Brisbane’s Legal Lowdown: Understanding the Aged Care Complaints Process

Carla: It is Brisbane’s Legal Lowdown with Attwood Marshall Lawyers. Today we’re going to be talking about aged care, more importantly, what you can do when something doesn’t feel right, or something goes wrong.

The aged care complaints process in Australia has changed significantly. This came into effect in November last year and it was meant to make it stronger and a more rights-based system under this new Aged Care Act. But like any new system that gets put in place, there’s times where we might feel a little overwhelmed and it’s hard to navigate it.

And it’s certainly that way for many older Australians and their families when they’ve gone to use it. We often hear from family members who are worried about a loved one who feel helpless or unsure where to turn or even afraid to speak up.

So today we’re joined once again by accredited aged care professional and senior paralegal, Bindy Marshall from Attwood Marshall Lawyers, to help us understand what you can do if a loved one needs to make a complaint about aged care and what protections are in place if they do.

Like I said, the open line number 133 882, if you’ve got any questions. Bindy is here to help you wade your way through all of that.

Hello, Bindy.

Bindy: Hello, how are you?

Carla: Look, I’m well. Like I said in the intro there, this was something that was put into place in November last year. It was meant to help streamline the process. It was meant to help things. And for families and for loved ones and for older Australians, it was meant to make it easier, but it feels like it has not done that at all.

Bindy: Look, the aged care system has definitely gone through its clunky phase. We’ve seen that time and time again. For the last few months, it has just been, quite honestly, a bit of a nightmare. But when we’re looking at the complaint side of things, it’s really difficult when you are really emotionally involved, whether you are a neighbour, a family member, or a spouse, there’s a lot of fear of retribution around, I can’t make a complaint because it’s going to affect my loved one.

But there are different forms and ways to make the complaint. I mean, obviously you have to think logically. You have to take the emotion and the sting out of the tail and be factual. Write down some things and then go to the provider. And that’s first and foremost, that’s what I would do first and foremost, is go to the provider and if you don’t get a good outcome, well then that’s when we get into the nitty-gritty of making a formal complaint to the Aged Care Quality and Safety Commission.

Carla: I guess because when something doesn’t feel right with the care someone, I guess, is receiving, you can see it happening. What is the first step then that families should take when they’re advocating for a loved one?

Bindy: Yeah, when advocating for a loved one, like I said, the best thing to do is to sit and write down exactly what’s happened. Names, dates, times, really important to record all of those things and then go and have a conversation.

A lot of the providers are quite open. If the person that you have the conflict with is sitting in a position of power, how go a higher, go to someone who’s approachable, who will listen to your complaint because ultimately they don’t want the Aged Care Quality and Safety Commission involved because obviously there’s marks against them, you know, that they don’t want that.

So, they’ll do whatever they can do to try and pacify and make sure that it doesn’t happen again.

Carla: What happens if you don’t have that concrete evidence, the time, the date, the place, the person, you don’t have any of that and you go on gut feel or you can go on the way that your loved one is withdrawn or has started refusing food or, you know, for whatever reason it might be, you can’t prove what’s happened to them. Where do you go to from there?

Bindy: Look, I think that’s when you should meet with the clinical care manager at the facility or the aged care provider themselves. It might be a home care provider. That’s when you meet with the clinical care team and you say, look, I’ve got these concerns and they might say to you, look, we’ve noticed that too. Why don’t we implement X, Y and Z together? It’s their job to work with you. However, if you find that you have not had an adequate response from them, then you can lodge a complaint with the Aged Care Quality and Safety Commission.

Carla: Okay, because that’s what I was going to ask, what are the next steps? If you’ve made that complaint, and this has happened to a girlfriend just recently, it’s fallen on deaf ears, they don’t care. You can’t prove it. So what do you do now?

Bindy: I went through it just before Christmas with my own father-in-law.

So I can speak from first-hand experience what has happened.

So I still have a complaint currently with the Aged Care Quality and Safety Commission. There are different ways you can lodge your complaint. You can be anonymous, you can go on the record, or you can provide feedback. So, under the new reforms, rather than it be a formal complaint over the phone or in writing with someone, you can provide feedback. So you can phone the commission and say, look, I have a complaint about shady pines. My Aunt Beatrice is in shady pines and they have removed her buzzers at night because they don’t want to be, the nursing staff don’t want to be disturbed. So therefore they’re removing all buzzers out of the rooms. And when people start to call out, they sedate them.

