The Forgotten Injured: Recovery for Injuries in Aged Care

This post has been contributed by Associate Professor Kylie Burns, member of both Griffith’s Law Futures Centre and Hopkins Centre.

The findings of the Royal Commission into Aged Care Quality and Safety handed down in March 2021 have shocked many Australians.

The Final Report found vulnerable Australians in aged care suffered high rates of injury and that the ‘extent of substandard care in the current Australian aged care system’ was ‘inexcusably high’, ‘deeply concerning and unacceptable by any measure.’

Many injuries suffered by aged care residents go undetected and unreported let alone compensated.

Despite high rates of injury, Australians in aged care are the forgotten injured.

They are poorly served by current personal injury law, by existing statutory compensation schemes and by the National Disability Insurance Scheme (NDIS).

The costs of injuries in aged care are overwhelmingly borne by already cash strapped health systems and, of course, by injured aged care residents and their families.

Common injuries suffered by people in aged care were found by the Royal Commission to include physical and sexual abuse, assault, inappropriate use of physical and chemical restrictive practices, and physical and psychological injury resulting from poor or inadequate care.

Commissioner Briggs concluded that at least 1 in 3 people in aged care experienced substandard care.

Common physical injuries included pressure sore injury, injuries from preventable falls, poorly treated infections, poorly managed medication, inappropriate use of medications such as antipsychotics, benzodiazepenes and antidepressants, and malnutrition and weight loss from poor diet or failure to ensure frail residents were assisted to eat.

In 2019-20 there were 5718 reported allegations of assault on people in residential care reported by residential aged care facilities.

During the same period, 851 allegations of sexual assaults were reported.

Recent analysis suggests that resident on resident physical and sexual assaults were likely to be far more prevalent than publicly reported figures given many assaults are exempt from reporting if the alleged perpetrator is another resident with diagnosed mental or cognitive impairment where the care service considers there is a behaviour management plan.

It has been suggested that between 26,960 to 38,898 physical and/or sexual assaults per year (including an additional 1730 sexual assaults) are occurring in residential aged care which are exempt from reporting. Aged care residents are at a higher risk of assault than the general population and elderly women in care are grossly under-recognized victims of sexual assault.

Rates of clinically inappropriate physical and chemical restraint of elderly people are high and the practices are ‘widespread’.

As at May 2021 the majority of Australians who died from COVID 19 (685 of a total of 910 deaths) were aged care residents who contracted COVID 19 while living in an aged care facility (mostly in Victoria).

Continuing lockdowns of aged care facilities due to COVID-19 led and will continue to lead to deterioration of both physical and mental health of aged care residents.

Despite the existence of a high level of intentional and potentially negligent injury and neglect in aged care, current personal injury law provides very little redress or compensation for injured elderly people.

There appear to be very few tort law actions (for example in negligence or for intentional torts such as assault, battery or false imprisonment) by aged care residents seeking compensation for their injuries.

Aged care providers have a common law duty of care to residents in the facilities which should extend to both direct care of individual residents as well as appropriate management of cognitively impaired residents to prevent them injuring other residents.

However, difficulties may arise in relation to proving breach or causation of injury where residents are likely to already suffer from multiple serious health conditions and comorbidities and may suffer significant cognitive impairment.

In addition, aged care residents will inevitably be already receiving some care and support as a result of existing conditions, will have retired from work and may not suffer further significant economic loss as a result of injury, and will have limited life expectancy.

All of these factors limit the quantum of any damages that could be awarded, particularly when the impact of tort law reforms across Australia restricting damages are considered.

As Barnett and Hayes have noted, practical issues such as lack of access to financial and legal resources and the time involved in taking legal action are also very significant barriers to personal injury actions by elderly injured aged care residents.

Elderly people who acquire a disability through injury in aged care after 65 also have inequitable access to lifetime care and support as they are unable to access the National Disability Insurance Scheme which provides a higher level of support than that provided in the aged care system.

National Injury Insurance Schemes (NIIS) to provide care and support for disability caused injury were recommended for all injuries in 2011 by the Productivity Commission’s landmark ‘Disability Care and Support’ inquiry which led to the NDIS.

However, to date NIIS schemes have only been established for work and motor vehicle injuries- injuries typically suffered by younger claimants. In short, injuries suffered by elderly people in care receive little response from existing systems of compensation.

Their pain, suffering and loss of dignity are not ‘valued’ in the same way as injuries suffered by younger people.

There is minimal (to nil) incentive for an aged care provider to take steps to lower injuries in aged care due to fears of being subject to personal injury litigation.

Aged care providers (and Australians more generally) are not required to make contribution to any form of statutory injury scheme (for example a NIIS for aged care injuries or a no fault aged care injury scheme) that would compensate the ‘forgotten injured’ in aged care.

What does the future hold? The Royal Commission into Aged Care Quality and Safety has recommended, along with many reforms to improve the quality and regulation of aged care, that an additional positive statutory non delegable duty on aged care providers (broadly defined) be included in aged care legislation to ensure ‘so far as is reasonable, the quality and safety of its aged care services’.

It is envisaged that breach of this statutory duty could be enforced by both a quality regulator and any person harmed.

In addition, the Royal Commission has recommended that by July 2024 people living with disability in aged care should receive an equivalent level of supports to those available in the NDIS.

The Commonwealth Government has committed to reformed aged care legislation, but a draft has not been released. In addition, the Government has committed to further consider the issue of equivalency of NDIS supports for people with a disability.

While such reforms would be a positive development, they seem unlikely to result in very significant improvements in compensation for individuals if they are injured given the many barriers elderly people face in receiving compensation for injuries caused in aged care.

Ageism seems inherent in the Australian tort compensation system and injuries in aged care appear likely to continue to go mostly uncompensated which is a national disgrace for a compassionate society.

This post is adapted from Luntz, Hambly, Burns, Dietrich, Foster, Grant and Harding, Luntz and Hambly’s Torts: Cases, Legislation and Commentary, Lexis Nexis, 2021, Chapter 1 (forthcoming).