Duty of Care

Elder Abuse and the Law - Duty of Care

Duty of care is a complex area. While care has been taken to ensure the accuracy of material contained in this website, no responsibility will be accepted for any errors or omissions.

Care staff owe a duty of care to a resident. Duty of Care is based on the principle of reasonableness, and is founded in the law of negligence. In all of your working life, you have to conduct yourself in a way that is considered reasonable for someone in your position to do so. Reasonable conduct may be thought of as that which is 'acceptable, average, equitable, fair, fit, honest, proper, right, tolerable or within reason'' (1). All staff in a residential facility would be expected to show the skill and proficiency of a competent worker in every situation.

If a professional is found to be in breach of their duty of care, they can be sued for negligence.

Duty of care encompasses the rights of the older person to self-determination, independence and dignity, and generally is seen as including the responsibility to ensure that the full range of an older person's rights are safeguarded and upheld. These rights need to be considered alongside other issues raised by the duty of care, for example physical safety, the right to take risks and need to break confidentiality.

Becoming aware of an abusive situation and not acting, for example, not seeking advice from your supervisor, or not referring the matter to someone able to deal with the issue, could amount to a BREACH OF THE DUTY OF CARE (2). Negligence can occur if anything care staff do, or anything they fail to do, falls below the required standard of reasonableness, and results in foreseeable harm to an older person.

In practical terms duty of care can be thought of as: becoming aware of problems that might be abusive, and responding to them appropriately. As care staff you have to respond to them. The following information is illustrative of the issues to consider.

  • Compulsory Reporting requirements
  • The older person's right to freedom of choice
  • The older person's right to confidentiality
  • Defamation
  • Principles of assistance in situations of elder abuse

This information is not intended to replace specific advice on a particular issue. Independent legal advice should be sought on a case-by-case basis.

This is a stressful and difficult area, as studies have shown:

A Swedish study reviewing abusive situations in residential care found that "Nurses experienced feelings of uncertainty, mistrust, powerlessness and 'walking a fine line'. They experienced conflicting feelings and questioned whether they should approach the families concerned, whether the abuse really did occur, and whether they should intervene or not." (3)

Don't let these feelings limit your actions - there are practical steps you can take!

If unsure of what steps to take initially refer to any policies and procedures the organisation has or Compulsory Reporting requirements set out in the Residential Care Manual 2009 (Edition 1) or the Act /Aged Care Act (1997) and follow these. Making a report can be as simple as talking to your supervisor of your concerns. Responsibility for determining what to do lies with the organisation, rather than the individual care staff (providing you have taken the step of informing your supervisor).

(1) Collins English Dictionary and Thesaurus. (1993) Harper Collins Publishers. Glasgow. pp 956
(2) NSW Department of Ageing and Disability (1996) Dealing with Abuse of Clients and their Carers, A Training Kit. Ageing & Disability Dept, Sydney NSW. The training kit is available from the NSW Department of Ageing and Disability, Level 13, 83 Clarence St Sydney NSW 2000.
(3) Nursing Standard (1995). RCN Update, Vol10, No6,pp8 . Published by RCN Publishing Company Ltd. Reproduced here with permission of the Opinion Editor.