Office of the Public Advocate

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Office of the Public Advocate
Working to promote the rights and dignity of
Victorians with a disability
Risk and rights the need to redress the
imbalance Dr David Sykes Manager, Policy and
Education National Accommodation and Community
Support Conference, Melbourne 2005
An independent statutory office accountable to
the Victorian parliament
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John

• John is a fifty year old man with dementia who
  lives in his own flat. Following a recent fall at
  home he was admitted to hospital for treatment.
  As part of the discharge planning local services
  were approached to offer him assistance upon his
  planned return home. However as John was a
  smoker the services refused to offer assistance.
  A guardian was then subsequently appointed for
  John to make a decision about him being admitted
  to an aged care facility.

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Consequences of current approach

• Some human service organisations are becoming
  increasingly risk averse, affecting their
  capacity to support the more vulnerable in our
  community.
• Risk can be used as a way of avoiding providing
  services to clients who may be perceived as
  difficult or challenging in their behaviours.
• The rights, opportunities and quality of life for
  people with a disability have been and continue
  to be adversely affected.
• The risk that is seen to need managing is
  primarily to the service provider and to a lesser
  extent the clients.
• Risk assessment tools and frameworks seen as
  objective ways to assess risk, potentially
  devaluing the more subjective role of
  professional judgment.
• Ironic that in contrast to the current focus on
  person centred planning the emphasis on risk is
  promoting a service system response which is
  potentially even less able to respond flexibly to
  the individual needs of clients.
• Missed opportunities for clients, staff and
  organisations to grow and develop through risk
  taking limited.
• This approach denies the inherent uncertainty in
  providing human services particularly where
  people are living in the community.

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What we do
Mission

• Promote the rights and dignity of Victorians with
  a disability from exploitation, abuse and
  neglect.

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What we do
Functions

• Guardian of last resort
• Investigation of applications to the Tribunal
• Advocacy individual and systemic
• Private Guardian Support Program
• Advice service
• Community education

2003 - 04
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What we do
Volunteer programs

• Community Visitors Program
• Independent Third Person Program
• Community Guardianship Program

2003 - 04
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Jill and Anna

• Jill and Anna attend a day program in their
  wheelchairs. They were told that they could not
  attend the day program next year because of new
  occupational health and safety guidelines for the
  organisation.

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The rise of risk

• Factors contributed to the rise of risk
• Post-modernism challenged the myth of
  calculability e.g. the environment
• Increasing concern with safety and security on
  individual, local and global level.
• Growing concern with risk in business context
  following the spectacular corporate collapses
  such as Pyramid, HIH and One Tel. Although could
  only think of one not for profit example of the
  National Safety Council.
• Move towards smaller government.
• Contraction in the provision of government funded
  services has seen a shift from need being the
  major basis for allocating resources to risk and
  vulnerability (Kemshall, 2002).
• Government has also seen to distancing itself
  from risk by becoming a funder rather than a
  provider of service.
• As we have moved to a more individual and less
  collective focus in our society this has also
  seen a transfer of risk to the individual.
• Perceived growing potential to be sued.
• Growing emphasis upon the occupational health and
  safety issues.

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Defining Risk

• There are some key aspects to the way risk has
  been defined
• Defined according to personal and dominant values
• Emphasis upon the negative aspects of risk e.g.
  worst case scenario
• Defined in terms of potential injury/costs to
  clients, staff, organisation or community.
• Risk defined very narrowly and often not against
  mission of the agency.
• Risk often being defined by senior management,
  not direct care staff or clients.
• Fear often drives how risk is defined.
• Risk considered in the context of who will be to
  blame.
• Tends to ignore that risk is part of life.

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A positive approach to defining risk

• If risk is defined in a narrow hazard
  orientated way then risk management can be a
  mechanism of protecting the agency and its
  employees from blame and litigation at the cost
  of restricting users choice and rights. If on
  the other hand it is defined in a broader, more
  creative way, for example as reasonable
  risk-taking, then it can be used as a way of
  empowering users.
• (Hazel Kemshall, 2002 )

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Whose risk?

