Legal and Ethical Framework

People experiencing crisis are vulnerable, so it is particularly important for you to meet your legal and ethical obligations when you are working with them. It is also important for you to protect and uphold their rights.

Duty of Care

Key legal and ethical considerations include:

Duty of care is a legal principle based on common law that requires us all to avoid causing reasonably foreseeable harm to others around us by behaving carelessly.

For an overview of duty of care please review your Fundamentals of Community Services Learner Guide 2021 Section 3.6.

Within the context of responding to crisis situations your duty of care requires you to recognise and respond to reasonably foreseeable risks to your clients and others and to take reasonable care to avoid causing them harm by acting carelessly.

The key words here are ‘reasonably foreseeable risks’ and ‘reasonable care.’ The standard for ‘reasonable’ is what a reasonable person would be expected to foresee and do in a particular situation. You are not expected to predict rare and unlikely events or to act to prevent these.

Meeting your duty of care means that you must:

• Follow your organisation’s policies and procedures relevant to safety issues
• Work within the boundaries of your job role and seek advice and supervision if you are unsure about what to do
• Be aware of and follow legal requirements relevant to your job role and to the work of your organisation

This learning activity asks you to identify and discuss duty of care responsibilities in a particular situation.

Read the scenario below and answer the questions at the end.

Privacy, Confidentiality and Disclosure

Maintaining your clients’ privacy and confidentiality is important within the context of responding to crisis situations because disclosing private or personal information may add to the trauma they are already experiencing. Disclosing private, personal information may also put them at risk. For example, disclosing your client’s address when they are experiencing domestic and family violence may mean that the perpetrator can find them and continue to cause them harm.

For an overview of privacy, confidentiality, and disclosure, please review your Fundamentals of Community Services Learner Guide 2021 Section 3.3.

KEY POINTS

You must not disclose confidential information without your client’s consent except if it is necessary to protect someone from harm, or if the information is formally requested by a court of law.

Questions about when you are justified in disclosing confidential information may arise when you are identifying and responding to safety issues.

Check your organisation’s policies and procedures for confidentiality and for protecting the safety of clients and others.

EXAMPLE

Sample Duty of Care Policy and Procedure for Conducting a Welfare Check

Introduction

Safeguarding our clients’ welfare and safety is an essential part of XXXX’s service provision. All staff members have a duty of care towards clients receiving our services.

Duty of care is a fundamental legal principle in Australia’s legal system.

• It applies to any person in any situation where their actions might have an impact upon the other person
• We all have a legal obligation to behave in ways which do not harm people around us. In some situations, this may include not failing to take action to protect someone
• Duty of care means acting in ways which do not cause reasonably foreseeable harm to others
• ‘Reasonably foreseeable’ means that although we are not expected to predict unusual and unexpected events, we are expected to use our common sense to predict possible harm arising from risky events and situations.

Negligence is another word for carelessness.

If someone is harmed through our careless actions, that person may be able to take legal action against us. This is called suing for damages arising from negligence. Legal actions to sue for damages arising from negligence are dealt with by the civil courts, not by the criminal courts.

Procedures for Conducting a Welfare Check

When a Client Leaves the Premises

• Ask where they plan to go, how long they expect to be out and at what time they will return
• Check that you have the client’s mobile phone number and that they are taking their mobile phone with them
• Remind the client of the rule about being home by 9:00 p.m. These are simple precautions which ensure that we are aware of how many people are on the premises at any time, so that:
• If there is an emergency such as a fire, we can follow procedures to make sure that everyone gets out safely
• If something happens to a client while they are out, we have information we need to check on their welfare

This is particularly important when a client has been identified as being at high risk.

The level of risk is usually assessed when a client is admitted.

Part of our duty of care is to make ourselves familiar with the level of risk which applies to each client.

The following elements must be present in order for legal action for negligence to be taken:

1. A duty of care relationship must exist in the particular situation
This means that one person’s actions might foreseeably affect the other person’s safety or wellbeing. If your actions will not affect anybody else, no duty of care relationship exists.

