Claims against aged care facilities – negligence, battery and contract

In our article ‘What duty of care does a nursing home have?’, we examined some of the things that an aged care facility must do. This includes:

• 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.

Of course, an aged care facility must do this to a reasonable standard.

Negligence deals with the concept ‘duty of care’ and we discuss this in
detail in our article ‘What is medical negligence?’. ‘Duty of care’ refers to the duty a doctor, nurse, hospital or aged care facility has to act reasonably when giving treatment, care or advice.

The content of the duty depends on the responsibilities of the particular practitioner or facility. For example, the following apply to the aged care context:

• A GP’s duty of care covers assessment of conditions, provision of advice and warnings (informed consent) and actual treatment provided.
• A nurse’s duty of care would encompass assessment of conditions or health state, provision of advice or nurse-initiated treatment and escalation of issues to a treating doctor, GP or ambulance in an emergency.
• A nursing home’s duty of care encompasses ensuring there are adequate staff and systems in place to ensure quality services.

In our article ‘What duty of care does a nursing home have?’, we provided more information on negligence claims against aged care facilities:

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.

For more information on negligence claims, see our Medical Negligence homepage.

We have been championing the consent issues in aged care facilities for several years, making a detailed submission to the Royal Commission into Aged Care Quality and Safety in June 2019.

The bedrock of health and medical treatment is consent.  A person must give permission to the health practitioner to perform the treatment or give the medication, otherwise it is unlawful. Consent to treatment may be given by:

1. The person receiving the treatment;
2. An authorised decision-maker for a person who cannot consent for themselves
   (guardian, attorney);
3. In some cases, a domestic partner, carer, close relative or close friend can
   consent (provided special rules are followed); or
4. By a special law, such as mental health laws or public health laws.

There is also an exception to the need to obtain consent in emergency situations (for more information see ‘Consenting to health and medical treatment’).

Administering treatment without consent may have criminal and civil consequences.  In civil law, it constitutes what’s called a trespass to person, specifically a battery.  A person may claim for damages from the person who committed the battery.  If there are issues about the quality of the consent, such as what information you were told prior to consenting, then an action in negligence is the appropriate avenue.  Battery only arises when there has been no consent.

For more information see our Consenting to Treatment homepage.

Have you ever wondered what might happen to residents of aged care facilities that lose accreditation? Those people have often paid money (in some form) to reside at the facility, which also receives government funding.

Everyone who enters an aged care facility signs some form of contract. This contract establishes the rights and obligations of the resident and the facility. The facilities’ obligations will include the provision of services. So, if the facility does not perform their end of the bargain, then they may be sued for breach of contract.

Justice. What this means will depend on the type of claim made.

In a negligence claim, compensation for injuries suffered may be payable. This could also include treatment costs, extra care (paid or by family or friends) and pain and suffering.

In a battery claim, just like in negligence, compensation for injuries can be payable. Additionally, if there is
a risk of ongoing treatment without consent, an order to restrain the further treatment can be obtained. This
would be relevant in cases involving physical or chemical restraint.

In a contract claim, compensation for losses can also be paid. There can also be orders sought requiring the breach to be fixed, or for no further breaches to occur.

The other really important point to a civil claim is systematic change. Civil litigation helps to shine a light on inappropriate practices and to help put pressure on aged care facilities to improve quality.

In March 2018, even before the Royal Commission into Aged Care Quality and Safety, we were championing the need for litigation on medical consent issues to improve quality of care. In our article ‘Chemical restraints in nursing homes’ we wrote:

“Claims need to be brought to make nursing homes accountable for breaches of a fundamental right to bodily integrity. In addition to this, claims can raise the awareness of this issue which will hopefully lead to better laws to protect older Australians. The ABC Law Report program heard that a class action in Ventura County in the US was successfully brought by residents who were given antipsychotic medications without their consent. The ABC heard that this had a knock-on effect to nursing homes in the surrounding areas by causing an improvement their administration practices for antipsychotic medications.”

In our opinion, the law has an important role in improving the quality of care in aged care facilities and righting the wrongs suffered by individual residents.