A Deep Dive into Duty of Care and Dignity of Risk in NDIS Support

At Inclusion Tree, we believe every individual has the right to author their own story. As an NDIS provider, we are dedicated to fostering genuine inclusion and empowerment by balancing two essential principles: Duty of Care and Dignity of Risk. While these concepts form the bedrock of ethical support, misunderstandings often lead to practices that unintentionally limit autonomy and growth. This blog post clarifies these principles and shares how we achieve this balance at Inclusion Tree so we can uphold the rights and ambitions of those we support.

The Spectrum of Support: Defining the Extremes

To understand the relationship, it’s helpful to visualise a Weighing scale. On one end sits Duty of Care, and on the opposite end, Dignity of Risk. They are not enemies, but complementary forces that require careful calibration.

Duty of Care is our unbreakable legal and ethical duty. Everyone in our organisation must avoid doing anything that could harm a participant. Duty of care exists to prevent harm from services like ours and to protect people from neglect or abuse on our part. Some believe duty of care means shielding people from themselves or their mistakes, but this goes too far. The real point is to keep people safe from harm we could cause. Our job is to make sure our actions never injure anyone.

Dignity of Risk is the equally vital human right to self-determination. It is the recognition that taking risks, making choices, and learning from subsequent success or failure is intrinsic to a life of dignity, self-esteem, and personal development. As eloquently framed by Robert Perske in his seminal 1972 work, an “oversupply” of protection “can smother people emotionally, squeeze the life out of their hopes and expectations, and strip them of their dignity.” Every day, people without disabilities make choices involving risk, from financial investments to dietary habits to travel adventures. Dignity of risk asserts that having a disability does not forfeit this universal right to engage in life’s rich and sometimes risky tapestry.

A Necessary Paradigm Shift: Where We Begin Matters

Historically, disability and aged care services have defaulted to the Duty of Care end of the spectrum. Driven by a paternalistic desire to keep people “safe,” services often created highly controlled environments. This overprotection, while perhaps minimising physical risk, frequently resulted a profound limitation on personal freedom, leading to learned helplessness, diminished self-confidence, and psychological harm.

The modern ethos, embodied in the United Nations Convention on the Rights of Persons with Disabilities and the NDIS’s participant-centric model, mandates a paradigm shift. Our starting point must always be Dignity of Risk.

We begin with the assumption that every adult we support has the right to make decisions about their own life. Our role is not to veto but to support. From this foundation of respect and autonomy, we may, in specific, legally defined circumstances, need to discharge our duty of care. We move cautiously from dignity toward duty, not the other way around. This is more than a procedural change; it is a profound philosophical commitment to viewing participants as the experts in their own lives.

The Legal Boundaries: When Duty of Care Rightfully Intervenes

Respecting autonomy is absolute, but it is not without boundaries defined by law and ethics. Our duty of care obligates us to intervene in clear, narrow circumstances:

Imminent Risk of Death or Permanent, Serious Disability: This is a high threshold. An example is an imminent suicide risk, where specific mental health legislation provides a framework for intervention to preserve life. It does not refer to minor injuries or common health risks associated with everyday choices.
Formally Determined Lack of Capacity: This is a critical point. A support worker or provider cannot unilaterally decide that a person lacks capacity. This is a formal legal determination made by a tribunal or court, following a rigorous process that considers medical evidence and the person’s circumstances. It is never our casual judgement.
Involuntary Treatment Orders (e.g., Community Treatment Orders – CTOs): When a specific legal order mandates treatment, our role is to comply with and support its implementation.

In all these exceptions, the key is that the limitation on choice originates from a formal legal process, not from our own discomfort or risk aversion.

Applying the Framework: Everyday Questions Answered

This clarity helps navigate common dilemmas:

“But what about smoking or an unhealthy diet?” Here lies the perfect test for bias. Ask: “Would I have the right to make this choice for myself?” The answer is almost always yes. Adult citizens regularly make lifestyle choices that carry long-term health risks. The people we support retain that same dignity of risk. Our role is to provide accessible information on health impacts, not to impose a prohibition we would not accept for ourselves.
“Aren’t we neglecting people if we let them take risks?” This fear confuses balance with extremism. The continuum has two harmful poles: Overprotection on the duty-of-care end, with Neglect on the dignity-of-risk end. Neglect is a serious legal concept requiring proof of three elements: a duty existed, reasonable steps were not taken, and a serious injury resulted. We actively avoid both ends of the spectrum.

The Inclusion Tree Approach: Supported Decision-Making as Our Compass

We reject a guardianship model in favour of Supported Decision-Making. This means we provide the tools, information, and confidence for individuals to make their own informed choices. To uphold our duty of care within this model, our teams are rigorously trained in taking reasonable steps:

Collaborative Risk-Benefit Analysis: We engage in open, respectful conversations. “What are the potential benefits of this decision? What might the risks be? How could we manage those risks together?” This is a partnership.
Proportional Documentation: We clearly document these discussions, the participants’ expressed wishes, and any agreed-upon risk mitigation strategies. This creates a transparent record of the support process.
Utilising Team and Policy Infrastructure: No support worker is alone in this balance. We leverage team meetings, clinical supervision, and our clear organisational policies to guide complex situations. Referring to these resources is a “reasonable step” that protects both the participant and the supporter.
Focus on the “Least Restrictive Alternative”: In any situation, we ask, “What is the option that provides the necessary support while intruding the least on the person’s autonomy and freedom?”

Our Unwavering Commitment

The journey toward a truly inclusive society is paved with the recognition that a life without risk is a life without meaningful growth. At Inclusion Tree, we are not risk eliminators; we are facilitators of empowered living. We stand beside you, providing the scaffold for your choices, not the cage.

We follow Max Barrows’s advice: “Life is about learning from the mistakes that you make… please don’t protect us too much or at all from living our lives.” Our promise is to support your right to take risks, care for you responsibly, and help you build the life you want. If you want to talk about how these ideas affect your support plan, please speak with your Inclusion Tree coordinator. Together, we can make sure your support helps you reach new possibilities, not hold you back.

Because inclusion, at its heart, is about having the freedom, the support, and the dignity to write your own story, one choice at a time.