13 The consequences lottery
THROUGHOUT THIS BOOK, multiple reasons have been
offered for the legal immunity of human service actors from legal action,
from a practical and a legal standpoint. However, these overviews of legal
cases and commentaries on complaints and investigation bodies provoke a
nagging question – why did one situation or actor provoke a legal action
or external complaint, while another that was similar or even worse did
not? It is something of a mystery why law has a prominent place following
only some adverse human services events. This question warrants attention
because it accentuates the contextual factors that are so critical in determining the outcomes of unlawful or other suboptimal performance. It also
challenges the simplistic notion (often held by human service actors) that
legal risk derives only from law breaking. In fact, legal risk depends on the
types of legal breaches or performance failures, when, how and under what
circumstances they occur, and who is involved.
The discussion on barriers to legal action in earlier chapters introduced
the idea that breaches of law are not synonymous with legal consequences.
The material on complaints and investigation bodies exposed the flip side
of this proposition, which is that scrutiny and legally based consequences
can flow from behaviour that is not technically unlawful. This appositely
numbered Chapter 13 thus briefly examines the conjunction of forces that
bring some but not all unlawful or unsatisfactory human service activity
to public attention (and perhaps to law courts) while other often more
troubling events fail to germinate.
Only a minority of human service actors is ever confronted by a direct
legal challenge. A few more will be exposed in criminal and civil actions
against others when behaviour and practices within their field or organisation are examined. Many more will face the scrutiny of inquiries, and
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250 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
investigation and complaints bodies. Although all human service actors
will at some time or other be confronted by grievances that are dealt with
informally in the relationship or with varying degrees of formality within
an organisation, these events are not the focus of attention in the present
chapter.
In this chapter, a series of fictitious human services scenarios set the
scene for an exploration of the forces that may attract and sustain legal
attention.
ILLUSTRATING ADVERSE HUMAN
SERVICE EVENTS AND CONSEQUENCES
The following scenarios describe human service events in the areas of aged
care, disability support, private practice, and youth and mental health
services.
SCENARIO – SERGE AND AGED CARE
Serge is one of four support workers in an ageing-in-place program, auspiced by a non-government organisation funded through a joint Commonwealth/state arrangement. He has a case load of approximately 20 elderly
clients, mostly female, who live alone, and are socially isolated and frail –
some have symptoms of early dementia. Serge is responsible for developing
and implementing service case plans with each of these clients. He monitors and manages arrangements for clients’ home cleaning, maintenance,
gardening, health, meals and social connectivity. The program is innovative, has enhanced the profile of the host organisation and is smiled upon
by the state and Commonwealth public servants who manage the funding
contract. Early evaluation data indicate that clients in the program have
lower hospital and nursing home admission rates than a comparative control group. The other support workers and supervisor are enthusiastic and
committed, but younger and inexperienced. Serge, as the oldest member
of the team and the only man, is a charismatic peer leader.
Serge spends a considerable amount of time in the homes of his clients.
He is, in turns, affectionate, humorous, helpful, seductive and demanding
with his clients, and they are both appreciative of and intimidated by him.
He has initiated sexual activity with several clients and inappropriately
touched others.None of the clients has suffered personal physical injury and
there is no available evidence that any of them has developed a psychiatric
illness as a result of his behaviour. He has also taken a number of small but
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THE CONSEQUENCES LOTTERY 251
valuable items from several of the clients’ homes. His clients are privately
confused, troubled, embarrassed and frightened. Several think that they
either caused or misconstrued his sexual behaviour. Most believe that they
misplaced the missing objects. All are terrified of losing their independence
at home, and none could bear the indignity of public exposure of the sexual
conduct. Nothing is said by any client to anyone about Serge’s behaviour.
Neither Serge’s coworkers nor his supervisor are aware or suspicious of his
improper behaviour.
SCENARIO – THE E TEAM
IN DISABILITY SUPPORT
Ed, Elanta, Ely and Enver, are case workers in a government disability
support service team. All are solid and respected workers with considerable
experience. Ed has been engaging recently in sexually explicit chat with very
young girls on the web, although he has never attempted to make direct
contact with them. He sends annotated photos of the girls via his work email
to his three colleagues. The group members email the photos back and forth
to each other with humorous commentary. Another coworker accidentally
stumbles on the email traffic and reports it to the team leader who takes no
action. The coworker then reports it to the manager. When again nothing
happens, the coworker approaches the director of the organisation. An
internal investigation is instigated and the conduct of the E team, the team
leader and the manager is held to be in breach of employer policies. Ed is
charged by the police and suspended by his employer. His coworkers are
disciplined. The team leader and manager undergo performance appraisal
processes, during which time-limited performance goals arising from their
inaction are negotiated.
