Legal and Ethical Considerations

In Australia the provision of services and support to vulnerable people and communities is highly regulated. There is a broad range of legislation that applies to the community services sector and, as a community services worker, particularly as a supervisor, you will play a key role in ensuring that relevant legislation is adhered to.

Legal and Ethical Issues and Your Work Practices

The table below shows you some legal and ethical topic ideas to consider, alongside suggestions for where you can access information and how this information might affect your work practices.

Ethical principles govern how we conduct ourselves. These principles are adopted by individuals, groups and professions to guide how decisions are made, how professionals interact with others and how professionals work.

A code of ethics is a statement developed by an organisation, group or professional association that sets down expectations of how its people work with its clients. In community services, a code of ethics is an important tool in ensuring that the people that we work with have their safety and wellbeing protected.

Some agencies will develop their own code of ethics. Others will work with the Australian Association of Social Workers’ code of ethics or the Australian Community Workers Association’s ethics and good practice guide.

Australian Association of Social Workers (AASW) Ethics and Practice Guidelines

The AASW developed and published the Practice Standards 2023 which replace the Practice Standards 2013. The new practice Standards 2023 align with the Code of Ethics 2020 and reflect the core elements of all workers’ practice regardless their role in the community service organisations.

AASW also developed resources for social workers to support them with common issues arising in day-today activities, and ethics and practice guidelines.

The guidelines refer to the following aspects of community work:

• mandatory reporting
• writing court reports
• consent and working with children
• case note recording
• ‘You’ve Been Served’ – responding to a subpoena
• international ethics – Australian social workers overseas

The Code of Ethics outlines the essential values andresponsibilities in social work that characterise the profession. The code provides clear explanationsof the context of social work in Australia, the context of the code,its nature and purpose, and thevalues required of those workingin social work. It providesguidance about ethicaldecision-making.

• supporting ethical practice in the workplace
• professional boundaries and dual relationships
• information management
• conflicts of interest
• social media, information and communication technologies.

AASW Practice Standards

In May 2023 the AASW published Practice Standards 2023 which aligns with Code of Ethics 2020.

The Practice Standards outlines the practice expectations of all community workers regardless their role in the community service organisation. The standards provide information about the context, aim and framework for practice.

The AASW Practice Standards are:

Standard 1 – Social workers conduct themselves according to the values, principles and guidelines ofthe AASW Code of Ethics 2020.

Standard 2 – Social workers practice in partnership with Aboriginal and Torres Strait Islander Peoples to support their priorities and aspirations.

Standard 3 – Social workers advocate for policy initiatives and approaches to practice aimed atachieving fair and equitable access for people to social, health, economic, environmental and political resources.

Standard 4 – Social workers practice respectfully and inclusively with regard to culture and diversity.

Standard 5 – Social workers practice within a professional knowledge framework informed by a critical understanding of contemporary social work theory and research.

Standard 6 – Social workers make professional decisions on the basis of a holistic assessment of the needs, strengths, goals and preferences of people.

Standard 7 – Social workers actively contributeto strengthening and promoting the identity and standing of the profession.

Standard 8 – Social workers build and strengthen their practice through regular structured supervision from social work qualified supervisors.

Standard 9 – Social workers monitor their skills, knowledge, and expertise to maintain, improve and broaden their professional development.

ACWA Code of Ethics

The ethical principles that the AASW Code of Ethics defines are:

• respect for persons
• social justice
• professional integrity.

In reference to ethical dilemmas that may occur in community work, AASW Code of Ethics states that social workers must be aware of their own biasesand beliefs, and of professional values when making judgements. To demonstrate ethical decision-making social workers must be able to:

• articulate their decision-making process
• demonstrate clearly the factors considered
• provide justifications to make themselves accountable for their decisions.

The AASW Code of Ethics also outlines general ethical responsibilities classified in six areas:

1. cultural safety and sensitivity
2. commitment to social justice and human rights
3. social work service and propriety
4. professional competence
5. conflicts-of-interest
6. responsibilities to the profession.

Standards for Government-Funded Organisations

Organisations funded by federal, state and territory governments will have to abide by standards that ensure financial accountability to taxpayers, and for the provision of quality services. For example, the Victorian

Department of Health and Human Services sets the following standards at the department’s website.

1. Empowerment
   People’s rights are promote and upheld.
2. Access and engagement
   People's right to access transparent, equitable and integrated services is promoted and upheld. 
3. Wellbeing
   People’s right to wellbeing and safety is promoted and upheld. 
4. Participation
   People’s right to choice, decision-making and to activley participate as a valued member of their chosen community is promoted and upheld. 

