Duty of Care

Will Holmes à Court
Will Holmes à Court
Last updated 
Our ethical and legal obligations when providing care services 

Statement
HomeWise Health (HWH) is legally bound to exercise a duty of care for all workers and clients to ensure, as far as reasonably practicable, that they are safe from injury and risks to health while at work.

Scope
Compliance with this policy is a condition of appointment for all workers providing services on behalf of HWH.

Definitions
Client - a person who receives services from HWH

The dignity of risk - the right for a client to have autonomy and self-determination to make choices for themselves and potentially take reasonable risks; this gives them the freedom to make mistakes and to learn from them

Due Diligence - a PCBU (Person Conducting a Business or Undertaking) must display a minimum standard of behaviour involving a system that provides relevant regulatory provisions and adequate supervision, ensuring that the system is properly carried out, taking reasonable steps to
  1. acquire and keep up-to-date knowledge of work health and safety matters; and
  2. gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
  3. ensure that the person conducting the business or undertaking has available for use and uses appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
  4. ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
  5. ensure that the person conducting the business or undertaking has and implements processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act
Examples
For paragraph 5, the duties or obligations under this Act of a person conducting a business or undertaking may include:
  • reporting notifiable incidents;
  • consulting with workers;
  • ensuring compliance with notices issued under this Act;
  • ensuring the provision of training and instruction to workers about work health and safety;
  • ensuring that health and safety representatives receive their entitlements to training.
Duty of Care - A worker is legally obligated to take reasonable care (be sensible and cautious) and not cause harm to another person when undertaking a task or activity.

Hazard - something with the potential to cause an injury or illness.

Health - refers to the physical and psychological well-being of a worker.

Incident - an event which occurred, or could occur, resulting in injury, ill-health or fatality

Manager - a person who is charged with the management or direction of PQSA and its
divisions

Must- indicates a mandatory action required by law, industrial instrument, or an Association policy or procedure.

Negligence - is a failure to exercise reasonable care.

Officer - any person who has the authority to influence or direct the actions of an employee or contractor.

Person Conducting a Business or Undertaking (PCBU). - for this policy, refers to HWH.

Reasonably Practicable - concerning a duty to ensure health and safety, means that which is, or was at a time, reasonably able to be done with ensuring health and safety, taking into account and weighing up all relevant matters, including:
  • the likelihood of the hazard or the risk concerned occurring
  • the degree of harm that might result from the hazard or the risk
  • what the person concerned knows, or ought reasonably to know, about:
    • the hazard or the risk
    • ways of eliminating or minimising the risk
    • the availability and suitability of ways to eliminate or minimise the risk
  • After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Risk control - strategies to eliminate or minimise the risks of an injury or illness resulting from a hazard.

Worker - a person who carries out work in any capacity, including work as an employee, contractor or subcontractor, apprentice or trainee, a student gaining work experience, or a volunteer.

Workplace - any place where a worker or self-employed person works or any place where a person goes while at work (includes offices, vehicles, clients' homes and community venues).

Responsibility

PCBU (Person Conducting a Business or Undertaking) - Duty of Care
HWH, as a PCBU, has a Duty of Care to its clients and workers to ensure, as far as reasonably practicable, that they are safe from injury and risks to health while at work and to provide and maintain:
  • a safe working environment
  • safe systems and methods of work
  • safe plant, equipment and substances
  • adequate facilities (e.g. first aid, drinking water, toilet facilities)
  • information, instruction, training and supervision to ensure safety
  • monitored working conditions (e.g. home WHS assessments)
  • monitoring of the health and safety of workers (e.g. reviewing injury records)
  • records of work-related incidents and injuries
  • hazards identification, conduct risk assessments and control risks
  • consultation of employees and their representatives about Workplace Health and Safety issues
  • information to workers to ensure they are familiar with their obligations and entitlements following this Policy.
Workers' Duty of Care
All employees, volunteers and contractors have a Duty of Care and must:
  1. take reasonable care to protect their health and safety
  2. not adversely affect the health and safety of others
  3. use equipment provided by HWH to protect their health and safety
  4. follow reasonable instructions
  5. not be affected by drugs or alcohol
  6. report hazards and incidents/injuries
  7. be familiar with their obligations and entitlements following this Policy.
Client's Duty of Care
As the client's home is a workplace, all clients must provide, as far as is reasonably practicable, a safe working environment for workers in their home. To ensure a safe work environment, a client should:
  1. treat workers with courtesy and respect (non-abusive and non-threatening)
  2. secure their pets to avoid harm to the worker
  3. low reasonable modifications to be made to ensure the safety of workers (e.g. move mats that may cause a fall)
  4. not smoke while the worker is present
  5. provide appropriate and safe equipment (if required and as agreed with HWH).
Human Resources is responsible for ensuring that:
  • WHS policies are reviewed on time
  • Training is provided for all workers on their legal responsibilities.

