Author Archives: Joanne O'Brien

About Joanne O'Brien

An expert with years of experience in, and passion for, advising the not for profit sector in all aspects of their operations from creation, management, mergers and governance through to risk and compliance and beyond, particularly in the aged care sector.

CCTV Camera trial in aged care – another moral dilemma

As has been widely reported, the federal government is funding a $500,000 trial of surveillance and monitoring systems in aged care facilities managed by SA Health.

The 12 month trial will see cameras installed in residents’ bedrooms only. They will not be installed in bathrooms. The audio-visual monitoring systems will only be turned on if the resident chooses to have their care monitored.

In describing how the systems will work, Care Protect, the UK company providing the technology and monitoring it from its base in Ireland, provided assurances about the safe guards in place to protect the privacy and dignity of residents.

The information available on Care Protect’s website confirms that, in the UK, the use of surveillance technology in bedroom areas for residents who lack capacity varies based on local authority and application of the Human Rights Act (1998). The problem for Australians is that we do not have any legislation comparable to the Human Rights Act. Questions therefore remain about:

  1. How the rights of residents who do not have the capacity to choose or agree to surveillance of their bedrooms can in fact be protected;
  2. Whether the law allows substitute decision makers such as enduring guardians and attorneys to agree to surveillance on behalf of residents who lack capacity;
  3. Whether any changes to Commonwealth legislation such as the Aged Care Act will be able to override legislation in the states that contain the rules for substitute decision makers.

All we know from the media releases is that

  1. Cameras will only be activated in residents’ bedrooms with their or their family’s consent but nothing about how the laws about substituted decision making and the fact that whatever family members are being consulted probably cannot legally give consent on behalf of a resident ; and
  2. There will be a committee overseeing and evaluating the effectiveness of the trial but there has been no mention of any ethical oversight

Despite all of the evidence of abuse uncovered by hidden cameras I still find the suggestion that “Families will be able to watch their relatives in their bedrooms with their phones” chilling.

Perhaps the greatest moral dilemma of our time is how we protect vulnerable people whilst preserving their personal rights and dignity.

If you would like to read more about how aged care providers can respond to requests to have cameras installed please click here.

What is the Serious Incident Response Scheme?

The 2019 federal budget includes a commitment of $1.5 million for preparatory work for the new Serious Incident Response Scheme to commence in July 2022.  Providers may be wondering just what this scheme is and what additional red tape it will impose on them.

The Serious Incident Response Scheme was recommended by the Australian Law Reform Commission in its 2017 report “Elder Abuse—A National Legal Response”.  The ALRC was asked to undertake an inquiry into “Protecting the Rights of Older Australians from Abuse” as part of the Government’s recognition of the potential for elder abuse to grow given the ‘inescapable demographic destiny’ of an ageing population.

The ALRC recommended that a National Plan to Combat Elder Abuse be developed as well as changes to the law in relation to aged care, appointment of enduring appointments, wills, banking, social security, superannuation, family agreements and guardianship and financial administration.

The aged care specific reforms recommended to address these risks included:

  • establishing a serious incident response scheme in aged care legislation;
  • reforms relating to the suitability of people working in aged care—enhanced employment screening processes, and ensuring that unregistered staff are subject to the proposed National Code of Conduct for Health Care Workers;
  • regulating the use of restrictive practices in aged care; and
  • national guidelines for the community visitors scheme regarding abuse and neglect of care recipients.

The ALRC recommended that the serious incident response scheme should:

  1. Require approved providers to notify to an independent oversight body:
    • an allegation or a suspicion on reasonable grounds of a serious incident; and
    • the outcome of an investigation into a serious incident, including findings and action taken.
  1. Replace the current responsibilities in relation to reportable assaults.
  1. Require the oversight body to monitor and oversee the approved provider’s investigation of, and response to, serious incidents, and enable it to conduct its own investigations of such incidents.

