‘Duty of Care’ and ‘Dignity of Risk’ are often seen as a balancing act that aged care providers must strive to meet. Often these terms raise concerns about what is expected of providers and how to support older people. Let’s unpack these terms and see what they mean in practice, particularly in relation to how these concepts apply to spirituality and pastoral care.
What is meant by Duty of Care?
Duty of Care is a legal obligation under common law to avoid acts or omissions, which could be reasonably foreseen to injure or harm other people. This means that providers must anticipate risks for older people and take care to prevent them from coming to harm. Aged Care providers have a duty of care to those in their care.
Although the concept of ‘Duty of Care’ already exists in common law, the Royal Commission into Aged Care Quality and Safety found it necessary to reinforce this concept as reflected in Recommendation 14. The Government have accepted this recommendation.
This Recommendation states that the new Act for aged care should include: “…a general, positive and non-delegable statutory duty on any approved provider to ensure that the personal care or nursing care they provide is of high quality and safe so far as is reasonable, having regard to:
- the wishes of any person for whom the provider provides, or is engaged to provide, that care
- any reasonably foreseeable risks to any person to whom the provider provides, or is engaged to provide, that care, and
- any other relevant circumstances.”
This reinforces the fact that aged care providers have a duty of care to provide high quality and safe care. Recommendation 14 makes it clear that a provider is to exercise its duty of care with regards to the wishes of the person. This leads us to the concept of ‘Dignity of Risk’.
What is meant by ‘Dignity of Risk’?
The definition of ‘Dignity of Risk’ is reflected in the glossary of the Commission’s Guidance and Resources document: The concept that all adults have the right to make decisions that affect their lives and to have those decisions respected, even if there is some risk to themselves. This means that aged care providers are required to support consumers in making their own choices and exercising autonomy, whilst assisting those consumers in understanding and managing the risks of those choices.
Life is inherently risky for every living being. Older people are not exempt from the risks that life brings and nor should they be. Emeritus Professor Rhonda Nay said “Life itself is a risk. We cannot eliminate risk without eliminating the person”.
Central to the Aged Care Quality Standards is Standard 1(1) “I am treated with dignity and respect, and can maintain my identity. I can make informed choices about my care and services, and live the life I choose” (emphasis added by author). There are risks in making choices and living a life for all of us, including older people.
The quote by Benjamin Lee Whorf that “Language shapes the way we think, and determines what we can think about” is so fitting for dignity of risk. Language such as: ‘not/allowed’, ‘permission’ and “Mx X said I can’t do it…” rings loudly of paternalism, power imbalance and control. Older people are not children, they are adults who have rights, preferences, needs, wants and hopes that should be upheld where possible.
The risks of old age are sadly confronting
A study in 2018 examined premature death of older people in residential aged care. Of 21,672 deaths of nursing home residents, the most frequent mechanisms of death were falls (2,679 cases, 81.5%) and choking (261 cases, 7.9%). Sadly, the third leading cause of premature death was suicide (146 cases, 4.4%). Behind these statistics are individuals whose lives have been cut short before their time. This is a reminder of our duty of care and the importance of dignity of risk.
Human rights are universal in that all people in the world are entitled to them, and these rights are inherent to the dignity of every human. This holds for people living with dementia and their family caregivers. Their rights however, are often overlooked or even deliberately trampled. This can have serious impacts on a person’s quality of life.
Trying to wrap older people in cottonwool is not an answer. The emotional, spiritual, and psychological impacts of denying a person’s agency to make decisions also creates risks. Suicides are the sharp reality of those who have given up on life. This is sober reminder that life is fragile and a person’s choices and capacity to live the life they want, are very important and should not easily be brushed aside.
Older people do not have unlimited rights either. For example: if a person has acute swallowing difficulties and wants to eat a pizza, clearly no aged care worker should be put in a position of giving them a pizza that will cause death. This is an extreme example, to illustrate rights are not unlimited, especially when they impact on other people.
In my travels around residential aged care and, to a lesser degree, in home care services, I have witnessed many well-meaning, but misguided attempts to dissuade, prevent, block and deny older people their choices. These decisions can go to the very heart of a person’s spiritual being as they can impact on identity, agency, what gives meaning and purpose and how the individual experiences life. There are a range of factors as to why management and staff deny older people taking risks:
- fear of litigation,
- maintaining power
- failure to see the importance of the person exercising their choices
- paternalism that purports to ‘know best’
- lack of staff
- trying to keep family/carers on-side
- and a lack of energy and time to work through the issues
Where it is done well, I have almost always seen an open dialogue about how the older person’s needs, choices and preferences can be met whilst reducing the risk and managing the provider’s duty of care. This requires a culture of respecting the choices, preferences and rights of older people to live the life they choose.
How do these concepts apply to the area of spirituality and pastoral care?
Situations of dignity of risk can directly be seen to impact on spirituality and pastoral care. An example is where an older person changes their life-long beliefs. This could be taking up of a faith or religion in later life when they have previously been anti-religion. Conversely, it can be rejecting a life-long faith or religion in later life. Often family or carers will object to the involvement of a third party that they believe may be part of this radical departure from lifelong beliefs. There could be a belief the third party is a moral risk to the older person because they lack the capacity to make decisions. What if the older person wants this change and the family or carer does not? Whose rights are upheld here?
The Role of Leaders and Governing Bodies
The governing body of an organisation have a key role in providing leadership regarding dignity of risk as reflected in the Aged Care Quality Standards: Standard 8 (1) I am confident the organisation is well run. I can partner in improving the delivery of care and services (emphasis added by author). This requirement reflects a partnership, implying equality, collaboration, and agency by both parties to engage in the improvement process. It also implies that a well-run organisation is one where this partnership exists. There is no room in Requirement 8(1) for the organisation to ‘know what is best’ and make decisions for another person.
What can spiritual care practitioners do to uphold dignity of risk?
There are some specific steps that providers can take that ensure dignity of risk is upheld, at the same time as managing duty of care. These steps require a culture of respect for older people’s rights and a willingness to work through a process. In the Leaders Network meeting, we will work through a step-by-step approach to balancing rights and risk in decision-making. We will also cover aspects such as impediments to dignity of risk and how to positively influence them to reframe their views?
Taking managed risks is a fundamental part of being human and has the potential to enrich the lives of carers and the cared for alike.
 Aged Care Quality and Safety Commission 2018, Guidance and Resources for Providers to support the Aged Care Quality Standards p.193.
 Rhonda Nay, Professor of Gerontic Medicine at Latrobe University, 2002. Accessed from: https://www.linkedin.com/pulse/dignity-risk-people-dementia-dr-christopher-williams
 Ibrahim JE, Ranson DL, Bugeja L. Premature deaths of nursing home residents: an epidemiological analysis. Med J Aust. 2018 Feb 19;208(3):143. doi: 10.5694/mja17.00695. PMID: 29553694.
Elizabeth Pringle, Improvement Matters Pty Ltd