Today’s correspondent tells me that a state ambulance service is investigating complaints of ‘sexual assault’ by a manager. They ask:
At what point does the service have a responsibility to forward these complaints to police?
If a patient was to divulge a sexual assault police would be attached to the case immediately.
What are the responsibilities of the service to notify the Paramedicine Board/ AHPRA?
What are the responsibilities of his fellow managers and management supervisors who are aware of the current and historical claims of sexual misconduct and assault?
I think the first step is to get some language correct. The language will vary from jurisdiction to jurisdiction, but we should need to make some distinctions. I’ll use NSW law as my template.
In NSW ‘sexual assault’ replaced the old-fashioned offence of ‘rape’. Rape was old fashioned because only a man could be guilty of rape and only if he penetrated a woman’s vagina with his penis (Michael Eburn, Roderick Howie, Paul Sattler and Marissa Hood, Hayes and Eburn Criminal Law and Procedure in New South Wales (5th ed, 2016, Lexis/Nexis) p. 259). Anything else was not rape – so it was a very gendered offence with very limited application. Today the Crimes Act 1900 (NSW) s 61I creates the offence of Sexual assault when ‘Any person … has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse’. The reference to ‘any person’ means that the offence can be committed by anyone, regardless of their gender. And ‘sexual intercourse’ means (s 61HA):
(a) the penetration to any extent of the genitalia or anus of a person by–
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
Much more than penile/vagina penetration.
There are other offences where the conduct does not amount to sexual assault eg Sexual touching (s 61KC) and Sexual act (s 61KE). These offences replace the older offence of ‘indecent assault’ (s 61L, now repealed) which required an assault (touching without consent) that had a sexual connotation (Rv Harkin (1989) 38 A Crim R 296). And in employment law there is sexual harassment. The Australian Human Rights Commission says:
Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.
Examples of sexual harassment include:
- staring, leering or unwelcome touching
- suggestive comments or jokes
- unwanted invitations to go out on dates or requests for sex
- intrusive questions about a person’s private life or body
- unnecessary familiarity, such as deliberately brushing up against a person
- emailing pornography or rude jokes
- displaying images of a sexual nature around the workplace
- communicating content of a sexual nature through social media or text messages.
Whenever people, including the media, refer to a person and alleged ‘sexual assault’ I wonder whether they mean ‘sexual assault’ as defined by law (ie rape – forced sexual intercourse) or some other offence. And one can see that there may implications for today’s question. If there was an allegation that a member of staff had raped a number of female colleagues, the obligation to call police may be higher than if the obligation is that he told a number of ‘suggestive comments or jokes’. If what happened was touching – eg slapping someone on the buttocks or grabbing a breast that would be ‘sexual touching’. No doubt a serious offence (it carries a maximum penalty of 5 years imprisonment) and certainly more serious if done to many people in a subordinate position, but not ‘sexual assault’ (which carries a maximum penalty of 14 years imprisonment).
My correspondent has used the term ‘sexual assault’ but I wonder whether that is the correct legal term.
Regardless of that we can look at some general rules.
Report to police
First, the Crimes Act 1900 (NSW) s 316 says:
316 CONCEALING SERIOUS INDICTABLE OFFENCE
(1) An adult–
(a) who knows or believes that a serious indictable offence has been committed by another person, and
(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and
(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,
is guilty of an offence.
(1A) For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority if–
(a) the information relates to a sexual offence or a domestic violence offence against a person (the “alleged victim”), and
(b) the alleged victim was an adult at the time the information was obtained by the person, and
(c) the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.
A serious indictable offence is an offence punishable by ‘imprisonment for life or for a term of 5 years or more’ (s 4). Sexual assault and sexual touching would both be a ‘serious indictable offence’
I will assume that everyone involved is an adult. So the first part of the answer is that there is no obligation to report it to the police if the victim does not want the matter reported to police. And there may be many good reasons why a person may make a complaint to their employer but would not want the matter referred to police. That provision would (or should) apply whether the person making the complaint is a patient or colleague.
It would also be a reasonable excuse if the person, in this case in their capacity as employer, is conducting an investigation to determine if they are satisfied that they ‘know’ or ‘believe’ that a serious indictable offence has been committed and that have ‘information that might be of material assistance in securing the apprehension of the offender’. The receipt of the complaint would not be sufficient to establish that the employer either ‘knew’ or ‘believed’ these things to be true so an investigation may be warranted. It is the outcome of the investigation that will identify what the employer ‘knows’ or ‘believes’.
Report to AHPRA
With respect to the Paramedicine Board/Council/AHPRA, the Health Practitioner Regulation National Law s 140 says (emphasis added):
“notifiable conduct”, in relation to a registered health practitioner, means–
(a) practising the practitioner’s profession while intoxicated by alcohol or drugs; or
(b) engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or
(c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or
(d) placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.
