Following the death of Anne Marie Smith in 2020, two directors of a disability health service provider have recently been charged with criminal neglect and failure to comply with a health and safety duty of care. This tragic case has put a spotlight on the health and safety obligations of care providers and their directors.

Employers

Employers have a number of responsibilities regarding the duty of care they owe employees, visitors and others. SafeWork SA Executive Director, Martyn Campbell, speaking on the matter, said:

“…employers have a duty to provide a safe system of work to their workers, visitors and others who come into the workplace. This included Annie in this case. Her home became a workplace as soon as the carer entered it to do her work.”

It is important for providers to bear in mind the extent of their duty of care. Providers must ensure that where services are being delivered in homes, safe systems of work must still be followed, even though services may be out of the direct line of sight of the provider.

Directors

Directors, CEOs and governing body members of an organisation have an additional duty, known as the ‘due diligence’ requirement, to ensure that an organisation has work health and safety systems in place and that those systems are followed. In the case of Anne Marie Smith’s death, it is alleged the company directors failed in this duty.

The ‘due diligence’ requirement originates from section 27 of the model Work Health and Safety Act, which requires that officers of an organisation exercise due diligence to ensure that the organisation complies with work health and safety legislation.

Exercising due diligence involves:

acquiring up-to-date knowledge of WHS matters,
understanding the nature and risks of the operations of the organisation, and
ensuring the organisation uses appropriate resources to minimise WHS risks.

An officer must take an active and inquisitive role in WHS matters to satisfy their duty.

An ‘officer’ includes governing body directors and the secretary, as well as other people who make or take part in decisions which affect the whole organisation. People who sit on a governing body board or a committee on a voluntary basis are still regarded as officers.

The officer duty recognises that officers have corporate governance responsibilities and, through their decisions and behaviour, strongly influence the culture and accountability of the organisation. They can influence important decisions on the resources that will be made available for the purposes of WHS, and the policies that will be developed to support compliance by the organisation with the model Work Health and Safety Act.

How can Standards and Performance Pathways assist?

The officer duty is therefore an important responsibility of board and governing body members. We have developed a new self-assessment module in SPP to help governing body members and other officers ensure they are complying with their responsibilities under section 27 of the WHS Act.

The module guides officers through the key components of section 27(5) of the WHS Act and provides additional examples of ‘reasonable steps’ that may be taken when executing the duty. The module also details the kinds of resources, processes and procedures that officers will need to ensure their organisation has in place.

Review your obligations in SPP.

Quality services arise from good leadership. As an aged care provider, your governing body plays an integral role in promoting a culture of safe, inclusive and quality care and services, and overseeing your organisation’s operations.

Responsibilities

Under the Aged Care Quality Standards, the governing body is accountable for the delivery of safe and high quality care and services to all consumers in the organisation’s care.

Each member of the governing body must be satisfied that the organisation has in place the culture, strategies, policies, practices and behaviours to ensure delivery of care and services to that standard.

Challenges for non-executives

But boards are usually (and should be!) composed of non-executive directors, who very often will be fulfilling their role on a voluntary basis. On any one board there may be directors with varying levels of knowledge about the specific requirements of the Aged Care Quality Standards. Directors may be located remotely from the provider and, especially over the last 18 months with COVID, opportunities for face to face on site meetings has been extremely limited.

And yet, individually, each director shares the responsibility to oversee that their provider delivers safe, quality and compliant care.

Problems highlighted by the Royal Commission

The importance of strong governance in aged care was a central finding of the recent Royal Commission into Aged Care Quality and Safety. In their Final Report, Commissioners Pagone and Briggs were blunt in their assessment of the failures of some aged care providers’ governing bodies:

“Provider governance and management directly impact on all aspects of aged care. Deficiencies in the governance and leadership of some approved providers have resulted in shortfalls in the quality and safety of care. Some boards and governing bodies lack professional knowledge about the delivery of aged care, including clinical expertise. There is a risk that they may focus on financial risks and performance, without a commensurate focus on the quality and safety of care.”

The Commissioners spoke unambiguously of the duty held by governing body members:

“Accountability begins and ends with the leaders of an organisation, the board and senior management. If boards and governing bodies do not have the knowledge or skills to understand the care that is being delivered, they are unable to ensure that this care is high quality and safe. The values and behaviour of people in these senior positions have a significant impact on workplace culture and the quality of care that is delivered.”

It is clear that scrutiny of aged care provider governing bodies will be a focus of the Aged Care Quality and Safety Commission – now and into the future. Already, government has begun legislating for greater accountability and responsibilities for governing bodies, with the recent Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 signalling strengthened governance arrangements from March 2022.

Now, more than ever, providers must ensure that their governing bodies are highly informed, involved, and are advocates for quality and safety in the aged care sector.

Our solution: the Board Governance Toolkit

In response to the findings of the Royal Commission, and requests from our customers, we have developed the Board Governance Toolkit.

Our new Board Governance Toolkit addresses all of the requirements in the Aged Care Quality Standards for oversight of the organisation’s provision of quality and safe care and services, and oversight of management and staff.

For each requirement, we ask a series of questions that walk directors through the necessary avenues of enquiry, so that they understand their obligations and are guided to ask the right questions and receive the correct and relevant information from management. Directors also have the opportunity to comment on how their organisation is meeting that requirement, or how it could improve.

Our Toolkit helps each individual board member to:

Understand their ACQS responsibilities
Record their assessment of organisational performance
Engage effectively with senior management
Identify gaps and areas for improvement
Regularly review progress and update priorities

Our Toolkit facilitates regular review and continuous quality improvement. As part of regular quality improvement processes, governing body members should revisit the Toolkit and update their comments, for review and discussion at board level on a regular basis.

Click here to view our Board Governance Toolkit flyer.

Seeking guidance for your board?

Access the Board Governance Toolkit on SPP.

Tag: board

The importance of a director’s work health and safety obligations