CHCLEG001 Work legally and ethically Learner Guide

Assessors must satisfy the Standards for Registered Training Organisations (RTOs) 2015/AQTF mandatory competency requirements for assessors.

Links

Companion volumes from the CS&HISC website - http://www.cshisc.com.au

1. Identify and respond to legal requirements

1.1. Identify, access and interpret sources of information about the legal requirements that apply to the work role

1.2. Identify the scope and nature of own legal rights and responsibilities

1.3. Adhere to legal requirements in work practice according to workplace policies and procedures and scope of role

1.4. Recognise potential or actual breaches and report according to organisation procedures

 

1.1– Identify, access and interpret sources of information about the legal requirements that apply to the work role

By the end of this chapter the learner should be able to:

• Show an understanding of legislation that is applicable to their work role
• Be aware of common legal issues that can arise in the workplace
• Have a sound overview knowledge of the Australian legal system
• Know the two types of law and give examples of each.

Your job role is will contain a number of legal responsibilities and obligations – these will differ depending on your location and the nature of your work.

Examples may include:

• Aged care legislation
• Child protection and guardianship legislation
• Duty of care legislation
• Privacy legislation
• WHS legislation
• Mental health legislation
• Health records legislation

This information can be accessed in full though government websites such as:

• health.gov.au
• oaic.gov.au
• safeworkaustralia.gov.au
• commerce.wa.gov.au
• alrc.gov.au

Common legal issues relevant to the workplace

The specific legal issues that you face in the workplace will be many and varied, depending on your particular industry.

However, there are some issues that apply to almost every workplace; they include:

• Harassment (sexual, racial etc.)
• Discrimination
• Unfair dismissal
• Copyright/patent issues
• Customer disputes
• Employee background checks
• Privacy/confidentiality issues
• Duty of care/neglect
• Employee rights
• Client rights

Your organisation's stance on these areas, and the policies and protocols which will prevent legal action concerning them should be outlined in the company policies and procedures. Staff should be appropriately trained and regular reviews of their knowledge on the subject should be made a requirement. If any new legislation is introduced, this should be explained and taught to all of the relevant employees.

Relevant legislation in the sector and jurisdictions

You will need to be aware of the relevant legislation in your work sector and be well-versed in the areas that affect your role specifically. Information and full copies of this legislation can be found on the government websites listed previously.

The legislation requirements can differ between states and territories and you should check the specific laws in your location. You also need to be familiar with who has jurisdiction for all of the specific laws that apply and the regulatory bodies.

Overview of the legal system

In Australia, each State and Territory is self-governing and has separate jurisdictions, complete with their own court system and parliaments. This means that laws are not binding between States and Territories (though they may influence rulings as such). It has originated from and is based upon British law.

The legal system is designed to be non-discriminatory and is underlined by principles such as procedural fairness, judicial precedent and the separation of powers.

The basis of it comes from the system of common law – this is that current, pending decisions in court cases are based upon the results and decisions of previous cases. This ensures a progressive nature of the legal system.

When the Australian Constitution was created in 1901, it created a federal system of government that distributed powers between the federal government and states.

There are two types of powers:

• Exclusive powers – the federal government can has exclusive power to make laws on things such as:
  • trade and commerce
  • taxation
  • defence
  • external affairs
  • immigration and citizenship
• Concurrent powers – both tiers of government can enact such laws

On all matters not assigned to federal government, states and territories have independent legislative power on these. However, federal laws will always prevail over state laws in areas of ambiguity/inconsistency – they also apply across the whole of Australia.

In total, there are nine legal systems in Australia – one federal system and eight state and territory systems. Most people in daily life are affected by the criminal laws of state and territory legislation.

Each federal and state system has three branches of government – legislative (to make the laws, in parliaments), executive (to administer laws) and judicial (to interpret and apply laws).

Sources of law

• Constitutional law
• Statute law
• Common law
• Equity
• Customary law
• International law

The High Court of Australia

• Deals with special cases relating to federal laws and interprets and applies these laws in Australia, including challenges to constitutional validity of laws
• Hears appeals from the federal, state and territory courts
• Is the highest court of appeal on all matters (federal or state)
• Consists of a Chief Justice and six other judges – they can preside individually or as a group

 

 

Federal Court of Australia

• Covers almost all civil matters under Australian federal law and some summary criminal matters
• Can review decisions of Federal Court and Federal Magistrates Courts and some state and territory courts

Family Court of Australia

• Superior court for Australian family law
• Covers specialised areas such as Hague Convention on International Child Abductions and the international relocation of children by parents or guardian

Federal Magistrates Court of Australia

• Jurisdiction includes family law, bankruptcy, unlawful discrimination, consumer protection and trade practices, privacy, migration, copyright and industrial law
• Almost all of its jurisdiction is shared with the Family Court or Federal Court

Australian state and territory courts

• Have jurisdiction in all matters covered by state or territory laws
• Can handle matters under federal laws, where jurisdiction has been conferred
• Deal with most criminal matters under federal, state and territory laws
• Operate independently with their own supreme courts (some also have courts of criminal appeal)
• District/county courts handle the most serious cases, with a judge and jury to determine the guilt/innocence of defendants
• Murder, rape and armed robbery are tried in a higher court
• Lesser offences are dealt in magistrates courts (without a jury)

Note: All defendants are considered innocent until proven guilty beyond all reasonable doubt.

Also, the death penalty does not exist in Australia.

Legal aid

The government provides financial legal aid to those who cannot afford representation (subject to a means test), as this is an important element in ensuring justice is fair.

The federal Attorney-General’s Department administers the funding for legal aid in federal law matters, whereas state and territory governments fund it for cases being tried under state and territory law.

Types of law

Criminal laws

These laws are designed to protect society and, if you break them, police can take immediate action.

