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.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Anna Hendry
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.