Health Care WHS Regulations in Australia: The Regulatory Gap Killing Vulnerable People

If you run an NDIS provider, a disability support service, a residential care facility, or any community health organisation in Australia. This article is for you.

A Victorian County Court decision handed down in December 2025 made something crystal clear: Work health and safety duties in the care sector are serious, enforceable, and carry consequences that can cripple a not-for-profit. The case is DPP v Amicus Community Services Ltd  VCC 1973. The fine was $370,000. The outcome was a woman’s death.

But this article isn’t just about that case. It’s about a much larger structural problem: Australia’s WHS regulatory framework has a serious blind spot in healthcare and social assistance – and if you’re operating in that space, no one is coming to save you before an incident occurs.

The Regulatory Gap: Care Sector vs Construction

Safe Work Australia’s own Best Practice Review Discussion Paper (September 2025) confirms what practitioners in the sector already know. The model WHS Regulations were built in an era of industrial manufacturing and construction. They are:^[1]

• Detailed and prescriptive for construction, plant, high-risk work, and diving
• Thin to non-existent for healthcare, residential care, home support, and NDIS-funded services

This is despite the fact that healthcare and social assistance has one of the highest serious workers’ compensation claims rates of any industry in Australia – 8.9 per million hours worked.^[1]

Industry	Serious Claims Rate (per million hours worked)
Agriculture, forestry & fishing	11.3
Public administration & safety	9.9
Healthcare & social assistance	8.9
Construction	~9
All industries average	6.6

Source: Safe Work Australia Key WHS Statistics 2024^[1]

Meanwhile, occupational diving – a critical but niche activity involving fewer than 5,000 workers nationally – has an entire dedicated chapter of prescriptive regulation. Healthcare, with over 3 million workers, does not.

That gap is not an accident. It’s a legacy of how the model WHS Regulations were assembled – by consolidating pre-2012 state regulations that were largely built for industrial settings.^[1]

The Amicus Case: What Happened and Why It Matters

On 6 May 2021, a 39-year-old NDIS participant – Joanne Dwyer – died in her Eaglehawk home where she received full-time supported independent living services from Amicus Community Services Ltd.^[2]

Joanne had multiple severe disabilities including Lennox-Gastaut Syndrome (a severe form of epilepsy), moderate to severe intellectual disability, and autism. She experienced seizures frequently, including nightly.^[2]

That night, her seizure mat alarm sounded at 1:18am – loudly, for 30 seconds. The sole overnight carer on duty did not respond. Joanne was not checked until 9:06am. She had died at approximately 1:42am.^[2]

What the Court found Amicus should have had in place:

• A documented requirement for carers to conduct a close physical bedside check at least every two hours during overnight shifts
• A mandatory check whenever the seizure alarm sounds
• Visual observation of breathing and colour for 1–2 minutes per check
• A formal observation checklist to enforce the system
• Employees required to sign off on monitoring requirements before their first unsupervised overnight shift
• Specific information, instruction and training on conducting those checks^[2]

None of this was in writing. It was passed on verbally between workers, with different practices between individuals. There was no documented direction, no mandatory close-check protocol, and no checklist.^[2]

The Court was unambiguous: this was not a case of employees failing to follow a system. It was a failure by management to establish adequate systems in the first place. That puts it in the more serious category of breach.^[2]

Amicus was convicted and fined:

• $350,000 – breach of duty to persons other than employees (s 23 OHS Act 2004 (Vic))
• $20,000 – failure to notify WorkSafe immediately after becoming aware of the death (s 38)
• Adverse Publicity Order – requiring Amicus to publish the outcome on its website and notify the NDIS Quality and Safeguards Commission

The notification breach is worth noting separately. Amicus notified Victoria Police and the NDIS Commission promptly – but did not notify WorkSafe until January 2022, eight months after the death, and only after the family escalated to WorkSafe directly. The Court accepted it was an oversight, not deliberate concealment – but fined them regardless.^[2]

“Employers must not wait until disaster strikes before addressing deficiencies in their safety systems.”
– His Honour Judge Rozen, VCC 1973^[2]

This Isn’t Isolated: Aurora Community Care

The Amicus judgment explicitly references a near-identical case. In Commissioner of the NDIS Quality and Safeguards Commission v Aurora Community Care Pty Ltd  FCA 1237, an NDIS participant – Mr Gupta – required two-to-one care, 24 hours a day.^[2]

At 1:45am on 17 March 2023, he died after leaving the residence and being struck by a car. One support worker had fallen asleep; another heard him open the door but did not investigate. The total civil penalty imposed was $2.2 million.^[2]

Both cases point to the same systemic failure: single points of failure in overnight care, inadequate monitoring systems, and absent documentation. The Court called this out explicitly as an industry-wide deterrence issue.^[2]

What the Law Actually Requires – Whether Regulations Say So or Not

This is the critical point for senior management: the absence of specific WHS regulations for your industry does not reduce your obligations.

