.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

• 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

What we can’t doWhat we must do

What the law doesn’t really care about.

Drive too fastStop at red lights

Drive an ugly car

This unit talks a lot about the law.

Legal, ethical, organisational

Ethical

All 3 areas- legal, ethical, organisational- work together

Legal, ethical, organisational

Ethical

Legal

Organisational policy

All 3 areas- legal, ethical, organisational- work together

Legal, ethical, organisational

Duties towards industry

Duty towards self

Issues specific to organisation

Taxation

Dog licensing

Agency code of ethics

Organisational culture

They each have unique elements…

Legal, ethical, organisational

Driving rules

ConfidentialityChild

protection

Duty of care

Non discrimination

Duties towards employer

.. But they largely overlap

Legal, ethical, organisational

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

Legal, ethical, organisational

… 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

Duty of Care

Legal, ethical, organisational

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

Duty of Care

Legal, ethical, organisational

And your organisation will have policies about it, regardless of the law or codes of ethics

Duty of Care

Our industry’s ethical code demands it of all Youthworkers

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

further harm or injury.

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

further harm or injury.

Duty of Care:

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.

“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:

This statement, made by a judge, sums up our legal obligations

“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:

Let’s look at it in a bit more detail.

“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:

It applies to everyone- all of us, not just workers

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”

But, of course, if you have less power to do anything, you have a lower duty

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”

So a worker has a greater duty of care than a visitor in your workplace.

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 statement is not exact in its detail- it asks us to use some judgement

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”

There’s that word again

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”

There’s another one!

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 everythingthat could possibly go wrong

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”

It’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”

Avoid doing things or not doing things

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”

(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”

So, we avoid things that can injure, or cause some sort of harm to..

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)

Reality check time!So far, this might all sound a bit ideal

but 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:

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:

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:

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:

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.

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

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

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

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.

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:

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:

Duty of 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?

“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?

“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 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:

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

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...

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

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:

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• 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.