Categories and examples of when criminal laws apply include:

• Traffic/road laws
  • drink driving
  • speeding
  • illegal use of an aeroplane
  • driving in an unregistered vehicle
  • wilful damage of vehicles
  • not wearing a helmet
  • stopping for pedestrians
  • correct indicating
• Public order
  • drug use
  • public decency (sleeping on the streets, urination, nudity etc.)
  • carrying of weapons in public
  • dry areas
  • rioting
  • protest marches (remaining non-violent)
  • assault
  • defamation
• Property
  • arson
  • trespass
  • theft
  • littering
  • vandalism
  • intentional damage
• People
  • passive smoking
  • rape
  • murder
  • harassment
  • suicide
  • sexual abuse.

Civil laws

These laws solve problems and disputes between two or more parties – the courts and legal personnel resolves these issues.

Categories and examples of when criminal laws apply include:

• Contract law
  • signed contracts can't be broken
  • marriage
  • licences
  • misleading/inaccurate advertisements
• Employment law
  • firing employees (reasons)
  • fair duties as an employer
  • equal opportunities
  • not to work over 40 hours in any one week (appropriate overtime penalties)
  • wrongful dismissal
  • age discrimination
• Family law
  • child abuse
  • caring for children until they are 18 years old
  • domestic violence
  • custody of children
  • registration of birth
  • maintenance issues
• Law of Torts
  • compensation (e.g. dog biting)
  • accidents involving other animals
  • others injuring themselves on your property.

Activity 1A

1.2 – Identify the scope and nature of own legal rights and responsibilities

By the end of this chapter the learner should be able to:

• Access statutory and regulatory legislation
• Know which legislation is applicable to their job role
• Understand how to put legislation into practice.

It is important that you have a thorough understanding of the key statutory and regulatory requirements relevant to you work role.

These may include:

• Aged care standards
• Building standards
• Care and education of young children
• Child protection and guardianship legislation
• Criminal acts
• Disability standards
• Discrimination and harassment
• Equal employment opportunities
• Freedom of information
• Health records legislation
• International and national standards
• Mental health legislation
• Pharmaceutical benefits
• Poisons and therapeutics
• Privacy legislation
• Public health
• Registration and practice of health professionals
• Residential and community services
• Restrictive practices
• WHS

Your knowledge of these should be sufficient according to your job role and so that you can perform it without being liable to action against you and so that clients receive the appropriate level of service that they are legally entitled to.

 

Activity 1B

1.3– Adhere to legal requirements in work practice according to workplace policies and procedures and scope of role

By the end of this chapter the learner should be able to:

• Know how to meet their duty of care in line with their job role
• Apply privacy and confidentiality laws to tasks undertaken within their role
• Obtain client agreement before undertaking certain activities.

Meet duty of care

Your level of support must meet the duty of care requirements. This may apply to:

• Provision of:
  • Nutrition
  • Clothing
  • Bathing and personal hygiene
  • Toileting
  • Safety
• Administration of:
  • Medicines
  • Treatments
  • Medical care
• Protection of:
  • Rights
  • Confidentiality
  • Physical wellbeing
  • Mental wellbeing

This means that you must ensure that clients are receiving adequate care in these departments, as well as others. This includes tasks that you complete yourself, tasks completed by colleagues and tasks completed by the clients.

For example, proper nutrition:

• If you feed the client, you must ensure that they eat enough quality food, including fruit and vegetables. If you notice that the client is not eating, you must determine the reason and provide a solution.
• If your colleagues feed the client and you notice or they tell you that they are not eating properly, you need to report this to the appropriate person and sort a solution out.
• Where clients feed themselves, if they live in private accommodation and you become aware that they are not eating properly, you will need to take steps to rectify the situation. Knowing that a client only eats two slices of toast all day or binges on junk food and failing to address and rectify this can mean that you fail in your duty of care, as you are not ensuring that the client receives proper nutrition that is healthy.

Whatever care you provide to the client, you must always ensure that you meet the requirements of the duty of care; this is a moral obligation and may be a legal requirement.

Duty of care in law

Duty of care comes under the ruling of tort law – i.e. a civil wrong, as opposed to a breach of contract. It requires an individual to provide a standard of reasonable care while carrying out any activity that could potentially harm others. Breaching duty of care means that you, as an individual, are liable to legal action from the claimant.

Duty of care has been developed through common law i.e. it exists based on past related court rulings – therefore, there is no exact legal definition of things like duty of care and negligence.

Negligence is when damage/harm occurs to another person as a result of someone else not exercising reasonable care. Duty of care requires that an acceptable standard of care is exercised, where it is reasonably practicable, to ensure the health and safety of yourself and others.

Duty of care also means that everyone has a responsibility to ensure a safe and healthy working environment.

This can include the following people:

• Community and disability service workers
• Doctors
• Solicitors
• Financial advisors
• Drivers
• Local governments

Duty of care is written legally into the Workplace Health and Safety Act 1995 – it is a moral duty to anticipate possible hazards and causes of injury and do everything reasonably practicable to prevent/remove/minimise these causes.

This means that duty of care cannot be delegated – all adults in the workplace are responsible for health and safety.

Courts will determine breaches of duty of care based on the following criteria:

• What is typically expected of another person in the same situation
• The person's roles and responsibilities within their organisation
• The experience/level of training for the individual
• The practicalities of the situation
• What is deemed acceptable practice within the community
• Generally acceptable standards in the situation
• Relevant laws e.g. the Workplace Health and Safety Act 1995

For negligence to be successful, the following must be proven:

• A duty of care is owed by the plaintiff to the defendant
• In exercising the duty of care, the defendant failed to function according to a reasonable standard of care
• The failure to function according to a reasonable standard of care (breach) caused the damage suffered by the plaintiff
• The loss or damage suffered by the plaintiff was reasonably foreseeable

Negligence laws

In order to restrict the number of negligence claims, there are laws, in Queensland related to professional liability for damages related to negligence:

• Personal Injuries Proceedings Act 2002 (Qld)
• Civil Liability Act 2003 (Qld)

The following principles apply to negligence:

• It does not apply if the risk of the activity was obvious/made clear
• What is expected is dependent on the skill level/experience of the worker
• People are given a reasonable amount of information to make informed decisions on optional actions (e.g. medical treatment)
• Apologies/expressions of regret do not amount to admitting liability/fault and will hold no weight in court
• First aid personnel have no liability in emergency situations, as long as their actions are in good faith and without reckless disregard for safety

Maintaining competence

As an employer/worker, it is your responsibility to maintain competence in your given field and retain a skill level that can be described as reasonably competent.

