Managing Complex and Unreasonable Behaviour Policy

1. Introduction

The Office of the Information Commissioner (OIC) is committed to providing an accessible, responsive service to all Queenslanders. We recognise that people using our service have diverse backgrounds and needs. We also recognise they will sometimes be angry, frustrated or distressed or act in other ways we find challenging, often because they are facing challenging circumstances of which we are not aware, or only partially aware. We employ skilled staff who can communicate well and deal with complex issues.

At the same time, we are committed to providing a safe and healthy workplace and ensuring that our resources are used efficiently and fairly. We expect our staff to treat people with courtesy and respect. We expect this courtesy to be returned. We do not tolerate behaviour that is offensive, abusive or threatening or consumes disproportionate resources.

When people display complex and unreasonable behaviour in their dealings with OIC, their conduct can significantly affect the way we perform our work. We recognise that people who demonstrate complex and unreasonable behaviour often have a legitimate grievance. Our staff will continue to deal with complaints on their merits, regardless of the person's behaviour. However, we will take proactive and decisive action to manage conduct that negatively and unreasonably affects OIC and support our staff to do the same in accordance with this policy.

2. Objective

This policy sets out how we plan to deal with complex and unreasonable behaviour in a way that is fair and balances the interest of complainants, our staff, our organisation and the public. It has been developed to assist our staff to prevent and manage complex and unreasonable behaviour from people using our service. It also provides when and how we make decisions about service restrictions and reviews of these decisions.

3. Effective date

Approved by the Information Commissioner on 19 July 2022.

This policy replaces the OIC Policy Managing Unreasonable Behaviour approved on 16 August 2019 (superseded).

4. Defining complex and unreasonable behaviour

‘Complex behaviour’ is any behaviour OIC staff reasonably find to be challenging. Complex behaviour usually involves a relatively high volume of communications and heightened emotions in those communications. Such communications distract from, and make it difficult to distinguish and consider, matters staff are tasked with examining in accordance with OIC’s statutory functions. They are frequently challenging in terms of time management and can often be emotionally confronting for staff as well.

Not all complex behaviour is unreasonable. Complex behaviour often arises when people are facing challenging circumstances, and we recognise that the behaviour may be an understandable, or even reasonable, response to those circumstances.

Complex behaviour becomes ‘unreasonable’ when, due to its nature or frequency, it raises health, safety, resource or equity issues for OIC, our staff and other people who use our services. Some behaviours are clearly unreasonable. This includes verbal abuse, threats to harm our staff or other people, and violence. This behaviour is never acceptable and may result in OIC taking immediate action. Unreasonable behaviour can also include persistently uncooperative, argumentative and/or accusatory behaviour, the cumulative effect of which gradually emerges over time. Examples of such

behaviour may include sending excessively frequent, lengthy and discursive emails which render it difficult to identify material relevant to matters before OIC; viewing instances where OIC reaches a different view as evidencing dishonesty and collusion and making frequent accusations about this; repeatedly reagitating issues, particularly regarding jurisdictional and procedural matters, that have already been addressed; disregarding reasonable administrative requests; and/or failing to comply with lawful directions.

5. Dealing with complex and unreasonable behaviour

OIC encounters a range of behaviour, from slightly confronting to clearly unreasonable, and our responses will be graduated as follows:

Prevent: where possible
Respond: to complex behaviour
Manage: behaviour that is or becomes unreasonable
Limit: access as a last resort.

Generally, staff can deal with most types of complex behaviour using prevention and/or responding strategies – see Stages 1 and 2 below. They can deal with complex behaviour that is also unreasonable behaviour using these same strategies, or may also adopt management strategies or put in place limits on the person’s access to our services – see Stages 3 and 4.

While the stages are graduated levels of response, they do not need to be used consecutively – that is, staff do not need to start with Stage 1, and then move on to Stage 2 if Stage 1 proves ineffective etc. Depending on the circumstances, a staff member may move straight to a later stage, or may implement two stages simultaneously. For example, if a person engages in the unreasonable behaviour of making verbal threats against OIC staff in telephone calls with them, responding strategies (specifically, strategies discussed under ‘Responding to threats of suicide, self-harm or harm to other persons’ at Stage 2 below) as well as limiting the person’s access to our Services (for example, by limiting the person’s communications with OIC to writing, as per Stage 4) are likely to be appropriate strategies.

