The largest National Disability Insurance Scheme provider in regional NSW has been ordered to pay a record $1.8 million fine after a young woman died from burns that she suffered while taking a bath in its care.
Kyah Lucas died from burns after being put in a hot bath by her NDIS carers.Facebook
In a decision that the government will use as a warning to NDIS services,disability provider LiveBetter has been issued the biggest penalty for an NDIS provider after it failed to properly train its workers in bathing techniques,assess their competency or conduct a formal risk assessment of the home of 28-year-old Kyah Lucas,who had several disabilities.
Those failures led Lucas to suffer burns to 35 to 40 per cent of her body when she took a bath under the supervision of two workers at her home,in Orange in western NSW,in February 2022. She died five days later.
Lucas,an Indigenous woman,was non-verbal,intellectually disabled and had the genetic disorder Cornelia de Lange syndrome,which meant she was unable to communicate when she was experiencing pain and discomfort.
A statement of agreed facts says the two support workers responsible for bathing her ran the hot water tap,before adding cold water for one to two minutes.
But they did not check the bath’s temperature,which was usually set via a control panel on the wall. The worker scooped her bare hand in the bath water and considered it to be “fine”,without observing the steam coming off the water.
When Lucas started moving and vocalising in a manner different to her usual behaviour,the workers became aware the water was too hot. After Lucas had been in there for one or two minutes,they removed her from the bath and observed her skin was peeling.
“Tragically,five days after sustaining the burns,Ms Lucas died at Concord Repatriation General Hospital. The medical records refer to her death as being caused by burns,” said a court judgment,delivered on Wednesday.
In the lawsuit brought in the Federal Court by the NDIS Quality and Safeguards Commission last year,LiveBetter and the commission agreed that the provider had contravened the NDIS Act on 17 occasions.
Kyah Lucas died at Concord Repatriation General Hospital.Kate Geraghty
“The contraventions were objectively extremely serious,” Justice Elizabeth Raper said in the judgment.
“LiveBetter’s failures were antithetical to[the] stated object of the statutory[NDIS] scheme,to protect and prevent Ms Lucas from harm arising from unsafe supports and services provided under the scheme.
“The specific harm suffered by Ms Lucas was of the most acute kind,so too can it be said of the harm to Ms Lucas’ family … There are no words to properly express the degree of the harm suffered.”
An investigation by this masthead in 2018 revealed that parents and former staff were worried about LiveBetter’s safety protocols. The organisation’s former work health and safety co-ordinator,Ken Freedman,was so concerned that he wrote an email to management in 2017,saying that it was only “a matter of time before LiveBetter[has] a fatal incident”.
LiveBetter at the time rejected wrongdoing and launched legal action against Freeman for blowing the whistle,which was later withdrawn.
Wednesday’s judgment said the $1.8 million penalty – which is the biggest to be issued to a disability provider for breaching the NDIS Act – was issued as a deterrent to both LiveBetter and other providers. LiveBetter must also pay the NDIS Commission’s legal costs.
It is only the second civil case brought by the commission in its six-year history.
NDIS Minister Bill Shorten said he wanted to send a strong message that those entrusted with the care of scheme participants would be held to the highest standards.
“LiveBetter failed to look after Kyah Lucas. She was a vulnerable woman who needed support,safeguarding and care,” he said.
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Acting Commissioner Michael Phelan said the court’s decision should be a warning. “The findings from this proceeding put all NDIS providers on notice that they need to pick up their game and ensure their staff are properly trained and highly competent,” he said.
“All disability providers and support workers must have safety front of mind when it comes to supporting people with disability.”
A spokeswoman for LiveBetter,which received $40.5 million in government revenue last year,said it accepted the outcome of the legal process and would offer its full support to Lucas’ family.
“This is a very significant penalty that reflects the seriousness of the circumstance surrounding Kyah’s death,” it said.
“Kyah’s death is a tragedy that has impacted all of us and our deepest sympathies remain with her family.”
The spokeswoman said LiveBetter had restructured its governance to provide greater oversight,dedicated additional resources to training frontline staff,and implemented strict procedures around safe bathing and in-home risk assessment.
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