SCENARIO – CHERRIE
IN PRIVATE PRACTICE
Cherrie is a social worker running a counselling and psychotherapy practice
specialising in women with relationship difficulties. Before setting up her
sole practice, Cherrie worked in a variety of human service jobs in the
public and non-government sectors. On the whole, she found her peers and
managers, in particular, to be unsympathetic, judgemental and unethical.
Most did not share her attitudes about human rights, advocacy, and the
high priority necessarily accorded self-care in the workplace. She believed
that social work values were not reflected in the uncaring, funding-driven
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252 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
cultures of the agencies. During this period, Cherrie had a number of
relationship breakdowns, experienced considerable personal stress and had
health problems.
Employers in Cherrie’s view were unwilling to accommodate her needs.
Cherrie believes that in private practice she is at last working ethically
and advocating for clients. Some clients have required firm feedback and
have since left her practice, others have resisted her efforts to help, but
the small group of clients that remains is responsive, compliant and grateful. This group of women depends on her for emotional support, as she
depends on them. Cherrie often makes contact with the partners of timid
clients and demands changes necessary in the interests of their relationships. She is also willing to advocate with clients’ employers on their behalf,
if given permission by the client. Through her contacts with clients, her
negative views of a number of other service providers have been confirmed,
and she insures that prospective and future clients are informed about the
shortcomings of these services.
SCENARIO – STREETCARE
YOUTH SERVICE
StreetCare is a non-government, secular, state-funded youth service, which
operates a shelter and outreach support services. At any one time there may
be up to 10 young people between 12 and 18 years of age in the shelter
and 20 more in supported independent accommodation. The service has
been in operation for two years and is staffed mostly by recent graduates.
There have been four managers since the service opened and the current
acting manager has been in the job for three months. A committee of
management has responsibility for corporate governance of the service. It
is chaired by a medical practitioner and comprises a public health academic,
two business people, an Indigenous person and a retired teacher. A state
project officer is responsible for liaison with the service and oversight of
the implementation of the funding contract. There have been three such
officers since the service started and the current occupant of the position
has been seconded, without replacement, to work in another department
for some weeks.
The committee and all employed staff have been and continue to be
enthusiastic about the work of the service, which is committed to assisting the most disadvantaged young people. Young men and women with
extremely traumatic histories of abuse and neglect, many of them with
mental health problems, are welcomed into the service. Life in the shelter
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THE CONSEQUENCES LOTTERY 253
is lively and exciting for both staff and residents. Drug use by clients is an
ongoing problem and there have been many violent incidents, but serious
injuries have not occurred. There have also been a number of sexual assaults
by residents on other residents. One resident slashed his throat in the early
days of the service and there was a bloody standoff between him and staff
with other residents looking on. He survived. One girl in independent living overdosed and died, and a number of other young women in the service
are subject to the attentions of a bikie gang, which has sent representatives
to the shelter to threaten staff. The police are called to the shelter quite
regularly. There are ongoing problems with neighbours of both the shelter
and the independent living houses, who complain about noise, rubbish and
intimidation. There have been several angry public interchanges between
staff, residents and neighbours. There is no evaluative data available for the
service, but the staff and management committee are united in their view
that the service is essential and assisting the young people who have no
other options.
SCENARIO – EAST WEST MENTAL HEALTH
SERVICE AND JONAH
East West Mental Health is a state government body responsible for providing a full range of mental health services in a large region. Jonah has
extensive experience as a mental health social worker. He, like many of the
staff, was relocated four years ago from a psychiatric hospital into community offices, and his job designation changed to case manager. Jonah
and most of his professional colleagues resent their loss of professional title
and see case management as old work relabelled under a new name. He
is also not alone in believing that community care poses safety risks for
professional staff, or in resenting increased case loads of patients with very
complex needs. He has a case load of 73 patients.
Jobb is a client of Jonah’s. He is 26 and has been in and out of mental
health services and jail for eight years. He has had multiple short hospital
admissions, many case workers and involvement with several psychiatric
services over the years. He self harms, resists medication, uses illegal drugs
and is often confused and non-communicative, and can be explosive when
others invade his space. His parents are very supportive and have constantly
sought psychiatric assistance for him. He has been living with them since
they found him in a squat one month ago. Jonah has been on stress leave
for most of this period.
