
there after work hours. Am I right in seeing that there's a
conflict there?
[Ms H]:
I would say yes."
On 29 December 2006, Ms C moved in with Ms A. Ms C stated that
Mr B would visit most evenings with alcohol ("bourbon and cola"),
and recalled that on one occasion she witnessed Ms A and Mr B in a
passionate kiss ("a full-on pash", as Ms C described it). Ms C
stated that she never saw Ms A and Mr B use drugs, but they would
go into Ms A's room, close the door, "and come out half an hour
later wasted". Ms C stated that Mr B would open an alcoholic drink
on his arrival, and would not wait until he had finished work. She
added that Ms A complained to her that Mr B borrowed money from her
to buy alcohol and would not pay it back.
The disability service provider advised that Mr B's employment
ended on 31 December 2006.
On 15 January 2007, Ms A changed her provider from the
disability service provider to Support Service 2.
Other matters
Support Service 2
Support Service 2 is an organisation that, like the disability
service provider, provides home-based support services. Mr B worked
as a caregiver for Support Service 2 from January 2005 to 20 April
2007; however, he was never contracted to provide care for Ms
A.
Mr B
Mr B admitted that he assisted Ms A with smoking cannabis but he
did not buy it for her, bring it with him, or smoke it himself.
However, he agreed that he would be affected by the marijuana while
assisting Ms A.
In a telephone conversation on 25 June 2007 with the HDC Office,
Mr B stated that he and Ms A had had sexual intercourse only once,
and it was prior to him becoming her caregiver.
On 6 July 2007, Mr B spoke to a manager of the disability
service provider. She recorded:
"[Mr B] admitted that he has had
sexual intercourse with [Ms A] but that this was after he had
ceased caring for [her]."
The contradictory accounts were put to Mr B during an interview
on 16 August 2007. He stated:
"Yeah well, I'm pretty vague about it
to be honest. Being that it's been a while. We've been intoxicated
and recently we have mucked around and been silly. Not while I was
caring for her. Yeah it is possible so I probably would have just
said yes."
Mr B has maintained throughout this investigation that he did
not have sexual intercourse with Ms A while he was a carer:
"No definitely not. Being that
everyone was sort of in my face already, I was quite strict and …
adamant on how I conducted my professionalism with my work … I'd
known [Ms A] for some years, and I knew that it would just make her
feel like there was more than what there was between us, especially
while working with her. Which in saying that, I did stay longer
when I would care for, whether it would be take her down the shop
or something. Or watch a video with her, just because she wanted
someone to you know, be there, because she was lonely or whatever.
Have a smoke with her. Have a drink with her."
During an interview, Mr B described his relationship with Ms
A:
"Interviewer:
So … your relationship with [Ms A] at that time, she thought a lot
of you?
[Mr B]:
Yeah and she still does. She still rings me up and asks me, 'can
you do this, can you do that?' And at the moment I'm saying, 'no I
can't sorry, because of this'. I still go and see her. I don't want
her to feel bad and I don't want her to be upset and feel like
she's done something.
Interviewer:
At the time you were her caregiver, did you find it awkward that
she felt that way towards you?
[Mr B]:
Yeah, over time it was becoming very awkward.
Interviewer:
Did you do anything about it? Mention it to your bosses or
anything, or feel that you should?
[Mr B]:
I attempted to mention it to [Ms E] and I explained how things
were.
Interviewer:
Can you tell us a bit more about what you told [Ms E]?
[Mr B]:
Just that we were very close, we had been close for quite some time
prior to me taking her care on. I actually told her that upon
taking on the position.
Interviewer:
Can you remember what detail you told [Ms E]? Because there's a
difference between 'just friends' and 'more than friends'.
[Mr B]:
Well there's never been 'more than friends'. We've been close. I
mean with these people you do become very personally close, because
they're sharing part of them all the time, they're everyday life.
And being seven days a week, you know. And normal things happen as
well you know.