This can be reviewed and monitored through:

• Supervision
• Co-worker/peer support and review
• Professional development
• Reading up on current literature
• Providing advice and services based on current evidence/facts
• Membership of professional associations
• Participating in research programs.

Privacy

Privacy is applicable to many aspects of a client’s life and care. Examples of how privacy should be maintained and promoted include:

• Training all staff properly about privacy
• Restricting access to records and information about the client to appropriate personnel
• Respect clients’ personal relationships with others
• Respect clients’ sexual relationships and give them relevant privacy
• Give the client a choice in interpreters, where required
• Ask their permission before entering their personal space
• Ask their permission before touching their possessions
• Ask their permission before going through their drawers, etc.
• Allow clients privacy for conversations and phone calls, such as by having designated rooms or areas
• Do not open mail addressed to clients
• Provide single-sex bathrooms and toilets
• Allow and encourage personalisation of personal spaces, such as bedrooms.
• Only gather and collect relevant and required information

Providing clients with as much privacy as possible will have a significant impact on their happiness and self-worth, and make life much more agreeable and attractive; having the privacy and opportunity to do things also encourages and provides levels of independence that clients may not necessarily expect.

• A care provider asking permission to go through their wardrobe can grant clients a degree of autonomy, self-worth and independence, even if they are being dressed.
• Knocking before you enter a room and awaiting an invitation inside will show clients that they have much more autonomy and respect than having them walked in on with no warning.
• Providing clients with a private room where they can take or make phone calls will show them how much privacy they have and allow them to retain some of their identity and independence.

Confidentiality

Confidentiality is required by law in certain respects; the privacy of patient and client records is the most important aspect of confidentiality. Failure to maintain privacy of customer records is punishable by law and organisations can be sued by the patient.

Confidentiality covers:

• Physical privacy of patients in facilities, such as surgeries, hospitals and residential care homes
• Controlling/not sharing records
• Monitoring access to records
• Disclosure to third parties:
  • Employers
  • Other patients and family members
  • Insurance companies
• Use of audit trails to monitor who has accessed medical records and when
• Encrypting electronic records
• Protection of Personally Controlled Electronic Health Records (PCEHR)
• Not selling or communicating data to pharmaceutical companies

Confidentiality laws apply to discussing clients’ conditions and treatment with other people; you need to be aware of the legislation around this and apply it to your discussions. Generally, clients must give their permission for you to contact others about their personal details and you can only discuss their conditions with identified close family members, such as spouses.

Some information must be stored appropriately in line with confidentiality laws and organisational procedures, such as:

• Financial information
• Healthcare/medical records
• Personal details.

Seek client agreement

In line with duty of care and confidentiality, you should always look to obtain the agreement of clients before providing them with any services.

This should be obtained by written or verbal consent, if the client is in a reasonable state to give informed consent. In cases where the client is unconscious or unable to give consent for another reason, they may have an assigned advocate who has the power to make these decisions on their behalf.

Clients may include but are not limited to:

• Children and families using children's services
• Children and young people
• Individuals living in government funded services and/or institutions to 'clients'
• Individuals living in residential aged care environments
• Individuals living in residential disability environments
• Individuals living in the community
• Job seekers
• People seeking advice and assistance
• Prospective individuals to the service or services

By law (e.g. Aged Care Act 1997, Child Protection Act 1999, Disability Services Act 2006 etc.) clients have a right to be involved in decision making related to their own case. Failing to obtain consent can result in a violation of a variety of civil laws.

Involving clients in decision-making can be done by:

• Asking questions/their opinion
• Discussing options in groups
• Discussing options through key stakeholders within their social network
• Discussing options with others who have experienced the strategies that you are attempting to gain the client's consent on
• Trialling options with them

The client should not be forced to make a decision they are not comfortable with – this can constitute harassment.

Instead, you should exercise the following strategies:

• Giving them adequate time and space to make a reasoned decisions
• Actively listening to client concerns and addressing them
• Asking open questions (rather than forcing them to say "yes" or "no")
• Involving advocates or trusted friends of the client in the decision-making environment

Activity 1C

1.4– Recognise potential or actual breaches and report according to organisation procedures

By the end of this chapter the learner should be able to:

• Show vigilance against potential breaches of legal or ethical practice
• Recognise when legal or ethical practice has been breached
• Follow organisational procedure for reporting a breach.

Recognising a breach

If you recognise a breach of legal requirements in someone’s role, you should seek to report the incident to the appropriate person.

Potential/actual breaches may include:

• Discussing clients outside of a work context
• Leaking sensitive documents to third parties
• Ignoring duty of care responsibilities
• Not including clients in decision-making processes (concerning them)
• Not protecting confidential documents
• Opening mail not addressed to you
• Not providing equal opportunities
• Not providing single-sex bathrooms
• Negligence towards a client.

Reporting a breach

When you notice a potential or actual breach for any of the above (or any others relevant to your work role), you should report them to the appropriate person within your organisation and (if applicable) governing body.

Encourage the use of anonymous hotlines/reporting, to remove the obstacle of colleagues being reluctant to report on each other for fear of retribution.

However, this is not always practical and/or possible – especially when professional ethics and legal requirements have been broken.

An investigation into the breach will need to be carried out, with written details provided to a licensing/governing body. It is a good idea to have a standard form for employees to report on such breaches. Any evidence must be collected and submitted, to see if the report is valid – the accused must also be notified and given the chance to respond with evidence to support their statement.

