Maria Batchelor

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Risks and Rights Redressing the Imbalance

• Maria Batchelor
• Executive Client Manager,
• Public Sector Community Services
• WorkSafe Victoria

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Who are WorkSafe?
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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

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Risk of injuries to carers
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What is the Impact of Workplace Injuries?

• To carers
• Reduced ability to provide care
• Reduced performance at work broader impact of
  injury on carers 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

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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.

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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
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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

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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

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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

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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.
• Doesnt require agreement
• Doesnt 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

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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

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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

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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 clients 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

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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

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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 carers satisfaction with work/industry
  (attracting more carers to the industry)
• Risks and Rights are a balancing act that can be
  redressed
• Alternatives
• Consultation
• Negotiation

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