New Disability Service Safeguards in Victoria


This article applies to organisations who provide disability services or disability services education in Victoria.

Disability Service Safeguards Act 2018 No. 38 (Vic)

The remaining provisions of the Disability Service Safeguards Act 2018 No. 38 (Vic) (the Act) commenced on 1 July 2020

A new scheme for the registration of disability workers and disability students has been established by the Act.  New offences, notification requirements and complaints procedures associated with registered workers and students have also been introduced, a summary of which is provided below.

Conciliation

The Act establishes a complaints procedure for consumers of disability services, a part of which involves a conciliation process.  Any breaches of confidentiality in relation to the conciliation process, including the disclosure of discussions or of any agreements reached, without the consent of the parties to the conciliation may result in a fine of 20 penalty units (currently $3,304.40)

Notifications

Sections 59 and 60 of the Act require disability workers and employers of disability workers to notify the Victorian Disability Worker Commission (the Commission) as soon as practicable after forming a belief that another disability worker’s conduct is notifiable.  Additionally, section 59 requires disability workers to notify the Commission where they believe a disability student has an impairment that may place the public at risk.  Failure by a worker to notify the Commission may result in action taken against the worker by the Disability Worker Registration Board (the Board).

Notifiable conduct includes conduct while working as a disability worker such as being intoxicated, engaging in sexual misconduct, having impaired capacity and failing to perform to accepted professional standards.

Disability workers and disability students are also required under the Act to notify the Board in writing of certain relevant events in relation to the worker or student themselves.  Examples of relevant events include being charged with an offence punishable by 12 months imprisonment, being convicted of an offence punishable by imprisonment and the cancellation of any authorities in relation to scheduled medicines.

Changes of name, principal place of work and contact address are also required to be notified to the Board.

Unregistered disability workers

Under the Act, unregistered disability workers are required to comply with any approved codes of conduct in relation to unregistered disability workers.  In addition, where the Commission has conducted an investigation into an unregistered disability worker and that worker has received a report from the Commission, it is an offence under section 125 of the Act for that worker to fail to provide a written response to that report.  The penalty for an offence under section 125 is 60 penalty units (currently $9,913.20).

Registrations and endorsements

Importantly, workers holding a non-practicing registration under the Act are not permitted to practice as a disability worker.  Renewals of registrations must be made prior to one month after that registration ends and practicing disability workers must undertake continuing professional development under the Act.

Appropriate professional indemnity insurance must be in place for disability workers.

Protected titles

Significantly, under the Act, only registered disability workers may either use or be referred to the following titles:

  • registered disability worker;
  • registered disability support worker;
  • registered disability practitioner.

Under section 258, an individual using a prescribed title without authority may be fined 200 penalty units (currently $33,044).  Notably, referring to an individual by a prescribed title who does not hold that title and inducing another person to believe that individual holds that title, carries a penalty of 200 penalty units (currently $33,044) for an individual and 400 penalty units (currently $66,088) for a body corporate.

Similarly, it is an offence under section 259 of the Act to make a claim about holding a type of registration or endorsement other than the type held.  The penalty of which is 200 penalty units (currently $33,044) for an individual and 400 for a body corporate (currently $66,088).

Other offences

There are a number of other offences created under the Act, as follows:

  • Section 260 – making a claim of being registered in a division of the Register other than the one the person is registered under (200 penalty units ($33,044) for an individual, 400 penalty units ($66,088) for a body corporate).
  • Section 261 – unauthorised provision of prescribed disability services (200 penalty units ($33,044) for an individual, 400 penalty units ($66,088) for a body corporate);
  • Section 262 – directing or inciting unprofessional conduct or professional misconduct (200 penalty units ($33,044) for an individual, 400 penalty units ($66,088) for a body corporate);
  • Section 266 – providing services where prohibited in another State or Territory to do so (240 penalty units ($39,652.80) or imprisonment for 2 years)
  • Section 267:
    • advertising disability services without declaring that an interim prohibition order or prohibition order is in place (240 penalty units ($39,652.80) or imprisonment for 2 years);
    • advertising inducements to use service without providing terms and conditions (30 penalty units ($4,956.60) for an individual, 60 penalty units for a body corporate ($9,913.20);
    • using testimonials about the service (30 penalty units ($4,956.60) for an individual, 60 penalty units for a body corporate ($9,913.20);
    • advertisements that encourage the indiscriminate or unnecessary use of the disability service (30 penalty units ($4,956.60) for an individual, 60 penalty units for a body corporate ($9,913.20).

Education providers

Importantly, under the Act, education providers (being universities, tertiary education institutions or institutions that provide vocational training), are required to notify the Commission where the belief is held that a disability student enrolled with the education provider has an impairment that is likely to affect that students capacity to safely undertake supervised practice.

Education providers are required to provide written notice to disability students of the student’s registration with the Board under section 197 of the Act.  Additionally, written notice must be given by an education provider to the Board within 60 days of a disability student ceasing to be enrolled in an approved program of study.

Conclusion

Disability service providers need to ensure that all relevant staff are aware of the newly commenced notification requirements and offences under the Act.  Education providers who provide approved programs of study under the Act should update reporting and notification procedures to reflect the new obligations.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au