So they will take that feedback on and they will monitor that with the facility and ensure that those changes are made. But remember, when you are making a complaint, it’s really important to identify yourself.

I have, I’ve identified exactly who I am because I want to stay up to date. I want the feedback. I want to know that something’s changing with the complaints that I’ve put through.

Carla: Yeah, I was going to say, you want to know that effect is being made, that changes are being made. If you’ve got a question for Bindy here today, Bindy Marshall, accredited aged care professional and senior paralegal from Attwood Marshall Lawyers, please feel free to text through 0499 880 882 or the open line 133 882.

You’ve said you can do complaints via writing, you can do it over the phone, you can do it in person, you can do feedback forms, presumably all of these things that exist online as well. And one of the biggest fears when you do provide feedback or a complaint is that fear of retribution, that people worry that speaking up will impact the care that is then given to their loved one. Are there protections in place for people who do make a complaint, like through a clear line of…

Bindy: Absolutely, there are. I want to make that really clear. Unless, if it’s broken, we can’t fix the problem unless you provide the feedback to the people. I just want to make that really clear. There is no fear of retribution. You should not be afraid to speak out.

The reason I’m saying that is because there are whistleblower protections in place. That means if you are working in the aged care sector, or if you are a spouse, family member, or even if it’s yourself, there are whistleblower protections in place to ensure that your loved one is not impacted in any way.

Carla: Okay. So I know that you said you’ve identified yourself when you’ve made a complaint on behalf of your father-in-law. If you do make one anonymously, are there any provisions in place to, I guess, make sure that your complaint or your feedback is heard? How do you know if it actually takes place?

Bindy: So the department will follow it through, but you are not provided with the updates if you remain a knowledge, they cannot update it.

Carla: So that is a total downside.

Bindy: Correct.

Carla: Once a complaint is made, you know, if you do put your name to it, you’re informed then, you’re kept up to date of any changes. Are you, in your experience, have you seen change come into effect when this has happened? Does it actually help the situation?

Bindy: Yeah, it does. And the reason being is just because it happened to my father-in-law, I’m trying to prevent it happening to someone else. So therefore, when you make the complaint, then it filters through to the people who go to the aged care facility to check, it’s a special department, they will check certain things that might be under their governance and assurance, or it might be the lifestyle program that they’re looking at, or it might just be their clinical care that they’re looking at.

So, there’s specific things that they will go in to inspect and look at. And if their processes are not up to scratch, well, then they will soon know. They also check in with other residents. It’s really important that it’s not just you, you’re just starting it. They will then go and check with other residents of the facility or staff and like I said, there are protections in place for those staff members who are afraid to whistleblow as well.

Carla: I mean, that is a good thing. It’s easy to talk about then, I guess, to see it in practice. Okay, what happens then, you’ve ticked all the boxes, you’ve made the complaints, you’ve gone through all the correct avenues, but nothing has changed. Maybe the situation’s got worse or nothing has improved. What’s the next steps?

Bindy: Well, the next step is you absolutely need to make another complaint to the Aged Care Quality and Safety Commission. They do take these really seriously.

Carla: Okay, all right.

Bindy: If there’s been a couple of breaches for the same thing, like mismanagement of medications, that’s happened. Like I was talking about, the buzzers being removed out of rooms. So, they will absolutely come down heavy. I just want to make it really clear that they don’t muck about with these. The people you speak to are compassionate, kind and understanding on the phone.

You obviously need to be aware of the process, and they will make you aware of every step of the way. They will not push you to do something you are not comfortable to do, but it’s always smart to give your name, number and details so that they can keep you updated. You can follow that complaint through and keep it alive until there’s a resolution.

Carla: Yeah.

Bindy: So it’s really important.

Carla: That’s the important thing there, that there is a resolution that all parties have sort of come to the table with their best possible solution to the issue. Bindy, it’s always a pleasure when you join us. We learn so much more. This new Aged Care Act, yes, it has teething issues. It definitely needs some bedding in. It’s been a few months now. You thought they would have sort of ironed those out beforehand, before putting it into practice. We appreciate your time. Thank you so much for joining us here in the legal lowdown today.

Bindy: Thank you so much for having me.