.Working within a Relevant Legal and Ethical Framework

CHCCS400c

Duty of care

Working within a Legal and Ethical Framework

By the end of this session, you should understand the concepts of

• Negligence• Duty of Care• Dignity of RiskAnd how they have legal, ethical and organisational

elements.You should also understand how to deal with these

issues when they come up in the workplace

Legal, ethical, organisational

We avoid getting hung up on asking ‘but is it legal’ …

We avoid getting hung up on asking ‘but is it legal’ …

Legal, ethical, organisational

… since the legalities are only one part of the story

… since the legalities are only one part of the story

Legal, ethical, organisational

Let’s look at Duty of Care as one example of how this works

Let’s look at Duty of Care as one example of how this works

Duty of Care

Legal, ethical, organisational

It is the law- legally, we have to follow it

It is the law- legally, we have to follow it

Duty of Care

Legal, ethical, organisational

But workers in our industry would have a duty of care anyway, even without the law

But workers in our industry would have a duty of care anyway, even without the law

Duty of Care

It is the law- legally, we have to follow it

It is the law- legally, we have to follow it

Legal, ethical, organisational

Duty of Care

But workers in our industry would have a duty of care anyway, even without the law

But workers in our industry would have a duty of care anyway, even without the law

It is the law- legally, we have to follow it

It is the law- legally, we have to follow it

And your organisation will have policies about it,

regardless of the law or codes of ethics

And your organisation will have policies about it,

regardless of the law or codes of ethics

Your industry’s ethical code demands it of all Community Services

workers

Your industry’s ethical code demands it of all Community Services

workers

(or youthworkers, or social workers etc)(or youthworkers, or social workers etc)

Duty of Care:

The exact details of how it works in practice will vary between organisations in their policies.

The exact details of how it works in practice will vary between organisations in their policies.

So what is this “Duty of Care”? What does it mean?

The next few slides will explain.

So what is this “Duty of Care”? What does it mean?

The next few slides will explain.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Duty of Care:A judge once said:

A judge once said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Duty of Care:

Everyone, at some stage, has a duty of

care

Everyone, at some stage, has a duty of

care

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

And the courts talk about a ‘reasonable’ person’s level of care

And the courts talk about a ‘reasonable’ person’s level of care

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

And the courts talk about a ‘reasonable’ person’s level of care

And the courts talk about a ‘reasonable’ person’s level of care

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

This is not crystal ball gazing, guessing everything that could possibly go wrongIt’s about being reasonable in our care.

This is not crystal ball gazing, guessing everything that could possibly go wrongIt’s about being reasonable in our care.

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

In deciding what is a ‘reasonable’ standard of care, courts can take into account:• how big the risk is;• how likely it is to occur;• the expense, difficulty and inconvenience of taking action to avoid the risk; and• any other conflicting responsibilities that the defendant has

In deciding what is a ‘reasonable’ standard of care, courts can take into account:• how big the risk is;• how likely it is to occur;• the expense, difficulty and inconvenience of taking action to avoid the risk; and• any other conflicting responsibilities that the defendant has

(Wyong Shire Council v Shirt (1980) 146CLR40)

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Courts consider professional standards of care to be higher than those expected by ordinary people.Sources of what standards are reasonable in a particular practice situation can include:• professional associations’ codes and standards (eg Codes of Ethics)• funding body requirements• relevant research and practice literature• professional education curriculum• agency procedures

Courts consider professional standards of care to be higher than those expected by ordinary people.Sources of what standards are reasonable in a particular practice situation can include:• professional associations’ codes and standards (eg Codes of Ethics)• funding body requirements• relevant research and practice literature• professional education curriculum• agency procedures

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Avoid doing things or not doing things (sometimes the things we neglected to do are

just as harmful as the things we did).

Avoid doing things or not doing things (sometimes the things we neglected to do are

just as harmful as the things we did).

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

“anyone closely affected by what you do (or don’t do)”

“anyone closely affected by what you do (or don’t do)”

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

Only a court can establishing negligence.the person alleging negligence will need to

convince the court three (3) things:• that they were owed a duty of care• that the duty of care was breached• that the breach caused them damage

Only a court can establishing negligence.the person alleging negligence will need to

convince the court three (3) things:• that they were owed a duty of care• that the duty of care was breached• that the breach caused them damage

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

Negligent misstatement involves giving wrong, gratuitous or ‘careless’ advice which results in harm to the person it is given to. Practitioners need to exercise care in what they advise people to do as wrong advice

can be costly.

Negligent misstatement involves giving wrong, gratuitous or ‘careless’ advice which results in harm to the person it is given to. Practitioners need to exercise care in what they advise people to do as wrong advice

can be costly.

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

Civil liability legislation has been introduced in the ACT (and across

Australia) to limit exposure of those delivering public services and charitable activities. This arose out of concerns that high costs of insurance would inhibit the

provision of needed services.

