Laws regulating the aged care sector need urgent overhaul

The legal deck is stacked against people injured or killed in aged care. The recent COVID outbreak in Victorian facilities highlights the absence of oversight in aged care homes exposed to coronavirus. The problem does not lie solely with the homes but with numerous bodies responsible for the care and wellbeing of those in care.

Polaris client Maureen O’Brien narrowly survived a coronavirus infection acquired at Epping Gardens aged care home after her daughter, Donna asked ambulance officers to take her mum to hospital.
What we know about what happened to Maureen at Epping Gardens is appalling. What is even worse is that we might never know the full extent of what occurred, and what she now lives with, or what further complications she may have in the future, as a result.

There are a number of bodies responsible for ensuring that what happened to Maureen can and should be prevented.

But what this outbreak has demonstrated is a complete lack of accountability and responsiveness from those bodies, including the Federal Minister. The impact of “light touch” regulation being gamed by private providers who aren’t appropriately regulated has a big part to play.

Aged care residents like Maureen, their families and all the hard working and low paid staff at facilities across Australia are left to suffer the fallout.

In this vacuum of accountability, one of the few remaining ways to hold care providers to account, is via legal action in negligence.

But even then, there are a number of barriers to holding aged care providers to account via legal action. Unscrupulous providers know this. They structure themselves and plan the provision of their services in a way that shields them from that accountability.

For instance, the Wrongs Act applies in Victoria to compensation claims arising from medical treatment and aged care. Generally, compensation for pain and suffering damages can only be awarded to medical patients and residents of care and other facilities where there has been a permanent significant injury.

In summary, legal claims for harm caused to aged care residents are particularly difficult because:

1. proving negligence or an assault can be particularly difficult where there is no proof, or where an aged care resident has no recollection of what happened to them;
2. even if negligence or an assault can be proved, the death of a loved one does not automatically result in compensation being paid;
3. the prospect of bringing legal action against the people responsible for the care of the person is very daunting to a lot of people – fearing that the prospect of a claim could result in even worse treatment of the resident;
4. injuries or illnesses which substantially resolve are very poorly compensated (if at all), because of the requirement to prove a permanent significant injury according to the Wrongs Act;
5. where an elderly relative dies as a result of negligent treatment, compensation for pain and suffering for that loss will only be awarded where relatives can establish that they have suffered a permanent significant psychiatric injury in accordance with the Wrongs Act;
6. “mere grief” will not be sufficient for compensation to be awarded;
7. the amount of compensation which might be awarded (even if the case is successful) is likely to be very modest, and there is a significant risk that the costs of legal action will outweigh or significantly drain the compensation awarded to the injured person or to loved ones.

Claims in negligence are about providing compensation to a person to “put them back in the position they would have been, but for the conduct”. But even if a claim for compensation didn’t face the above hurdles, how on earth could Maureen, her family, or anyone else in a similar position be “put back into the position they were in”?

Here, the law of compensation substantially overstates what can be achieved. Catching COVID, having to call an ambulance to be able to leave Epping Gardens, sustaining unexplained bruises, and having the danger and humiliation of used PPE and men’s shoes dumped at her new residence is unacceptable in anyone’s language. The law of negligence as it stands in Victoria, however, is not equipped to respond to those sorts of perils and humiliations.

Australia has an ageing population and there are no signs of this waning. More and more people will be resorting to services within our aged care sector, and relying on laws and regulators to protect them when they are most vulnerable.

Unless the public demand a change to the legal structures and unless we demand better accountability, the treatment of our aged and aging population will be put second to financial gain by under regulated and unscrupulous providers.