What is Duty of Care? Duty of Care vs Dignity of Risk

Summary

Emmy Golding from the Mental Health Recovery Institute clarifies the concepts of 'dignity of risk' and 'duty of care' in human services. Duty of care is a legal responsibility to avoid harm to clients, often misunderstood as overprotection. Dignity of risk acknowledges the right to make choices and learn from mistakes. Exceptions to this include risks of death, permanent disability, or lack of capacity, which are determined legally. The balance between respecting autonomy and preventing harm is crucial, avoiding extremes of overprotection or neglect.

Takeaways

• 📜 Duty of Care is a legal responsibility for organizations and staff to ensure they do no harm to the people they support, rather than protecting them from their own choices.
• 🛡 The misconception that duty of care means protecting clients from all harm is clarified; it's primarily about protecting them from harm by the service providers themselves.
• 🚫 Dignity of Risk acknowledges the right of individuals to make choices, take risks, and learn from mistakes, which is essential for personal growth and freedom.
• 🔄 Historically, services have erred on the side of overprotection, but the modern approach emphasizes starting with dignity of risk and moving to duty of care only when necessary.
• 🚑 Exceptions to dignity of risk, where duty of care must be invoked, include risks of death or permanent disability, as dictated by law and specific acts like the Mental Health Act.
• 🏥 Involuntary treatment orders or community treatment orders are situations where a person may be required to have treatment against their will, decided through legal processes.
• 🧩 A lack of capacity to make decisions for oneself is another exception where duty of care may operate, determined through a legal tribunal rather than individual judgment.
• 🚭 The script challenges the idea of preventing certain behaviors like smoking, emphasizing that everyone has the dignity of risk to make their own choices, even if they are harmful.
• 🍔 Similarly, unhealthy eating habits should not be controlled by service providers, as everyone has the right to make their own dietary choices, including the potential for negative health outcomes.
• 🚨 Overprotection under duty of care can lead to neglect of an individual's freedoms, while neglect itself is a legal term with specific criteria that must be met for liability.
• 📋 To avoid neglect, service providers must demonstrate they have taken reasonable steps appropriate to their role and training to protect the person, documenting actions and discussions.

Q & A

What is the primary focus of the video script provided?

The script focuses on explaining the concepts of 'dignity of risk' and 'duty of care' within the context of human services, particularly in mental health recovery.

What does 'duty of care' refer to in the context of human services?

Duty of care refers to the legal responsibility of organizations and their staff to ensure they do no harm to the people they support.

How is 'duty of care' often misunderstood in human services?

It is often misunderstood as the obligation to protect clients from their own choices and mistakes, whereas it actually pertains to protecting them from harm caused by the services themselves.

What is the meaning of 'dignity of risk'?

Dignity of risk is the right of every individual to make choices, take risks, and even make mistakes, allowing them to learn and grow from those experiences.

Why is it important to start from the perspective of 'dignity of risk' in human services?

Starting from 'dignity of risk' recognizes the inherent right of every person to decide how they want to live their life, fostering autonomy and personal growth.

Under what circumstances should duty of care override dignity of risk?

Duty of care should override dignity of risk when there is a risk of death or permanent disability, lack of capacity to make decisions, or when involuntary treatment orders are in place.

What is an example of when duty of care would need to step in according to Australian law?

An example is in the case of suicide, where the Mental Health Act in Australia states that a person does not have the right to kill themselves, and services may need to intervene.

How is the capacity of a person to make decisions determined in the context of duty of care?

The capacity of a person to make decisions is determined through a legal process involving tribunals, where all factors and information from the person's life are considered.

What is meant by 'overprotection' in the context of duty of care?

Overprotection refers to the extreme end of duty of care where services become overly cautious and restrict the freedoms of the person they support, potentially hindering their autonomy.

What are the three elements required to establish neglect in a legal sense?

The three elements are: 1) a proven duty that the person responsible for stepping in, 2) a breach where reasonable steps appropriate to the job role and training were not taken, and 3) serious injury, such as death or permanent serious disability.

