Consumer protection

The Sydney Morning Herald reported on 21st of August the claim that the aged care regulator is under-resourced, understaffed and toothless.

When evidence was given to the Royal Commission, the Community and Public Sector Union (CPSU) representative claimed that one of their members whom they referred to as an assessor, said that there was "no real penalty for failing the standards --- just the inconvenience of additional visits from the Aged Care Quality and Safety Commission (ACQSC)".

The Sydney Morning Herald also reported that morale at the Commission was low. And why would it not be, with the weak sanctions and other measures which have been taken by the Commission and by its predecessors over the last 22 years resulting in the continuation of poor care, harm and injury to aged care residents.

Of course, the problems affect a minority of residents, but It doesn't have to be this way, where there is no faith in the aged care regulator either by its own staff or indeed also by affected residents, their families and the general community itself. We only have to look to the Interim Report of the Royal Commission to see that the people who have been complaining about the standards of care have not been "crying wolf", but have been crying from frustration and disappointment and the harm which has occurred and in which their loved ones have been directly affected.

For the past few years the residents of aged care have become, and are continually described by the Department of Health and by the aged care providers themselves as, "consumers". The residents are told that they have rights by both. But what is the real implication which underlies the label "consumer"?

There is much in a name and in the case of Aged Care we have moved from "user" (as in the User Rights Principles), "resident", to "aged care recipient", and now they are to be seen as, treated as and to own the name, "consumer".

There is nothing in the Aged Care Act nor in any of the guidelines from the Department of Health which might indicate that an aged care consumer might consider bringing a claim under the Australian Consumer Law! Moreover, the heavens may fall if they consulted a lawyer!

A search of the Act produces only one reference to "consumer" and that is in the deftly named Aged Care Legislation Amendment (Increasing Consumer Choice) Act 2016. Even that Act does not actually refer to a consumer apart from the heading itself!

This is all about education, raising standards and access to binding orders. Even more importantly, granting access to remedial justice and making errors and negligence and even breaches of the common law about restrictive practices, come with consequences.

It is time to oblige the ACQSC, the bureaucrats and the aged care providers to provide a pathway allowing access to justice, that is, real justice.

The Australian Consumer Law [ACL] contains a number of provisions which would be helpful to families where their loved ones have been harmed or injured. Until now, there has been no such recourse. It has not been possible to call in a complaint, for a refund of fees, compensation for medical expenses incurred, compensation and support for other remedial therapies which might enhance the lives of the residents who have been harmed as well as restore them to their former health.

The consumer law allows claims for services which falls short of being reasonably fit for purpose, not delivered in a timely manner, or where force may have been applied in the delivery of services. There is also a provision for claims to be made for unconscionable conduct. It is not difficult to imagine claiming the conduct is unconscionable when the harm or injury arises as a result of action or inaction on the part of those who are charged with the health care and well-being of the resident. It is a very special relationship of both authority and obligation.

It is far beyond the time when the government and the providers should now submit themselves to the ordinary process of making claims where consumers are harmed or injured because of the delivery of poor service. Why should aged care be any different to plumbing, electrical or building work, for example?

The virtue of promoting access and educating residents and their families on making claims as consumers, will mean that there is no need to wait upon the Commission dealing with complaints, there is no point in waiting for a report which produces no obvious results or benefits by way of redress for the individual complainant. The process does not even look like restorative remedies or justice for the persons harmed or injured.

Making a claim under the consumer law in either the local court or a Tribunal is relatively simple, straightforward and in the case of Tribunals at least, there is no little or no risk about having to pay the aged care home's lawyers if the claim fails.

This is a matter which the Royal Commission should take up on behalf of all residents since it is patently obvious that by calling residents "consumers" as has been the case for several years, it was meant to be in name only and certainly not meant to empower the residents with any extra rights as a result. The delusion and the misleading conduct must end now!

Rodney Lewis, Elderlaw Legal services, Sydney