On Wednesday 27 November, our Principal, Catherine Henry, spoke at the Aged Care Royal Commission’s Newcastle Community Forum. Her statement follows.
I am a health and aged care lawyer practising in Newcastle. For the last 10 of my 30 years in specialisation in the health law area, I’ve been involved in the legal aspects of aged care principally handling negligence cases against aged care facilities. Despite the work that I do, I have found a lot of what we have heard this morning confronting – so many tragic stories.
I am also the national spokesperson on aged care issues for the Australian Lawyers Alliance – a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.
My focus in this brief statement is on the legal and regulatory aspects of aged care.
We’ve seen a lot happening in the Hunter in recent times in aged care. We have seen sanctions imposed on aged care facilities with significant local media attention. Tinonee Gardens had its accreditation revoked in November 2018 due to reported instances of unacceptable care.
The day after unannounced re-accreditation audits were introduced by the Federal government on 1 July 2018 – a welcome reform – the Bethel aged care facility – also in Waratah like Tinonee Gardens – was the subject of a well-publicised decision that the safety, health and wellbeing of care recipients was being placed at serious risk.
Incidents involving appalling clinical care at the Summit Care residential aged care facility in Wallsend have played out in the media – on the ABC’s 7.30 report and in the Newcastle Herald. The same aged care facility was of course the subject of much media attention during the prosecution and trial of employed AIN, Gary Davis who was ultimately convicted of the murder of two aged care residents and the attempted murder of a third due to lethal injections of insulin. Gary Davis is now serving a 40-year sentence for those crimes. I acted for two of the families in civil actions against Summit Care. The case is very instructive from the perspective of aged care staffing issues.
The 2-part ABC 4 Corners programme featured two Hunter residents – both are clients of the firm.
Through my aged care work over the course of the last decade, it is clear that the regulatory regime currently in place is not working. The cases of substandard clinical care I have seen demonstrate failure in governance, accountability, policy and the regulatory framework.
I strongly support the statement made by the Commission in its interim report – that a “fundamental overhaul of the design, objectives, regulation and funding of aged care in this country is required”.
The current system places undue focus on internal complaint mechanisms. The Aged Care Quality and Safety Commission (the Commission) and the Government funded Older Persons Advocacy Network (OPAN) still direct complainants back to their service providers. This practice fails to properly recognise the implicit threat of reprisal following the making of a complaint and reprisals and retribution do occur in my experience.
We need a new Aged Care Act – one that ensures transparency and accountability. The current Act does not use the terms “regulation” or “regulatory system” in relation to compliance systems. It has nothing meaningful to say about staffing of facilities – often put at the front and centre of aged care reform issues. All the predictions of those speaking against the introduction of the Aged Care Bill back in 1997 have been realised – then Senator Gibbs of Queensland described the new legislation as a “reckless act” by a government captured by the private nursing home lobby.
The Commission – apart from lacking independence – is a poor investigative model having a multiplicity of functions within the one body – accreditation, assessment, monitoring, compliance and complaints management for all care providers.
The Australian Lawyers Alliance and I support the introduction of an independent tribunal – along the lines of the NSW Health Care Complaints Commission – to hear complaints of substandard care with functions including the hearing of complaints with powers to issue fines; the power to cancel accreditation; to publicly reprimand providers; and to order monetary compensation. Hearings could be conducted by the NSW Civil and Administrative Tribunal.
Currently consumers are not provided compensation unless they undertake civil litigation on a private basis which is -in large part – the work I do. The managers and boards of residential aged care facilities should be held personally accountable when standards are not met. It’s not sufficient to revoke accreditation only to have it re-conferred in a subsequent accreditation inspection (as this Commission has heard in evidence). Those who suffer as a result of unarguable clinical negligence are entitled to claim compensation.
There are also clear benefits of common law litigation in maintaining professional standards in the aged care industry. The families of residents will not in my experience be so much concerned with the level of compensation as sending an effective message to the system that has failed to meet community expectations and to provide a reasonable level of care to one of society’s most vulnerable groups.
Image: Catherine Henry with geriatricians Dr John Ward and Dr Kevin Grant