Friday 24 September 2021 from 9am

Hours
Minutes
Seconds
LIVE ON RADIO 4CRB:
The Timeline of a Family Provision Claim
Featuring: Senior Associate, April Kennedy

The Final Report – The Royal Commission into Aged Care Quality and Safety

News

The final report has been released by the Royal Commission into Aged Care Quality and Safety. The findings are shocking and extensive, with 148 recommendations made. Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, discusses the findings with Steve Stuttle on Radio 4CRB.

 

Introduction

The Royal Commission into Aged Care Quality and Safety is the most thorough examination of Australia’s aged care system that has ever been undertaken.

The 2,800-page report exposed the grim reality of what Australia’s aging population is faced with: that the current aged care system is beyond repair and needs to be thrown out in its entirety and replaced with a completely new model, supported by new Commonwealth legislation to replace the Aged Care Act 1997. In the final report, titled ‘Care, Dignity and Respect’, Royal Commissioners Tony Pagone QC and Lynelle Briggs AO called for fundamental reform.

New legislation will need to provide a system of aged care based on a universal right to high quality, safe and timely support, and care to assist older people to live an active, self-determined and meaningful life. The new system needs to better protect the rights of older Australians so that they are not exposed to mistreatment, neglect, abuse or harm from poor quality or unsafe care.

Five key recommendations made by the Commissioners

  1. We need a system that focusses on the welfare of the elderly, with care, dignity and respect.
    The current system is based on funding with a sole focus on money. The central issue of making sure older Australians are properly looked after is not the focus. A new Aged Care Act will need to be put in place to fundamentally change the way programs are made available and that they are delivered at a higher standard of quality to meet the needs and preferences of those who depend on aged care.
  1. We need to clear the backlog of people who have been approved for a home care program but are waiting for the care they are entitled to.
    There are currently more than 1,300 elderly or infirm Gold Coast locals waiting for home care support from the Federal Government. Australia-wide, there are almost 100,000 elderly people on the waiting list. In order to help people currently waiting, access aged care packages, half a billion dollars will be allocated to home care immediately.
  1. We need to professionalise the aged care workforce.
    The majority of staff who work in the aged care industry are brilliant, hard-working, and caring, however they are stretched to the limit. They are let down by the lack of resources and training provided to them. One of the primary changes that will need to be implemented will be providing better training, wages, and professional development for aged care workers. A pre-requisite accreditation will be established, including courses which people can complete to be better equipped for working in this industry.
  1. Strict regulations and stronger governance are required.
    A new system will be put in place to better regulate aged care and hold service providers to a higher standard. This will involve implementing an accreditation system where service providers will need to meet certain standards.
  2. Better funding is essential.
    There needs to be more funding for aged care to align with the quality of care we expect the system to deliver. How the government is to structure that funding is yet to be determined, nor has it been outlined exactly how much the recommendations will cost to implement. There will need to be a radical rethink on how aged care is to be funded in the future.

What rights do people have who have been impacted by the current system?

Everyone has the right to age with dignity and have access to the care they need. Sadly, for those who have had this right taken away from them, it is extremely difficult to get appropriate redress and compensation.

So many people have suffered leading up to this point and sadly many older people continue to be victims of a broken system. In many cases, they have been traumatised, abused mentally and physically, and have ongoing physical and psychiatric injuries. Normally, these types of injuries would be compensable by way of damages claims against the nursing homes or facilities they occupy as residents. The same redress would be available to family members who suffer psychological damage as a result of the trauma experienced by their loved ones in care. However, the process of claiming compensation is complex and involves obtaining evidence from treating doctors and medico-legal specialists. In many cases this process of obtaining the evidence to support the claims can be quite distressing for the resident and their family members.

Another reason it is difficult to get redress for those who have fallen victim to mistreatment is because of the age and general health condition of the residents. Many elderly residents have multiple chronic medical conditions, including terminal conditions such as cancer, which make it difficult to determine the impact of the mistreatment. This is often complicated by the resident suffering dementia, which can result in a lack of awareness of issues affecting them and difficulty in providing a proper history.

