Is it OK? Duty of care, law & ethics in NSW youth work:
A guide to common legal and ethical dilemmas
(2006) by Nick Manning
contents
Safety: Contents
- Staffing numbers & ratios
- What are your responsibilities with violence?
- Is it OK to ban a young person?
- Young people & risk-taking
- After the client leaves your premises
Staffing numbers & ratios
Run a drop-in session by yourself?
There are no legal ratios or minimum staffing numbers for non-residential youth work in NSW. Agencies must comply with occupational health and safety and fulfil their duty of care by applying their own risk management procedures. In other words, you must judge for yourself what level of staffing is safe enough for your particular programs.
Drop-in programs present a higher risk than other youth programs because of their inbuilt unpredictability: you don't know in advance who will turn up, or even how many young people will turn up. Because of this, a sole worker on drop-in may be inadequate.
If you don't have the funding to employ 2 workers at drop-in, you could:
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run drop-in jointly with a youth worker from a nearby agency
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use volunteers
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run drop-in in a building where other workers are present running other services (eg. a neighbourhood centre or a counselling service) and if necessary set up duress alarms between the different sections of the building.
Excursions & camps
There is no legal standard on staffing numbers for excursions and camps in youthwork in NSW. You need to carefully assess the risks for each event. See Model policies: Excursions and Camps (link below).
What are your responsibilities with violence?
A client is unexpectedly violent during a program. Exactly where do you stand legally?
Your ability, and so your responsibility, to prevent unexpected incidents is limited.
Professionally run services which engage young people are likely to experience less violence and aggression than badly run services.
- Treat all clients and members of the public with respect.
- Set clear expectations and enforce reasonable consequences for breaches.
- Deal with complaints in a professional manner.
- Follow all occupational health and safety (OH&S) requirements.
Beyond OH&S, responsibility for criminal acts rests mainly with the offender and responsibility for law enforcement rests with the police.
If the violence was reasonably foreseeable (predictable) given the information available to you, your duty is higher. Under both duty of care and occupational health and safety laws, you should take all reasonable steps to prevent foreseeable violence. Exactly what are reasonable steps depends on the circumstances, but you should be guided by how your peers in other agencies would act in similar circumstances.
Is it OK to ban a young person?
A youth service can ban a young person from the agency completely, though legally you must:
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give them a fair hearing before deciding whether to ban them (this is the legal principle of natural justice), and
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make a decision based on that young person's behaviour and not based on assumptions about a group they belong to (eg. an ethnic group or people with a mental illness).
A ban should be for a limited period of time. Ethically many people would say no more than 6 months, and preferably no more than 3 months, at a time.
Youth services should use bans as a last resort - if a youth service is considering banning a young person, it is possible that other service providers (eg. schools) have stopped working with them already. Try to find ways that you can safely continue to provide needed services to the young person. For example:
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you might ban them from group activities but still provide casework services
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you might ban them from your premises but still be able to provide casework services at safe venues such as the school or home, or provide phone support.
Do not ban someone merely because their behaviour is annoying or inconvenient. Behaviour which might justify a ban, depending on the circumstances:
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repeated drug dealing (including alcohol or prescription drugs) to other young people on your premises
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violence or serious threats of violence.
Young people & risk-taking
The law does not expect you to protect young people from all risks. Risk-taking is a necessary part of learning skills and developing maturity. Youth workers often encourage young people to take particular risks, and the law recognises the value of calculated risk-taking.
For example, sport and physical recreation often involve risky behaviour, and minor injuries are common. However, on balance, sport and recreation has such clear benefits that the law accepts the place of sport in our lives - as long as the organisers take sensible precautions.
Foolish behaviour
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A drunk guy climbs on the roof at a youth centre.
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A young person dives in the shallow end of the pool.
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A young woman drinks and drives (or takes drugs and drives) and other young people get in the car with her.
Some young people do foolish things. Youth workers cannot completely prevent incidents like these occurring.
Your duty of care is to take reasonable steps to:
- minimise the likelihood of dangerous behaviour occuring, and
- minimise the seriousness of injuries that might result (harm minimisation).
Your ability, and therefore your responsibility, is clearly greatest to try to prevent dangerous behaviour on your own premises.
Your ability and your responsibility are also greater with clients:
- on excursions and camps
- who you have some power of sanction over - that is, where you can impose consequences for inappropriate behaviour.
Beyond that, you should use your powers of persuasion, within the limits of your role.
