Duty of Care and Incident Management Policy

1. Purpose

Learning for Life Autism Centre Inc (Learning for Life) recognises that Clients, staff and volunteers have the right to be in a safe environment at all times. This Policy details the requirement for all staff to exercise a Duty of Care towards Clients in their care and identifies the standard of care necessary to fulfil this obligation. The Policy provides the guidance to plan for, respond to and manage incidents ensuring Learning for Life staff meet their Duty of Care obligations in providing the highest possible standard of health and safety of Clients.

This Policy should be read in conjunction with the Child Safe and Vulnerable Persons Policy.

2. Policy Statement

1. Under Duty of Care principles everyone at Learning for Life has an obligation to take all reasonable steps to avoid injury or other harm to another person or damage to property as a result of any action or inaction — they have a duty to be careful and diligent in carrying out their duties at Learning for Life.

2. Learning for Life is committed to ensuring the safety and security of all Clients.

3. Learning for Life supports a person-centred approach to delivery of services which may include inputs from families, friends and carers to make informed decisions.

4. Duty of Care shall always be balanced with Dignity of Risk.

5. Learning for Life shall engage employees and contractors that have the right skills and training to meet the standards prescribed by this Policy.

6. Learning for Life recognises the National Guidelines for Best Practice Early Childhood Intervention.

3. Scope

This Policy applies to all staff of Learning for Life and will be implemented with all Clients of Learning for Life.

4. Definitions

Client means, for the purpose of this policy, a child who is enrolled in a Learning for Life program.

Any reference to a Person-centred Approach also includes family-centred approach when considered in relation to providing services to children.

NDIS Commission means the NDIS Quality and Safeguards NDIS Commission. The NDIS Commission is responsible for functions aimed at protecting and preventing harm to people with disability in the NDIS market.

NDIS Commissioner means the NDIS Quality and Safeguards NDIS Commissioner. The NDIS Commissioner shall receive notifications of reportable incidents and oversee providers’ responses to these incidents.

Dignity of Risk is the idea that self-determination and the right to take reasonable risks are essential for dignity and self-esteem, thus should not be impeded by excessively cautious caregivers concerned about their Duty of Care.

Duty of Care means taking measures in order to avoid reasonably foreseeable incidents with Clients. Where a risk cannot be removed it should be minimised.

Incident means an act, omission, event or circumstances that:

  • Occur in connection with providing supports or service to a child or adult person with a disability; and
  • Have, or could have, caused harm to the child or adult person with disability.

Informed consent means permission an individual gives to sharing information, either implied or explicit, after they have demonstrated that they understand the purpose of the request and the likely outcomes of that consent.

Notifiable Conduct means conduct by a disability worker whereby the disability worker has:

(a) practised as a disability worker while intoxicated by alcohol or drugs; or

(b) engaged in sexual misconduct while practising as a disability worker; or

(c) placed, or may place, the public at risk of harm because the disability worker has an impairment that detrimentally affects, or is likely detrimentally to affect, the disability worker’s capacity to practise as a disability worker; or

(d) placed, or is placing, the public at risk of harm because the disability worker practised, or is practising, as a disability worker in a manner that constitutes a significant departure from accepted professional standards.

Serious Incident means:

  • The death of a Client;
  • A serious injury to a Client;
  • Alleged or actual sexual or physical assault of a Client;
  • Significant damage to property or serious injury to another person done by a Client;
  • An event that has the potential to subject a Client or National Disability Insurance Scheme to high levels of adverse public scrutiny.
  • A serious incident may also be a reportable incident.

Reportable Incident means an incident that is mandatory to be reported to the NDIS Commissioner including:

  • the death of a person with disability;
  • serious injury of a person with disability;
  • abuse or neglect of a person with disability;
  • unlawful sexual or physical contact or assault of a person with disability;
  • sexual misconduct committed against or in the presence of a person with disability, including grooming of the person for sexual activity;
  • the use of a Restrictive Practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.

Serious Injury or Illness of a person means:

  • bone fracture;
  • amputation of any body part;
  • serious head, eye or burn injury;
  • degloving or scalping;
  • spinal injury;
  • loss of a bodily function;
  • serious lacerations;
  • any other injury or illness that requires immediate treatment as an inpatient in a hospital for any duration, even if the stay is not overnight or longer;
  • Exposure to a substance that requires medical treatment within 48 hours.

