Risks and Rights: Redressing the Imbalance

1. Risks and Rights: Redressing the Imbalance Maria Batchelor Executive Client Manager, Public Sector & Community Services WorkSafe Victoria

2. Who are WorkSafe?

3. Risks vs Rights • Providing good client service and good OHS management IS possible. • Rights & protection from Risks are NOT mutually exclusive. • RIGHTS: • Right of worker to safe/healthy workplace • Right of client to safe/healthy outcomes • Right of client to dignity • RISKS: • Risk of injury to worker • Risk of injury to client • Financial – cost of claim • Prosecution / reputational

4. Risk of injuries to carers

5. What is the Impact of Workplace Injuries? To carers • Reduced ability to provide care • Reduced performance at work + broader impact of injury on carer’s normal life activities To clients • Care provided by agency carers replacing injured employees when away from work • Disruption to care – agency staff learning routines, clients’ likes & dislikes • Clients assisting injured carers (risk of client injury) To the employer • Increased cost – agency costs, replacing employees • Increased employee turnover • Reduced operational efficiency • Increased premium • Increased training requirements

6. Risk of injuries to clients • HSE v South Downs NHS Trust (2006)Prosecution following fatality of a patient in hospital care who fell from a hoist whilst being transferred from a wheelchair to his bed. • The care assistant who was attending the patient had been employed for about six weeks but had not received training and had not used this type of hoist before. • Risk assessments and procedures for manual handling and safe bathing were not brought to the attention of care assistants and the supervision of staff carrying out lifting operations was inadequate.

7. Principles of the OHS Act (2004) Those in control are responsible for eliminating risks All people have the highest level of protection OHS Act 2004 Employees are entitled to representation Employers should be proactive Information should be shared about risks and controls

8. Legal Responsibilities Common Law • Employers have a recognised duty of care to provide a safe working environment • Taking reasonable care so that work operations do not subject employees to unnecessary (and foreseeable) risk OHS Law • Mirrors this duty and sets out duties for a variety of people • Employers ; Employees ; Suppliers ; Other persons • Employers are required to provide a safe working environment as far as is practicable • OHS Act (2004) s23 ‘other persons’

9. So Far As Is Reasonably Practicable: The test of “so far as is reasonably practicable” • the likelihood of the hazard or risk occurring • degree of harm if it occurred • what is known about elimination or reduction of hazard or risk (or ought to be known) • availability and suitability of controls • cost

10. Interpretation of the Law “The [OHS] Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them; not with the benefit of hindsight nor the wisdom of Solomon but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality” Supreme Court of Victoria Holmes v R.E Spence & Co Pty Ltd 1992

11. Consultation & Negotiation • The Occupational Health and Safety Act 2004 introduced the requirement for employers to consult with employees. • It states when employers must consult, who must be consulted, and how consultation should occur. • Doesn’t require agreement • Doesn’t apply directly to clients or volunteers • However, employers do have duty to ensure, so far as reasonably practicable, that persons other than employees are not exposed to risks to their health and safety • Would be ‘good practice’ for employers to have a means of consulting with clients around OHS issues

12. Needs of the Carer v Needs of the Client (1) Client: • 20 year old man with an intellectual disability Task: • No information provided to carer about the client • Carer takes the client to a swimming pool in her car Incident: • Client hits the carer as she is driving over Westgate Bridge injuring and scaring her Potential Risk Controls: • Appropriate communication of expected client behaviour • System of risk assessment of in place • Alternative transport • An additional carer • Preset mobile phone for communication

13. Needs of the Carer v Needs of the Client (2) Client: • Large, heavy client uses a wheelchair to move around • Frequent seizures, falls to the floor of the school bus almost daily Task: • Lifted in & out of the school bus twice daily • Lifted from the floor after falling • Several musculoskeletal injuries from lifting her in & out of the bus Action: • Prohibition Notice issued on this task • The school and parents believed this was intrusive on the rights of the client Risk control: • Divert a bus with wheelchair access from a close route • Transfer the client in the wheelchair

14. Needs of the Carer v Needs of the Client (3) Client: • Client with multiple sclerosis (weighs 75kg), cared for by two workers • Has full use of his arms and hands but little strength in his legs and feet. Task: • Washing client while he is in bed (One care worker would roll client towards her & hold him while the second would wash his back). • The holding task was uncomfortable for the worker and caused lower back pain. Action: • To make best use of client’s arm strength, bed rails were installed which were screwed to the floor and were above the height of the bed. • Client reached across with his opposite arm and used the rails to roll and support himself in that position. Outcome: • Reduced the manual handling risk to the care workers • Helped client to maintain mobility and feel less dependent Reference: HSE “Handling Home Care: Achieving safe, efficient and practical outcomes for care workers and clients”

15. Related Prosecutions (NSW) Detainee/student fatal assault on staff member - convicted and fined $294,000 Failures related to: • The absence of appropriate risk assessment • Provision of information to school staff Assault by a psychiatric patient in a hospital - convicted and fined $180,000 Failures related to: • The absence of non-breakable glass in the ward • Having a controlled entry point in the event of a critical incident Resident assault on social welfare worker - convicted and fined $7,500 Failures related to: • Having a management system • Providing information concerning residents Multiple assaults of staff by residents in a group care residential facility - Dept Community Services convicted and fined $410,000 Failures related to: • Provision of adequate emergency procedures • Assessment of the behaviour of certain clients • Properly investigate incidents resulting from client behaviour • Ensuring that clients with a disposition to aggressive or violent behaviour did not have access to dangerous instruments

16. Management of OHS Risk v Provision of Services • Client care and OHS management are not mutually exclusive • Effective OHS management may improve services to clients by: • Identifying if clients are at risk of injury (s 23 duty) • Reducing staff turnover & increasing ‘consistency of carers’ • Improving carer’s satisfaction with work/industry (attracting more carers to the industry) • Risks and Rights are a balancing act that can be redressed: • Alternatives • Consultation • Negotiation

17. Where to get more help: www.worksafe.vic.gov.au Advisory Service: 1800 136 089