Are You Receiving the Additional Services You Are Paying For in Aged Care?
By Zara Bendit-Rosser [1]
In 2020 the Federal Court of Australia ordered Bupa Aged Care Australia Pty Ltd (Bupa) to repay residents of BUPA aged care facilities, who had paid for extra services, and BUPA failed to provide these services, including excursions, buildings designated for leisure activities such as garden sheds, and dedicate services for specific activities, such as theatre and crafts.
Background
When entering an aged care facility, individuals are required to enter into a resident agreement which outlines the care and services which the individual will receive and the relevant costs.[2] Where residents would like additional services, they may enter into an extra services agreement for an additional charge.[3]
While residents should be able to assume that they are receiving the services for which they are paying, a 2020 ruling against Bupa, one of Australia’s largest aged care providers, revealed that this is not always the case.
Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602
Bupa self-reported to the Australian Competition and Consumer Commission (ACCC) that over a period of 5 years, they had failed to provide in full or in part a range of services outlined in extra service agreements, impacting over 3,000 residents across 20 different aged care facilities. These extra services included specialised spaces to aid those living with dementia, fully equipped physiotherapy facilities, hot breakfasts, and a number of other utilities. The cost of these undelivered services totalled thousands of dollars annually for some residents.[4]
The ACCC first brought this to light in April of 2019, referencing the following sections of Schedule 2 of the Competition and Consumer Act 2010 (Cth) as being breached by Bupa’s conduct:
- Engaged in conduct that was misleading or deceptive or likely to mislead or deceive[5]
- Made false or misleading representations that the extra services were of a particular standard, quality or value[6]; and
- Made false or misleading representations that the extra services had performance characteristics, uses or benefits.[7]
The court ordered mediation with the ACCC, Bupa admitted to the above allegations and was ordered to pay a $6 million penalty and reimbursement to impacted residents within the following year, amongst other orders.[8]
Implications of the Bupa decision
This case speaks to the broader lack of accountability safeguards within the aged care industry. Residents within the affected aged care facilities were not receiving the additional services which they were contractually obligated to receive for over 5 years, and it took Bupa self-reporting this error for action to be taken. This highlights a significant lack of checks and balances within the aged care system, something which is clearly necessary to protect consumers and ensure they receive the care to which they are entitled. The effects of COVID-19 may have exacerbated this issue, where aged care residents did not receive certain services due to isolation protocols.
Encouraged by the Royal Commission into Aged Care Quality and Safety, there has been a shift toward greater scrutiny of aged care providers, as reflected in this Federal Court decision. As such, recommendations from the Royal Commission may provide scope for the possibility of building a more accountable system regarding monitoring funds paid and services received in aged care facilities. Recommendation 8[9] proposes that the Department of Health be restructured as the Department of Health and Aged Care, with mandates to provide annual reports to Parliament on numerous issues, including ‘the amounts paid by people receiving residential care in connection with their care, including amounts paid for accommodation and daily living needs’. This recommendation has been accepted by the Government[10] and indicates financial exchanges may be more closely examined under new aged care laws. However, the efficacy of this new mechanism in practice is yet to be seen.
The Bupa case may also set a unique precedent allowing other issues of substandard care to be addressed, which has been identified as a rampant issue in aged care facilities.[11] Where providers are delivering care which is beneath the ‘particular standard, quality [or] value’[12] advertised and expected in a residential facility, it is arguable that s 29(1)(b) of the Consumer and Competition Act 2010 (Cth) has been breached. This may offer another avenue within which aged care providers can be held accountable, pending how future court decisions engage with the Bupa case.
Overall, this case emphasises that the entitlements outlined in residential and extra services agreements in the aged care sector can be enforced under consumer law. Upon engaging in these contractual agreements, residents and their families should be informed on what services and standard of quality they are entitled to. Common across all contracts under consumer law,[13] services are legally required to be delivered with due care and skill, be fit for the purpose agreed upon between the seller and consumer,[14] and be delivered within a reasonable timeframe (where no fixed end date is specified).[15]
While strengthening self-advocacy capabilities of residents and their families by spreading awareness of their consumer rights is important, is should not be up to consumers to ensure that their contracts are being met. Bolstering auditing processes, for example, by government engagement in Recommendation 8[16] of the Royal Commission, will be fundamental in ensuring that cases like this are not repeated in the future.
