What is a notification?
Disability workers or employers can tell us about a concern that a disability worker may be putting safety at risk, this is called a ‘notification’.
Under the Disability Service Safeguards Act 2018 (Vic), disability workers and employers must notify the Commission if they believe that a worker has engaged in certain types of misconduct.
This part of the Disability Worker Regulation Scheme helps make the Victorian Disability Worker Commission aware of potential risks to disability service users, so we can better prevent and protect people with disability from harm.
What type of conduct must be notified?
Four types of conduct must be notified to the Commission:
- practising as a disability worker while intoxicated by alcohol or drugs,
- engaging in sexual misconduct while practising as a disability worker,
- placing the public at risk of harm because the disability worker has an impairment that detrimentally affects (or is likely to affect), the disability worker's capacity to practise as a disability worker, or
- placing the public at risk of harm because the disability worker practised, or is practising, as a disability worker in a manner that constitutes a significant departure from accepted professional standards.
A notification must be made when a disability worker or employer reasonably believes that a disability worker has engaged in notifiable conduct.
What is reasonable belief?
To form a ‘reasonable belief’ that a disability worker engaged in notifiable conduct, you need direct knowledge of the incident or behaviour that led to a concern. This should be more than suspicion. However, ‘reasonable belief’ does not require certainty. You might directly observe the incident or behaviour or have a report from a reliable source that directly experienced or observed the conduct.
What is intoxication while practising?
The word ‘intoxicated’ has the ordinary meaning of ‘under the influence of alcohol or drugs’. ‘Drugs’ include illicit drugs, prescribed and over-the-counter medicines. The key issue is that the disability worker is practising while intoxicated. You do not need to report if the disability worker is intoxicated in their private life (when not practising), unless the intoxication triggers a reasonable belief that behaviour that constitutes another type of notifiable conduct has occurred.
What is sexual misconduct?
Sexual misconduct is a broad term encompassing any unwelcome acts or behaviours that are experienced by the person with disability as being sexual in nature. This includes physical and verbal actions committed without consent or by force, intimidation, coercion or manipulation. It includes sexual violence and exploitation but is not limited to actions which constitute a criminal offence. It includes when a disability worker has at any time, including outside of work hours:
- engaged in sexual activity with a service user, whether or not that person has given consent
- made sexual remarks about a service user
- touched a service user in a sexual way
- engaged in sexual behaviour in front of a service user.
There is frequently a power imbalance between a disability worker and a service user. When delivering services, workers are expected to adhere to the highest standards of behaviour, be respectful and take every action to make sure people with disability are safe. This means having professional boundaries in place for relationships between staff and people with disability, and preventing and responding to any inappropriate behaviours by anyone towards a person with disability, including sexual misconduct.
If a disability worker engages in sexual activity with someone who was previously a service user, this may also be sexual misconduct. Whether this constitutes sexual misconduct will depend on the circumstances.
Sexual misconduct will not include sexual contact that is appropriately provided as part of a purchased service by an approved sexual service provider and to which a service user consents.
What is impairment?
Disability workers and employers must notify the Victorian Disability Worker Commission if a disability worker placed, or may place the public at risk of harm, because the disability worker has an impairment that detrimentally affects (or is likely to detrimentally affect) the disability worker’s capacity to practise.
‘Impairment’ has a broad meaning, covering both physical and psychological conditions. When making a mandatory notification, the question is whether the impairment detrimentally affects, or is likely to detrimentally affect, the worker’s capacity to practice. You do not need to notify the Victorian Disability Worker Commission if the disability worker has effective controls to manage the impairment.
What is a significant departure from professional standards?
Disability workers and employers must notify the Victorian Disability Worker Commission if a disability worker placed, or may place the public at risk of harm, because the disability worker practised, or is practising, in a manner that constitutes a significant departure from accepted professional standards.
‘Accepted professional standards’ includes reference to documents like the Code of Conduct. It covers both practice, and professional behaviour.
A significant departure is serious (not slight or moderate) and would be obvious to any reasonable person who practises as a disability worker.
Who has to notify?
Disability workers and disability providers in Victoria must notify the Victorian Disability Worker Commission if they form a reasonable belief that another disability worker has engaged in notifiable conduct.
An employer of a disability worker means a person that employs the disability worker under a contract of employment or a contract for services.
Mandatory notification requirements do not apply to employers of a disability worker if the employer receives disability services from the disability worker. This means that a person with disability who directly employs a disability worker (who could be a family member) is not required to make a mandatory notification to the Commission.
If you are a disability worker and you do not make a notification to the Commission when required, this may constitute behaviour for which health, conduct or performance actions may be taken against you.
Under what circumstances?
You must notify the Victorian Disability Worker Commission if you have a reasonable belief that one of the instances of notifiable conduct has occurred.
If you are a disability worker, you are not required to make a mandatory notification in the following circumstances:
- You know, or reasonably believe, that the Victorian Disability Worker Commission has already been notified.
- You are employed or engaged by an insurer, the insurer provides professional indemnity insurance in relation to a disability worker who is the subject of the notification and you formed the reasonable belief as a result of a disclosure made by a person to you in the course of a legal proceeding or providing legal advice arising from the insurance policy.
When must I notify?
You must notify the Victorian Disability Worker Commission as soon as practicable after you form a reasonable belief that behaviour that constitutes notifiable conduct has occurred. The Disability Service Safeguards Act 2018 does not define as soon as practicable. The Commission expects you to not delay making a notification once you have formed a reasonable belief.
How do I notify?
You can make a notification via our notifications webform or by calling us.
I have already told another organisation about my concerns. Do I have to notify the Commission?
You must notify the Victorian Disability Worker Commission if you have a reasonable belief that a disability worker has behaved in a way that constitutes notifiable conduct. This applies even if you have told another body about your concerns.
If a notification relates to a registered NDIS provider, the Commission must refer the matter to the NDIS Quality and Safeguards Commission.
What happens when I make a notification?
The Victorian Disability Worker Commission must consider a notification within 60 days of receiving it.
The Victorian Disability Worker Commission can take a range of actions after considering a notification. These include:
- counselling the disability worker
- referring the notification to an appropriate entity
- requiring the disability worker (if registered after 1 July 2021) to undergo a performance or health assessment
- requiring a student to undergo a health assessment
- investigating the disability worker
- taking action regarding the worker, such as issuing a prohibition order
- referring the matter to the NDIS Quality and Safeguards Commission, or another entity
- deciding to take no further action.
Assistance to notifiers
The Victorian Disability Worker Commission will provide reasonable assistance to individuals who wish to make a notification about a disability worker. This may include assisting the individual to make the notification in writing, or to clarify the nature of the notification.
The law protects anyone who makes a notification in good faith. The Disability Service Safeguards Act 2018 (Vic) provides that a person is not liable for any loss, damage or injury suffered by another person because the notification was made.