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Research and Practice in Intellectual and Developmental Disabilities Volume 10, 2023 - Issue 2
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Article

Australian work health and safety enforcement regarding service provision to people with disabilities: lessons for service providersFootnote*

Alan Hougha Living with Disability Research Centre, La Trobe University, Bundoora/Purpose at Work Pty Ltd, Canberra, AustraliaCorrespondence[email protected]
ORCID Iconhttps://orcid.org/0000-0002-5004-447X
ORCID Icon,
Christine Bigbyb Living with Disability Research Centre, La Trobe University, Bundoora, AustraliaORCID Iconhttps://orcid.org/0000-0001-7001-8976
ORCID Icon &
Dru Marshc Public Service Research Group, School of Business, University of New South Wales, Canberra, AustraliaORCID Iconhttps://orcid.org/0000-0001-9027-8601
ORCID Icon
Pages 91-112 | Accepted 01 May 2023, Published online: 25 May 2023

Abstract

In Australia, work health and safety legislation applies to all workplaces, including those where disability-related supports and services are provided. It is thus relevant to people with disabilities (including people with intellectual disabilities) and the workers supporting them. The legislation allows work health and safety regulators to take enforcement action against people and organisations that breach their legal duties, including through prosecution and agreeing to enforceable undertakings. Using legal databases and registers of enforcement actions, this article examines the extent and circumstances of prosecutions and enforceable undertakings in Australian disability-related services and supports and identifies nine lessons for providers of services to people with disabilities.

In Australia, health and safety in service provision for people with disabilities, including people with intellectual disabilities, is regulated by two regimes. First, state and territory-based work health and safety legislation imposes positive duties to promote the health and safety of workers and others in the workplace, including clients (Marsh, Citation2021). It emphasises prevention but also deterrence, including provisions for prosecution and enforceable undertakings. A prosecution usually involves criminal charges, while an enforceable undertaking is a promise, enforceable in court, to do or to refrain from doing certain activities, made by a person or organisation allegedly in breach of the law. Second, Federal legislation regulates the quality and safety of supports to people with disabilities who are participants in the National Disability Insurance Scheme (NDIS) (Hough, Citation2021).

Work health and safety legislation in Australia is complex (see Johnstone & Tooma, Citation2022 for a historical account). It is based on an approach derived from the Robens Report in Britain (Committee of Safety and Health at Work, Citation1972), which places broad general duties on people and organisations to protect the health and safety of employees and others in the workplace. Legislation differs across Australian states and territories, although since 2009, attempts have been made to harmonise it through model legislation. In 2011 and 2012, states (other than Western Australia and Victoria) and both territories adopted legislation derived from the national model legislation (for the latest version, see Safe Work Australia, Citation2019). Western Australia enacted legislation consistent with the national model in 2020. However, even in the model-aligned jurisdictions differences remain as the detail of provisions have deviated from the model legislation (e.g., those in relation to penalties).

Under the model legislation, the duty to ensure health and safety primarily falls on a person conducting a business or undertaking (hereafter we use “business” to refer to “a person conducting a business or undertaking”, although recognising the legal meaning is broader). A business must “ensure, so far as is reasonably practicable, the health and safety of (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person” (s. 19(1)). This duty extends to other people in the workplace, such as people with disabilities who are clients: the business “must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out” (s. 19(2)). Duties include obligations in respect of the work environment, systems of work, handling and storing of materials, facilities, and providing information and training, and are detailed in s. 19(3).

The model legislation imposes duties on others as well as the business. For example, people who are deemed officers, such as board directors and executive managers, must be diligent in ensuring that the business complies with its duties or obligations (s. 27). A worker must “take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons” (s. 28). There are also obligations on anyone else at a workplace, such as a client, their family members, friends, or volunteers, to take “reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons” (s. 29).

Prosecutors can seek criminal sanctions against anyone in breach of their duties, subject to certain exceptions (Johnstone & Tooma, Citation2022). Penalties depend on the severity of an offence and who commits it, namely a business, an individual, an officer, or a body corporate. For example, the most serious Category 1 offences carry a maximum fine of $3 million for a corporation, while less serious Category 3 offences carry a maximum fine of $50,000 for an individual worker. Maximum penalties have increased over time and penalties can vary by state and territory.

