Small Leaks Sink Great Ships – When ‘Low Level’ Decisions Aren’t Low Level

Under the NDIS (and more broadly at law) providers have many responsibilities including a duty of care to participants.

What are we talking about?

This includes exercising a duty of careto participants in the provision of supports whilst ensuring that those same participants have choice and control in their decision-making (which includes decisions not to accept supports or services)2.

Often the focus of providers is on the question of how to fulfil their duty of care whilst facilitating participant’s right to take significant and obvious risks (eg. choosing to eat non-modified meals when modified meals are recommended). 

Regularly overlooked are decision by participants in relation to their support which involve no obvious, significant or immediate risk, for example:

  • refusing a daily aspirin;
  • refusing a laxative;
  • a diabetic refusing a scheduled blood glucose check or insulin injection;
  • refusing to have a wound cleaned;
  • refusing to attend a specialist appointment;
  • refusing to attend a GP.

Each of these examples, in isolation and on a single instance, could readily be accepted by a provider as enabling choice and control of a participant and even where the participant had capacity problems, they could likely make these decisions.

The problem

Issues arise where a participant refuses a support or services on an ongoing basis without obvious adverse impacts and where the provider does not identify a pattern of refusal.  We have seen these scenarios arise frequently in the context of compliance investigations by the Commission. 

For example:

  • a participant intermittently refuses wound care on a relatively minor wound which then becomes infected requiring a transfer to hospital;
  • a participant intermittently refuses insulin leading to ketoacidosis;
  • a participant intermittently refuses laxatives leading to faecal impaction, hospitalisation and death.

A refusal on day 1 gives rise to low level risk only and seemingly requires little thought or consideration to enable.  However, repeated instances of the same refusal (giving rise to significant risk) is then often missed because workers had ‘normalised’ the refusal and associated risk.  In addition to the obvious harm that might be suffered by a participant, this is a breach of the Practice Standards and grounds for a compliance or enforcement action by the NDIS Commission. 

Risk

How an organisation identifies and escalates risks (including patterns or systemic failings) is a key consideration for each provider.  It requires a nuanced approach considering such things as the capabilities of staff, the total envelope of supports and care provided and the setting of delivery of supports.

Once identified, appropriate risk assessment and mitigation along with ‘dignity of risk’ conversations with participants (and decision makers/supporters) to confirm how the two will proceed need to be completed and documented.

Providers should take particular care with respect to normalisation of behaviours with long term participants, who, in our experience are the most susceptible to the normalisation of low-level risk-taking.

To discuss relevant scenarios, how your organsiation can address these concerns, or for support to respond to enquiries from the Commission contact Amber Crosthwaite on 0400 143 677 or amber.crosthwaite@lavan.com.au.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
AUTHOR
Amber Crosthwaite
Partner
SERVICES
Aged Care, Seniors Living & Disability


FOOTNOTES

[1] Which includes civil liabilities under state based regimes such as the Civil liability Act 2003 (Qld)

[2] National Disability Insurance Scheme (2013) (Cth) (NDIS Act) s 3 and 4