Interviewer:
So were there any subsequent conversations with [Ms E]? You say
when you started you told [Ms E] that you and [Ms A] were close
friends, good friends. Did you have any other conversations with
[Ms E] or anyone else along that theme?
[Mr B]:
Yes I had conversations along that theme with a lot of people over
the past.
Interviewer:
But with people in [the disability service provider]?
[Mr B]:
[Mr G].
Interviewer:
[Mr G] being? Who's [Mr G]?
[Mr B]:
What's his last name? I forget his last name. He was maybe a
manager at the time. I don't think he's there anymore, I'm not
sure.
Interviewer:
Okay and what did you say to [Mr G]?
[Mr B]:
Just the same things. That you know, we do have a friendship
outside of work and we do drink and blah blah blah."
Ms A
Ms A was contacted as part of the HDC investigation. She stated
that Mr B had just been her carer, but that he did stay and have a
few drinks of an evening. Ms A declined to answer any further
questions.
The disability service provider
The disability service provider stated:
"[The disability service provider]
has no record of having received a formal complaint about the
intimate relationship between [Ms A] and [Mr B]. However the
relationship was discussed in the process of investigation [of] a
complaint relating to [Mr B's] use of [Ms A's] EFTPOS card and use
of alcohol and [Ms A's] computer.
Since the receipt of the letter [of
notification of the investigation] from the Commissioner, contact
has been made with [Ms A] and [Mr B] … both feel that this
complaint is the result of other people causing problems. [Ms A]
does not wish to complain about [Mr B]."
On 27 July 2007, Ms F, General Manager, wrote to Mr D:
"During a recent event it has come to
my attention that in late August 2006 you and your family wrote a
letter of complaint regarding the support worker [Ms A] was
receiving from [the disability service provider]. This matter was
not adequately investigated at the time, our company complaints
process was not followed and we did not respond to you.
At that time an investigation was
carried out into some of but not all of the issues raised in your
letter. The outcome was that [Ms A] wished [Mr B] to continue as
her Support Worker however certain conditions under which [caring
was] to occur were agreed between [Mr B] and [Ms A].
I apologise on behalf of [the
disability service provider] for your complaint not being dealt
with according to our Complaints process. I have investigated how
and why this occurred to find that it happened at a time when there
were management vacancies and normally it is the Service Manager
who would investigate your complaint.
As a result of this incident [the
disability service provider] wants to ensure that we improve our
processes to prevent this occurring again. I have asked our
national Quality Group to develop an organisation wide process that
will ensure that we have a way of monitoring that all complaints
received are fully investigated and the process completed."
As a result of this complaint, the
disability service provider has advised that the current approach
to training staff about professional boundaries is being reviewed,
and that the processes for employing nominated carers are being
reconsidered. Ms F commented for the disability service
provider:
"I am concerned that there is minimal
documentation in client or staff records of the actions taken by
[Ms E] that she discussed in the interview with [HDC]. This does
not meet company policies, procedures or standards. I also note
that she claims to have been given information by, or referred
matters to former service managers who were not employed by us at
the dates given in the interview. I will ensure that an
investigation into these actions will be conducted [and]
disciplinary action may result.
I note that the issue of a client and
staff member drinking alcohol outside of work time was discussed. I
wish to clarify that this issue was discussed at the meeting I had
with [Mr B] and [Ms A] on 11 September 2006. Whereas the company
would not normally entertain the notion of staff and clients
drinking alcohol together either during or outside of work hours,
this situation is an anomaly. Given that [Ms A] and [Mr B] had a
previous friendship prior to commencing service with us, hence him
being her nominated support worker, it was necessary to put in
place boundaries regarding appropriate behaviour and activity
during work hours.
The complaint regarding the
relationship between [Mr B] and [Ms A] clearly highlights 2 risks
which [the disability service provider] needs to address. The first
relates to Professional Boundaries for staff. Since becoming aware
of this the company is already taking action. We are currently
writing an additional section to be included in our Orientation
booklet for Support Workers. We have also published an item on this
topic in the September issue of our national newsletter for support
workers. We also have a 2 hour training package under development
which will be compulsory for all new staff on commencement. This
will also be provided for existing staff.
