Duty of care is a difficult term to define as there isn’t a legal definition of the concept (except in occupational health and safety legislation). Duty of care comes under the legal concept of negligence, and negligence belongs to the domain of common law. Common law is also known as judge-made law as the decision about guilt is decided using legal precedence and community attitudes and expectations. That is, there hasn’t been an Act of Parliament passed defining what is legal or illegal but rather the decision is based on what is considered appropriate or not appropriate at a particular time in history.
There are four key factors that are essential in deciding whether or not someone is negligent. They are:
This refers to the obligation to take responsible care to avoid injury to a person whom, it can be reasonably foreseen, might be injured by an act or omission. A duty of care exists when someone’s actions could reasonably be expected to affect other people. If someone is relying on you to be careful, and that reliance is, in the circumstances, reasonable, then it will generally be the case that you owe them a duty of care. You need to be clear about exactly what the nature of the care or support is that you are providing, and on which the person is relying. Failure to exercise care in that situation may lead to foreseeable injury (in other words it could have been avoided with due care taken).
Standard of care refers to what is expected of any other reasonable person/worker who performs the same duties. This is not about having to be the perfect worker but about being good enough and doing your job as well as any other worker. Judges when making their decisions regarding whether or not a worker has failed to provide a reasonable standard of care looks at many factors such as:
A breach of duty of care exists when it is proven that the person who is negligent has not provided the appropriate standard of care. That is, the worker (or agency) has done something that they shouldn’t have done or failed to do something they should have done.
What could be the consequences of the following:
Harm or loss has to happen if someone is going to sue a worker for negligence. A worker is only deemed legally liable if a client is injured whilst in their care, if it can be proven that the worker has been negligent. This depends on a number of factors, such as whether:
Michael Smith is always supervised when getting on and off the centre’s bus as he has poor balance and is unsteady on his feet. Staff have to be vigilant in their supervision as Michael likes his independence and has been known to try and get out of the bus by himself. On a previous occasion Michael tried to get off the bus before a staff member was ready and it was only through the quick reflexes of the bus driver that he did not suffer an injury. One day the worker who has taken Michael, along with the other members of the group, on an outing gets off the bus first to talk to the driver, leaving Michael and the others on the bus. Michael tries to get off the bus by himself, falls down the steps, and breaks his arm.
Duty of care can arise in all aspects of life, not just in community support services. The following scenario illustrates the application of duty of care in a broader sense.
Mike runs a small business making and bottling gourmet vinegars. He bottles his vinegars in a garden work shed. One day he accidentally knocks over and breaks one of his bottles. Mike didn’t realise that some of the glass from the broken bottle got into a full bottle of vinegar before it was capped. Mike sells the vinegar to the local deli, who sells it to Susan. Susan ends up with a badly cut throat from the glass.
Did Mike owe Susan a duty of care? Yes. Even if he had never met Susan, he should have been able to foresee that someone would buy and use the vinegar, and that the way it was manufactured and bottled would affect them. Because Susan bought the bottle of vinegar that Mike made, Susan became the person to whom Mike owed a duty of care.
With the introduction of legislation and standards of care in the CSI (such as the Disability Services Act and Standards) community expectations have risen in recent years about what constitutes duty of care. It is no longer acceptable for people to experience physical harm and negligence while in a care situation, and we recognise as shameful the treatment of ‘orphans’ and Aboriginal children in institutional care in Australia in the 1950s.
The practice of suing organisations has become more acceptable as we strive to improve the level of care provided and take duty of care considerations seriously. It is generally the case that, in services, the employer is responsible for negligence of staff. This means that any costs are carried not by the individual staff member who has been negligent but by the organisation itself. Organisations have professional indemnity insurance to cover such situations.
Associated with duty of care is the concept of dignity of risk. Dignity of risk refers to a person’s right to experience all that life has to offer, such as learning a new skill or taking part in an activity that may entail some element of risk, but has benefits that might include gaining greater self esteem and independence.
Most people with disabilities wish to lead lives which are as close as possible to that of people who do not have a disability and this inevitably involves taking some risks. Courts and the law of negligence do not, therefore, expect disability workers to shield their clients from all possible risks. They do, however, expect workers to take reasonable care (to be sensible and cautious) in their work.
This concept arises out of the key principles of the Disability Services Act. For example ‘People with disabilities have the same rights as other members of Australian society to realise their individual capacities for physical, social, emotional and intellectual development’ (Parsons, 1997). It can, however, pose concerns and dilemmas for staff. Value clashes between clients and workers also can play a role here as well.