A ‘serious incident’ should mean:

  1. physical, sexual or financial abuse;
  2. seriously inappropriate, improper, inhumane or cruel treatment;
  3. unexplained serious injury;
  4. neglect;

However where the incident is committed by another care recipient, it should mean:

  1. sexual abuse;
  2. physical abuse causing serious injury; or
  3. an incident that is part of a pattern of abuse.

In home care or flexible care, ‘serious incident’ should mean physical, sexual or financial abuse committed by a staff member against a care recipient.

An act or omission that, in all the circumstances, causes harm that is trivial or negligible should not be considered a ‘serious incident’.

The “preparatory work” may result in a scheme that is includes some or all of these recommendations. The only information available in the budget papers was that the new scheme will require residential care providers to report a broader range of incidents occurring in their facilities.

CCTV cameras in residential aged care

We are all gradually becoming alarmingly comfortable with our public lives being recorded by security cameras located in car parks, train stations, shopping centres and the reception areas of buildings large and small. Having our private lives similarly recorded is however another matter. The very thought of cameras being installed in our bedrooms and bathrooms is at once frightening and infuriating. Despite this, many families want to install them in the rooms of their relatives receiving residential care and to record the most intimate and personal of interactions.

At a personal level, I find this perplexing and thought it worth setting out some facts about the use of CCTV cameras in residential aged care settings.

What we know about CCTV cameras in residential aged care

  1. The Aged Care Act and Principles (Act) do not contain any specific rules about the use of CCTV cameras in residential care facilities
  2. Consumer advocates are becoming increasingly vocal about the need for changes to the law to make it mandatory for aged care providers to give residents the option of having cameras installed in their rooms.
  3. So far the Government’s response to these calls has been to make it the providers’ problem. In the words of Minister Wyatt:  “Aged Care providers must balance each care recipient’s right to privacy and dignity with care recipients’ rights to live in a safe, secure and home-like environment without exploitation and abuse.”
  4. Families are covertly installing cameras and downloading or streaming the footage to themselves and others
  5. Although there is no general right to privacy in Australia there are many laws in the States and Territories that create criminal offences for filming or taking photographs of people engaged in activities that are considered to be private such as when using the toilet, showering or bathing or in a state of undress.
  6. A resident’s right to privacy and right to be treated with dignity and respect are protected by the User Rights Principles.
  7. There are work health and safety risks if surveillance is conducted without the knowledge of the employees, where there is no transparent policy about the use of footage or where the application of any such policy is inconsistent.

What we don’t know about CCTV cameras in residential aged care

At this stage there is uncertainty about whether a substitute decision maker, such as an enduring attorney or guardian, can consent to the use of cameras in a resident’s room if the purpose of the camera is for reasons other than a genuine medical purpose.

The better view is that a substitute decision maker cannot authorise the use of cameras in private spaces if the purpose is no more than to ensure proper care is being provided or “just in case” something untoward is happening.

What should providers do about CCTV cameras in residential aged care?

The one certainty is that providers cannot allow a vacuum to exist; they should make a decision about whether to allow cameras to be installed in residents’ rooms.  Whatever, the decision, there must a clear policy and procedures in place to support that decision.  That is the best way to manage the risks associated with residents and families covertly installing cameras.

Our view is that, without a mandatory requirement in the Aged Care Act for approved providers to give residents the option of having a camera installed, the legal risks and practical problems cannot be overcome.

This becomes obvious when you consider all of the risks that would have to be managed if cameras are allowed:

  • How will the resident’s dignity and privacy be protected?
  • What measures can a provider put in place to overcome the doubt about the power of substitute decision makers for residents who cannot give their consent?
  • Who will own and install the cameras?
  • Who will pay the costs associated with installation, maintenance and security of the cameras?
  • How and with whom will the images or footage be shared?
  • What cyber security arrangements will be required to ensure the footage is not misused?
  • What will be the impact on the provider’s insurance policies and premiums?
  • What will be the impact on staff and the quality of care?
  • What will be the attitude of doctors and other health professionals to having their consultations recorded?

