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‘No mans land’ between OHS legislation & the Disability Service sector
Gaye Cameron, Project Manager – Disability Safe, NDS
December 2007
Preamble – “Evolving safety culture within the disability sector and compliance”
The goal of this paper is to draw attention to a significant and growing tension that exists between the application of Occupational Health and Safety (OHS) legislation and the obligations of disability service providers under disability legislation and funding agreements with governments. Our purpose in highlighting this tension is to seek a body of knowledge to inform the courts and judicators of the complexities of implementing OHS and disability service work, and to gain a more sound understanding of the synergies already in existence with OHS practices and the disability sector. We also need to keep in mind that we don’t compromise the rights of people with disabilities nor the health and safety of the people who work with them.
The disability service delivery has changed substantially since passage of the Disability Services Act 1986 (DSA). Prior to this, the support for persons with a disability was primarily based on congregated service models for provision of residential support, employment and activity programs. As such, disability service facilities had more than a passing resemblance to hospitals and residential aged care facilities.
[1]Supported employment services reflected the purposes for which they were developed – to provide work-like experiences and generic social and work-related skills for people with a disability – rather than the commercially focused, viable enterprises they now are. Open employment services were in their infancy and passionately pursued the rights of and opportunities for people with a disability to participation in the open labour market.
Non-government disability services quite often depended on untrained though sometimes skilled volunteers to provide services, which opened their liabilities up wider. Work practices were focused exclusively on ‘helping’ people with a disability by any means possible and little thought was given to the consequences of this approach for the health of those who helped. In addition, the quality of services and the extent to which they facilitated the personal development and social participation of people with disability was highly variable.
Specification of disability services standards provided, as it was intended to, a change to the disability services. These services are now predominantly based in or much closer to the homes and communities in which service users live. New methods and models of disability service delivery developed which, while materially improving the lives of service users, were necessarily more complex to administer and required specialised skills and disciplines to deliver appropriately. In addition, disability services now support individuals presenting with a wider range of disability types, such as autism spectrum disorders and acquired brain injury, and, consequently, a wider range of support needs. These changes, together with the need to demonstrate compliance with mandated service standards at both state and national levels led to the establishment of an increasingly professional workforce and a singular focus on achievement of the rights-based objectives of the DSA and state-based legislation enacted later.
Over the same period, governments across Australia began to seriously focus on the incidence of workplace injury and on methods of reducing the human and economic costs associated with them. In recent years, the industry sector in which most disability services are classified – Health and Community Services – have been the focus of increased attention by work safety regulators in Australia. This focus necessitated a re-examination of disability service delivery by providers and revealed a number of unresolved tensions between recently established policy settings and service delivery practices which developed in answer to the Disability Service Standards. With this in mind, current policy directions expect the service providers to balance their ‘duty of care’ to their clients with the ‘dignity of risk’ that comes from empowering clients to exercise their choice and actively participate in a social/economical life style.
These directions are threatened by a rigid and insensitive enforcement of Occupational Health and Safety regulations. During the past five years, some of the National Disability Service (NDS) member organisations have continually reported that OHS safety inspectors in some jurisdictions are adopting a ‘zero tolerance’ approach that demonstrates little understanding of the ethos and principles that govern disability services.
OHS regulations treat all service delivery sites as work-sites. But in the context of disability services, these work-sites may also be people’s homes or community settings ranging from an educational institution, a café, respite day-care centre, accommodation centre to a public park. Service providers cannot be reasonably expected to exercise the same risk management over these sites as they can over a conventional work-site where they have primary responsibility and control. An example of this – a carer taking an intellectually disabled child to a local government park has no control over the hazards and associated risks with the playground equipment. These risks are owned or ‘controlled’ by the local government. Moreover, to apply an extensive OHS regime to a person’s home would substantially detract from its home-like qualities and thus conflict with the principle of ‘normalisation’. In some cases, it would also incur financial costs that service providers are not funded to bear. An example of this - the proposal that non-ambulant clients in their own homes should only be moved with the assistance of a hydraulic lift to mitigate the risk of the carer injury themselves, and according to the new National Code of Practice for Manual Handling, on in extreme circumstances use a ‘team lift’ (two of more persons) to move the client. This is in most cases impracticable and unreasonable.
“Disability Sector Safety Standards”
Responsibility for the provision of disability services in Australia is shared between the Commonwealth and each state and territory. The Commonwealth Disability Services Act 1986 (DSA) provides for the definition of disability service standards. These standards emphasise the rights of people with a disability to participate on an equitable basis with the mainstream Australian community and form the basis of disability services legislation that is enacted in each Australian state and territory. As stated above, establishment of disability standards led to the development of work practices focused exclusively on achievement of the rights-based objectives of the DSA and complementary state-based legislation enacted later. These rights were to be asserted by assisting people with a disability to “risk” participation in activities not previously available to them. For example the NSW Disability Services Act states services must be provided in a way that:
· Ensures that the conditions of the everyday life of people with disabilities are the same as, or as close as possible to, those of the general community, and
· Promotes the participation of people with disabilities in the life of the local community through maximum physical and social integration in that community.