The second risk relates to the
employment of 'nominated carers'. This term refers to those people
whom a client requests that we employ specifically to provide the
client's support. In response to this complaint we need to review
our employment practices related to this group in order to minimize
risk for clients and the company. I will undertake to discuss this
with our HR team to ensure this review is scheduled."
Response to provisional opinion
The disability service provider
The disability service provider's Chief Operating Officer
advised that the "overall [the disability service provider's]
response is to accept the findings of the investigation". He added
that the disability service provider would itself report the
findings of the investigation to the Ministry of Health and to the
New Zealand Home Health Association. He stated:
"We sincerely regret the
actions/decisions that led to [Mr B] being supported to behave in a
way which is contrary to our accepted professional standards."
He also advised a number of changes to the disability service
provider processes, and requested that these be included in the
published version of the report, "to further assist other
organisations' learning as well as demonstrating our desire to
address the issues raised with the Commissioner and to meet our
commitments to our clients and their safety". (See Appendix 1 for
full response.)
Ms E
Ms E stated:
I dispute the recollection by [Mr G].
I only became aware of the relationship being 'more than friends'
later on, I believe this was when our office received the letter of
complaint from [Mr D].
In regards to referring this matter
to [Ms J] … it is my personal working policy that I always refer
matters of this nature to a senior supervisor whoever it may
be.
In reference to the letter from [Ms
A's] father, I recall receiving it and then talking with [Mr D]
afterwards. I believe I raised the complaint letter with the
superior at the time and they contacted Human Resources Section at
Head Office. I recall there was communication between our Office
and HR who requested I fax a copy of [Mr B's] contract. I believe
[Mr B's] contract was suspended or temporarily terminated but he
was reassigned to [Ms A] after some discussions between our office
and HR … This is also the time I refer to first becoming aware of
any relationship being 'more than friends' …
However I also acknowledge the
following points:
My involvement and knowledge in this
matter would have been a lot clearer with better documentation and
record keeping of the events as they unfolded. I believe this is
the main factor that has let me down.
Although I always apply a common
sense approach to all the issues of matters I deal with I can still
improve by being better or well versed in [the disability service
provider's] company policies and procedures."
Mr B
Mr B did not respond to the provisional opinion.
Code of Health and Disability Services Consumers' Rights
The following Rights in the Code of Health and Disability
Services Consumers' Rights are applicable to this complaint:
Right 4
Right to Services of an Appropriate
Standard
…
(2) Every consumer has the right to have services
provided that comply with legal, professional, ethical, and other
relevant standards.
…
(4) Every consumer has the right to have services provided
in a manner that minimises the potential harm to, and optimises the
quality of life of, that consumer.
Right 10
Right to Complain
…
(3) Every provider must facilitate the fair, simple,
speedy, and efficient resolution of complaints.
Relevant standards
Disability service provider Booklet
2.4 Professional
Conduct
"Boundaries - Care/service plans must be followed.
Client/provider relationships must be maintained at a professional
level. Where boundaries are difficult to establish or maintain, you
must report this to the Co-ordinator.
… Clients are only to be visited in accordance with your
rostered work times."
Misuse of Drugs Act 1975
Section
7 Possession and
use of controlled drugs
(1) Except as provided
in section 8 of this Act, or pursuant to a license under this Act,
or as otherwise permitted by regulations made under this Act, no
person shall -
(a) procure or have in
his possession, or consume, smoke, or otherwise use, any controlled
drug; or
(b) Supply or
administer, or offer to supply or administer, any Class C
controlled drug to any other person, or otherwise deal in any such
controlled drug.
Opinion
This report is the opinion of Tania Thomas, Deputy Commissioner,
and is made in accordance with the power delegated to her by the
Commissioner.