Victoria has not adopted the model legislation and uses different terminology: “occupational health and safety” rather than “work health and safety”; “employee” rather than “worker”; and “employer” rather than “person conducting a business or enterprise”. It has no equivalent of the s. 27 due diligence requirements of officers under the model legislation, although s. 144 of the Occupational Health and Safety Act 2004 (Vic.) can make a company officer liable for “failing to take reasonable care”.

However, the differences between those states and territories following the national model and Victoria should not be overstated. All the legislation is outcomes-based and based in risk minimisation principles and penalties in the Victorian legislation are sometimes similar to those that apply in other jurisdictions.

Likewise, although legislation in jurisdictions may change across time, such changes are likely to have limited practical impact on the case studies reported in this article. For example, while the ways offences are phrased may differ, the same facts reported in the case studies would likely result in charges. Notably, some changes across time are significant, particularly the maximum penalties that apply at different times.

Regulators have a range of compliance and enforcement powers, including issuing improvement or prohibition notices, entering into enforceable undertakings, and instigating prosecutions. This article focuses on enforceable undertakings and prosecutions as these are publicly reported. A detailed description of the mechanics of enforceable undertakings and prosecutions is beyond the scope of this article but is given elsewhere (Johnstone & Tooma, Citation2022, pp. 306–308, in the case of enforceable undertakings; and pp. 315–326 in the case of prosecutions).

Only a small body of research has explored work health and safety in disability service provision. It flags potential clashes between work health and safety and disability service quality requirements (Cameron, Citation2008; Chan, Citation2016), the potential impact of individualised funding regimes such as the NDIS (Cortis & Van Toorn, Citation2022; Cunningham et al., Citation2011; Ho, Citation2021; Stavropoulos, Citation2014; van Toorn & Cortis, Citation2022), and the role of deterrence in regulatory regimes (Marsh, Citation2021).

Chan (Citation2016) highlighted the potential clash between work health and safety practices, which emphasise controlling risks to workers arising from a client’s behaviours of concern, and human rights approaches to people with disabilities, which emphasise avoidance or minimisation of restrictive practices that breach human rights. He argued that that work health and safety provisions cannot stand alone and should be informed by evidence-based practices such as positive behaviour support. (Positive behaviour support is a “multi-component approach, which aims to understand the reasons for challenging behaviour and create change both at the individual level through expanding a person’s repertoire of behaviour and in a person’s social, environmental or support system through redesign” (Hogan & Bigby, Citation2023). In a similar vein, Marsh (Citation2021) advocated for closer working relationships and better understanding between work health and safety regulators and the NDIS Quality and Safeguards Commission, which is responsible for regulating services under the NDIS.

Cunningham et al. (Citation2011) hypothesised the negative impact of new United Kingdom social care individualised policies on the health and safety of workers. This is supported by the limited available evidence about the Australian individualised scheme, the NDIS. Ho (Citation2021) found that 80% of respondents to his survey of disability workers and managers believed the NDIS had a negative impact on the health and safety of workers, and 49.3% believed that the impact was very significant. Cortis and van Toorn (Cortis & Van Toorn, Citation2022; van Toorn & Cortis, Citation2022) found similar concerns in a survey of NDIS frontline workers, many of whom felt unsupported to manage the personal safety risks that arose from supporting clients with challenging behaviours.

In terms of deterrence, Marsh (Citation2021) drew attention to the much greater penalties imposed by work health and safety legislation compared to the NDIS legislation. However, more generally, Johnstone and Tooma (Citation2022) suggested the full potential of deterrence in work health and safety prosecution is not being realised, pointing to the low levels of prosecution, few occasions when maximum penalties are imposed, and at times marked differences between jurisdictions (being the Commonwealth, each state, and both territories) in prosecution and penalty arrangements. They suggested that one of the reasons for low penalties despite the significant harm caused by a breach of duties is that courts must consider not only the nature of the offending and aggravating factors but also mitigating factors. To date, no analysis has been undertaken of the enforcement actions in relation to the provision of services to people with disabilities. The data for such an analysis are publicly available in the registers of prosecutions and enforceable undertakings under work health and safety legislation in each state and territory, although these have been critiqued as lacking sufficient detail for fine analysis (Johnstone & Tooma, Citation2022). Legal databases were also accessed.

