Under (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. principles of An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. and the Wrongs A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1958 (Vic), as amended by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), care providers must exercise reasonable care to prevent Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. users and others from foreseeable injury. An employee can be charged with criminal negligence where there has been a considerable degree of recklessness and disregard for consequences (s 24 Crimes Act 1958 (Vic)).
The IDPS Act (repealed), DS Act and Disability Services Act 1991 (Vic) (repealed) were intended to change the paternalistic or over-protective attitudes of some service providers by stating clearly that quality of life for people who have an intellectual disability can best be achieved when their lifestyle is the same as, or as close as possible to, the norms and patterns that are valued in the general community. The Victorian State Disability Plan reinforces this trend, as does the Charter of Human Rights and Responsibilities Act 2006 (Vic). Recent changes to the philosophy and practice of disability services provision and planning (‘person-centred planning’) emphasise the individual and their right to choose, control and guide the services they receive.
The Disability Act continues this theme (s 6(1)) and also stipulates among its principles that disability services should be provided in a way that reasonably balances safety with the right of persons who have a disability to choose to participate in activities involving a degree of risk (s 5(3)(n)). It also states that if a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option that is the least restrictive of the person as is possible in the circumstances (s 5(4)).
The NDIS Act’s general principles include:
- people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; and
- people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
Such provisions can lead to some confusion and concern on the part of care providers where they feel that there may be a high degree of risk if service users are given the opportunity to make decisions for themselves. For example, when a resident is perceived by staff as being sexually naive but has to be allowed to go out independently, staff may be concerned about the resident’s vulnerability to potential sexual abuse.
It is important for care providers to remember that An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. and the right to a lifestyle that is as close as possible to ‘normal’ are not contradictory. However, the job of supporting people who, on the one hand, have certain vulnerabilities but who, on the other hand, have all the ordinary human rights to take risks and to make mistakes is a complex one, which frequently entails difficult decisions. There are many different views of what is ‘reasonable’ and what is ‘unreasonable’; however, the principles on which current disability Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. and philosophies are based make it very clear that it is not reasonable to unnecessarily restrict a person’s right to independence.