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.