How can human services balance the concepts of dignity of risk and duty of care?

Human services can balance these concepts by starting with the recognition of dignity of risk, allowing individuals to make their own decisions, and only stepping into duty of care when absolutely necessary to prevent serious harm.

Outlines

00:00

📚 Understanding Duty of Care and Dignity of Risk

Emmy Golding from the Mental Health Recovery Institute introduces the concepts of 'dignity of risk' and 'duty of care', emphasizing their importance in human services. Duty of care is a legal obligation for organizations and staff to prevent harm to the people they support, often misunderstood as protecting clients from their own choices. Dignity of risk, on the other hand, is the right of every individual to make choices and take risks, including making mistakes, for personal growth. Historically, services have erred on the side of overprotection, but the modern approach is to start from the perspective of dignity of risk, stepping into duty of care only in cases of risk of death or permanent disability, lack of capacity, or involuntary treatment orders, as determined by legal processes.

05:00

🚫 Balancing Freedom with Protection: The Limits of Duty of Care

The second paragraph delves into the exceptions where duty of care overrides dignity of risk, such as in cases of potential suicide or decisions leading to permanent serious disability. It also addresses the legal process required to determine a person's lack of capacity to make decisions. The paragraph clarifies that everyday risks, like smoking or unhealthy eating, do not warrant intervention under duty of care, as they are part of an individual's right to make choices. The speaker warns against the extremes of overprotection and neglect, explaining that neglect has specific legal criteria involving a duty to act, a breach of reasonable steps, and serious injury. The summary concludes with a reminder that every person has the right to make decisions for themselves, and duty of care is a measure of last resort.

Keywords

💡Dignity of Risk

Dignity of Risk refers to the inherent right of every individual to make choices, take risks, and even make mistakes, as part of the learning process and personal growth. It is a central theme in the video, emphasizing the importance of allowing individuals to experience life fully, rather than being overprotected. The script uses this concept to contrast with 'Duty of Care,' highlighting that services should start from a place of respecting autonomy and only intervene when necessary.

💡Duty of Care

Duty of Care is a legal responsibility that organizations and their staff have to ensure they do no harm to the people they support. The video clarifies that this does not mean protecting clients from all harm, including their own choices, but rather from harm caused by the services themselves. It is a key concept used to discuss the balance between protecting individuals and allowing them autonomy.

💡Legal Responsibility

Legal Responsibility is the obligation imposed by law on organizations and individuals to act in a certain way to avoid causing harm. In the context of the video, it is tied to 'Duty of Care,' explaining that organizations must adhere to legal standards to protect those they serve. The script mentions that breaching this duty can lead to legal consequences.

💡Mental Health Act

The Mental Health Act is a piece of legislation that governs the treatment and rights of individuals with mental health issues. The video refers to it in the context of suicide prevention, stating that under Australian law, services have a duty to intervene in cases where there is a risk of self-harm, illustrating the intersection of law and duty of care.

💡Risk of Death or Permanent Disability

This phrase is used in the video to describe a situation where the duty of care must be invoked. It outlines the legal threshold for when services must step in to protect an individual from significant harm, such as in cases of suicide or decisions leading to permanent serious disability.

💡Capacity

Capacity, in the context of the video, refers to an individual's mental ability to make informed decisions for themselves. It is a critical concept because if a person is deemed to lack capacity, the duty of care may override their autonomy, and decisions may be made on their behalf, as determined by a legal process.

💡Involuntary Treatment Orders

Involuntary Treatment Orders are legal directives that require an individual to receive treatment, even if they do not consent to it. The video uses this term to illustrate exceptions to the 'Dignity of Risk,' where the law and duty of care override personal choice for the individual's wellbeing.

💡Overprotection

Overprotection is a concept in the video that describes the extreme end of 'Duty of Care,' where services become overly cautious and restrict an individual's freedoms to avoid potential harm. It is presented as a negative outcome that can occur if the balance between autonomy and protection is not maintained.

