Elder abuse: Lawyer slams government’s ‘discriminative’ compensation laws

A prominent Queensland lawyer has called for a reform into elder abuse cases in nursing homes, claiming it is “virtually impossible” for victims to pursue a claim which is financially viable.

Highlighting the state’s tough compensation laws, Injury Compensation Law Specialist Mark O’Connor, from Bennett & Philp, told Starts at 60 that elderly abuse victims are being discriminated against.

Pointing a finger at the state government, O’Connor explained how the introduction of the damages threshold to the compensation system in 2002/2003 is part of the problem. The decision meant thresholds had to be exceeded before an injured person could recover their legal costs from the responsible party.

The lawyer said that, since then, awards for personal injury and impairment for most injured persons have been significantly reduced, particularly for the elderly.

“Unless an injured elderly person can recover damages and compensation in excess of $75,750 then they would likely recover little of their legal costs from the responsible nursing home,” O’Connor explained.

“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 added: “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.”

Read more: Aged care assaults more than double in decade, inquiry hears

Sadly, elder abuse cases have increased over time with a recent study claiming the number of physical and sexual assaults has more than doubled in just a decade.

The data, presented by the Combined Pensioners and Superannuants Association (CPSA) of NSW, states that violent assaults have increased from 0.62 per cent to 1.36 per cent between 2008-09 and 2016-17.

Despite these staggering statistics and the numerous cases of elder abuse that have been reported, O’Connor said that proprietors of nursing homes know, due to the difficult process, it’s unlikely they will actually be sued.

It is for this reason the Brisbane-based lawyer wants a reform to allow the elderly, who are subjected to abuse in nursing homes and bring civil claims, to be exempt from the costs threshold.

Describing the complexity of the current situation, O’Connor explained how there are added thresholds that 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 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 a least six hours assistance per week for a period of six months,” he said.

“The combination of the inability to recover costs and inability to recover for the likely cost of care means that many old people are cut out of the system and effectively can’t claim compensation for physical injuries received in nursing homes or elsewhere.”

Read more: Sexually assaulted at 94: One brave woman shares her story

While many of the accusers walk away free, one elderly woman earlier this year fought for her rights after being sexually abused at her retirement village.

Taking the matter to court, the 96-year-old told The Weekend Australian Magazine she believes she was targeted by the attacker because he thought people wouldn’t believe a “very old” woman.

Her experience showed, sadly, that the attacker was almost correct – she very nearly was not believed when she attempted to report the attack. But Margaret Solis continued to tell her story and pursued her attacker to court, where he pleaded guilty to sexual assault charges.

“He probably thought that at 94 I wouldn’t be believed, that they’d think I’d gone gaga. Or better still, that I’d just keep my mouth shut … Now I feel I have avenged myself and avenged all those other elderly women he would have gone on to assault,” a proud Margaret told The Weekend Australian Magazine.

What are your thoughts on the current laws surrounding elder abuse cases?