Civil liability legislation has been introduced in the ACT (and across

Australia) to limit exposure of those delivering public services and charitable activities. This arose out of concerns that high costs of insurance would inhibit the

provision of needed services.

The ACT version protects “good Samaritans” and volunteers

The ACT version protects “good Samaritans” and volunteers

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

“Good Samaritans” is defined “Good Samaritans” is defined

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

25

And the limits to volunteer liability is defined And the limits to volunteer liability is defined

Negligence

‘a failure in law to do what a reasonable person would have done in the circumstances to avoid loss or injury to the plaintiff’

26

With the community organisation that employs the volunteer becoming

responsible for the volunteer’s actions instead

With the community organisation that employs the volunteer becoming

responsible for the volunteer’s actions instead

The Youthworker’s Code of Ethics- and pretty much any other codes in the

Community Services and Health industries, supports the concept of ‘Duty of Care’

The Youthworker’s Code of Ethics- and pretty much any other codes in the

Community Services and Health industries, supports the concept of ‘Duty of Care’

5. Duty of CareThe youth worker avoids exposing young people to the likelihood of further harm orinjury.

5. Duty of CareThe youth worker avoids exposing young people to the likelihood of further harm orinjury.

Reality check time!

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

Reality check time!

Example 1:A young person decides she would like to learn

to ride a motorcycle, despite the risk of hurting herself falling off

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

Reality check time!

Example 2:An elderly person wants to live in his own home,

rather than an aged care facility where staff are available in case something goes wrong

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

Reality check time!

Example 3:A mildly disabled young adult moves into

independent housing, away from her family

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

Reality check time!

Example 4:A woman returns to her partner, when there is

a high chance that she will be hurt some time in the future.

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

So far, this might all sound a bit idealbut unworkable.

Can we really prevent all injuries that we can think of?

Consider these examples:

Fortunately, the law recognises that it is not always ideal to be protected from making

‘bad’ decisions. This is known as the Dignity of Risk:

Fortunately, the law recognises that it is not always ideal to be protected from making

‘bad’ decisions. This is known as the Dignity of Risk:

The Dignity of Risk

the freedom to make mistakes, to make choices for ourselves, even if others – caregivers/parents/etc- think that the choice could cause a problem/risk/or error.

Dignity of Risk

Looking at your code of ethics, can you see anything that supports/ reinforces the legal concept of ‘Dignity of Risk”?

Dignity of Risk

Looking at the ATOD code of ethics, can you see anything that supports/ reinforces the legal concept of ‘Dignity of Risk”?

Autonomy – enhance freedom of personal destiny(individual and relational)

Respect – prejudice free consideration of the rights,

values and beliefs of all people

The law is supported by ethical standards:ACWA’s ethical code emphasises

the need to safeguard our clients’ dignity

The law is supported by ethical standards:ACWA’s ethical code emphasises

the need to safeguard our clients’ dignity

3.3 Respect – The welfare and community worker has an obligation to treat clients with respect, to promote maximum self worth and dignity, and to safeguard and promote the capacity for free choice by the client.

3.3 Respect – The welfare and community worker has an obligation to treat clients with respect, to promote maximum self worth and dignity, and to safeguard and promote the capacity for free choice by the client.

So does the Youthworker’s Code of Ethics- and pretty much any other codes in the

Community Services and Health industries

So does the Youthworker’s Code of Ethics- and pretty much any other codes in the

Community Services and Health industries

4. EmpowermentThe youth worker seeks to enhance the power of the young person …Youth workers presume that young people are competent in assessing and acting on their interests.

4. EmpowermentThe youth worker seeks to enhance the power of the young person …Youth workers presume that young people are competent in assessing and acting on their interests.

Your organisation’s policy might spell out how exactly that works in your service

Your organisation’s policy might spell out how exactly that works in your service

Policy 123. Staff will assist clients in making informed choice by providing them with information about the benefits and risks involved in activities.4. Where a client chooses to undertake an activity that could harm them, and understands the risks involved, this should be noted in the client’s file notes.

Policy 123. Staff will assist clients in making informed choice by providing them with information about the benefits and risks involved in activities.4. Where a client chooses to undertake an activity that could harm them, and understands the risks involved, this should be noted in the client’s file notes.

...as well as other Duty of Care issues...as well as other Duty of Care issues

Policy 44B“Centre staff will check daily to make sure that there are no needles, broken glass, condoms or other hazards in the areas in the park next to the property. They will use the litter collection tongs provided to make sure that they do not injure themselves.”

Policy 44B“Centre staff will check daily to make sure that there are no needles, broken glass, condoms or other hazards in the areas in the park next to the property. They will use the litter collection tongs provided to make sure that they do not injure themselves.”

Workers should follow policies for their workplace, which will often tell us to

•discuss with clients the hazards they face, and

•keep a record of these discussions. Also, when we are faced with a difficult ethical decision, it’s best to discuss this with your co-

workers or supervisor.

