Duty of Care and Dignity of Risk Policy

Duty of Care and Dignity of Risk Policy

Dignity of risk is the starting point. Duty of care opens doors safely; it does not close them.

1. Purpose

This policy establishes how Together Two Limited balances its duty of care with each participant’s right to dignity of risk. It provides the framework within which workers, Senior Support Leads, and the Senior Leadership Team make decisions that affect participant autonomy, safety, and independence.

Together Two’s starting point is always dignity of risk. Every adult participant is presumed to have the right to make decisions about their own life, including decisions that involve risk. Our role is not to veto, but to support. From this foundation of respect and autonomy, we may, in specific circumstances, need to discharge our duty of care. We move cautiously from dignity toward duty, not the other way around.

This policy is especially significant for Together Two because we deliver high-intensity daily personal activities (complex bowel care, enteral feeding, dysphagia management, medication, epilepsy management, tracheostomy care, catheter care, ventilator management, subcutaneous injections, and complex wound care) where the clinical duty of care is elevated and the consequences of error are severe. Balancing participant autonomy with clinical safety in these contexts requires a structured decision-making framework, not individual worker judgement alone.

→ UN Convention on the Rights of Persons with Disabilities, Article 3(a): respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.

2. Scope

This policy applies to all supports and services delivered by Together Two across all service streams, including SIL, in-home, ZigZag, SLES, support coordination, community programs, SSRC, Special OOHC, and aged care. It applies to all workers (permanent, casual, contractors, volunteers) and to the SLT and SSLs who oversee decision making.

It applies across the full spectrum of risk decisions, from everyday choices (what to eat, when to go out, how to spend money) through to complex clinical risk (refusing medication, challenging mealtime management plans, requesting activities that conflict with clinical recommendations).

3. Legislative and Regulatory Framework

National Disability Insurance Scheme Act 2013 (Cth)

NDIS (Provider Registration and Practice Standards) Rules 2018, Core Module: Rights and Responsibilities; Core Module: Provision of Supports; Supplementary Module 1: High Intensity Daily Personal Activities

NDIS (Quality Indicators) Guidelines 2018

NDIS (Code of Conduct) Rules 2018

NDIS High Intensity Support Skills Descriptors (Version 3, November 2022)

NDIS Workforce Capability Framework

UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by Australia 2008

Disability Inclusion Act 2014 (NSW)

Guardianship Act 1987 (NSW)

Work Health and Safety Act 2011 (NSW)

Common law duty of care

→ Business and Operational Plan 2025–2028: Section 9 (Legislative and Regulatory Framework).

4. Definitions

4.1 Duty of Care

A legal obligation to take reasonable steps to prevent foreseeable harm to a participant within the scope of Together Two’s service delivery. Duty of care requires taking reasonable care, not eliminating all risk. It applies to the supports Together Two delivers, not to every aspect of the participant’s life.

What duty of care does not mean: it does not mean preventing a participant from making choices we disagree with. It does not mean removing all risk from a participant’s life. It does not mean overriding a participant’s autonomy because harm is possible. It does not mean delivering supports beyond the participant’s NDIS plan funding.

4.2 Dignity of Risk

The right of every individual to choose to take some risk in engaging in life experiences. Dignity of risk is a legal right defined in the NDIS Practice Standards. It supports personal growth, independence, and choice. Dignity of risk is inseparable from supported decision making: Together Two provides information, options, and support so the participant can make an informed choice, even when that choice involves risk.

What dignity of risk does not mean: it does not mean saying yes to everything without assessment. It does not mean ignoring clinical advice. It does not mean that workers are absolved of their duty of care because the participant “chose” the risk.

4.3 The Balance

Duty of care and dignity of risk are not opposing forces. They are complementary. The question is never “safety or autonomy?” but rather “how do we support this participant to pursue their choice as safely as possible?” When a participant’s choice involves risk, the response is not to prohibit the activity but to assess the risk, discuss it with the participant, identify safeguards, document the decision, and support the participant to proceed with informed consent.

5. The Decision-Making Framework

When a worker, SSL, or manager encounters a situation where duty of care and dignity of risk must be balanced, the following six-step framework applies:

This framework applies to everyday decisions (choosing unhealthy food, staying up late, spending money on non-essentials) as well as more significant ones (refusing medication, requesting an activity that conflicts with a clinical recommendation, wanting to walk home alone at night).

→ Duty of Care and Dignity of Risk Operational Procedure: Section 1 (Decision Framework Flowchart).

6. High Intensity Supports: Elevated Duty of Care

Together Two is registered for Module 1: High Intensity Daily Personal Activities and is adding registration for 0110 (Behaviour Support) and 0114 (Community Nursing). For participants receiving high intensity supports, the duty of care is elevated because the supports carry significant clinical risk and the consequences of error can be severe or fatal.

6.1 Clinical Risk and Participant Autonomy

The elevated duty of care for high-intensity supports does not override dignity of risk. It means the risk assessment (Step 2) and the safeguards (Step 4) must involve clinical expertise. For example:

A participant with dysphagia who wants to eat food that is not consistent with their mealtime management plan retains their right to make that choice. However, the duty of care requires that the mealtime management plan developed by a speech pathologist is followed, that the risk of aspiration is explained in accessible terms, that the participant’s informed decision is documented, and that the participant’s GP is informed.

A participant with epilepsy who wants to swim alone retains their right to pursue that goal. However, the duty of care requires a risk assessment specific to the activity, discussion of safeguards (e.g. a support worker present poolside), and documentation of the agreed approach.