The model WHS Act’s primary duty (s 19) and the equivalent state provisions require PCBUs to ensure, so far as is reasonably practicable, the health and safety of workers and other persons affected by the work. In the care sector, “other persons” explicitly includes clients and participants.^[1]

The Amicus court applied Victoria’s OHS Act s 23 (“duties of employers to other persons”), but the principle maps directly to the harmonised WHS Act framework in every other state.^[2]

Your obligations under existing law include:

• Risk identification and assessment specific to each participant’s known health profile
• Written safe work procedures for high-risk activities including overnight monitoring
• Information, instruction, training and supervision delivered and documented for each worker
• Consultation with workers on safe systems of work
• Incident notification to your WHS regulator – not just the NDIS Commission – immediately upon becoming aware^[2]

Building Your “Shadow Regulation” – A Practical WHS Architecture for Care PCBUs

Given the regulatory gap, care sector PCBUs need to build their own internal framework that delivers the standard the law demands, even in the absence of prescriptive rules.

Here is what that architecture looks like:

1. Individual Risk Profiles for Participants

Every participant who presents specific health risks (epilepsy, self-harm, absconding, falls, choking) requires a documented risk assessment that translates their clinical needs into operational safety controls. This is not a clinical care plan – it is a WHS risk assessment that identifies:

• The specific hazard
• The likelihood and consequence of that hazard eventuating
• The reasonably practicable controls
• How those controls are communicated and enforced

2. Written Safe Work Procedures – Not Verbal Tradition

The Amicus case is essentially a case study in the danger of oral knowledge transfer. Your SOPs must specify:^[2]

• What the worker must do (e.g. bedside check, not doorway observation)
• How (breathing visible, colour of skin checked)
• When (every two hours, and on every alarm activation)
• How it is recorded (signed checklist or electronic log)
• What to do if something is wrong (escalation protocol)

3. Supervision and Sign-off Before Solo Shifts

Workers must not commence unsupervised high-risk shifts (including active overnight monitoring) without having read, understood, and signed off on the specific requirements for that participant. This creates accountability and closes the defence that workers “didn’t know what was expected.”^[2]

4. Psychosocial Risk Management

Care work is also one of the highest-risk sectors for psychosocial harm – workplace violence and aggression, emotional demands, fatigue, and lone work. From 2022, the model WHS Regulations include explicit obligations to manage psychosocial risks. This applies to your workers, including those working alone in clients’ homes overnight.^[1]

Your psychosocial risk program should cover:

• Fatigue management for overnight shifts
• Violence and aggression from clients or their family members
• Isolation of lone workers
• Reporting mechanisms that are accessible and non-punitive

5. Incident Notification – Know Your Obligations

Notifying the NDIS Commission is not the same as notifying your WHS regulator. Amicus notified both police and the NDIS Commission but failed to notify WorkSafe – and was fined $20,000 for it.^[2]

Event	Notify NDIS Commission	Notify WHS Regulator
Client death
Serious client injury		(if work-related)
Worker serious injury	(generally)
Near miss	(some)	Depends on jurisdiction

You have health monitoring obligations and incident reporting obligations that sit independently of your NDIS registration requirements. They are not interchangeable.

What’s Coming: The Regulatory Horizon for Care PCBUs

The Safe Work Australia Best Practice Review (September 2025) has flagged that the model WHS Regulations are due for structural reform. The care sector, given its injury rates and workforce profile, is a likely target for the next wave of industry-specific guidance or regulation.^[1]

Expect movement on:

• Psychosocial regulation becoming more prescriptive, particularly for high-demand care roles
• Lone worker protections in home-based settings
• Workforce demographics – care workers are disproportionately migrant, older, or female, and the paper signals that WHS policy needs to respond to that^[1]
• Digital monitoring – the use of remote monitoring technology introduces new WHS risks (surveillance-based psychosocial harm) that regulators are beginning to address^[1]

If you are running an NDIS provider, aged care service, or community health organisation, the window to build your WHS framework proactively is now – before an incident, before an investigation, and before a case like Amicus carries your organisation’s name.

Key Takeaways for Senior Management

• The absence of specific WHS regulations for care does not reduce your duty of care to clients or workers
• Written, individualised monitoring procedures are legally required, not optional best practice
• Verbal knowledge transfer is not a safety system – Amicus proved that^[2]
• You must notify your WHS regulator of notifiable incidents separately from NDIS Commission notification
• Engaging a WHS consultant to audit your systems before an incident is far cheaper than defending a prosecution after one
• Safe Work Australia has flagged care, health and social assistance as priority industries – more regulation is coming, and early adoption protects you

If your organisation is operating without documented, participant-specific monitoring procedures and a compliant incident notification register, the time to fix that is today.

This article references DPP v Amicus Community Services Ltd  VCC 1973 and the Safe Work Australia Best Practice Review Discussion Paper (September 2025). For further information on WHS obligations for care providers, visit Safe Work Australia or contact HSE Direct for a workplace safety consultation. For workers’ compensation considerations, see our NSW Return to Work guide

1. Best-Practice-Review-Discussion-Paper.pdf        

DPP-v-Amicus-2025-VCC-1973-18-December-2025.pdf