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How to make an effective nursing home complaint

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Benches in park

by Tom Maling

The Aged Care Act gives nursing home residents 21 statutory rights. We discuss these on our Nursing Home Abuse home page.

But while this Act gives broad rights, it also removes the ability of residents to directly enforce these rights by way of injunction. So how do you enforce them under the Act? The easiest way is to make a complaint.

[accordion clicktoclose=true tag=p][accordion-item title=”The complaints process“]Complaints are made to the Aged Care Complaints Commissioner in writing or by phone or online. You can even make an anonymous complaint. However, the Commissioner may break anonymity if a person’s safety, health or wellbeing is placed at risk by the anonymity.

On receiving a complaint, the Commissioner must assess the issues it raises and:

  1. Take no further action; or
  2. Resolve the issue to your satisfaction by giving advice or assisting you to raise the issue with the nursing home; or
  3. Undertake a resolution process.

[/accordion-item][accordion-item title=”Resolution Process“]The Commissioner has a range of options available under the heading of a ‘resolution process’. These are:

  1. Request the nursing home to examine an issue and report back to the Commissioner;
  2. Investigate the issue;
  3. Request the person making the complaint, the nursing home and any other relevant person to participate in a conciliation; and
  4. Refer the issue to a mediation.

The Commissioner has power to request and analyse documents, conduct a visit to the nursing home and request information.

The Commissioner may end a resolution process for a range of reasons including at the agreement of the parties, where the nursing home has addressed the issue to the satisfaction of the Commissioner or where the Commissioner has made a special direction to the nursing home.

[/accordion-item][accordion-item title=”What to put into a complaint“]We know that there are deficiencies in the current complaint system following the review into Elder Abuse conducted by the Australian Law Reform Commission. Despite this there are ways in which you can make a complaint which increase the chances of a satisfactory resolution being reached.

You may have noticed that we continually use the word ‘issue’ in this article. This is because the Commissioner is mandated to investigate issues. A complaint may raise one issue or many. The key focus under the legislation is on issues. Therefore you need to clearly spell out what the issue or issues are when making your complaint.

When making a complaint you should:

  1. Stick to the key facts. What did you see, hear or smell?
  2. Don’t offer your opinion. You can say why you have the concerns, but you should not offer your opinion on the care or lack of it. This is not persuasive. For example, don’t just say ‘I think Dad is being neglected because the staff are not very good carers.’ A much better way to say this would be ‘I think my Dad is being neglected because on Thursday I visited him and he was wearing a dirty pad and his clothes were wet. My Dad smelt like he had not bathed for some time and the room looked dirty, like it had not been cleaned for some time.’ The second option provides the Commissioner with evidence rather than speculation.
  3. Stick to dates in chronological form.
  4. Indicate whether you have raised the complaint with the provider. If so, what happened? If not, why not?
  5. Provide evidence. Has anyone else witnessed the incident? Are their medical letters which support your claim?
  6. Make a list of the issues and relate them to the Aged Care Charter of Rights.

We recommend you raise your concerns with the nursing home first. This will often be the quickest way to resolve the issue. It will also disclose the nursing home’s attitude to the issue you raise.

[/accordion-item][accordion-item title=”What to ask for“]If you have gone to the trouble of making a complaint after already talking to the nursing home, then you should ask the Commissioner to undertake a resolution process. The Commissioner’s aim is to resolve issues in a way that will achieve the most timely, proportionate and appropriate outcome for the person receiving care. The focus is therefore on the nursing home resident (as it should be) and you should ask for a process that will be promote this.

If you believe the issue you have raised is serious enough, you can also ask the Commissioner to refer the issue to the Aged Care Quality Agency or the Department of Health. These organisations have responsibilities and powers relating to compliance with legislative requirements under the Aged Care Act. It may be the case that your complaint raises an issue which is serious enough that the Commissioner should refer it for further consideration and possible sanctions. However there is no way of compelling the Commission to refer the issue on.[/accordion-item][/accordion]

elringtons health lawyers can assist if you’re not happy

There are internal review rights for Commissioner decisions. But reviews are not the only option to deal with the issue you have.

At the start of the article we mentioned that the Aged Care Act removes a person’s right to directly enforce their rights. But as we discuss in our article ‘What duty of care does a nursing home have?’, this does not mean the rights are not relevant to other legal remedies. A breach of a right may also demonstrate a claim for negligence or a battery. It may also show a breach of a contract between the resident and the nursing home (also called an Aged Care Agreement)

If you have a dispute about treatment you may also consider complaints in the ACT to the Human Rights Commissioner or complaints about a nurse or doctor to AHPRA.

We feel that the quality treatment of nursing home residents has not been adequately enforced by the law. Nursing home care is a specialist area and requires creative approaches to resolve matters. We have health law expertise which enable us to approach treatment disputes in a creative fashion.

We can help you to decide what to put into your complaint submissions and provide representation at a resolution process. Our health law expertise also covers treatment issues such as negligence and battery claims. This means we can offer a suite of options to help you to enforce your rights and, in some cases, obtain compensation.

Further information:

For more information please do not hesitate to contact Matt Bridger or Tom Maling:

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


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