2. A standard of care must apply to the situation
This means that there is a ‘standard’ for reasonably careful behaviour in that situation.

• In everyday life, the standard of care is what a reasonably sensible person would do in that situation
• There is no specific legal definition of ‘reasonable,’ ‘reasonable behaviour,’ ‘reasonable person’ or ‘reasonable care’ as this will vary according to the particular situation, the people involved and the social norms and expectations at that particular time. In cases of negligence, courts will refer to what an ordinary citizen or ‘reasonable person’ would be expected to do
• In a professional role the standard of care is likely to be higher. This is because in our professional roles we are expected to have more skills and knowledge than an ‘ordinary person.’ The more skilled the occupation or role, the higher the standard of care is likely to be
  • For example, in most situations a higher standard of care applies to an adult rather than a child. Adults are usually expected to have more skills, knowledge and common sense than children
  • For example, a surgeon is expected to have a very high level of skill and knowledge, so the standard of care for a surgeon carrying out surgery is extremely high. In everyday life, however, a surgeon will have the same standard of care as any other ‘reasonable person’
• As a worker in a women’s refuge, you are expected to have the skills and knowledge needed to carry out your job role effectively
  • Your standard of care towards your clients is, therefore, likely to be higher than that of your clients or of members of the general public who are not expected to have the same level of skills and knowledge.

3. Breach of duty of care
If no breach of the standard of care happens, there are no grounds for legal action.

• If you work within your job role description, follow your organization’s policies and procedures and use common sense to behave in a reasonable way, then you are not likely to fail in your duty of care towards your clients or others, or to be subject to legal action for negligence. In your professional role, however, if you fail to carry out your job role effectively and in accordance with your employer’s policies and procedures, even if no harm results, you may be subject to performance management, disciplinary procedures or dismissal

4. Harm resulting from the breach
Harm may include physical harm or injury, economic loss, damage to or loss of property, damage to reputation or standing within a community and emotional and psychological harm.
If no harm results from a breach of the standard of care, there are no grounds for legal action for negligence.

If a Client Does not Return at the Expected Time
As a ‘rule of thumb,’ and depending on the client’s situation and assessed level of risk, if a client is more than about an hour overdue, follow these steps:

1. Attempt to contact the client on their mobile phone or at the phone number of the place they have gone to (if available)
This is the first step to take. If you are able to speak to the client you can then decide whether the client is safe or whether support action is needed.

2. If you are unable to contact the client or to find out where and how they is, contact the manager on call
Outline the situation to the manager on call and decide what action to take next. This may include:

• Visiting the address to which the client went to check on their whereabouts and welfare
• Contacting police if the situation warrants

NOTE: If you are alone on a night shift, for example, you will not be able to leave the premises. This may influence whether or not you contact the police immediately.

In any case, you must not expose yourself to risk by, for example, going alone to an unfamiliar address to try and locate a client. Always let your manager or a colleague know where you are going and when you will be back.
Remember that it is better to ‘err on the side of caution’ than to take a risk with your own or a client’s safety and well-being.

3. Contact the police and request that they attempt to locate the client and check on their welfare
The police will be expected to try and locate the client, so make sure that you give them all of the relevant information.

4. Enter a written report into the client’s notes and into the shift records detailing all events, your actions, the outcomes and any follow-up actions required
Describe what has happened and include only relevant, accurate and objective information. Do not include assumptions, speculations or any judgmental statements.

5. At handover, or as soon as possible, give incoming shift workers information about the events so that any follow-up actions may be taken to ensure the client’s ongoing welfare
Depending on the seriousness of the incident this may be your responsibility or the manager’s responsibility. Where serious harm has occurred, it may be more appropriate for the manager to inform staff involved.
Again, remember to keep information (both verbal and written) accurate, to the point and objective. Do not speculate, make assumptions or pass judgment.