In some cases, a hearing with the licensing/governing body might be required to resolve the issue and justify the need for further action.

Activity 1D

2. Identify and meet ethical responsibilities

2.1. Identify, access and interpret sources of information about the ethical responsibilities that apply to the work role

2.2. Identify the scope and nature of own ethical responsibilities

2.3. Meet ethical responsibilities according to workplace policies and protocols, and scope of role

2.4. Recognise potential ethical issues and dilemmas, and discuss with an appropriate person

2.5. Recognise own personal values and attitudes and take into account to ensure non-judgemental practice

2.6. Use effective problem solving techniques when exposed to competing value systems

2.7. Recognise unethical conduct and report to an appropriate person

2.8. Recognise potential and actual conflicts of interest and take appropriate action

2.1 – Identify, access and interpret sources of information about the ethical responsibilities that apply to the work role

By the end of this chapter the learner should be able to:

• Locate and access sources of information about their ethical responsibilities within the workplace
• Follow their organisation’s code of ethics when undertaking all activities
• Show an understanding of the origins of ethical standards.

Sources of information on ethical responsibilities

Ethical organisations should have a professional set of policies and procedures – it is the responsibility of management to develop these. This allows workers to operate under these, rather than based on their personal opinion of what is right and wrong.

Professional fields will usually have a governing body that creates a code of conduct/ethics and members of that profession will often have to pay penalties/face sanctions if they fail to abide by these.

Clarifying what ethical conduct is shows a commitment to moral standards of behaviour. Your particular workplace may have their own set of ethical guidelines, to identify specific issues within its industry e.g. aged care, disability services. All ethical codes should be based on appropriate behaviour towards the client, with protection of their rights and respect for their beliefs.

Code of ethics

A professional code of ethics details the expected behaviour of workers (in the workplace). It provides consistency and credibility in professional practice; it also ensures that the clients' rights are protected.

It gives workers a framework to base their behaviour and decisions on, and what is best for clients. It outlines their responsibilities to clients, their families, colleagues and the community, and to the profession.

Accepting the code of ethics ensures that the safety, well-being and client rights are actively considered in everyday practice at work. It is voluntary but most services require at least adherence to a professional code for that industry.

Origin of ethical standards

Community attitudes – these are general views on certain subjects and how people should be treated. In the last 20 years or so, attitudes have shifted and legislation has followed in due Assignment.

Human rights – these are basic entitlements of human beings – freedom, choice, privacy, dignity, social justice, participation and non-discrimination. The United Nations has published a Universal Declaration of Human Rights on this matter.

Duty of care – people have a right to service free from abuse and neglect, performed with care, caution and attention. Their personal information should remain confidential.

Self-determination – people can make their own decisions (as long as they don't harm others)

Acceptance – acknowledging everyone has a right to exist, be valued and understood. They deserve to be treated with dignity and respect.

Confidentiality – personal information should be protected, whether it is given verbally or in writing, or learned through observation. It may be shared only in professional circumstances, where it is necessary to make informed decisions.

Activity 2A

2.2 – Identify the scope and nature of own ethical responsibilities

2.3 – Meet ethical responsibilities according to workplace policies and protocols, and scope of role

By the end of these chapters the learner should be able to:

• Ensure client rights are protected when undertaking all activities
• Maintain privacy when dealing with sensitive and private information
• Uphold patient confidentiality in line with organisational requirements and the law
• Follow the complaints procedure adopted by their organisation correctly
• Refrain from holding stereotypical reviews in regards to clients
• Avoid discriminating against any individual.

Protectingclientrights

Part of your ethical responsibility is to ensure the protection of client rights – many of these are legally required.

Rights may include:

• Access to services
• Confidentiality
• Dignity
• Freedom of association
• Informed choice
• Privacy
• Right to express ideas and opinions
• To an agreed standard of care
• To lodge a complaint

These rights are detailed in:

• Accreditation standards
• Industry and organisation codes of conduct, practice and ethics
• Industry and organisation service standards
• International and national charters
• Legislation

The right to privacy

When working with sensitive and private information, it is important that you treated it as provided in confidence. This helps build trust and also protects you from legal troubles.

Your organisation should have policies and procedures regarding how you treat client information and this should be followed to the letter, with no exceptions (unless stated in the policies and procedures).

Privacy legislation exists at both a state and federal level within the following Acts:

• Child Protection Act 1999 (Qld)
• Family Law Act 1975 (Cwlth)
• Freedom of Information Act 1992 (Qld)
• Juvenile Justice Act 1992 (Qld)
• Mental Health Act 2000 (Qld)
• Privacy Act 1988 (Cwlth)

The following guidelines serve as a good basis for maintaining client confidentiality:

• Never discuss client information in social circles
• Documented information should only ever relate to service delivery and related factors
• Confidential documents must be stored securely, out of reach of the public and unauthorised personnel
• Client information should never be disclosed to neighbours or family
• Client information should never be disclosed to external agencies that are not part of the client's service delivery system
• Names and details of clients should not be disclosed in public forums e.g. meetings, seminars etc.

There are cases where confidentiality can be broken:

• If the person is at serious risk of harm
• Where there is an imminent, serious threat to the public or a specific person
• Where there is a police request for information under the Police Powers and Responsibilities Act 2000
• For use by healthcare professional (as long as a recognised standard of treatment is being delivered)

Issues of confidentiality should never be taken lightly – you should discuss them with your supervisor. Senior staff should always be involved for complex, competing decisions e.g. confidentiality vs. safety.

Sharing information within a team

Even if the client asks that you not share their information with others on your team, it is necessary to do this to ensure service quality is coordinated and of the highest quality. You should inform of this, explaining that all of the team need to have access to appropriate information to ensure the best outcomes for them. Reassure them that their confidentiality will be maintained outside of a professional context.

