Mandatory notifications

'Intoxicated' means under the influence of alcohol or drugs. Drugs include illegal drugs and prescription or over-the-counter medicines.

The key issue is that the disability worker is practising while intoxicated. You do not need to report if the disability worker is intoxicated in their private life (when not practising), unless the intoxication triggers a reasonable belief that behaviour that constitutes another type of notifiable conduct has occurred.

Sexual misconduct is a broad term encompassing any unwelcome acts or behaviours that are experienced by the person with disability as being sexual in nature. This includes physical and verbal actions committed without consent or by force, intimidation, coercion or manipulation. It includes sexual violence and exploitation but is not limited to actions which constitute a criminal offence. It includes when a disability worker has at any time, including outside work hours:

• engaged in sexual activity with them, whether or not that person has given consent
• made sexual remarks about them
• touched them in a sexual way
• engaged in sexual behaviour in front of them.

There is frequently a power imbalance between a disability worker and the people they support. When delivering services, workers are expected to adhere to the highest standards of behaviour, be respectful and take every action to make sure people with disability are safe. This means having professional boundaries in place for relationships between staff and people with disability, and preventing and responding to any inappropriate behaviours by anyone towards a person with disability, including sexual misconduct.

If a disability worker engages in sexual activity with someone they previously provided support to, this may also be sexual misconduct. Whether this constitutes sexual misconduct will depend on the circumstances.

Sexual misconduct will not include sexual contact that is appropriately provided as part of a purchased service by an approved sexual service provider and to which the person with disability consents.

Disability workers and employers must notify the Victorian Disability Worker Commission if a disability worker placed, or may place the public at risk of harm, because the disability worker has an impairment that detrimentally affects (or is likely to detrimentally affect) the disability worker’s capacity to practise. 

‘Impairment’ has a broad meaning, covering both physical and psychological conditions. When making a mandatory notification, the question is whether the impairment detrimentally affects, or is likely to detrimentally affect, the worker’s capacity to practice. You do not need to notify the Victorian Disability Worker Commission if the disability worker has effective controls to manage the impairment.

Disability workers and employers must notify the Victorian Disability Worker Commission if a disability worker placed, or is placing the public at risk of harm, because the disability worker practised, or is practising, in a manner that constitutes a significant departure from accepted professional standards.

‘Accepted professional standards’ includes reference to documents like the Code of Conduct. It covers both practice, and professional behaviour. 

A significant departure is serious (not slight or moderate) and would be obvious to any reasonable person who practises as a disability worker. 

The threshold for employers and disability workers to make a mandatory notification about a significant departure from accepted professional standards is when there is substantial risk of harm to the public.

To form a ‘reasonable belief’ that a disability worker engaged in notifiable conduct, you need direct knowledge of the incident or behaviour that led to a concern. This should be more than suspicion. However, ‘reasonable belief’ does not require certainty. You might directly observe the incident or behaviour or have a report from a reliable source that directly experienced or observed the conduct. 

Disability workers and employers in Victoria must notify the Victorian Disability Worker Commission if they form a reasonable belief that another disability worker has engaged in notifiable conduct. 

An employer of a disability worker means a person that employs the disability worker under a contract of employment or a contract for services. 

Mandatory notification requirements do not apply to employers of a disability worker if the employer receives disability services from the disability worker. This means that a person with disability who directly employs a disability worker (who could be a family member) is not required to make a mandatory notification to the Commission.

If you are a disability worker and you do not make a notification to the Commission when required, this may constitute behaviour for which health, conduct or performance actions may be taken against you.

As soon as you 'reasonably believe' the incident or conduct occurred or risk exists.

For example, you have direct knowledge or a report from a reliable source.

You can make a notification via our notifications webform or by calling us on 1800 497 132. 

You must notify the Victorian Disability Worker Commission if you have a reasonable belief that a disability worker has behaved in a way that constitutes notifiable conduct. This applies even if you have told another body about your concerns.

If a notification relates to a registered NDIS provider, the Commission must refer the matter to the NDIS Quality and Safeguards Commission.

The Victorian Disability Worker Commission must consider a notification within 60 days of receiving it.

We can take a range of actions after considering the notification. These include:

• counselling the disability worker
• referring the notification to the appropriate entity, for example the NDIS Quality and Safeguards Commission
• requiring a registered disability worker to undergo a performance assessment or health assessment
• investigating the disability worker
• taking action regarding the worker, such as issuing an interim prohibition order
• taking no further action and we will explain why. This may also involve providing a disability worker with education on the Disability Service Safeguards Code of Conduct.

A person with disability who directly employs a disability worker is not required to make a mandatory notification to the VDWC.

If you are a disability worker, you are not required to make a mandatory notification if you know, or reasonably believe the notification has been made to the VDWC. For example, by a colleague who is a disability worker, or employer.

The Victorian Disability Worker Commission will provide reasonable assistance to individuals who wish to make a notification about a disability worker. This may include assisting the individual to make the notification in writing, or to clarify the nature of the notification.

The law protects anyone who makes a notification in good faith. The Disability Service Safeguards Act 2018 (Vic) provides that a person is not liable for any loss, damage or injury suffered by another person because the notification was made.  

If you are a disability worker or employer and you are not sure whether you should raise a concern, we encourage you to contact us to discuss your obligations.