The courts recognise that, when people, including teenagers, knowingly put themselves at risk, the duty of care of those around them is lower.
In youth work, this principle needs to be balanced against our understanding that vulnerable people (including some young people) sometimes put themselves at risk because of issues in their life which are not completely within their control. Vulnerable people need those around them to offer some protection.
Your responsibility after the client leaves your premises
Your ability and your responsibility to keep people safe beyond your premises and programs is limited.
Serious concerns about a young person
If a person is leaving your premises or your activity (eg. an excursion) and you have serious concerns (eg. they are blind drunk, threatening self-harm, or putting themselves into an unsafe situation), then you might:
- try to persuade them to stay safe
- contact a carer, guardian or friend who could help (check your privacy policy)
- if you have serious concerns, call mental health services, police or ambulance.
In many circumstances it is not reasonable to expect you to go after them, especially if you have other people to look after.
Supervision while young people wait for transport at night?
Youth services should assess whether to provide limited supervision while young people wait for transport after night time activities. Whether it is reasonable to provide supervision will depend on factors such as:
- how safe is the location
- how late is it
- how vulnerable are the young people
- how many staff you have available.
If you do decide to provide supervision, make sure that supervising staff are also safe.
Your advertising and any information to young people and parents about the event should make quite clear what you can and can't do regarding supervision and transport. See Model policies: Duty of Care Statement (link below).
Drive a young person home?
There is no law either:
- requiring youth services to provide transport home, or
- stopping you from driving a young person home.
Legally you do not need a parent's consent to drive a young person home.
If you are aware of a young person who may be unsafe getting home, balance these issues before deciding whether you should drive them:
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how will they get home if you don't drive them, and how safe will they be?
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how safe will you be in a vehicle with them?
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might they be an unsafe passenger (eg. not wear seatbelt, try to get out of a moving vehicle, seriously distract the driver)?
- how long will it take to drive them home, other demands on your time, how soon do you finish work etc.
See Is it OK... to drive young people (link below).
If you don't drive them home
If you are aware of a young person who may be unsafe getting home, but you can't or won't drive them, then take whatever reasonable steps you can in the circumstances to try to keep them safe eg:
- let them use a phone
- provide petty cash to pay for a bus or taxi (depending on your agency policy)
- wait until someone comes to pick them up
- drive them to a nearby place which is a safer place to wait (eg. a shopping centre).
You do not have a duty to keep young people perfectly safe after your programs finish - you have a duty to take the level of care that is reasonable in the circumstances.
More information
Other relevant sections of Is it OK...
- Is it OK... to drive young people
www.yapa.org.au/youthwork/facts/ok/drive.php
Model policies on working with young people, for non-residential youth services in NSW, at www.yapa.org.au/youthwork/modelpolicies:
- Drop-in & use of centre facilities in Part 1: Activities & services
- Excursions and Camps in Part 1: Activities & services
- Casework safety in Part 2: Casework
- Complaints, in Part 3: Rights & responsibilities
- Rules and consequences, in Part 3: Rights & responsibilities
- Vehicles, in Part 7: Safety
- Duty of Care Statement, in Part 7: Safety
- Non-violence in Part 7: Safety
Alcohol & illegal drugs: Law & policy for NSW youth services
www.yapa.org.au/youthwork/facts/alcohol.pdf (293KB PDF)
Notes
Published: 2006. Opinions are the author's and not necessarily YAPA's.
Applicable to NSW youth services (non-government agencies & local councils) providing accommodation, welfare, social or recreation services to young people. May not be consistent with laws and guidelines in, schools, out-of-home care or health services. "young people" - aged roughly 12-25 years old (unless stated otherwise).
Be careful! YAPA and the author took reasonable care to ensure that this information is correct. However government regulations, laws and standards are complex and changing constantly. The author/s have no health, occupational health and safety, or legal qualifications (unless stated), and information provided is general - it is not specific legal or professional advice. Do not rely on it - check with other publications and authorities and if necessary get qualified legal or professional advice for your situation.
Copyright 2006 Nick Manning. You can: a) quote small amounts of text if you acknowledge the author, publisher, web address & date; b) print out multiple copies of this web page but only if you print the whole web page. No other use permitted without prior consent. Do not put large amounts or all of the text in any other document, including: a policy & procedure manual; a presentation (eg. Powerpoint); a training/learning resource book (eg. for TAFE); a web page. Copyright and training enquiries: nmanning@pnc.com.au
