Court decision

Occupational health and safety for aged care providers

By Joanne O'Brien / 10 August 2021
3 min.
Worthwhile read for: Aged care providers

An approved aged care provider has been found guilty of workplace health and safety breaches after a resident fell in a ditch while walking along the road a short distance from the aged care facility.

The incident occurred in 2018 when a resident of St Vincent's Care Services Ltd (SVCS) aged care facility in Werribee, Victoria left the facility to go for a walk with his wheelie walker and a newspaper. He stopped at a nearby site to watch road excavation work and fell into a ditch suffering serious head and rib injuries. Staff at the facility realised he was missing when the resident’s daughter and son-in-law arrived to visit approximately one hour after he had left the facility. He was found after a search of the facility and neighbourhood when he was spied waving his newspaper above the ditch.

Both SVCS and the construction company were charged with breaching section 23 of the Occupational Health and Safety Act 2004, which sets out the duties of employers to other persons.

SVCS pleaded not guilty claiming that:

  1. the real cause of the resident’s injuries was the failure by the construction company to properly fence its work site; and
  2. under the Charter of Rights, the resident had the right to freedom of movement, independence and dignity.

In rejecting these arguments, the judge found that SVCS had failed to implement a procedure that would have eliminated or reduced the risk without unduly interfering with the residents’ human and statutory rights. A sign-in-sign-out register would provide a "simple and practical" means of eliminating or reducing the relevant risks.

The Judge went on to say that concerns about breaching residents' rights exaggerated "the intrusion and inconvenience that the implementation of the proposed measure might cause".

"These rights must be balanced against the imperatives associated with ensuring a high standard of care for each and every resident... Put simply, if [residents] get into difficulty, that should be noticed at the earliest possible time," he said.

As it was, SVCS only became aware that the resident was missing when his family came to visit.

The case is a reminder of the complexity of a provider’s obligations and the often-competing priorities and duties that are an intrinsic part of delivering aged care. Sometimes that complexity requires the development of innovative multifaceted solutions to problems. However, this was one of those occasions when a simple practical tool would have enabled to provider to avoid prosecution.

For more information or further discussion, please contact our Aged Care team.

Joanne O'Brien
Joanne O'Brien is a Partner in the firm, and a sector specialist in the Health and Aged Care and Not-for-Profit space.

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