Dignity of risk vs Negligence – What is an Aged Care Provider’s Duty of Care?

Consumers of aged care services have the right to choose how they live their lives, even if they participate in activities that puts themselves at risk. Aged care providers are required to afford their consumers dignity of risk, by assisting and supporting consumers in making those choices, whilst balancing the provider’s existing legal duties to employees, other consumers and stakeholders.

As of 1 July 2019, all providers of aged care services approved by the Commonwealth Government are required to comply with eight new Aged Care Quality Standards. These include Standard 1: Consumer Dignity and Choice.

Standard 1 requires that all consumers of aged care services be treated with dignity and respect. Consumers should be able to make informed choices about their care and services, maintain their identity, and live the life they choose. Part of maintaining compliance with Standard 1 includes ensuring each consumer is afforded the right to dignity of risk.

What is dignity of risk?

Dignity of risk, in the aged care setting, is the concept that a person has the right to choose what they do and how they want to live, despite the fact that those lifestyle choices may come with risk. Some examples where consumers exercise dignity of risk include:

  • A residential consumer may wish to walk to the local shops every day, despite being frail and having to cross a busy road;
  • A home care consumer may wish to continue living in a second-floor bedroom, despite being at risk of fall when using the stairs;
  • A diabetic consumer may, against medical advice, wish to maintain a high-sugar diet.

These activities are obviously risky, especially to elderly persons that may be more vulnerable than the general population. However, Standard 1 requires aged care providers to support consumers in making their own choices and exercising autonomy, whilst assisting those consumers in understanding and managing the risks of those choices.

Dignity of risk has been a key focus of the Royal Commission into Aged Care Quality and Safety. The Commission has heard extensive evidence that dignity of risk is a central feature of enabling Australia’s older people, as much as possible, to have an independent, dignified and fulfilling quality of life.

Does this affect our duty of care?

Aged care providers will almost always owe a duty to protect their consumers from reasonably foreseeable harm. That will not change.

However, it is also a well established principle of common law that a person has the right to self-autonomy and to determine how their live their life. Consequently, aged care providers will be required to balance their duty of care to protect consumers, with their obligations at common law and under Standard 1 to allow consumers to make their own choices, even if those choices come with risk.

Mitigating risk

Providers need to be aware that affording their consumers dignity of risk is not optional. Providers must consider how they will:

  • listen to consumers about how they wish to live their lives;
  • inform consumers as to any potential and obvious risks of the choices they make; and
  • assist consumers to exercise their rights to dignity and autonomy in the safest way possible.

Aged care organisations would be well advised to develop policies and procedures to manage dignity of risk issues. Providers must be able to provide evidence of steps taken to inform consumers of the risks they are taking, and of strategies take to minimise those risks. The retention of documentary evidence is critical.

Providers will also have to give some thought to how dignity of risk strategies will interact with their obligations to other stakeholders, including potential duties to shareholders, statutory occupational health and safety obligations, and duties of care to visitors, employees and other consumers.

If your organisation requires further advice on its obligations under Aged Care Quality Standard 1, or if you need assistance in developing best practice dignity of risk policies, please contact us on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.