The issue of retribution has repeatedly been brought up in multile inquiries and little, if anything, has been done let alone acknowledge the existence of retribution or implement measures to address it. 

Academics have had their research criticised and their universities have been asked to discipline them.   There are the whistleblowers who have been fired because they blew the whistle when management refused to believe that other staff were raping patients, or in another instance covering up a death due to inadequate supervision. 

A worrying problem is the incidence of retribution or fear of retribution for those who complain or speak out about problems for residents.  Staff who report deficiencies within the system or draw attention to incidents of neglect or abuse, are frightened that they might lose their employment, have the number of shifts reduced, or suffer other punitive consequences.  ACC is aware of several incidents where this has occurred. 

Nurses who complain to management are particularly at risk and if they dare speak out when their complaints are ignored they lose their jobs. It is one of the main reasons why nurses, family and residents elect not to lodge complaints or withdraw those they have lodged.  Many of those who are dissatisfied with their care, or the care of a loved family member, fear that making a complaint will jeopardise their well-being or that of their relative. 

The QADA Annual Report 2013-14 expressed significant concern about the increasing number of older people fearful of retribution who have chosen not to proceed with advocacy support or to lodge a complaint.  Accurate data collection will not be possible until this issue is adequately addressed. Our proposal for a Community Aged Care Hub is intended to do that.

Instead of addressing findings and criticisms or engaging with critics, family members who correspond with us are absolutely fearful of retribution.  Some feel bullied by nursing homes when they complain about aged care.  Others have been threatened with very legalistic letters and others have had access to their relatives under threat or care to loved ones has been compromised. 

One experienced Registered Nurse’s account of working in a nursing home I am sorry ‘Mary’ I could not help you illustrates the difficulties for staff working in aged care, and provides an insight as to why many good staff leave the sector.

Speaking out about failures is always stressful and confronting. This is an issue that needed to be confronted, carefully examined and investigated and remediation attempted by the commissioners if they were to make the system work for the residents as well as the providers.

Example 1:  Retribution - a (very) sad affair

Over the years there have been many complaints to inquiries and comment in the press to the effect that residents and families don't complain because they are frightened of victimisation. This is something we might have expected the Productivity Commission’s Inquiry Caring for Older Australians to give attention to and do something about.

Decide what you think of the level of concern and empathy in the responses to Ms Clark, an 89-year-old resident who was critical of care. It was not what was said but what was not said and might have been said that concerns ACC.  Ms Clark was scared to complain to the Accreditation (now Quality) Agency because the nursing home would know she had done so.  Ms Clark also indicated that others in the facility were also frightened.

MS CLARK: Well, for me it's not hard, but for most of the residents, it is hard. They will not make a complaint because they're afraid of being thrown out and they will be regarded in disfavour, if you like, by the staff. They will not complain.

..."Anyway, I make complaints, but the thing is, nothing gets changed. I've been chairman of the residents' committee and I resigned the other day because whatever you put forward, they say they're going to address this, they're going to address that. Nothing changes..."

MS MACRI: Were you able to sit down with the auditors and have a chat to them quite independently?

MS CLARK: No, I wasn't. I don't know why. I think we were able to put our names forward if we wanted to see anybody but I didn't because I knew that if they got any negative feedback, then they would know it came from me, because nobody else would speak out. So I backed out of that unfortunately. I don't intend to do that again.

MS MACRI: That's a bit sad, isn't it?

Source: PC Inquiry - Caring for Older Australians 2nd day transcript - Canberra,  6 Apr 2011

Commissioners might at least have empathised with residents in this position instead of dismissing their failure to expose themselves to these pressures as "a bit sad".  It’s much more than sad. It’s a tragedy that the Commission failed to adequately confront and address this issue.  It points to major problems in the system that the Commission ignored.

The Commissioners might have explored the reasons why residents were reluctant to speak to the agency and whether there were ways of ensuring that the facility could not identify them. They might have explored why “nothing changes”, something that academics like Bernoth have commented on as well.

Example 2:  Residents acting themselves

Residents themselves are at an even greater disadvantage. If they are unhappy about anything or make allegations, they are considered to have dementia and discounted.  If they do speak out publicly, then staff and management see them as troublemakers and treat them accordingly. 

The lady in the quote below knew she was being robbed, but she had all her marbles in place and had contacts in the surveillance industry. With a hidden "grannycam", video footage was soon in the hands of police.  She is leading the way by doing this in Australia, but in countries with market systems like ours (UK and the USA) CCTV is increasingly being seen as the answer to the problems of elder abuse we are having in nursing homes.

“… When the disabled 75-year-old attempted to report the incident to retirement village company Aveo, they dismissed her claims.

“They thought I had dementia - and for that reason I was a trouble-maker and I would have been making it up,” Ms Jones said.

Unfortunately, elderly people are often preyed upon by fraudsters.

Source: Victorian retiree sets up hidden camera to catch thieving aged care worker  - A Current Affair - Channel 9, 2 Jul 2015

Example 3:  Family members acting themselves

One distraught family member has started an online petition when they suspected a staff member was abusing their 89yo father (who has dementia, bedridden and non verbal) in an aged care home for many months.

