Standard of Care

The standard of care owed by Employers to Employees, and by Employees to Employers, is based on the WHS Legislation standard of what was "reasonably practicable" in the circumstances. This means what was reasonably able to be done at a particular time to ensure health and safety, taking into account and weighing up all relevant matters.

"Relevant matters" includes:

• the likelihood of the hazard/risk occurring;
• the degree of harm that might result from the hazard or risk;
• what the person concerned knows, or ought reasonably to know about the hazard or risk;
• the availability and suitability of ways to minimise or eliminate the risk; and
• after assessing the risk, the cost associated with eliminating or minimising the risk.

An example of this would be where staff are required to give medication.  A reasonable practice would be to take care, read instructions, understand what the medication is administered for and to follow instructions written on the packaging by a relevant registered medical practitioner or pharmacist.  By following reasonable practice, the staff member would therefore not be actively harming the person.

In the instance of safeguarding others form injury, it would be unreasonable, for example, not to inform a new staff member that is a particular person with a disability is in pain, the person is likely to strike out and may cause harm to others around them. It is reasonable that if we ensure that person is supported appropriately, then others will have little or no risk.

When working with an Employer, Employees have a significant responsibility to know that person well, to know their needs, to understand their preferences, dislikes and how they respond to their world.  This will also require Employees to understand how their own actions and communication might affect that person.

Effective support means that staff will have a deep understanding and knowledge of what is important to the person and that they will avoid any action or communication that will cause injury or harm e.g.

• not continuing to act in a way that is against the person's wishes and needs;
• not ignoring instructions or preferences that have been voiced or signalled or written; and/or
• taking action if the person indicates that they have been assaulted or harmed.

Breach of Duty of Care

A breach of Duty of Care is a failure to meet the relevant standard of care; that is, when Employees either do something they should not have done, or, when they fail to do something they should have done.

This does not mean that mistakes are a breach of Duty of Care. This will depend on the "reasonable" and "foreseeable" test.  If at any time, an Employee is unsure of their Duty of Care in a particular situation, they should contact the person directing support.