Australia: Caring for the aged, disabled and people at risk: A balancing act between workers, clients and commerciality

Last Updated: 6 September 2016
Article by Anna Hendry

Modern society needs carers. People in general are living longer and need aged care. People with disabilities are also living longer and need care appropriate to the individual's level of functioning. Drug abuse, domestic violence and other traumas have all contributed to a need for care of people at risk across various different care models.

The challenges faced by care providers are as varied as the individual circumstances of their clients but, as three recent decisions demonstrate, the biggest challenge the balance between the safety of workers, the provision of compassionate care and financial sustainability in a largely government funded environment. How the government, care providers and the justice system respond to this challenge will likely shape the course of society for years to come.

In the meantime, care providers must keep abreast of the courts' views about worker safety measures as part of their efforts to comply with their duty of care and statutory obligations.

Stokes v House With No Steps [2016] QSC 79

The plaintiff was employed as a disability support worker for a non-profit, non-governmental organisation which provides disability services to the Queensland Department of Communities, Child Safety and Disability Services. She was the sole carer in the house at the time of the incident and was caring for two clients, one of whom, NM, had been diagnosed with a Severe Intellectual Disability and Autism Spectrum Disorder. NM was known to unexpectedly grab, bite and scratch carers.

The plaintiff sustained physical and psychiatric injury when NM lunged at the plaintiff, grabbed her around the throat, shook the plaintiff and attempted to bite her as she struggled to remove his grip. The plaintiff eventually secured both of NM's hands by his side during the struggle. Once NM settled down, the plaintiff locked herself in the house's office, which required a key to enter.

While the Supreme Court found in favour of the employer in this matter, it is important to note there was a finding of breach of duty against the employer in two respects. First, the court found the employer ought to have provided the injured worker with a duress alarm or some other system to enable the worker to easily and quickly call for help. Secondly, the court found the employer ought to have fitted the "safe" staff room with swipe card access instead of key access.

In light of this finding, care providers should consider whether:

  • Care is being provided in circumstances where a worker might be required to summon help quickly and easily;
  • What type of help might be required – for instance help may be provided by a team leader in the first instance rather than by one of the emergency services; and
  • How quickly the help can be provided once the alarm has been raised.

Beven v Brisbane Youth Service Inc [2016] 163

In this case, the plaintiff, a family support worker employed by Brisbane Youth Services Inc (BYS), was providing support to a young mother, T, who had a history of drug abuse, sexualised behaviour and violence. She had also previously self-harmed and attempted suicide. In addition, T had made sexual remarks and reported stalking behaviour and violent sexual fantasies to two former BYS support workers who were ultimately removed from providing support to T. Despite this, BYS did not inform the plaintiff of those prior incidents involving T but did put in place procedures designed to ensure the plaintiff's safety while attending on T at her residence.

During a meeting involving T, her lawyer and her mother, she rubbed her leg and foot up and down the plaintiff's leg and the vicinity of the plaintiff's groin region in a slow and deliberate manner. This was done under a meeting table. When the plaintiff filed an incident report, BYS responded by offering counselling but the plaintiff ultimately decompensated and resigned from her position with BYS.

The Supreme Court was required to consider what steps a reasonable employer would have taken having regard to the risk posed to the plaintiff by her interactions with T. It ultimately concluded that a reasonable employer would have declined to continue to offer services to T. In light of this finding, care providers should consider:

  • Whether current procedures for documenting client behaviour (not just incidents and injuries) are adequate;
  • What type of information should be communicated to various stakeholders in order to balance the safety of the worker, the safety and privacy of former workers and the privacy of clients; and
  • Whether current risk assessment procedures are adequate and in particular whether there is a definite policy in place setting out the circumstances in which services should be withdrawn from a particular client.

Greenway v The Corporation of the Synod of the Diocese of Brisbane [2016] QDC 195

In this case, the plaintiff was employed as a carer in a residence for at risk youth. Although the role ordinarily required her to care for two clients, at the time of the incident there was only one youth in the residence. The youth became aggressive when the plaintiff refused to drive him to a friend's house. He assaulted her, broke a window and made threats of violence. The plaintiff de-escalated the situation and spoke to her team leader by telephone twice; once during the incident and once after the incident. She was not physically injured and told the team leader that she was "okay". The team leader did not offer to attend the residence or offer to send another worker to the premises. The plaintiff was required to stay in the residence with the youth for the rest of the night and large portion of the following day. She ultimately decompensated and claimed damages for psychological injury.

The District Court held there was no breach of duty by the employer in failing to decline services to the client or failing to engage a second worker at all times. It also found the incident was not the result of a lack of appropriate training of the plaintiff. However, the court did find that the employer breached its duty of care to the plaintiff by failing to have in place guidelines for on call team leaders to support workers caring alone for young people with complex or extreme support needs and failing to train on call team leaders in how to assess a worker's welfare in the aftermath of a crisis. The medical evidence was that the ongoing exposure of the plaintiff to the potential of further harm, by requiring her to remain in the house with the youth without support contributed to her psychiatric injury.

In light of this finding, care providers should consider:

  • Whether current procedures for assessing employee welfare following an incident are adequate;
  • Whether there should be a policy of either removing employees from the scene following a serious incident or providing a supporting co-worker at the scene of an incident regardless of the affected employee's assessment of their own welfare; and
  • Whether the people responsible for assessing employee welfare following an incident have received adequate and current training in the relevant procedures.

The business of caring in the modern world is complex, challenging and constantly changing. HopgoodGanim Lawyers' Insurance and Risk team provides tailored risk management services including:

  • Development and review of record keeping procedures;
  • Development and review of communication procedures;
  • Incident response strategies;
  • Critical incident response services; and
  • Injury claims management and representation for health, aged and disability care providers.

We are committed to providing practical specialist advice and services so that you can focus on your core business of providing compassionate care to your clients.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Anna Hendry
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