Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Deja vu for the aged care sector: COVID-19 continues to wreak havoc with our elderly – Morrison Government gets it wrong again!


From bad to worse

There is no question that the COVID-19 pandemic has had a profound impact on older Australians.

The latest COVID outbreak has worked its way through aged care facilities across the country, particularly in New South Wales, Victoria and more recently in Queensland. Although grave lessons should have been learned from the COVID-related deaths that happened in aged care facilities in Victoria and NSW in 2020, sadly history is repeating itself and it is expected that deaths will continue to rise throughout February and well into March this year.

Too many lives are being cut short due to the government failing to prioritise the elderly and deliver much-needed change to the aged care sector, as was recommended by the Royal Commission into Aged Care and Safety. Recent statements by the federal minister for Senior Australians and Aged Care, Richard Colbeck, would have us believe otherwise:

“The sector is performing and has performed exceptionally well in the work that it’s doing”

Over 60,000 aged care residents are yet to have a booster shot and infections in aged care exceed 30,000 cases. A new report prepared by the Australian Aged Care Collaboration provides stark detail on the rapid increase of deaths with the toll expected to break the 600 mark in early February. The report also refers to workforce shortages remaining a critical problem for the sector, with an astounding 25% of shifts (about 140,000 per week), going unfilled. The report laments the fact there are no figures for aged care people receiving home care packages and critcises the federal government’s attempt to downplay the death toll by stating these are mainly palliative care residents. This dismissal of the death figures prompted one journalist to state:

I’ve seen a lot of shabby things from all sides of politics in my time, but Morrison and Hunt trying to wave away hundreds of deaths — usually cut off from their loved ones and spending their last hours alone — because they would have died in a few months anyway is one of the most nauseating things I’ve ever heard. It borders on eugenics.

Immediate action required

After the Royal Commission into Aged Care Quality and Safety delivered their final report on February 2021, to support older Australians, aged care workers, and the industry as a whole, it was expected that one year on we would start seeing the fruits of the Royal Commission’s labour.

Sadly, this is yet to be seen and as COVID continues to cause havoc across the country, the elderly are the most disadvantaged, with hundreds still losing their lives to the virus each month.

The government has failed to support the industry and make the necessary changes to better protect the elderly, and support those who work in the industry, which we should have seen come into play before the new year rolled in.

It was on 1st October 2020 that the Royal Commission into Aged Care Quality and Safety released a special report into the impact COVID-19 was having on the aged care industry and outlined immediate areas for action.

The following recommendations were made within the report:

  1. The Australian Government should report to Parliament by no later than 1 December 2020 on the implementation of the recommendations outlined in the special report.
  2. The Government should immediately fund aged care providers that apply for funding to ensure there is adequate staff available to allow continued visits from family and friends to people living in residential aged care.
  3. The Government should urgently create Medicare Benefits Schedule items to increase the provision of allied health services, including mental health services, to people in aged care during the pandemic.
  4. The Government should establish a national aged care plan for COVID-19 through the National Cabinet in consultation with the aged care sector.
  5. All residential aged care homes should have one or more trained infection control officers as a condition of accreditation.
  6. It should be arranged by the Government for states and territories to deploy accredited infection prevention and control experts into residential aged care homes to provide training, assist with the preparation of outbreak management plans and assist with any outbreaks that occur.

The government accepted all six recommendations.

In line with recommendation four, in November 2020 the Updated National COVID-19 Aged Care Plan (7th edition) was released to tackle the risks older people and aged care facilities faced in the wake of the pandemic.

This aged care plan in conjunction with the Australian Health Sector Emergency Response Plan for Novel Coronavirus aimed to provide a consistent national approach to respond to the pandemic and protect those most vulnerable.

The government has confirmed the first four recommendations have been accepted and delivered, however, the last two remain in progress.

As the new year continues to roll on, January saw devastating numbers of deaths for 389 aged care residents who lost their lives as a result of COVID.

The number of aged care residents who have died and will continue to die of not just COVID-19, but also malnourishment and neglect because of the ongoing staff shortage crisis will never be fully realised. These failures have been exposed as lethal negligence.

Why facilities are struggling to contain outbreaks and support residents

It is a case of gross mismanagement in relation to how the facilities have been looked after.

The booster rollout which was meant to be one of the most important strategies to prevent against hospitalization, death, and the spread of COVID, has been delayed, as was the initial rollout of the mandatory vaccination program to the aged care industry in 2021.

The vaccination issue is a separate issue to the staff shortage crisis, although it did not help the situation by losing a small percentage of staff who chose to not get vaccinated, or were unable to get vaccinated, only adding more pressure to an already struggling workforce.

Despite the government stating there is no crisis, the critical staff shortages across the aged care sector as well as health care, in general, is causing havoc.

It has been reported that almost a quarter of aged care shifts have been unfilled each week. That is approximately 140,000 shifts a week! The disability sector has also suffered critical losses within their workforce, reporting up to 30% of roster vacancies during the latest outbreak of Omicron.

Despite the government promising aged care workers a $400 bonus payment to support them, which disability workers were not eligible to receive, the National Disability Services Chief Executive, Laurie Leigh, has said “this did not scratch the surface” of what is required within the industry.

