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OH & S Challenges in the Disability Services Sector

A response to the ACROD Discussion paper.

About the Disability Council

The Disability Council of NSW was established under the Community Welfare Act 1987 to advise the NSW Government on issues affecting people with disability and their families. It is also the NSW Disability Advisory Body to the Commonwealth Government.

Councillors are appointed by the Governor and selected on the basis of their experience of disability as well as their understanding of issues, knowledge of service delivery and government policy. The majority of Councillors are people with disability.

Glossary of terms

Throughout this text the Disability Council of NSW has been referred to as Council, ACROD NSW Division as ACROD, the Department of Ageing, Disability and Home Care as DADHC and WorkCover NSW as WorkCover. The Occupational Health and Safety Act 2000 has been abbreviated as the OH & S Act, the Disability Services Occupational Health and Safety Project as DSOP and non-government organisation as NGO.

General Comment

Council appreciates the opportunity to comment on the ACROD Discussion Paper. We have structured our response by addressing key priority areas noted in the paper as well as raising other issues for reflection.

First principles

At the outset, we wish to make clear Council's fundamental starting point regarding the thorny questions associated with human services and occupational health and safety. We do so because we have a concern that the voices of those people whose interests must lie at the centre of debate, people with disability with support needs, can sometimes be the least heard.

The Disability Services Act (incorporating its associated Standards) constitutes an enabling framework for providing human services' support to people with disability in NSW. Government and non-government organisations, programmes and services have been established, developed and are maintained to provide a range of services to people with disability with support needs.

We are firmly of the belief that high quality person-centred human services' support to people with disability must and can be delivered safely. That is the only acceptable goal as far as people with disability are concerned. It is no less true for those who work to provide those services.

Discussing the ways and extent to which the State's occupational health and safety laws and regime impinge upon the ability of service providers to deliver essential services to people with disability is, of course, important. But an over-prescriptive approach to such questions, one that might accelerate movement towards defensive management, risk aversion and rigid thinking, will not assist the complex set of stakeholders who have an interest in this debate to reach a mutually agreeable set of new arrangements.

We are keen to contribute to a constructive dialogue about the tensions that are apparent to all informed stakeholders. But the driver to which we must all remain responsive should be a shared intention to provide high quality services to people with disability who need them, in ways that are as reasonably safe as we can make them for everyone involved.

We are concerned, to be frank, that some contributions to these discussions could result in some problems and/or some types of clients becoming viewed as too hard to handle. That would be deeply regrettable.

Consistency across the sector

ACROD has clearly enunciated the perspective of service providers attending its consultation. It is noted in the Discussion Paper that the aim of DSOP is to develop / suggest strategies to enable the disability services sector to provide essential services to people with disability while simultaneously meeting OH & S obligations. It would be worthwhile for DSOP to ascertain what differences of interpretation exist between service providers of their responsibilities under the OH & S Act as, currently, some service providers choose to withdraw some services, ostensibly to meet OH & S obligations, while other service providers maintain the same or similar services.

Council believes that one way to resolve this divergence of practice would be for DADHC and/or WorkCover, in conjunction with ACORD, to take responsibility for the development of clear guidelines for service providers about transparent decision making processes relating to OH & S matters. Such guidelines would be required to take into account the views of service users and their advocates. A key purpose of the guidelines would be to provide unambiguous clarification on ways to preserve / provide services safely rather than making simple decisions to withdraw services.

The withdrawal of services would seem to run counter to obligations placed on service providers by the DSA. It could also breach contractual obligations with service funding bodies

The dual responsibility of employers

In WorkCover Authority of NSW (Inspector Pompili) v Central Sydney Area Health Service Justice Schmidt noted that the OH & S Act requires

"not only that appropriate policies are in place in relation to staff risk and that staff are trained in such risks but also that there is a duty to ensure such policies and training are implemented and effective in ensuring safety".

