Transcript Document

Legal Risks & Management
Presented by Nevena Brown, Principal on 28 September 2012
17 July 2015
A bit about us
Meridian Lawyers:
• business and corporate advisory services
• advice/defence of disciplinary and administrative matters
Part of Guild Group – Australian company;
Guild Group has for over 45 years specialised in servicing health and care
industry professionals including dentists, child care centres, pharmacists,
aged care facilities, veterinarians and physiotherapists;
Guild Group services various aspects of your business:
• insurance – business, home, car;
• financial services – loans, financial planning
Nevena Brown
17 July 2015
Back to the basics …
-
“A Family Day Care Scheme is a network of experienced and registered educators who
provide care for other people’s children in their own homes. Educators have been carefully
selected and supervised and operate under the Education and Care Services National
Regulations” – excerpt from the NSW Family Day Care Association’s website.
-
“Family Day Care is a unique home-based child care service that enables children to grow
and learn in a small group environment with one primary carer. Educators work with no
more than five pre-school aged children and no more than seven children in total, including
school aged children and their own children at any one time. Schemes and carers
collaborate on scheme policies, marketing and promotion and together ensure that family
day care is a well known and respected child care service in their local area. This
partnership between individual care educators and scheme staff is unique to family day
care and sets it apart from nannies and other home-based carers who generally work in
isolation.” Excerpt from the Family Day Care Educators Association of NSW Inc website.
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17 July 2015
Back to the basics… (cont’d)
Who is involved
Nevena Brown
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Regulatory authorities
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Family Day Care Services/Schemes/Co-ordination units/Associations
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Family day care educators
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The children
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The children’s parents/guardians
17 July 2015
Back to the basics … (cont’d)
•
Under the relevant law Family Day Care Service (“the Service”) is the entity
which granted service approval to perform family day care services, hence is
held to be the approved provider. The family day care educators (“the
Educators”) who provide the family day care service in their own homes or
other venue are then registered with the Service.
•
Educators are self-employed and work in partnership with a local service.
Staff in the service office provide educators with a range of services
including:
1. Interviewing parents and referring families to educators with vacancies
2. Monitoring the standard of care and working to achieve accreditation
standards
3. Administering child care fee subsidies on behalf of parents
4. Providing support services such as playgroups, toy libraries, professional
development and advice.
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17 July 2015
Back to the basics … (con’td)
Family day care has been around in Australia for
over 30 years. NSW has the largest number of
educators (around 4,000) and services (121).
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17 July 2015
Your Legal Duty
Different sorts of laws apply:
1. Legislation (government made law)
•
Education and Care Services National Law and Regulations
•
the workers’ compensation legislation, the OH&S legislation
2. Common Law (Judge made law ie.tort of negligence and breach of
contract).
3. Industry imposed standards.
Nevena Brown
27 September 2012
Common Law
Common Law
• Public liability – occupier.
• Professional indemnity – provider of
professional services.
17 July 2015
Common Law
•
It is settled law that a provider of education and care services to a child for reward owes
a high duty of care to that child and the child’s parents/guardians to keep that child safe
from harm.
•
It is also accepted that it is not reasonable to have a system in which children are
observed during particular activities for every single moment of time as this may
damage the educator/pupil relationship by removing even the slightest element of trust,
it is likely to retard the development of the responsibility in children and it is likely to call
for a great increase in the number of supervising educators and in the cost of providing
them (“Roman Catholic Church v. Hadba [2005] HCA 31”).
•
A Presiding Judge will look to the legislation and standards and apply them to the
relevant circumstances. However, if it is found that the educator (and possibly the
service) has breached the duty of care and someone suffers damage, the injured party
can seek compensation in relation to the injuries and other resultant loss.
17 July 2015
The National Quality Framework
• From 1 January 2012, a National Quality Framework (“NQF”) was established to
apply to most long day care, family day care, pre-school and outside school
hours care services with the aim to raise quality and drive continuous
improvement in consistency and consistency in education and care specialising a
legislative framework, a quality standard, a quality rating and assessment
process and a new national body called the Australian Children’s Education and
Care Quality Authority (“ACECQA”).
• The NQF is implemented by the application of uniform legislation being the Law
and Regulations
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27 Septemer 2012
The National Quality Framework ( Cont’d)
•
The regulatory authority in each State and Territory will be primarily
responsible for the administration of the NQF, including improving monitoring
quality assessing services. In NSW this is the Department of Education and
Communities (“Department”).
