New Victorian Scheme for disability workers

Information current at date of publication: 3 July 2020
The average reading time for this Alert is 5 minutes.

The Disability Worker Regulation Scheme was established by the Disability Service Safeguards Act 2018 (Vic) (Act), to regulate all disability workers in Victoria, irrespective of the service funding source, from 1 July 2020.

Overview

The main purpose of the Scheme is to ensure the quality, safety, responsiveness and sustainability of the disability workforce. The Scheme does this in four key ways:

1. Establishing a new 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.
2. Enabling suitably trained and competent disability workers to obtain registration status with the Board.
3. Providing processes to make complaints about disability workers to the Commission or the Board.
4. Facilitating the creation of the Disability Service Safeguards Code of Conduct with which all disability workers must comply.

The Scheme will apply to all disability workers in Victoria from 1 July 2020.

Critically, this means that notification obligations have now commenced. It also means that the Code of Conduct is now in effect, and the Board and the Commission can receive complaints and notifications 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 Boardas 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 consists of the following four types of misconduct:

1. practising as a disability worker while intoxicated;
2. engaging in sexual misconduct while practising;
placing the public at risk of harm due to:
1. an impairment that detrimentally affects their capacity to practise; or
2. 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 a 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.

The law protects anyone who makes a notification in good faith. The Act provides that a person is not liable for any loss, damage or injury suffered by another person by reason of a notification being made.

Registration

The Act creates a voluntary registration scheme for disability workers. It is important to understand that the provisions of the Act apply to both registered and unregistered disability workers.

Registration will signify 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 employ 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.

The commencement of voluntary worker registration has been delayed until 1 July 2021 due to the COVID-19 pandemic. After 1 July 2021, disability workers can voluntarily apply to become registered and the Board will regulate disability workers and students who are registered with the Scheme. The Commission will regulate unregistered disability workers.

Complaints

Anyone can make a complaint to the Commission or the Board about the conduct of a Victorian disability worker. This includes people with disability, family members, advocates and other providers.

Complaints can be made about any disability worker (including both registered and unregistered workers) in Victoria regarding:

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

The Commission and the Board work together to handle complaints and notifications about disability workers. A range of actions may be taken in response, including:

1. resolving complaints through conciliation;
2. investigating the conduct of the disability worker;
3. counselling or cautioning the disability worker;
4. requiring a registered disability worker (if registered after 1 July 2021) to undergo a performance or health assessment;
5. imposing conditions on the registration of a disability worker requiring them to take a certain action or refrain from particular action;
6. suspending the registration of a disability worker in circumstances where the disability worker has an impairment that affects their ability to practise in a safe manner or they have been found to have engaged in unsatisfactory professional performance or unprofessional conduct;
7. referring the matter to an appropriate body, e.g. if a notification relates to a registered NDIS provider, to the NDIS Quality and Safeguards Commission, or a relevant health complaints entity in the case of the provision of a health service of conduct of a health practitioner; and
8. in the case of unregistered disability workers, issue an order preventing a person from providing disability services for a specified time or indefinitely.

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. It adopts the NDIS Code of Conduct, which means that the NDIS Code of Conduct now applies to all disability workers in Victoria. This means that all disability workers must:

1. act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions;
2. respect the privacy of people with disability;
3. provide supports and services in a safe and competent manner, with care and skill;
4. act with integrity, honesty and transparency;
5. 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;
6. take all reasonable steps to prevent and respond to all forms of violence against, and exploitation, neglect and abuse of, people with disability; and
7. take all reasonable steps to prevent and respond to sexual misconduct. 

What should disability service providers do?

Victorian disability service providers should understand their obligations under the scheme and be alert to any conduct that they may now have an obligation to report. Employers of disability workers (other than NDIS employers) should also review the Code of Conduct and ensure all of their disability workers understand their obligations under the Code, and consider implementing it into their training and workplace policies and procedures.

If you have any questions please contact one of Libby Pallot, Anthony Massaro or Abbey Burns. We are in the process of developing training materials and policies for Victorian disability services providers to implement at the workplace to ensure compliance with the Scheme, please let us know if you are interested in receiving more information about these products.

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