Dignity of risk has been a recognised an essential part of consumer directed care for some time in the aged care industry, and is now a requirement under Standard 1 of the new Aged Care Quality Standards (the new Standards). This means that, from 1 July 2019, aged care providers must be able to provide that they are providing care and services in a way that facilitates consumer choice, including choices to take risk. But what does this mean for your aged care facility? And how can you facilitate consumer risk taking without exposing your own aged care facility to unwanted risk?
What is ‘dignity of risk’?
Dignity of risk is the right of a consumer to make their own decisions about their care and services, as well as their right to take risks. It is based on the concept that self-determination – the freedom to exercise control over your own life – is essential to personal dignity, and that this involves an element of risk-taking. It is an acknowledgement that living a full life involves taking risks and that care givers should be concerned with both the quantity and quality of life when providing care and services.
What does it mean for aged care providers?
Under Standard 1, aged care providers will have an obligation to support consumers “to take risks to enable them to live the best life they can”.
This Standard makes clear that the role of the provider is to empower the consumer to make informed decisions about their care and services and comply with those directions except where it is unable to do so – either practically, or because there is an irreconcilable conflict between that direction and the provider’s legal obligations.
In short, this means that your aged care organisation’s role is to accommodate consumer choice to take risks to the fullest extent possible subject to your organisation making sure that:
the decision is an informed decision;
the organisation can practically facilitate the choice;
the organisation can legally facilitate the choice – this requires due consideration of all legal obligations including any duties of care owed (eg to the consumer, other consumers, staff, visitors, others), obligations under the aged care legislation and other statutes, and the common law.
What if there is a conflict between dignity of risk and your legal obligations?
Standard 1 states that “… organisations need to take a balanced approach to managing risk and respecting consumer rights. If a consumer makes a choice that is possibly harmful to them, then the organisation is expected to help the consumer understand the risk and how it could be managed. Together, they should look for solutions that are tailored to help the consumer to live the way they choose.”
If your organisation suspects that there is a conflict, we recommend asking the following questions:
Is the consumer making an informed decision? For example, has the organisation explained the risks in a way that the consumer understands and given them time to form a view?
Is there a way of reconciling the conflict? For example, there may be ways of achieving the consumer’s objective without breaching your organisations other legal obligations. Or, the issue may be resolved with appropriate risk management steps such as a risk management plan, disclaimers and/or waivers.
An important distinction to make is that dignity of risk simply requires your organisation to not unreasonably encroach on a consumer’s self-determination or arbitrarily refuse to accommodate risk-taking behaviour – it does not require your organisation to follow any and all directions from clients or breach their legal obligations at the direction of clients. There are many situations in which it would be appropriate to not follow the directions of a client – for example, where:
there is a substantial risk of harm that cannot be effectively managed, so following the direction would cause your organisation to be in clear breach of a duty of care;
it is not possible or practical for the organisation to follow the direction.
If you would like more information about the new Standards or the services which Kinny Legal offers to assist providers in transitioning to the new standards, please contact us on 02 9199 4563 or at firstname.lastname@example.org.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.