To make matters worse, the government has also failed to adopt a recommendation to increase the pay of aged care workers to help retain as many workers as possible in the sector and attract new people to the industry.

It’s a recipe for disaster and is no doubt going to cost hundreds of lives that could have otherwise been spared.

The hard-working aged care workers that remain in the industry are on the frontline dealing with the government’s shortfall and are doing their best to get by and show up each day to support the elderly. Those that are able to work, they are having to work in difficult conditions, take on extended hours, mostly without recognition.

There are fears that the industry will continue to lose workers because of the grueling work environment and lack of support and recognition from the government.

What was expected to be delivered by the government to support aged care coming into 2022?

A long list of recommendations, monitoring and ensuring that the facilities have certain minimum criteria in relation to how they are run should have been made a priority for the government, however, as 2022 kicks off it appears nothing substantial has been implemented.

There was supposed to be a new board to oversee the implementation of all of the recommendations made by the Royal Commission, as well as a system to look at any disciplinary issues and monitoring of aged care facilities, which also has not been done.

The vaccination rollout, including ensuring boosters were administered to all residents, has been bungled, leaving those most vulnerable still vulnerable to significant illness from the virus.

On 24 December 2021, the Australian Government announced the interval between a second dose of a COVID vaccine and a booster dose would be shortened from 5 months to 4 months in January, and from 4 months to 3 months from 31st January onwards.

Despite these changes announced, the government admitted that they are behind in their rollout of booster shots with hundreds of facilities still waiting to receive them.

Mandating vaccines but then making it difficult for staff to even obtain these only applied more pressure to an already buckling industry.

In addition to the bungled vaccination rollout, the lack of PPE (personal protective equipment) and RATs (rapid antigen tests) has been another headache for the community and aged care facilities to navigate.

The government also failed to respond to the aged care royal commission COVID report recommendation which expressed the need for additional funding for aged care so that residents could continue to receive visitors during the pandemic, and not be cut off from their loved ones and the outside world. Although the government have marked this recommendation as “accepted and delivered”, the reality is there were nearly 500 aged care facilities in Australia placed into lockdown in January alone, restricting elderly residents from seeing their loved ones

The impact of lockdowns and isolation on aged care residents

Lockdowns and restricting access for people to see their loved ones in aged care facilities is shocking on both sides. The elderly want to see their family, and restricting this access certainly impacts their mental health and wellbeing. In many instances, when an older person in a facility becomes ill, or if they contract COVID, if they are in isolation they are on their own unsupported by their loved ones, and in many cases die alone. This is extremely devastating for the loved ones they also leave behind.

One of the issues that contributed to the need for facilities to continue to be locked down was the staffing shortages which have made it extremely difficult to manage visitors coming into centres and trying to follow appropriate safety protocols to reduce the risk of the virus spreading further.

We know what isolation already does to the elderly who rely on a sense of security and routine and need to see their loved ones for reassurance and general mental health and wellbeing.

Loneliness and isolation on their own are associated with poor physical and mental health and may increase the risk of premature death. This in conjunction with the spread of COVID is a recipe for disaster. 

What options do aged care residents, or their families, have if they can see a facility is buckling under the pressure?

The options are limited. If someone has COVID or an illness, then the option of moving that resident to another facility is almost impossible, and ultimately the only other alternative is if the resident ends up in hospital.

One of the recommendations of the Royal Commission was to implement an independent body to look into these types of issues, to review these situations and where appropriate ensure that operators are held accountable. Unfortunately, these measures have not yet been set up.

Aged care agreements are notoriously difficult to break, so if families want to move their elderly relative and break their lease or agreement, that can have significant costly consequences.

When it comes to lockdowns being imposed, family and loved ones can do little about it.

For the family who is faced with the devasting loss of their elderly relative as a result of COVID-19, there is little that can be claimed in regard to damages for wrongful death if that person’s death was caused due to negligence, or failure to contain an outbreak and protect that person from being exposed to the virus.

Across the eastern seaboard, we have received many enquiries from family members of people who have passed away in nursing homes and aged care facilities and they do not believe that their parent or grandparent was looked after properly by the facility.

There’s been nothing done by the government to look after these people who are left behind distraught and wanting someone to be held accountable. It leaves family members angry, stricken with grief, and feeling like they have nowhere to turn.

Unfortunately, in Australia, we do not have any action for an unlawful death. When you die your compensation claim dies with you. It is a limited compensation claim that the deceased person or their estate would have and the only compensation that the loved ones who are left behind can bring is if they have suffered a diagnosable psychological or psychiatric condition as a result of what has happened which would allow them to claim damages for that medical injury.

Attwood Marshall Lawyers – supporting older Australians

We can only hope that the government will make good on their promises and that the changes they have promised will start to see the light of day as the year rolls on to improve the aged care industry.

We continue to advocate for significant change to take place to better protect the elderly and the aged care sector as we move into our third year of the pandemic.

If you are considering moving into aged care and need advice, or want to understand what you can put in place to ensure that someone can advocate for you whilst you are living in an aged care facility, we have accredited aged care professionals ready to assist you. We can help you and your family to change your circumstances and claim compensation.

For aged care advice or estate planning advice, contact our team any time on 1800 621 071. Alternatively, you can contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email or book an appointment online instantly by clicking here.

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Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

Jeff Garrett

Legal Practice Director
Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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