Duty of Care

By Edward Carlisle[1]

‘Life is to be lived. No matter how old we are, how frail or incapacitated we might be, how rich or poor, we all have the fundamental right to wellbeing, enjoyment and fulfilment as we age.'[2] – Commissioner Lynelle Briggs A.O.

The Royal Commission into Aged Care Quality and Safety (the ‘Royal Commission’) has exposed many deficiencies in relation to the provision of aged care services in Australia, with the Final Report including 148 recommendations for reform.[3] The Royal Commission has highlighted the confronting realities facing residents in aged care, with many residents treated inadequately resulting in preventable harm.[4] The recommendation to introduce a general duty for providers to provide high quality and safe care is of particular interest to our organisation.[5] This paper will consider (1) the traditional duty of care and related statutory mechanisms specific to aged care settings; (2) the insufficiency of these mechanisms in remedying and deterring substandard care; (3) the Royal Commission’s recommendation regarding a general duty; and (4) how implementation of this recommendation may alleviate the burdens facing harmed residents and their families in seeking legal redress.

1. Overview of the Current Duty of Care

A duty of care is the legal obligation to take reasonable steps to not cause foreseeable harm to another person or their property.[6] Generally, a duty of care may be breached when an injury occurs, due to the action or inaction of someone, and that injury is reasonably foreseeable in the circumstances.[7] In the context of aged care, this means that operators must provide the necessary care and support in order for residents to maintain their health and wellbeing, which includes creating an environment that is safe and supportive, as well as other considerations.[8]

While there have been attempts at reform in strengthening this baseline duty, with particular respect to the Charter of Aged Care Rights 2019 (Cth),[9] this mechanism ostensibly functions as a contract expressing adherence to the Charter, to be signed between the provider and consumer. In this context, the duty may only protect residents who are willing and able to initiate contractual or consumer law litigation against the “negligent” provider.[10] Moreover, while the Quality of Care Principles 2014 (Cth) require compliance with the Aged Care Quality Standards set out in the Aged Care Act 1997 (Cth),[11]  the Principles state that a failure to meet the prescribed responsibilities, if that failure does not amount to an offence under the general law, does not carry consequences except for those provided under that enactment.[12]  Only then do potential sanctions available under Part 7B of the Quality and Safety Commission Act 2018 (Cth) apply.[13] The sanctions stipulated range from revoking or suspending the approval of the provider, in the most extreme circumstances, to prohibiting certain monetary charges – with no provisions regarding civil or criminal penalties.[14] Further, it appears that the responsibilities of approved providers, set out in the Aged Care Act 1997 (Cth), only apply to providers to whom a subsidy is payable by the Commonwealth for the provision of aged care.[15]

Despite various attempts at reform, the recent Victorian case of Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil’s Homes for Aged in Victoria (‘Agnello’) illustrates that neglected and injured aged care recipients must still rely upon tortious, contractual and consumer protection laws when seeking legal redress,[16] rather than the abovementioned, complex Aged Care laws.  The plaintiffs’ claims in Agnello related to the failure of providers to exercise reasonable skill and care, thus breaching their duty of care. Moreover, ABC’s Four Corners program revealed that the provider made ‘increasingly desperate’ efforts to communicate with Victoria’s Department of Health and Human Services, the Aged Care Quality and Safety Commission and governments at both the state and federal level, all of which went unanswered.[17]

2. Insufficiency in Deterring Substandard Care

Despite the ultimate success of the plaintiffs in Agnello,[18] the deterrent effect of such litigation may be minimal. Research from the USA indicates that the best-performing nursing homes are sued only marginally less than the worst-performers.[19] This lack of contrast may reduce the ability of plaintiff litigation to incentivise providers in delivering safer and higher quality care.[20]

While tort theory suggests that plaintiff litigation may induce care providers, as potential defendants, to be more careful,[21] discouraging isolated episodes of negligent care without lifting institutional performance more broadly may only amount to a Pyrrhic victory for tort law’s ‘deterrent effect’.[22]

As to a path forward, the Australian Government should adopt legislative measures to introduce a general duty of care in residential aged care homes,[23] coupled with appropriate and adequate oversight and reliable enforcement mechanisms.[24] Further, to ensure that a higher duty of care has real meaning as a deterrent for inappropriate conduct in residential aged care settings, that duty must be coupled with meaningful penalties.[25]