VDW Commission means the Victorian Disability Worker Commission as established by the Disability Service Safeguards Act (Vic) 2018.

5. Communication

1. This Policy shall be communicated to all staff of Learning for Life on its commencement and to new staff members on the commencement of their employment in compliance with Recruitment and Induction Policy and Training and Registrations Policy.

2. Learning for Life shall provide information and training to all staff about this Policy and its application.

6. Duty of Care

1. Learning for Life shall ensure all staff interacting with Clients are aware of their Duty of Care.

2. A Duty of Care involves being aware of the risks of illness, accident or injury while providing services as well as of the obligations to report suspected or actual abuse of children and vulnerable people according to the Child Wellbeing and Safety Act (Vic) 2005 as detailed in the Child Safe and Vulnerable Persons Policy.

3. In order to fulfil the Duty of Care Learning for Life shall:

  • Take all reasonable steps to assess the safety and security of the location where services are provided;
  • Modify, where reasonable, the location where services are provided to equip and furnish the office, treatment rooms, amenities and outside play area to minimise risk to Clients presenting with challenging behaviours that are outlined in the Positive Behaviour Support Policy;
  • Implement appropriate emergency evacuation procedures and ensure they are understood by staff;
  • Ensure that hazardous substances are appropriately stored and locked away, if necessary, outside of reach of Clients who may present with challenging behaviours.

4. Learning for Life shall remove or minimise the risk of harm arising from the delivery of services by having consideration for:

  • Health and nutrition when following an individual Program;
  • swallowing;
  • mobility;
  • maintenance and use of equipment.

5. Risks shall be evaluated in Clients’ Individual Programs in accordance with the Positive Behavior Support Policy and Individual Programs Policy.

6. Risk identification and management planning and support shall be provided with a Person-centred Approach where requested or required by the Client (or a Client’s parent/guardian) to support them in facing risks safely or where an incident has occurred. A Risk Matrix may be used to determine whether reasonable steps and actions are required to eliminate or reduce risk to safety and security.

7. Support and assistance shall be provided to persons with a disability affected by an incident. This support may include:

  • Providing information regarding their access to advocates;
  • Providing information regarding the complaints mechanism;
  • Providing referrals to relevant medical, mental health services, social workers, support groups, etc.

8. Learning for Life also has Occupational Health and Safety obligations to its staff ensuring they are safe and appropriately supported to do their job, and not exposed to health and safety risks. These obligations are outlined in the Occupational Health and Safety Policy and the Emergency Management and Business Continuity Policy and shall not be used to discourage or prevent any reasonable work activity, rather to support a practical approach to risk management.

7. Breaches of Duty of Care

1. A breach of Duty of Care may include the following actions, that are considered prohibited practices, but is not limited to them:

  • Abuse whether threatened or actual physical, sexual or verbal;
  • Wrongful imprisonment;
  • Bullying, harassment, threatened retribution for disclosure of any potential or actual abusive or neglectful practice, strategy or situation;
  • Taking advantage of legal or financial situations to the detriment of a Client;
  • Assault whether intentional or through reckless cause;
  • Negligence i.e. failure to exercise reasonable care and skill to avoid reasonably foreseeable harm.

2. Any breach of Duty of Care outlined here and in the Child Safe and Vulnerable Persons Policy will be treated seriously.

3. After initial notification that may be required, the involved staff member may be suspended from duties whilst an investigation takes place.

4. Should a staff member be involved, an internal investigation shall take place in accordance with the Performance Management and Disciplinary Policy (if this is not in contradiction to the criminal proceedings), Recruitment and Induction Policy and the Equal Employment Opportunity and Bullying and Harassment Policy as a result of a breach of Duty of Care and may result in internal disciplinary action up to and including termination of employment.

5. Learning for Life shall comply with any authorities’ lawful requests in relation to addressing an actual or suspected breach of Duty of Care.