All OHS legislation, on the other hand, requires the elimination, minimization or control of workplace risks. A clear tension therefore exists between disability services standards and the workplace safety obligations of employers providing disability services. Disability service providers in every state and territory have few specific guides to the appropriateness or otherwise of common disability service practices in relation to OHS obligations. This lack of clarity can expose organisations to risk of prosecution resulting from workplace injury occasioned by pursuit of rights-based service objectives. Alternatively lack of specific guidance may restrict the delivery of services to those activities which pose few and known risks. It can also restrict the delivery of disability services for individuals where control of risks is complex or expensive.
Resolution of this tension might be achieved through specification of a disability service standard requiring the methodical assessment and management of specific risks associated with disability service delivery. The objective of such a standard would be to acknowledge that workplace safety is a necessary pre-condition of legislatively compliant disability services and a key determinant of the quality of services.
“Treatment of safe service delivery under Commonwealth State and Territory Disability Services Agreement (CSTDA) arrangements”
The position of National Disability Services in relation to the current CSTDA negotiations has previously been communicated to the Australian Government. The NDS position was clear in its support for improved performance measurement as one of the key principles upon which any new agreement should be based. Recognition of the fixed costs of service delivery through funding indexation arrangements was also a key element of the NDS position.
Workers’ compensation and related costs constitute a substantial proportion of the indirect fixed costs of disability service delivery. Workers compensation regulation across jurisdictions punishes poor or inconsistent management of workplace risks by using the cost of workplace injury to raise workers compensations premiums across that industry sector in addition to increasing premiums of under performing employers individually. Because of the cultural features of disability service delivery described above, control of these risks and associated costs is only now emerging as an issue requiring serious attention. It is therefore necessary to address the issue of workplace safety in the CSTDA because of its primacy in establishing parameters of disability service delivery nationally. Consistent with the NDS position on the definition of measures to gauge the effectiveness of the CSTDA, performance measures should be developed to indicate improvements to risk management across jurisdictions.
A national approach to the control of workers compensation costs through management of risks associated with disability service delivery would increase the proportion of CSTDA funds available to directly support people with a disability to a quantifiable extent. The need for such an approach is supported by more than anecdotes from the field. As discussed in detail below, the Health and Community Services industry grouping, under which disability services are predominantly delivered, is currently one of the five industry groupings which upon which the National OHS Strategy 2002-2012 is focused[2]. This attention under the national strategy is based on the number and cost of workers compensation claims within the industries represented in this grouping.
“Industry Codes of Practice”
Occupational Health and Safety is the responsibility of each state and territory government in Australia. There are ten principal OHS statutes across Australia — six state, two territory and two Australian Government. Each has the core objective of preventing workplace injuries. All Australian OHS legislation is based on the principle of a general duty of care owed by those having control of workplaces. Compliance with this duty is based on the assessment and management of workplace risks. This general duty is given structure by extensive regulation and codes of practice in relation to some industries, in some jurisdictions[3]
In this diverse regulatory environment, disability services are dependent on guidance materials produced by individual jurisdictions in order to determine their compliance with occupational health and safety regulation. There is no comprehensive guidance available specifically tailored for disability services in any jurisdiction and no industry codes of practice have been formulated in relation to any facet of disability services in any jurisdiction.
Guidance material provided to assist the wider community services sector, in which disability services are located, is often too general to allow ready application to the circumstances and culture of disability services. Some issues have been addressed in individual jurisdictions. 2006, the NSW Disability Services Occupational Health and Safety Project (DSOP) identified three key risk areas for disability services and developed guidance materials to assist meet those risks. In other states, some resources have been published to address emerging issues in relation to some risk areas, such as service delivery in private dwellings. Essentially, however, the availability of OHS guidance material for disability services is better characterised by its absence than by examples of what has been developed.
Following DSOP, National Disability Services implemented the new program for a two year period pursuing the ideals derived from DSOP – this new project, to which I manage is ‘Disability Safe’.[4]
The National Safety and Compensation Council (ASCC) comprises state, territory and Australian ministers responsible for OHS and workers compensation regulation in Australia. Its role is, in part, to promote national consistency in the national OHS and workers’ compensation regulatory framework[5]. This body agreed a National OHS Strategy 2002-2012. One of the strategies developed by the ASCC to achieve its objectives is to develop industry codes of practice. While such codes are not binding within individual jurisdictions unless adopted as part of local OHS regulation, such codes in relation to specific, perhaps unique, risk areas would contribute to development of an authoritative body of knowledge to guide disability service employers, regulators and those responsible for judging the merits of any prosecution brought against funded disability service providers.
Some of the priority issues include accommodation support, community support, community access and respite services may be provided in service users’ own homes or in community settings. Where this is the case, the employer has responsibility for the safety of staff but may not have control over the environment in which services are provided.
Disability service providers find themselves in the invidious position of trying to comply with two sets of legislative demands that, in important respects, conflict. OHS regulators are not accountable to disability legislation and disability service regulators are not accountable to OHS legislation. The tension has thus been left unfairly to service providers to resolve: it should be resolved by government.
It seems beyond the capacity of the Courts to resolve. As noted in the Productivity Commission’s Interim Report, there has been an increase in litigation resulting from OHS breaches, a trend that is reflected in the disability services sector. In one case, a service provider was deemed negligent for failing to protect an employee adequately against an aggressive client. The Service Provider explained that the service was delivered according the requirements of the Disability Services Standards, the DDA and the funding contract with government. The Court did not accept this as a mitigating factor, ruling that the safety of an employee was paramount. Remarkably, it recommended that the aggressive client be institutionalised, although this is not an option that is available to most service providers.