3. Strengthening the Duty of Care

Foundationally, the International Covenant on Economic, Social and Cultural Rights (to which Australia is a party)  states that all persons have a right ‘to the enjoyment of the highest attainable standard of physical and mental health.’[26] It is the government’s responsibility to promote this end with a particular focus on ‘the adoption of legislative measures’.[27] As mentioned, the Royal Commission included in its recommendations for reform the creation of a general duty to provide high quality and safe care.[28]

Specifically, the legislation should include a general, positive and non-delegable statutory duty imposed upon any approved provider to ensure that the personal and nursing care it provides is of high quality and safe so far as is reasonable, having regard to: (1) the wishes of any person for whom the provider provides, or is engaged to provide, that care; (2) any reasonably foreseeable risks to any person to whom the provider provides, or is engaged to provide, that care and; (3) any other relevant circumstances.[29] Further, any entity that facilitates the provision of aged care services funded in whole or in part under the legislation should have a duty to ensure that any worker whom it makes available to perform personal care work has the experience, qualifications, skills and training necessary to perform the particular personal care, or nursing care, the person is being asked to perform.[30]

The recently elected Labor Government has indicated strong support for this recommendation.[31] As an election promise, it intended to introduce ‘a new General Duty of Care’ as a level of care and service that providers will be required to guarantee for residents.[32] The new duty will respond to the Royal Commission’s recommendation,[33] outlined above. Labor’s election promise states:

‘A New General Duty of Care – this will be a level of care and service that providers will need to guarantee for residents. It will be backed up with a compensation regime if the duty is breached. This will create a path for class actions against dodgy providers. The new General Duty of Care responds to the Royal Commission’s recommendations and will ensure providers have a clear understanding of their legal responsibilities.

Criminal and civil penalties – including jail time – for dodgy aged care providers – these penalties will be for the most serious breaches of the General Duty of Care, such as:

• Serious and repeated breaches.
• Breaches that are found to be deliberate; and
• Those that facilitate and cover up abuse and neglect.

This will help to punish and deter the very worst cases of substandard care and negligence. This will implement and build on the Royal Commission’s recommendations.’[34]

The government is yet to implement this commitment. The amending Bills introduced in October 2022 attempt to address provider misconduct in line with Royal Commission recommendations [35]; however they do not establish a ‘new General Duty of Care’.[36] Rather, the government has introduced amendments relating to a Code of Conduct for the aged care sector,[37] also recommended by the Royal Commission.[38] The proposed new code of conduct pertains to APS employees as well as approved providers of aged care, and their workers and governing persons.[39] The amendments include that a civil penalty of 250 penalty units to be applied to those found to be in breach of the code.[40] The amendments contain no criminal consequences for serious and repeated breaches. Although the proposed amendments allow for ‘Banning Orders’ to be imposed if the Commissioner reasonably believes a breach of the code has occurred,[41] providers may challenge these orders as they are considered a reviewable decision under the Aged Care Quality and Safety Commission Act 2018 (Cth).[42]

The actual contents of the proposed Code of Conduct include considerations such as respecting consumer dignity and choice in services,[43] the same meaning as in the amended Aged Care Quality and Safety Commission Act 2018 (Cth).[44]

While ACJ welcomes these proposed amendments, they are inadequate: they do not guarantee a high level of care and service for consumers. The Royal Commission specifically found that ‘ineffective’ and ‘light’ regulation, and a poor track record of enforcement, coupled with cultural and governance failures with respect to aged care providers were the sources for widespread incidents of substandard care.[45]  Thus, the government should now pursue a General Duty of Care as the bedrock guarantee for a high level of care, in contrast to fiddling at the margins of the code of conduct.

The recommendation for a heightened duty of care, coupled with potential criminal consequences for ‘dodgy providers’,[46] may be the strongest general deterrence to the provision of substandard care occasioning serious breaches of the duty.[47] Whilst it may be radical reform, deterrence theory suggests that rational commercial providers, and their governing bodies, may be encouraged to weigh the costs of skirting the duty, particularly in light of criminal consequences, including imprisonment plus civil penalties.[48] Moreover, and importantly, the inclusion of a compensation regime to remedy breaches and ease the path for class action proceedings can provide those who suffer harm with more adequate legal redress, putting ‘dodgy providers’ on notice.[49] In this sense, providers are likely to be more careful and less complacent than they may be if the present ‘light’ touch reforms.[50]