• Risk to the human service organisation
• Adverse effect on reputation and standing e.g.
  adverse media publicity, coronial inquest
• Staff injury Workcover costs, increased premiums
  affect costs of the program, possible industrial
  action.
• Staff or client injury leading to the potential
  for litigation
• Risk of losing government funding
• Risk to the worker
• Staff may be blamed for taking risks
• Risk of injury
• If staff taking risks without adequate support
  can lead to burn out.
• If not allowed to take risks due to restrictive
  policy then may leave due to frustration and low
  morale.
• Risk to the client
• Risk of injury, illness or death
• Risk of limited/poor quality of life if not
  allowed to take risks
• Risk of lack of personal growth
• Risk of infringement of rights

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What focus is there on rights as distinct from
risk

• Often there is not a significant focus on rights
  due to the lack of power clients have because
  they may
• Not be aware of their rights
• Limited skills/ability to advocate for rights
• Dependency upon services and/or family affect
  capacity of client to be autonomous
• Limited range of services to choose from
  particularly in rural areas
• Limited availability of independent advocacy
• Limited capacity of workers to advocate for
  clients rights
• Clear penalties for not meeting Occupational
  Health and Safety obligations along with
  inspections. No similar obligations under
  disability legislation to respect clients rights.
• Respect for rights dependent upon the values of
  the individual worker and organisation.

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Key elements of a more balanced approach

• Four key elements
• Values, vision and mission of organisations
• Clear understanding of Occupational health and
  safety obligations
• Clear understanding of Legal obligations
• Clear guidelines for the assessment of risk

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Obligations to clients Principles, Values,
Vision and Mission

• A defining feature of good human services
  generally are those with clear set of values,
  principles, vision and mission which they live on
  a daily basis. Such principles include
• A commitment to ensure that all clients enjoy the
  same rights of citizenship as other members of
  the community, offering equal access to service
  provision.
• A respect for the independence of individuals and
  their rights to self-determination and to take
  risks, minimising any restraint upon that freedom
  of action.
• A regard for the privacy of the individual,
  intruding no more than necessary to achieve the
  agreed purpose and guaranteeing confidentiality.
• An understanding and respect for the dignity and
  individuality of every client.
• An objective, within available resources, to
  maximise individual choice in the type of
  services on offer and the way in which those
  services are delivered.
• A responsibility to provide services in a way
  that promotes the realisation of an individuals
  aspirations and abilities in all aspects of daily
  life.
• 
  (Kemshall and Pritchard, 199911)

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Jan

• Jan has a mental illness and was living in
  squalid conditions. An interim case manager was
  engaged to assist the client until services could
  be involved. The house was cleaned by industrial
  cleaners. However when the services were ready to
  become involved they refused because Jan had an
  obsession with heaping stones on the path leading
  to her house. The new case manager considered
  this to be an occupational health and safety risk
  for workers visiting the house.

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Occupational health and safety obligations

• In about fifteen OPA cases where Occupational
  Health and Safety risks were given as the reason
  for not providing a service only one seemed to
  have any genuine issues.
• Cost of claims across aged, disability and mental
  health declining
• Most common types of claims are musculoskeletal
• Required to provide a safe working environment as
  far as is practicable and do not subject
  employees to foreseeable risk. Practicable
  includes
• Severity of the hazard or risk
• State of Knowledge ( understanding of and
  experience with the risk)
• Availability and sustainability of ways to
  mitigate the risk
• Cost of mitigating the risk (Marnie Williams,
  Worksafe, 2004)

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Occupational health and safety

• The Occupational Health and Safety 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 RE Spence
  and Co Pty Ltd (1992)

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Legal Obligations

• When considering how to meet your duty of care
  to the client and the potential for being sued
  for negligence need to apply the reasonable man
  response. The reasonable mans response
  requires
• Consideration of the magnitude of the risk
• Degree of probability of occurrence
• Expense, difficulty and inconvenience of
  alleviating action
• Conflicting responsibilities you may have.
• (Mason J in Wyong Shire Council v Shirt (1980)
  146 CLR 40
• (Leggatt, Phillips Fox, 2004)

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Levels of response to managing risk and rights

• Changes needs to occur on a number of levels
• Governments (Federal, State and Local)
• Human service organisations
• Boards/committees of management
• Management
• Direct service practitioners

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Governments

• Need to have policies and practices which
  actively support agencies taking responsible
  risks.
• Need to be able to support agencies when they
  have taken risks.
• Needs to be reinforced through funding
  agreements.
• Needs to be reinforced through standards of
  service.
• Needs to be reinforced through assessments of
  quality.
• Needs to be whole of government approach to
  considering issues of risk and rights e.g.
  Worksafe and DHS.
• Need penalties for failing to respect client
  rights

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Human service organisations

• Boards/committees of management
• Need to have a clear understanding of the work of
  the organisation.
• Need to have a clear commitment to the values and
  mission of the organisation.
• Need to be committed to promoting the rights and
  autonomy of clients.
• Understand its obligations to clients, staff and
  funding body and make sure that this is clearly
  understood by management and staff.

