The negligence narrative

An emerging risk for aged care providers is the prospect of facing civil proceedings in negligence, writes Dr Melanie Tan. 

As aged care providers continue to grapple with recent and impending changes in the sector – and corollary exposure to regulatory sanction – there remains the coexistent parallel risk of civil litigation. 

At common law (outside of legislation), aged care providers have a duty of care to exercise reasonable care and skill when delivering care and services. This is a legal obligation that runs in tandem with providers’ regulatory obligations, not independent of it. 

An emerging risk for aged care providers is the prospect of facing civil proceedings in negligence. 

A provider can be negligent at common law – that is, the law developed by judges – if they are found to have breached their duty of care and caused harm to a person as a result.

This can include psychological injury to a resident’s family arising from traumatic events – ‘nervous shock’ claims. 

We are seeing providers being sued by families where residents have died, and where their close relatives allege such death or injury was the result of care delivery or a lack thereof. In recent years, media reports have highlighted cases where litigation has been triggered after residents sustained fatal injuries following a fall, or succumbed to sepsis secondary to a wound infection. 

There are hurdles in proving causation, which is required to establish negligence. But whether a provider has breached its duty of care – to be liable in negligence at common law – must also be understood within the framework of its regulatory obligations, such as dignity of risk or rules to minimise the use of restrictive practices, and in the context of a wilting workforce.

Understanding the difference between regulation and common law, and how these obligations align through a central tenet of clinical governance, could help bridge the gap.

For example, ‘neglect’ is reportable under the Serious Incident Response Scheme and could potentially lead to a claim in negligence. Yet the two are different: negligence at common law requires much more than neglect under the SIRS – which is defined much more broadly.

Firstly, to support a claim in negligence, physical or psychological harm must in fact occur – and to be compensable by way of damages, may need to meet jurisdictional statutory thresholds. A causative link between the injury and negligent act (or omission) must also be established. 

Secondly, whether a provider failed to meet their duty of care can only be determined by the court, not the regulator. 

At the same time, these differences might be aligned by applying a robust clinical governance framework. Understanding how to authentically deliver the best care experience possible not only to consumers, but to their families who share that care experience, can simultaneously mitigate medico-legal and compliance risk by supporting providers’ duty of care whilst meeting regulatory obligations.

Dr Melanie Tan is a clinical governance and medico-legal consultant in the aged care sector

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