Legal advocacy group reaffirms commitment to restoring justice in the aged care sector

Aged Care Justice (ACJ), formerly known as ALARM, has reaffirmed its commitment to driving forward aged care sector reforms and paving pathways to legal recourse for those neglected and abused by the system.

In a special event at the Melbourne offices of legal firm, Holding Redlich, the event marked two years since the not-for-profit legal advocacy organisation’s inception by esteemed retired barrister Dr Bryan Keon-Cohen AM KC, alongside fellow senior lawyers and medical professionals.

Sue Williamson, partner at Holding Redlich and ACJ deputy chair, served as emcee during the evening.

In the wake of the recent Federal Budget, Williamson said that ACJ looks forward to contributing to Government efforts to restore quality and dignity to aged care services.

“Aged Care Justice will be working closely with Government to make sure these reforms are as workable as possible,” Williamson said.

Keon-Cohen, in an address to attendees, said his organisation has developed a unique, practical service that has earnt its place alongside the hundreds of community groups, not-for-profit groups, and government agencies that work in this area to provide a referral service.

“Through our website and through our communications work, we are available for victims of abuse in aged care settings,” he said.

“Basically these abused residents have no voice and have none, or very limited, access to advice about their legal rights.

“Those victims or their families, via our website, are referred to lawyers with expertise in aged care around the country.”

So far, ACJ has secured partnerships with 19 law firms across the country, in all states and territories except for Tasmania.

“They are happy to provide an initial pro bono consultation and advice… We thank those law firms for their generous commitments,” Keon-Cohen said.

The organisation has also attracted the interest of 20 young law students from Monash University and the University of Melbourne, who are currently gaining valuable work experience volunteering with ACJ.

Keon-Cohn thanked all of ACJ’s volunteers, from junior to senior staff, for their enduring commitment to restoring justice in the aged care sector.  

“All of those people over the last two years have done great work in organising and supporting and contributing to Aged Care Justice’s various activities,” Keon-Cohen said.

The night also marked a new chapter for ACJ’s advocacy work, with Keon-Cohen announcing ACJ will now be processing referrals from elders and their families who have been aggrieved by the country’s home care system.

“It’s necessary for a variety of reasons, including a well-established statistics which show that in future much more aged persons will prefer to receive services at home rather than in a residential facility,” Keon-Cohen said.

“Aged Care Justice’s areas of interest nearly quadrupled from 245,000 two hours ago to now 840,000 elderly Australians and those numbers will continue to increase.”

Litigation especially difficult for older Australians

Keon-Cohen lamented that, in comparison to the hundreds of complaints received by the Aged Care Quality and Safety Commission (ACQSC) and the countless stories presented in the media, legal cases are proportionately rare.

“I’m constantly surprised at the significant lack of litigation or attempts by lawyers to seek some form of redress in this sector,” Keon-Cohen said.

“That has to change, in my humble view, because the current systems are simply not adequate.”

Shari Liby, a principal lawyer at Slater and Gordon and medical malpractice specialist of 26 years experience, shed some light on why elders and their families find it difficult to seek legal redress.

As Liby, who originally lived and practiced in the United States, explained, the legal parameters in Australia are far more constrained than other jurisdictions, and are especially disadvantageous to older persons seeking compensation in a civil claim.

Three factors are necessary for making a successful claim for damages from a provider — proving negligence, causation and damages — with the latter the hardest to do in older age.

“When Bryan asked before, ‘why aren’t there more cases in this area,’ this is why,” Liby said.

“I can’t just have a whole lot of negligence and causation without the damages.”

Since older persons are usually retired, there is usually no case for economic loss in the event of an injury, and if there is such a claim, receiving it may create a conflict with one’s Medicare entitlements.

“Economic losses are pretty much off the table, and if you don’t have a case that has at least $50,000-$75,000 in damages, it’s not economically viable for the plaintiff,” Liby added.

“And there’s a bit of a quirk in the law that says if you die as a result of someone’s negligence, your claim dies with you.”