The only situation where it may be appropriate to withhold client information from colleagues is when there is a conflict of interest. However, if information isn't shared, it makes team-based care reviews impossible and appropriate decisions are harder to make.

The right to consent

There is a legal obligation to obtain client consent – that is, that they agree to services you intend to provide for them.

As outlined in section 1.6, the following applies:

By law (e.g. Aged Care Act 1997, Child Protection Act 1999, Disability Services Act 2006 etc.) clients have a right to be involved in decision making related to their own case. Failing to obtain consent can result in a violation of a variety of civil laws.

Involving clients in decision-making can be done by:

• Asking questions/their opinion
• Discussing options in groups
• Discussing options through key stakeholders within their social network
• Discussing options with others who have experienced the strategies that you are attempting to gain the client's consent on
• Trialling options with them

The client should not be forced to make a decision they are not comfortable with – this can constitute harassment.

Instead, you should exercise the following strategies:

• Giving them adequate time and space to make a reasoned decisions
• Actively listening to client concerns and addressing them
• Asking open questions (rather than forcing them to say "yes" or "no")
• Involving advocates or trusted friends of the client in the decision-making environment

The right to safety and adequate care

There is a legal requirement to receive adequate care, in relation to the concepts of duty of care and negligence.

Duty of care in law

Duty of care comes under the ruling of tort law i.e. a civil wrong as opposed to a breach of contract. It requires an individual to provide a standard of reasonable care while carrying out any activity that could potentially harm others. Breaching duty of care means that you, as an individual, are liable to legal action from the claimant.

Duty of care has been developed through common law i.e. it exists based on past related court rulings – therefore, there is no exact legal definition of things like duty of care and negligence.

Negligence is when damage/harm occurs to another person as a result of someone else not exercising reasonable care. Duty of care requires that an acceptable standard of care is exercised, where it is reasonably practicable, to ensure the health and safety of yourself and others.

Duty of cafe also means that everyone has a responsibility to ensure a safe and healthy working environment.

This can include the following people:

• Community and disability service workers
• Doctors
• Solicitors
• Financial advisors
• Drivers
• Local governments

Duty of care is written legally into the Workplace Health and Safety Act 1995 – it is a moral duty to anticipate possible hazards and causes of injury and do everything reasonably practicable to prevent/remove/minimise these causes.

This means that duty of care cannot be delegated – all adults in the workplace are responsible for health and safety.

Courts will determine breaches of duty of care based on the following criteria:

• What is typically expected of another person in the same situation
• The person's roles and responsibilities within their organisation
• The experience/level of training for the individual
• The practicalities of the situation
• What is deemed acceptable practice within the community
• Generally acceptable standards in the situation
• Relevant laws e.g. the Workplace Health and Safety Act 195

For negligence to be successful, the following must be proven:

• A duty of care is owed by the plaintiff to the defendant.
• In exercising the duty of care, the defendant failed to function according to a reasonable standard of care.
• The failure to function according to a reasonable standard of care (breach) caused the damage suffered by the plaintiff.
• The loss or damage suffered by the plaintiff was reasonably foreseeable

Negligence laws

In order to restrict the number of negligence claims, there are laws, in Queensland related to professional liability for damages related to negligence:

• Personal Injuries Proceedings Act 2002 (Qld)
• Civil Liability Act 2003 (Qld)

The following principles apply to negligence:

• It does not apply if the risk of the activity was obvious/made clear
• What is expected is dependent on the skill level/experience of the worker
• People are given a reasonable amount of information to make informed decisions on optional actions (e.g. medical treatment)
• Apologies/expressions of regret do not amount to admitting liability/fault and will hold no weight in court
• First aid personnel have no liability in emergency situations, as long as their actions are in good faith and without reckless disregard for safety

Maintaining competence

As an employer/worker, it is your responsibility to maintain competence in your given field and retain a skill level that can be described as reasonably competent.

This can be reviewed and monitored through:

• Supervision
• Co-worker/peer support and review
• Professional development
• Reading up on current literature
• Providing advice and services based on current evidence/facts
• Membership of professional associations
• Participating in research programs.

The right to complain

Clients are entitled to complain if they are dissatisfied with a service or any aspect of it – they must be made aware of this and process for lodging a complaint; this should be standard practice in your organisation.

Most organisations have a client grievance policy or procedure which will outline the accepted way to handle complaints and how to support the client throughout the process.

The complaints process

In complaints management, it is usually a three step process:

• Talk to the people directly involved with the complaint, to attempt to solve the problem
• Take the issue higher up, if initial discussions are unproductive
• Take the complaint to an agency or refer the client to an advocacy service

Outcomes of complaints

Depending on the nature of the complaint and the opinions of those involved, there are several outcomes of complaints:

• No further action is taken (but the incident documented)
• The complaint is investigated
• The complaint is referred to another person/department
• The client takes action (after having their options explained to them)

How to handle complaints

When dealing with complaints, there are some general tips to help minimise hostility and the likelihood of action against yourself/the organisation:

• Establish and maintain a rapport with the client
• Discuss issues in a broad sense
• Be open to talking about anything the client wishes to discuss
• Have an open mind
• Try to get to the bottom of what caused the problem
• Look for solutions
• Don't directly disagree with the client
• Take swift action to rectify the problems using identified solutions
• Refer matters to your supervisor if you are unable to the deal with the complaint

Other rights

• Right to receive service
• Right to equal treatment (regardless of cultural and linguistic differences)
• Legal rights.

Regardless of your own personal values, you should offer all services equally to clients, regardless of their personal values, beliefs, attitudes and culture. This is not to say that you cannot have your own opinions – it is moreover a question of being empathic, non-judgemental and unbiased about the views and preferences of others. In fact, understanding your own views and morals and what drives them will better prepare you to understand those of others.

Definitions

Values

Values are things that people view as important in life. They are part of an individual's belief system and develop from our upbringing, becoming part of our morals and conscience.