Before using each stage, staff need to weigh up the impact of the behaviour along with:

the merits of the person’s case
the person’s circumstances e.g. are their health, social or other circumstances that make it difficult for the person to control their behaviour?
whether the person’s behaviour and requirements are proportionate to the problem that they are experiencing
the person’s responsiveness e.g. is this the first time the person has behaved this way? have they responded well when this problem has been raised with them in the past?

6. Stage 1: Prevent

OIC aims to prevent complex behaviour becoming a problem, where possible, through clear communication and the conduct of fair and accessible processes. We train our staff to be courteous, helpful and respectful in their dealings with stakeholders. To assist in prevention, staff will manage stakeholder expectations early by clearly and consistently communicating our processes, timeframes and jurisdictional limitations that may impact on the stakeholder. We also publish community resources on our website that provide information about how we conduct our work.

7. Stage 2: Respond

Responding to emotional behaviour

Our staff are trained to manage emotional behaviour and understand that this is often part of our routine work. Staff will respond to emotional behaviour in the first instance by attempting to defuse the situation. We will seek to do this by communicating with empathy, attention and respect and problem solving using good interpersonal and negotiation skills.

At times, a break may be needed for our staff and/or the other person involved to collect themselves. If this is necessary, our staff can arrange to speak further with the person at a mutually agreeable time.

In some cases, staff may identify that they are not the appropriate officer to handle the relevant situation and raise this with their supervisor or another member of their team.

Behaviour associated with a possible disability

Where complex behaviour may be a symptom or manifestation of a disability, staff need to consider OIC’s obligations under the Human Rights Act 2019 (Qld) (HR Act), Anti-Discrimination Act 1991 (Qld) (AD Act), and Disability Discrimination Act 1992 (Cth) (DD Act), together with those obligations about performing our statutory functions under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act).

We are committed to making reasonable adjustments so people can access our services. In some cases, we may decide not to make reasonable adjustments because the person’s behaviour is a risk to health, safety or property and/or because the request for a reasonable adjustment is not a proportionate or relevant response to OIC statutory functions, including processes or issues for consideration.

Responding to threats of suicide, self-harm or harm to other persons

OIC does not expect staff to provide crisis support or counselling to people who talk about suicide, self- harm or harm to other persons. If our staff have a concern that the person they are communicating with is a risk to themselves or others they will seek to connect them with people or services that can help. OIC has a responsibility under the Work Health and Safety Act 2011 (Qld) to provide a safe and healthy workplace for its staff. This responsibility extends beyond the physical aspects of the workplace and in responding to threats of this nature, the safety and wellbeing of our staff is paramount.

If a person makes statements during a conversation with an OIC staff member about harming themselves or others, the staff member will:

Ask the person clearly and directly if they are thinking about suicide, self-harm or harming others.
Explain that they are concerned and want to make sure the person is safe.
Alert their supervisor, who will decide what action to take.

Where staff receive any information from individuals which may reasonably be construed as threatening their own physical safety, that of OIC staff generally or of another person, our staff will discuss contacting relevant law enforcement and emergency services with their supervisor. If the threat appears to be immediate, we will contact the relevant police service. Usually, this will be Queensland Police and we will contact them by calling 000. If a threat is identified, but it does not appear to be immediate, we may still contact the relevant police service and seek advice regarding assessment and management of the threat. Usually, this will be Queensland Police and we will contact them by calling Policelink (131 444).

When contacting relevant law enforcement and emergency services and reporting a threat, our Office will disclose the level of personal information required to assess and manage the relevant risk, consistent with our privacy obligations under the IP Act. In other words, OIC will disclose personal information when satisfied on reasonable grounds that the disclosure is necessary to lessen or prevent a serious threat to the life, health, safety or welfare of an individual or the public; or for the prevention or detection of criminal offences or other relevant breaches of law. Our Office may also take any additional steps required to ensure the safety of our staff – for example, putting in place extra security measures.

As well as discussing whether to contact relevant law enforcement and emergency services, the relevant staff member and their supervisor will consider whether to encourage the person to speak with someone they trust, or offer information about contacting Lifeline (13 11 14), or other crisis support services.