•
The National Quality Standard is divided into seven areas:
1. Educational program and practice
2. Children’s health and safety
3. Physical environment
4. Staffing arrangements
5. Relationship with children
6. Collaborative partnerships with families and communities
7. Leadership and service management
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27 September 2012
The National Quality Framework ( Cont’d)
Major Changes:
Now both accreditation and the regulation processes are carried out by
the various State and Territory regulatory departments (previously
accreditation processes were dealt with at a Federal level but the
regulation process on a State level)
And
Educators can be directly prosecuted for Regulation breaches
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27 September 2012
The National Quality Rating (Cont’d)
- Assessment and Rating
• National Quality Standard is implemented by the Regulations and under
the standard there are:
1. A self assessment by the services of their performance of delivery of
quality education and care.
2. A requirement to plan future improvements to the services via a
Quality Improvement Plan (“QIP”).
3. An external assessment of the service by the Department, which will
award a Service Rating.
•
The QIP, although it must be prepared, need only be sent to the
Department when requested.
•
The outcome of the external assessment by the Department
(assessment and compliance officers) is the Service Rating Award
process which commenced in June 2012. Until a service receives its
rating, the rating is “provisional – not yet assessed under the NQF”.
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27 September 2012
The National Quality Rating (Cont’d)
- Assessment and Rating
• The five quality ratings are:
1.
Excellent
2.
Exceeds national quality standard
3.
Meeting national quality standard
4.
Working towards national quality standard
5.
Significant improvement required.
• Ratings are to be published.
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27 September 2012
The National Quality Rating (Cont’d)
- Enforcement and Compliance
• Under national law, the Department has arranged different
mechanisms to use for ensuring services comply with the National
Quality Standard.
• The first mechanism is the award of a rating system.
• The next mechanism is a compliance power. The regulation sets
out certain offences that can be levied against the service and the
individual educator. The department’s compliance powers range
from issuing compliance, infringement and prohibition notices and
prosecution.
• Many of the offences are similar to previous legislation. However
there are some additional ones.
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27 September 2012
Here we go – Part 6 of the National Law
• Approved provider must ensure the Service engages qualified persons
as family day care co-ordinators to assist the operation of the Service
and to support, monitor and train the Educators (penalty
$5000/$25,000);
• Approved provider must ensure that when an Educator is educating and
caring for a child, an approved provider, nominated supervisor or a
certified supervisor is available to provide support to the Educator
(includes contact by telephone) (penalty $5000/$25,000);
• An educator must ensure that any child being educated and cared for is
adequately supervised (penalty $10,000);
• An educator must not subject a child in care to any form of corporal
punishment or unreasonable discipline in the circumstances (penalty
$10,000);
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27 September 2012
Part 6 of the National Law cont.
• An educator must ensure every reasonable precaution is taken to
protect a child in care from harm and from any hazard likely to cause
injury (penalty $10,000);
• An educator must ensure that the number of children in care does not
exceed the number prescribed for this purpose (penalty $10,000);
• An educator must ensure that an unauthorised person does not remain
at the residence or venue unless under their direct supervision (penalty
$10,000);
• An educator must keep the Prescribed Documents available for
inspection by an authorised officer at the residence or venue (penalty
$4,000);
Nevena Brown
27 September 2012
But wait – there’s more....
Other offences:
•
Failure to meet minimum ratio and qualifications
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Failure to comply with the direction to exclude inappropriate persons
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Failure to keep enrolment and other documents
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Failure to comply with notices or requirements
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Failure to assist an authorised officer
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Impersonating an authorised officer
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Obstructing an authorised officer
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Hindering or obstructing the department.
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Qualifications
• An educator must have, or be actively working towards, at least an
approved Certificate III level education and care qualification and the
co-ordinator must have an approved Diploma level education and care
qualification (Regulations 127 and 128).
• Qualification requirements in Regulations 127 and 128 do not apply to
educators or co-ordinators before 1 January 2014. (Regulations 208
and 281).
17 July 2015
And now for the Regulations..
•
It is an offence for an educator to provide education and care
for children whilst consuming alcohol or being affected by
alcohol or drugs (including prescription medication) so as to
impair his or her capacity to provide education and care to the
children – penalty $2,000
•
An educator must implement:
•
(a) adequate health and hygiene practices;
(b) safe practices for handling, preparing and storing food to
minimise risk to children being educated and cared for by the
educator as party of the family day care service (Regulation
77 – penalty $2,000).
An educator must ensure that children at the service:
(a) has access to safe drinking water at all times; and
(b) are offered food and beverages on a regular basis throughout
the day (Regulation 78 – penalty $2,000).