To a large degree, our surroundings determine our values – family, friends, culture, religion and education. We unconsciously absorb their input and, during adolescence, we begin to explore their values and develop our own – these can be altered through personal experience. As everyone's life differs, our values are unique.

Attitudes

An attitude is a belief – it is what we think is the proper way of acting or thinking about a particular subject. Their strength can vary – strong ones are values, whereas less important ones are defined as opinions.

Stereotypes

A stereotype is when you group people together based on a similarity or characteristic – it is a simplified image. They are the image that comes into your mind when you think of certain groups, e.g. Muslim, politician, student, disabled etc. You homogenise individuals based on your prior views of their 'group' of people.

As you will end up working with a variety of clients from a range of different ages, ethnicities, genders, sexual orientations and religions – all of them will have different values and beliefs.

Diverse values

Views around the above will affect the decisions we make on a daily basis and our priorities. This can be things like which jobs you complete first, how to respond to client needs and the priorities when you have a conflict of interest/priority.

Your values may differ to your colleagues or those in the policies and procedures of your organisation – these can create competing and conflicting interests.

Stereotypes

Stereotypes are often false and based on inaccurate observations.

For example, many people see older/disabled people as:

• Dependent
• Mentally incompetent
• Reliant on handouts
• Boring
• A burden
• Unable to work
• Unproductive
• Depressed

These can, if believed by you or others, negatively affect the lives of the people concerned. These negative images can lead people to disassociate themselves from these people and treat them differently – however, this contradicts their right to be treated equally, with respect and with dignity. This breaches your duty of care towards them.

In order to avoid the pitfalls of stereotypes, explore your own beliefs and practice the following:

• Make decisions objectively
• Get to know clients as individuals
• Use a person-centred approach
• Encourage independence of clients and participation in decision making
• Improve communication skills
• Plan and implement services according to client needs
• Be professional and ethical in all work activities

Discrimination

Discrimination based on age, gender, physical attributes, race, personal values, beliefs, attitudes and culture is illegal in Australia. If it is found you have done so, you are liable to being sued. You should familiarise yourself with all anti-discrimination legislation, including the Age Discrimination Act 2004.

Try and develop cultural sensitivity – this means understanding the beliefs of other cultures, but does not mean accepting them as your own.

You can be culturally sensitive by:

• Understanding your own attitudes and values
• Not judging others and deciding what is right or wrong for them
• Communicating with the client directly (use an interpreter, if necessary)
• Let the client communicate in their first language (if this makes them more comfortable)
• Always respond professionally
• Try and put yourself in their shoes (figuratively)
• Show them respect and maintain their dignity
• Avoid stereotyping behaviour
• Only document facts, not opinions
• Obtain information on the client form a variety of sources
• Research the client's culture, religion and daily activities
• Consult with colleagues and compare interpretations of the client

When communicating with clients, bear the following in mind:

• Be patient and wait for responses
• Provide a comfortable and stress-free environment for the client
• Use simple English, avoiding jargon or colloquialisms
• Show empathy and use positive body language
• Paraphrase what they say, to demonstrate understanding
• Accept their cultural and spiritual practices

Confidentiality and duty of care

Personal information should be protected and only disclosed professionally. Medical records are an example of confidential information. It is part of duty of care and applies to all clients, regardless of their status. Therefore, it includes clients with mental illnesses, physical or mental disabilities, drug/alcohol problems and those who are difficult to deal with.

The only situation where this private information can be disclosed is when there is a serious threat or risk of injury to the client or others.

Other than that, the client may choose to disclose their information – but it is their choice only.

Organisational policies and procedures

You should find out your organisations policies and procedures regarding confidentiality and disclosure.

You can find this information out form people such as:

• Your supervisor
• The policy and procedures manual
• The industry Circulars
• Colleagues

Remember that ignorance of the law is not a defence in breaching it – you need to find out the exact guidelines for how to store confidential information. As they are progressive, it is important to keep up to date with requirements. This can be done through reading industry-released circulars.

Information should be kept for seven years from when it is inputted (and 15 in a medical setting, or at the point when people turn 18).

Storage of said information should follow organisation guidelines and be kept securely and backed up.

Any exceptions to confidentiality should be explained to the client at the start of your contract with them.

Types of confidential information include:

• Names and addresses of clients
• Phone numbers and addresses of staff
• Names and personal details of benefactors and volunteers
• Details of funding
• Strategic planning information

Ways to ensure confidential information is kept safe include:

• Keeping it in locked filing cabinets
• Keeping it away from unauthorised people
• Keeping it in locked rooms
• Having it password protected on computers
• Refraining from naming clients in public discussion
• Discussing things in soundproof rooms

Clients will need to give permission (normally in writing) for their information to be released to others; if they are unable to do this through disability or death, advocates can grant permission.

Clients also have a right to view their records – this information should be supplied only by authorised personnel in that field. If access is denied the client should be informed why and given details of when the decision can be reviewed. Any comments they make should be attached to their notes in an addendum.

There should be policies in place to deal with workers who breach confidentiality – these are detailed in section 3.5.

Staff must be versed in all confidentiality legislation, organisational policies and which information should be treated as confidential. They need to know the policies and procedures for every possible situation, so regular training is essential.

Note: information cannot be disclosed to those not directly involved in the client's case.

Activity 2B

2.4 – Recognise potential ethical issues and dilemmas, and discuss with an appropriate person

By the end of this chapter the learner should be able to:

• Be aware of potential ethical issues and dilemmas that can arise within their job role
• Recognise when ethical issues and dilemmas have occurred
• Discuss ethical issues and dilemmas with an appropriate person in line with organisational policy.

Ethical issues and dilemmas

It is important that you can recognise potential ethical issues and dilemmas and respond appropriately.

Ethical issues and dilemmas may include:

• Conflict of interest
• Using work time to sort out personal matters
• Taking credit for other people’s work
• Harassing colleagues or clients
• Bullying
• Personal relationships with clients or colleagues
• Confidentiality of information
• Malpractice
• Patient consent.

