10 Myths about Duty of Care

Dignity of risk and duty of care are simultaneously simple and wickedly complex concepts. They are prone to being misinterpreted, misconstrued or watered down. But getting these ideas wrong can have practical implications for human rights and undermine independence and choice and control of people with disability.

In this article, we’ll explore the definitions of dignity of risk and duty of care. We’ll also look at 10 common misconceptions and explore how providers can support participants to exercise their right to make their own decisions.

First, some definitions

Duty of care

Duty of care refers to the legal obligation of duty of care holders to take reasonable steps to prevent foreseeable harm to a person or that person’s property. In disability service provision, duty of care holders are usually providers and workers, and the expectation is that they’ll deliver services in a way that doesn’t cause harm. Most of the time, duty of care isn’t about protecting a person from their own decisions, but about the steps providers take to protect participants from the organisation.

For example, if a provider sends a worker who doesn’t know how to use a hoist to conduct a hoist transfer, there’s a reasonably foreseeable risk of harm to the person with a disability. Therefore, providers have a duty of care to make sure the worker is properly trained in hoist transfers before they do a solo shift.

Dignity of risk

Dignity of risk is the legal right individuals have to make decisions that involve risk. This approach is grounded in human rights and recognises that taking risks is part-and-parcel of life, and that without risk-taking, there is no growth. We are all allowed to make mistakes, I know I’ve made a few!

Dignity of risk is closely linked to supported decision making, which is about giving person-centred assistance to participants to make decisions and weigh up choices. This assistance might include getting an expert opinion, asking people who have made the same choice before or supporting someone to do further research. The person might not make the same decision others would, or even a decision that another person thinks is in their best interest. The role of a provider isn’t to make the decision for people, but to support people before, during and after (whatever occurs).

10 myths about duty of care and dignity of risk

Let’s take a look at some of the biggest misconceptions about dignity of risk and duty of care.

Duty of care means avoiding all risks. Well, firstly, avoiding all risks is impossible. Everything comes with risk - that’s the price of entry for being a human being. Duty of care requires us to take reasonable steps not to cause foreseeable harm to the person in our service delivery, but it doesn’t mean taking away a person’s autonomy and independence. Often, ‘protecting’ people results in not allowing them to develop the skills to navigate the world, which can just put the person at greater risk.
Dignity of risk means always saying ‘yes’ to whatever the person wants to do. Dignity of risk doesn’t mean a blanket ‘yes.’ It means exploring with the person all the options, implications and consequences, so they can make an informed decision. In the end, the person might make a decision we don’t agree with, and that’s ok. At that point, the dignity of risk discussion switches from ‘is this safe?’ to ‘how can we agree to make it safer?’
Duty of care means delivering NDIS supports even when the person has run out of funds. Unfortunately, it’s not that simple. The Practice Standard on Continuity of Supports can be interpreted as requiring budgeting conversations to take place before we reach the pain point where funds have run out and we have to make a difficult decision. This means the person should be involved in conversations about the limits of available funds, what the provider can deliver, and even unpleasant discussions about when services will have to stop. Dignity of risk means every person is entitled to be part of that tricky discussion.
The NDIA and NDIS Commission aren’t interested in dignity of risk in service delivery. Incorrect. Dignity of risk is mentioned in the NDIS Practice Standards and the NDIA’s Supported Decision Making policy. The NDIA might not be looking over the provider's shoulders during each shift, but providers are expected to work within their human rights framework. And yes, we acknowledge the irony that some NDIA decisions don’t put human rights and dignity of risk at the forefront! That’s a discussion for a different day.
Dignity of risk is only for people without impaired cognitive functions or abilities. Dignity of risk is for everyone, regardless of diagnosis, impairment or perceived capacity. It’s not our job as service providers to assume someone’s capacity. That’s done by a qualified health professional using specific tools and assessments and only a tribunal or court can take away a person’s right to make decisions about their life (like through a formal Guardianship Order).
Workplace Health and Safety obligations for providers overrule dignity of risk. It’s not that simple. The two things can and do exist at the same time. It’s the obligation of providers to create and maintain a safe working environment and to support dignity of risk. Sometimes these might feel or be in conflict with each other. But neither overrules the other. The two sets of obligations will need to co-exist in service delivery. Nobody said life as a provider was easy!
A provider must stop a person doing risky things because the worker/organisation will be held liable if something goes wrong. Duty of care is primarily about protecting people from the provider’s actions, not about eliminating all risks in the person’s life. And strict liability isn’t black and white: it depends on the steps the provider has taken to identify risks, discuss these with the person, identify options and alternatives, assist with supported decision making, suggest safeguards, etc. Liability usually comes from negligence to do any of these things, not just the existence of a risky situation.
If a person has repeatedly taken risks and had a negative outcome, the provider has a duty of care to stop them doing it again. No, although a very small number of authorised restrictive practice situations will allow for this. But these don’t apply to the vast majority of people we support. We all have the right to take risks, not just once but many times. Sometimes that’s when the best learning happens!
A Plan Nominee has the ultimate decision-making power for risky choices. Absolutely not - the NDIS Act contains responsibilities for Plan Nominees to ascertain the person’s wishes and assist them in developing their capacity to make their own decisions. Even if there are formal substitute decision making arrangements in place, like guardianship orders, that doesn’t mean the person doesn’t have dignity of risk in other areas of their life.
My organisation’s policy will always tell me what to do in a dignity of risk or duty of care situation. Wouldn’t that be great! Unfortunately, there’s no policy in the world that can encompass all the nuances of such a complex area. A good organisational policy will include the human rights principles, considerations and maybe a framework or list of resources for workers. But implementing dignity of risk happens at the front line.

