In AAA online’s regular legal column, Julie McStay responds to a reader’s question: When will a provider’s duty of care override a consumer’s right to choose?
In the consumer directed care (CDC) environment, consumers will no longer by limited by a “standard” menu of services or service providers. This will inevitably lead to situations where a care recipient’s preferences are at odds with what the approved provider feels is appropriate.
With all home care packages to be provided on a CDC basis by 1 July 2015, providers are expressing concerns about how these potential conflicts will be addressed in practice.
Primary right and obligations of providers and care recipients:
Duty of care: An aged care provider and its workers owe a duty of care to the aged care recipients who receive the provider’s services. Providers owe various duties to care recipients under aged care legislation, other Commonwealth, state and territory laws and at common law. At a minimum, providers are required to take reasonable steps to ensure the health, safety and wellbeing of care recipients.
Right to autonomy: A person’s right to autonomy or self-determination is deeply-rooted in the common law. It is about respecting an individual’s right to take risks and choose how he or she should live his or her life. The CDC environment makes it easier for a consumer to exercise their right to autonomy by allowing the individual to control, as far as feasible, their health care and treatment. The CDC approach puts the care recipient’s preferences at the forefront of the decision making process and requires increased focus on what the consumer wants.
Balancing rights and obligations
In the eyes of the law, a person’s autonomy should be restricted as little as possible. On the other hand, it must be balanced with the need to protect the person from foreseeable risks.
How will providers address these issues in practice? In the following case study we look at how an approved provider might approach a conflict situation in practice and demonstrate when a provider’s duty of care may override the consumer’s right to autonomy.
Margaret is on a level 3 home care package. Margaret currently receives clinical services as well as domestic assistance with chores and shopping.
Margaret advises you that she would like to appoint Home Care Helpers for her domestic services, but she wants to stay with you for clinical services. Margaret says that her friend Anne uses Home Care Helpers and Margaret thinks they “do a better job with the housework”.
Home Care Helpers is outside your preferred list of service providers. You make enquiries and discover that Home Care Helper’s service fees for domestic assistance are 50 per cent more than the service fees you have been charging Margaret for domestic services.
You are worried that if Margaret pays the higher fees for her domestic assistance, there might not be enough funds left in the budget for you to continue providing Margaret with clinical services. You know that Margaret has the right to have her individual preferences respected but on the other hand, you are the one responsible for ensuring that Margaret receives quality care and services that are safe and appropriate to her assessed needs.
Are you obliged to honour Margaret’s preferences despite these concerns?
The Home Care Packages Program Guidelines provides some guidance on these issues. Under the Guidelines, it may be reasonable to decline Margaret’s request if:
- you would not be able to comply with your responsibilities under aged care legislation or other Commonwealth or state/territory laws;
- Home Care Helpers will not enter into a contract with you; or
- the cost of the domestic services provided by Home Care Helpers is beyond the scope of the available funds for Margaret’s level 3 home care package.
You can always seek expert advice if you are unsure your rights and obligations in the circumstances. If you make a decision to decline Margaret’s request, you may wish to consider these tips:
- provide clear reasons for your decision and notify Margaret in writing;
- explain to Margaret that while you are committed to respecting her preferences, her budget must be based on her assessed needs and her care plan;
- ask Margaret what it is about the quality of service provided by Home Care Helpers that she thought she would prefer and assure Margaret that make your best efforts to incorporate these aspects into your domestic services;
- arrange for a follow up meeting with Margaret at a set time in the future to discuss her satisfaction with her home care services.
How should providers approach these decisions?
It is clear that these issues will need to be addressed on a case-by-case basis, based on what is reasonable in the circumstances. As a starting point, home care providers should be aware of their rights and responsibilities under the relevant legislation, including the Aged Care Act 1997 and the Charter of Home Care Recipient’s Rights and Responsibilities under the User Rights Principles 2014. Providers can also look to the Department of Social Services’ Home Care Packages Program Guidelines document for guidance, or seek expert advice.
Julie McStay is head of Hynes Legal’s aged care and retirement living team.