8. Accident and Injury

1. Learning for Life acknowledges that unforeseen and unpreventable accidents may occur occasionally without anybody being at fault but has procedures in place to reduce the risk of hazards as set out in the Occupational Health and Safety Policy and the Infectious Diseases Policy

2. Where a Client becomes ill, or has an accident or injury, all reasonable steps shall be taken to ensure the Client receives appropriate care and attention in a timely manner. If a child’s parent, guardian or authorised adult is not present at the time, they shall be notified as soon as practicable. The child shall be kept under staff supervision until recovery or until a parent, guardian or authorised adult takes charge of the Client or until Emergency Services arrive.

3. All accidents and injuries shall be managed in accordance with the Emergency Management and Business Continuity Policy and Occupational Health and Safety Policy.

4. It is recognised that Learning for Life staff may need to perform first aid in case of an emergency but are not obligated to do so if they are not sufficiently trained or able as relevant to the circumstances. Staff shall follow standard precautions as outlined in the Infectious Diseases Policy when dealing with blood or bodily fluids. Not all precautions need to be applied all of the time and there shall be a focus on the elimination and reduction of risk both to staff and Clients.

9. Serious Incidents

1. Serious Incidents may include death, serious injury, alleged or actual physical or sexual assault that could occur from physical abuse, sexual abuse or inappropriate use of Restrictive Practices. Restrictive Practices are addressed in detail in the Positive Behaviour Support Policy. Types of abuse are addressed in the Child Safe and Vulnerable Persons Policy.

2. A Serious Incident must be reported immediately to Victoria Police if:

  • It is of serious concern or a criminal offence, (e.g., sexual assault, aggravated physical assault, significant Client abuse);
  • There is a need to preserve physical evidence (e.g., medical or scene examination, seizure of clothing);
  • There is a serious risk to the safety or security of any person on site; or a party has an obvious injury resulting from an offence.

Note: An incident shall also be reported if the preceding conditions apply and the Client complains of an injury which may not be obvious but is considered reasonably likely to have occurred given the circumstances of the incident.

3. Any situation involving abuse of a Client (or a Client’s parent/guardian) by a staff member must be immediately reported to the Victorian Police in accordance with the reporting processes outlined in the Child Safe and Vulnerable Persons Policy.

4. Other incidents of concern which, after consideration, are felt to require police intervention, shall be reported as soon as reasonably practicable in accordance with the reporting processes outlined in the Child Safe and Vulnerable Persons Policy.

10. NDIS Reportable Incidents

1. The Chief Executive Officer of Learning for Life is responsible for reporting a reportable incident involving a person with a disability to the NDIS Commissioner in accordance with the NDIS (Incident Management and Reportable Incidents) Rules 2018.

2. All staff shall notify their manager (who must notify the Chief Executive Officer) as soon as they are aware that a reportable incident has occurred in connection with the provision of services by Learning for Life.

3. Most reportable incidents must be notified to the NDIS Commissioner within 24 hours of the staff being made aware of it, with a more detailed report about the incident and actions taken in response to it provided within 5 business days. These include:

  • the death of a person with disability;
  • serious injury of a person with disability;
  • abuse or neglect of a person with disability;
  • unlawful sexual or physical contact or assault of a person with disability;
  • sexual misconduct committed against or in the presence of a person with disability, including grooming of the person for sexual activity.

4. An unauthorised use of Restrictive Practice must be notified to the NDIS Commissioner through the NDIS Commission Portal within 5 business days for a 5 Day Notification of the staff being made aware of it. If there is harm to a participant, it must be reported within 24 hours as an Immediate Notification.

  • A restrictive practice where the use is in accordance with State authorisation, but not in accordance with a Behaviour Support Plan is a reportable incident.
  • A restrictive practice consistent with the Behaviour Support Plan, but where the State does not have authorisation process in relation to the use of the restrictive practice, is not a reportable incident.
  • A restrictive practice where there is negligible contact or impact on the person with a disability is not a reportable incident.

