DUTY OF CARE – AN ENDURING STORY OF NEGLIGENCE
At long last someone in authority has shown due regard to the important legal concept of - duty of care. The recent court finding (23/7) regarding duty of care breaches sheeted home significant criticism of Minister Mary Wooldridge and the head of her department, Ms Gill Callister. Ms Callister is the Secretary of the Department of Human Services. http://www.abc.net.au/news/2014-07-23/public-servant-found-to-have-breached-duty-of-care-to-children/5618722
While this spotlight on duty of care came in the context of child protection, there is also darkness in the disability sector surrounding duty of care which deserves to be exposed. Despite the fact there are many individuals and entities charged with the legal responsibility to deliver services and protect the rights of people with disabilities within the context of a duty of care, many of these same people and entities have studiously ignored this legal obligation.
By way of example, the Disability Services Commissioner (DSC), who in effect has a duty of care when considering complaints made by persons with disabilities or their families, has studiously ignored his responsibility to investigate complaints where such complaints remain unresolved, many of which relate to duty of care failures. Instead, what the Commissioner has sought to do is to take a softly-softly approach by refusing to cast blame on service providers, including the Department of Human Services, who have abrogated their duty of care responsibilities.
In addition to this, despite having produced six glossy annual reports in relation to the work undertaken by his office, there is not one single mention in any of the six reports as to complaints that relate to an organisation failing to meet their duty of care obligations.
Associated with the above there is evidence to demonstrate families and people with disabilities are being denied their rights by service providers. Most recently, a folio of case studies published by JacksonRyan Partners demonstrates this. Yet the call for such providers to meet their duty of care continues to fall on deaf ears. http://jacksonryan.com.au/wp-content/uploads/2010/03/Case-Studies-Folio-Deception-Victorias-Disability-Services-February-2014.pdf
In Victoria much is made of the so-called protective mechanisms and the responsibilities given to individuals and entities such as the Disability Services Commissioner, the Office of the Public Advocate, the Commission for Children and Young People, as well, of course, as Minister Wooldridge and the Secretary of the Department of Human Services. Despite espousing the importance of rights, not one of these individuals or entities has ever pursued the matter of duty of care with the vigour it deserves. Also, despite significant funds being provided to advocacy organisations to protect the rights of people with disabilities, they have been equally silent on the failings of providers to meet their duty of care obligations.
Although having legislation called the Disability Act 2006 there is no mention in this act of duty of care. Yet, it is this concept of duty of care that underpins the delivery of services and the practice of rights. By contrast, it is Victoria’s Wrongs Act 1958 that makes reference to duty of care in the context of negligence. The question therefore arises: What real consideration is given to duty of care law in this state? Clearly, in the case of people with disabilities and their right to be cared for in a way that does not place them at risk, as well as vulnerable young children, duty of care, as evidenced by the recent case, seems to count for little.
Unfortunately, it seems that attention is only drawn to the fate of people with disabilities and vulnerable children when high profile cases involving rape or sexual abuse come to the media’s attention. Notwithstanding the unpalatable nature of such cases, the equally enduring story is about the more subtle failures in care. Issues like health management, activity based engagement, food services and dietary needs, and manipulative behaviours aimed at excluding families, are indicative of breaches of duty of care. And, of ever increasing concern, the failure of some staff to do what they get paid to do, and their protection by intransigent managers.
The time has now well and truly arrived for duty of care to be openly discussed, and put front and centre in the minds of those who are charged with responsibility of caring for and protecting people with disabilities. Minister Wooldridge must now put the microscope over her Secretary and the Department of Human Services, as well as the many service providers who are funded by her department. For too long the bureaucrats have been invisible. Minister Wooldridge must also put the microscope over those appointed to watch-dog positions.
24 July 2014
Contact: Max Jackson, Mobile 0413 040 654. Margaret Ryan, Mobile 0412 409 610.