6. Debriefing and support for staff
In the event of an incident which results in serious harm the manager will arrange for staff members affected to be offered counselling support via the EAP to debrief and deal with any issues arising.
Additional note:

• If you believe that you may have breached your duty of care to a client in any way you should discuss this with your manager as soon as possible
• If any legal action arises from your actions you may seek legal advice either through your union or privately. If you believe a colleague may have breached their duty of care towards a client you may, if the matter has not resulted in actual harm to the client, either:
  • Approach the person to discuss your concerns
  • Discuss your concerns with your manager

If a serious breach of duty of care towards a client occurs and results in harm to the client you MUST report this to the manager as soon as possible.
If the manager is unable to resolve the matter, they may:

• Report to the board of management for advice
• Request external legal advice

Take any reasonable action to deal with the harm to the client including referring the client for legal advice and representation.

Boundaries

As a professional practitioner, you must maintain boundaries that are reasonable and appropriate. Whenever we work with people in a service and support role, there is a risk that the boundary between a working relationship and a friendship or intimate relationship may become blurred. Your work with clients inevitably involves face-to-face, phone and online communication, and it is necessary to build relationships that are positive and trusting. People who are seeking help from community service providers are often vulnerable and in need of support so the development of relationships is an important tool in providing that support.

However, there are ethical issues that arise if the boundaries become blurred. Clients can become dependent on the relationship and rely on its continuance beyond the period they are being supported. Your decision-making may also be compromised so that your decisions may not be in the best interests of your client.

Indications that work-role boundaries may have been crossed to create ethical challenges include:

• sharing or disclosing personal information beyond what is needed for the development of a trusting relationship, a relationship like being a partner, friend or personal acquaintance, as well as having a professional relationship visiting a home or social events
• contacting via social media outside of a professional contact changes to the style of language and communication towards a friend, family member or partner.

Understanding Your Role

Taking on more challenges and responsibilities at work can be tempting, even when this has not been included in your job description. 
On the one hand, using initiative and stepping up to a challenge can be seen as a good thing; many employers favour people who can rise in a difficult situation and show leadership. But on the other hand, taking responsibility for something that is outside the bounds of your job description can be problematic.

Sometimes, people can choose to take on tasks, responsibilities and decisions that are best left to those who hold different positions in the workplace.

Stepping outside the limits of your job role can leave you vulnerable to ethical issues and problems if you are faced with situations that are beyond your skills and knowledge to manage effectively.

Building a respectful, trusting and supportive relationship with your clients is a crucial element to success. Growing and facilitating those relationships while maintaining a professional and ethical relationship is a tricky but necessary balancing act for many reasons, including:

• respecting the client’s rights
• maintaining professional standards and judgment.

It is also an important part of managing your own mental health, stress and burnout. There is an equilibrium to maintain between developing empathy, rapport and trust with clients and maintaining professional and work-role boundaries.

At the outset, make it clear to your clients what their rights and responsibilities are in accessing your services, and advise them of your rights and responsibilities as well. It may be appropriate to reiterate this information at times throughout the relationship.

Stick to your job role and description and follow your workplace policies and procedures for professional communication and interactions with clients. Throughout your career, you will learn to balance healthy, supportive empathy for a client's situation and the role you are employed to take in helping them achieve their goals.

It is easy for some clients to become attached to you. It is important that you clearly define and communicate your role as a professional to them right at the beginning of your relationship, and remind them of your role if they try to get too close to you, ask favours, invite you to
personal events, and so on.