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27 Sepember 2012
Regulations Cont.
An educator who provides food or a beverage to children must ensure
that:
(a) the food or beverage provided is nutritious and adequate in
quantity; and
(b) the food or beverage provided is chosen having regard to the
dietary requirements of individual children taking into account:
i. each child’s growth and development needs; and
ii. Any specific cultural, religious or health requirements
(Regulation 79 – penalty $2,000).
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27 September 2012
And even more Regulations
•
An educator that provides food and beverages (other than water)
to children must ensure that a weekly menu –
•
is displayed at a place at the family day care residence or
approved family day care venue accessible to parents of
children being educated and cared for by the service; and
•
accurately describes the food and beverages to be
provided by the family day care educator each day
(Regulation 90 – penalty $1,000)
•
Nevena Brown
An educator must take reasonable steps to ensure that the needs
for sleep and rest of the children being educated and cared for
are met, having regard to the ages, development stages and
individual needs of the children (Regulation 81 – penalty $1,000).
27 September 2012
More Regs..
• An educator must ensure that children being educated and
cared for are provided with an environment that is free from the
use of tobacco, illicit drugs and alcohol (Regulation 82 – penalty
$2,000).
• An educator must not, while caring for children, consume alcohol
or be affected by alcohol or drugs (including prescription
medication) so as to impair his or her capacity to provide care
(Regulation 83 – penalty $2,000).
• If there is an occurrence of an infectious disease at a residence
or venue, the approved provider must ensure that a parent or
authorised emergency contact is notified of the occurrence as
soon as practicable (Regulation 88 – penalty $2,000)
• An educator must keep a first aid kit that is suitably equipped,
easily recognisable and readily accessible to adults (Regulation
89 – penalty $2,000)
Nevena Brown
27 September 2012
You guessed it..
• An educator must ensure that medication is not administration to a
child unless the administration is authorised and administered in
accordance with Regulation 95 or 96 (Regulation 93 – penalty
$2,000);
• An educator must ensure that a child in care does not leave the
residence or venue except in accordance with subparagraph (4)
(Regulation 99 – penalty $2,000);
• An educator must carry out a risk assessment in accordance with
Regulation 101 (includes consideration of proposed routes, water
hazards, transport, proposed activities and items to be taken) before
written authorisation is sought under regulation 102 (from a parent or
one with authority – specific details to be included) for an excursion
(Regulation 100 – penalty $2,000);
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How many???
•
•
An educator must not educate and care for more than seven children in a family day
care residence or approved family day care venue at any one time. In determining the
number of children for this purpose:
1.
No more than four can be pre-school age or under; and
2.
The educator’s own children and any other children at the residence are to be
taken into account if those children are under 13 years of age and there is no other
adult present in caring for the children.
No more than seven children can be educated and cared at any one time. (This does
not apply to children visiting at family day care residence or an approved family day
care venue as part of an excursion). Note the approved provider can approve a greater
number if all the children are siblings in the same family or a child is determined to be
in need of protection under a child protection law and the educator is determined to be
the best person to educate and care for the child or the residence or venue is in a rural
or remote area and no alternative education and care service is available. (Reg 124)
17 July 2015
Documents
• An educator must provide all documents which are deemed to be
“prescribed enrolment and other documents” (under Regulation 171) to
the approved provider of the family day care service on seeking to be
engaged or registered. (Regulation 179).
• An educator must keep evidence of their current public liability
insurance at the family day care residence or venue and must make it
available for inspection by the regulatory authority or authorised officer
under the law. (Regulation 180).
• An educator must ensure that information kept in a record under the
regulations is not divulged or communicated directly or indirecly to
another person other than in accordance with specific exemptions.
(Regulation 182 – penalty $2,000).
• An educator must keep an incident, injury, trauma and illness record in
accordance with Regulation 87.
17 July 2015
Cont’d.
• An educator must keep a record of attendance that records the full
name of each child being cared for and records the date and time each
child arrives and departs and is signed by the person who delivers the
child, if the signature of the person who delivers the child cannot
reasonably be obtained, the family day care educator. (Regulation
159).
• An educator must keep an enrolment record of each child which
includes information as set out in Regulation 160(3) and includes
emergency contact details and people who are authorised to consent to
medical treatment or to authorise the administration of medication and
issues such as cultural background and special considerations for the
child.
• Educators must keep a medication record for children in care (details of
which are set out in subparagraph 3) (Regulation 92);
17 July 2015
Regulations for the Approved Provider ..