4. Alleviating the Burden of Complaints & Litigation

As the Royal Commission has illustrated, residents who suffer harm in aged care can experience both serious injury and psychological trauma.[51] Published submissions to the Royal Commission detail that even when faced with systemic abuses,  residents may choose not to take any action due to various neurological and social factors.[52] A particularly tragic submission states that the submitter’s mother, despite receiving poor quality nutrition, suffering dehydration, malnourishment and having no air conditioning in summer, indicated little recognition that she was being treated inadequately.[53] The submitter sought to point out the failures to relevant staff, who in turn threatened ‘retribution’ for complaining ‘too much’.[54] The submitter later received a threatening letter from the person in charge of the facility, following his efforts to rectify his mother’s care. Staff also threatened to contact police to escort him off the premises if he did not ‘behave’.[55] Sadly, this latter threat occurred the day before his mother’s death, causing the submitter to be too fearful of staff retribution if he visited his mother on the day, and he opted not to.[56]

Tragic stories such as these demand, and warrant, reforms such as imposing a statutory duty of care, in order to alleviate the burden residents and their families encounter in facilities; the seemingly impenetrable complaints systems; and the currently grossly insufficient mechanisms for meaningful litigation, specifically in compelling higher standards across the aged care sector broadly.

In past years an endemic mindset has existed concerning the avoidance of legal problems in the aged care system.[57] While the current complaints scheme may achieve results in particularly endemic circumstances with respect to systems of care,[58] submissions to the Royal Commission highlight many obstacles for consumers to be appropriately heard and have their problems adequately addressed.[59] In circumstances where serious injury, psychological or emotional trauma have occurred, the current system is, too often, dangerously inadequate.[60] Further, individual plaintiff litigation can involve significant cost, if that cost cannot be offset by such claims being brought in consumer claims tribunals.[61] In most cases, the best option to ameliorate costs is for prospective litigants to join a class action.[62]  Given these factors, the government should be encouraged by the prospect of easing the pathway to class actions in implementing its promised ‘General Duty of Care’.[63] Such a duty should increase access to justice for harmed residents in aged care while also providing a general deterrent against substandard care.

Aside from cost, many other factors may also impact on the prospects for potential litigation, increasing the need for the general deterrent. These factors may include delay, risk, and uncertainty, any or all of which may inhibit harmed residents from pursuing action to seek legal redress.[64] Whilst residents’ families may be more determined to pursue action,  the most important objective in a particular case may be to attempt to ensure there is no reoccurrence of the relevant harm to the victim and other beloved elderly family members.[65]

Given these considerations, the new ‘General Duty of Care’ is a way forward in seeking to rectify the systemic wrongs and abuses pervasive in the aged care sector, particularly given the General Duty’s potential to increase access to, and the prospects of success of, related litigation – especially class actions.[66]

5. Conclusion

This paper has considered the current duty of care expected of providers and related statutory mechanisms; the current gross insufficiency of these mechanisms and the most appropriate path forward in strengthening them, as well as alleviating the burden for harmed residents and their families in seeking accessible and appropriate legal redress. The federal government be encouraged to pursue the general duty of care as the most preferred legislative instrument to signal to Australians, and the world, that this country cares for its elders and follows through on its commitments.

Get Help

If you or someone you know needs legal assistance, we encourage you to fill out Aged Care Justice’s GetHelp form on our website at www.agedcarejustice.org.au; or contact Aged Care Justice on (03) 9016 3248; or email us on info@agedcarejustice.org.au. You may then select, or, if you wish, we will direct you to, one of our Allied Law Firms for an initial meeting and advice, at no cost to you. Thereafter, you can decide whether to proceed with a formal legal complaint.  If you do wish to proceed, costs arrangements, if any, will need to be discussed, and agreed, with the firm.

Sources:

[1]  Law student, Monash University, Aged Care Justice volunteer. The author acknowledges the assistance of senior Aged Care Justice volunteer lawyers in the preparation of this article.

[2] Commissioner Briggs. ‘Care, Dignity and Respect – an Overview’ in Commonwealth of Australia, Royal Commission into Aged Care Quality and Safety, Final Report – Volume 1: Summary and Recommendations (1 March 2021) 58. (“R.C. Final Report”).

[3] See generally. Ibid.

[4] Ibid.

[5]  Ibid, (n 2), recommendation 14.

[6] Donoghue v Stevenson [1932] AC 562; Wrongs Act 1958 (Vic) s 48; c.f., Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil’s Homes for Aged in Victoria [2021] VSC 838, [14]-[16] (Dixon J) (‘Agnello’).