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254 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
Over the last month, a series of disturbances in Jobb’s house make
his parents fearful for their safety and that of a grandson who also lives
with them. The East West crisis team responds to the last and serious
incident, and decides against seeking involuntary admission for Jobb. In
the absence of any other option for Jobb, the team places him temporarily
in a boarding house. This is a noisy, crowded place where Jobb is harassed
by other residents. Jonah returns from leave, but does not have time to
visit Jobb although Jobb’s parents phone several times to express concerns
about their son’s well being. Jobb is continually teased and bullied in the
boarding house. He kills another resident in a violent outburst and is
charged with murder. There is negative commentary in the press about the
murder and mental health services. The family of the man who was killed
is stridently outspoken about people like Jobb being allowed to live in the
community. Jonah is more convinced than ever about the problems in his
working environment. Jobb’s parents are grief stricken and unhappy about
the mental health services they and their son received.
LEGAL AND OTHER SIGNIFICANT
CONSEQUENCES
The first question to ask about the workers, agencies and systems in these
scenarios is whether or not their conduct or service is questionable, substandard or unlawful. Some tentative conclusions are possible on the limited
information available. A follow-up question concerns the likelihood of
legal responses.
In relation to the E team, the ages of the young girls or the damage
that they might have suffered as a result of the email conversations are
not known. Nonetheless, the conduct of the E team has been defined
internally as unsatisfactory by the reporting coworker, the director and an
investigation. This seems consistent with contemporary views about ethical
and lawful professional practice in the human services. The state has taken
criminal action against Ed, indicating that the law has been broken. The
employer has taken disciplinary action against all members of the E team
and set performance expectations for the team leader and manager. This
all seems relatively straightforward.
In contrast, Serge appears to be engaged in criminal, unethical and
substandard professional behaviour though his sexual activities and thefts.
He has not been charged with any crime and charges are unlikely. On
the face of it, disciplinary consequences also seem improbable. His clients
are not going to bear witness against him. They are likely to die before
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THE CONSEQUENCES LOTTERY 255
revealing anything of his conduct, unlike victims of flawed child protection
systems who may pursue legal action many years later in adulthood. It is
also possible that the ageing-in-home program is in breach of its duty of
care to its clients, and that trespass to the person has occurred, but there
are no promising litigants.
What of the funding contract between the program and the state and
Commonwealth governments? Does it contain express or implied terms
about service standards, inclusive of supervision and staff performance
indicia, and have these been breached? If they have, the contractual parties
are not aware of it, but the data about the service on the public record
is positive. If the clients are isolated, there are few family and friends
who might be monitoring their wellbeing. Serge seems relatively safe from
consequences, yet it can be argued that his conduct is more reprehensible
than that of Ed and his coworkers.
It appears that well-meaning Cherrie fosters dependency in her clients
and treads clumsily in their lives. Although her attitudes and behaviour may
not be unusual in social work, they are inconsistent with ethical imperatives
(DeJulio and Berkman 2003). Her conduct ignores all of Reamer’s (2001;
2003b) warnings against dual relationships and inappropriate treatment,
and also those of Barsky and Gould (2002) against blurring clinician and
conflict resolution roles. Do her clients have a private cause of action?
Possibly, but they have to overcome the obstacle of causation and prove
psychiatric illness, or loss of employment or some other economic damage.
The clients’ partners may also argue that they have suffered damage as
a result of her meddling, but they have to prove that she owed them a
duty of care. It is possible that Cherrie defames other service providers,
but they perhaps do not know this – even if they do, they may lack the
resources or the inclination to pursue action. Clients or their partners may
find their way to the office of a complaints commissioner who may or
may not have jurisdiction over unregistered private practitioners. If the
commission does have jurisdiction, Cherrie may be asked to participate
in conciliation of a complaint, she may be named by the commission and
have her practice rights limited if she lives in New South Wales. Cherrie’s
business will probably never really flourish and that is perhaps the most
likely outcome for her.