Sexual misconduct is not defined but would include any of the offences in the Crimes Act discussed above, and no doubt much more.
A paramedic who is aware that another paramedic has engaged in notifiable conduct must report that second paramedic to AHPRA. An employer must also notify AHPRA if they believe that an employee has engaged in notifiable conduct (s 142). If a patient were to engage in ‘sexual misconduct’ with respect to a patient that would be notifiable (s 140(b)). If the behaviour was directed to a colleague, one might argue that is not conduct ‘in connection with the practice of their profession’.
AHPRA and the various boards define practice as (emphasis added):
… any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. For the purpose of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.
A person working in management supervising other paramedics and who abuses that position to engage in ‘sexual misconduct’ would probably be held to be acting ‘in connection with the practice of the practitioner’s profession’.
It follows that there is an obligation to report the person to AHPRA when another paramedic or the employer is satisfied that they have a ‘reasonable belief that’ the person the subject of the complaint engage in ‘sexual misconduct’ (not defined) toward either a patient or a colleague.
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (George v Rockett [1990] HCA 26, [14]).
In other words, a ‘reasonable belief’ does not require the person to be satisfied either beyond reasonable doubt or on the balance of probabilities, but they would have to be satisfied that they think the allegation is true.
In Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 (discussed in the post Paramedic suspended for sexual misconduct directed to a patient (August 22, 2022)) the Civil and Administrative Tribunal gave this history:
On 7 April 2020 the practitioner and another officer (the second officer), a Level 1, Training Ambulance Officer, attended a call to a home on the central coast of NSW … We will refer to the patient, as identified in the complaint, as Patient A.
On her arrival at Gosford Hospital, Patient A made a complaint about the practitioner to the doctor on duty in the Emergency Department.
On 7 April 2020, following an interview with Patient A at Gosford Hospital by Mr J Mattson, Inspector NSW Ambulance, an interview was conducted with the practitioner. Following the interview, the practitioner was advised that he was suspended from duty.
On 17 April 2020 Mr T Cheung, Senior Investigations Officer, NSW Ambulance interviewed Patient A. In her interview Patient A repeated her allegations of misconduct by the practitioner. We set out the patient’s allegations later in these reasons under the heading “The patient complaint”.
On 6 May 2020 the practitioner was interviewed by Mr Cheung and Ms Natalie Dobie. The interview was recorded, and a transcript of the interview is relied on by the HCCC.
On 2 September 2020 Dr Dominic Morgan, ASM, Chief Executive of NSW Ambulance notified the Australian Health Practitioner Regulation Agency (AHPRA) that it had received a complaint about the practitioner’s conduct.
One can see that it took from 7 April to 2 September (approximately 5 months) for the decision to be made to refer to matter to AHPRA and during this time the ambulance service conducted an investigation no doubt to determine what the evidence established and to allow the Chief Executive Officer to decide what he ‘believed’.
… fellow managers and management supervisors …
The responsibility to report notifiable conduct falls on all registered health professionals so if the ‘fellow managers and management supervisors’ are also paramedics, then they have a duty to report (s 140) but just being aware that a complaint has been made would not be sufficient to give rise to the belief required by ss 141 and 142.
A paramedic is not required to notify AHPRA if they know, or reasonably believe, that ‘the National Agency has been notified of the notifiable conduct’ (s 141(4)(e)).
In their role as managers within the service, the obligation to report falls on ‘the employer’. In a large organisation not everyone represents the ‘employer’ so the managers and management supervisors may have an obligation to raise the concerns up the chain of authority so that the person who is the face of the employer (and in the case of Health Care Complaints Commission v McAlpine it was the Chief Executive) can make the complaint.
Again, merely knowing of the complaint is not sufficient. It cannot be the case that someone has to report to AHPRA because they have heard that a complaint has been made, or that an investigation is occurring. That would not give sufficient grounds to believe that the conduct occurred or that the person making the complaint has relevant information about the complaint. If that were not the case AHPRA would expect to receive a notification from everyone who hears ‘on the grapevine’ about a complaint.
Conclusion
There is no obligation to report a complaint to police if the adult complainant does not want the matter reported to police. In any event a complaint does not have to be referred to police just because it has been made. The obligation arises when the person is satisfied to the extent that they can say they ‘know’ or ‘believe’ ‘that a serious indictable offence has been committed’ and that they have ‘information that might be of material assistance in … the prosecution or conviction of the offender’. Those facts might, depending on the circumstances, only be determined after an appropriate internal investigation.
With respect to AHPRA a health professional (including a paramedic) and a paramedic’s employer are both obliged to report a belief that a paramedic has engaged ‘in sexual misconduct in connection with the practice of the practitioner’s profession’. Merely knowing that a complaint has been made would not be sufficient to establish that belief. Again, it may, depending on the circumstances, require an appropriate inquiry to determine whether another paramedic or the employer has the necessary belief.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 