An alternative to the resolution of aged care disputes

Aged Care residents are also consumers

Although significant resources are devoted to dealing with complaints by residents and their families and representatives under the aged care system in Australia, it is undeniable that very many of those complaints, even though a minority, are unable to be resolved under the Commonwealth scheme. That is because the complaints scheme deals with systemic failure and is not capable of dealing satisfactorily with serious claims of service failure and negligence leading to trauma and injury.

The usual remedies for those kinds of issues are to be found in the ordinary common law courts around Australia. These are the Local and District courts and in very serious cases, the Supreme Courts of the States and Territories.

However to bring a claim in a court of law is to take significant risks especially regarding liability for legal costs in the event of a lost claim. There are almost no claims discoverable in the decided case databases which refer to claims by residents for serious harm arising from poor care delivery service in an Australian aged care facility. That may be due in part to the risk of taking the claim to a hearing with its consequent risks.

If claims can be brought in the various consumer claims tribunals around the country, relying upon the service guarantees now found in the Australian Consumer Law, it may be that a new era of empowerment has arrived to the advantage of aged care residents and others who receive aged care services at home.

The object of this article is to point the way for those who are looking for another more satisfactory pathway for the resolution of their complaints.

Consumer claims tribunals are no ‘El Dorado’ for claimants because limits are placed on claims. However, the prospect of making claims may become far less daunting and in addition, may provide some leverage in negotiations over claims provisions in the residential care contracts which must be offered to all aged care recipients.

The Aged Care Act and its Complaints Scheme

The Aged Care Act 1997 contained from its commencement provisions relating to the establishment of an elaborate complaints system. The legislation has always emphasised the need for complaints first to be taken to the Aged Care Provider (ACP).

The Departmental pamphlets, brochures and other communications have always contained that message and that is an obviously logical and proper approach to the resolution of complaints. However, if there is no agreement between the parties themselves, namely the resident, or more commonly the resident’s close family, and the ACP, generally speaking there are no further steps suggested for the resident to take, in a complaint which has either not been upheld or perhaps found to be ‘out of scope’, externally to the Department of Health and Ageing’s (DOHA, or the “Department”) own system for complaints. That is the understanding that most people have who are either engaged by or receive benefits under the Aged Care Act 1997.

This current scheme is the third reincarnation of the complaints scheme and is named the “Aged Care Complaints Scheme” (the Scheme, OR ACCS). The first two schemes were the Complaints Resolution Scheme and the Complaints Investigation Scheme. One might be forgiven for thinking that both the resolution and investigation aspects proved to be too hard and we must now settle for plain vanilla.

The elaborate complaints scheme is established by the (recently updated) Complaints Principles, which are made as statutory instruments under the Aged Care Act 1997. The Scheme is also urged upon residents and imposed upon ACPs by the User Rights Principles which require that all residential care contracts must contain provision for the resolution of disputes.

It has been this writer’s invariable experience over more than a decade of practice in this area that the combined effect of the history, development and departmental resources and of the provisions of the Aged Care Act have produced a mindset among ACPs, their staff, residents and families, that if there is a problem with care delivery, the only way to solve it is to complain to the Department. Complaints are then quickly put on the prescribed regulatory track and it may be many months before a decision is produced by the Scheme.

In 2011 there were more than 13,500 contacts handled by the ACCS. Many thousands of hours have been spent in information collection, enquiries, interview, assessment and decision-making by the people employed for the task of evaluation of complaints.

For those who are dissatisfied with the complaints process there are departmental decision reviews in the first instance, appeals to the Aged Care Commissioner (within a fixed timeframe), and to the Commonwealth Ombudsman. In both cases there is no power to overturn a decision, only to require a reconsideration by the Department decision-makers. A new decision cannot be substituted. The Department maintains complete control of the process.

Moreover, the pathways for review and appeal are bewildering to anyone who is not well versed in interpreting and understanding Commonwealth legislative instruments and a legalistic approach to administrative decision-making.

The reason why the Department maintains control is to be found in the ways in which recourse or remedy may find expression in the Complaints Scheme. The only “tools” for behaviour modification which can be employed against an ACP are –

• sanctions;
• directions (formally notices of required action, or NRA’s);
• a direction for the refund of money paid for services;
• agreements with Providers made by the Department against the threat of sanctions.

The process is therefore all about penalising the ACP rather than compensating the resident or focusing upon the particular individual and that person’s problems and possible injury. In particular the remedies for non-compliance make it clear that there are no circumstances in which a resident may receive compensation only a reduction in fees by reason of a failure in service delivery on the part of the Provider.

