16 April 2018

Queensland Aged Care Homes Should Be Ashamed

Mark O’Connor
Mark O'Connor

Aged-care operators which dumped more than 25,000 elderly residents in hospital emergency departments last financial year to save money on in-house medical care should be publicly named and shamed.

That’s the view of Bennett & Philp compensation law specialist Mark O’Connor who says the operators are exploiting the state’s tough compensation laws which effectively discriminate against elderly abuse victims.

Media reports stated ambulances were called 25,833 times for the 44,000 Queenslanders living in nursing homes during 2016-17. It prompted State Health Minister Steven Miles to accuse many nursing homes of dumping residents in public hospitals to avoid paying for costly medical care.

But Mark O’Connor says it’s worse than that.

He says the figures clearly show nursing homes are delegating their responsibility to care for the elderly clients to public hospitals to save costs.

“I understand some nursing homes are often no longer using trained nurses or nurse aides but people who have a generic description such as “personal carers”.

“They have no formal basic medical experience and therefore do not know how to care for the elderly who might have minor medical conditions which need treatment or worse, do not have the experience to identify health issues which may need medical treatment which are being ignored,” he says.

Mr O’Connor feels these nursing homes are endangering the health of the elderly by their failure to provide proper and appropriate nursing care and medical supervision.

As an example, the Blue Care organisation’s Pioneer Lodge in Bundaberg last December reportedly failed 15 of 44 aged care standards, including basics such as providing enough food, fluids and personal care to residents.

It was found to not have enough “appropriately skilled and qualified staff” and ABC reported the Blue Care home laid off a number of its enrolled nurses in August last year.

If harmed there is little the elderly can do to get justice through the courts for the failings of the nursing homes because the cards are stacked against them due to the 2002/2003 legislation to deal with the so-called public liability crisis.

Thus it is virtually impossible for them to pursue claims for injuries arising out of poor care and neglect in nursing homes.

Mark says legislative changes to the compensation system introduced by the Queensland government in 2002/2003 significantly reduced compensation awards for personal injury and impairment for most injured persons including the elderly. They introduced damages thresholds which had to be exceeded before an injured person could recover their legal costs from the responsible party.

“Unless an injured elderly person can recover damages and compensation in excess of $73,490 then they would likely recover little of their legal costs from the responsible nursing home. Their legal costs would have to be paid from their damages. Sadly it is often not cost-effective for them to pursue a claim no matter how appalling the neglect or abuse which has caused an injury,” he says.

“It is virtually impossible for old people to pursue a claim which is financially viable because they most often do not have potential damages awards which will reach the legal costs threshold. Often there needs to be a claim for loss of earnings for an injured person to exceed the cost threshold and for obvious reasons this will not apply to old people.”

Mark says one of the effects of the common law system is that it acts as a disincentive to bad behaviour – if someone is sued enough they will stop engaging in the behaviour which is leading to the lawsuits.

“But in Queensland, the proprietors of nursing homes know it is unlikely they are going to get sued.

“Also there are the thresholds which need to be navigated in regard to damages which they recover. If say, because of negligence of a nursing home, friends and family need to, for a period provide domestic assistance to an injured old person to assist their recovery, before any damages can be recovered for that domestic assistance, there needs to be a provision of at least 6 hours assistance per week for a period of 6 months.

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