Independent complaints tribunal needed to hold aged care facilities to account

The introduction of an independent tribunal to hear complaints of substandard care and with the power to issues fines and order monetary compensation would help hold the aged care sector to account, said the Australian Lawyers Alliance (ALA) today at the Aged Care Royal Commission public consultation session in Newcastle.

“The current system places undue focus on internal complaint mechanisms,” said ALA spokesperson and Newcastle lawyer, Ms Catherine Henry. “We believe the sector needs an independent, external tribunal like the NSW Health Care Complaints Commission.”

The ALA recommends that the tribunal’s function should include: the hearing of complaints with powers to issue fines; the power to cancel accreditation; to publicly reprimand providers; and to order monetary compensation.

“Currently the Aged Care Quality and Safety Commission and the Government funded Older Persons Advocacy Network direct complainants back to their service providers. This practice fails to properly recognise the implicit threat of reprisal. In my experience, reprisals often occur,” said Ms Henry.

“Consumers are also not provided with any compensation unless they undertake civil litigation on a private basis.

“It’s not sufficient to revoke accreditation only to have it re-conferred in a subsequent accreditation inspection. Those who suffer because of unarguable clinical negligence are entitled to compensation.

“There are clear benefits of common law litigation in maintaining professional standards in the aged care industry. In my experience, the families of residents are not so much concerned with the level of compensation as sending an effective message to the system that it has failed to meet community expectations and to provide a reasonable level of care to one of society’s most vulnerable groups.”

The ALA says failures in governance, accountability, policy and the regulatory framework are all evident in the current residential aged care system.

“We need a new Aged Care Act – one that ensures transparency and accountability. The current Act does not use the terms “regulation” or “regulatory system” in relation to compliance systems,” said Ms Henry.

“All the predictions of those speaking against the introduction of the Aged Care Bill back in 1997 have been realised. Then Senator Gibbs described the new legislation as a “reckless act” by a government captured by the private nursing home lobby.

“We strongly agree with the statement made by the Royal Commission in its interim report – that a ‘fundamental overhaul of the design, objectives, regulation and funding of aged care in this country is required’.”

The ALA is a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.

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