A new approach to harm and injury in aged care: consequences for the provider and access to justice for the resident

By 15 June 2022Uncategorized

Rodney Lewis from Elderlaw Legal Services was invited for an interview by Thomas Oriti on the ABC Radio program – The World Today on 30 July 2020. There was a discussion upon issues in Aged Care Facilities with regards to management, staffing, and poor care of its residents. However, despite these issues occurring, the significant factor that prevents evidence of aged care shortfalls emerging is the lack of transparency and withholding of such evidence in the name of privacy. Despite this, Rodney believes that due to the impact of the Covid-19 virus, there is an opportunity to expose the weaknesses of the aged care system, and poor conditions affecting its aged residents. Questions need to be asked about what had been learnt from the experience of other countries which had experienced Covid and how their aged care systems reacted to better effect. There was prior experience and knowledge to observe elsewhere in the world and in other states of Australia during the pandemic which may have limited the lethal outcome for some of those who died.

Rodney believes that the issues surrounding the aged care system are systemic and despite the long history of serious harm and injury since the introduction of the Commonwealth Aged Care Act, a serious problem has been the persisting lack of development with regards the process for making a complaint. He says there must be a pathway for consequences for the aged care provider for poor care leading to harm and which provides a binding decision on complaints and allows for orders for the payment of money by way of restorative justice and for rehabilitation. An appeal should be available not just on the sterile grounds of administrative law but on the merits of the case, both on the facts and the law.

Despite it having not been used in relation to the aged care, Rodney believes that the Australian Consumer Law is a powerful tool in this area. He says consumer claims cases can produce exemplary damages and model cases which can act as references for changing the behaviour of people in the aged care system. For the future of the aged care system, these cases could lead the way to accountability and responsibility in aged care mismanagement.

To listen to the radio program, please visit the website below: https://www.abc.net.au/radio/programs/worldtoday/aged-care-providers-should-be-held-criminally-responsible/12507320

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