Aims

This article explores the use of particular types of enforcement powers of work health and safety legislation in relation to service provision to people with disabilities, the circumstances when they are applied, and the penalties and situations that led to harm of clients or workers. The research questions were: (1) what is the number and nature of prosecutions and enforceable undertakings in relation to the provision of services to people with disabilities; and (2) what can service providers learn from these cases that might improve the safety of their workers and clients? These cases also raise wider policy issues, such as the apparent reluctance of work health and safety regulators to take enforcement action when crimes are committed against people with disabilities compared to workers, arguably making these crimes invisible, which will be considered in a related article (Marsh et al., Citation2023 in preparation).

“Case” is used in two different ways; referring to a research method as in “case study”, and referring to a case before a court or tribunal, noting that some enforceable undertakings are case studies but not cases before a court or tribunal.

Method

The study used database searches to identify cases where work health and safety legislation had been enforced in disability service provision and qualitative methods to categorise and conduct a cross-case analysis. In January 2023, legal databases (Jade.io, CCH Intelliconnect Work Health and Safety, and Austlii) and regulators’ online registers of prosecutions and enforceable undertakings were searched. The legal databases were searched for documents or cases where “work health and safety” or “occupational health and safety” and “disab*” or “support services”, and “criminal” appeared. As these databases contained only reported decisions of some courts and tribunals and not always those of lower courts (such as local courts or magistrates’ courts), the online registers of prosecutions and enforceable undertakings of each of the work health and safety regulators were also searched using similar terms (with the exception of enforceable undertakings in Western Australia, which are a new feature of the Western Australian legislation and, at the time of writing, yet to be reported).

The 27 case studies identified were read, summarised, and categorised by state, date, relevant legislation, risk of nature of harm, and size of the penalty. A thematic cross-analysis was conducted using the coding and sorting tools in NVIVO software.

Findings

summarises the key elements of each of the cases. The risk or harm category in the table does not necessarily refer to the actual breach of the legislation. For example, in the Burwood Road Group Home case, the harms were the physical and psychological injuries to employees inflicted by clients; however, the charges related to things such as the failure of the employer to provide adequate emergency procedures, to ensure appropriate investigation of incidents, and to ensure employees were supervised to manage client behaviours. As the case law demonstrates, a business can be prosecuted for failure to manage risks appropriately, even if there was no harm; also, a business that is proactive about its work health and safety responsibilities might not be prosecuted even if harm occurs. Thus, Mitchell Hazzard’s employer was not prosecuted despite Hazzard’s conviction as an individual worker (Atkin, Citation2021; Community Lifestyle Support, Citation2019). The year reported in is that of the judgment if a prosecution or the year signed if an enforceable undertaking.

Table 1. Work health and safety cases relevant to service provision to people with disabilities.a

Description of cases

First, it is important to acknowledge the real-world suffering of workers, clients, and others that the cases capture, and to note that the tone of some of the commentary in the cases about behaviours of concern by people with disabilities does not reflect current values about human rights and evidence about the use of positive behaviour support.

Cases were identified over a long period, namely 1999–2022, and their small number suggests relatively little use of prosecutions and enforceable undertakings in disability service provision. In many years, no enforcement actions of these types were concluded. The exception is 2021, where there were 6 cases. It remains to be seen whether this year (2021) is an outlier or the beginning of a new trend. If there is such a trend, it probably relates to an increased willingness of regulators to take enforcement action rather than declines in the quality of practice or external factors, such as the impact of COVID. (To put the matter beyond doubt, there are no direct links between the cases and the COVID-19 pandemic.) Twenty-three of the cases involved a prosecution alone; there were just 4 enforceable undertakings identified, with 3 of those emanating from Victoria.

Most cases were from New South Wales (11) and Victoria (9), with just a handful of cases scattered across the Australian Capital Territory (2), Queensland (1), and South Australia (4). No cases could be located in relation to the Northern Territory, Tasmania, or Western Australia. These figures reflect Johnstone and Toomas’ (Citation2022) finding from the analysis of all work health and safety cases of marked differences in enforcement actions across the states and territories. Further, the apparent drop in New South Wales cases may have arisen from that State Parliament’s decision in 2011 to abandon both the “reverse onus of proof” and the right of unions to prosecute alleged breaches (Stoner, Citation2011).

Overwhelmingly, the case studies were against disability service providers (including government departments, 20 cases). Six cases concerned schools, and one a hospital. Eleven of the cases concerning disability service providers were in residential settings, with six in traditional group homes.

Of the 24 cases against organisations, 13 involved public sector entities, and 11 not-for-profit organisations. This reflects changes in disability service providers over time, with many of the cases that involved public sector entities being in the period when government departments were service providers. There were no cases involving for-profit service providers, which probably reflects the low rates of for-profit entities in the disability service market prior to the NDIS (Productivity Commission, Citation2011).