What of StreetCare, where good intentions prevail? It provides an unsafe,
unstable and violent living environment for its young clients. Care is being
delivered by workers who probably do not have the necessary specialist
program management and intervention expertise and skills. Depth in governance, youth program management and evaluation skills and expertise
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256 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
are also not obviously apparent in the management committee. However,
the program is operated with enthusiasm and goodwill such that clients and
the funding body may have little awareness of the potential for iatrogenic
damage. The character and standard of the care is not unusual in alternative
care practice today. Kiraly (2002) has detailed the blunt, discontinuous,
disruptive, often humiliating and non-protective out-of-home care that is
commonly currently experienced by children and particularly young people in Australia. She refers to this as the ‘malpractice of our times’ (p. 11).
Unlike previous institutional regimes, where punishment, deprivation and
other physical indignities were consciously inflicted upon residents, this
newer type of ‘malpractice’ arises from a benign but fragmented, inexpert,
careless and discriminatory approach to care. However common care of
this kind may be, it is contrary to promulgated standards of quality care for
children and young people in alternative care (eg Gilbertson and Barber
2004; Lonne and Thomson 2005).
It is likely that the young people in StreetCare are owed a duty of care
by the service. A breach may be demonstrable, although the unsatisfactory
conduct is more in the nature of omission than commission. Proving
that the young people have injury caused by any breaches will be more
difficult. Interesting questions are raised about the accountability and legal
liability of the government department that continues to fund such a service
without evaluative data, and to monitor it indifferently. In addition, there
is also a question hanging over the contracting and contract management
procedures – is the conduct of the service substandard in terms of the
funding agreement with government?
All that said, the young people in StreetCare have experienced a disordered and risky life before entering the service and they can probably look
forward to more of the same after they leave. They are not well placed
to be initiating legal action of any kind, even if they become aware that
they are experiencing a substandard service. The government department
is unlikely to take legal action that would expose its poor contracting
and client placement processes, and close an essential service. Some of the
young people might consider their legal options later in life, but at that
point, StreetCare will be one of the many agencies that litter their life
histories – it may have disappeared by then, leaving no continuing corporate body to be sued. If the young people are state wards, the government
will be the most likely legal target. StreetCare may become one of the
subjects of an inquiry about youth homelessness or young people in care,
but something will have to trigger this action. However, it is likely that
neighbours will make complaints about noise and rubbish to whomever
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THE CONSEQUENCES LOTTERY 257
will listen, which could well be the media or a member of parliament. If
either of these become involved, the service could expect uncomfortable
exposure and its future might be in jeopardy for political rather than legal
reasons.
Jonah and East West Mental Health Service, like StreetCare, may not
have done anything out of the ordinary. Their story does not seem unusual
and Jobb’s tragedy is of a type that regularly and briefly flares in the
media. However, the service provided to Jobb by a disaffected case manager and a fragmented service system falls far short of the integrated, proactive, holistic and tailored services detailed in case management text books
(eg Moxley 1997; Gursansky et al. 2003). Jonah, or more likely the East
West Mental Health Service, could possibly face action for negligence from
Jobb or his family, or the family of the killed resident. If such an action is
contemplated, much will hang on the interpretation of the relevant mental
health legislation, on how the service to Jobb is evaluated by peers in that
area of practice, and by the wording of the relevant civil liability legislation
in relation to public authorities.
However, it is known from the appeal case of Hunter Area Health
Services v Presland on somewhat similar facts, but perhaps different legislation, that a negligence claim by Jobb at least against the service might
be unsustainable. In the Walker v Sydney West Area Health Service [2007]
NSWSC 526 case, the standard of mental health care experienced by the
suicidal young man was found to conform to widely accepted peer professional practice. Even though there was some expert evidence to the
contrary, the client and his parents are reported in this case to have found
it unresponsive and unhelpful.
Clever lawyers may be able to circumvent Presland in respect of the state.
In fact, that case may have been decided differently in Victoria (Freckelton
2008b). It is unlikely, but possible, that the boarding house could be a legal
target if it has pockets deep enough to make this worthwhile. Even if the
substantive law obstacles could be overcome, other practical and personal
barriers to legal action remain. As with StreetCare, wider inquiries, media
interest and complaints bodies may be activated here, depending on the
fortitude and tenacity of Jobb’s family and that of the killed resident.
Government mental health services such as East West and workers such as
Jonah generally continue onwards in the same or similar form, regardless
of scrutiny. All in all, most of the living ‘victims’ in the StreetCare and East
West scenarios are probably preoccupied with their private griefs, tragedies
and vulnerabilities, which may or may not have been compounded or
caused by human service activity.