Although family raised their concerns to management, they allege these were dismissed.  They were so frustrated and distraught for the safety of their father, they installed video surveillance in his private room and subsequently caught the suspect abusing their father.

The perpetrator was charged with 9 criminal assault charges ranging from recurrent torment, physical abuse and attempted suffocation.  The perpetrator is currently facing the Magistrates Court for conviction and/or sentencing.  The family member’s actions of using a video camera to defend their father has come under scrutiny with allegations of breaching the Privacy Act 1997 and Residential Aged Care Providers policies where video cameras are prohibited in private rooms.

Example 4:  Retribution - 'nothing is ever done'

Despite the introduction of the Aged Care Amendment (Security and Protection) Bill 2007 implementation as a result of the nursing home rapes scandal in 2006, there seems to be a recurring theme then and now to indicate that not much has changed. 

Family members back then, were complaining about how difficult it was for them to find out what happened to their grandmother and how they felt bullied and treated with hostility by a manager and nursing home staff.  We are hearing the same things in 2016.

MARGOT O'NEILL: Within the first year, many of their gran's best clothes had disappeared and her wheelchair had been broken, but when their father complained...

GAIL CHILIANIS: The woman came up to him, the facility manager, and said, "If you don't like it, you know what you can do with your mother-in-law."

MARGOT O'NEILL: Even after their gran was allegedly raped, Deb Chapman says the nursing home manager was hostile when asked to provide better care for their gran.

DEB CHAPMAN, GRANDDAUGHTER: Her response was to put us down as though we were having an unreasonable request. When we walked out that day, mum was still sitting next to Gran. This facility manager went and sat on Gran's bed and suggested that I had a problem and that I needed counselling.

MARGOT O'NEILL: And their experience is not unusual. A Senate committee which reported last year heard extensive evidence of retribution and intimidation in aged care facilities around Australia. It called for a national inquiry to determine the size of the problem.

Source:  ABC Lateline, Aged care abuse reporting scrutinised, 21 Feb 2006

Aged care workers within the home that the assault took place spoke of systematic management cover-ups and bullying of staff members making reports to management. The sentiment expressed was that there was ‘no recourse’; there were no formal mechanisms to follow up staff reports of abuse. “You put into your reports and say this is happening”, one worker is quoted as saying. “Nothing is ever done. It disappears never to be seen again”.

Example 5:  Academics and research

Fear of victimisation has been a recurring theme over the years and it has never been addressed. Many other submissions, such as that given by Dr Bernoth, the day before, would have informed the Commissioners that families and residents were frightened of victimisation if they spoke out about what was happening.

DR BERNOTH:  The other thing that I wanted to talk to you about was the issue of research in aged care and the issue of researching in residential aged care. When Prof Nay published her PhD in the mid 90s she was banned from residential aged care facilities on the mid north coast because her findings were adverse to those wanted by the industry.

I found the same situation when I was doing my PhD and I have been subjected threats of violence, verbal abuse, constructive dismissal.  I've had contracts terminated and we sold our home and moved to another town because of the professional bullying that I was undergoing because I was revealing the outcomes of that PhD research.  Subsequently it's then difficult to get back into residential aged care to do other research, however I have found a wonderful place on the mid north coast that will allow me back in.

Source: PC Inquiry - Caring for Older Australians - 1st day transcript - Canberra,   5 Apr 2011


Examples 1 - 4 (above) all highlight the difficulties in reporting and failure to provide necessary protections.  Under the current system, there are strong disincentives to residents and families speaking out and little incentive for management to make any changes that are going to require more staff, cost money or reduce profits.  Legislation has failed to assist people residing in aged care.

The proposed Community Aged Care Hub would be communicating with patients and family members continuously, getting their views and suggestions, whilst maintaining confidentiality.  The hub would be there for the community and it’s members. It would be watching and protecting any one at risk of victimisation, and there would be strong disincentives to not making changes when things were wrong.

Not only would this work better, but this would help providers as well as prosepctive residents, and they would enhance trust in the system because they would be accountable to them and supported by them as much or more than by providers, who would be under more pressure to participate.

Trust and trustworthiness are essential in a sector like this. Care suffers when participants don't trust one another.

Community should be actively engaged in a cooperative venture where all parties are on the same page, with all information at their fingertips, all focussed on doing something constructive together - dependent on one another.

It is counter-productive to have participants at each others throats, or regulators walking around policing, looking for misconduct.  They should all be focused on a common purpose. They will be collecting information for everyone to look at and discuss and will be contributing thoughts and ideas.

By making for-profit and not-for-profit services part of a wider community enterprise, we bring both back into the community and out of the cultural silo that they are increasingly now both a part of. Those providers who are serving the community will not have anything to fear, and will gain help and support. Those that maintain a silo mentality will find themselves out in the cold and will have a tough time if they don't sort themselves and their community values out. The community must be in a position to act and make the market work.  This is currently not the case.