^{Department of Human Services Victoria. (n.d.).Human services standards.
Retrieved September 25, 2020}

Principles of Ethical Decision-Making

In your role as a worker and as a supervisor, you will be faced with issues that require you to make decisions using an ethical framework. This is especially true when balancing your organisation’s duty of care and the right of the personyou are working with to make their own choices. Ethical questions will also arise when you are trying to balance the interests of the person with those of another.

There are some strategies that you can use to assist you in making ethical decisions:

• ensure you have all the needed information to make a decision
• consult your organisation’ s code of ethics, policies and procedures
• seek advice
• ensure that your decision-making process follows basic human rights
• be open and honest in your decision-making process (and ensureconfidentiality)
• document decisions and their rationales
• role model ethical behaviour and decision-making
• be accountable.

Tools for Ethical Decision-Making
You can use PLUS to make decisions or to evaluate how ethical a range is. There are four measures in PLUS:

If your answer is no to any of these questions, you should reconsider or seek further advice.

Case Study

Lindsay has recently been appointed as a supervisor in a unit caring for adults with acquired brain injuries. The team of carers has been relatively stable for almost two years and the roster has been in place for approximately eighteen months. The roster gave priority for weekends off to two members of the team withyoung children. One member of the team that Lindsay oversees has approached her to ask if the roster could be changed to facilitate a more equal spread of weekends off.

Australia has strong privacy laws that must be upheld by any organisation that gathers and retains private and confidential information about their clients.

Privacy

In the course of a day, in many organisations, a vast amount of personal information is exchanged between staff about clients. The data might relate to employment details, spending habits, online viewing habits, income, taxation, health, business interactions, banking, sporting clubs, dating, identity and so on. The list is almost endless. And with the advent of information technology, it is easy to collect, store, manipulate, access and share this information with others.

Private information is a commodity so there are serious implications for workers and for organisations when it comesto exchanging and using other people’s personal details. Legislation has been developed to protect individuals and to help us each have control over our own information. There are also privacy standards, which are principles that guideorganisations in how information is used.

What is Personal Information?

Personal information is information about an individual that identifies them or allows for their identity to be easily worked out. Personal information includes a person’s name, home address, mailing address, email address, marital status, financial information, medical information, ethnicity and religion.

The Australian Privacy Principles

There are 13 Australian Privacy Principles (APPs), and their purpose is to govern standards, rights and
obligations regarding:

• the collection, use and disclosure of personalinformation
• an organisation or agency’s governance and accountability
• integrity and correction of personal information
• the rights of individuals to access their personal information.

The APPs give organisations flexibility to adapt how they handle personal information to their business models and the needs of individuals. This is particularly important to how you will gather, store and access the private and personal information of your clients.

The principles determine how you are able to disclose or share information you have gathered about your clients when working with other organisations, government departments and legal authorities.

The AAPs require you to ensure that clients understand what information you are gathering, why you are gathering it, and how you will use it and disclose it. Your clients have the right to expect that you will treat their personal information with care and respect their privacy.

Any breach of an APP is a serious offence and can lead to regulatory action and penalties.

All organisations, especially ones that accessgovernment funding to provide services, should have a privacy policy that outlines and draws on the APPs.

A good example to review is the privacy policy of the Australian Government’s Department of Social Services.

Privacy Act 1988

The Privacy Act 1988 is Australian legislation that regulates the way organisations handle individuals’ personal information. This includes how information is collected, stored, distributed, used, accessed and corrected. The Act includes the 13 APPs.

Implications

What are the implications of the APPs and the Privacy Act 1988 to the community services sector? How might they affect your day-to-day practice? This will depend on which sector of the industry you work in and will vary widely, depending on whether you work in the private or public sector and the size of your organisation.

However, assuming that you are working in an organisation that is required to comply with the APPs (the great majority of the sector), your obligations to others’ privacy are likely to have a significant impact on your workplace.

Here are some tips for ensuring that you and your organisation are complying with the APPs in the Privacy Act 1988.

• Ensure you understand the APPs.
• Have a privacy plan.
• If you are collecting and storing personal information, understand why you are collecting it and what you will be using it for.
• Regularly review your privacy plan and ensure it continues to comply with legislation.
• Ensure you have adequate security on all IT systems (physical components, network, firewall, virus
• protection and so on).
• Do not collect and store personal information that you have no use for.
• Discuss privacy obligations in meetings, performanceplanning, training and when planning new projects.
• Have a privacy champion; that is, make someonewithin the organisation responsible for privacy.
• Have a complaints process for privacy complaints and monitor complaints.
• Be open and honest with all individuals about theirpersonal information (remember that children and  have a right to know about all aspects of their care); do not hide that you are collecting it or trick someone into giving you their personal information.
• Remember that you have a personal obligation to comply with legislation.
• Dispose of personal information securely (do not use a normal rubbish bin).
• Limit access to data to only those who need it.
• Be aware of your organisation’s policies and procedures and ensure that you follow them.
• Think about more than just keeping data safe – keeping data up-to-date, relevant and complete is also important.