Unless the government makes laws that help providers and residents deal with these uncertainties, the current dilemma will continue.

If you would like further advice on how to deal with this confronting issue, please contact us.

Royal Commission to scrutinise providers who do not respond

The Royal Commission into Aged Care Quality and Safety held its first day of hearings yesterday.  It began with an opening address from Counsel assisting the Commission in which he informed the Commissioners that less than one half of aged care providers had responded to the Commission’s request for information about substandard care.

Even though the Commission had sought voluntary responses rather than using its extensive coercive powers, this is surprising for a number of reasons:

  1. When the Royal Commission was announced, the industry said it would co-operate fully and look forward to participating in the Commission’s processes.
  1. The Commissioners have made it clear that they will consider using their coercive powers if providers do not respond. If they do so, providers are likely to be given very little time to comply.
  1. Not responding exposes providers to accusations about what they might have “to hide” and the risk of negative publicity. In this regard it is worth noting that Counsel assisting went on to say “As Commissioner Briggs noted previously, providers who do not engage with our requests draw attention to themselves and to their practices. They will be subject to careful scrutiny.”
  1. Providing a response is a means to participate in improving the aged care system. The Royal Commission is a daunting prospect for providers but it also represents an opportunity; an opportunity to contribute to the design of an improved and more effective aged care system. The request from the Commission invited providers to comment on systemic issues within the system, provide information on changes that should be made and give details of innovative solutions they had implemented.

We have assisted providers across the spectrum of the industry to formulate their response; from those in the “top 100” large provider category to providers with less than 30 residents. It can be a time consuming and frustrating task but the risks of not responding can only be mitigated by providing a comprehensive and well considered response.

Please contact Joanne O’Brien if you would like to discuss how best to complete your response.

Queensland Retirement Villages – New Approved Forms

The approved forms to be used by scheme operators from 1 February 2019 are now available and can be accessed using this link.

The new forms are:

• Village Comparison Document;
• Prospective Costs Document;
• Precontractual Disclosure Waiver;
• Entry Condition Report; and
• Exit Condition Report.

The Department of Housing and Public Works has now publicly stated that the implementation date for the new forms will be 1 February 2019 and operators have a busy time ahead preparing the forms for the villages and developing their processes and procedures.

If you require assistance with implementation please contact Joanne O’Brien.

Aged Care Royal Commission Update

All providers would by now be aware that the Royal Commission has written to “larger providers” with an invitation to provide an early written submission. Here are some of the key issues to come out of that letter:

1. This is an invitation only.

The Commissioners have extensive coercive powers under which they can order providers to give information but have not used them in this initial letter. There is therefore no legal obligation on providers to respond.

However, failing to respond could come back to haunt providers if evidence is subsequently given to the Commission by a care recipient’s family or the Aged Care Complaints Commissioner. From both a legal and reputational perspective, it would be far better to be open and transparent from the outset.

This is also an opportunity for providers to give the Commissioners feedback on exactly what providers believe to be the problems within the aged care system. The more providers remind them of the findings and recommendations of the many other inquiries into aged care, the better chance there is of those findings being finally acted on.

2. Personal information should be protected.

This initial invitation does not give providers any protection from releasing personal and health care information about care recipients or other people involved in delivering care. Providers should therefore ensure that they do not release information which they are otherwise prohibited from releasing.

3. What is substandard care?

Question 1 in the Commissioners’ letter asks providers to list details of “any occasion when your service or outlet has provided substandard care” in the period since 1 July 2013. This terminology has been taken directly from the Commission’s terms of reference with the first matter that it was asked to inquire into being:

“the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response;”

This is the context in which providers should consider whether there are any matters to include in their response. These may, or may not be, matters that have resulted in complaints or compliance action by the Quality Agency or the Department. The difficult part is determining what standard the care should be measured against; the standards in the Quality of Care Principles, community expectations or the local GP or some other measure. In the absence of any clarity coming from the Commission, a common sense approach is likely to be the best way forward with the starting point being a provider’s clinical practitioner/s and whoever is responsible for risk management considering the standard the provider will report against.