While acknowledging that some smaller providers are poorly funded, Council holds the view that NGOs in the human services' sector have the same responsibilities under the OH & S Act as any employer. They should display the same professionalism in management as any other business enterprise. Council, therefore, expects that service providers will meet their obligations to employees as outlined by Justice Schmidt.

Defining "reasonably practicable"

Having given careful thought to this matter, Council does not support the relocation of the term "reasonably practicable" within the OH & S Act.

The current location of the term clearly identifies the primacy of safety for workers. If the term were to be relocated, the right to work in a safe environment could be diminished. In our opinion, good employers can and do find appropriate ways to ensure the delivery of high quality services to people with complex support needs AND maintain a safe working environment for employees. Those two imperatives are not mutually exclusive. We are not persuaded, therefore, that the case has been made to alter the OH & S Act.

Disclosure

Council does not believe that a convincing case has been presented in the ACROD discussion paper to justify additional, wholly new powers or rights to access personal information about current or potential service users. People with disability have rights within law to privacy that are not inconsistent with, nor do they undermine, the planning or delivery of services within the context of a safe working environment.

Disclosure of personal information in NSW may be covered by the Privacy and Personal Information Protection Act 1998 or Health Records and Information Privacy Act 2002. We would not support any reduction of the rights of people with disability, which are defined and protected by these laws.

The first of the above applies to public sector agencies. The second applies to other public agencies and private individuals. Exemptions exist to allow disclosure under both Acts.

Council would not like to see changes to legislation which required further disclosure. We believe it is both more appropriate and more important to develop and use high quality, person-centred assessment techniques that assist service providers to determine individual support needs accurately.

Holistic, person-centred assessment tools, when properly used by skilled, trained staff members, result in the development of services plans and options for individuals with disability that address, incorporate and overcome the challenges of providing support within a safe working environment. We do not believe that the ACROD discussion paper offers sufficient evidence to lead any reader to a conclusion that safe working practices require people with disability to surrender further their rights to privacy.

Funding OH & S Systems

WorkCover's Premium Discount Scheme (PDS) was established to provide incentives to employers to implement systems to improve workplace safety and 'return to work' programs for injured workers. The scheme was time-limited because it was hoped that its short term implementation would result in improved practice across industry.

The ACROD proposal for ongoing additional resources (or short term resources as part of a 2-3 year project) to enable service providers to employ consultants to advise on best practice suggests that the improved systems have not yet been implemented. Government might legitimately ask why not?

It is evident from Justice Schmidt's comments, above, that each employer under the OH & S Act has a duty to ensure staff are trained and have the tools to do their work effectively and safely. In the case of the human services industry this could include hoists and disability related equipment where tasks are deemed essential (we have in mind, tasks such as lifting or moving people with disability who can neither lift themselves nor move without assistance).

The use of consultants (to establish that a task is essential or may present a safety threat inherent to the task) may be necessary in certain circumstances. Their input is but one means of ensuring all staff are properly trained.

Costs associated with such training, like those associated with equipment, should be borne by the employer. If the service provider is an NGO these costs need to be negotiated with funding bodies or built into any fees structure levied upon service users. As part of any negotiations funding providers might elect to make available the tools through a resource pool to save costs (e.g. DADHC might supply costlier items for the use of smaller service providers in a given area). We believe this is a business decision for DADHC and that larger service providers are well resourced to provide such tools.

Enforceable OH & S undertakings

Council does not support the creation of "enforceable OH & S undertakings" as an alternative to prosecution.

Currently it is possible for an employer, who may have breached the law, to take remedial action before prosecution becomes necessary. At present, a WorkCover Inspector, on investigation of a workplace, can choose to serve an improvement notice (to require a deficit in practice to be addressed). This may be initiated in addition to (or in lieu of) any subsequent proceedings (prosecution), which may be deemed necessary. We support the status quo.

Council can see no supportable distinction between an improvement notice (from an Inspector) and an enforceable undertaking (from the Court) other than the penalty for non-compliance. Failure to comply with an undertaking is seen as contempt of court and non - compliance is likely to attract an even greater penalty.