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258 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
Thus, although the E team members face the most direct legal challenge
for their inappropriate behaviour, it is arguably less harmful than some
of the other conduct outlined in the scenarios, and probably less serious
criminally than Serge’s. The question thus becomes not why consequences
are absent but why legal action, serious scrutiny and consequences do occur
on occasions.
GENESIS OF INVESTIGATIONS
AND LEGAL ACTIONS
Given the numerous obstacles, what circumstances or conditions might
foster serious scrutiny or a legal action? Through anatomising social welfare scandals in the United Kingdom, Butler and Drakeford (2005) have
theorised why some social welfare events become major scandals and others
with similar characteristics remained concealed. Scandals and legal action
are not synonymous, but their analytical framework can be applied and
adapted here on a much smaller scale, to throw light on why some situations result in a legal or related action and others do not. The circumstances
that produce a scandal have some parallels and are entwined with circumstances that activate a legal action. Scandals themselves commonly result in
legal action against individuals and agencies. In some circumstances, legal
action may trigger a scandal. In the Butler and Drakeford analysis, events
only become scandals on exposure and when certain conditions give them
meaning beyond the circumstances of the event itself. Similarly, events only
have legal consequences when conditions prompt their scrutiny through a
legal lens.
Butler and Drakeford (2005) contend that the raw materials of social
welfare scandals are routine and often mundane events occurring in ‘messy’
(p. 222) environments where some level of risk and drama is the norm.
These ordinary events are then converted into extraordinary phenomena
through a process of social, political and professional construction. A scandal has three elements:
it is unanticipated by the actors
conduct that may have been accepted as unremarkable over time is
exposed or ‘discovered’
disapproval follows exposure.
Disapproval is a contested process wherein the voices of the various actors
compete for dominance in making sense of the gravity of wrongs, how they
arose and who should take responsibility for them. Butler and Drakeford
(2005) argue that many potential scandals lose momentum, if control of
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THE CONSEQUENCES LOTTERY 259
the story remains local and is constructed as one of individual aberration.
‘Bad apples’ have a place in these circumstances, but relatively blameless
workers can also be targeted legally for behaviour that was either endemic or
contributed to by others (Merry and McCall-Smith 2004). At this juncture,
individual actors – ‘bad apples’ in fact or in designation – commonly face
internal discipline or legal action, and a more generic public clamour may
be contained or averted. For instance, when baby P was tortured to death in
the United Kingdom in 2008 and his mother’s boyfriend convicted for the
killing, the director of the local social services is reported to have become
the focus of media attention and to have been sacked because the council
needed to be seen to be taking action (Campbell 2008). Whether or not
this action prevents yet another incipient child protection scandal remains
to be seen. Without commenting on the blameworthiness of the director,
as the details of her conduct are unknown, it is impossible to imagine
any complex child protection situation that does not involve many actors
across various service levels, in combined multiple efforts to find the finest
of balances between family integrity and child safety.
Beyond these three elements, three additional sets of factors operate for
or against the emergence of a scandal – claims and counter claims-makers,
timing and the policy context.
Claims-makers and counter claims-makers proclaim and resist discovery and disapproval, respectively. Butler and Drakeford (2005, using Best’s
[1990] classification) identify primary, secondary and tertiary claimsmakers. Primary claims-makers are determined individuals, advocacy
groups and others, generally outside of the suspect service system, who have
not been colonised by its prevailing practices and explanations. Secondary
claims makers are the mass media. Leaks to the press are not uncommon
in the human services, particularly when there is organisational resistance
to claims. Press attention is feared and fearful for most human service
actors, as they commonly experience portrayals of human service activity
as biased, unsympathetic and stereotypical (Brawley 1995; Mendes 2001) –
in their view, it panders to the ‘public’s desire for omnicompetence on the
part of central and local authorities’ (Webb 2006 p. 1). Various commentators have shown how the media can set the agenda and influence, in
the short term at least, polices and practices in relation to child protection
(eg Franklin and Parton 1991; Mendes 2001). In the SB case, reference is
made to SB’s father’s threats to go to the press about her abuse in foster
care (at para 348) if contact with her was refused him. One can speculate
how these threats might have undermined already strained and besieged
departmental staff.
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260 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
Tertiary claims-makers are the audience of the first two claims-makers.
