Aged Care Home Death
By Catherine Henry 
We helped one of the families featured in the second part of Who Cares?, the ABC TV Four Corners expose into the aged care sector, to fight for justice. [The matter of Alana Freeman appears at 28:28 of the program]. When our clients’ 87-year-old mother was admitted to an aged care home in the Hunter region, they had no idea that in just four short months she would suffer injury and death.
Serious injury without adequate treatment
Just two days after moving into the aged care facility in the Newcastle area, the 87-year-old mother fell from a chair and landed on the ground. After the fall she experienced severe pain, for which staff administered Panadol and Endone. No further investigations were carried out at the time.
Four days after the fall, our clients’ mother was diagnosed with a urinary tract infection. Despite her excruciating pain, and pleadings from her daughter, she was not sent to a local hospital for treatment until after another fall a week later. A CT scan of her pelvis revealed a T-12 crush fracture. Their mother had been sitting on a fractured vertebra for eight days.
Our client’s mother was discharged from the hospital after 11 days and returned to the aged care facility. However, she was now unable to walk and developed bedsores (pressure ulcers) on her heels, her ankles, her elbows, and buttocks.
Management of bedsores
The pressure injury was inadequately managed and deteriorated into infection. The following month, our clients’ mother passed away as a result of sepsis, caused by her body’s response to that infection. The staff did not tell the family about the bedsores. Her daughter only found out about this when she saw the records after her mother had died.
Complaint to the Aged Care Complaints Commission
The family went to the Aged Care Complaints Commission. Ten months later the Commission found that the home did not regularly liaise with their mother’s GP; had not sought a wound specialist review and had left wound care to be mainly completed by untrained carers. But the Commission closed the case. No further action was taken. It did not visit the nursing home for its investigation nor refer its report to the Quality Agency. Three months later the Agency extended the facility’s accreditation by nine months for sustained compliance with the standards.
The family were shocked by the lack of accountability afforded to the facility after they failed to observe a reasonable standard of care. They did not want what happened to their loved one to happen to anyone else.
Our expert elder law team helped the family to sue the facility for professional negligence. On their decision to litigate, the family stated that it is the only way in Australia to have these places accountable.
A lack of appropriate care
Our health lawyers argued that the aged care facility was negligent and had breached its duty of care to the deceased and her children. Our health law team successfully negotiated a substantial out-of-court settlement outcome for our clients.
Staff at the aged care home knew, or ought to have known, the risk of serious injury or death in the presence of the signs and symptoms with which the deceased presented over the course of several weeks. Staff were also negligent in not identifying and treating the deceased’s injuries and mitigating the risk of bedsores and infection by failing to facilitate the necessary hospital admissions, physiotherapy and rehabilitation.
As a result of the aged care facility’s negligence, our clients not only lost their mother, but also suffered psychological injury, loss and damage which has left them incapable of resuming their former lives.
Aged care in Australia: ineffective regulation
Aged care services are funded and regulated under the Aged Care Act 1997 (Cth). Since its introduction by the Howard government in 1997, the regulatory system is weighted in favour of providers and large ‘for-profit’ health care groups. It is legislation written for aged care providers by aged care providers.
Australia’s regulatory aged care framework fails to protect the human rights of some of the most vulnerable in our society. For example, the Oakden Report, Australian Law Reform Commission Report 131 and others bear this out. The Aged Care Royal Commission has heard many revelations of mistreatment occurring in residential aged care facilities.
Very few complaints about the provision of substandard aged care result in sanctions or disciplinary action. Complaints about aged care are often managed either internally or externally with a view to conciliation or making the problem go away.
Role of court action
A legal action in negligence is a valuable tool in the struggle for justice to protect some of Australia’s most vulnerable, frail and aged citizens as it sets and upholds an appropriate standard of care.
Litigation is more than a compensatory regime as it can also be an empowering medium for residents of aged care and their families who have suffered insult, injury, humiliation, distress and a loss of dignity or had their life unnecessarily shortened in aged care. The harm suffered by an aged person injured due to negligence should be acknowledged and apologised for. Bringing an action in professional negligence allowed our clients to call the harm-causing defendants to account.
If you or someone you know needs legal assistance, we encourage you to fill out ALARM’s GetHelp form on our website at www.ALARM.ORG.AU; or contact ALARM on (03) 9016 3248; or email us on firstname.lastname@example.org. You may then select, or, if you wish, we will direct you to, one of our Allied Law Firms for an initial meeting and advice, at no cost to you. Thereafter, you can decide whether to proceed with a formal legal complaint. If you do wish to proceed, costs arrangements, if any, will need to be discussed, and agreed, with the firm.
 Health & Aged Care Lawyer, Principal, Catherine Henry Lawyers Pty Limited, Sydney; ALARM Volunteer Consultant.
The views expressed in this article are the views of the author. The contents of this article are for general information purposes only and do not constitute legal advice, are not intended to be a substitute for legal advice, and should not be relied upon as such. Legal advice should be sought prior to any action being taken in reliance on any of the information. If you are in need of legal advice and/or assistance about aged care matters, please seek legal advice directly or via ALARM’s GET HELP form on its website: www.agedcarejustice.org.au.