💡Neglect

Neglect, in the video, is defined as a legal term referring to the failure to provide necessary care or attention resulting in harm. The script explains the conditions under which neglect can be legally proven, emphasizing the importance of taking reasonable steps to protect individuals while respecting their autonomy.

💡Freedoms

Freedoms are the rights and liberties of individuals to make their own decisions and choices. The video emphasizes the importance of respecting these freedoms as part of the 'Dignity of Risk,' and discusses how services should avoid infringing upon them unless absolutely necessary under the duty of care.

💡Mental Health Recovery Institute

The Mental Health Recovery Institute is the organization from which Emmy Golding, the speaker in the video, hails. It is mentioned at the beginning of the script to establish the context and authority of the speaker on the topics of 'Dignity of Risk' and 'Duty of Care.'

Highlights

Introduction to the concepts of dignity of risk and duty of care in human services.

Duty of care is a legal responsibility to do no harm to the people supported by organizations.

Misunderstanding of duty of care as protection from self-harm rather than protection from the service itself.

Dignity of risk as the right to make choices, take risks, and learn from mistakes.

Historical overprotection in services leading to the loss of life experiences.

Shift in policy to start from dignity of risk, recognizing the right to self-determination.

Exceptions to dignity of risk include risk of death or permanent disability.

Australian Mental Health Act's provisions on suicide as an example of duty of care intervention.

Lack of capacity as a legal determination for duty of care to override personal choices.

Involuntary treatment orders as a legal exception to the dignity of risk principle.

The importance of distinguishing between personal choices and service intervention.

The challenge of balancing dignity of risk with the prevention of harm.

Overprotection as an extreme of duty of care leading to the loss of personal freedoms.

Neglect as the opposite extreme of dignity of risk, with legal implications.

Legal criteria for neglect involving duty, breach, and serious injury.

The importance of reasonable steps in fulfilling duty of care to avoid neglect.

Respecting individual freedoms as the core principle in human services.

Conclusion emphasizing the right of every human being to make decisions for themselves.