A participant who refuses medication retains that right. However, the duty of care requires documentation of the refusal, notification to Wence Buenacosa (RN) and the prescribing clinician, and assessment of the impact on the participant’s health and safety.

6.2 Clinical Governance

Rei Guzman (Head of Aged Care and Clinical Services) has overall clinical governance responsibility for duty of care in high-intensity support contexts.

Wence Buenacosa (RN, SSL for High Intensity Supports) provides clinical oversight of enhanced care plans and advises workers and SSLs on clinical risk decisions.

Where a dignity of risk decision involves clinical risk, the worker must consult with Wence (or the on-call manager after hours) before proceeding. The worker does not make clinical risk decisions alone.

For each high-intensity support type (complex bowel care, enteral feeding, dysphagia, ventilator, tracheostomy, catheter, subcutaneous injections, wound care, epilepsy), the relevant NDIS High Intensity Support Skills Descriptors define the competency required of workers. Workers must meet these competencies before being allocated to participants with these needs.

Enhanced care plans developed by Wence include a section on participant autonomy and informed risk, documenting the participant’s preferences and the clinical boundaries within which dignity of risk is exercised.

→ All Module 1 (High Intensity Daily Personal Activities) policies; NDIS High Intensity Support Skills Descriptors; Skill and Competency Matrix.

7. When Duty of Care Requires Intervention

In most situations, the six-step framework results in the participant making an informed choice and proceeding with agreed safeguards. However, there are narrow circumstances where Together Two’s duty of care requires intervention:

Imminent risk of death or permanent serious harm: where a participant’s choice poses an immediate threat to their life or is likely to cause irreversible, serious injury, and the participant has been supported to understand this risk, the worker may intervene to prevent the immediate harm. This is a high threshold.

Harm to others: where a participant’s choice or behaviour creates a foreseeable risk of serious harm to other participants, workers, or members of the public.

Absence of decision-making capacity: where a participant has been formally assessed as lacking capacity to make a specific decision (not a general presumption, but a specific assessment for a specific decision), and the decision involves serious risk to their health or safety. In these cases, the substitute decision maker is consulted.

Intervention must always be the least restrictive option available. Stopping or prohibiting an activity is a last resort after all other options (environmental adjustment, modified approach, phased introduction, additional support, discussion) have been exhausted.

Where a restrictive practice is used, it must be authorised under a positive behaviour support plan in accordance with the Positive Behaviour Support Policy and the NDIS (Restrictive Practices and Behaviour Support) Rules 2018. An ad hoc restriction imposed by a worker without authorisation is not an acceptable exercise of duty of care.

→ Decision Making and Consent Policy; Positive Behaviour Support Policy; Restrictive Practices Policy.

8. Common Scenarios

9. Work Health and Safety and Dignity of Risk

WHS obligations and dignity of risk must coexist. Workers have a right to a safe workplace, and participants have a right to autonomy. Where these appear to conflict:

Together Two assesses whether the risk to the worker can be managed through environmental controls, training, equipment, or modified procedures without restricting the participant’s choice.

A WHS risk to a worker does not automatically override a participant’s dignity of risk. It means the risk must be managed from the worker safety perspective through controls, not by prohibiting the participant’s activity.

Where a genuine, unmanageable WHS risk exists (for example, a participant’s behaviour creates an immediate physical danger to a worker), the worker removes themselves from the situation and contacts their SSL. The situation is managed through the Positive Behaviour Support Policy, not through restrictions imposed on the participant without authorisation.

→ Work Health and Safety Policy.

10. Responsibilities

10.1 Primary Owner

Rei Guzman, Head of Aged Care and Clinical Services (Primary Owner), is responsible for the clinical governance of duty of care decisions, particularly where high-intensity supports are involved. She ensures that enhanced care plans address participant autonomy, that Wence Buenacosa (RN) has the authority and support to provide clinical advice on risk decisions, and that workers are trained in the decision-making framework.

10.2 Co-Accountable SLT Members

Aisling Scully ensures SSLs in her portfolio (SIL, in-home, ZigZag) apply the decision-making framework consistently and support participants to exercise dignity of risk in everyday decisions.

Marco De Angelis ensures SLES and community programs embed risk enablement, supporting participants to take positive risks in employment, travel, and community participation contexts.

10.3 Wence Buenacosa (RN, SSL High Intensity)

Wence is the clinical decision-making resource for duty of care in high-intensity support contexts. Workers consult Wence (or the on-call manager after hours) when a dignity of risk decision involves clinical risk. Wence ensures enhanced care plans include a participant autonomy section.

10.4 Senior Support Leads

SSLs are the first point of escalation for workers navigating complex duty of care and dignity of risk decisions. They review dignity of risk documentation, facilitate discussions with families where participant choice is contested, and escalate to their Head of Department when the situation is beyond their authority.

10.5 All Workers

Workers apply the six-step decision-making framework. They support participant autonomy as the starting point, assess and document risk, implement agreed safeguards, and escalate to their SSL when they are unsure. Workers do not unilaterally override a participant’s choice.

10.6 SLT Cross-Accountability Meeting

Reviews complex duty of care and dignity of risk scenarios, particularly where participant autonomy, clinical safety, and family wishes are in tension. Shares learnings across service streams.

11. NDIS Quality Indicators, Audit Reference

This policy addresses quality indicators across three Practice Standards modules.

12. Related Documents

13. Document Control