These examples are not exhaustive and may occur in a variety of situations. For example, imagine you have a patient that needs a life-saving blood transfusion. However, they are a Jehovah’s Witness, and their religion prohibits this. Therefore, they will not give you the consent to perform this operation. Do you respect their wishes and leave them, or perform the operation anyway, as per your duty of care?

As you can see, ethical issues can quickly become very complicated and require a lot of discussion to resolve.

You must therefore find the appropriate person to discuss these issues with.

Depending on the situation and the nature of the ethical issue/dilemma, these may be:

• Supervisor
• Manager
• Colleagues
• Patient
• Family of patient

Activity 2C

2.5 – Recognise own personal values and attitudes and take into account to ensure non-judgemental practice

By the end of this chapter the learner should be able to:

• Assess their own personal values and attitudes
• Understand how their personal views can impact upon their roles and responsibilities
• Take steps to ensure personal views do not create stereotypes or discrimination.

Simply knowing what values and attitudes you possess is an important step in understanding those of others, resolving conflicts and adhering to your organisation's policies and procedures.

By exploring these, you will see how they shape your attitudes and opinions – therefore, you will be able to understand why others think the way they do, as opposed to seeing their different views as 'wrong' or 'illogical'.

Completing a self-evaluation of your values and attitudes is a useful learning tool and can help you explore your feelings towards topics you may not have even considered in the past.

Activity 2D

2.6 – Use effective problem solving techniques when exposed to competing value systems

 

By the end of this chapter the learner should be able to:

• Ensure client health and safety is always paramount
• Make ethical decisions to reach solutions
• Demonstrate understanding that their work roles and responsibilities should take precedence over personal views.

Competing value systems

In the work environment, you may be faced with ethical dilemmas – you may be torn between the needs and desires of clients and your own personal beliefs/values.

When there is a conflict of values, you are faced with the decision over which one is the most important; remember, the client's health and safety should always be your number one concern. Personal values are, of Assignment, important and should not be ignored, but your professional responsibility should always take precedence.

Be aware that, in an ethical dilemma, others may have a different opinion/perspective to you – therefore, it can be hard to make the 'right' decision.

Ethical decision making

In order to make ethical decisions, you need to bear the following in mind:

• The guidelines of you profession
• The legislation relevant to your profession
• The relevant standards of your profession
• The code of conduct in your workplace
• The policies and procedures of your employer
• Professional morals
• Exploration of different perspectives of ethical dilemmas
• Consideration of the consequences of your actions/decisions

 

 

How to make ethical decisions

1. Identify the dilemma – you need to gather as much information as you can to clarify where the problem lies. You need to distinguish whether the dilemma is legal or ethical. Consultation with a work supervisor or colleague may help.
2. Apply the code of conduct/ethics – you will need to see if there are any guidelines on the specific situation you are dealing with. It may be that further information or exploration is required.
3. Determine the scope of the dilemma and seek advice – this is where you will need to ask which actions are in the best interests of the client's safety and how you can best satisfy the preferences of both parties.

Seek to consult with those at least one or two levels higher up than your position, to get an objective opinion on the situation. Steer clear of people with agendas and biased views/vested interests.

4. Come up with possible solutions – brainstorm individually or in a group
5. Consider the consequences of all possible actions
6. Consider the rights and responsibilities of all involved parties – look at the balance of rights and responsibilities between workers and clients. You need to ensure that neither person's actions are putting the other at risk. However, you must also respect the client's ability to make informed decisions, even if what they choose has a risk – this is known as 'dignity of risk'.
7. Review and evaluate the suggested solution – make sure that it doesn't have any new dilemmas embedded within it.
8. Implement the solution

Even after you have made your decision on the ethical situation, it is still natural to feel anxious about it. This is because the issues are never cut and dry/right or wrong and the lines between ethics and legal responsibilities are complex and sometimes blurry.

To help yourself in the area of ethical decision-making, you should keep abreast of all the latest developments in legislation and your field. You should also share dilemmas with colleagues and supervisors. This process should be ongoing and you should always strive to provide the maximum amount of professional and ethical assistance.

Activity 2E

2.7 – Recognise unethical conduct and report to an appropriate person

By the end of this chapter the learner should be able to:

• Be vigilant against unethical conduct
• Report unethical conduct in line with organisational policy.

If you are able to recognise or suspect any unethical conduct in the workplace, you should report it to the appropriate person.

This report may be, and include:

• Verbal:
  • telephone
  • face-to-face
• Non-verbal (written):
  • progress reports
  • case notes
  • incident reports

Unethical conduct

This is any situation where someone is behaving with disregard for professional ethics and putting clients at risk.

Examples include:

• Gossiping about clients in a social situation
• Behaving or speaking in a discriminatory manner towards others
• Arguing in front of clients

Organisations will have a code of ethics to help you identify unethical situations and these should be reviewed regularly.

Reporting unethical conduct

Who exactly you report these unethical occurrences to will depend on your organisation's policies and procedures. Your first action, however, should be to confront the worker themselves and engage them in constructive discussion.

If this is unsuccessful in resolving the situation, you will need to report the situation to a higher authority. This report should contain:

• The names of those involved
• The time of the incident and those present
• Why the conduct was unethical
• The actions already taken.

Activity 2F

2.8 – Recognise potential and actual conflicts of interest and take appropriate action

By the end of this chapter the learner should be able to:

• Understand the types of occurrence that constitute a conflict of interest
• Refrain from situations that may instigate a conflict of interest
• Uphold organisational policies and procedures that outline the management of conflicts of interest.

Conflict of interest

This is any situation where you have the ability to make a decision that could potentially benefit the client, but could also impact on yourself. It is a situation where there is potential to take advantage of a client or be influenced by your interests and personal opinions. Any situation where your influences impact on the ability to perform your job to a professional standard/objectively is a conflict of interest. Even if you do not act under the influence of these things, if they have the potential to impact on your work, a conflict of interest still exists – this can lead to doubt over your ability to perform your job effectively.