In our view, the solution to the concerns raised by ACROD is the judicious application of improvement notices by Inspectors (compliance with which would obviate the need for prosecution). Where a breach of law warrants prosecution, however, which may or may not lead to conviction and a penalty, the law should be used.

Funding OH & S-related equipment

Council notes that the Program of Appliances for Disabled People (PADP) and the DADHC Equipment and modifications fund are two means of funding OH & S equipment in differing circumstances. Council agrees that both programs need increased funding and administrative improvement. People needing such equipment may elect to apply for it through PADP while the Equipment and Modifications Fund will supply it if it is necessary to assist community participation.

Council wishes to stress a point made above: employers have an obligation to ensure the provision of equipment to their staff where such equipment is deemed necessary for the performance of essential tasks. Safety is, of course, one of several criteria any employer must be mindful of when reaching decisions about the supply of task-related equipment for employees. We can illustrate our point with these observations:

• If, for example, a human services sector NGO decides that computer based accounting tasks are essential for its staff involved with financial management or administration, it would be unreasonable to expect employees or customers to supply computers so that invoices could be processed.
  
  
• If an essential requirement of the job is lifting a human being from her bed to a wheelchair it ought to be the employer's responsibility to equip adequately the staff members recruited to carry out such a task.

There should be, in Council's view, no requirement on service users to provide equipment, deemed necessary for safe work practices for employees of NGOs that are contracted to provide appropriate services.

OH & S information and training

Council supports the suggestion that DADHC make its OH & S training modules available at a regional level to all DADHC funded service providers rather than only to staff of DADHC involved directly in service provision (e.g. Home Care staff). This should have the advantage of being a cost saving exercise, as well as ensuring all DADHC funded services have similar quality training available to them.

The discussion paper's comment on the need to train "business service users" in OH & S practices is noted, as is the observation that some workers in Business Services have been assessed as being currently unable to demonstrate full understanding of OH & S risks and responsibilities. Nevertheless, it is clearly in the interests of those running Business Services to ensure all their staff can demonstrate competence in OH & S matters.

We note with some concern that Business Service staff-members with intellectual disability are referred to as "service users" rather than staff. We recognise, however, that Business Services have changed over the years. As a matter of public policy they are now to be understood as an essential part of the world of work for some people with disability. Such individuals with disability are not "service users", as implied, but workers with rights in what are intended to be economically viable and sustainable enterprises.

The responsibility to ensure that any workforce is aware of and understands OH & S issues remains with the employer, therefore, even in Business Services. Nevertheless, Council agrees that there could be merit in involving the Department of Family and Community Services (FaCS) as a provider or funder of OH & S training to Business Services within its Consumer Training and Support Program.

WorkCover premiums

Council notes the intention of ACROD to monitor the impact of premium changes and revisit, with DADHC and WorkCover NSW, the issue of premium variability. We believe that ACROD is correct to monitor and evaluate the effect of increasing premiums. We further believe that funding agencies should assist NGO, not-for-profit service providers to meet such costs where they arise from circumstances beyond the control of the service provider.

The Built Environment

Council acknowledges the difficulties imposed on service providers who deliver services in people's homes over which they have no control (i.e. they cannot demand modifications to the premises). It is simply realistic to accept that an NGO should have no power to determine the design or construction of the houses in which people live or the internal layout of furniture as decided by the occupants of a house (not all of whom may be clients of the NGO).

Consideration of OH & S matters is not only about the tensions of delivering human services' support in the houses in which clients live, however.

Government policy is designed to increase levels of participation in society by all people with disability, including those with profound and complex support needs. If Government policy succeeds (we hope that it does) more people with disability will be 'out and about' engaging in all forms of community activity and doing so with the support of skilled staff members employed by government and non-government agencies and/or service providers.

