The right to safety and adequate care
When we talk about a client's right to safety and adequate care we are concerned with the related legal concepts of duty of care and negligence.
The concept of duty of care has been developed through the common law, that is, the rules have been laid down in a series of judgements made in senior courts. This means that there are no precise, legislated definitions for concepts such as duty of care and negligence.
The law surrounding negligence is complex. However, for a claim of negligence to be successful a number of things must be proven:
- A duty of care is owed by the plaintiff to the defendant.
- In exercising the duty of care, the defendant failed to function according to a reasonable standard of care.
- The failure to function according to a reasonable standard of care (breach) caused the damage suffered by the plaintiff.
- The loss or damage suffered by the plaintiff was reasonably foreseeable.
Duty of care is part of the larger legal concept of negligence. Negligence is said to occur when damage occurs to another person as a result of someone failing to exercise reasonable care.
Duty of care requires that an acceptable standard of care that is reasonably practicable be provided to ensure the health and safety of those at the workplace and also to those affected by the work that you do.
Duty of care refers to the responsibility of each person to do everything within their power to ensure a safe and healthy environment. In your sector this includes community and disability service workers, doctors, solicitors, financial advisors, drivers and local governments.
Duty of care places into a legal form a moral duty to anticipate possible causes of injury and illness and to do everything reasonably practicable to remove or minimise these possible causes of harm. This duty of care is written into the Workplace Health and Safety Act 1995 as obligations.
All adults in a workplace are legally responsible for workplace health and safety issues. Duty of care cannot be delegated. That means you cannot pass on that responsibility to anyone else.
The way the court interprets whether there was a breach of duty of care will depend on a range of factors and circumstances, including the following:
- what would be expected of a reasonable person in the same situation
- the worker’s role and responsibilities within the organisation
- the training and experience of the worker
- the practicalities of the situation
- current community values about acceptable practice
- standards generally seen as applicable to the situation
- other relevant laws such as the Workplace Health and Safety Act 1995.
Duty of care
Everyone, regardless of role, has a duty of care towards every other person in their environment and to themselves.
Duty of care is taking responsibility for yourself and others where they are relying on you.
Duty of care then simply means being in a position where someone else is likely to be affected by what you do, or do not do, where, if you are not careful, it can reasonably be predicted that the other person might suffer some harm.
- A worker doing something that they should not have done; or
- Failing to do something that they should have done.
This does not mean that every action necessarily constitutes a breach of duty of care. It depends on whether or not the action was reasonable in the circumstances.
- An understanding of the role of the volunteer and working within the parameters of that role.
- Being aware of possible risks to yourself and your clients.
- Understanding and being able to implement appropriate emergency procedures.
- Reporting all matters of concern no matter how small to your supervisor or relevant staff member.
- Attending mandatory training sessions on an annual basis.
- Following policies and procedures as set out by your organisation.
Community and disability services workers must only pass matters of concern about the client onto the appropriate designated staff member.
Adapted from the HACC Volunteer Handbook, Blue Care, 2004
Is a duty of care owed?
In determining whether a duty of care is owed, the following issues would be considered:
- is there is a relationship of 'proximity' or 'closeness'?
- is there a relationship of reliance or dependence, such as between a professional person and their client?
- Was there 'reasonable foreseeability'? That is, was it reasonably foreseeable to the alleged negligent person that their act or failure to act would be likely to cause harm?
In most situations human service workers therefore have a duty of care to their clients and probably to the clients' social network because of the professional relationship. It would also be reasonably foreseeable that there are many situations in which harm may be caused by a human service worker's negligent actions or failure to act.
Legislation related to negligence
Parliament can modify or eliminate common law principles or rules by legislation. In Queensland the following legislation restricts professional liability for damages caused by negligence:
- Personal Injuries Proceedings Act 2002 (Qld)
- Civil Liability Act 2003 (Qld)
Such legislation restricts the number of negligence claims and caps the amount of damages that can possibly be awarded by the court.
- There is no finding of negligence when the risk of the activity was obvious to the reasonable person.
- In cases involving allegations of negligence against someone holding himself or herself as possessing a particular skill, the standard of care should be determined by reference to what could reasonably be expected of a person professing that skill at the date of the alleged incident, unless the opinion is irrational. Professional opinion need not be universally accepted to be widely accepted.
- Patients are to be informed about risks of medical treatment which a reasonable person would require to make an informed decision about treatment which the doctor knew, or ought to have known, the patient wanted to be given.
- Apologies or expressions of regret about an incident are not admissions of liability or fault and are not admissible in court proceedings.
- First aiders have no liability for performing duties in an emergency, when the act is done in good faith without reckless disregard for safety.
Standard of care
The other test the courts use when deciding whether negligence has occurred is to determine the standard of care that is required and whether that standard has been met in the actions or omissions of the community and disability services worker.
The standard of care is determined in relation to the class of people to which the defendant belongs. That is, in relation to a community and disability services worker, the standard is that of a careful, competent and prudent community services worker. The expectation is that the professional will exercise reasonable care to avoid foreseeable risks.
Courts have found that where there is an issue of a special skill, the standard of care expected is higher than that of just the reasonable person. Instead, the courts will regard the standard of care required as being that of the reasonable skilled person exercising those skills, and professing also to have those skills.
It is important to note that the standard of care is that of a reasonably competent skilled person, not the highest level of expertise and not the complete beginner. The standard is to be determined from accepted professional practice that was current at the time of the incident.
Maintaining your competence
Given that a court will apply the standard of care as being that of a reasonably competent skilled person, it is important that you know what is currently accepted as a reasonably competent standard.
There are various ways of informing yourself of current practices. These include:
- peer support and review
- professional development
- membership of professional associations
- participating in research programs
- reading current evidence-based literature
- providing advice and services based on current evidence base.
Recognising and reporting abuse
Abuse can take many forms. In your work in the community and disability services field you are likely to come across this in the forms of:
- child abuse
- domestic violence
- elder abuse
- abuse of someone with a disability.
Abuse may become evident in the form of physical, financial, sexual, mental, and emotional indicators.
The Disabled Persons Protection Commission gives a list of Indicators of Abuse that can provide you with a general guide.
- Bruises and/or welts
- Cuts, lacerations, punctures or wounds
- Sprains, dislocations, fractures or broken bones
- Internal injuries
- Sexual abuse
- Victim conditions
- Living environment
- Actions failed to be taken
- Actions taken inappropriately, unlawfully
Once you have identified what you reasonably believe are signs of abuse, it is important to meet with the client in a safe location in order to find out whether abuse is actually occurring, by asking the client directly.
It is also important to document your observations, concerns and subsequent discussions with your client. You must also inform your supervisor, and consider a plan of action that could include the following:
- Involving police
- Providing extra support for the person (such as referral to a sexual assault service)
- Helping the client to move from the abusive situation
- Referral to an advocacy service