The small number of cases (3) where individual workers were prosecuted under work health and safety law does not reflect the number of workers prosecuted under general criminal law for matters such as physical and sexual assaults of clients. There have been no cases of work health and safety prosecutions of people with disabilities as defendants, even though in 17 cases the people with disabilities were the “perpetrators” of assault. Of those cases, 11 concerned people whose disabilities included intellectual or developmental disabilities, two people with psychosocial disabilities, and one person with acquired brain injury. The apparent lack of action against perpetrators with disabilities is likely to be because they were either charged with other criminal offences or were held not to be legally competent. No other people such as relatives or volunteers have been charged with work health and safety offences, nor have there been any successful prosecutions of directors or executives in the disability sector for failure to exercise due diligence (s. 27 under the Model Law). However, the prosecution of the directors of Integrity Care SA Limited may be the first (Hough, Citation2022).

Most cases concerned harm or risk to workers (18) rather than to clients (7). Two involved harm to supported employees, people who were both clients and workers. Even though work health and safety legislation is supposed to protect any person in a workplace, regulators have traditionally focused on employees. Indeed, it was not until 2011 that enforcement action about harm to a client was taken, and in that case, it was in relation to a supported employee. The first judgment in relation to harm to a person who solely had the identity of a client (and not the additional identity of the supported employee) was not until 2013. The many cases where judgements have recorded harm to both workers and to people with disabilities, and yet charges and hence the convictions related only to harm to workers, will be explored in a related article (Marsh et al., Citation2023, in preparation).

Five cases involved death because of an incident. Physical assault was the most common type of incident (14), followed by neglect (7), sexual assault (3), and physical injury (3). For many of the assaults, the injuries were psychological as well as physical, including depression, anxiety, and post-traumatic stress disorder. In some cases, workers who had been assaulted and developed psychological injuries retired due to ill-health.

Penalties applied to the three individual workers convicted ranged between $6300 and $15,000. No individuals were jailed for work health and safety offences (although there are examples outside the scope of the project of workers being imprisoned for other criminal offences (Hough, Citation2022)). For organisations, penalties ranged between $0 for a non-pecuniary order to provide education to the disability sector and $294,000. These figures reflect the findings from analysis across all work health and safety cases that maximum penalties are rarely imposed by the courts (Johnstone & Tooma, Citation2022).

In at least two cases, the Disability Forensic Assessment and Treatment Service Centre case (paragraph 32) and On Track (Cordeiro & Bishop, Citationn.d.), regulators initially decided not to prosecute. Section 231 of the model law and section 131 of the Victorian legislation enables any person (including legal “persons” such as unions or advocacy groups) to request the regulator to bring prosecutions for serious offences if a prosecution has not been initiated in the six months after a breach.

Lessons for service delivery

Detailed judgements and enforceable undertakings can inform service providers about the particular risks and their mitigation. These documents can be found by searching databases or registries using the citations provided in . This part of the findings describes the nine themes or lessons for service providers from the cross-case analysis of the 27 case studies. summarises these with example cases.

Table 2. Lessons from the cases.

Lesson 1: providers are responsible for health and safety, even if risks are created by others

Responsibilities of businesses for work health and safety include avoiding or mitigating the risks created by others. In the Kurrambee School case, the Full Court held (paragraph 42):

The fact that risk was not created by, or under the control of, a defendant is not to the point … The defendant’s obligation under … the Act is to ensure the safety of employees. That may be done by eliminating or preventing or minimising exposure to, any risk, however, it may have come about or … by taking all reasonably practicable steps to ensure employees are not exposed to the risk.

In this case, two factors contributed to the assault that were beyond the school’s control: a teachers’ strike and a marked change in the student’s routines because of inclement weather. The Full Court (paragraph 72) accepted these factors contributed to the risk, but so too did the school’s decisions around staffing in the light of the strike; thus, the employer was held liable. Generalising from the judgment, inclement weather at times is inevitable and teacher strikes are a periodic phenomenon; thus, schools should identify their risk management strategies accordingly.

A provider’s responsibility to address risks created by others was affirmed in the Northwest case where the court found that the referring government department had “flicked [the client] to the defendant without providing full information as to [the client’s] condition and needs”, with the service provider “caught unaware, unprepared and unable to cope” (p. 11). Similarly, in the On Track case, the service provider was in breach of the legislation even though it had not been provided important information from the referring hospital.