The concept of informed consent has come from the medical community. Basically, informed consent is permission granted by a person or advocate to undergo a treatment with full knowledge of the consequences, risks and benefits.

Informed consent is a cornerstone of person-centred practice. When the client is at the centre of decision-making about the care and services they access, they must be fully aware of the risks and benefits that may or can arise before they consent to access.

For your clients to be able to give informed consent, you must provide them with information about their options that is free of bias and easily understood. This means that you may need to provide information:

• in languages other than English
• in plain English using descriptive pictures
• through a translator such as an AUSLAN interpreter.

Informed consent needs to be voluntary. You cannot coerce a person into consenting to a service or type of care, and a client’s family or support network cannot coerce the client into consenting either.

Your organisation may require you to gain consent from a client in writing. Review your organisation’s policies on this matter to ensure you are following the organisation’s processes correctly.

Duty of care is a legal obligation that requires organisations and practitioners to ensure the safety and wellbeing of those in their care or who access their services.

Duty of care requires organisations and practitioners to take reasonable care to protect those who access support and services from harm.

The law does not define what reasonable care is. This is because reasonable care may depend on:

• your experience
• your training
• your qualifications
• the age and capacity of the person to whom you owe a duty of care
• your position within the organisation.

Supervisors are likely to have a higher duty of care than less senior members of a team.

You may also owe a duty of care to the people who you work with, visitors to your organisation, and to the families and other support network members of the people who you care for and work with.

Generally, reasonable care is determined by considering what a group of ordinary people would see as reasonable in a given situation. Ordinary people are your peers and the given situation would take into account the specific circumstances (such as your experience, training, qualifications and so on).

Although rare, you could be sued if you breach your duty of care and the person in your care is injured or dies. In most cases, your organisation will protect you from being sued but they may not offer this protection if you have:

• failed to follow your organisation’s policies and procedures
• broken the law
• clearly breached your duty of care.

In all aspects of your work in community services you must work within and meet the requirements of relevant legislation and common law principles.

These will include:

• Legislation that governs service provision within your  industry sector, such as the Disability Services Act  1986, the Aged Care Act 1997, state/territory mental  health acts, and associated service standards
• Anti-discrimination legislation, such as the Disability  Discrimination Act 1992
• Privacy legislation, such as the Privacy Act 1988
• Relevant common law principles and requirements,  including those for:
• Duty of care
• Confidentiality
• Informed consent.

Legislation Governing Service Provision

Some community services industry sectors, such as aged care, disability and mental health, have legislation that governs how services are funded and provided, and sets standards that service providers must meet.

You need to be aware of this legislation for your industry sector, and you need to meet the required service standards in all aspects of your work, including how you assess your clients’ service needs.

Duty of Care

Duty of care is a significant legal requirement based on common law. It means that, in any situation where your actions might affect other people, you must behave in ways that avoid causing reasonably foreseeable harm to others.

In the context of assessing your clients’ needs, duty of care means that you must:

• Work within your job role and within the scope of  your competency – If you undertake tasks for which  you are not qualified or do not have the requisite  skills and knowledge, you risk harming your clients. If  you carry out tasks that are not included in your job  role, your organisation may not protect you from legal  action for any harm resulting from your actions.
• Follow your organisation’s policies and procedures – Following your organisation’s policies  and procedures for assessing clients’ needs will  protect you and your clients.
• Use your common sense, be vigilant, and seek  advice if you are unsure – You are not expected to  predict risks to your clients that arise from unusual  and extraordinary situations, but you are expected  to use your common sense, be vigilant in identifying  potential risks, and seek advice from your supervisor  if you are not sure about what to do.

Case Study

Duty of care

Read the following case study and answer the questions at the end.

Simon and Jessica

Simon works in a youth crisis accommodation support program. He has completed a Certificate IV in Youth Work and some additional units in mental health. His role includes conducting intake assessments. Jessica is 16. She has a history of self-harming. She has left home because she ‘hates’ her mother’s new boyfriend. She has not attended school for several months. Jessica has been arrested twice for being found drunk in public and once for assaulting a police officer. Each time she was returned to her family home.

