• Related article: Aged care - meet the family!

You've seen the 'family tree', you know the 'family members', now let's look at the 'family law'.

The family law in aged care is the Aged Care Act 1997 (Act). It has been amended since its original version but it still retains the feature which makes it most unfriendly to many who are outside the 'family'. In particular, it has some serious bias against the interests of residents, who inhabit the family homes operated by family clients, namely the aged care providers.

Lets take a look at some of the challenging issues for the residents.

Prudential requirements

The Aged Care Act and the User Rights Principles (URP) both make reference to so-called 'prudential requirements' for Providers in relation to the investment and management of accommodation bonds. According to the Australian National Audit Office report into the Protection of Residential Aged Care Accommodation Bonds, as at 30 June 2008 there was a total value of $8bn being held by approved providers of moneys entrusted to them by residents.

The Aged Care Act (s 53) make provision for 'protection of' resident's bonds, sound financial management and the provision of information by Providers. Sounds good, yet in practice there is no requirement for continual periodic audit which confirms compliance with the requirements of the Aged Care Act, not requirement for that audit to be given to bond owners, and no appropriate penalties for non-compliance.

The URP require that the Provider must:

• maintain sufficient liquidity to ensure that the approved provider can refund, in accordance with the Act and these Principles, any bond balances that can be expected to fall due in the following 12 months
• implement and maintain a written liquidity management strategy
• establish and maintain a register (the bond register) that sets out information in relation to bonds.

What happened to prudence on the way to this legislation? What about ensuring that the funds are prudently invested, when they are not applied to the already designated purposes of -

(i) to meet capital works costs relating to residential care;

(ii) to retire debt relating to residential care; or

(iii) where no capital expenditure is reasonably necessary, ...to improve the quality and range of * aged care services (s.57.2(n))

Those matters would go some way to putting some real meaning into the phrases 'prudential standards' and 'prudential requirements' which are to be found in the Aged Care Act and Principles.

Cooling off

Even though there are cooling -off (or second thoughts) type requirements in the URP requirements for a residential care agreement, there is nothing one can do for any individual caught in the trap, if no such clause is included in their agreement, or is not drawn to attention in case of need, nor is there any special obligation to draw this clause to the attention of the intending resident.

If there is a problem and the resident allows the time for 'cooling off' expire, and the clause is not in the contract, there is nothing to be done about it. Certainly if complaint is made to the Department of Health and Ageing's operated Complaints Investigation Scheme, the best that can be done is to send a 'Notice of Required Action' (NRA) which asks for the system of contract making to be reviewed so that the omission is rectified in future agreements. This is of no help to the resident affected.

Notice of required action

While on the subject, these NRAs cannot achieve anything of note for the complainant in cases of non-compliance leading to injury, damage of emotional trauma. This is because no part of the complaints scheme is empowered to require payment of damages or loss beyond refund of fees. How can that be of any comfort for someone whose health may have been severely compromised (for example, food poisoning, bedsores, broken bones, kidney problems from lack of hydration). The scheme is oriented to systemic failure, not individual complaint.

Sanctions

The problem with sanctions which is the other weapon in the armoury of the Department of Health and Ageing's Complaints Investigation Scheme, is that it is a direct threat of withdrawal of accreditation (and thus the business of the Provider) if it is not complied with. However, this too is not a mechanism which can provide any satisfaction to an individual complainant. The fact that a complaint may lead to withdrawal of a Provider's right to conduct its business is no compensation or satisfaction to the complainant, especially if there has been injury or damage, as in the case of NRAs mentioned above.

Resident rights

The URP have attached to them a schedule entitled Charter of Resident's rights and responsibilities (Schedule 1) in which the rights to quality care, freedom of speech, the right to dignity and respect and to personal privacy, among others, are proclaimed.

Even though great store is placed upon the resident's rights by everyone from the Minister down to the Director of Nursing, the reality is that none of these rights are enforceable under the Aged Care Act by a resident. This is because those rights arise under the Aged Care Act and the Act itself (s.53-2) states that a failure of a Provider to comply with the Aged Care Act (Chapt 4 which includes Quality of Care and User Rights) has no effect or consequences under any law other than the Aged Care Act. Since the Aged Care Act has no enforcement mechanisms except those which I have described above as ineffective for individual claims, is there any more to be said?

Standards - No legal effect

For good measure we must also accept that the Standards of Care which are to be found in the Aged Care Act and Principles are likewise privately unenforceable, except to the extent that the DOHA sees fit to require the Provider to remedy a shortfall in standards or quality of care. If that occurs it will have general application only and will be unlikely to satisfy those whose health and well being may have been compromised or damaged by a failure which will go uncompensated or unrecognized except as part of a whole of Establishment review and reform of procedures and processes.

If it's not in the contract - it's not in the deal!

In cases where quality of care, or the Charter of Rights is written into the contract, only then will they become enforceable.

To be sure that is the case however, requires a lawyer to review the agreement as an independent adviser, something which many in the aged-care establishment appear to fear and avoid.

Author: Copyright 2009 Rodney Lewis. Solicitor, practising in Elder Law (Mona Vale, NSW)
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