NDIS provider hit with $1.8m penalty after client dies from burns in bath

The Federal Court has ordered NDIS provider LiveBetter to pay a $1.8m civil penalty after one of its clients died after being scalded in a bath given by two care workers.

An NDIS provider has been hit with a $1.8m civil penalty

An NDIS service provider has been hit with a $1.8m civil penalty after one of its clients died from burns after being given a bath by care workers.

Registered provider LiveBetter was providing NDIS support for 28 year-old Kyah Lucas at her home in Orange, NSW, when two of its workers provided bathing care on February 2, 2022.

Ms Lucas, an Indigenous woman with a range of disabilities including being immobile, non-verbal, having issues with her skin and being able to regulate her temperature, received burns to 35-40 per cent of her body during the bath, and was unable to communicate her pain.

She died in hospital five days later.

The NDIS Quality and Safeguards Commissioner sought a civil penalty against LiveBetter for failing to comply with the NDIS Act in an application last March.

The Commissioner sought a $1.8m penalty, which LiveBetter, a charitable organisation, had previously agreed to, and on Wednesday Justice Elizabeth Raper endorsed the agreement.

Justice Raper awarded the heavy penalty on the basis LiveBetter had failed to conduct a formal risk assessment of Ms Lucas’ residence prior to providing bathing supports, failed to formally train its workers in bathing technique and failed to assess their competency in bathing technique.

“Almost the maximum penalty has been awarded with respect to the specific contraventions closely aligned with Ms Lucas’s tragic, untimely death,” Justice Raper said in her judgement.

“The specific harm suffered by Ms Lucas was of the most acute kind, so too can it be said of the harm to (her) family. There are no words to properly express the degree of the harm suffered.

“The absence of adequate training for and assessment of the competency by LiveBetter of the relevant support workers in the provision of in-home bathing supports had the potential to manifest in serious consequences for any one of its clients and in the case of Ms Lucas, was fatal,” she said.

In the agreed facts of the case, Ms Lucas’ bath had a temperature control panel usually set at 40-42 degrees celsius, but on the fateful day it was not checked, with the worker instead gauging the temperature with her hand and deeming it “fine”.

After being in the bath for no more than two minutes Ms Lucas moved and vocalised in an unusual way, and after the workers removed her from the bath they noticed her skin peeling. One worker then checked the control panel to find it set at 60 degrees Celsius.

A LiveBetter spokeswoman said the organisation had accepted the penalty and had taken significant steps to strengthen safety processes.

“Everybody in the LiveBetter community has been deeply saddened by the death of Kyah Lucas. (It) is a tragedy that has impacted all of us and our deepest sympathies remain with her family,” the spokeswoman said.