Opinion: No further action - Support Service 2
Mr B was not contracted to provide care to Ms A while he was an
employee of Support Service 2. I therefore do not intend to take
any further action against Support Service 2.
Opinion: Breach - Mr B
Under Right 4(2) of the Code of Health and Disability Services
Consumers' Rights (the Code), Ms A had the right to have services
provided in accordance with the relevant legal, professional and
ethical standards. Although Mr B, as a caregiver, does not belong
to any professional organisation, he was bound by the standards set
out by his employer, the disability service provider.
The disability service provider provided induction training for
Mr B upon commencement of his employment, which included working
through the disability service provider booklet given to all staff.
The relevant section of the disability service provider booklet
states that "Client/provider relationships must be maintained at a
professional level".
New employees are also provided with a copy of the disability
service provider Code of Conduct; section 1.5 refers to the
consumption of alcohol and prohibited drugs:
"Occasionally residents of our homes
consume alcohol socially, and on these occasions employees may
sometimes consume alcohol with them. However this may occur only
with the approval of the Manager. Outside such approval, no alcohol
is to be consumed in clients' houses or on Company premises. No
prohibited drugs are to be brought into, or consumed on Company
premises or in clients' houses."
Mr B has denied that any sexual relationship occurred while he
was Ms A's carer, although he has admitted that there was intimacy
both prior to, and after, this period. I note that Ms A has not
supported the complaint, and stated that Mr B was only her carer,
but agreed that he had sometimes stayed for a drink after his shift
had ended.
Mr B provided three contradictory accounts of the extent of his
intimate relationship with Ms A. He initially advised my Office
that he had only had sexual intercourse with Ms A once,
before he was her carer. However, he advised the
disability service provider that it had been after he had
been her carer. When this conflict was put to Mr B, he provided a
third account, saying that they had had sexual intercourse once or
twice before he became her carer, and "possibly" once afterwards.
In my view, such variable accounts raise doubts about Mr B's
credibility.
Mr G was clear, in his unprompted recall, that there was at
least a suspicion of "a romantic involvement" between Mr B and Ms
A. In addition, Ms C, who lived with Ms A for a short period,
recalled on one occasion a passionate kiss between Ms A and Mr B,
and that they would go into Ms A's room and close the door behind
them. As Mr B was employed to provide housekeeping assistance, it
is difficult to accept that this would have been work-related.
Mr B admitted that he assisted Ms A to smoke marijuana, although
he denied that he provided the drug, or smoked with her. However,
Ms C gives a graphic account of Mr B and Ms A going into the
bedroom, closing the door, and both of them coming out half an hour
later, "wasted". Although Mr B stated that he was "adamant on how I
conducted my professionalism with my work", this is contradicted by
his admission that he assisted Ms A to take marijuana. I note that
section 7(1)(b) of the Misuse of Drugs Act 1975 provides that it is
a criminal offence to supply or administer marijuana.
Mr B has agreed that he drank alcohol with Ms A, but denied that
this was during work time - stating that this occurred outside work
time, and was sanctioned by his employers. However, Ms C, who lived
with Ms A for a short period of time at the end of 2006 and the
beginning of 2007, was clear in her recollection that Mr B would
open a bottle of alcohol soon after his arrival. However, by the
time Ms C had moved to live with Ms A, Mr B had been allowed
permission by his managers to drink after work, and his employment
with the disability service provider ended on 31 December 2006 -
only two days after Ms C moved in. Accordingly, I do not believe
that there is enough evidence to show that Mr B drank alcohol
during his shift. However, I comment below on the consumption of
alcohol after work, and the disability service provider's
responsibilities.
Summary
Boundary issues, by their very nature, involve two people.
However, the onus is on the caregiver to behave in a professional
manner. There is no dispute that there was blurring of the
client/carer boundaries, owing to Mr B and Ms A being (at least)
friends before Mr B began providing services, and this friendship
continuing throughout the period he provided her with services.