In dealing with a complaint the Complaints Principles require the decision maker to take one of three possible actions namely –

• to take no further action (sec 13A.7 Complaints Principles);
• quickly resolve the matter by giving assistance and advice to the complainant (section 13 A.5);
• undertake a resolution process (Part 2, Complaints Principles).

What is covered – home care, hostel and nursing home?

The Aged Care Complaints Scheme applies to Commonwealth funded home care, and both low-level and high-level care. It has been estimated by the Productivity Commission that by 2016-17 there will be 747,000 over 65 receiving supported home care and 208,000 in residential care (high and low care) [Trends in Aged Care Services: Some implications, Productivity Commission, Canberra, Sept 2008].

Because funding is provided by the Commonwealth under several aged care schemes, the complaints system applies to them all. They are residential aged care, Home & Community Care HACC, community aged care packages (CACP), extended aged care at home pages (EACH) and extended aged care at home – dementia packages (EACHD).

Who can make a complaint?

Almost anyone can make a complaint under the ACCS, but the consumer claims regime is much more exclusive:

Table of comparison- persons entitled to refer complaints – complainants & consumer claims

Claimant	ACCS	Consumer claim
care recipients	YES	YES
their representatives	YES	YES
family members	YES	NO
Friends	YES	NO
legal representatives	YES	NO
aged care staff	YES	NO
Volunteers	YES	NO
health professionals	YES	NO

Advocacy services

There are Commonwealth funded advocacy services available for telephone advice and referral to other advice or advocacy service providers when necessary, in all States and Territories. As the Department puts it –

An advocate can:

• provide you with information about your rights and responsibilities
• help you resolve your problem with the service provider, including speaking for you if you want them to
• listen to your concerns about the complaints process.

So it is evident that there are important limits on the extent to which the advocacy services can support a serious claim involving an impact on health, or injury.

What happens if there is a problem about service?

Whether deliberately or otherwise, an aged care home resident is everywhere encouraged to deal with any complaint either by taking it up directly with the Provider or making a written complaint to the aged care complaints scheme.

The pamphlets, brochures, the residential care contract and almost everybody associated with the aged care scheme produce a mindset which seems to allow for only one pathway when complaints arise in relation to service. That is, that the aged care complaints scheme is the way to go and if a person is dissatisfied with the way their complaint is dealt with, there is always a departmental review, an appeal to the ombudsman, or appeal to the Aged Care Commissioner.

However, a closer scrutiny of the powers of each of these appeal pathways reveals that nobody actually has the authority to second-guess the Scheme and its decision by substituting another decision. The only possible way to do that under Commonwealth law is to take a complaint to be administrative appeals Tribunal. But that is not an option either because no appeals can be taken to the AAT from the Complaints Scheme (AGED CARE ACT 1997 – SECT 85.1 )

What kind of service problems could there be?

Here is a list of just some of the service delivery problems which can arise in the course of caring for aged persons and which may in some cases be due to inadequate staffing leading to poor quality care–

• Pressure sores
• Infected pressure sores
• Severe dehydration
• Severe malnutrition
• Aspiration pneumonia
• Medication error
• Falling & injury
• Scalding
• Toileting – delay and neglect

Many problems that arise from service delivery are actually a function of lack of supervision, which in turn arises from inadequate staffing. This is a chronic issue in aged care nursing and leads to problems, complaints and occasionally to injury and trauma.

Furthermore, another very important issue which arises in the course of service delivery, care and supervision is the issue of restraint which in turn gives rise to the question when and whether the restraint is lawful or unlawful.

We shall see that even in such cases, there is a remedy beyond that offered by the Aged Care Complaints Scheme.

Where else can a complainant go – what are the alternatives?

There are at least four possible alternatives for taking of action in the event of a claim for a injury or damage which has been experienced or sustained by a resident of an aged care home or indeed in the course of delivering care and treatment under a funded home care scheme or package of home care services.

1. First there is the possibility of a common law claim for negligencewhich arises from the failure to deliver an appropriate standard of care where there is a pre-existing duty of care to the care recipient.
2. Second there is a potential common law claim for trespass to the person which may arise in the case of treatment or supervision involving physical handling of the resident but in circumstances where lawful consent has not been given. This can arise for example in cases involving persons who do not have full capacity for decision making and where lawful consent can only be given by their duly authorised delegate, such as an appointed guardian, but that consent has either not been sought or has not been given in the particular case.
3. Thirdly in cases where a residential care contract has actually been made at the time the service has commenced or the person has entered into residential care, and assuming that the contract includes promises to render care to a certain defined standard as described in the contract, it may be possible for a claim to be brought for a breach of contract.
4. Finally, there is a cause of action which arises from consumer type transactions in which there are implied guarantees of a certain quality of service. These kinds of claims have arisen from legislation which was the preserve of the States and which historically were contained in statutes providing for the sale of goods.