Liby maintained that litigation is a vital means of keeping providers honest and serving as a strong deterrent against negligence and abuse.

“I’m all about finding blame because that’s my job… but litigation does have teeth… and I think lawsuits have a place.

“I can assure you that every client that I have in this setting… it’s not about what they get; it’s what they [the aged care provider] will be giving, and it’s about accountability and making sure this doesn’t happen to another family.”

Structural and bureaucratic issues still present

The Hon Tony Pagone KC — former federal court judge, chair of the Royal Commission into Aged Care Quality and Safety, and ACJ Patron — spoke at the event, detailing some of the ongoing inadequacies in the industry.

“There are inadequacies about care; there are inadequacies about food; there are inadequacies about funding, about support for those who are frail and need care, as well as inadequate support for [carers]…” Pagone said.

“Most of the structural problems are consciously created in one way or another, and government either knows about it or has allowed it to develop,” Pagone said.

Referring to the privatisation of the sector brought about by the Aged Care Act 1997, Pagone pointed out that many of the inadequacies he found in assessing the sector during the royal commission were foreseeable.

“The capital cost required to build facilities was an area, for example, where they [the Government] didn’t want to stump up the money to build the facilities.

“It [the Howard Government] allowed private investors, by and large, to come in and do so.

“And if you’re going to do that, you’re going to have to allow them to make profits, simple… however, that causes problems.

However, Pagone noted that he wouldn’t go any further in indicting past or current governments, and he hopes that the majority of discourse will be directed towards enabling urgent reforms.

“I had my say in the [royal commission] report, and thereafter I really musn’t be locking horns with Government about whether they are doing the right thing or not…

“I’ve always been of the view that finding blame is a pointless exercise; we need to be finding solutions.”  

A key point of reform, Pagone said, was establishing a truly independent person to oversee complaints on behalf of older Australians exclusively.   

“Fundamentally what the aged care community needs is an independent champion… a commissioner whose task it is to shine a light on the activities and the needs of the Aged Care community as his or her sole task,” Pagone said.

Keon-Cohen agreed, saying the structure of the ACQSC was an ongoing concern.

“Our complainants complain, as they did in their submissions to the royal commission, about the totally inadequate regulatory and compliance activities by the Aged Care Quality and Safety Commission, and that has been going on for decades.

“Complainants talk about delays in action from the Commission, complete inaction, lack of resources and powers to control and regulate and penalise and apply the quality standards to the abusive providers.”

ACJ to push forward with community engagement, education and reform advocacy

“Law reform, education and advocacy is a vital part of our activities,” Keon-Cohen said.

One of the most vital yet unaddressed areas of reform, Keon-Cohen noted, was the new Aged Care Act — as is any indication that such an act will supplant the commercial values of the 1997 version with human rights.

“We need a new human rights based Aged Care Act,” Keon-Cohen said, pointing to the first and second recommendations of the royal commission.  

“We understand that in the drafting process, but goodness knows when we will see an exposure draft,” Keon-Cohen added.

“We are trying to get involved in that process but it’s very slow, very tight and very difficult to get involved as a new, small community action group.”

Amina Schipp, Perth member of grassroots advocacy body Aged Care Reform Now, said in an address that despite the stalling process, she and fellow advocates are buoyed by small signs of progress thus far.

“We think we’re finally being heard; we’re all succeeding in making aged care reform an election issue,” Schipp said.

“We’ll be here for a long time fighting this until we see improvement… and I think we will get there, but it will take a long time and we need to continue persevering.”

Keon-Cohen said that ACJ will continue to fight to give disempowered older persons and their families a voice.

“In residential facilities, the basic problem is that the victims of abuse are incapacitated and unable to complain,” Keon-Cohen said.

“For the many residents who require assistance, we’ll do our best to provide that assistance, legal referral and action if necessary.”

To find out more about Aged Care Justice’s work and to access their factual resources or legal referral services, follow this link.