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Human service organisations

• Management
• Have developed in consultation with staff,
  clients and board clear vision, mission and
  values for the organisation.
• Recruit, train and support staff who actively
  support the mission, vision and values of the
  organisation.
• Need to promote a culture of learning and
  development for staff and clients so that there
  is not a culture of blame.
• Provide clear guidance to staff in the form of
  policies and procedures which they have helped to
  develop.
• Need to be committed to promoting the rights and
  autonomy of clients. This should include
  involving clients in any assessment of risk.
• Understand its obligations to clients, staff and
  funding body and make sure that this is clearly
  understood by management and staff.

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Human service organisations

• Direct service practitioner
• Have a clear commitment to the values, vision and
  mission of the organisation.
• Staff work from building good relationships with
  clients which can inform their professional
  judgment.
• Staff should be respectful of the rights needs
  and wishes of the client and seek to involve them
  as much as possible in the service they receive.
• Clear approach to assessing risk based upon such
  things as
• Benefits to the client of taking the risk
• Likely enhancement of clients life/dignity.
• Type of harm which may occur and how likely this
  is to happen.
• What actions you plan to take in relation to
  these potential harms.
• Who has been consulted and any points of
  divergence.
• What decision has been reached and how will you
  monitor/review progress.
• Understand other obligations in relation to OH
  and S and legal obligations.

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Positive benefits of taking more balanced
approach to risk

• For the organisation
• Positive benefit to reputation through the
  potential for improved client outcomes
• Improved quality of life for clients
• Actively supporting and trusting staff in taking
  risks may see greater staff morale and confidence
  in the organisation.
• Less time recruiting new staff as potentially
  lower staff turnover.
• Where approach to risk is part of a broader
  emphasis on quality may help to secure ongoing
  funding.
• For the worker
• Greater challenge and opportunity for growth and
  development.
• Greater level of job satisfaction
• Improved skill and knowledge in being able to
  assess risk.
• For the client
• Improved opportunities for personal growth and
  development.
• Improved capacity to assess risk in a more
  informed way
• Rights respected and promoted

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Way forward redressing the imbalance

• That in any assessment of risk this must consider
  the views of the client and the potential
  benefits that could flow as well as the rights
  that would be affected if this was not to be
  supported. Should seek to promote the autonomy of
  the individual.
• That the values and mission of the organisation
  need to be a key reference point for any approach
  to risk.
• That a client, staff member or organisation that
  does not take risks does not learn, grow and
  develop!
• Acknowledge the subjective nature of any
  definition and assessment of risk and
  consequently the importance of being aware of own
  values and beliefs and the importance of a more
  collaborative approach.
• Promote the use of professional judgments by
  workers based upon a relationship with the client
  and reflective practice rather than a dependence
  upon assessment tools.
• Organisations, staff and funders need to
  acknowledge the ethical responsibility they have
  to provide assistance to the more vulnerable in
  our community.
• Acknowledge that adverse events will sometimes
  occur as part of human service delivery to both
  clients and staff.
• Consider the imposition of penalties for
  restriction of individual rights

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Conclusion

• If disability service providers are primarily
  concerned with minimising risk then they should
  get out of the business of supporting people with
  disabilities because life is inherently risky
• (Robert Fitzgerald, Former NSW Community
  services commissioner).

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References

• Beck, U (1992) Risk Society Towards a new
  modernity, Ludwig-Maximilians University, Munich
• Green, D., (2004) The Risk Society and the
  protection of rights Implications for an ethical
  practice. Paper presented at Risk and Rights
  redressing the imbalance forum, 20th October
  2004, Office of the Public Advocate, Melbourne.
• Kemshall, H and Pritchard, J. (1996) Good
  practice in risk assessment and risk management
  1. Jessica Kingsley, London.
• Kemshall, H. and Pritchard, J. (1997) Good
  practice in risk assessment and risk management
  2. Jessica Kingsley, London.
• Kemshall, H (2002) Risk, social policy and
  welfare, Open University Press.
• Leggatt, D. (2004) Challenging the litigation
  myth The reality of legal responses to risk.
  Paper presented at Risk and Rights redressing
  the imbalance forum, 20th October 2004, Office of
  the Public Advocate, Melbourne. Available form
  OPA website under systemic advocacy
  (www.publicadvocate.vic.gov.au).

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Office of the Public Advocate

• Telephone advice service
• 9603 9500 / 1800 136 829 (toll free)
• www.publicadvocate.vic.gov.au
• Multilingual publications available