5. A final report on the Incident may also be required within 60 business days of submitting the 5-day report. The NDIS Commissioner will advise providers whether a final report is required.  Restrictive Practice Incidents are:

6. The following must be notified to the NDIS Commissioner in the case of all incidents:

  • A description of the incident including the impact on, or harm caused to, any person with disability affected by the incident;
  • Whether the incident is a reportable incident;
  • If known – the time, date and place at which the incident occurred or if not known, the time and date the incident was first identified;
  • The names and contact details of the persons involved in the incident;
  • The names and contact details of any witnesses to the incident;
  • Details of an assessment including whether the incident could have been prevented; how well the incident was managed and resolved; what, if any, remedial action needs to be undertaken to prevent further similar incidents from occurring, or to minimise their impact; and whether other persons or bodies need to be notified of the incident;
  • The actions taken in response to the incident, including actions taken to support or assist persons with disability affected by the incident;
  • Any consultations undertaken with the persons with disability affected by the incident;
  • Whether persons with disability affected by the incident have been provided with any reports or findings regarding the incident;
  • If an investigation is undertaken by the provider in relation to the incident – the details and outcomes of the investigation;
  • The name and contact details of the person making the record of the incident.

7. The Client shall be referred immediately for assessment by a medical practitioner following a Reportable Incident.

8. A staff debrief shall occur following the event if a Restrictive Practice (authorised or not) is used and staff shall be provided support and counselling as necessary. The debrief shall identify areas for improvement and shall be documented.

9. Following a reportable incident, operations shall continue as required and deemed appropriate by the Chief Executive Officer.

10. Staff involved in a Reportable Incident may be investigated. Any investigation and/or subsequent action shall be undertaken in accordance with principles of procedural fairness and the Performance Management and Disciplinary Policy.

11. Victorian Disability Worker Commission Reporting

1. The Disability Services Safeguards Act (Vic) 2018 requires disability workers and employers to notify the VDW Commission if they reasonably believe that a worker has engaged in Notifiable Conduct, unless the disability worker or employer:

  • knows, or reasonably believes the VDW Commission has already been notified; or
  • is employed or engaged by an insurer providing professional indemnity insurance in relation to the disability worker subject to the notification and the reasonable belief of Notifiable Conduct was formed as a result of disclosure made in the course of a legal proceeding or providing legal advice in relation to the insurance policy.

Notification to the VDW Commission must be made even if the notification relates to an incident that must be reported to the NDIS Commission also.

2. Notifications to the VDW Commission may be made via telephone contact or via the electronic notification form.

3. Where a staff member or volunteer reasonably believes that another staff member has engaged in Notifiable Conduct they must notify their manager. Any manager receiving such notification must notify the Chief Executive Officer. The Chief Executive Officer is responsible for ensuring the notification is submitted to the VDW Commission and must confirm submission to the notifier and their manager once submitted.

4. Where a manager or Chief Executive Officer forms determines that the conduct does not require notification to the VDW Commission, but the staff member or volunteer with the reasonable belief still believes the conduct constitutes Notifiable Conduct, they should notify the VDW Commission directly themselves and inform their manager and Chief Executive Officer that they have done so.

12. Actions Following Reporting or Notification

1. A Serious Incident may require suspension from duties of a staff member or suspension of services delivery to another Client. The Chief Executive Officer has the authority to make decisions in this regard.

2. Should a staff member be involved, an internal investigation shall take place in accordance with the Performance Management and Disciplinary Policy (if this is not in contradiction to the criminal proceedings).

3. Learning for Life may need to debrief those affected and offer support services to them.

4. Documentation with the consent of the Client (and/or their parent/guardian), a Reportable Incident, Serious Incident or Notifiable Conduct may be discussed with the Client and/or their parents/guardian to identify:

  • Whether the incident could have been prevented;
  • How well the incident was managed and resolved;
  • What, if any, remedial action needs to be undertaken to prevent further similar incidents from occurring, or to minimise the impact.

13. Documentation

1. Following each incident or case of Notifiable Conduct an Incident Report must be made. These records must be stored for 7 years from the day of creation. Further details on completion of incident reports and emergency management are contained in the Emergency Management and Business Continuity Policy and Occupational Health and Safety

2. Having given notification to a Commissioner, Learning for Life shall keep them updated of any new significant information in relation to the incident and investigations.

3. Learning for Life shall provide the NDIS Commissioner with an Incident Report within 60 business days after notification if required in accordance with the NDIS (Incident Management and Reportable Incident) Rules.

4. Following the investigation of the incident an assessment shall be made and a report prepared regarding:

  • Whether the incident could have been prevented;
  • How well the incident was managed and resolved;
  • What, if any, remedial action needs to be undertaken to prevent further similar incidents from occurring, or to minimise the impact;
  • Whether other persons or bodies need to be notified or the incident.