Catherine Henry, Principal, Catherine Henry Partners, Newcastle NSW - Acting for the Aged Care Patient: Lessons in Accountability
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Catherine Henry, Principal, Catherine Henry Partners, Newcastle NSW - Acting for the Aged Care Patient: Lessons in Accountability



Catherine Henry delivered the presentation at the 2014 Medico Legal Congress. ...

Catherine Henry delivered the presentation at the 2014 Medico Legal Congress.

The Medico Legal Congress this is the longest running and most successful Medico Legal Congress in Australia, bringing together medical practitioners, lawyers, medical indemnity organisations and government representatives for open discussion on recent medical negligence cases and to provide solutions to current medico legal issues.

For more information about the event, please visit:



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Catherine Henry, Principal, Catherine Henry Partners, Newcastle NSW - Acting for the Aged Care Patient: Lessons in Accountability Presentation Transcript

  • 1. © 2009© 2009 23rd Annual IIR Medico-Legal Congress Acting for the Aged Care Patient: Lessons in Accountability Presented by: Catherine Henry Principal
  • 2. © 2009 Health & Relationship Law o Complaint mechanisms o Common law • Negligence • Intentional tort o Only relevant to “chronically ill aged” (high care) What legal options are available for substandard care?
  • 3. © 2009 Health & Relationship Law Aged Care Act 1997 o High care/low care o Residential care is the dominant form of care New aged care regime • „Living Longer Living Better‟ reforms – 2012 • Productivity Commission – „Caring for Older Australians‟ • Refocusing care in the home • Funding reviewed in isolation – quality issues neglected Aged Care Framework
  • 4. © 2009 Is there an aged care “crisis”? o In 1997, Dept. of Health & Family Service - standards monitoring – 30% of facilities only met minimum standards o Have things improved? o What do the commentators say? Health & relationship law
  • 5. © 2009 Health & Relationship Law “Some nursing homes are so bad that you would not put a dog in them” Judy Moylan Minister for Family Services, 1997
  • 6. © 2009 Health & Relationship Law “Outdated design – illogical funding – inequitably constrained –complicated and confusing system...Older people and families in despair of not being able to get the services they need” Ian Yates Chief Executive, Council on the Ageing, April 2012 “Our aged care system is struggling to cope”
  • 7. © 2009 Health & Relationship Law
  • 8. © 2009 Health & Relationship Law “Aged care is a system in crisis today” “Not able to meet the needs and the preferences of older Australians today…it will be incapable of meeting the needs and aspirations of older Australians into the future” Mark Butler Minister for Mental Health and Ageing, 2012
  • 9. © 2009 Health & Relationship Law What are the worse types of adverse events? o Starvation and dehydration o Chemical and physical restraints o Poor security o Falls o Scalds o Assaults o Pressure sores o Abuse
  • 10. © 2009 Health & Relationship Law o 1997 Aged Care Act – new emphasis on quality assurance and accreditation Objects: • Meeting the needs of the aged care individual – health and wellbeing, section 2.1 • Quality of Care Principles – binding and non-binding standards of care, section 96.1 • Advocacy mechanisms – Residential Aged Care Advocacy Services Program • Internal and external complaints mechanisms Complaints Mechanisms
  • 11. © 2009 Health & relationship law o Now administered by Dept. of Social Services – Office of Aged Care Quality & Compliance o Review Quality of Care Principles o Not independent o No public scrutiny o No sanctions o Possible class action? Aged Care Complaints Scheme
  • 12. © 2009 Health & Relationship Law o Aged Care Quality Agency (formally Aged Care Standards and Accreditation Agency) – also tied in with class action o No correlation between breach or standard of care and accreditation o No role in monitoring adverse events o Conflicting roles – regulatory and educative Accreditation
  • 13. © 2009 Health & Relationship Law o Plenty of scope o Rare - PI Lawyers don‟t chase o Residents unlikely to initiate o Relatively low quantum o Work is confronting Actions in negligence
  • 14. © 2009 • Sources of evidence • Family accounts • CCTV footage • Often alleg‟ns of negligence indefensible • Bed sores - grade ¾ always preventable • Chemical restraint – never supported by drs • Neglect – malnutrition – dehydration – alternative feeding strategies can be utilised Health & relationship law Litigation Process
  • 15. © 2009 • Access to ACCS investigation reports useful • Does care comply with Quality of Care principles? • Use in establishing the legal standard of care Health & relationship law Quality of Care Principles
  • 16. © 2009 o Difficulty in establishing actual damage o What damages may be relevant? • Pain and suffering appropriate • Loss of earning capacity not relevant • Compensatory damages - intentional tort cases • Pure mental harm – family members Health & relationship law Damages Issues
  • 17. © 2009 Risks of litigation o Serious medical error –often systemic o Significant reform issue – staffing o Need for mandated staff/resident ratios o Inadequate staffing ratios serious preventable error Health & relationship law
  • 18. © 2009 Increased interest in aged care litigation o Alliances – advocacy groups + lawyers o Growth of “elder law” o Role of litigation in improved care Health & relationship law
  • 19. © 2009 Role of litigation o Improved patient care o Calling attention to serious problems o Deterrent effect o Economically driven patient safety strategies Health & relationship law
  • 20. © 2009 Case Study 1: • Dementia patient – escaped – poor security • Fractured hip + pneumonia …death • No “falls risk assessment” • ACCS investigation – ineffective • Negligence claim Health & relationship law
  • 21. © 2009 Case Study 2: Family demands to know why father died of malnutrition Health & relationship law
  • 22. © 2009 For the future o Cases should be brought o Law is straightforward o Well prepared cases resolve o Benefits of common law in maintaining professional standards Health & relationship law