Simon is concerned about Jessica’s mental health and her history of self-harming and drinking, and he suspects that past trauma may be a contributing factor.

As well as the standard intake assessment the organisation uses, Simon decides to use a psychosocial assessment that is normally administered by a psychologist to assess Jessica’s mental health.

Confidentiality

Privacy and confidentiality in the context of assessing your clients’ needs requires you not to disclose information about your clients without their informed consent. This applies to sharing information verbally, electronically and in writing.

You may share or disclose confidential information without your client’s consent only in order to protect your client or another person from risk of significant harm, or when the information is formally requested by a court of law.

Your organisation must meet the standards identified in the Privacy Act 1988 for collecting, recording and storing information about clients; and for maintaining clients’ records securely. This means having policies and procedures that reflect legal and ethical requirements.

You must follow your organisation’s policies and procedures for maintaining privacy and confidentiality in all aspects of your work, including how you collect, record, store and manage information when you are assessing clients’ needs.

Case Study

Confidentiality

Read the following case study and answer the questions at the end.

Martin and Peggy

Peggy is a support worker in a supported accommodation facility for people with mental illness. Yesterday, she overheard Martin, one of the residents, asking a visitor to bring him some illegal drugs because he was feeling suicidal and wanted to get ‘high’. His visitor agreed and left before Peggy could speak to him. Peggy spent some time with Martin later that day. She asked him how he had been feeling and whether he would like to have a session with his psychologist. Martin said he was feeling fine and that he had seen his psychologist at the beginning of the week and did not need an extra session.

Peggy then went to her supervisor and told her what she had overheard Martin saying to his visitor. She also expressed her concerns about Martin’s state of mind and her feelings that Martin was covering up how depressed he felt and his suicidal thoughts.

Informed Consent

To give informed consent to something, a person must have:

• The capacity to make choices and decisions, including the capacity to understand the nature and potential consequences of giving the consent
• All the relevant information about what they are consenting to, in a form they can understand.

Consent must be freely given, without coercion, threats, persuasion, bribery or deceit.

There are two aspects of assessing clients’ needs where informed consent is required:

• Consent to assessment processes and procedures
  • This means that you must provide your client with all the information about the purpose of the assessment; how it will be conducted; the assessment methods and tools that will be used; and the potential impact of the assessment results on their situation, needs and service provision. You must also explain your role in the assessment process clearly and fully.
• Consent to how the information will be used
  • This includes providing information about who will see the results of the assessment; how this information will be recorded, stored and managed; and the client’s rights to access their assessment results and records.

Case Study

Informed Consent

Read the following case study and answer the questions at the end.

Marcie and Laura

Marcie works in a women’s refuge. She is on duty when Laura is brought in by the police. Laura’s husband has been arrested for assaulting her. Laura was taken to the emergency department at a local hospital, where she was treated for severe burns to her arms and hands, and a deep cut on her forehead. The police officers are concerned for Laura’s welfare if she returns to her home, as her husband is to appear in court in the morning and may be granted bail. This is the fourth time police have been called to violent incidents at Laura’s home in the past six months.

Marcie invites Laura into the office, where they can speak privately. She offers Laura a cup of tea and sits next to her on the sofa.

Marcie explains to Laura that she needs to carry out an intake assessment and this involves asking Laura questions about her situation, health, recent events and any issues that are concerning her. She tells Laura that this information may be disclosed to other workers in the refuge who need to know her situation so they can support and help her.

The intake assessment form consists of a set of questions and space to add comments and additional information. Marcie shows the form to Laura so that she can read it for herself.

She asks Laura if she agrees to answer the questions on the intake assessment form, and Laura says yes.

Marcie notices that Laura appears to be sleepy and a bit ‘spaced out’. She is not sure that Laura has understood everything she has said to her.

The police have told Marcie that Laura was given some strong pain medication at the emergency department and that the doctor also thought she was suffering from shock as well as the pain from her injuries. The cut on her head may have been the result of a heavy blow.

Marcie decides to collect just basic information, such as date of birth, address and next of kin; and to delay completing the full intake assessment until Laura has had a chance to rest and recover.

Ethical principles provide guidelines for how to do the right thing. They are sometimes expressed in codes of ethics and codes of practice.

Following a relevant code of ethics or code of practice in assessing clients’ needs is essential. The outcomes of an assessment can have a significant impact on the client’s life and situation, so you must conduct assessments and report their results fairly, accurately, objectively and honestly.

This means maintaining a non-judgmental attitude; avoiding bias and prejudice; being aware of stereotypes and avoiding being influenced by them; and working in collaboration with your clients, using person-centred, strengths-based approaches.