Workers should follow policies for their workplace, which will often tell us to

•discuss with clients the hazards they face, and

•keep a record of these discussions. Also, when we are faced with a difficult ethical decision, it’s best to discuss this with your co-

workers or supervisor.

Sometimes, though, we just have to make an ethical decision.Let’s look at a few examples:

Sometimes, though, we just have to make an ethical decision.Let’s look at a few examples:

Duty of Care:Example A (part 1)

A 16 year old person arrives at your youth service, appearing to be affected by alcohol. His verbally abusive behaviour is affecting the other participants.

Who do you have a duty of care towards? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Remember:Remember:

Duty of Care:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Remember:Remember:

Duty of Care:

Did you choose to do nothing?

(‘cause that’s not reasonable care)

Did you choose to do nothing?

(‘cause that’s not reasonable care)

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Duty of Care:

Was there anything you could

reasonably predict would happen?

Was there anything you could

reasonably predict would happen?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Duty of Care:

Did you think aboutall the people

who would be affectedby what you did?

Did you think aboutall the people

who would be affectedby what you did?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Ok, now for part 2Ok, now for part 2

Duty of Care:Example A (part 2)

After discussing the centre’s policy on not allowing participants who are drunk to be involved in activities, he hangs around outside the centre’s fences.

Who do you have a duty of care towards? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Remember:Remember:

Duty of Care:Example A (part 2)

After discussing the centre’s policy on not allowing participants who are drunk to be involved in activities, he hangs around outside the centre’s fences.

Who do you have a duty of care towards? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

You now have less power to do anything

in this case, so you have a different duty of care-

but it is still there

You now have less power to do anything

in this case, so you have a different duty of care-

but it is still there

Duty of Care:Example A (part 2)

After discussing the centre’s policy on not allowing participants who are drunk to be involved in activities, he hangs around outside the centre’s fences.

Who do you have a duty of care towards? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

You might focus on keeping the other clients safe,

since you have more power over their behaviour...

You might focus on keeping the other clients safe,

since you have more power over their behaviour...

Duty of Care:Example A (part 2)

After discussing the centre’s policy on not allowing participants who are drunk to be involved in activities, he hangs around outside the centre’s fences.

Who do you have a duty of care towards? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

...but you might still have the power to call a taxi or someone else who could

keep him safe

...but you might still have the power to call a taxi or someone else who could

keep him safe

Let’s try another example:Let’s try another example:

Duty of Care:Example B

You are planning to take a group of young people abseiling. What are some of the issues you would need to consider?

What is your duty of care in these situations? What should you do?

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

Remember:Remember:

Discussion

Are there times in your work that you need to balance the concepts of “Duty of Care”With “Dignity of Risk”?How do you decide?

• You have just run a night-time youth event. After staff have packed up the venue, you find a lone young person who had been at the event, hanging around outside. The young person lives about 5km away, wants to go home, but says that there is nobody who could come and pick them up.

• It is midnight, it is dark (obviously!), it is an isolated area and there is no public transport - not even taxis at that time.

• There is no MissionBeat, Salvos, outreach or "youth bus" type service in the district.

• Your agency does not normally transport clients, and the event advertising had said that young people would need to arrange their own transport home. However several staff have their own cars there, and one staff member offers to drop the young person home.

• You need to decide - what do you do?

• You are on 12 months parental leave and have several jobs around the home that could be done by a young person such as weeding, babysitting and housework. There were several young people from the program that you previously ran (who will not be clients when you return to work), who are desperate to get their first job (and the good reference that would hopefully come with it).

• You want to offer one or more of these young people a few hours work on a regular basis over a few months, just to help you get on top of things at home.

• What do you do?

Ok, you should have the hang of it now.

Remember, we’ve focussed on the legal/ ethical side of things for

those occasions where there isn’t any specific policy on place.

Wherever possible, follow policy, and talk to your supervisor for direction if you are faced with

difficult ethical decisions.

Ok, you should have the hang of it now.

Remember, we’ve focussed on the legal/ ethical side of things for

those occasions where there isn’t any specific policy on place.

Wherever possible, follow policy, and talk to your supervisor for direction if you are faced with

difficult ethical decisions.

Working within a Legal and Ethical Framework

By now, you should understand the concepts of• Negligence• Duty of Care• Dignity of RiskAnd how they have legal, ethical and

organisational elements.You should also understand how to deal with

these issues when they come up in the workplace.

References

• http://www.austlii.edu.au/au/legis/act/consol_act/cla2002194/s5.html

• http://www.youthlawact.org.au/index.php/publications

• http://youthaction.org.au/category/youthwork/youthwork-facts/ethics-safety/

• http://youthaction.org.au/youthwork/youthwork-facts/ethics-safety/duty-of-care-in-nsw-youth-welfare-services/