Aged care providers that fail to provide quality care should be fined, and residents who are neglected should be given compensation, a specialist aged care lawyer has said.

Catherine Henry told the Royal Commission into Aged Care Quality and Safety, “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.”

“The managers and boards of residential aged care facilities should be held personally accountable when standards are not met.”

A tribunal should be established to “hold aged care to account”

In a blog this week about her speech to the Royal Commission, Catherine Henry said a tribunal should be established to hear cases of failings in aged care, with powers that would enable it to impose penalties on providers that are not doing the right thing.

Ms Henry suggested the tribunal should hear complaints about aged care and should have the power to:

  • issue fines,
  • cancel accreditation,
  • publicly reprimand providers, and 
  • order monetary compensation. 

“There needs to be an independent tribunal – along the lines of the NSW Health Care Complaints Commission – to hear complaints of substandard care,” she said.

“Hearings could be conducted by the NSW Civil and Administrative Tribunal,” Ms Henry proposed. 

The Australian Lawyers Alliance (ALA), an association of lawyers and academics that promotes justice, freedom and the rights of the individual, issued a statement saying, “An independent tribunal to hear complaints of substandard care and with the power to issue fines and order monetary compensation would help hold the aged care sector to account.”

“Those who suffer negligence are entitled to compensation”

Ms Henry said people who are subjected to substandard care or neglect in aged care facilities only receive compensation if they take private legal action.

“Those who suffer as a result of unarguable clinical negligence are entitled to claim compensation,” she said.

Ms Henry said families of residents are less concerned about the amount of compensation they receive, than they are about sending a “message to the system” that it has failed to meet community expectations, and has failed to provide a reasonable level of care to some of society’s most vulnerable people.

System needs a complete overhaul

Ms Henry told the Royal Commission that Australia’s aged care system needs a complete overhaul.

“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,” she said.

Complaints-based system vulnerable to threats of retribution

Ms Henry said the current system places too much emphasis on internal complaint mechanisms, which put those who complain at risk of retribution from aged care staff. 

Both the Aged Care Quality and Safety Commission and the Older Persons Advocacy Network (OPAN) direct complainants back to the service providers, she noted. 

“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,” she observed.

Aged Care Art weak on regulation, staffing

“We need a new Aged Care Act – one that ensures transparency and accountability,” Ms Henry said.

In her speech, Ms Henry, who is also national spokesperson on aged care for the ALA, said the current legislation is lacking in key areas.

“The current Act does not use the terms ‘regulation’ or ‘regulatory system’ in relation to compliance systems,” she said.

“It has nothing meaningful to say about staffing of facilities – often put at the front and centre of aged care reform,” Ms Henry said.

“We strongly agree with the statement made by the Royal Commission in its interim report – that a ‘fundamental overhaul of the design, objectives, regulation and funding of aged care in this country is required’,” Ms Henry said.


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