Having considered the evidence, I am satisfied on the balance of
probabilities that an intimate relationship existed between Mr B
and Ms A while he was her caregiver. In particular, I am persuaded
by Mr B's lack of credibility as a result of providing three
conflicting accounts, Ms C's recall of a passionate kiss, the prior
sexual relationship, Mr G's recall of knowledge of a romantic
relationship, and the complaint in August 2006 about an "improper
relationship".
Mr B also admitted that he assisted Ms A to smoke marijuana,
which is a criminal offence.
I have received no response to my provisional opinion from Mr B.
This concerns me, as he may continue to work as a caregiver without
any insight into the actions that have led me to find him in breach
of the Code. Mr B at best displayed poor judgement and a lack of
responsibility. At worst, he acted selfishly to promote his own
needs over those of the person he was meant to be caring for. This
is evidenced by him (allegedly) borrowing money from Ms A and not
repaying it; using her computer to access pornography; inviting his
friends into Ms A's home; fighting in Ms A's home; and drinking
alcohol at his place of work. Mr B behaved in this manner despite
admitting that the closeness of his relationship was getting
awkward for him, and that he knew that Ms A was lonely and felt
that there was more to the relationship than there was. Despite
knowing this, Mr B was witnessed passionately kissing Ms A.
Mr B's past behaviour does not bode well as an indicator of
responsible behaviour to be expected in future similar
circumstances where, according to Mr B, "with these people you do
become very personally close …".
By having an inappropriate relationship with his client, Mr B
failed to provide services that complied with ethical standards,
and therefore breached Right 4(2) of the Code.
Opinion: Breach - The disability service provider
Boundaries
As a provider of disability services, the disability service
provider had a responsibility to provide services in a manner that
minimised the potential harm to, and optimised the quality of life
of, Ms A. Inherent in this responsibility was the need to ensure
that the staff employed to care for her were appropriately
supported. Specific to this case, it was the disability service
provider's responsibility to ensure that appropriate boundaries
were maintained between Ms A and Mr B.
Registered health care providers have a Code of Conduct to guide
them, and in most cases receive specific training both during and
after their graduate courses to help manage professional
boundaries. Mr B, however, was not such a provider and had received
no professional training. Therefore, in my opinion, a greater
responsibility for explaining and enforcing professional boundaries
lay with his employer than it would with a registered provider.
Although the disability service provider has policies that relate
to professional boundaries, it is also important that these
policies are understandable and enforced, and that staff do not
receive mixed messages about what is acceptable.
Employment
When Mr B commenced employment with the disability service
provider as Ms A's nominated carer, it was known to the disability
service provider that he was a very good friend of hers. However,
Ms E stated that she did not investigate the relationship any
further, as she believed that she did not have the right to do so.
In my view, the disability service provider should have established
the nature of the relationship between Mr B and Ms A before
employing him to be her caregiver.
Complaints
The disability service provider has a duty to facilitate the
fair, simple, speedy, and efficient resolution of complaints, in
accordance with Right 10(3) of the Code. In my opinion, the
disability service provider failed to react appropriately to
complaints made about Mr B.
On 27 February 2006, only a month after he had commenced
employment, a complaint was made to the disability service provider
alleging an "improper relationship" between Mr B and Ms A. Ms E
claimed that she passed this concern on to her manager, Ms I but,
apart from Ms E's claim, there is no other evidence that she took
this, or any other, action. There is no evidence that any
investigation or action was taken in response to this complaint. In
addition, Ms E's statement is contradicted by Mr G's evidence that
she did know of such a relationship, and Ms A's father's statement
that he was "100% certain" that he discussed it with Ms E.
