New Victorian Scheme for disability workers: Improving safeguards in care for people with disabilities

The Victorian Parliamentary Inquiry into Abuse in Disability Services found a long history of widespread abuse and neglect of people with disability, and determined that more effective safeguards were needed to ensure that disability workers deliver high quality care. Following the Inquiry, the Victorian Government established the Disability Worker Regulation Scheme (the Scheme) under the Disability Service Safeguards Act 2018 (Vic) (the Act), to regulate all disability workers in Victoria, irrespective of the source of funding.

The Scheme will apply to all disability workers in Victoria from 1 July 2020. The commencement of other elements of the Scheme, such as the registration of disability workers and the online Register, have been delayed due to COVID-19 and are now due to commence from 1 July 2021.

The Scheme

The purpose of the Scheme is to ensure the quality, safety, responsiveness and sustainability of the disability workforce. The Scheme does this by:

  • Creating a mandatory obligation on all disability workers and employers to notify the Victorian Disability Worker Commission (Commission) or the Disability Worker Registration Board (Board) of any allegations that a disability worker has engaged in notifiable conduct.
  • Enabling disability workers to obtain registration status with the Board.
  • Establishing processes to make complaints about disability workers to the Commission or the Board.
  • Creating the Disability Service Safeguards Code of Conduct with which all disability workers must comply.

As the Scheme applies to all disability workers from 1 July 2020, the mandatory notification obligations have now commenced, the Code of Conduct applies, and complaints can be made to the Board and the Commission about the conduct of disability workers.

Obligation to report ‘notifiable conduct’

The Scheme aims to assist in preventing and protecting people with disability from harm by making the Commission aware of potential risks to disability service users.

Under the Act, disability workers and employers in Victoria must notify the Commission or the Board as soon as practicable after forming a reasonable belief that a disability worker has engaged in behaviour that constitutes notifiable conduct – even if they have already reported their concerns to another body. This applies to both registered and unregistered disability workers.

Notifiable conduct includes:

  • engaging in sexual misconduct while practising;
  • practising as a disability worker while intoxicated by drugs or alcohol;
  • placing the public at risk of harm due to:
    • an impairment that detrimentally affects their capacity to practise; or
    • practising in a manner that constitutes a significant departure from accepted professional standards.

The Board may take action against disability workers who do not make the mandatory notification to the Commission or the Board. Whilst there are no direct consequences for an employer to fail to notify the Commission or the Board, the Commission can share information about registered NDIS providers with the NDIS Quality and Safeguards Commission.

Complaints

Any person can make a complaint to the Commission or the Board about the conduct of a Victorian disability worker (including employees, contractors, agents and volunteers who provide services on behalf of an organisation or agency).

The grounds on which a complaint can be made are extremely broad. Complaints can be made about any disability worker (whether registered or unregistered workers) in Victoria about their:

  • their standard of work;
  • their knowledge, skill or judgment;
  • their capacity to provide services safely;
  • if they have engaged in notifiable conduct;
  • an alleged breach of the Act or the Code of Conduct.

The Commission and the Board are responsible for managing complaints and notifications about disability workers. A range of actions may be taken in response, including but not limited to:

  • resolving complaints through conciliation;
  • investigating the conduct;
  • counselling or cautioning the disability worker;
  • requiring a registered disability worker to undergo a performance or health assessment (if registered after 1 July 2021);
  • imposing conditions on the registration of a disability worker requiring them to take or refrain from particular action;
  • suspending the registration of a disability worker;
  • referring the matter to an appropriate body (e.g. NDIS Quality and Safeguards Commission); and
  • issue an order preventing an unregistered disability workers person from providing disability services for a specified time or indefinitely.

Critically, in the case of registered disability workers, VCAT can cancel their registration, disqualify the disability worker from reapplying for registration and issue a prohibition order preventing them from delivering disability services.

Code of Conduct

The Code of Conduct is set out in the Disability Service Safeguards Regulations 2020, and adopts theNDIS Code of Conduct. In effect, this means that the NDIS Code of Conduct applies to all disability workers in Victoria. In summary, this means that all disability workers are now required to:

  • act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions;
  • respect the privacy of people with disability;
  • provide supports and services in a safe and competent manner, with care and skill;
  • act with integrity, honesty and transparency;
  • promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability;
  • take all reasonable steps to prevent and respond to all forms of violence against, and exploitation, neglect and abuse of, people with disability; and
  • take all reasonable steps to prevent and respond to sexual misconduct.

Registration

The Act creates a voluntary registration scheme for disability workers. Registration demonstrates that workers meet minimum standards set by the Board in qualifications, probity and safety and quality of the delivery of disability services. Service providers who engage registered disability workers will be better positioned to promote the quality and safety of their services to people with disability, their families, carers and funding agencies.

As noted above, the commencement of registration has been delayed until 1 July 2021.

Key issues for employers in the disability services sector

The Scheme creates civil offences which carry penalties under the Act and are applicable to individuals and body corporates. For example, it is unlawful to knowingly or recklessly claiming that a worker is a registered worker if that is not the case, or claiming that the registered worker has a particular registration or endorsement if they don’t.

Positively, from 1 July 2021, the Scheme will allow employers to use the online Register for recruitment and performance purposes. Under the Register, employers will be able to:

  • confirm the status of potential workers by confirming and / or verifying whether they are a ‘registered disability worker’ or ‘unregistered disability worker‘;
  • check any conditions on a worker’s registration imposed by the Board;
  • check any endorsements on a worker’s registration; and
  • check any disability action such as a caution, reprimand or cancellation of registration taken by the Board or the VCAT in accordance with the Act.

How we can help

It will be important for disability service providers operating in Victoria to consider their obligations under the Scheme and the impact it will have on their disability workers and clients.

If you have any questions or would like to discuss how Moores can provide assistance to your organisation in light of the Scheme please do not hesitate to contact us.