Will a good dose of litigation improve aged care?

Where the complaints scheme fails their expectations, fails to deliver satisfaction or any kind of remedy, then the next step for residents is to look at the right to make a legal claim, writes Rodney Lewis.

Like water and oil, lawyers and the health profession do not mix well. Of course, every business requires, as do many ordinary people, legal advice and assistance from time to time. However, the fear of legal intervention in the health professions is real. The often heard phrase “we have a duty of care” is a direct reference to what is generally supposed (incorrectly) to be the beginning and end of the legal dimension to the care and treatment of patients and, in the case of the aged care system, of residents.

Aged care complaints

To illustrate the endemic mindset of avoidance of legal problems in the aged care system one has only to look at the official legislated Aged Care Complaints Scheme. The latest changes to the complaints system existing under the ***Aged Care Act 1997*** (Commonwealth) commenced on 1 August 2013.

It is important to realise that everything which the department publishes about complaints is an encouragement to the resident to utilise the complaints scheme. There is no qualification to that encouragement. There is no separation of claims for relatively minor matters such as late meals, no television, staff attitudinal complaints (where no adverse consequences have occurred), and complaints which have some clearly upsetting, traumatic and perhaps long-term effect upon a resident.

The complaints principles allow that the department, through its secretary, upon receiving a complaint, must either:

• decide to take no action;
• give advice and assistance to the satisfaction of the complainant to quickly resolve the issue; or
• undertake a resolution process.

Deciding to take no action may include reasons of lack of good faith, existing legal proceedings, complaint event being more than one year old, coronial inquiry or that the complaint is better dealt with by another organisation.

If the complaint is not resolved, what then? The options include a review by the Aged Care Commissioner, taking action under the Act by the department and issuing directions to the aged care provider.

Although on the face of it the scheme appears reasonable and it can achieve results in cases of endemic failure of systems for care, it is in the author’s experience, unable to satisfactorily deal with complaints by individual residents in circumstances where serious injury or trauma, whether physical, psychological or emotional, has occurred. This may include circumstances of poor quality care, involving harm to the resident. It may include provider refusal of access to the resident by close relatives. It may include medication error, health treatment without proper consent and unlawful restraint (physical, chemical and environmental).

In many such cases the injury or trauma is such that, to refer the resident or residents’ representative to a conciliation process without ensuring that they have first had proper legal advice on a negotiated outcome is, in itself, taking unfair advantage of the victim/resident.

Nothing in the complaints scheme requires a resident to be referred for legal advice. Granted, a resident may be referred to a (Commonwealth funded) advocacy service. However, of the legal advice which may be sought and given may indeed lead to litigation, an outcome which the scheme eschews.

What litigation is possible?

There are several possibilities for legal action, for issues arising from nursing home care. They include:

• breach of contract for residential aged care;
• negligence in care delivery;
• the tort of battery for administration of medication without consent;
• the tort of personal trespass or false imprisonment where a person is secluded or confined without proper consent (from a Guardian or other legal representative);
• breach of consumer guarantees for poor quality care;
• class action.

There have recently been two publicly announced proposed class actions which will have a significant impact on the question which is found in the title to this article. The first involves a Slater and Gordon (Australia’s first public company legal firm) investigation into injuries and mistreatment. The announced intention is to “investigate the full range of legal options” for those affected.

In a case recently announced in New South Wales by Maurice Blackburn Cashman, a claim will be brought for “solitary confinement, and massive own prescribed doses of psychotropic medications to sedate residents…”. The latter issues are all too frequently complained about, especially in cases of poor quality care of dementia affected residents in residential aged care.

There are, of course, downsides to legal claims. First, the expense, although that can be ameliorated if claims are brought in the consumer claims Tribunal or are included in class actions. There is also delay. There is the risk of loss and the uncertainty which overhangs every legal case and is therefore an inhibiting factor. Often though, it is the family of the injured resident who are most earnest and determined, not so much for revenge, or for money, but to right the wrong and importantly, to attempt to ensure there is no recurrence of the offending behaviour which may harm someone else’s loved one in the future.

Power shifting?

There are clear signs the ground is shifting in favour of residents whose status can be significantly altered from disempowerment to equality of power by several successful class actions of the kind presently under development. It remains for the residents themselves, their delegates (attorneys under power of attorney, enduring guardians) and the residents’ families, to take their complaints the extra mile.

Where the complaints scheme fails their expectations, fails to deliver satisfaction or any kind of remedy, then the next step for residents is to look at the right to make a legal claim. That, after all, is the very first of the rights which are contained in the Aged Care User Rights Principles – the right to have full and effective use of his or her personal, civil, legal and consumer rights. Yes, that’s correct, every resident has their full legal rights and they don’t surrender them upon entering into residential care. Sometimes that is forgotten by residents – but there is no excuse for the Department (now the Department of Social Services) for doing so.

Rodney Lewis has been a practicing lawyer for over 40 years. He is engaged in resolving legal problems for the aged and is author of Elder Law in Australia.