This week is Aged Care Week and, sadly, the plight of older Australians living in aged care has again been in the spotlight for all the wrong reasons.

Prominent geriatrician and head of the health law and ageing research unit at Monash University, Professor Joseph Ibrahim, told the Aged Care Royal Commission that Australia’s rate of death in residential aged care is more than 68% – the second-highest in the world behind Canada at 80%.

What we have seen unfold in Victoria’s residential aged care homes is a nightmare that could easily happen in other parts of Australia. It did happen in NSW aged care facilities earlier in the pandemic. Almost 70 per cent of all Covid-19 deaths in Australia have been related to aged care and more than 1,000 have tested positive.

This week, the Royal Commission into Aged Care Quality and Safety is looking at how aged care facilities have responded to Covid-19.  The evidence began with senior counsel assisting, Peter Rozen QC, claiming that federal authorities had failed to make a specific plan for Covid-19 in residential aged care facilities and was “under prepared”. The Federal Government must take responsibility for this crisis. It is not enough for the Prime Minister to say “sorry”.

The revelations from the Royal Commission come after it was announced last week that the Victorian coroner will investigate the Covid-19 deaths at St Basils aged care facility. The NSW coroner is said to be doing the same in respect to the Newmarch House deaths.

Why are we seeing so many Covid-19 deaths in aged care?

It is not just that older Australians are more vulnerable to Covid-19.

The reasons for the crisis are systemic. We have a chronically underfunded and poorly regulated aged care sector staffed by unskilled or inadequately trained workers not equipped to deal with high-grade medical issues – and certainly not infection control. Aged care facilities cannot be expected to act as proxy hospitals.

There are good aged care facilities. Last week the media reported on a NSW aged care facility successfully averting a Covid-19 crisis through appropriate systems, appropriate staffing and proper planning. Sadly, that is an atypical situation.

We must learn quickly from these tragic situations to prevent more unnecessary deaths and, for the sake of the families involved, hold those responsible to account.

It was shocking to hear head of the Federal Health Department, Dr Brendan Murphy, say he did not think it appropriate to name those facilities currently battling Covid-19 due to the risk of reputational damage. The Aged Care Minister backed those comments. The Royal Commission also said it will not be looking to apportion blame over these tragic Covid-19 related deaths in its inquiry.

We would not accept that lack of transparency in any other setting. We must look at these deaths for what they are – wilful and reckless neglect and clinical mistreatment of frail elderly patients.

Coronial investigations are welcome as the coroner appointed will look at what happened and whether there has been compliance with appropriate standards of practice. A coroner has the power to make recommendations about how practices can be improved but government offices are full of sets of coronial recommendations sitting around gathering dust.

A coroner also has the power to refer conduct to the Director of Public Prosecutions for the consideration of criminal charges. Manslaughter by criminal negligence would be the appropriate charge. However, experience shows that criminal sanctions are very unlikely. Here in Australia – as in the UK – we have had very few prosecutions of health providers for medically negligent manslaughter – and only one successful prosecution more than 200 years ago.

We know that regulation of the residential aged care system has been extremely poor. The Aged Care Quality and Safety Commission – and its predecessor – has been ineffective because it is lacking independence and transparency. We have an Aged Care Act that does not mention the word “regulation” and was written by aged care providers for providers.

Actions in negligence brought by family members of aged care residents whose deaths were avoidable will help hold those who have not complied with the relevant standard of care to account. This type of legal action has been shown to be an effective way to achieve change in systems in the aged care sector and the health sector.

The Federal Government must take responsibility for this crisis. Before the Royal Commission, we’d had 20 inquiries in as many years into aged care. Yet successive governments have not acted to reform our aged care system.

Covid-19 is in many ways just the next thing to expose the systemic problems in an aged care system that now demands a major overhaul.

Older Australians deserve better.

Catherine Henry is Principal at Catherine Henry Lawyers and a health and aged care lawyer and advocate. She is also the national spokesperson on aged care for the Australian Lawyers Alliance.