What Duty of Care Does a Nursing Home Have?

By Tom MalingTom Maling

The treatment of residents in nursing homes is receiving frequent media attention at the moment.  It’s a sad fact that preventable deaths of residents are occurring.   A recent study by Monash University published 29 May 2017 Premature deaths of nursing home residents: an epidemiological analysis identified alarming statistics on premature deaths for nursing home residents.

The researchers found that from July 2000 to June 2013, 3289 people had been reported as dying from falls, choking and other potentially preventable causes of death.  This equates to one person dying from a potentially preventable cause every 1.4 days.

There are growing calls for further regulation and investigation into the funding and provision of nursing home services.  In this context, we examine what exactly is a nursing home provider’s responsibility to their residents.

Does a nursing home owe a duty of care to residents?

Nursing homes are regulated by the Aged Care Act 1997.  This establishes the funding regime for nursing homes and promotes quality care, including establishing a set of Quality Care Principles.  These identify particular services to be provided by a nursing home and set minimum standards required under the Act.   Breach of one of the Principles has consequences under by the Act, but the Act excludes the breach from giving rise to a claim for breach of statutory duty.  However, where the breach would give rise to a claim under tort law (negligence, battery) or contract law, the Act does not exclude those actions being pursued.

Very few claims involving nursing homes have received consideration from Courts.  However, the South Australian case of Chan v Barter & Barter T/A The Pembroke Nursing Home recognised that a nursing home has a duty of care just like that of a hospital.  The Court stated that a nursing home is to provide a standard of care reasonably expected of a nursing home of an equivalent size and type. This is necessarily broad, as it takes into account whether the nursing home provides high or low care, secure dementia care, or respite services.

The Court said a nursing home’s staff are required to show care and skill ordinarily expected of a reasonably competent nursing home worker.  What is required from an Assistant in Nursing and a Registered Nurse will be different.

The key point is, nursing homes do have a duty of care which if breached, could give rise to a claim in negligence.

What must a nursing home do?

Having established that a nursing home does owe its residents a duty of care, the next step is to consider what they are required to do.  As previously stated, the duty is necessarily broad in order to encompass the broad range of services that a nursing home may provide.  These services include:

  • Assisting with activities of daily living;
  • Providing facilities to live such as bedding and shelter;
  • Providing and using specialist equipment for care such as transfers and pressure area care;
  • Providing access to nursing and other treatment as necessary;
  • Providing meals; and
  • Providing emotional support and recreational facilities.

The facility is also required to provide competent staff, safe equipment and safe premises.

What did Monash University find?

The researchers reported that 2679 people had died from falls, 261 from choking, and 34 from resident-to-resident assaults from July 2000 to June 2013.  The results were similar to other studies in other developed countries.  Of particular concern, they found that the occurrence of these types of death had not reduced over the past 12 years.

What can I do if I have concerns?

The vast majority of nursing homes provide excellent services and staff.  It is a difficult and scarcely resourced industry.  However, there is growing evidence suggesting there are some very poor practices in some facilities.

The starting point in most cases would be to talk to the facility.  Ordinarily there will be a clinical director, who is usually a highly trained Registered Nurse, responsible for the coordination of services.

If you are uncomfortable with talking to the facility or are unsatisfied by their response, the Aged Care Act establishes the position of Aged Care Complaints Commissioner.  The Commissioner may investigate complaints and work with the parties to resolve the dispute.  However, a recent Australian Law Reform Commission report has highlighted the need for a further scheme to investigate serious incidents, other than the Commissioner.

You could also talk to one of our lawyers, as elringtons has health law expertise on issues such as negligent treatment and substituted decision-making.  We have staff who have worked in the aged care sector.  Apart from providing compensation to a person affected by mistreatment, negligence and battery claims have historically played an important role in highlighting poor practices and driving reform.

If you have concerns about the services you are receiving or the services that are being provided to a loved one, feel free to contact Matthew Bridger or Tom Maling.

p: +61 2 6206 1300 | e: Info@elringtons.com.au

Further reading:

New Laws on Physical and Chemical Restraints in Nursing Homes

New Aged Care Laws on Physical and Chemical restraints are Inadequate

Read more …..

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13 Replies to “What Duty of Care Does a Nursing Home Have?”