One of the recommendations made by the Royal Commission was to grant whoever is in charge of the new scheme in the future, the power to award compensation to anyone aggrieved. They will also be able to order penalties against anyone who breaches the new Act.

Learning from tragic events of the past

Disease Outbreaks

In 2020, COVID-19 completely disrupted aged care facilities, where the poor management of the outbreaks sadly cost many elderly residents their lives. During COVID-19, the lockdown directives restricted families from seeing their loved ones in care, which was devastating for everyone involved. Families were unable to reassure their loved ones, or in cases where residents lost their lives, be with their mother, father, sibling, or grandparent to say goodbye or comfort them before they died. There were many families who were unable to get appropriate updates, or any communication at all, regarding the wellbeing of their loved ones. The trauma from these events will have a long-lasting psychological and emotional impact for many people.

From this experience, the Royal Commission recommended that residents always have continuing contact with their families, and that facilities need to do whatever it takes to enable families to continue their contact with residents.

Financial and Contract Disputes

In 2019, the Earle Haven Retirement Village contract dispute shone a spotlight on the mismanagement of aged care facilities and the dire impact this can have on residents. Earle Haven at Nerang shut down in the middle of a cold Winter’s night and evacuated approximately 70 residents, relocating them to different nursing homes, and some residents requiring hospitalisation.

The incident arose from a contractual dispute between the approved aged care provider and a sub-contractor who was providing administrative, nursing, catering, and other support services.

The impact on the vulnerable and fragile elderly residents, many who suffered from dementia and other conditions, was extremely traumatic.

The fact residents had to be rescued from a place that was meant to provide them with care and support is disgraceful and should never have happened. The families of residents were not even made aware of the situation until after their loved ones had already been relocated.

The recommended new regime will hopefully remove the financial focus of facility owners and operators with a strong emphasis on monitoring care standards to prevent any similar catastrophic failures in the future.

What to consider if you are transitioning into aged care now

It is more than likely that the changes recommended by the Royal Commission will take some time to be considered and implemented by the federal government. The fact that the Commissioners themselves could not agree on the best way to achieve the changes required do not auger well for a quick acceptance and implementation by the government. This means that things will not materially change in the near future and people need to take this into account. The most important thing people need to do if they are approaching that next stage in their life and looking to transition into aged care is to speak to experienced professionals in this complex area to get the right advice.

Accredited aged care professionals, such as lawyers and financial planners, understand the complexities of this industry and can assist you in finding solutions to suit your unique financial situation and health needs, whilst balancing your preferences for where you wish to live.

It is important to do your homework and find out as much as you can about your options, whether that is to remain at home and get additional care through the support of a Home Care Package, or by visiting facilities you are interested in moving into.

An Accredited Aged Care Financial Planner can help you structure your finances to ensure you are getting the best from the system, whilst an Accredited Aged Care Lawyer can ensure you understand your rights and obligations under any agreements you enter into prior to making that move, as well as help you with your estate planning (i.e. drafting your Will and Enduring Power of Attorney).

The aged care industry changes rapidly, with the biggest changes yet to come. By speaking with an Accredited Aged Care Professional, you can have confidence in knowing that you are getting up-to-date information that is relevant to your specific circumstances.

How can Attwood Marshall Lawyers help?

Attwood Marshall Lawyers have a dedicated team that practice exclusively in Aged Care and Wills and Estates.  We’re here to help you transition through the next chapter of your life. For enquiries concerning transitioning to aged care, service agreements or estate planning advice, please contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071. We provide a free initial telephone consultation. Call our office today!

Read more: Part 1: Transitioning to aged care – it’s important to plan for the future
Read more: Part 2: What to expect when entering a residential aged care facility
Read more: Why you must get legal advice before signing Retirement Village Agreements
Read more: Government inquiry into Earle Haven is no forum for legal compensation

Share this article

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on print
Print
Share on email
Email

Contact the author

Download a Brochure

Please enter your details below and
a link will be emailed to you
Download Form

Compensation Law

Select your state