There are a number of reasons that it is important to maintain this professional relationship and to not confuse it with a friendship or personal relationship:

• If the professional relationship is lost, there is the potential for the client’s rights to be inadvertently violated.
• You may find it difficult to maintain your professional standards and your judgment may be clouded by your emotions.
• A relationship that has moved beyond professional boundaries can create a sense of dependence in the client. When it becomes time for the client to move on or for you to change jobs, this can add to the person’s sense of lose and dislocation.
• An overly close relationship with one person can leave others feeling left out.
• Maintaining a professional boundary is an important way of separating your work and personal life, which is one of the keys to managing stress and preventing burnout.
• An overly close relationship with a member or members of the team of carers reporting to you can make it difficult when the time comes to address issues with them.
• Your role as a community services worker and as a supervisor is to build resilience, self-reliance and independence in the people to whom you are providing support. This can be difficult if you are overly involved with your clients or staff.

How do I Know if I am Blurring the Professional-Boundary Line?

Often, friendships or relationships that step over the professional line develop gradually and are difficult to recognise for ourselves. The following are some strategies that you can use and what to watch out for:

• Listen to feedback from colleagues, supervisors and others. Are people questioning your level of involvement?
• Is work impacting your personal time?
• Are you staying at work after your shift is over or arriving early?
• Are you spending more time with one person than with others? Alternatively, are you consciously spending less time with one than with others?
• Have you shared your personal social media account or phone number with a client?
• Are you sharing your own personal details with a person who you are providing support to?
• Have you developed a positive or negative emotional attachment with one of the people in your care?
• Are you tempted to contravene organisational policies and procedures? For example, meeting someone socially or inviting someone to your home or to a family event?
• Are you starting to let standards of care slip within your team because you are uncomfortable about addressing them?
• Are you accepting a standard of behaviour from someone that you would not accept from others?

Work Role Boundaries Activity

This learning activity will extend your understanding of work role boundaries and the importance of these.

Read the case study below and answer the following questions:

Mandatory Reporting

Every state and territory has laws that mandate the reporting of suspected child abuse and neglect. These laws vary significantly from state to state on who is required to report, how they are required to report and when they are required to report. Therefore, it is critical that you are familiar with your state or territory’s laws
as well as your organisation’s policies and procedures around mandatory reporting.

You have responsibilities around the safety for the children and young people in your care. You also have a role in ensuring that policies and procedures are implemented and adhered to by your team. You may need to support your team members in reporting child abuse.

The Australian Institute of Family Studies has important information relating to mandatory reporting in your state or territory on its website. Access the relevant information for your state or territory and then compare it with your organisation’s related policy and procedures.

In some crisis situations (such as child abuse and/ or domestic and family violence) you may encounter situations where the safety and wellbeing of a child is at risk.

• Check your organisation’s policies and procedures for reporting child safety issues and check your state or territory’s child protection legislation and procedures for reporting children at risk
• If you are a mandated reporter (depending on your occupational role) follow legislated policies and procedures and your organisation’s policies and procedures
• If you are unsure about what to do, consult your supervisor

Codes of Practice

For an overview of codes of ethics and practice standards, review your Fundamentals of Community Services Learner Guide 2021 Section 3.2.

There are various codes of ethics and codes of practice relevant to community services work. The most general one is the Australian Community Worker Ethics and Good Practice Guide, 2020.

• Depending on your industry sector and/or your work role or occupation, you may be bound by a relevant code of ethics or practice guidelines
• These provide you with standards and guidelines for good professional practice
• Your organisation may also have its own codes of ethics or codes of conduct that staff members must follow

LEARN MORE

Depending on which sector you work in, the following may also be relevant:

• NDIS Code of conduct (NDIS providers) NDIS Quality and Safeguards Commission, undated
• MHCA Code of conduct, Mental Health Australia, 2021
• Code of ethics for youth workers in WA, YACWA, 2018
• APS Code of Ethics, Australian Psychological Society, 2018
• National practice standards for the mental health workforce, Victorian Government, 2013.
• National code of conduct for health care workers, COAG Health Council, 2014

Organisation Policies and Procedures

Organisational policies and procedures provide you with information about how to apply legal and ethical requirements in the workplace.

A policy is a statement that outlines how the organisation intends to deal with an issue or an area of its work, or how it intends to implement legislative requirements. For example, an eligibility policy outlines who is eligible to receive services from the organisation.

