The duty to care for older persons.

A duty of care is the legal obligation to take reasonable steps to not cause foreseeable harm to another person or their property. Generally, a duty of care may be breached when an injury occurs, due to the action or inaction of someone, and that injury is reasonably foreseeable in the circumstances. In aged care, this means that operators must provide the necessary care and support in order for residents to maintain their health and wellbeing, which includes creating an environment that is safe and supportive. Aged Care Justice's Ed Carlisle explores strengthening this baseline duty and its enforcement to ensure high quality care and sector accountability.

Read Duty of Care article.

Read more articles by Aged Care Justice volunteers on our website

Legal Insight

Dr Bryan Keon-Cohen AM KC, Chair of Aged Care Justice.

Who can give consent to practices which control residents' behaviour?

A hierarchy of substitute decision makers came into force on the 1st December 2022, outlining who can authorise a provider to use a restrictive practice on an aged care recipient. A restrictive practice may take the form of confining someone to their room, a chair, or administering sedatives.

This new consent scheme means that in the absence of existing state and territory law which specifically regulate representative consent, a broad range of options are now available to providers to seek consent for the application of a restrictive practice.

In jurisdictions where there exists an avenue to appoint a substitute decision maker, such as via administrative tribunal or enduring power of attorney, yet there are 'significant delays', providers may also defer to the hierarchy. Outside of a formally appointed substitute decision maker, the next authorised person or people are 'restrictive practices nominees', chosen by the care recipient. Next comes the person's partner, then relative or friend who has been an unpaid carer of the person, followed by a relative or a friend who has not previously provided care for the person however exhibits a "close continuing relationship" with them. At the end of the hierarchy is the care recipient's “medical treatment authority”, who have been “appointed in writing” and are able consent to medical treatment on behalf of the person.

How can one be sure that the now wide range of people who are able to provide consent for such serious practices are informed, qualified and acting in the best interests of the person? How do the multiple avenues to gain consent help drive down the use of restrictive practices and encourage alternative strategies?

Providers are required to ensure restrictive practices are only used to prevent harm and are applied for the shortest amount of time necessary to achieve that end. However, will substitute decision makers be made aware of this regulation and check on the care recipient to ensure requirements are followed? Is it their role?

The Government has announced that the hierarchy is an interim arrangement, in place for the next two years, which will not continue under the new Aged Care Act. Two years is however a long time for older, vulnerable and frail Australians who need robust legal protections in place to ensure their safety and quality of life.

Aged Care Justice (ACJ) connects aged care recipients and their loved ones to legal services. If you have an issue with an aged care provider, a free legal consultation is available to everyone, as well as pro-bono assistance for those who qualify. Call (03) 9016 3248 or email info@agedcarejustice.org.au or click the button below to fill in the Get Help Form.

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Is medication changing a resident's behaviour?

The Royal Commission into Aged Care revealed that the use of medication to alter the behaviour of aged care recipients was shockingly high. There are guidelines in place to regulate the use of mind-altering drugs in aged care settings. Read more below.

Fact Sheet on Medical Restraint

Does your loved one feel isolated?

Restricting an aged care recipient's freedom to move freely is a form of restraint and should only be used to prevent potential harm. If you're unsure about the treatment of your loved one in care, read more below.

Fact Sheet on Environmental Restraint