Duty of care and the dignity of risk
Many of you would have read Chris Stuhmcke’s article on Positive Behaviour Support (PBS) last month. Chris moved over from Queensland about 18 months ago to help Interchange update our Safeguarding Framework. Queensland has a highly regulated PBS system, so it’s been great working with someone so experienced. I was delighted to attend a DSC Forum in March at which Chris presented a paper on the steps Interchange is taking to safeguard the wellbeing of all of our customers.
The elimination of restrictive practices was also the key topic at the NDS State Forum last month. So it’s a sector-wide focus that needs ongoing discussion, although this is not always helped by some of the acronyms and technical terms that often cloud rather than clarify the key issues.
The three key terms to note are safeguarding, PBS and (the elimination of) restrictive practices. Safeguarding just means doing everything possible to keep people with disability safe without diminishing their basic human rights, whilst PSB is the strategies that promote positive rather than negative behaviours, from both the person at risk and the people safeguarding them. The elimination of restrictive practices is all about getting rid of any old-fashioned safeguarding practices that reduce a person’s choice and control over their own lives.
Interchange has been working for over a year now to make sure our safeguarding policy and procedures represent best practice within the sector. This is because we service many people with significant disability, who require ongoing assistance with key decision-making from parents, guardians and my own staff. We’ve updated all our policies and procedures and appointed Positive Behaviour Champions at each of our Service Centres. We’ve done a full audit of all our support practices to minimise and record any potentially restrictive practices. And we’re developing Positive Behaviour Support Plans for all at-risk customers. But the key thing I want from my staff at the coal-face, is that they understand the dynamic relationship between duty of care and the dignity of risk.
Duty of care refers to the responsibility (under Common Law) of people to take reasonable care to ensure their actions, or inactions, do not cause injury or harm to others. Dignity of risk, on the other hand, is a concept that outlines how people should have the freedom to make decisions and choices that may expose themselves to a level of risk.
In other words, we all have the fundamental right to make mistakes and learn and grow from trial and error. This I why I want all my staff to consider the dignity of risk in relation to the duty of care when intervening on behalf of our customers. Nevertheless, after further research, I’m starting to question this simple binary.
I’ve always told staff that we need a balance of the two principles: that we consider the abilities, awareness and skills of the customer on the one hand, but temper this with a risk assessment on the other as if care and risk were at the opposite ends of a moving scale. This is one way of looking at it.
A more sophisticated approach considers the dignity of risk as a fundamental principle or practice of our duty of care in the first place. That is by empowering our customers to take risks in exercising choice and control, we are making them safer by that very act of empowerment.
The dignity of risk is, in itself, a duty of care. This is because the primary consideration in safeguarding is the reduction of a customer’s vulnerability by enhancing their ability to safeguard themselves. Vulnerability is defined by an imbalance of power.
If one person has more power than any other person, the more powerful person can exert their will over the less powerful one in often harmful or patronising ways. Therefore, personal empowerment is the key to reducing vulnerability and thus the primary construct informing our duty of care.
So how do we empower our customers? Firstly, we need to ensure all our customers have full knowledge of their rights, choices and opportunities. Secondly, we need to encourage the development of their communication skills and their ability to make and maintain relationships within strong and diverse social networks. Thirdly, our customers need to be healthy, physically independent and financially secure to participate as full citizens in community life. And fourthly, we need to encourage our customers to have a strong sense of personal identity and self-worth by supporting their choices, lifestyle, preferences and passions.
Interchange has a vision for a world where all people are fully included in every aspect of community life. Our focus has always been on promoting personal independence and full community participation. While we have always understood this in terms of our social justice agenda in terms of righting past wrongs and ending discrimination I now realise that this kind of empowerment lies at the very crux of our duty of care.
Our customers are safe when they make safe choices. So the first step must be to ensure our customers are able to make choices in the first place!
We often think of our duty of care as an unfortunate but necessary social intervention that reduces the rights of our customers in order to achieve the apparently higher goal of keeping them safe. For example, a staff member may instinctively grab the arm of a customer when they are about to cross the road in dangerous traffic. This reduces the dignity of the customer who is then subject to the staff member’s judgement rather than their own. But if we give our customers the knowledge (of road rules, for example) and experience (via practice and unobtrusive supports), then the rather crude intervention (of clutching the customers arm on the verge of a busy road) becomes unnecessary and obsolete. The result being that another potentially restrictive practice is eliminated.
So from now on, I won’t be educating my staff to consider duty of care and dignity of risk as two competing attitudes at the end of a linear spectrum. Rather, our primary duty of care to all our customers is that we protect their dignity first by empowering them to make their own choices. Thus the dignity of risk IS our duty of care, and our first and most important duty to all our customers. Put simply, independence, community participation and valued status are the pathways to personal empowerment, and personal empowerment is the key to a safer world.