For her part, Ms E stated that she did not know of an intimate
relationship between Mr B and Ms A. As Ms E knew of the "very good"
friendship that existed at the time of Mr B's employment, and that
a complaint had been made about an improper relationship, to
subsequently state that she did not know of an intimate
relationship is somewhat evasive. In late August 2006, Ms A's
family wrote to Ms E raising a number of serious complaints about
Mr B, including the use of illegal drugs. Ms E stated that she
passed on this complaint to another the disability service provider
manager, Ms J. Again, Ms E did not document her actions, and there
is no evidence of such a referral to her manager. Furthermore, the
disability service provider advised that Ms J was not employed by
the disability service provider at the time of the complaint.
In the course of this investigation, Ms E stated that she was
not aware that there was, or had been, an intimate relationship
between Ms A and Mr B. However, she did have knowledge of their
close friendship upon Mr B's employment, and of the allegations
about an "improper relationship" between Mr B and Ms A (in February
and September 2006). Furthermore, her statement is contradicted by
her colleague, Mr G, who said that Ms E told him that there was a
"romantic involvement", and Mr D was "100% certain" that he had
told Ms E that his daughter and Mr B had been in an intimate
relationship. I therefore find Ms E's evidence on this point to be
lacking in credibility.
Enforcement of standards
In September 2006, as a consequence of a complaint having been
made about his behaviour (by Ms A through her other caregiver), Mr
B was informed by a senior manager that it was acceptable for him
to drink with Ms A after his shift had ended. This was contrary to
disability service provider rules stating that "[c]lients are only
to be visited in accordance with [the] rostered work times". Ms H,
the disability service provider's Service Manager (who accompanied
Ms E during her interview with my staff) agreed that there was a
conflict between what Mr B was told he could do and what the
disability service provider rules stated.
Summary
Although I am concerned that an individual member of staff
appears to have failed to deal with concerns appropriately, as her
employer, the disability service provider must accept
responsibility for failing to ensure that there was a robust system
for ensuring that concerns raised are dealt with in an appropriate
manner.
Even though it was known that there was a "very good" friendship
between Ms A and her caregiver, the disability service provider
failed to examine the relationship before employing Mr B. This
important information should have been gathered. Had he been
employed after this examination, the disability service provider
should then have been more specific about what was considered
appropriate behaviour, and monitored the compliance. To compound
this lapse, complaints subsequently made about Mr B's behaviour
clearly indicated the need for the disability service provider to
investigate further, but no such investigation took place.
Bearing in mind a number of factors, the decision to allow Mr B
to drink out of hours with his client was contrary to the
disability service provider's own rules, condoned unprofessional
behaviour, and encouraged the blurring of boundaries. The
disability service provider's failure to ensure that professional
boundaries in the caregiver/consumer relationship were established
and maintained exposed consumers to potential harm. Although I have
not found that any exploitation occurred in this case, I am
concerned that the inadequate supervision of a caregiver increased
the probability of exploitation occurring.
Accordingly, the disability service provider breached Right 4(4)
of the Code, as it failed to ensure that Ms A was provided with
services that minimised the potential harm to, and optimised the
quality of life of, Ms A. As the disability service provider failed
to facilitate the fair, simple, speedy, and efficient resolution of
complaints made about Mr B, it also breached Right 10(3) of the
Code.
Other matters
Ms E
I am concerned about the evidence from Ms E. Although she has
stated in response to the provisional opinion that she passed on
concerns to a senior member of staff, there is no evidence, apart
from her own statement, to support this view.
Ms E also stated that she passed on to a senior member of staff
the complaint letter from Ms A's father, and that Mr B was
subsequently dismissed. I note, however, that in the documentation
of the disciplinary proceedings of the time, there is no reference
to Mr D's complaint, his allegation that illegal drugs were taken,
or mention of any previous complaint about an "improper
relationship".
Although I am concerned that an individual member of staff
appears to have failed to deal with concerns appropriately, as her
employer, the disability service provider must accept
responsibility for failing to ensure that there was a robust system
for ensuring that concerns raised are dealt with in an appropriate
manner. To the disability service provider's credit, I note that Ms
F has recently apologised in writing to Ms A's father for failing
to deal with the family's letter of complaint, and a review of the
disability service provider's employment processes is currently
being performed.