According to Butler and Drakeford (2005), this wide audience, inclusive of
the ‘public’, other media and politicians (if they are not the current target of
disapproval), is ambivalent about social welfare institutions, and receptive
to stories that are emblematic of failures and that hint at even greater
hidden horrors. This audience demands perfection of social welfare activity,
while maintaining an underlying mistrust of it. Thus, any malfunction
is immediately recognisable to the audience and perceived as a failure
of human service actors alone. Counter-claims makers are those, often
in positions of power (eg government ministers), who resist, deny and
mystify the existence or explanation of scandal events, particularly during
the discovery and disapproval processes.
Second, timing is important in the aetiology of a scandal. Embryonic
scandals may thrive or wither, depending on the receptivity of an audience
at any point in time. Events that can be portrayed or inflated as particularly
disturbing or discordant attract attention, but audiences eventually suffer
‘scandal fatigue’ and saturation. Thus, if they have been exposed to too
many terrible events in, say, child protection or mental health, they become
jaded and lose interest. Similarly, if they are absorbed by the awfulness of
events in one arena they may have little appetite for those in another area
at that time.
Third, there are contextual policy factors that can nurture or stunt scandal development. These are the ‘policy background, the political climate
and the resources available to individuals and institutions’ (Butler and
Drakeford 2005 p. 233). The characteristics of these factors at any time
will shape both the growth and explanation of a scandal.
At the risk of caricaturing Butler and Drakeford’s (2005) elegant analysis,
in brief, relatively commonplace events become extraordinary because they
are discovered and cultivated by actors when there is fertile ground and a
greedy market. A set of interests need to coincide in the making of a
scandal. How might this explication of scandal making contribute to an
understanding of which human service actors are sued, charged or investigated?
To begin with, it can be assumed that most human service actors go
about their business doing what they normally do, not thinking of legal
action or hoping that it will not happen. Then unexpectedly, some of their
possibly commonplace actions are noticed and disapproval is voiced –
discovery occurs. Once the condemning voice predominates, there is an
impetus for some sort of response. If the exposure and disapproval are
provoked by or occur in a receptive or sensitive policy and political context,
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THE CONSEQUENCES LOTTERY 261
if the negative claims-makers stand firm, and if those who would respond
legally are sufficiently well resourced, the conditions for a legal challenge
are established.
Depending on the policies and supervisory processes of the organisation,
discovery may be a matter of serendipity or predictable. The exposed
conduct or events may be so public or outrageous that exposure and
disapproval is unavoidable. They may be relatively ordinary, but occurring
at a time of particular sensitivity in the organisation or sector. They may be
a substitute for other conduct that is more disapproved of, but elusive. They
may be observed or come to the attention of vigilant claims-makers who
prosecute vigorously. The last three of these factors are possibly implicated
in the unfair dismissal appeal of Re J Ashley AIRC (unreported, Ross VP,
O’Callaghan, SDP and Cribb, Commr 7 July 2005). In this case, the
appellant, who in the instant case worked for Statewide Autistic Services
Inc (SASI) in Victoria, had been the subject of unsubstantiated allegations
of sexual activity with clients in previous employment. A member of the
public saw the appellant in a park with autistic children and reported this
to the Victorian Department for Human Services. Later, an anonymous
telephone call about the appellant was made to SASI. Another telephone
call from a different agency expressed concern about him, and set in train
the dismissal that led to this case. It would appear that a number of claimsmakers had an interest in the worker’s human service employment history,
and in curtailing his current and future prospects. His appearance in public
with clients gave claims-makers the opportunity for voicing their concerns
far beyond the walk in the park. The significance of whistleblowers more
generally in exposing and influencing the disapproval negotiations is well
known and detailed elsewhere (for the human services, see De Maria 1996;
Hunt 1998; Els and Dehn 2001).
In Chapter 3, a number of criminal cases were outlined wherein human
service workers were charged following relatively recent and inappropriate
conduct. These workers were ostensibly ‘bad apples’ who were offered up
to the criminal law, most likely through the activities of claims-makers
within the organisations concerned. Possibly this occurred with impetus
from or fear of an alert media. No major scandal ensued and it is assumed
that the status quo of the organisations was not destabilised significantly.
There are now alert and active advocacy groups – for example, National
Welfare Rights Network (NWRN), Care Leavers Australia Network
(CLAN), Creating Opportunities for Children and Young People in Care
(CREATE) – and committed individuals and community and specialist
legal services, operating as claims-makers in many human service-related
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262 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
areas. For example, NWRN claims (AAP 2007c) that it had an influence
on the Commonwealth Ombudsman’s decision to set up an enquiry into
Centrelink’s implementation of welfare to work reforms (Commonwealth
Ombudsman 2007). CLAN claims that its lobbying had a role in the establishment of the Australian Senate Inquiry into Children in Institutional
Care (Penglase 2004).