Supervisors will check on the welfare of the affected staff member following a threat and ensure support is available. In some cases, we may determine that the risk posed to the health and safety of OIC employees is too high to allow direct communications to continue in the future. In such cases, directions will be made as to how the individual can engage with OIC and continue to access our services.

8. Stage 3: Manage

If a person’s behaviour is or becomes unreasonable, staff can apply appropriate and proportionate strategies for managing the behaviour. The strategies will depend on the type and severity of behaviour involved. In determining the appropriate strategy to use, our staff will have reference to OIC’s statutory powers and responsibilities, including those set out in the RTI Act and IP Act.

We also continue to seek out and train our staff in best practice in dealing with complex and challenging behaviour. In particular, our staff have reference to the Victorian Ombudsman’s Good Practice Guide on Managing Complex Complainant Behaviour.

9. Stage 4: Limiting access – a last resort

Generally, OIC can consider limiting a person’s access to our services if other strategies have not worked and the person continues to engage in unreasonable behaviour. Depending on the type of behaviour, we may consider limiting:

who the person can contact e.g. limiting contact to a named staff member
what issues we will respond to e.g. not responding to issues that have already been the subject of an assessment and explanation, unless the person raises new issues that warrant attention
when a person can have contact
how the person can contact us e.g. confining contact to writing where the person has been verbally abusive.

In terms of external reviews, the Information Commissioner has the power to issue directions and in some cases, this may involve issuing directions in relation to how an individual corresponds with OIC. The Information Commissioner may also decide not to deal with a matter where an applicant’s behaviour is considered vexatious, or an application is vexatious, misconceived or lacking substance.

Deciding to limit access

Decisions about limiting access to services will only be made by the Information Commissioner, the Right to Information Commissioner, Privacy Commissioner and/or Chief Operating Officer (COO). These decisions are made after having regard to any relevant provisions under the RTI and IP Acts.

We will warn the person of the action we propose to take and give the person an opportunity to stop. In some rare cases we may decide to limit access without warning where we identify a health and safety risk for our staff.

Before approving any limits, the decision-maker must be satisfied that:

the behaviour is unreasonable i.e. poses a risk to the health, safety, equity or resources of one of the parties involved
all alternative strategies have been, or are likely to be, ineffective in managing the risk
all relevant factors have been considered including the person’s history, the nature of the conduct, the person’s personal circumstances and the impact of limiting access on the welfare of the person and their dependants
the limits are proportionate to the level of risk posed by the behaviour
there is sound evidence to support the decision
the limits are consistent with our obligations under the RTI Act, IP Act, AD Act, HR Act and DD Act; and
if the behaviour may be a symptom or manifestation of a disability, the limits are consistent with the DD Act.

The decision-maker will inform:

affected staff member about the decision
the person. This will be in writing (unless another form of communication is more appropriate) and will explain the decision and the reasons for the decision. It will set a timeframe for reviewing the limits (see below) and explain the person’s options regarding review of the decision.

Reviewing limits

The COO will ensure that any limits on a person’s access are reviewed by the Information Commissioner, the Right to Information Commissioner, Privacy Commissioner and/or COO within the named timeframe, and at least once every 12 months, to determine if they are effective and still warranted.

The COO will document the review and, where necessary to afford procedural fairness or otherwise appropriate, will inform the person of any decision to remove or vary the limits on access. The COO will also inform affected staff.

Should a person seek review of the decision to limit access, they can request an internal review, which will be conducted by a member of the Executive Leadership Team at the same level as, or more senior to, the original decision-maker. Where the Information Commissioner was the decision-maker, an internal review will not be possible. A request for a review must be in writing and submitted via email to complaints@oic.qld.gov.au, ic@oic.qld.gov.au or marked ‘Private and Confidential’ and addressed to:

The Information Commissioner

Office of the Information Commissioner PO Box 10143

Adelaide Street BRISBANE QLD 4000

Once all options to seek a review have been exhausted, a complaint can be made to the Queensland Ombudsman or, if a person claims discrimination, the Queensland Human Rights Commission.

