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Work Health and Safety Regulators on a “Care Crusade”

Work Health and Safety Regulators on a “Care Crusade”

Published: 09 Feb 2023

Work Health and Safety Regulators on a “Care Crusade”
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Work Health and Safety Regulators on a “Care Crusade”

Published: 09 Feb 2023

Prosecution of care service provider

Last month, SA Support Services Incorporated, a registered charity providing accommodation and care services under the National Disability Insurance Scheme, was convicted and fined $72,000 after failing to comply with their health and safety duty in breach of section 32 of the Work Health and Safety Act 2012 (SA), a category 2 offence.

This case is illustrative of a trend by work health and safety regulators nationwide in turning their attention to the care industry, both providers under the NDIS and healthcare providers more generally.
The offence arose in circumstances where one of the organisation’s clients had a history of displaying aggressive sexualised behaviour and the organisation failed to warn one of its employees about the client’s behavioural tendencies. Regrettably, the client then subsequently attacked the employee which led to a prosecution by the safety regulator.
Following the incident, the business revised its work health and safety measures in order to mitigate the offence and improve its systems generally. The business then plead guilty to the offence and was fined $72,000 plus legal and other costs.
Had the provider plead “not guilty” to the offence and been unsuccessful, we expect that they likely would have faced a more severe fine of over $180,000.
Importantly, the recording of a conviction can have significant ‘legacy’ effects in terms of future government or private sector tenders requiring the disclosure of the conviction. Even if the conviction were not recorded some tenders will still require disclosure of the fact of the plea of guilty being made. 
This “care crusade” is not wholly unjustified, however. Both healthcare and other “care” industry providers have duties in being directly responsible for the health of their clients as well as the safety of their employees and systems for meeting those duties need to be integrated appropriately.
As compliance with both of these duties take up significant resources (both time and monetary), it is not uncommon for there to be an inappropriate trade-off in seeking compliance with these two duties, rather than an integrated system that looks after both client health and employee safety simultaneously.
Generally, there can be resistance or uncertainty from health administrators to develop a system that integrates work health and safety obligations with client care obligations, as these can be quite onerous tasks. However, this is becoming more and more necessary for care providers as work health and safety inspectors are making their presence felt in the industry. This is not only done by prosecuting severe safety breaches, but also by issuing prohibition and improvement notice for less serious breaches.

Use of improvement notices

A similar case which involved the use of improvement notices in the care sector related to the admission of resident who had challenging behaviours stemming from his dementia which caused refractory aggression. He would stand over workers and strike workers due to his condition. 
An improvement notice under the Work Health and Safety Act 2011 (Qld) was subsequently issued to a Queensland state government regional health service provider.
Ultimately, however, the provider was recently successful in its application for the Court to overturn the improvement notice, with the tribunal finding that:

  • The inspector did not hold a reasonable belief of a contravention;
  • The Inspector did not make reasonable inquiries as to how the entity discharged its obligations under the Act; and
  • The improvement notice inadequately particularised the alleged contravention.
The Queensland WHS Regulator approached this case in the wrong way by applying risk management principles in an inapt manner.
The health service provider argued successfully that health and safety risk management of a new resident with aggressive behaviour due to dementia needed to occur progressively over time post admission rather than just a snapshot approach immediately prior to admission as argued for by the Queensland Regulator.
The health service provider pointed out to the Tribunal that there was already a pre-admission health and risk assessment in place via a commonwealth government facilitated Aged Care Assessment Team process.   
While the Queensland service provider was successful in overturning the improvement notice, there can sometimes be a false assumption that a medical assessment of a patient or resident is alone sufficient to provide adequate risk assessment generally so far as concerns the behaviour of the resident or patient.  Medical assessment is vital, but it is not the full picture at all in terms of a service provider meeting its WHS obligations to workers, visitors and residents or patients. 
For organisations in the care sector, you should consider the adequacy of your safety management systems. You also need to be prepared for an inspector to enter the workplace at any moment and know who to call when this does occur.
If you require information on defending work health and safety or Industrial charges or developing an effective safe system of work within the care industry, contact
  • Martyn Campbell v SA support Services Incorporated (ABN 88 538 863 439) [2022] SAET 169
  • Darling Downs Hospital and Health Service v The Regulator (under the Work Health and Safety Act) [2022] QIRC 456

Article by Andrew Ross, Associate Director and Steven Reynolds, Associate                                                               

Related resources

The content of this article is general in nature, and is intended to provide commentary only. It does not constitute advice, and should not be relied upon as legal advice. Targeted formal legal advice should be obtained prior to any action being taken in relation to a matter arising in response to the content of this article.

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