Prominent Australian lawyers have expressed their concern over the country’s royal commission into aged care abuse, claiming victims will only be given a fair compensation payout if it’s paired with a legislation overhaul.
The inquiry, which was ordered by Prime Minister Scott Morrison, was announced on September 16 following an outpouring of information from a government audit. The shocking statistics revealed almost one aged care service per month has been closed by the Department of Health since the notorious Oakden facility in Adelaide was shut one year ago.
While the prime minister has been praised for his action on the growing issue and passion to see change, lawyers across the country – including personal injury lawyer John Harvey, from Bennett & Philp – say tough compensation laws make it virtually impossible for elder abuse victims to pursue claims for injuries caused by poor care and neglect in nursing homes.
The Brisbane-based lawyer told Starts at 60 the current compensation laws in Queensland alone effectively protect government bodies and insurers from small claims with an unfair claim threshold that discriminates against the aged.
“The main issue is the restriction in Queensland on claimants’ rights to recover standard legal costs contained in the Personal Injuries Proceedings Act 2002 which states that claimant’s cannot recover standard legal costs unless their claim exceeds the threshold of (currently) $75,750,” he explained.
“This section of the Act is only there to protect government bodies and insurance companies. Do they deserve that protection?”
Unfortunately, Harvey said the growing number of elder abuse cases will not improve unless changes are also made to the Civil Liability Act Regulation. Currently in Queensland the regime of assessing general damages for pain and suffering is based on assessments of permanent impairment resulting from injuries.
“How can that be assessed if a dementia patient has had to endue appalling treatment for 2 or 3 years when there is no permanent physical or psychological impairment that can be assessed as a result?” he questioned.
“The right to claim damages has an impact on the behaviour of aged care facilities, hospitals and medical providers. Yet the aged are effectively discriminated against by the above legislation, such that the aged care can be treated negligently with impunity because the legal costs of pursuing their claims cannot be recovered.”
According to Shine Lawyers’ National Special Counsel Roger Singh, while each state and territory has it’s own restrictions on the level of compensation that is recoverable for injuries, making claims is still a difficult process across the whole country for the elderly.
“The system currently fails our elderly due to an inability to secure legal redress because due to age related factors the compensation framework in the way that it is designed results in very low compensation awards,” he told Starts at 60.
“In absence of access to justice for the elderly there are currently no effective deterrents in place to curtail these aged care facilities from inflicting abuse and injuring our elderly both physically and psychologically.”
Hopeful that the royal commission will bring this disparity into focus, Singh said there is a need for those who have suffered such terrible violation to have access to justice.
“To achieve this the elderly must be considered as a special category of persons with compensations for pain and suffering for elder abuse to be assessed at amounts beyond the conventional approach in other types of personal injury claims,” he added.
While the royal commission gets underway, those with loved ones in aged care are being urged to pay extra attention to what is going on around them when they visit.
“It doesn’t have to be the obvious signs like bruising and lacerations from falls, look out for an elderly person’s change in demeanour – if they have shut down or are really quiet,” Shine Lawyers’ Elder Abuse Expert Leanne McDonald explained to Starts at 60.
“Also take note of the workers and the other residents – do they seem happy? Are doors usually open or closed when staff go into the rooms?”
She added: “The older generation of Australians deserve to be treated with the utmost care, respect and dignity in the latter part of their lives. Too many nursing homes have failed in their standard of care and so few resources are allocated to this defenceless sector of society.”