Transcripts

hi I'm Emmy Golding from the mental

health recovery Institute and I want to

talk to you today about the concepts of

dignity of risk and duty of care this is

something that's really poorly

misunderstood in human services uh so

let's start with this is a model that's

been helpful for me to understand it and

just to get some clarity around how we

use these in our services so imagine

that there's a

Continuum between duty of

care and we've got digity of risk at the

other

end so what do these terms mean let's

start with duty of care because this is

often really

misunderstood duty of care refers to the

legal

responsibility make a note here legal

responsibility that organizations have

and the staff within them to do no harm

to the people that they support

so in many cases services and uh

institutions have actually mistreated an

abused clients particularly in the past

although it still happens sometimes

these days too so duty of care was

bought in to say that those

organizations have a responsibility not

to harm the people that they support now

this is a little bit different from how

it's sometimes understood because people

think that duty of care means I have to

protect the client from themselves I

have to protect them from any mistakes

that they make and make sure that

they're not harmed in any way that's not

quite right remember it's about

protecting the person from us as

services not from their own

choices on the other side here we've got

Dignity of risk and dignity of risk

refers to the right that every one of us

has whether we have a mental health

issue or not the right that we have to

make choices and to take risks and even

to make mistakes and get it wrong

sometimes uh so that we can can learn

from those mistakes it's about learning

it's about

mistakes ultimately it's about

freedoms now historically many services

have started from this side they've

started on this end of the Continuum

thinking well I have to protect the

person I don't want to see them getting

any harm so they've bubble wrapped the

person and not allowed them to actually

experience life in many cases

and sometimes they've gone all right

well they've been well behaved and I

feel comfortable so you know I'll let

the person make some choices in one area

when when I feel safe to do

so what we're saying now and and what

the policies and legislation in

Australia is saying is that we actually

need to start from this end of the

Continuum from Dignity of risk

recognizing that every single person has

the right to decide how they want to

live their life and yes there are some

sometimes when we do need to step into

our duty of care but our starting point

is from this side and sometimes we move

across to duty of care not the other way

around so what are some of those

exceptions some of those times when we

do need to step into duty of care well

the law says it's when there's a risk of

death or permanent

disability so one example of this would

be in the case of suicide that's a case

where in Australian law we have the

mental health act which says that a

person does not have the right to kill

himself in that case services do need to

step in and the appropriate person who's

authorized to do so can actually put the

person in hospital even if they don't

want to go because they don't have that

right permanent serious disability if a

choice the person's making is going to

result in permanent serious disability

then again we can step into our duty of

care and take action now this doesn't

mean just a broken bone it's got to be

serious disability there another example

where there's an exception is where

there's a lack of

capacity so if it's determined that the

person doesn't have the mental capacity

to make decisions for their own life

that's another time when duty of care

would operate but that's not up to you

and I to decide that's actually got to

be decided through a legal process so we

have tribunals where that's determined

looking at all the factors and getting

information from all the people in the

person's life so if the person's deemed

to have a lack of capacity then our duty

of care might step in to make choices

for the person rather than them make

them for themselves and finally another

example where there's an exception to

this rule is where there's involuntary

treatment orders or Community treatment

orders that means that the person's

required to have treatment uh even if

they don't want it and again that's

decided through a Tribunal or through a

legal process it's not our

responsibility it's only in those

situations where we might make a

decision on behalf of the person and

their own choice is not

respected so that sort of raises the

question you know people say well what

about if someone's uh smoking and it's

bad for them and they're not allowed you

know it's going to cause lung cancer and

it's going to impact on them it could

give permanent serious disability so

shouldn't we stop people from smoking

well not really because if we think

about it remember every single one of us

has the Dignity of risk to make choices

so if you or I are allowed to smoke and

we're allowed to to give ourself that

disability then so is the person that

we're supporting that's a good way to

check is your average everyday person

allowed to make this decision and if so

then so is the client unless there's a

CTO in

place another example would be well what

if the person person's eating

unhealthily and they're going to be

overweight and that could lead to

obesity and and all of the uh ill health

that comes with that still if you or I

are allowed to overeat we're allowed to

make poor choices in that area so is the

person that we work

with so it's a shift in a way of

thinking about this for many people um

but ultimately it's about respecting the

freedoms that the person has now one of

the problems that can come about is when

people take this to the extremes so if

we look at duty of care the extreme end

of that is over

protection so sometimes Services get so

worried that often times that they're

going to get in trouble they're really

worried that that's going to happen so

they overprotect the client and don't

allow them to to have these freedoms at

the other end uh instead of dignity of

risk we get

neglect the person says oh well Dignity

of risk their choice to do whatever they

want and they go too far to the extreme

that's that's neglect and that's not

okay either but neglect is again a legal

term and it's important to know if we're

worried about going too far that way

what what are the legal requirements

around

neglect I'll just make a note of them

here in order to get in trouble with

neglect there's three things that have

to happen one it has to be proven that

you had a duty that you were the person

responsible for stepping in so in the

case of workplace uh in the workplace if

you weren't on shift for example you

might not have a duty because you

weren't the one responsible at the time

it's only by virtue of working in that

organization that you have a duty um the

second is I have to show that there's

been some breach that you haven't taken

reasonable steps appropriate to your job

role and your training to to protect the

person from these things

so if you've done all the right things

if you've what what are reasonable steps

well it can be talking with the person

about the potential impact of their

choices documenting that speaking with

your supervisor and colleagues referring

to the policies and procedures they're

all reasonable steps and if you've done

those then you've protected

yourself and finally the third one is

injury there has to be a serious injury

and again we're talking death or

permanent serious disability

if that doesn't happen you can't be

liable for

neglect so I know that's a lot of

information and it is a different way of

thinking about things but that's a

rundown of

how I make sense of Duty of care and

dignity of risk and how they fit

together remember the key point is we

start from this place every single human

being has the right to make decisions

for themselves and it's only in these

cases that our duty of care steps in

where we take reasonable action

to support the person I hope that's been

helpful thank you