Recommendation 122

This recommendation is assigned to CSNSW.

Recommendation

That Governments ensure that:

a. Police Services, Corrective Services, and authorities in charge of juvenile centres recognise that they owe a legal duty of care to persons in their custody;

b. That the standing instructions to the officers of these authorities specify that each officer involved in the arrest, incarceration or supervision of a person in custody has a legal duty of care to that person, and may be held legally responsible for the death or injury of the person caused or contributed to by a breach of that duty; and

c. That these authorities ensure that such officers are aware of their responsibilities and trained appropriately to meet them, both on recruitment and during their service.

Context

The Royal Commission report outlined the importance of custodial authorities recognising and explaining the duty of care of those authorities to people in custody. Recommendation 122 is directed at ensuring that duty of care becomes part of standing instructions and supported by appropriate training.

Detail of implementation

The spirit of this recommendation is aimed at ensuring  CSNSW officers recognise and understand their duty of care to persons in their custody including the legal responsibility for death or injury contributed to by a breach of duty and that practices of CSNSW ensure that training appropriately covers and reinforces these principles.

a) and b)

The objects of the Crimes (Administration of Sentences) Act 1999 provide:

(1)  This Act has the following objects—

(a)  to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b)  to ensure that other offenders are kept under supervision in a safe, secure and humane manner,

(c)  to ensure that the safety of persons having the custody or supervision of offenders is not endangered,

(d)  to provide for the rehabilitation of offenders with a view to their reintegration into the general community.

(2)  In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.

(3)  Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.

The Custodial Operations Policy and Procedures (COPP) also has a document which sits across its title ‘duty of care’, this explains the duty of care owed by Correctional officers and references the Act as well as the common law principles and some cases explaining that duty.  An excerpt is below:

While it is difficult to provide more than general guidance and the general principles from which a duty of care arises, some of the more salient points staff should have regard to are their obligation to:

• comply with all relevant legislative, industrial or administrative requirements accurately notate inmates' records 

• be familiar with all relevant material relating to inmates, with particular reference to their disabilities and inclinations to self-harm 

• keep up to date with advances and changes in their areas of employment 

• document and maintain records affecting important decisions made in relation to inmates and other members of staff

• ensure that information gained during the course of employment is only used for proper and appropriate purposes.

But above all, staff members need to use common sense and act according to the facts and circumstances of each case, always bearing in mind the general principles of law applying to duty of care. These procedures accord with Recommendations 122,123 and 182 of the Royal Commission into Aboriginal Deaths in Custody.

The Custodial Operational Policy and Procedures manual also provides general guidelines to assist staff to comply with their duty of care towards inmates and fellow employees.

c)

Upon commencing with CSNSW, trainee Correctional Officers must successfully complete a 10-week face to face Primary Training course facilitated by the Brush Farm Corrective Services Academy (a Registered Training Organisation) before undertaking further learning and assessment activities in the workplace to attain the Certificate III in Correctional Practice (a nationally recognised qualification from the Correctional Services Training Package). 

The Primary Training aligns to established industry/corrections benchmarks and includes a session specifically focussed on 'duty of care' wherein relevant legal and operational responsibilities of Correctional Officers is explored. The learning resources (e.g. PowerPoint slides) for this session can be provided if required. 'Duty of care' responsibilities are also reinforced throughout other sessions within Primary Training and underpin a variety of learning activities. 

Trainee Correctional Officers’ knowledge of ‘duty of care’ requirements as related to their role and implementation of associated functions are assessed by accredited trainers/assessors during Primary Training to ensure industry standards are met. It is noted that one of the units of competency trainees must achieve to satisfy the requirements of Primary Training is CSCOFM026 Protect the safety and welfare of Aboriginal and Torres Strait Islander offenders. 

In addition to the above, all CSNSW Correctional Officers (up to and including the rank of Assistant Superintendent) must complete the ‘Awareness of Managing At-Risk Offenders’ and ‘Awareness of Safe Custody’ online short courses accessed via our NSW Learning Management System. These courses support the provision of a safe environment for inmates whilst in custody, with information provided to Correctional Officers to effectively manage those identified at-risk and execute responsibilities associated with ‘duty of care’. 

Additional courses are also available to Correctional Officers and other staff to access which support the implementation of functions associated with maintaining the requisite ‘duty of care’ to inmates while in custody. This includes, but is not limited to, the:

• two day face to face ‘Managing At-Risk Inmates’ course which aligns to two units of competency (CSCINT004 Assess offender risk and needs and CSCOFM004 Protect the safety and welfare of vulnerable offenders); 
• online ‘Aboriginal Cultural Awareness’ course; and
• one day face to face ‘Aboriginal Cultural Awareness Training’ facilitated by the CSNSW Aboriginal Strategy Directorate (NB: this course is also facilitated within Primary Training).
• Examples of completion statistics include:
• The online:
• Aboriginal Cultural Awareness course was released in 2012 and has been completed on 3,807 occasions;
• Awareness of Managing At-Risk Offenders course was released in 2013 and has been completed on 6,484 occasions; and
• Awareness of Safe Custody course was released in 2013 and has been completed on 5,097 occasions.

The face to face Managing at Risk Inmates course was released in 2012 and has been attended on 820 occasions (NB: sometime prior to this date there was a similar course in existence titled RIT Protocols). 

Since 2002 new custodial recruits (Correctional Officers) have been required to complete training and assessment aligned to the unit of competency titled Protect the Safety and Welfare of Aboriginal and Torres Strait Offenders from the Certificate III in Correctional Practice and the unit of competency is attached. The Duty of care guide is available to all CSNSW staff on the Custodial Operations Policy and Procedures website on the Links and resources page. It provides advice about their duty of care responsibilities.

Evidence 

• Crimes (Administration of Sentences) Act 1999