Lesson 2: when instances of serious harm occur, providers should expect that these will illustrate failures in their systems

When serious harm occurs the reliability of formal systems will be tested and weaknesses are often demonstrated by the things that went wrong. The fact that harm does not occur 99% of the time does not usually save the business from adverse findings in the 1% of times when things go wrong.

Courts will expect risk assessments are completed, considering the circumstances of the individual client or clients to be supported, the individual workers rostered to provide support, and the physical environment. Providers must consider likely contingencies; risk management strategies must be appropriate to identified risks and supported by strategies such as sharing key information, training workers, and providing adequate equipment. For example: what happens when a worker needs to visit the bathroom when one-to-one support of a client might be needed at all times for their safety; what happens if a rostered worker who has been briefed about risk management strategies is ill on the day and is replaced at the last moment by another worker who has not been briefed? Such examples are mundane but can have a profound impact on work health and safety.

Lesson 3: providers’ commitments to work health and safety cannot be just on paper

The evolution of a more serious approach to work health and safety issues is evident in the way more systematic approaches have developed since the Burwood Road Group Home case, where there was an “air of the blasé” (paragraph 63). Nevertheless, more recent cases have highlighted how readily systems can fail and that more than policy statements are needed. In the Dover Heights High School case (judgment on guilt, paragraph 192), the Court quoted with approval another judgment, which stated:

The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its “paper systems” are implemented and maintained in its daily operations…

Further, the judge relied (sentencing, at paragraph 23) on the decision of the court’s President in another matter regarding what constitutes the employer’s system of work:

The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged – the system of work is that actually utilised and operated at the place of work. “Paper” systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant.

What matters is the “work as done” not the “work as imagined” (Hollnagel, Citation2015). In fact, a paper system not implemented will likely be used as evidence of a provider’s failure to comply with its duty as it helps prove what action was “reasonably practicable” (Marsh & Peterson, Citation2015).

Lesson 4: providers’ quality and safety management systems must be comprehensive and dynamic

The system of policies, procedures, forms, training, and practices (typically referred to as “the quality management system” or “the safety management system”) must be comprehensive and effective. In the On Track case, concerning the murder of a support worker by a client with psychosocial disabilities recently discharged from hospital, the court held (at paragraphs 168 and 169):

those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks. [Emphasis added]

Overall, the existence of various policies and systems shows the defendant had endeavoured to deal with risks … [However,] at the time of the incident employees were not prohibited from visiting clients for whom all relevant documentation (including discharge summaries) had not yet been received nor were they required to visit in pairs (except where clients were [currently] deemed “aggressive” or “violent”).

This quote demonstrates the real challenges providers face in meeting work health and safety requirements: is it realistic to expect providers will identify all possible risks? In the On Track case, the client a year prior to the murder was “such a success story” that it had been arranged for him to meet with the New South Wales Minister for Mental Health at his home (paragraph 97). However, the court held that the violence against the worker was foreseeable given the client’s history of violence and recent hospitalisations (paragraph 193), and the provider had failed to protect its staff member from such violence. Safety management systems should be regarded as risk management tools – not compliance requirements: they are rarely fail-proof and perennially vulnerable to becoming outdated. They may enhance safe systems of work – but they should not be seen as the sole means to satisfy legal requirements. Their legal value may reside more in mitigating culpability during sentencing rather than proving innocence (Marsh & Peterson, Citation2015).

Lesson 5: providers must identify and manage risks arising from the physical environment

Several cases raise issues about physical environments. In the Burwood Road Group Home case, the two-storey home added to the difficulties of supervision and support. The house layout tended to concentrate staff and clients in one area, and thus the interactional risks. Further, there were no spaces to which clients could withdraw if they were experiencing sensory overload. In the Newcastle Special School case, a teacher and teacher’s aide were taking students on an excursion for swimming and then a barbeque. The barbeque was coin-operated and the teacher left the area to seek coins from a local shop. In the next few minutes, a student held the teacher’s aide under water, ultimately resulting in her death. Although the facts of these cases are markedly different, they all demonstrate the importance of considering the physical environment.

Again, the analysis demonstrates the challenging circumstances that providers face in achieving work health and safety for staff and clients. For example, when supporting clients with community access, they move through a variety of different environments and it is arguably not reasonable to risk-assess every environment.

