Offences against people in care

‘Care givers’ here refers to all people who have regular ‘professional’ dealings with disabled people, including supervisors at sheltered workshops and activity therapy centres, staff at residences or nursing homes, and other disability ‘professionals’. In terms of legal rights and liabilities, there is no difference between people employed by Federal or State Governments and people employed in private institutions.

Intentional Interference

The legal rights of disabled people to live free from physical force, intimidation, coercion and imprisonment are the same as for all other citizens. An assault does not necessarily require physical contact. It may be committed by intending to arouse fear of immediate physical contact in another person. For example, a care giver pointing a knife at a person with a disability with the intention of arousing fear that the knife will be used, commits an assault.

A battery is committed by intentionally bringing about a harmful or offensive contact with another person without that person’s fully informed consent. The person need not even be conscious of the interference at the time of the battery. For example, a care giver who takes a blood sample from a person with a disability without that person’s fully informed consent commits an offence. This would be the case even if the person with a disability was asleep or drugged.

Wrongful imprisonment is a civil action that protects a person’s freedom from physical restraint. A person may be wrongfully imprisoned if they submit to imprisonment because of the threat of force. A care giver who locks a person with a disability in a room commits wrongful imprisonment. The person with a disability need not even know that they had been locked in for the offence to be committed.

This area of the law raises the question of the sometimes used practice of placing a person with a disability in a locked room to ‘cool down’ or as a form of behaviour management. This practice is a type of ‘time out’. Under the current law, the locked room practice undoubtedly exposes the care giver to civil liability. However, if the locked room is used in a carefully considered and supervised way, the likelihood of anyone being sued would be very slight.

Defences

There are several defences to the charge of an intentional wrong. They include: consent; self defence; reasonable discipline; and necessity.

A person may give informed consent to intentional physical interferences. In the case of a blood sample taken from a person with a disability, that person must be aware of the basic nature of the procedure. If the care giver obtains informed consent for one procedure, this would not be a defence if the care giver then performed a more extensive procedure.

A person may use reasonable force in self-defence (that is, in defending themselves from attack). What force will be reasonable depends on the nature of the attack. A care giver who is being punched would normally be justified in punching and wrestling with a person with a disability to subdue the attack. If the particular person with a disability had a history of violence, the care giver may be justified in using greater force. The weapons used by the attacker (for example, a knife) are relevant in deciding what an appropriate response would be.

A person may also use reasonable force in coming to the defence of a third person. If a particular person with a disability attacks another person with a disability, a care giver would be justified, using the same considerations as above (that is, the history of the particular attacker, types of weapons, and so on) in intervening in the defence of a third person.

A parent (or a person standing in the position of a parent) can enforce reasonable discipline against a child (that is, by physical force or confinement). The force used must not be excessive. But it seems clear that the current law does not recognise a power of reasonable discipline over an adult, except where it involves prevention of an attack on others or themselves.

A person may interfere with the personal or property interests of another person in the case of necessity (for example, in order to avert an imminent danger). The danger must be a serious danger. A care giver would be justified in restraining a person with a disability who was clearly intending to throw themselves under a moving car. Similarly, a care giver in a sheltered workshop would be justified in restraining a person who intended to go too near dangerous machinery.

Negligence

If a person owes a ‘duty of care’ to another, and fails in that duty so that damage is suffered as a result, they can be sued for negligence. A care giver will undoubtedly owe a duty to be careful to disabled people with whom they have a professional relationship, but the most important question for care givers is the precise requirements of that duty. The usual requirements of a duty of care are that a person should exercise the same care as a hypothetical reasonable person. That standard can change over time, as community values change. If a person undertakes work that calls for special skills, such as nursing, then they must measure up to the standard of proficiency that is required in that profession which will be higher than that expected of the reasonable person.

It is unclear what level of duty of care is required of care givers without special skills. It may be that such care givers owe a duty to people within their responsibility only marginally higher than the ordinary duty of the ‘reasonable’ person. As care givers become better trained and their job roles more closely defined, it can be expected that the required standard of care will rise.

Following are some examples of situations in which care givers commonly find themselves.

Administering medication to a person with a disability

Even when a care giver has no medical training, they may be liable in one of two ways. Firstly, if the administration of the medication is simple, a reasonable person would take care to administer the correct amount, or they may be liable. Secondly, if the administration is complex, a reasonable person would ensure that a doctor or some other medically qualified person administered the medication. However, it may be that, in an emergency, a care giver would be acting reasonably in attempting to administer the medication.

Helping a person with a disability

When helping a person with a disability, for instance, to bathe, if the care giver didn’t check the water temperature, they could be liable to a person with a disability who was badly scalded. If the care giver placed a person with a disability in an extremely hot bath, the care giver could be liable for damage caused to the person with a disability by a heart attack, even though the person with a disability had an abnormally weak heart.

The Duty to Physically Restrain Others

A particular problem for care givers is whether they owe a duty of care to third parties who may be injured by acts of a person with a disability. For example, a care giver may know that a particular person with a disability, if allowed to go shopping on their own, will cause damage to the property of shop owners. Does the care giver owe a duty to the shop owner to prevent the person with a disability from going shopping on their own? A similar question is whether care givers have a duty to stop intellectually disabled people from harming themselves.

The question is a complicated one, and two sorts of duty should be distinguished, that is, a general duty of care, and a specific duty to physically restrain a person with a disability. For example, a care giver in a group home who knows that a person with a disability in the group is likely to bite strangers has a general duty to the person with a disability and to third parties to plan any excursion carefully to minimise the risk of injury. However if the care giver has carefully planned an excursion, and a third party has unexpectedly wandered close to the group, the specific duty of the care giver to restrain the person with a disability is unclear.

The general principle is probably that in the absence of a right of control, the care giver will not have a duty to restrain an intellectually person with a disability, but this is not a settled point. Care givers should therefore check with their employer to ensure that they are adequately insured against any potential liability.

Who Pays for Wrongs?

Where a person suffers because of negligence or intentional interference they can sue for damages. The general principle is that people are responsible for their own civil wrongs. However, employers are vicariously liable for the wrongs committed by their employees in the ordinary course of carrying on their job. Most care givers will be employees.

If only the employer is sued then that person will have to pay all of the damages. If both the employer and the employee are sued, then the court will divide the liability for damages between them. If only the employee is sued, then the employee can have the employer made a party to the case, and again the court will divide liability for damages between them.

Accordingly, individual care givers, if sued by disabled people and held to be liable, will personally have to pay a percentage of the damages due to that person with a disability. While it is true many lawyers would advise clients to sue only the employer, it may be that a care giver can be finally liable. Accordingly, it is crucial for care givers to make sure that their employer has adequate insurance to cover liability for civil wrongs.