Policy

HWH will ensure the highest level of care is taken to eliminate or minimize the risk of harm, illness, injury or death to clients, balanced with each client's dignity of risk.

All HWH workers are legally required to ensure they are aware of their Duty of Care obligations with clients, co-workers and others in the workplace. Workers must perform work in a manner that:
  1. Prevents foreseeable harm
  2. Prevents injury or illness
  3. Ensures clients' rights are protected
  4. Meets required standards for regular documentation and confidentiality
  5. Demonstrates ethical behaviour
  6. Ensures client knowledge and consent are obtained before carrying out actions.
Failure to reasonably meet the Duty of Care obligations could lead to injury and be considered negligence in a court of law.

Workers must use their skills and experience to assess what actions they should take in each situation of potential harm. Decisions should be discussed with their Manager or supervisor. The Duty of Care is breached by failing to do what is reasonable or by doing something unreasonable that results in harm, loss, or injury to another. This can be physical harm, economic loss, or psychological trauma.

There is no clearly defined or simple formula for determining what is reasonable concerning the Duty of Care and appropriate worker responses in every situation. Workers must be conscious of their responsibility to ensure an appropriate level of protection is provided and to take reasonable care to avoid foreseeable risks without unduly compromising the client's dignity of risk.

Procedure
Duty of Care and Negligence
The law imposes a Duty of Care on everyone to take reasonable care to avoid injury to another person or damage to property due to any action or inaction. Simply put, this is a duty not to be careless.

A Duty of Care can be breached either by action or inaction.

Framework for making decisions about whether to exercise Duty of Care measures
This framework provides workers with questions or issues to consider regarding their duty of care to HWH clients.
  • Assess the likelihood and extent of the foreseeable benefits:
    • How will it benefit the client?
    • What new skills or experiences will it provide?
    • How will it affect their feelings of self-worth?
    • What new relationships will they be exposed to?
  • Assess the likelihood and extent of any foreseeable risks:
    • What risks may the client be exposed to?
    • What risks may the client expose others to?
    • What skill deficits does the client have that may put them at risk?
  • If there are risks, can these be minimized without compromising the benefits?
    • How can safeguards be built to protect the client but still allow them the opportunity to experience?
    • How can these safeguards be implemented in the least restrictive way?
    • What resources are required for the placement of these safeguards?
  • Balance any foreseeable harm against foreseeable benefit:
    • Are the benefits worth it?
All workers and clients must follow our "Hierarchy of Duty of Care" to ensure a safe workplace for everyone.

Hierarchy of Duty of Care
1st     Look after yourself, maintain a safe work environment
2nd    Look after other people
3rd     Maintain and protect plant and equipment.

Breaches of this policy
A breach of this policy is grounds for disciplinary action, up to and including termination of employment. Ignorance of these procedures will not generally be accepted as an excuse for non-compliance. Only in extreme circumstances and where such ignorance can be demonstrated to have occurred through no fault of the individual concerned will HWH accept such an argument.

Distribution and Review
HWH will ensure all persons engaged in providing services, paid or unpaid, are aware of this policy and have easy access to it in an appropriate format. All policies must be reviewed periodically or when legislation or government policy is determined.

Related Legislation
  • Civil Liability Act 1936
  • Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001
  • NDIS Safeguarding People with a Disability-Supported Decision-Making and Consent Policy
  • Work, Health and Safety Act 2012
  • Work, Health and Safety Reg. 2012
  • Workers Compensation and Rehabilitation Act of 1986
  • Sex Discrimination Act 1984 (Cth) 
  • Racial Discrimination Act 1975 (Cth)   
  • Disability Discrimination Act 1992 (Cth)  
  • Age Discrimination Act 2004 (Cth)   
  • Australian Human Rights Commission Act 1986 (Cth)    
  • Children's Protection Act 1993
  • Equal Opportunity Act 1984 
  • Health and Community Complaints Commissioner (HCSCC) - Code of Conduct for Unregistered Health Practitioners.
  • National Disability Insurance Scheme (Code of Conduct) Rules 2018, rule changes in 2021
  • National Standards for Disability Services
  • Privacy Act 1988 (Cth)
  • Privacy Amendment (Notifiable Data Breaches) Act, No. 12, 2017 (Cth) 
  • Workplace Gender Equality Act 2012 
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