These groups and individuals have resources to encourage and support those with grievances against human services actors. The media has
attended to these claims and some have caught the public imagination
(eg Daniel Valerio, Shelley Ward, Cornelia Rau) – the audience has had a
momentary appetite for the details of the stories. Committees of inquiry
have been established and have made recommendations. Sometimes fullblown scandals have developed. In this environment, legal actions against
individuals and organisations are to be expected.
Targets of legal action will be chosen partly for reasons of legal strategy
and partly because of the profile awarded them by exposure and disapproval.
Daniel’s (1998) examination of scapegoats in law and medicine may also
have something to offer by way of explanation here. The professions she
studied are more homogeneous than the human services and her analysis
must be applied with caution, but it is possible that some individual human
service actors ‘stand for’ the agency or for a wider group of workers. This
can ‘identify them with the troubles, lay the evils upon them, and publicly
punish and expel them along with all the evils now become theirs to bear’
(Daniel 1998 p. 163). This process serves to cleanse the professional group,
or in the case of the human services, the organisation or field of practice of
the ‘infection’.
Contextual factors identified by Butler and Drakeford (2005) are likely
to be influential in determining if individual workers become the subject
of legal action, in the presence or absence of a scandal. Resources and
staffing quality and quantity in an agency or service system, along with
procedural and supervisory structures, will affect the discovery of and
response to unsatisfactory performance. The culture and norms within
the field of practice will colour the outcomes of disapproval negotiations.
In addition, conduct or events that occur at times of particular political
and or organisational policy sensitivity are likely to result in unanimous
internal disapproval and a more attentive police response if criminality is
alleged. The same conduct at a different time might remain undiscovered
or contested if exposed. Beatings, if not the sexual abuse, that happened
in some of the children’s homes cases during the 1960s and earlier were
the norm at the time. As a result of policy and practice changes, largely
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THE CONSEQUENCES LOTTERY 263
brought about by scandals and kept alive by continuing tragedies, most
organisations these days will react more actively to such behaviour when it
occurs. It is unlikely that the walk in the park in the Ashley case would have
attracted attention in 1960 or resulted in employer action. The definitions
and responses to misdeeds and mishaps is largely a matter of the moment
in history. Some human service actors time their unsatisfactory behaviour
well in terms of the unlikelihood of detection and action; others evidence
a poor sense of timing and are relatively unlucky.
THE SCENARIOS REVISITED
How might the Butler and Drakeford (2005) explication of scandal gestation help explain what happens to Serge, the E team, Cherrie, StreetCare
and the East West Mental Health Service? The following hypotheses are
offered.
In the Serge situation, discovery and disapproval are unlikely – there are
no primary claims-makers to declaim his misdeeds. In terms of the policy
and political context, ageing-in-place is currently the favoured approach
in aged care. Serge’s program will be viewed positively by policy makers
and funders who would not anticipate or be susceptible to clues about
his behaviour. Nursing homes are currently perceived by secondary and
tertiary-claims makers as the risky face of aged care, and in-home care
has a low profile. In relation to resources, the program lacks supervisory
depth and staff experience. Thus, coworkers are perhaps not attuned to
cues about Serge’s activities – these no doubt exist and might be visible to
more seasoned managers and peers. In contrast, Serge appears to be well
endowed with interpersonal and experience resources. The clients have
few resources that can threaten Serge. They are socially isolated and frail,
and some have neurological deterioration. Ironically, their other positive
personal resources serve Serge’s ends; they are private, discreet, resilient and
tenaciously protective of their independence.
The E team and Ed in particular are engaged in the type of conduct
that primary and tertiary claims-makers are familiar with and anticipate.
The conduct has occurred in a policy and political context in which child
pornography and related internet activities are receiving considerable attention, and criminal law is being amended accordingly. They are discovered
and disapproval prevails because the coworker whistleblower is a more
forceful and active primary claims-maker than the team leader or manager.
This is a public service agency, so it is likely to be relatively well resourced
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264 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
in terms of human resource and email policies and procedures, and codes
of conduct for employees.
