This is an opinion piece submitted to Australian Ageing Agenda by aged care lawyer Brian Herd, a partner with Carne Reidy Herd in Brisbane.
“A comment begets criticism begets concern begets conflict begets complaint begets calamity begets “A Current Affair”
Does aged care mean never having to say you’re sorry? Of course it doesn’t, nor should it!
That’s why I just couldn’t resist putting pen to paper in light of the recent and ongoing public furore over the quality of care being delivered in some Australian aged care facilities. It has been aired in the print and electronic media and now class action lawyers are sniffing the breeze to see if there is a basis to take on the Government and its aged care ‘police force’, the Aged Care Standards & Accreditation Agency.
While the substance of the allegations are serious, what really provoked me to go to print, was the familiar frustrating pattern of the complaints process revealed in the media reports, and how quickly the process becomes the problem, more, it seems, than the complaints themselves. It could be just another demonstration perhaps that benevolent bureaucratic intervention in our lives and relationships can be a veritable triumph of process over performance.
We can be critical of the Complaints Scheme and, as one person described it in the media, the “glacial” pace with which it proceeds to resolve complaints. But why do complaints end up in the apparent sloth-like Scheme in the first place?
For the purposes of this article I will not be addressing the details of the recent allegations recounted in the media. Rather, from my experience and as also highlighted in the media reports, I want to examine how staff deal with complaints in aged care facilities, and specifically, when, why and how to say sorry without being sorry for doing so. After all, to state the bleeding obvious, it is at the facility level where most complaints germinate.
The lifecycle of the complaint
Balancing the care of a resident and the management of their family can be difficult but the quality of complaint handling is a subliminal sign of quality care.
Initially it is important to understand what I call the complaints gestation cycle – a comment begets criticism begets concern begets conflict begets complaint begets calamity begets “A Current Affair”. All along this continuum, the intensity and crescendo builds and the parties’ positions become more implacable and intractable. Added to that conflict cauldron are the warring parties on both sides of the complaints fence who season the conflict to taste with dollops of lies, half-truths, hyperbole, hearsay, obfuscation, memory loss, invention, reconstructions, paranoia, conspiracies and the emergence of previously suppressed family dysfunctions or poor staff training. Balancing the care of a resident and the management of their family can be difficult but the quality of complaint handling is a subliminal sign of quality care.
So, here’s a banal but bald statement: most (not all) complaints in aged care could be resolved quickly with a simple apology. Why do I say that? My experience in being involved in dealing with many complaints and their processes in aged care facilities tells me so.
The trouble is:
•In some cases, it’s personal!
The complaint has so festered and the breakdown in relationships between staff and families is so complete that repressed human instincts erupt and personality rules rationality.
•Staff have been inculcated with the notion to never do or say anything that has even the lingering whiff of a concession of wrong doing or admission of fault on the part of the facility
This ‘give nothing away’ leads to a lack of ‘truth telling’ and the pervasive perception of cover up
•Staff can’t nip an issue in the bud because they can’t identify a comment as the precursor of a complaint
They don’t appreciate the Complaint Gestation Cycle
•Ignorance of the law, both by staff and families, leads to misconceptions and wrong assumptions about rights and obligations
For example, there is a misapprehension that the Enduring Power of Attorney for a resident has almost unfettered discretion to make any decisions they want for a resident when, in reality, there are statutory rules and regulations that restrict those Attorney’s powers.
Apologies and liability
It is not my intention to traverse all these factors in this article except for a combination of two of them – the reluctance to apologise and ignorance of the law.
It has been a legal axiom as old as Methuselah that, beneath a simple ‘sorry’ lurks a potential legal labyrinth. Why do you think John Howard pirouetted around the word when confronted by public demands for a Government apology over the Aboriginal Stolen Generations?
In legal parlance, saying sorry when accused of wrongdoing can mean admitting liability. Such an admission can be tantamount to an invitation to the other party to ‘come and get us – we’re all yours’, because making such a concession overcomes one of the greatest obstacles for the other party in pursuing you, namely, proving you were at fault.
Perhaps the more serious consequence often trumpeted is the effect of ‘sorry’ on your insurance. An apology given without the prior approval of your insurance company, could be a breach of your policy. The consequence of that would be that your policy could be void in the event that the other party instituted legal proceedings and you would be left without insurance cover.
But, but, but… some years ago our lawmakers recognised that these fears were a real barrier to efficiently and cost effectively resolving disputes. The initiative they took as a consequence was also in response to the parlous state of the insurance market earlier this century when many organisations were simply unable to obtain cover.
In most States and Territories a law has been introduced that provides that a person can make an apology to someone else without it being deemed an admission of liability.
In most States and Territories a law has been introduced that provides that a person can make an apology to someone else without it being deemed an admission of liability. In Queensland, for example, section 72D of the Civil Liability Act 2003 is headed “Effect of an Apology on Liability” and states as follows:
1. “An apology made by or on behalf of a person in relation to any matter alleged to have been caused by the person:
•does not constitute an express or implied admission of fault or liability by the person in relation to the matter; and
•is not relevant to the determination of fault or liability in relation to the matter.
2. Evidence of an apology made by a person is not admissible in any civil proceedings as evidence of the fault or liability of the person in relation to the matter.”
State v Commonwealth laws
It is hard to imagine a clearer legal exculpation, if not, an invitation for you to seriously consider an apology as an avenue for the resolution of a complaint without fear of the proverbial dire legal consequences.
Needless to say, this avenue and opportunity arises out of state law. Such law does not generally apply in the Commonwealth sphere. As such, you always need to consider the effect of an apology on any response and recourses available to such age care authorities as the Aged Care Standards and Accreditation Agency when it comes to their sanctioning powers. In addition, it is still not clear whether, even with a legislative protection in place above, that that protection will enable you to make an apology without jeopardising your insurance cover especially where your policy provides that you should not make any unauthorised admissions.
Nevertheless, I repeat, most complaints in aged care can be resolved with an apology. If you accept that, then as an instrument of resolution it should always be at, or near the top of your options. This is particularly so if you understand the dynamics – a complaint usually emanates from or on behalf of a resident who, to put it figuratively, ‘lives with you’ and will usually continue to live with you after the complaint is resolved.
In the pursuit of quality care, it behoves you to try to resume a normal caring relationship with a resident as soon as possible after the event to avoid the ongoing anxiety and stress to the resident, their family and staff not to mention the further public trashing of your and the sector’s reputation.
See the full article including Brian Herd’s tips on the Carne Reidy Herd website.
