Having a signed waiver or disclaimer in place does not give any guarantee that a care recipient or their family will not take action against the provider, writes Julie McStay.
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.
It is important to acknowledge a care recipient’s right to maintain independence which includes taking personal responsibility for their own actions, even when those actions involve an element of risk.
In the context of aged care, a care recipient may wish to partake in a dangerous activity. For example, a care recipient with full capacity may choose to refuse their medication while being fully aware of the inherent risks of doing so.
Approved providers’ need to balance the risk
Clients have a right to accept the risks associated with an activity as long as it does not interfere with the rights or safety of others.
From a provider’s perspective the care recipient’s right to undertake a dangerous activity must be balanced with the provider’s exposure to liability arising from their duty of care and other responsibilities.
When a provider becomes aware that a care recipient wants to undertake an activity with an element of risk, often a waiver, disclaimer or release will be used with a view to balancing the risks between the parties.
How effective are these types of documents in protecting the parties’ interests?
The concept of assumption of risk is not new to the law. The courts are often called on to determine whether a party can rely on a waiver or disclaimer excluding their liability. As with any legal document that purports to waive a person’s liability they would otherwise have under the law, there can be issues with enforceability. This is compounded in the aged care setting where there are often questions of capacity, unequal bargaining power and informed consent.
Due to the complex factors in play, having a signed waiver or disclaimer in place does not give any guarantee that a care recipient or their family will not take action against the provider. If an issue does arise, the provider cannot be certain that they will be released from all liability simply by having the agreement in place.
Although the signed waiver may not be enforceable in all cases there are still benefits to having one in place. A signed waiver will certainly assist any defence if the care recipient or family does take action. And at the very least the mere presence of the waiver may prompt the care recipient and their family to carefully consider the risks associated with the activity and to understand the seriousness of the situation.
Best practice to use a Deed of Indemnity and Release
The decision to use a waiver or not will depend on the circumstances and the provider’s appetite for risk. Management will need to make a decision on a case by case basis by considering the risks inherent in the proposed activity and determining whether those risks outweigh the care recipient’s right to autonomy.
If the provider considers that the care recipient ought to be able to exercise their right to take the risk, it is in the provider’s interest to have a signed waiver in place. For a greater likelihood of enforceability, we recommend using a Deed of Indemnity and Release, which details the risks that the care recipient wishes to assume.
Julie McStay is head of Hynes Legal’s aged care and retirement living team.