An equal opportunity policy outlines how the organisation will follow equal opportunity principles and legislation in its operations and activities. A privacy and confidentiality policy outlines how the organisation will follow the requirements of the Privacy Act and what it will do to protect the confidentiality of information about its clients.

An organisation’s policies may also include statements about its values and goals.

A procedure describes the steps you must follow in order to implement a policy. For example, workplace health and safety procedures describe what you must do to follow the organisation’s workplace health and safety policy, which in turn is based on workplace health and safety legislation.

Your organisation’s policies and procedures should be your first point of reference when you are faced with a situation that requires you to make a decision about what to do in a particular situation. For example, when you must decide whether or not you are justified in disclosing confidential information in order to safeguard someone from harm.

Discuss an Ethical Dilemma

This learning activity provides an opportunity for you to explore an ethical dilemma.

Our personal values and beliefs influence how we behave and how we resolve questions of right and wrong. In community services work, it is essential for you to be aware of your own values and beliefs and their influence on how you do your job.

Our values and beliefs are part of who we are. We learn them through a complex process called socialisation, which is a sociological term used to describe how we learn to become a member of our society, culture and social group as we grow up. This process often happens more or less subconsciously, so bringing our values and beliefs to the surface takes a bit of thought and effort.

Being ‘non-judgemental’ is a key principle underpinning all areas of community services work. This means that we must avoid expressing judgments about our clients’ characteristics, situations and behaviour and letting these judgments influence how we treat our clients.

It can be difficult to avoid expressing approval or disapproval indirectly, through nonverbal communication and through how we show our emotions. Developing our awareness of our biases, beliefs and values and becoming aware of how these can shape our communication and interactions with others is the first step in developing and maintaining a non-judgemental attitude towards our clients.

Reflecting on Your Personal Values and Beliefs

This learning activity provides you with an opportunity to reflect on your own values and beliefs in relation to community services values and principles.

1. Download or print a copy of the Australian Community Workers Association’s code of ethics and practice guidelines.
   Read it and highlight the key points.
2. Download or print a copy of the Self- Assessment Tool for Practitioners from the same link, read and complete it.
3. Use your answers to identify areas where your own values and beliefs align with the values and ethics expressed, and any areas that do not align.
4. Do you think you would have any difficulty in following this code of ethics and code of practice Why?

Assumptions

Another part of belonging to a particular society and culture is the assumptions that the society or culture makes about different kinds of people, which we also absorb as we grow up. For example, assumptions about what behaviour is appropriate for males and for females, assumptions about the characteristics of people from different social or ethnic groups and assumptions about what constitutes a ‘good’ life and the ‘right’ way to live, or what are ‘good’ and ‘bad’ characteristics for people to have.

An extreme form of these kinds of assumptions is a stereotype. This means having a set idea about a person or a group of people usually based on a single characteristic such as age, gender, ethnicity, religion, disability or some other fixed or ascribed characteristic. Stereotypes are generalisations that lead us to believe that everyone who possesses that particular characteristic is the same. Stereotypes are usually negative and can devalue the group of people stereotyped and result in discrimination and unfair treatment.

EXAMPLE

Examples of negative stereotypes include:

• ‘Dumb blonde’
• ‘Silly old duffer’
• ‘Village idiot’

Examples of negative assumptions include:

• ‘Women who experience DFV should just leave’
• ‘People with disabilities are permanent children and a burden on society’
• ‘People with mental illnesses are dangerous’

These assumptions can also influence how we see and how we treat our clients.

Common Beliefs and Assumptions about Crisis

You may think that only people with mental health issues, those who lack skills and resources or only ‘weak’ people experience crises. Strong, resilient and competent members of society are expected to deal with whatever life throws at them.

This is not so. Anyone can experience a crisis in response to the types of triggering events outlined in chapter 1.