Three cases demonstrate the importance of the work health and safety risks of equipment in use. In the Australian Home Care Services case (Citation2017), the danger was a tilt table; in the Barossa Enterprises case, it was an unguarded machine in a disability enterprise; in the Murray Human Services (Citation2012) case, it was a saw.

Lesson 6: providers must obtain relevant information and ensure that it is shared with those who need it

Problems with information flows about known and suspected risks between organisations and within organisations feature heavily in the cases. The Snap/FACS cases concerned the deaths of a worker and a child with a disability in out-of-home care when being transported after a weekend of respite. The known risks of the child absconding from seat restraints (including the most secure on the Australian market) and moving vehicles were realised with fatal consequences for both the client and worker. The risks had been documented in the departmental records. One of the reasons the court gave a larger penalty to the Department was that it “did not provide or share any information with Snap [the provider] about [the client] for the purposes of providing respite care” (paragraph 66). Nonetheless, the child’s foster mother had informed Snap of this danger when the boy was collected from his residence; further, Snap knew that the Department had not completed its referral form or forwarded the child’s behaviour support plan. Hence, Snap was also held liable. (The child had previously been a client of Snap, which might have led to a belief that it understood his needs.)

In the South Australian Support Services case, the provider was found guilty of failing to assure the safety of a female support worker. The client had a previous conviction for sexual assault of a female support worker. The worker he attempted to rape was not his support worker, but a worker supporting another client in the premises close by. Although the client’s direct support workers were informed of the risk about the client, other workers, including the victim, were not.

An associated issue is that of incomplete information, especially on forms and client databases. In the Disability Forensic Assessment and Treatment Service Centre case, critical information about the client’s history of sex offending was missing from a key form. The court (at paragraph 21) noted that the missing information could and should have been included and the information shared. In this case, the form was incomplete and the risk was not known from other sources: relevant staff stated to investigators that they had no knowledge of the particular risk (paragraph 16).

Lesson 7: providers’ difficulties in attracting and retaining staff are irrelevant to legal requirements

The Victorian Person-Centred Services cases raise the issue of how providers should act when they face difficulties in recruiting and retaining staff. The difficulties are likely to be exacerbated when a client has marked challenging behaviours: higher levels of staff attrition might be expected. In this case, it was known that the client’s behaviours could be triggered if he was supported by unfamiliar workers or who were people of colour. However, associated with staffing difficulties in the regional location where the client lived, a female worker of Sudanese descent on her first shift was rostered to support the client. The court commented (at paragraph 55) that:

Even in difficult circumstances, the safer practicable step was to ensure a different employee covered the shift that evening. Lack of adequate staffing provides no excuse to depart from an employer’s OH&S [occupational health and safety] obligations.

Lesson 8: providers’ actions must be timely

In several cases concerning public sector providers, slow responses to risks, either at the time of the presenting incident or in response to the incident, was an issue. For example, in the Dover Heights High School case, the court (guilt, at paragraph 205) observed that:

The bureaucratic delay in the release of the District Guidance File … and the delay in the decision-making at District level to determine the allocation of any of the possible alternatives for support for [the client] caused a significant increase in the risk. Bureaucratic obstruction comes to mind as a description.

Lesson 9: in determining providers’ multiple responsibilities, work health and safety rights appear to trump human rights and trauma-informed practices

The courts have acknowledged the tension between human rights approaches and trauma-informed practices, and work health and safety responsibilities, especially in the case of assaultive behaviours by clients; however, courts have been unyielding in affirming the need to protect workers. In the Victorian Person-Centred Services cases, the court explicitly acknowledged the tension between trauma-informed best practice and work health and safety obligations (paragraphs 44–52). In that case, the client’s Behaviour Support Summary stated that in the event of assaultive behaviours by the client “staff are not to go to the office but remove themselves from the room and monitor [the client] from close proximity” and “[s]taff are to always be aware of their exits so they can exit quickly if needed. Staff are not to lock themselves in the office … unless [the client] will not stop” (paragraph 21).

At paragraph 46, the court stated:

Workers in a residential care setting are owed the same obligation by their employer to be provided with a safe work place and safe work practices as any other worker. They should not be expected to endure assaults, threats, and abuse by virtue of their occupation … It is also a very difficult balancing act for those responsible for the care of such children to get the balance between trauma-informed best practice and OH&S [occupational health and safety] obligations right. This case is an example of that tension.

The court held that the employer had given too much weight to trauma-informed practice, especially by directing that staff should not lock themselves in the office.

