This document summarizes a presentation on legal options for substandard aged care. It discusses complaints mechanisms under the Aged Care Act of 1997 and common law claims of negligence and intentional torts. It notes that while litigation is rare, there is increased interest in aged care litigation through alliances between advocacy groups and lawyers. The risks and role of litigation are discussed, with examples given of potential negligence claims involving a fall and malnutrition. The conclusion is that well prepared cases could help maintain professional standards in aged care.

1. © 2009© 2009
State Legal Conference 2014:
Elder Law
Session 20 – Thursday, 28 August 2014
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“Outdated design – illogical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
Litigation Rare

14. © 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

15. © 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

16. © 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

17. © 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

18. © 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

19. © 2009
Case Study 2:
Family demands to know why father died
of malnutrition
Health & relationship law
http://www.abc.net.au/lateline/content/2013/s3871658.htm

20. © 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