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New legal push to stem chemical restraint of aged care residents

Posted on 7th September 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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New legal push to stem chemical restraint of aged care residents

Two law firms are teaming up to use a new legal push to help residents being chemically restrained in aged care facilities, and their concerned family members.

Hunter-based Catherine Henry Lawyers and Sydney-based ElderLaw Legal Services say a recent audit showing 90 per cent of residents at a Newcastle nursing home had received psychotropic drugs without prior written consent should be viewed as unlawful rather than mere non-compliance with aged care regulations.

Anglican Care’s Greenmount Gardens in Mt Hutton was deemed non-compliant by the Aged Care Quality and Safety Commission auditors after an inspection last April. The nursing home admitted there were no written consents from family members or guardians for the 35 out of 39 residents at Greenmount Gardens who had received the drugs.

The firms are working together to help families launch legal action through the NSW Civil and Administrative Tribunal (NCAT) Consumer Division.

Catherine Henry Lawyers principal, Catherine Henry, said inappropriate chemical restraint of aged care residents has been a problem for many years and her firm has helped families of loved ones to make complaints and take common law action against aged care facilities.

She said applying consumer law remedies, such as NCAT, is a new approach that could deliver families justice faster and hit aged care facilities in their hip pocket so that they change their ways.

“If aged care facilities are chemically restraining or are prescribing psychotropic medications without proper legal written consent or in cases of imminent harm, they are effectively breaking a resident’s statement of rights, their standards of good care and service, as well as committing the common law offence of unlawful detention,” Ms Henry said.

“Penalising the provider is one thing, but that doesn’t compensate the suffering resident,” she said.

“The resident should have some or all of their aged care fees refunded because the provider has failed to provide the service it said it would.”

Senior solicitor at ElderLaw Legal Services, Rodney Lewis, who is also the author of Elder Law in Australia, said the new legal avenue for families will also be a powerful signal to providers and the aged care regulator that a corner has turned in opposing this bad practice.

He said the overuse and inappropriate use of psychotropic medication in nursing homes was a key issue identified by the Royal Commission into Aged Care Quality and Safety. The Federal Government has recently changed the law in response to the Royal Commission’s recommendations.

“The Royal Commission made a recommendation and outlined it as a top priority in both its 2019 interim report and its final report,” Mr Lewis said.

“New legislation is welcome, but the problem is still widespread, and continuing” he said.

“Despite the prominence of the issue and legislation change we are still seeing aged care homes breaking both the law and the protocols by effectively chemically restraining residents.”

“Being deemed non-compliant by the regulator is not a sufficient penalty to effect change.”

“Litigation is a tool for social education, and we need there to be consequences for unlawful behaviour.”

Psychotropic medications affect the mind, emotions, and behaviour – and include antipsychotics, antidepressants, and benzodiazepines to manage anxiety and insomnia.

According to the Royal Australian and New Zealand College of Psychiatrists RANZCP, verbal consent is only appropriate in an emergency or where there is imminent harm to the person or to others. Written, informed consent should be obtained as soon as practicable.

Ms Henry said family members who are concerned about or wanting to take legal action over loved ones in aged care facilities receiving inappropriate drugs or being chemically restrained should call her firm on 1800 874 949 or ElderLaw Legal Services on 9979 1009.

Media information: Craig Eardley on 0437477493. Interviews with Ms Henry and Mr Lewis are available.

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