John has a physical disability. He uses a wheelchair and has restricted movement in his hands. John’s favourite social activity on Friday nights is to go to the local club and have a few drinks with his mates. Because of John’s physical limitations, he has a carer who accompanies him to the club. Sometimes John gets quite intoxicated and on one occasion, the worker had to assist John to throw up when he returned from the club.
Some of the questions that you can ask yourself in determining your duty of care, as a worker are:
Vera is a woman with Alzheimer’s disease who is quite confused and who lives in a private hostel. She wants to spend the day at the races, as this has always been her favourite past time. She asks Karen, who works at the hostel, to help her call a taxi. Karen is not confident that Vera can cope with this outing safely and is afraid that Vera will get confused and disorientated at the races. She discusses her concerns with Vera who becomes quite annoyed with Karen, saying that it is her life, she is not a child and she has the right to make her own decisions and take her own risks. Karen accepts what Vera has said and calls a taxi.
Fulfilling duty of care responsibilities involves ensuring that adequate care is taken to avoid injury. To do this, keep the following things in mind.
Regarding assessing a certain activity or situation for foreseeable injury to a client or others, keep in mind:
You may have a client that wants to do something that, on quick reflection, seems dangerous (such as a person with a disability abseiling), however, when you look more closely at their capabilities and their awareness of the risk involved, with certain precautions it may be quite possible to minimise the risks with appropriate care.
Regarding assessing the likelihood of a potentially serious injury to a client, keep in mind the potential seriousness of the injury, even where the likelihood of it occurring might seem quite remote.
For example, a client who has a life-threatening allergy to eating shellfish needs to have care taken at all times, even if the chances of them eating shellfish are remote (eg it is never on the menu at the group home). The service should always be mindful that, in the rare event the client did come into contact with the food, their life would be at risk and thus take all precautions (such as have adrenalin on the premises to reverse the affect of the allergy).
In making an assessment of foreseeable risks and benefits of an activity for a client:
For example, you have a client with a disability who wants to visit a prostitute. A worker could come up with all sorts of risk issues if they had a personal bias against payment for sex.
In looking for ways to adjust activities or situations when necessary to minimise foreseeable harm, consider:
For example, if you have a client who is violent, you may need to curtail their access to certain areas of a group home without supervision, but that shouldn’t mean other residents should have their access restricted.
To help balance foreseeable harm with benefits of an activity or situation, aim to empower clients to take control over and responsibility for the situations, including the risks, with which they are confronted.
For example, if a client wants to move out of home and he requires support for daily living, encourage them to identify the potential risks and develop strategies to overcome them.
Remember that in your assessment of potential harm occurring duty of care does extend to other consumers and members of the public.
For example, if you take a client who has challenging behaviours on an outing to the city, you must take precautions, with adequate supervision to ensure that no member of the public is harmed in any way.
Agencies in the CSI should always ensure that there is a clearly written policy and procedure, which enables staff to understand and perform their duty of care. Policy will vary according to the target group and agency context, but should include the following points:
The following points are an example of what may be incorporated into a policy and procedure in relation to duty of care.
As you can see, the thrust of duty of care policy is to collaborate with the relevant people involved and to be mindful of accountability and client rights.
As you have discovered, duty of care is a complex and grey area of responsibility in the community services area.
Short of being a clairvoyant, there is very little that you can do to be able to predict with certainty whether a person will or will not be injured if they carry out a certain activity.
All you can do is rely on a range of factors, such as:
Always be mindful to involve the client and significant others in the decision-making process and to document the action you decide to take, either in case notes or in the form of a report, if appropriate. You are accountable, as a professional worker, for the decisions that you make.
Don’t forget to apply the old saying ‘Two heads are better than one’. Talk to your supervisor and other colleagues to help you weigh up the risks. However, it is important when making such judgements, particularly where compromises to people’s rights are made in the name of duty of care, that workers do not rely heavily on what might be just unverified rumour. Try to seek objective information to make your decision.
Steve is a 22-year-old man with a mild intellectual disability, currently living in a private hostel in the country, who wants to move nearer to the city. A vacancy has come up in a staffed group home in the inner suburbs, but Julie, who is Steve’s caseworker, has reservations about the appropriateness of this for him. She knows that Steve has a tendency to ‘hang around’ the streets whenever he is in the city. When he does this, he frequently mixes with other young people who, with him, tend to get drunk and get home at all hours. You heard on the grapevine that Steve has been involved in petty crime. Julie, mindful of her duty of care to Steve, is uncomfortable about recommending him for the city group home, as she is not sure that it is in his best interests.