Dignity of risk does mean people have to live with the consequences of their actions (within boundaries). Tim Tams are delicious: that is a universal truth. If I gobble down ten or twelve Tim Tams tonight, I’ll probably have a sore stomach tomorrow. That’s ok, I might just have one or two next time. It’s not anyone’s job to insulate me from that learning experience. But I won’t learn that unless I go through the pain of eating twelve Tim Tams.

None of this is easy. So, what can providers practically do to have a dignity of risk-first approach in the NDIS service delivery?

Discuss both concepts with each person you support, so that everyone has a shared understanding (and a shared agreement) on what dignity of risk looks like in practice. This, of course, will need to be done using the person’s preferred language and communication methods. It’s also a good idea to link these discussions back to the goals in the person’s NDIS Plan.
Encourage support staff to move their head out of compliance and policy mode, and into human rights mode. Some workers and providers have a knee-jerk reaction to “no, that’s too unsafe” rather than exploring the idea more deeply and approaching a challenge from a solutions perspective.
Try, try and try again. Trial and error are a natural part of life and of a dignity of risk approach. Don’t shut the whole thing down just because someone has a negative experience, it’s an opportunity to tweak something and try again. Unpleasant experiences are still learning experiences.
Access decision-making support where necessary, like advocates and circles of support. These might take some time to set up, but we’re in it for the long haul. The person might also prefer to use a formal supported decision making tool (the NDIA has a Supported Decision Making Hub with loads of resources) to work through some different dignity of risk options.
Work with the person to find some alternatives that still allow risks to happen, without necessarily jumping straight into the deep end. So if a person wants to go out to a nightclub alone, you could support them to: find other people to go with for a trial run, scope out the venues that have a safe atmosphere or create a plan for what to do if things go wrong.
Co-develop a dignity of risk plan that covers key elements of autonomy the person has in their life, potential risks, what risks they are willing to take and steps all parties can commit to.
Document, document, then document some more. We don’t want all of this golden knowledge and these fantastic approaches sitting solely in one support worker’s head. Record and document conversations around dignity of risk, decisions, considerations, actions, commitments, concerns, research, changes to circumstances and situations, risk goals and more. Collecting this information helps to be transparent in this potentially tricky area.