Legal Challenges of Caring for Vulnerable People

Hall & Wilcox Partner Alison Choy Flannigan discusses overcoming challenges of providing care to vulnerable people. Alison writes: Caring for the vulnerable, including children, the aged, the disabled, refugees and patients who are unable to consent (whether on a temporary or permanent basis, including the mentally ill) provide a number of challenges for health, aged care and community service providers. To hear more from Alison, she will present a seminar on the topic of Privacy, Recording and Data Security at the 6th Annual Aged Care and Retirement Village Law Conference on 5 June. 

The demand for care is growing, funding is getting tighter and community expectations are higher. It is also becoming more difficult to attract and retain qualified staff.

There has been a number of Royal Commissions into the health, aged care and community sectors, including the following:

• the current Royal Commission into Aged Care Quality and Safety (2018/2019);
• the current Victorian Royal Commission into Mental Health (2019);
• the current Queensland Inquiry into aged care, end-of-life and palliative care and voluntary assisted dying (2019);
• the Royal Commission into Abuse in Disability recently announced by the Australian Government (2019); and
• the previous Royal Commission into Institutional Responses to Child Sexual Abuse (2017).

Some common issues include:

• consent, notably the lack of capacity to consent and substitute decision making;
• dealing with alleged abuse;
• mandatory reporting;
• qualifications and checking of people who care for the vulnerable, including police checks and child protection checks;
• corporate and clinical governance and risk management;
• guardianship; and
• restraint, both chemical and physical – what is reasonable?

The inquiries into the Oaken Older Persons Mental Health Service in South Australia (which involved systematic abuse of aged care persons) resulted in two reports:

• The Oakden Report – The Report of the Oakden Review – Dr Aaron Groves, Chief Psychiatrist (April 2017)
• Oakden, A Shameful Chapter in South Australia’s History – A Report by the Hon Bruce Lander QC ICAC (February 2018).

The reviews have also resulted in the independent Review of the National Aged Care Quality Regulatory Processes and the announcement of significant reforms.

Oakden dealt with both aged care and mental health.

The Hon. Bruce Lander QC stated in his report on Oakden:

This report offers some salient lessons about identifying and properly dealing with complaints, the consequences of attempting to ‘contain’ issues of concern and withhold information from senior persons and the extraordinary dangers associated with poor oversight, poor systems, unacceptable work practices and poor workplace culture.

Above all, it highlights what can occur when staff do not step up and take action in the face of serious issues.

I appreciate that it is not always easy to step up in such circumstances. But that is what is expected of every person engaged in public administration and particularly so in respect of public officers in positions of authority who have information that might expose serious or systemic issues of corruption, misconduct or maladministration.

This is one of the most salient lessons for directors and managers of health, aged care and community providers caring for the vulnerable – essentially, do you expect, enable and encourage your staff to ‘step up and take action in the face of serious issues’?

Additional lessons can be learnt from the other recommendations from the ICAC inquiry into Oakden, including:

1. a review of the clinical governance and management of services;
2. a review of management structures to match those of overall clinical governance structures;
3. the assignment of responsibilities and the expectations and responsibilities imposed upon each member of staff;
4. training and reporting obligations for staff;
5. more frequent inspections and unannounced visits to facilities than in the past;
6. community visitors more frequently exercising the power to conduct unannounced inspections and visits than in the past;
7. a review of the community visitor scheme;
8. a review as to whether resources should be increased;
9. public reporting on the physical condition of all facilities for the purpose of determining whether the physical condition of those facilities are fit for the purpose for which they are being used and, if not, in what respect the physical condition of any facility is not fit for purpose;
10. further training in relation to complaints and the reporting of complaints;
11. new standards in relation to the use of restrictive practices and making the observance of those standards mandatory; and
12. the review of the level and nature of staff support at facilities at which services are provided to determine whether there is adequate staff to provide the necessary support at such facilities.

The Government has responded by requiring new consumer-based standards including the following:

• Aged Care Approved Providers will be assessed by the new Aged Care Quality Standards (based on consumer outcomes) from 1 July 2019: Quality of Care Amendment (Single Quality Framework) Principles 2018.
• From 1 July 2018, NDIS providers were required to comply with the NDIS Quality and Safeguarding Framework. The Framework provides a nationally consistent approach to help empower and support NDIS participants in exercising choice and control, ensures appropriate safeguards are in place, and establishes expectations for providers and their staff to deliver high-quality supports: National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.
• Following the Report into the Special Commission of Inquiry: Acute Care Services in NSW Public Hospitals (2008), by Peter Garling SC, the Inquiry recommended a Statewide System for Improving Recognition and Response to deteriorating patients be implemented across NSW. One of the best initiatives following this report was the ‘Between the Flags’ Program, which is a ‘safety net’ for patients. This program assists clinicians to intervene in the process of patient deterioration with two key interventions, namely clinical review and rapid response. Why can’t agencies such as the Clinical Excellence Commission be charged with developing similar programs for the aged, disabled and mental health sectors in terms of identifying and rapidly responding to high-risk clinical issues?
• Root cause analysis, sophisticated risk management systems and open disclosure have been in place in the hospital sector for some time, however, are just being developed in some aged care and disability settings.
• NDIS has introduced new standards concerning restraint and the government has announced that chemical and physical restraint in aged care homes will be better regulated.

There is certainly a role for technology, for example, clinical software has been proven to reduce medication errors.

It is a challenging time for health, aged care and community service providers. However, hopefully, it is not a lost opportunity and we can learn more and do better for the vulnerable in our community with clearer guidelines to assist providers.

Postscript: The Government has released the User Rights Amendment (Charter of Aged Care Rights) Principles 2019 (Cth).

With over 20 years of corporate, commercial and regulatory experience, Alison Choy Flannigan has specialised in advising clients in the health, aged care, life sciences and community sectors. Her clients include public and private hospital operators and health care providers, private health insurers, biotechnology, pharmaceutical and aged care/retirement living and not-for-profit and government clients. Alison appreciates that issues for healthcare providers often require urgent attention and she makes herself available to her clients whenever needed. Alison has a passion and dedication to the sector which goes way beyond just being a lawyer in private practice – she strives to become the trusted advisor of her clients. As a result, Alison has nurtured long-term client relationships, some over 17 years. She also provides ongoing support for various industry associations and has enthusiastically taken positions within the Industry.

Alison is the Company Secretary for the National Foundation for Medical Research and Innovation and the Asia Pacific Regional Forum Liaison Officer, Healthcare and Life Sciences Law Committee of the International Bar Association. She is the Company Secretary for the National Foundation for Medical Research and Innovation and the Asia Pacific Regional Forum Liaison Officer, Healthcare and Life Sciences Law Committee of the International Bar Association. Alison is also on the Australia Chinese Business Council (NSW) Health & Ageing Subcommittee. Alison is a market leader, having been listed in The Best Lawyers in Australia for Health & Aged Care and Biotechnology every year since 2008. She has also been recognised in the Doyle’s Guide to the Australian Legal Profession as a Preeminent Leading Health and Aged Care Lawyer in 2017 and 2018. Alison has been a finalist for the Lawyers Weekly Partner of the Year in Health since 2016. Contact Alison at alison.choyflannigan@hallandwilcox.com.au or connect via LinkedIn . 

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