There are no clear categories or groups of people who are more at risk of experiencing a crisis than others, although traumatic life experiences may make some people more vulnerable, and people with existing issues such physical and mental health conditions may also be more at risk of experiencing a crisis.

It is true that some people may have access to more resources than others (material, financial or economic, social networks, community support, knowledge and skills and personal strengths and abilities) but anyone can become overwhelmed, disorganised, panic stricken and unable to function in the face of events such as natural disasters, wars and conflicts, relationship breakdowns, serious illnesses, accidents, changes in social or economic status, loss of employment and the death of loved ones. Wealth and social status are no guarantee that you will never experience a crisis.

Most people who experience a crisis react in much the same way. They become overwhelmed, lose their capacity to ‘cope’ or make rational decisions, experience anxiety, dread, and panic and generally become unable to function ‘normally.’

Resilience

The notion of resilience is relevant to discussing beliefs and assumptions about who might be at risk and how people respond to crises.

Resilience is the ability to use your skills and strengths to recover from problems and challenges, so it is likely that resilient people will cope better with crisis situations and events.

Mainstream Australian cultural attitudes such as valuing independence and ‘standing on your own feet’ may contribute to assuming that the person experiencing a crisis should just ‘get over it’ and ‘soldier on.’ On the other hand, notions about ‘mateship’ support a willingness to help others in need, as is evidenced by community support for victims of bushfires, floods and similar disasters.

WEBSITE

Building resilience, Kids Helpline, 2021

Helpful Beliefs and Attitudes

Attitudes that facilitate rather than impede crisis care include beliefs that:

• Most people are doing the best they can in a difficult situation
• People have strengths and capacities that can address their own situations and issues and are their own ‘experts’ on their individual situations, needs and goals
• All people deserve to be treated with respect and valued as individuals
• Experiencing a crisis can be very disempowering, so working to empower your clients helps to build strength, resilience and capacity

Codes of practice provide guidelines for how to work within the law and how to work ethically. In some sectors, codes of practice also reflect the requirements of legislation governing service provision and service standards (for example, in the disability and aged care sectors).

RESOURCE

The most relevant general code of practice for community services workers is the Australian Community Workers Association’s Code of Ethics and Practice Guidelines.
National practice standards for the mental health work force, Victorian Government Department of Health, 2013
Practice guidelines: women and children’s family violence counselling and support programs, Victorian Government Department of Human Services, 2008

In responding to crisis situations, you will need to be able to make decisions about whether or not your actions follow relevant legislative requirements and about how to meet your duty of care towards your clients, co-workers and others.

The following checklist can be used to help you to assess this:

• What legislation is relevant to this crisis situation? How does it apply to my actions? What am I legally required to do?
• Does my organisation have any policies or procedures that I must follow in dealing with this crisis situation? What am I required to do?
• Is there a code of ethics or code of practice that I can refer to? What does it say about this kind of situation?
• Which ethical principles are most relevant in this situation? Why?
• What are the boundaries or limitations of my work role? What must I do and/or not do? What might happen if I do not keep within my professional boundaries?
• What risks are involved in this situation? Who is at risk? How? How serious or significant is the potential harm?
• What can I do to minimise or control the risks? What might happen if the risks are not addressed?
• Who should I inform about this situation? Why?
• Who should I ask for advice? Why?

Check your organisation’s policies and procedures, check relevant legislation, check relevant codes of ethics and codes of practice and check your job role description or duty statement and work within its boundaries.

Responding to a crisis is a responsibility that can significantly impact individuals' lives, making it crucial to act in accordance with the law and ethical principles.

This topic focused on legal and ethical considerations when recognizing and responding to crisis situations, including the duty of care, privacy, confidentiality, disclosure, work role boundaries, responsibilities, limitations, mandatory reporting, codes of practice, and organizational policies and procedures. It also addresses personal values, beliefs, and attitudes that can either support or hinder crisis care and emphasizes the importance of ensuring that one's actions are legally and ethically sound, consistent with organizational policies, and meet duty of care requirements.