What is there to discover in relation to Cherrie’s private practice? Her
practices are no doubt acceptable in her own view and in the view of the
remaining clients. If there is damage to clients, it is unseen and not easily
quantifiable. Disaffected previous clients and clients’ partners may act as
primary claims-makers to contest the quality of the service if they have
the necessary personal resources of energy, knowledge, money and time.
Current clients may speak in her favour. The clients here are vulnerable,
but they are voluntary and paying for a service that they can walk away
from – many will do so. This small story of ineptitude, clumsiness and
private angst lacks the elements of drama and spectacle that attract the
attention of secondary and tertiary claims-makers. The current political context is one in which private psychotherapists and other unregistered practitioners are under scrutiny by governments and complaints
commissions, so the latter may be responsive to any disapproval voiced
by primary-claims makers about Cherrie. However, they have limited
resources and she may be seen as a relatively small fish compared
with those who sexually abuse clients and engage in high-risk physical
interventions.
StreetCare’s staff, management committee and funder do not give any
indication that anything untoward or ‘remarkable’ is happening in the
service. Drama and risk are the norm in this and similar services, and
there is nothing unanticipated about the occurrences described. For the
young clients, life in the service probably mirrors much of their previous
experience, in and out of care. From the perspectives of each of these
actors, there is nothing to discover and disapprove of. The service operates
in a political and policy context where there is some sensitivity to child
protection and youth homelessness issues. However, this is perhaps normally offset by limited resources (financial, staff and expertise) available
to governments, by contract service policies, and by an acceptance of a
culture of volatility and excitement in residential youth services. In addition, governments, departments and agencies have already weathered many
previous adverse events and negative publicity in alternative care for children and young people. However, the service system in which StreetCare
functions could found a major investigation in a later era with a different
political and policy climate. Amateur and relatively uncontrolled youth
services, which are de rigueur today, may well be judged harshly by future
standards.
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THE CONSEQUENCES LOTTERY 265
Were it not for the neighbours, StreetCare would probably proceed
unhindered until a very major drama occurred (such as a death). However, the neighbours have the potential to become powerful primary
claims-makers. If their lives are significantly impacted, they will have the
motivation to dispute the appropriateness of StreetCare’s operations and
threaten its continued existence. Their claims are not likely to be driven by
care quality arguments, but rather by issues of noise, rubbish, safety and
perhaps immorality. The neighbours’ claims will be countered by staff and
the management committee with prevailing rhetoric about service accessibility, care in the community, self determination, and so on. There will
be little common ground or language in the two sets of claims; however,
those of the neighbours are likely to be more vociferous and attract the
attention of secondary and tertiary claims-makers. Once this happens, a
political response is likely. Even if the policy support for the StreetCare service remains, political imperatives may result in an interruption to current
operations.
When the scandal schema is applied, StreetCare, and the East West
Mental Health Service and Jonah have similarities. The service and Jonah
are doing what they normally do – what is there to discover and disapprove
of? Primary, secondary and tertiary claims-makers anticipate dangerous
incidents in mental health work. There has been no glaringly faulty commission by the service or by Jonah – the accumulation of omissions may
not be known about or their significance appreciated by secondary and
tertiary claims-makers.
The story of Jobb and his victim is about marginal people. The audience
is perhaps jaded by these mental health dramas. The policy and political
context is similar to that of StreetCare, where the prevailing policy is one
of community care and the problems with its implementation have been
documented comprehensively. In this case, Jobb’s parents and the family
of the dead person have the potential to become primary claims-makers
and to attract the attention of secondary and tertiary claims-makers. Their
claims may resonate with advocacy groups and complaints bodies. However, whatever their successes, they are unlikely to threaten the constituent
elements of the current East West Mental Health Service, including Jonah.
There may be some reorganisation of the service and some embarrassment, but government mental health services and their staff will continue
functioning.
The analysis provided in this chapter goes some way in explaining why
particular actors and events detailed in the cases in this book became
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266 MISHAPS AND MISDEEDS THROUGH A UNIFIED LENS
the focus of legal attention. All of these cases are products of their time,
contextual situations and the persistence of claims-makers, as much as they
are of the actors and acts involved. Any assessment of legal risk in a human
services situation must take account of these external factors, as well as
those inherent in the questionable actions. What else can be observed from
cases that do stimulate legal interest? This is the subject of the next and
final chapter.
https://doi.org/10.1017/CBO9781139168694.014 Published online by Cambridge University Press