Background
The Courts have backed regulators in providing severe penalties to make an example of Disability Care Organisations that fail in their duties to their clients.
Some of the recent civil penalty orders are:
- Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629: a penalty imposed of $400,000;
- Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374: a penalty imposed of $1,800,000; and
- Commissioner of the NDIS Quality and Safeguards Commission v Valmar Support Services Ltd [2025]FCA 11: a penalty of $1,916,250 plus costs.
A recent sentencing involving the death of an NDIS client resulted in a $370,000 penalty and an adverse publicity order for the organisation to place on its website.
The context
Amicus Community Services Ltd (Amicus) was a nonprofit disability service provider, and some of its services were funded by the National Disability Insurance Scheme (NDIS).
Jo Dywer was an NDIS participant who was placed in Amicus’ care by her mother in approximately 2013. Jo received full-time (24-hour) supported independent living services from Amicus’ employees in her home, which Haven Homes owned.
Amicus’ employees caring for Jo worked in shifts. One of those shifts was the overnight shift during which one carer was rostered.
Jo Dywer had several very significant disabilities and, because of her epilepsy, experienced frequent seizures.
On 6 May 2021, at about 1:18 am, Jo Dywer suffered a seizure and fell out of her bed onto a crash mat placed adjacent to it. This sounded a loud, audible alarm for about 30 seconds, designed to alert staff. The carer did not respond to the alarm.
Jo Dywer died soon after. No visual check was made of Jo until 9.06 am, when the relieving shift employee checked on Jo Dywer and found her non-responsive on the floor.
There was no explanation for the failure to monitor Jo Dywer overnight.
Amicus notified Victoria Police and the National Disability Insurance Commission.
Jo Dywer’s mother was frustrated by the investigations and contacted WorkSafe, who prompted Amicus to make a formal notification of the incident to them on 21 January 2022.
Jo Dywer’s treating physician outlined the overnight care Jo required as being [at 23]:
“The risk of nightly seizures was very high. [The deceased] had monitoring that confirmed she has seizures EVERY night from sleep which is known to increase the risk of Sudden Unexpected Death in Epilepsy Patients (…estimated prevalence of 1.16 cases per every 1000 people living with epilepsy). Risk of injury was also high as [the deceased] is impulsive and previously fractured her legs following seizures.“
Amicus’s Community Support Worker Manual provided for staff to receive induction and training in accordance with the manual, and Jo Dywer was to be directly observed at least every 2 hours by [at 28]:
“Requiring employees to conduct a close physical check of Jo by attending at Jo’s bedside at least every two hours (and when the seizure alarm mat sounds) and visually observing Jo over a period of 1-2 minutes to ensure Jo’s colour can be reliably observed and that her breathing (rise of chest, sound of breath) can be reliably detected.“
The charges
Amicus was charged with and pleaded guilty to [at 1]:
(a) One charge of failing to ensure that persons other than employees are not exposed to risks to their health or safety contrary to section 23(1) of the Occupational Health and Safety Act 2004 (Vic) (the Act), which carries a maximum penalty of 9000 penalty units for a body corporate;
(b) One charge of failing to notify WorkSafe immediately after becoming aware that an incident has occurred at a Workplace contrary to section 38(1) the Act, which carries a maximum penalty of 1200 penalty units for a body corporate.
The Court noted that, under the provisions, an offender is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach.
Two factors measure the gravity of the breach:
- the seriousness of the breach itself, that is, the extent to which the offender has departed from its statutory duty, and
- the extent of the risk of death or serious injury which might result from the breach.
An assessment of the extent of the risk itself involves consideration of 2 factors:
- the likelihood of the occurrence of an event as a result of the breach, such as the event that occurred in the particular case, endangering the safety of employees or others; and
- the potential gravity of the consequence of such an event, particularly whether there is a risk of death or serious injury.
The decision
The Court accepted that the breach of the Act by Amicus was appropriately characterised as reflecting a significant departure from its statutory duties.
It rejected that Amicus’s departure from its statutory duty was not to a high degree, as the relevant measures in place evidence that there were measures which, while not as safe as reasonably practicable, did not constitute a great falling short of Amicus’s obligations.
The Court reasoned [at 53]:
“The evidence before the Court demonstrates that, by failing to implement its Manual in the way the Manual envisaged, Amicus manifestly failed to establish adequate safety systems and procedures. While I accept that there was a monitoring practice that was passed on by employees orally, this is not a safety system as the events of the night in question clearly reveal. This was not a case of employees failing to adhere to systems put in place by management. It therefore falls into the more serious category of breach as explained by the Court of Appeal in CICG[1].”
The Court took into account matters of mitigation, including:
- a plea of guilty and attendance in the Court of Amicus senior officers who were genuinely remorseful;
- avoiding a lengthy hearing and the distress of witnesses;
- Amicus had no prior convictions.
- Amicus had been co-operative and promptly introduced remedial measures; and
- Animus was a non-profit organisation, but it had given limited financial information to the Court.
Although the prosecutor did not seek an adverse publicity order (APO), the Court issued one on its own initiative.
Section 135 of the Act confers a broad power on the Court to order an offender to publicise, in the way specified, ‘the offence, its consequences, the penalty imposed and any other related matter’. It also empowers a sentencing judge to order the offender to notify a specified person or class of persons about the same matters.
Amicus was convicted and fined $350,000 on the first charge and $20,000 on the second, for a total of $370,000.
Amicus was also ordered to publicise prominently on its website a notice specified by the Court, as well as send a copy of the notice to Jo Dywer’s mother and the Commissioner of the NDIS Quality and Safeguard Commission.
What will they do differently?
The judgment records the steps taken by Amicus in response to the incident as [at 29]:
“In the aftermath of the incident, Amicus implemented the following remedial measures:
(a) Active Night Monitoring (blank form) dated 29 July 2021. This document has half-hourly intervals for making notes; and
(b) Continuous Improvement Plan, which references the following documents:
(i) Updated Supported Independent Living Manual (now including monitoring requirement); and
(ii) Updated Position Descriptions (now including monitoring requirements).”
Other solutions may include installing a monitoring device that requires the worker to swipe a card/enter a code to confirm they have completed their duties.
Further materials
A full paper on these penalties is available – A Hough, C Bigby and D Marsh, “Federal Court Cases about Harm to People with Intellectual Disabilities in Service Provision: Lessons for Safe Support” (2025) Research and Practice in Intellectual and Developmental Disabilities. 1–21; https://www.tandfonline.com/doi/full/10.1080/23297018.2025.2565570#d1e292
This case may be viewed at DPP v Amicus [2025] VCC 1973 https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2025/1973.html
[1] The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181).