Dealing with human rights-related concerns, the court in the Burwood Road Group Home case (at paragraph 64) stated:

the work environment … was said to be in conformity with the Disabilities Services Act 1986, which supported the transition from institutional to community-based services for clients with disabilities. One of the objects of the Act was that intellectually disabled persons achieved their maximum potential as members of society … This was said to lead to an inevitable tension between the objects of the Disabilities Service Act, the policies and procedures of the defendant in relation to it and the obligation under the Act to ensure the health, safety, and welfare of employees in the workplace.

Quoting another judgment, the court stated (at paragraph 90):

it is inconsistent with the requirements of the [then Occupational Health and Safety] Act, that the defendant permit [staff] to be the subject of physical assault, or indeed, repeated physical assault, by [clients] … Employment on such a basis is not permitted by the Act.

In passing, we note that the Burwood Road judgement predates the United Nations Convention on the Right of Persons with Disabilities (Citation2006).

The right to health and safety, whether as a worker or client, is also a human right. Any distinction appears to arise from the separate regulatory regimes that maintain and enable the enforcement of such rights (Marsh, Citation2021).

Limitations and implications for future research

The 27 case studies were identified after exhaustive searches but probably do not represent the full number of enforcement actions in disability service provision. Some might be missing because it is left to regulators to determine whether and how cases are summarised and the duration of the listing. We understand that instances where a defendant is found not guilty or where the regulator withdraws the charges are generally not reported.

Despite the limitations of the research method, this study has identified cases that in most instances have not only attracted the attention of regulators but also courts and tribunals. The case studies capture instances of significant harm, including deaths, or of serious risk of harm. Each is rich in lessons for disability service providers and workers. The analysis has included cross-case comparison, giving further confidence in the lessons for the service providers identified.

Future research might use other data sources, such as compliance notices issued by regulators, or of legal actions for negligence. It might also collect data from people with disabilities, workers, managers, work health and safety managers, and regulators about their experiences with work health and safety regulation in relation to services to people with disabilities. Further, it would be useful to consider whether some settings, such as residential services, are more prone to breaches of work health and safety law and the reasons for this.

It remains an open question whether individualised planning, funding, and service delivery does indeed increase work health and safety risks as hypothesised by Cunnigham et al. (Citation2011). However, it is clear that in individualised regimes such as the NDIS, the multiple stakeholders (e.g., the National Disability Insurance Agency decision maker, the Support Coordinator, the person being supported, the person’s nominee or guardian, and the behavior support practitioner) increases challenges of coordination and timely responses to dynamic risks. This too should be the subject of further research.

Conclusion

This article has given a relatively comprehensive account of cases where enforcement action was taken by work health and safety regulators because workers or people with disabilities were harmed during service delivery. It is the first time that such an account has been attempted in the Australian literature.

It is striking that over a 20-year period, in a sector that employs hundreds of thousands of workers and supports even more clients, and where allegations of abuse and neglect of people with disabilities are frequently made, there have been only 27 cases of prosecution or enforceable actions. There are five potential explanations. First, as noted in the Introduction, across the nation and across all sectors, there have been relatively low rates of work health and safety prosecution (although with considerable variation by jurisdiction and industry). Second, more overt acts of violence and neglect against people with disabilities have sometimes been the subject of prosecutions under general criminal law rather than work health and safety law. Third, one of the enforceable undertakings (The Crown in the right of the State of Victoria (as represented by the Department of Human Services), Citation2013) had, in one respect, application to disability residential services across the State, and thus a single undertaking had wide application. Fourth, in the past, general expectations of disability services were often low (Productivity Commission, Citation2011) and these low expectations may have extended to some regulators. Fifth, as identified in this article, some criminal failures to provide healthy and safe environments for people with disabilities have been made invisible by the choices made by regulators.

These cases offer important lessons, but it must be noted that the courts and the authors of the enforceable undertakings have the advantage of retrospective attribution or “wisdom in hindsight” (Starbuck & Milliken, Citation1988; Weick, Citation1995). One of the challenges of retrospective attribution of causality is that the same processes can sometimes produce both good and bad outcomes (Starbuck & Milliken, Citation1988). What providers need is wisdom in anticipation. This is much more challenging to achieve. Learning from others’ mistakes is at least one way of achieving this.