  1. Dear Scott
    We are terribly sorry to hear about what has happened to your father.

    The law generally holds people responsible for their actions. This means the individual who assaulted your father. However, an aged care facility can also be responsible for assaults. A facility has a duty of care to residents to provide a safe environment. If it was known or foreseeable that a particular resident may pose a risk to other residents, then a facility has a responsibility to take steps to eliminate or reduce the risk. This may include diversional therapy or specialist intervention.

    If you would like any further information please do not hesitate to contact me.

    Tom Maling

  2. My father (95 years old) was punched in the face by another resident last week. The next day my father had a stroke. He is near death now. Dr say the punch may have induced the stroke. Who is accountable for this?

  3. We are sorry to hear about your partner’s falls. We hope they have been recovering well. There can be issues with using devices as a form of physical restraint. There are now more strict laws applying to aged care facilities in relation to use of restraints, such as bedrails. They must be a last resort and can only be used after alternatives have been trialled. However, the overriding responsibility is the safety and wellbeing of the resident. In some circumstances, physical restraint will be lawful.
    Please feel free to contact us directly to discuss the particular circumstances of your partner.

  4. My partner has been admitted to a nursing home after mutiple falls and being in hospital for a number of weeks. Whilst in hospital when he was in bed they had the rails up on his bed as he is also impulsive and will think he can get out of bed himself without these, resulting in a fall. The nursing home will not use the rails as they have said that this is legislation. I have made an appeal to the nursing director but she has told me that the issue is out of their hands. He has had 2 falls from the bed within 5 days.
    Is there any way that this can be over ridden

  5. Tony, great questions. We cover many of these in our article ‘Can nursing homes prevent a person with dementia from leaving the facility?’(https://elringtons.com.au/2018/09/can-nursing-homes-prevent-a-person-with-dementia-from-leaving-the-facility/). If a person with cognitive impairment has a guardian appointed, the guardian can decide where the person lives, even if that person wishes to live elsewhere.

    Nursing homes are tasked under the Aged Care Act 1997 with providing a range of services, including support for those with cognitive impairment. The Quality of Care Principles 2014, which are made under the Aged Care Act, require attention and support be given to those with cognitive impairment, including therapy and activities designed to enhance quality of life. This obligation encompasses provision of secure and safe facilities. Additionally, nursing homes have a common law duty of care to take reasonable precautions to prevent foreseeable risks of harm occurring to residents. So, if there was a foreseeable risk of a person with cognitive impairment wandering onto a roadway, for example, then the nursing home would have a duty to take reasonable steps to prevent this, which could encompass some degree of limiting freedom of movement.

    On a general level, degree of limiting the freedom of movement for some people with cognitive impairment will likely be required for nursing homes to comply with their obligations under the Aged Care Act and at common law. What is most important is whether the steps taken are reasonable. The footage shown by the ABC 730 program on 16 January of the person being tied to a chair would, in our opinion, fail this standard of reasonableness. The degree of restraint used must be proportionate to the need for the restraint. Amending the Aged Care Act to insert a requirement that any restrain is the minimum necessary to protect the health and wellbeing of a person is required. This form of law is a common feature of mental health legislation.

    Regarding injuries during physical restraints, any restraint (assuming it is justified in the circumstances) must be competently performed. If it is not, then the staff (and by extension the nursing home) has been negligent. If the restraint was not reasonable in the circumstances, then the treatment is not authorised and would likely be an assault/battery.

  6. Richard Trend, above, asks, “have you considered the duty of care not to release a person with dementia, unable to decide for themselves, into the care of another without the consent of the person with power of guardianship?”

    This raises a related issue. Do nursing homes have the right (legal) to prevent people from leaving the facility? We could expand on this question and ask; do nursing home staff have a legal right to physically restrain people from leaving their premises? If so, what happens if injury (to staff or resident) is sustained in the case of the restraining? How does this idea of physical restraint sit with the idea of the nursing home as the home of the person who lives there – after all nursing hoems are not prisons- or are they?

  7. Medication errors, including incorrect doses, can amount to medical negligence. See our article Medications and Medical Negligence (https://elringtons.com.au/2017/07/medications-and-medical-negligence/) for further details. Negligence claims can be run against nursing homes on the basis that staff members acted negligently. The problem with the current laws in the ACT and NSW (our area of expertise) is that they effectively discriminate against the elderly.

    This is a very good and complex question, so we will post a dedicated article to anser the question more fully.



  9. Have you considered the duty of care not to release a person with dementia, unable to decide for themselves, into the care of another without the consent of the person with power of guardianship?

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