The home is, therefore, not the only aspect of the built environment that we must consider with regard to the tensions between social inclusion and occupational health and safety. From supermarkets to swimming pools; from offices, shops and other workplaces to cinemas, bars and restaurants, people with disability will be supported by NGO staff to participate in many, varied activities. In our view, consideration of the built environment must be broader than a concern with just the home.

The Housing and Human Services Accord

Council has recently provided input to the NGO consultation on the Housing and Human Services Accord run by Age Communications on behalf of the Department of Housing. Council agrees that there is a need for a Schedule under the Accord on OH & S responsibilities of stakeholders.

This could include an agreement to modify homes if requested by a service provider. However, Council restates the point made above, that the service provider has no authority to demand modification to an individual's home (including the tenant of a Department of Housing residence). Thus modifications will need to be agreed between the Department, the resident and the service provider rather than being a requirement for service provision.

Out of Home Accommodation Support

Council notes the reference to out of home accommodation support options in the ACROD discussion paper. It is Council's view that the term is a misnomer as the residence occupied by an individual is seen by Council as their home.

It is understood that by "out of home support" the paper refers to large residential centres and group homes, which mainly house people with intellectual disability and/or those who are often described as exhibiting challenging behaviour.

The principal concern of service providers in such residences seems to be the threat of violence from clients. There is little advice or guidance by WorkCover on the means to deal with such violence.

In relation to individuals whose background, characteristics or behaviour may be a potential risk, elimination of such risks entirely, rather than risk assessment, management and avoidance of risk, is often thought of as the only acceptable option available to the service provider. No human engagement can ever be entirely risk free. The key question, therefore, is to ask whether or how an employer can take every action reasonable to ensure the safest possible working environment for employees.

Such situations could be controlled through, for example:

• sufficient or better staff / client ratios to enable provision of a safe workplace with fewer staff working in isolation and adequate numbers of staff to pay sufficient attention to individual client needs;
• changes to policy or practice (for example, behaviour intervention and critical incident policies);
• education and training of staff (for example, training in behaviour management and de-escalation techniques; awareness and appropriate responses);
• provision of mobile phones to contact backup staffing in the event of an emergency.

The ACROD discussion paper notes that ACROD plans to seek the inclusion of safe design in the development of out-of-home support models. Council is uncertain whether this refers to provision only of options such as safety rooms and duress alarms or, additionally, ensuring the design of the dwellings caters to the diverse needs of residents. We see value in both approaches.

Universal Housing Design

Council acknowledges the difficulty of service provision to clients living in houses or apartments that have not been designed to ensure ease of access. We are currently preparing advice for the Minister for Planning, to recommend that all future new housing be constructed to universal housing design principles. This would not only reduce costs when houses need be modified to meet individual access requirements but, also, that all houses would provide safer working environments for service providers.

The expected increase in older Australians over the next 20 years should mean an increase in the number of service users requiring in-home support. Council would recommend that ACROD consider approaches to Government on this issue as the development of housing without steps and other mobility hazards will make such homes safer for workers as well as residents.

Conclusion

As the official advisory body on disability matters to the State Government in NSW, we appreciate the opportunity created by the ACROD discussion paper to express the views above. We believe that this is an important debate.

It is in the interests of all stakeholders that we work together to arrive at solutions that are practical, realistic and affordable. We are strongly of the view that such solutions can be found and implemented in ways that neither reduce the rights of people with disability nor endanger the safety of workers nor the viability of the service providers for whom they work.

Our comments spring from a commitment to encourage a better, safer and more responsive operational culture of service delivery to people with disability with support needs. We believe that people working in human services organisations want to do the best job they can. Many do. People with disability want the best quality support available.

Occupational health and safety at work is a foundation stone of good service delivery. It cannot exist in a policy vacuum, however. Human services organisations exist because some human beings, in this instance people with disability, need services to support them. The challenge to everyone is devise a framework that enables and supports rather than inhibits and excludes.

The Disability Council of NSW remains committed to developing further the partnerships in NSW that will make that outcome more likely than not.

Disability Council of NSW
25th January 2006