Therefore, it is important to refrain from situations where your personal life affects your professional conduct. This is part of your duty of care (as an individual and organisation).

The aspects that can cause conflicts of interest include:

• Personal relationships
• Political views
• Financial interests
• Cultural activities
• Private activities

If you believe there is a conflict of interest (for yourself or others, you should inform management/your supervisor as soon as possible – you may need to request that you be reassigned to another case or granted permission to seek additional work to compensate for the loss of it caused by conflict of interest.

Another key way of avoiding conflicts of interest is to not accept any money/gifts from clients or others – as this may affect your ability to make objective decisions and create a vested interest.

Examples of conflict of interest:

• The client is someone with whom you have a sexual relationship outside of work
• The client offers to pay you money for enhanced service
• The situation directly contradicts what is allowed by your religious/cultural beliefs

Conflicts of interest usually affect decisions involving individuals – where it is a larger group or community that will be affected by the decision, it is unusual for such conflicts of interest to exist.

Managing conflicts of interest

The best method of management is avoidance in the first instance. Having clear policies and procedures and a code of conduct in the workplace will make the issues clear to all workers.

Subjects to include are:

• Declaring any conflicts of interest
• How to make objective and fair decisions
• How to act in the instance of being given a gift
• How contracts function
• How services should be delivered
• Disciplinary procedures for breaches of policies/procedures/code of conduct

Activity 2G

3. Contribute to workplace improvements

3.1. Identify situations where work practices could be improved to meet legal and ethical responsibilities

3.2. Pro-actively share feedback with colleagues and supervisors

3.3. Identify and take opportunities to contribute to the review and development of policies and protocols

 

3.1 – Identify situations where work practices could be improved to meet legal and ethical responsibilities

3.2 – Pro-actively share feedback with colleagues and supervisors

3.3 – Identify and take opportunities to contribute to the review and development of policies and protocols

By the end of these chapters the learner should be able to:

• Be forthcoming in ideas for improvement in practice
• Recognise situations where ethical standards are subpar or could be improved
• Encourage others to meet their ethical obligations and speak out against unethical conduct
• Recognise the needs for reform within organisational codes of ethics
• Share their own experiences with others for the purpose of increasing the ethical awareness of others and implementing organisational change
• Provide feedback to colleagues and supervisors on a regular basis.

Identifying improvements for work practices

If you spot particular legal and ethical issues that are recurring in your workplace, you should endeavour to improve work practices to remove or mitigate these issues.

The exact nature of work practices that could be removed will depend on your workplace environment.

You should encourage moral courage in the workplace – this is the ability to speak out or act against standards procedures, due to their own moral reasoning.

For instance, imagine you have an elder frail patient who is ready for medical discharge from a hospital, after having fallen down their stairs at home. However, you recognise them as frail and without an external support system to look after themselves. Technically, you can send them home, but you recognise the fact that a similar incident could happen again. They have no support system and money to afford home help, so speak to your supervisor and see if you can arrange for some funded home help, and look into the possibility of arranging the fitting of a stair lift in their home.

An obvious action would be to look at your organisation’s/industry’s Code of Ethics and see if it needs to be reformed. A good place to start would be looking at past ethical and legal issues that have caused problems in the past and seeing if the Code of Ethics addresses these – if not, see if you can adapt it to cover these things.

As previously identified in this unit, your legal responsibilities include those outlined in:

• Aged care standards
• Building standards
• Care and education of young children
• Child protection and guardianship legislation
• Criminal acts
• Disability standards
• Discrimination and harassment
• Equal employment opportunities
• Freedom of information
• Health records legislation
• International and national standards
• Mental health legislation
• Pharmaceutical benefits
• Poisons and therapeutics
• Privacy legislation
• Public health
• Registration and practice of health professionals
• Residential and community services
• Restrictive practices

Your ethical responsibilities may include:

• Duty of care
• Competence

You can hold meetings with staff to discuss legal and ethical responsibilities and to come up with ideas on how to make work practices more conducive to them.

You can make specific policies and standards procedures to minimise the chance of breaches of legal and ethical issues arising. Training staff to deal with them is also an important part of the process.

 

Sharing feedback

One of your greatest resources in progressing is your experience. When you have dealt with an ethical issue, share your experience and lessons learned with colleagues and supervisors.

Ask yourself the following questions:

• What caused the issue?
• Who was involved?
• Was the issue avoidable?
• How was the issue dealt with?
• Could the situation have been handled better? How?

When you have answered these questions, share your answers with colleagues and supervisors. This should be done on an ongoing basis and can be verbal or written in its format.

You may recognise a colleague in a situation similar to one you’ve dealt with in the past – this is a perfect time to share your experiences, as it may help them deal with theirs. They should do the same for you – sharing of feedback should be greatly encouraged in the workplace, as an ongoing basis and during team meetings.

 

Activity 3A

Summative Assessments

At the end of your Learner Workbook, you will find the Summative Assessments.

This includes:

• Skills assessment
• Knowledge assessment
• Performance assessment.

This holistically assesses your understanding and application of the skills, knowledge and performance requirements for this unit. Once this is completed, you will have finished this unit and be ready to move onto the next one – well done!

References

These suggested references are for further reading and do not necessarily represent the contents of this unit.

Websites

Australian Government Department of Health:http://www.health.gov.au/

Australian Government Office of the Australian Information Commissioner:http://www.oaic.gov.au/

Australian Law Reform Commission: http://www.alrc.gov.au/

Civics and Citizenship Education:http://www.civicsandcitizenship.edu.au/cce/

Department of Commerce (WA):http://www.commerce.wa.gov.au/

Department of Foreign Affairs and trade:http://www.dfat.gov.au/pages/default.aspx

Safe work Australia:http://www.safeworkaustralia.gov.au/sites/SWA

All references accessed on and correct as of 11/08/15, unless other otherwise stated.