Where to get help
Whilst impending aged care reform brings hope that the sector’s accountability mechanisms will be strengthened, there are actions that can be taken on an individual level if you are concerned that yourself or a loved one is not receiving the services that you are contractually entitled to.
Lodging a complaint within the relevant aged care facility may be an appropriate first step in some instances. Providers are required to engage in ongoing assessment and planning with residents, as per standard 2 of the Aged Care Quality Standards.[17] Within this framework, providers are expected to review extra services agreements at the request of residents,[18] which may enable consumers to confirm whether such services are being provided. This is supported by ss 48 and 101 of the Competition and Consumer Act 2010 (Cth) – Schedule 2, which mandates that itemised accounts be provided to consumers upon request.
Where an internal review is insufficient, complaints can also be made to the Aged Care Quality and Safety Commission.[19] The ACQSC website[20] offers a comprehensive guide on how to work through the complaints process.
Residents can also seek independent legal support at any time. If you suspect a discrepancy between the services being paid for and those that are provided or have an issue with the standard of care in a residential facility or through home care, Aged Care Justice can arrange legal assistance. Aged Care Justice can connect you with an aged care lawyer for a free legal consultation if you would like to discuss your issue (contact details below).
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] Paralegal with Catherine Henry Lawyers, Newcastle, law student at University of Newcastle, Aged Care Justice volunteer. The author acknowledges the valuable assistance of senior Aged Care Justice volunteer lawyers in the preparation of this article.
[2] Australian Government Department of Health and Aged Care, ‘Resident agreements for residential aged care’ 2021, <https://www.health.gov.au/initiatives-and-programs/residential-aged-care/managing-residential-aged-care-services/resident-agreements-for-residential-aged-care>.
[3] Australian Government Department of Health and Aged Care, ‘Extra services agreements for residential aged care’ 2020, <https://www.health.gov.au/initiatives-and-programs/residential-aged-care/managing-residential-aged-care-services/extra-services-agreements-for-residential-aged-care>.
[4] Katrina Groshinski, Penelope Eden, Tova Gordon, Sacha Shannon & Michael Thomas, ‘Aged care extra services under ACCC spotlight. Insights into the Bupa case’, MinterEllison, 2020, <https://www.minterellison.com/articles/aged-care-extra-services-under-accc-spotlight>.
[5] Competition and Consumer Act 2010 (Cth) – Schedule 2 s 18(1).
[6] Competition and Consumer Act 2010 (Cth) – Schedule 2 s 29(1)(b).
[7] Competition and Consumer Act 2010 (Cth) – Schedule 2 s 29(1)(g).
[8] ACPNS Legal Case Reports Series, ‘Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602’ 2020, <https://eprints.qut.edu.au/200005/1/2020_28_Australian_Competition_and_Consumer_Commission_v_Bupa_Aged_Care_Australia_Pty_Ltd.pdf>.
[9] Royal Commission into Aged Care Quality and Safety (Final Report, Volume 1, Recommendations, March 2021) 213-215.
[10] Australian Government Department of Health (Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, March 2021) 9.
[11] Royal Commission into Aged Care Quality and Safety (Final Report, Volume 1, Summary and Recommendations, March 2021) 72.
[12] Competition and Consumer Act 2010 (Cth) – Schedule 2 s 29(1)(b).
[13] Ibid s 60.
[14] Ibid s 61(1).
[15] Ibid s 62.
[16] Royal Commission into Aged Care Quality and Safety (Final Report, Volume 1, Recommendations, March 2021) 213-215.
[17] Australian Government Aged Care Quality and Safety Commission, ‘Standard 2. Ongoing assessment and planning with consumers’ 2021, <https://www.health.gov.au/initiatives-and-programs/residential-aged-care/managing-residential-aged-care-services/ongoing-care-discussions-for-residential-aged-care>.
[18] Australian Government Department of Health and Aged Care, ‘Extra services agreements for residential aged care’ 2020, <https://www.health.gov.au/initiatives-and-programs/residential-aged-care/managing-residential-aged-care-services/extra-services-agreements-for-residential-aged-care>.
[19] Australian Government Aged Care Quality and Safety Commission, ‘Making a complaint’ 2022 < https://www.agedcarequality.gov.au/making-complaint>.
[20] Australian Government Aged Care Quality and Safety Commission, ‘The complaints process’ 2022, < https://www.agedcarequality.gov.au/making-complaint/complaints-process>.
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.