Subsequent actions by the disability service provider
The disability service provider has stated that it regrets "the
actions/decisions that led to Mr B being supported to behave in a
way that is contrary to our accepted standards". The disability
service provider has also set out in detail the actions that it
intends to take as a result of this case (see Appendix 1). Although
I am critical of the manner in which, at the time, the disability
service provider dealt with the concerns raised, I am satisfied
that it has reacted appropriately to this case, and is in the
process of strengthening systems to prevent a similar event
occurring.
Action taken
The disability service provider has stated that it regrets "the
actions/decisions that led to Mr B being supported to behave in a
way that is contrary to our accepted standards". The disability
service provider has also set out in detail the actions that it
intends to take as a result of this case (see Appendix 1). Although
I have been critical of the manner in which the disability service
provider, at the time, dealt with the concerns raised, I am
satisfied that it has reacted appropriately to this case, and is in
the process of strengthening systems to prevent a similar event
occurring.
Ms F has apologised in writing to Ms A's father for failing to
deal with the family's letter of complaint, and a review of
employment processes is currently being performed. Ms F has also
provided details of the actions to be taken by the disability
service provider as a result of this case:
"1.
I am concerned that there is
minimal documentation in client or staff records of the actions
taken by [Ms E] that she discussed in the interview with yourself.
This does not meet company policies, procedures or standards. I
also note that she claims to have been given information by, or
referred matters to former service managers who were not employed
by us at the dates given in the interview. I will ensure that an
investigation into these actions will be conducted of which
disciplinary action may result.
2. I
note that the issue of a client and staff member drinking alcohol
outside of work time was discussed. I wish to clarify that this
issue was discussed at the meeting I had with [Mr B] and [Ms A] on
11 September 2006. Whereas the company would not normally entertain
the notion of staff and clients drinking alcohol together either
during or outside of work hours, this situation is an anomaly.
Given that [Ms A] and [Mr B] had a previous friendship prior to
commencing service with us, hence him being her nominated support
worker, it was necessary to put in place boundaries regarding
appropriate behaviour and activity during work hours.
The complaint regarding the
relationship between [Mr B] and [Ms A] clearly highlights 2 risks
which the disability service provider needs to address. The first
relates to Professional Boundaries for staff. Since becoming aware
of this the company is already taking action. We are currently
writing an additional section to be included in our Orientation
booklet for Support Workers. We have also published an item on this
topic in the September issue of our national newsletter for support
workers. We also have a 2 hour training package under development
which will be compulsory for all new staff on commencement. This
will also be provided for existing staff.
The second risk relates to the
employment of 'nominated carers'. This term refers to those people
whom a client requests that we employ specifically to provide the
client's support. In response to this complaint we need to review
our employment practices related to this group in order to minimize
risk for clients and the company. I will undertake to discuss this
with our HR team to ensure this review is scheduled."
Recommendations
I recommend that the disability service provider:
Follow-up actions
- I will refer Mr B to the Director of Proceedings in accordance
with section 45(2)(f) of the Health and Disability Commissioner Act
1994 for the purpose of deciding whether any proceedings should be
taken.
- A copy of this report will be sent to the Ministry of
Health.
- A copy of this report with details identifying the parties
removed, except the name of the disability service provider, will
be sent to the New Zealand Home Health Association, and will be
placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational
purposes.
Addendum
The Director of Proceedings considered the matter and decided
not to issue any proceedings, taking into account the consumer's
wish that proceedings not be brought.
Appendix 1
[refer to pdf document to view image]
[1] During the period being
investigated, Mr G was a care coordinator for the disability
service provider.
[2] Charcot Marie Tooth Disease.
[3] Mr G was contacted to discuss the
details of Mr B's orientation. Mr G volunteered his knowledge of Mr
B's relationship with Ms A, and Ms E's knowledge, without any
prompting from the Investigator or mention of the issue being
investigated.