4. It will take a lot of work

What is certain is that providers should not underestimate the work involved in compiling a response to this invitation. Smaller providers who have the benefit of additional time and seeing the letters sent to larger providers should begin preparations for their responses now.

Please contact us if you require any assistance in the preparation of a response.

Queensland Aged Care Inquiry

The Queensland Government has established its own inquiry into aged care and palliative care. The inquiry will be conducted by the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee. The inquiry will look at:

  1. The delivery of aged care, end-of-life and palliative care in Queensland across the health and ageing service systems; and
  2. Community and health practitioners’ views on the desirability of supporting voluntary assisted dying, including provisions for it being legislated in Queensland and any necessary safeguards to protect vulnerable persons.

The committee report is due by 30 November 2019.

The inquiry’s terms of reference require the committee to proactively work with the Federal Government’s Royal Commission into the Quality and Safety of Aged Care and to take steps to ensure there is an appropriate exchange of information so that the inquiry can benefit from the work of the Royal Commission. Hopefully this will ensure that providers and consumers are not required to duplicate work done in responding to the Royal Commission.

Unfortunately the post on the Premier’s official Facebook page and the responses it elicited suggest otherwise.  Any efforts to improve the provision of palliative care to Queenslanders is welcome as is Queensland’s participation in the debate about assisted dying laws but it is unclear why there is a need to spend more tax payers’ money on an additional inquiry in aged care given the extensive inquisitorial powers of the Royal Commission.

To register as a stakeholder in the inquiry and receive updates on its progress follow this link. If you need assistance in preparing submissions to the inquiry please contact us.

Queensland Retirement Villages – More changes

The Government has moved to ensure that residents of freehold villages have the same protections from the 18 month compulsory buyback provisions as have been given to residents who lease or licence their units. The changes have been introduced to Parliament as part of yet another omnibus bill; the Health and Other Legislation Amendment Bill 2018.

This protection will be retrospective so that they are deemed to have commenced on the same date as those given to residents holding leasehold or licence tenure from 10 November 2017. The policy justification for the retrospectivity is the need to ensure the is equity between all retirement village residents.

There is only one minor amendment that will affect operators that lease or licence units. The Bill clarifies that s.104 which prescribes the obligations of a resident who has left the village to continue paying general services charges and maintenance reserve fund contributions, only applies where the lease or licence has been terminated. If a resident moves out of the village but the right to reside is not terminated, the resident will continue to be liable for these amounts as they were when living in the village.

If you would like more information about these proposed changes or the reform process which commenced in 2017 please contact us.

Retirement village law reform in Queensland

The implementation of the amendments to the Retirement Villages Act (“RVA”) has reached the next stage with 1 February 2019 being proclaimed as the commencement date for:

  1. The new disclosure documents; the Village comparison document and prospective costs document;
  2. The requirement for operators to maintain a website which can relate to more than one village scheme;
  3. The 21 day disclosure period;
  4. The new entry and exit condition reports;
  5. Additional information to be included in residence contracts; but no mandatory form contract as yet;
  6. Application of the new narrower definition of reinstatement work;
  7. Introduction of rules relating to renovation work;
  8. Amended definition of capital replacement fund contribution;
  9. Reduction in the time period for reconsidering an agreed resale price from 6 months to 3 months;
  10. Residents and prospective residents to be given access to prescribed “operational documents” which will be defined in regulations yet to be released; and
  11. The prohibition on misleading or deceptive conduct in relation to the operation of a village.

The prescribed forms for the disclosure documents, entry and exit condition reports and waiver form for the disclosure period are yet to be released.

This means that operators will have a lot of work to do over the next few months to ensure the new documents are prepared and staff are trained on the implementation of the new procedures.

CRH Law can provide assistance with preparation of the documents and training packages for staff.