• Emergency and evacuation procedures (Regulation 97)
• Part 4.3 deals with the Physical Environment of the area where
children receive care, eg fencing, safe, clean and in good repair
furniture; toilet and hygiene facilities; ventilation and natural
light; experience of natural environment (including adequate
shaded areas); nappy change facilities and design and
maintenance of the premises that facilitates supervision of
children, having a regard to maintain the rights and dignity of the
children.
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27 September 2012
Cont.
• An approved provider must conduct an assessment (including a
risk assessment) of each residence and approved family day
care venue of the service –
1. Before education and care is provided to children at the
residence or venue as part of the service; and
2. At least annually
to ensure that the health, safety and wellbeing of children being
educated and cared for by the service are protected.
• In the assessment, the matters to be considered are:
1. those set out in Division 1 and Regulation 117;
2. the suitability of the residence (and areas within the
residence) or venue according to the number, ages and
abilities of children attending or likely to attend, the
residence or venue;
Nevena Brown
27 September 2012
But wait there’s more
3.
The suitability of nappy change arrangements for children
attending or likely to attend, who wear nappies;
4.
The existence of any water hazards, water features or
swimming pool at or near the residence or venue and the
risk posed by any animals at the residence or venue.
(Regulation 116 – penalty $2,000).
• The approved provider must require each educator to advise the
service of
(a) any proposed renovations to the residence or venue;
(b) any changes relating to the residence or venue affecting any of
the matters for that above;
(c) any other changes to the residence or venue that will affect the
education and care provided to children of the service.
Nevena Brown
27 September 2012
More obligations on the approved
provider..
• An approved provider must ensure that any glazed area (that is
accessible to children and is 0.75 metres or less above floor level) is
glazed with safety glass if the Building Code of Australia requires this or,
in any other case, treated with a product that prevents glass from
shattering if broken or guarded by bars that prevent a child from striking
or falling against the glass (Regulation 117).
• An approved provider must ensure that any educator and any family
day care educator assistant engaged by or registered with the service
has attained the age of 18 years (Regulation 119 – penalty $1,000).
• An approved provider must take all reasonable steps to ensure that a
record is kept of all visitors to a family day care residence or approved
family day care venue while children are being educated and cared for.
(The educator must keep such a record as well). The record must
include the signature of a visitor and time of arrival and departure.
(Regulation 165).
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27 September 2012
Training & assistance
• The service must ensure that each educator and assistant engaged
by or registered with the service:
(a) holds a current approved first aid qualification; and
(b) has undertaken current approved anaphylaxis management
training; and
(c) has undertaken current approved emergency asthma
management training (regulation 136 – penalty $2,000 – note
the same person can hold one or more of these qualifications).
• A service may approve a person to assist an educator in providing
education and care. Such assistance may be provided
(a) in the absence of the educator, transporting a child between the
family day care residence or approved family day care venue
and a school or another education or care service or children’s
service or the child’s home;
17 July 2015
Cont’d
(b) in the absence of the educator in emergency situations, including when
the educator requires urgent medical care or treatment;
(c) in the educator’s absence to attend an appointment (other than a
regular appointment) if the absence is for less than four hours, the
service has approved that absence and notice of that absence has
been given to the parents of that child;
(d) while the educator is educating and caring for children as part of a
service.
• Such approval cannot be provided unless the educator provides a
written consent of a parent of each child being educated to the use of
the assistant.
• Regulation 163 sets out that assistants must be fit and proper persons
and over the age of 18 years. It provides guidance as to how the
educators are to make such an assessment. (Penalty $2,000).
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Register of Educators
• The register of educators must include the following information:
(a)
full name and address and date of birth;
(b)
Contact details;
(c)
Address of residence of approved family day care educator where
the education and care will be provided (with a statement as to if
it’s a residence or venue);
(d)
Date educator was engaged by or registered;
(e)
When applicable, date the educator ceased to be engaged or
registered with the service, for the period of three years following
that date;
(f)
The days and hours the educator will usually be providing care;
(g)
If the educator is an approved provider, then approved provider
number and date granted;
17 July 2015
Cont’d.