The analysis identifies general lessons about the ways that service providers can reduce the risk of harm to workers and clients. A provider’s quality and safety management systems must be based in an authentic commitment to work health and safety, be wide in scope, facilitate dynamic responses to risks, be meaningfully implemented, and updated as required. Providers must address four types of risk, those in relation to: each person the provider supports; each staff member; the physical environment, including equipment in use; and the organisation’s practices. The challenges involved in addressing all nine lessons in real-time should not be underestimated. Of all the parties involved in disability service provision, the provider carries the greatest legal risk and the most extensive responsibility.

It is clear from the cases that some of the workers and providers should have been punished for their crimes: they involved single-cause cases where major lapses in choices and actions occurred. There should be greater enforcement of the law in such cases and perhaps disability advocacy organisations could become as assertive as unions in their advocacy for prosecutions in appropriate cases.

In other cases, the harm resulted not from a single cause but from a combination of circumstances. In these cases, the courts have held that it is “the organisation” but not individual employees who are to blame. While incorporated organisations have legal personhood and therefore legal responsibility, they are in fact fictional entities that act as “villages” of people brought together in different contexts and combinations for time-limited tasks. Thus, the challenges in achieving work health and safety are often about the quality of coordination of people, information, resources, and action.

Without diminishing the need for organisations to be held legally accountable when they fail to achieve such coordination, it is arguable that in some of the cases, the analysis should move beyond notions of “bad people making poor decisions” to “good people struggling to make sense of their circumstances” (Snook, Citation2000, p. 207). Snook commented (Citation2000, pp. 206–207) that this “disturbing” realisation “opened my eyes to the possibility that, given the circumstances, even I could have made the same … mistake”. That realisation can increase our sensitivity to risks and improve our response.

Acknowledgements

The content of this article benefited greatly from the comments of David Broadhurst, Jenny Klause, Myles McGregor-Lowndes, the two anonymous reviewers, and the Associate Editor for this article. Responsibility for the content rests with the authors.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

* Accepted under the editorship of Dr Ilan Wiesel, Associate Editor, Research and Practice in Intellectual and Developmental Disabilities.

References

Appendix 1

Cases cited

The cases cited are in standard legal format, known as the medium-neutral format. The citation begins with the name of the case in italics, the year, the abbreviation of the court or tribunal’s name, and the court’s decision number for that year. To locate a case, go to a legal database and insert, for example, “[2006] NSWIRComm 10”.

Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 10

Barry Johnson v State of New South Wales (Department of Education and Training) [2006] NSWIRComm 275

Campbell v SA Support Services Incorporated [2022] SAET 169

Director of Public Prosecutions v The Crown in Right of the State of Victoria (Department of Families, Fairness and Housing and Victorian Person Centred Services Limited [2022] VCC 1221

Hillman v Barossa Enterprises Inc. [2011] SAIRC 26

Inspector Davidson, WorkCover Authority v Northwest Disability Services Inc [2002] NSWCIMC 30

Inspector De Leon-Stacey v The State of New South Wales (Department of Ageing, Disability and Home Care) [2005] NSWIRComm 131

Inspector Keniry v The Crown in Right of the State of NSW (Department of Community Services) [2002] NSWIRComm 349

Inspector Kilpatrick v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2006] NSWIRComm 167

Mercy Centre Lavington v Kristyn Thompson [2006] NSWIRComm 252

Nursery and Midwifery Board of Australia v Deeranyika [2022] ACAT 87

On Track Community Programs Limited [2013] NSWIRComm 87

Russell v Royals [2013] SAIRC 34

SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2021] NSWDC 259

The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O’Sullivan [2005] NSWIRComm 198

The Crown in the Right of the State of Victoria (Department of Education and Training) [2021] VCC 1956

The Crown in the Right of the State of Victoria (Department of Health and Human Services) [2018] VCC 886

WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259

WorkCover Authority of NSW (Inspector Batty) v Crown in Right of the State of NSW (Department of Education and Training) [2000] NSWIRComm 181

WorkCover Authority of NSW (Inspector Tuckley) v The Crown in Right of the State of NSW (Department of Community Services) [1999] NSWIRComm 402

ACAT is the Australian Capital Territory Civil & Administrative Tribunal

NSWCIMC is the Chief Industrial Magistrate's Court of New South Wales

NSWDC is the District Court of New South Wales

NSWIRComm is the New South Wales Industrial Relations Commission

SAET is the South Australian Employment Tribunal

SAIRC is the South Australian Industrial Relations Court

VCC is the County Court of Victoria.

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