[7] Ibid.

[8] See Charter of Aged Care Rights 2019 (Cth);

[9] Aged Care Act 1997 (Cth), User Rights Amendment (Charter of Aged Care Rights) Principles 2019.

[10] For further information on the enforceability of aged care agreements, see Emily Lai and Jennifer Murray, ‘Residential Aged Care Agreements’, Aged Care Justice. Accessed at < https://www.agedcarejustice.org.au/residential-aged-care-agreements/>

[11] Quality of Care Principles 2014 (Cth), ss 7(3), 15B(5), Sch 2; c.f., Aged Care Act 1997 (Cth) s 54.

[12] See Aged Care Act 1997 (Cth) s 53.

[13] Quality and Safety Commission Act 2018 (Cth) ss 63N, 63R.

[14] Ibid ss 63R(a), (j).

[15] Aged Care Act 1997 (Cth) s 54-1(1), (2)(a).

[16] Agnello (n 6).

[17] Ibid.

[18] Agnello (n 6).

[19] See David M. Studdert, ‘Relationship between Quality of Care and Negligence Litigation in Nursing Homes’ (31 March 2011) 364(13) The New England Journal of Medicine 1243, 1243-50.

[20] Ibid 1250.

[21] Ibid.

[22] Ibid 1249.

[23] Final Report (n 2) 219, recommendation 14.

[24] See generally ‘Recommendations 101’, 102’ and 103’, Final Report (n 2) 273-4.

[25] For further information on meaningful penalties, see Anna Huynh, ‘Australia’s Litigation Lag’, Aged Care Justice, accessed at < https://www.agedcarejustice.org.au/australias-litigation-lag/>

[26] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) Art 12(1).

[27] Ibid Art 2(1).

[28] Final Report (n 2) 219, recommendation 14.

[29] Ibid.

[30] Ibid. C.f., recommendation 77(1).

[31] Australian Labor Party, Stronger Penalties to Protect Australians in Aged Care, accessed at

<https://www.alp.org.au/policies/stronger-penalties-to-protect-australians-in-aged-care> on 14/04/2022 (‘Stronger Penalties’).

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] See Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (Cth) (‘Royal Commission Response’); Aged Care Amendment (Implementing Care Reform) Bill 2022 (Cth).

[36] Stronger Penalties, (n 33).

[37] See generally Royal Commission Response, (n 37), Sch 3.

[38] Final Report (n 3), recommendation 77(1)(e).

[39] See Royal Commission Response, (n 37), cl 11.

[40] Ibid.

[41] Royal Commission Response, (n 37), cl 26.

[42] Ibid. Aged Care Quality and Safety Commission Act 2018 (Cth), s 74J.

[43] Ibid.

[44] Ibid.

[45] Final Report (n 2), ‘Executive Summary’, 77.

[46] Stronger Penalties, (n 33).

[47] See generally Donald Richie, ‘Does Imprisonment Deter?’ (April 2011) Sentencing Council Advisory Council, 2.

[48] Ibid. Final Report (n 2) 273, recommendation 101.

[49] Stronger Penalties, (n 33); Final Report (n 2) 274, recommendation 102.

[50] See generally Final Report (n 2), ‘Executive Summary’, 77.

[51] Ibid.

[52] See e.g., Royal Commission into Aged Care Quality and Safety, Phillip Newman Abel, Public Submission, AWF.001.01086.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] See Rodney Lewis, ‘Law: Will a good dose of litigation improve the aged care system?’ (Nov/Dec 2013) Australian Ageing Agenda 26, 26-7.

[58] Ibid, 26.

[59] For further information on the complaints process, see Edward Carlisle, ‘Aged Care Complaints Process’, Aged Care Justice. Accessed at <https://www.agedcarejustice.org.au/aged-care-complaints-process/>

[60] Rodney Lewis, (n 60), 26.

[61] Ibid, 27.

[62] Ibid.

[63] See generally Stronger Penalties, (n 33).

[64] Rodney Lewis, (n 60), 27.

[65] Ibid.

[66] See generally Stronger Penalties, (n 33).

Disclaimer:

The views expressed in this article are the views of the author. The contents of this article are for general information purposes only and do not constitute legal advice, are not intended to be a substitute for legal advice, and should not be relied upon as such. Legal advice should be sought prior to any action being taken in reliance on any of the information. If you need legal support, please contact Aged Care Justice who can provide access to legal assistance.