Since 2011 however, and as a result of cooperative arrangements between the Commonwealth and the States, the Australian Consumer Law has commenced to apply in all states and territories. In that law may be found certain guarantees for the delivery of services which are implied in every contract made within the Commonwealth of Australia, including a contract for residential aged care and the delivery of home care.

Even in cases where there is no written contract, a contractual responsibility for care services may be found to exist and the implied guarantees will also be present and will be enforceable.

The first three alternatives involve bringing a claim in the common law courts. There is a hierarchy for these courts which is partly defined by the amount involved in the claim. In aged care claims the Local or Magistrates Court, often geographically distributed throughout the States and Territories and mandated to deal quickly and efficiently with legal claims, is the most obviously suitable to seek any kind of compensation or damages at law.

The fourth alternative involves a consumer claim for which a special tribunal can normally be identified in every State or Territory, set up to enforce fair trading laws for the benefit of consumers. Those tribunals are now authorised to enforce the Australian Consumer Law which commenced in early 2011.

The Australian Consumer Law (ACL)

A very important feature of the ACL is the provision of service delivery guarantees which apply to every contract in which provision is made for sale of goods and/or the delivery of services in Australia. In the particular case of aged care that means that every residential aged care contract which is made under the Aged Care Act contains a number of guarantees which are implied by force of the law, even if they cannot be found or are not expressed in the document itself.

The ACL also applies to verbal agreements and accordingly, even if no residential care contract was signed when the resident entered into care, nevertheless the basic elements of an agreement for the delivery of care services and accommodation in return for the payment of consideration either directly by the resident or by the Commonwealth government by way of subsidy would be necessary and basic elements in the agreement. Now however, the ACL implies certain basic service guarantees as well.

Service guarantees

The implied guarantees are to be found in the Second Schedule to the Competition and Consumer Act 2010. There are four guarantees and they can be shortly summarised as follows: –

1. sect. 60 Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

2. Sec 61 Guarantees as to fitness for a particular purpose etc.

(1) If:

(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

3. Sec 61 Service to achieve reasonably expected result

There is a second part to the last guarantee (above) with a slightly different result, namely, If the consumer makes known to the supplier the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

The guarantee is not available if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

4. Sec 62 Guarantee as to reasonable time for supply

If:

(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b) the time within which the services are to be supplied:

(i) is not fixed by the contract for the supply of the services; or

(ii) is not to be determined in a manner agreed to by the consumer and supplier;

there is a guarantee that the services will be supplied within a reasonable time.

The implied guarantees are mandatory

Section 64 of the ACL provides that the guarantees cannot be excluded from a contract and cannot change them.

In a written contract it is possible for a Provider of services to limit the impact of the guarantees by for example re-supplying the services, or paying for them to be re-supplied again. However that can only apply where it is fair and reasonable (for the determination of which there are tests) and where the services are not ordinarily for personal, domestic or household use or consumption. In the case of accommodation and care delivery services, it would be hard to argue that these were not for personal use or consumption.

How do the implied consumer guarantees fit with the Aged Care system?

Here is a table which suggests how the consumer guarantees might apply to some of the more serious issues arising under aged care service care delivery. These are only suggested and any person contemplating a claim must see their lawyer for advice and consider their particular circumstances or those of the particular family member concerned.

Care delivery complaint	(1) Due care & skill	(2) reasonably fit	(3) achieve desired result	(4) supplied in a reasonable time
Pressure sores	x
Infected pressure sores	x	x	x	x
Dehydration	x		x	x
Malnutrition	x		x	x
Aspiration pneumonia	x
Medication error	x		x
Falls/ injury	x
Scalding	x	x
Toileting – delay & neglect				x
Restraint – without consent(see below)	x

The claim of restraint has historically been made under the common law . However it may be possible to present it as a consumer claim on the basis that there has been a failure of care delivery in respect of supervision, staff training and adherence to the rights of residents under the common law, the User Rights Principles made under the Aged Care Act and the protocols for applying restraint as representing best practice in aged care service delivery.

Consumer Claims – Limits on claims

In New South Wales, the Consumer Claims Act limits claims to $30,000. The situation varies from each State and Territory so it is necessary to check on that limit in making a decision about whether or not to go down the pathway which the Australian Consumer Law allows.