10. Recording and reviewing unreasonable behaviour

Staff are required to record all incidents of unreasonable behaviour within 24 hours on the file and notify their supervisor. The record will:

describe what the person said or did in neutral terms
describe the action the officer took in response.

Separate to the file record, staff and their supervisors are also required to complete an Unreasonable Behaviour Report where the unreasonable behaviour may pose a workplace health and safety risk. This form requires a mandatory debriefing conversation between the impacted staff member/s and their supervisor.

OIC maintains an Unreasonable Behaviour Register of any behaviour that may pose a hazard to our workplace health and safety. Inclusion of incidents on this Register is determined by the Information Commissioner, Right to Information Commissioner, Privacy Commissioner and/or Director of Executive and Corporate Services. This Register is accessible to the Executive Leadership team. The Executive Leadership team will assess and review this register routinely to ensure a consistent response to unreasonable and challenging conduct.

Where an incident on the Unreasonable Behaviour Register requires OIC to limit an individual’s access to our service delivery, the name and limited access conditions may be included on the Limited Access List if it is reasonably anticipated that other areas of OIC may have interactions with that individual. The Limited Access List is made available to all OIC staff, and will include any information required to give effect to the Limited Access conditions.

Supervisors will report to their respective Directors and Commissioners. The relevant Commissioner will review Reports regularly and liaise with the COO to:

ensure strategies are being applied appropriately and consistently
identify any health and safety risks presented by repeated unreasonable behaviour
identify any particular training needs for staff
identify possible patterns, and, if appropriate, recommend changes to service delivery that may help prevent complex behaviour becoming a problem in future.

11. Security

In order to ensure the safety of our staff and the security of our work premises, OIC staff will ensure that appropriate steps are taken to prepare for meetings with external stakeholders. OIC staff will use duress devices as required and take precautionary measures with respect to their building access cards in order to protect their own safety and the safety of those that enter our offices. OIC may decide to prohibit visitors from attending the premises for a period of time, while a threat remains at a high likelihood of occurrence. OIC has measures in place to ensure the immediate notification of any incident or threat to the Queensland Police Service.

Most of our contact with community members, including applicants and complainants, is by telephone, email or other communication, not in person. Supervisors and staff will engage in discussions prior to any face to face meeting about what security measures will be appropriate and the number of individuals that should attend that meeting. We have meeting rooms at our secure premises where required.

Any unexpected visitors to our office will be greeted at reception and will also have an opportunity to communicate with the relevant staff members via phone.

Should any OIC staff experience harassment outside of the workplace via social media or other means, and they consider that this harassment relates to or may impact upon their work, they should report the incident to the relevant supervisor. The supervisor will assess the situation and escalate to the appropriate Director or Assistant Commissioner for further action.

12. Roles and responsibilities

Preventing, responding and managing complex and unreasonable behaviour may be the responsibility of any OIC staff member depending on the situation and severity of the behaviour.

Decisions to limit access to services (Stage 4) may only be made by the Right to Information Commissioner, Privacy Commissioner, Director, Engagement and Corporate Services and/or Information Commissioner.

13. Support for staff

OIC recognises that dealing with complex and unreasonable behaviour can be upsetting and stressful and we are committed to supporting our staff. We will uphold our legal obligations to provide a safe workplace and support staff by:

requiring staff and supervisors to debrief shortly after any challenging interaction and to identify any resulting support measures
supporting staff members with additional training and education courses relevant to managing difficult behaviour
access to Employee Assistance Programs (EAP).

Supervisors and Commissioners will speak with staff who handle complaints regularly to check their welfare, in addition to any other supervision arrangements.

Staff are encouraged to monitor the impact of complex and unreasonable behaviour on their wellbeing, draw on available supports and maintain a healthy approach to managing stress.

Also as outlined above, where unreasonable behaviour poses health and safety risks for OIC staff or other individuals, staff are required to complete an Unreasonable Behaviour Report. The behaviour may also be included in the Unreasonable Behaviour Register, which will record steps taken to manage the behaviour, including any limitations placed on access to our service delivery. This Register is regularly reviewed by the Executive Leadership Team.

Staff who are injured at work can report this in accordance with OIC Workplace Health and Safety Policy.

14. References

This policy must be read in conjunction with the below or any documents that supersede those listed.