(h) Regarding the certified supervisor the number of the Supervisor Certificate and
date granted;
(i)
Evidence of relevant qualifications of educator and/or that the educator is actively
working towards the qualification;
(j)
Evidence the educator has completed current approved first aid training, current
approved anaphylaxis management training and current approved emergency
accident management training;
(k) Evidence of any other training completed by educator where the educator will be
caring in the jurisdiction with a working with children law or a working with
vulnerable people law, a record of the identifying number of the check conducted
or card issued under that law and expiry;
(l)
For each child educated and cared for by the educator, the child’s name and date
of birth and the days and hours that the educator usually provides care for that
child;
17 July 2015
Cont’d
(m) If provided in a residence, the full names and dates of birth of all
persons aged 18 years and over who normally reside at the family
day care residence and the full names and dates of birth of all
children aged under 18 years who normally reside at the family
day care residence;
(n) A record of the identifying number of the working with children
check, working with children card, working with vulnerable people
check or criminal history record check, or teacher registration of
each person applicable, date of expire of that card and the date it
was sighted by the approved provider or nominated supervisor of
the service. (Regulation 153).
•
Regulation 154 sets out the records that must be maintained of staff, of
co-ordinators and assistants approved by the service. The regulation
sets out what information is required for assistants and the names of
the educational leader, nominated supervisor, volunteers and students.
17 July 2015
Health information
• Health information is to be kept in the enrolment record for each child
and includes
•
the name, address and phone number of the registered medical
practitioner or service,
•
Medicare number if available,
•
details of any specific health care needs of the child, including any
medical conditions and allergies (including if the child has been
diagnosed as a risk of anaphylaxis) and any medical management
plan, anaphylaxis medical management plan or risk minimisation
plan.
•
details of dietary restrictions;
•
the immunisation status of the child and if the educator has sighted
a health record for the child, a notation to that effect.
17 July 2015
Policies and Procedures
• The approved provider must ensure the service has in place standard
policies and procedures as set out in Regulation 168. In addition, the
service must have policies and procedures in relation to the following:
(a) assessment and approval and reassessment of approved family day
care venues and residences;
(b) engagement or registration of educators;
(c) keeping of a register of educators under the regulations;
(d) monitoring, support and supervision of educators, including how the
service will manage educators at remote locations;
17 July 2015
Cont’d.
(e) Assessment of family day care educators, assistants and persons
residing at family day care residences under the regulations;
(f) Visitors to family day care residences and venues while care is
provided;
(g) The provision of information, assistance and training to family day
care educators;
(h) The engagement and registration of family day care educator
assistants. (Regulation 169 – penalty $1,000).
17 July 2015
Cont’d
• The approved provider must ensure these policies are readily
accessible and are available for inspection at the education and care
service premises at all times to the nominated supervisor, staff
members of, volunteers at and family day care educators. (Regulation
171 – penalty $1,000).
17 July 2015
Other Legislation
• OH&S Legislation
• Workers’ compensation legislation
• Criminal Code
17 July 2015
Managing Risks
It is all too hard!!! … Strategies to help:
i.
become familiar with the Law and the Regulations which impose
obligations on the educator and/or the service;
ii.
have clear position descriptions so new and existing employees are
certain of their role and obligation to comply with the NQF;
iii.
generate the policies and procedures that are mandatory under the
Regulations and ensure that policies and procedures to be
implemented by educators are completed.
iv.
as the service must ensure that the educators are following policies
and procedures, set up a written policy on the education of
educators, such as to how to ensure each educator knows,
understands and complies with the Regulations and document
such education.
17 July 2015
Managing Risks (Cont’d)
iv. ensure that the service is made aware of any particular issues
regarding the children in care such as medical conditions and the
like that an appropriate medical treatment plan (with input from the
parents and any medical practitioner) is generated in writing and
that the educator has a copy of the plan and further, understands
the plan.
v. Communication, communication, communication … is the best
prevention of any grievances or claims.
iv. Document, document, document… all policies, procedures,
assessments, visits, communication of any issues/breaches,
specific child issues… Remember: no documents, no defence
vi. If there is a complaint, provide sincere, compassionate and
appropriate responses (without any admissions) and seek guidance
from the Association and your insurer. Notify relevant authorities.
17 July 2015
Case Studies
Sally is left unsupervised in the TV room. The educator, Jean, knows that
the wheel on the TV table is unstable. Jean has been at her husband to fix
the unstable wheel for over a month. Sally is jumping up and down to the
Wiggles when she touches the TV and causes the unstable wheel to
break. The TV falls on Sally’s foot causing a fracture. A Presiding Judge
will find that Jean breached her duty of care to Sally and she would be
ordered to pay compensation (which of course should be met under her
liability insurance policy).
Other actual claims
Nevena Brown
27 September 2012
Questions and (hopefully) answers
Nevena Brown
27 September 2012