Disclaimer: This article contains references to a fatal incident and serious injury. Reader discretion is advised.

A recent decision of the District Court of New South Wales provided a stark reminder about the work health and safety (WHS) obligations of NDIS providers, even when those services are provided off-site in participants’ homes. LiveBetter, a registered NDIS provider, was convicted of a Category 2 offence under the Work Health and Safety Act 2011 (NSW) after a client, Ms Kyah Lucas, suffered catastrophic burns while being assisted with bathing.

Ms Lucas lived with Cornelia de Lange syndrome (CdLS) and had a profound intellectual disability. She was non-verbal, unable to mobilise independently and had health conditions including thin skin and difficulty regulating body temperature. LiveBetter provided her with in-home disability support services under her individualised NDIS plan.

On 2 February 2022, two disability support workers assisted Ms Lucas to take a bath at her home. The home had linked water temperature control panels that were typically set to around 40–42°C but had been set to 60°C on the day. The bath was filled and the water temperature was tested by hand. After Ms Lucas was placed into the bath, the support workers observed abnormal distress, at which point she was removed from the bath and showed signs of burns. Ms Lucas was admitted to ICU the next day with burns to around 35% of her body and died several days later on 7 February 2022.

The Court found that LiveBetter failed to ensure, so far as is reasonably practicable, that Ms Lucas’s health and safety were not put at risk from work carried out as part of its business. In reaching that conclusion, the Court emphasised that LiveBetter had knowledge of Ms Lucas’s extreme vulnerability, including her inability to communicate pain and her difficulty regulating body temperature, yet did not implement adequate, documented systems of work to manage the foreseeable risk of scalding.

LiveBetter ultimately pleaded guilty to the absence of an appropriate risk assessment, safe bathing procedures, formal temperature checking requirements and structured training and competency assessment for workers. Of particular concern were the findings that the support workers had neglected to call 000 or provide appropriate first aid.

The Court determined that an appropriate penalty was $900,000, however, it reduced it by 25% due to the company's early guilty plea, resulting in a fine of $675,000. LiveBetter was also ordered to pay the prosecutor’s costs.

In its decision, the District Court noted that separate civil proceedings had already been brought against LiveBetter by the Commissioner of the NDIS Quality and Safeguards Commission, which had resulted in a penalty of $1.8 million.

Ensure sufficient oversight of in-home support.

While NDIS providers will often have less ability to regularly oversee and supervise services provided in-home, this results in a greater reliance upon appropriate risk assessments, sufficient procedures and adequate training. NDIS providers must also ensure sufficient steps are taken to verify that such risk assessments are being conducted, procedures complied with and staff competency is assessed.

Known vulnerabilities may require specific controls.

In cases such as this one, where a client is particularly vulnerable, NDIS providers should consider whether they need to implement specific risk controls for a particular client or group of clients, as ordinary practice may not sufficiently eliminate or minimise the risk.

Training must be structured and competency based.

“Buddy shifts” without documented competency assessment may be insufficient to assess the competency of staff, particularly when considering whether to allocate such staff to clients that are high needs and/or particularly vulnerable.

Plan for incidents and escalation.

NDIS providers should have clear procedures and ensure adequate training in relation to medical emergencies, including the requirement to provide first aid, relevant triggers for escalation and relevant reporting requirements. In the event of an incident, NDIS providers should ensure that they seek legal advice prior to conducting any investigation, in order to ensure that such an investigation is privileged and does not need to be disclosed to the safety regulator if requested. To support this, NDIS providers should implement a simple incident response process which outlines what a notifiable incident is and who to contact in the event of such an incident.

Should you have any queries regarding the above case, or want to ensure compliance with your WHS obligations, please contact Matthew Giles in our Employment & Safety team.