Australia’s Litigation Lag
By Anna Huynh
The findings of the recent Royal Commission into Aged Care have shed light again on the astonishing amount of abuse that occurs in residential facilities in Australia. Some providers are subjecting residents in their care to poor nutrition, unlawful restraint, and neglect have been revealed as common experiences in homes which have been reported by the Commissioners.
(1) The Commission’s Recommendations: In response to such findings, the Royal Commission recommended the introduction of a civil penalty for breach of an aged care provider’s general duty ‘to provide high quality safe aged care’. This civil penalty would allow the Aged Care Quality and Safety Commission (‘ACQSC’) to initiate legal action against aged care providers for a failure to provide adequate care.
The Commission’s recommendation is limited to rights available to the Regulator, as opposed to resident-initiated representative claims that would empower vulnerable, older Australians themselves to pursue remedies through the justice system.
(2) The Federal Government’s Response: Upon review, the Federal Government stated that this recommendation is ‘subject to further consideration’ with respect to the creation of the new Aged Care Act.
The Morrison Government’s lacklustre response to the Commission’s report is unacceptable and falls short of what is required in the face of the evidence. In particular, it has failed to address and correct the conditions that have left Australia’s aged care residents vulnerable to such mistreatment – a lack of support for enforceable rights enabling them to exercise control over access to remedial justice.
This article identifies several legal barriers that make it difficult for aged care providers to be held accountable for criminal offences, civil violations, and breaches of their statutory obligations. It explores the limited options available to victims when attempting to seek justice, including by comparison to other countries’ aged care systems across the world. The inadequacy of regulatory mechanisms in Australia is magnified by the realization that 1 in 3 Australians over the age of 65 are receiving aged care – one of the highest rates of aged care residency in the OECD.
Access to Justice for Vulnerable Elders in Aged Care: Currently, a complaints scheme exists in Australia, which allows victims of aged care abuse and their families to raise their concerns with the ACQSC. However, this process fails to satisfactorily deal with substandard care. It merely provides for the ACQSC to ‘look into’ the complainant’s concerns and offer them limited dispute resolution procedures and regulatory action at their discretion, with possible penalties upon aged care providers.
Complaints by residents continue unabated under the existing regulatory system, while imposing the ultimate sanction of withdrawing accreditation is a rare occurrence. That is so because replacing a provider is a very significant, and onerous, task for the Regulator. This failure of efficacy contributes to a system that places an unfair burden on older people and their families to choose safe and appropriate providers in an environment with minimal transparency, and in a system that provides little structural and individual accountability. Therefore, potential complainants must look to the civil and criminal legal system to assert their individual rights.
In Australia, depending on the circumstances and the nature of the claim, legal actions directly available to the complainant against aged care providers can be pursued via the criminal or civil justice systems. However, whilst these avenues may exist to provide accountability, aggrieved aged care residents are often discouraged or disabled from acting because of their own vulnerability. When both the criminal and civil avenues are scrutinised carefully, neither offer much hope to the claimant for effective recourse unless assisted by lawyers familiar with the available remedies.
Criminal Liability in Australia: As to criminal liability in Australia, offenders in aged care may be prosecuted for several offences including assault, battery and false imprisonment. These offences address the physical abuse suffered by residents; however, they do not encompass all areas of potential harm. Such prosecutions, if successful, carry a maximum penalty of up to 10 years imprisonment. However, many complainants are deterred from actioning their legal rights, due to their advanced age, financial stress, and the time-consuming and usually stressful nature of litigation. Further, criminal charges must be proven to a standard of beyond a reasonable doubt – one that requires clear and cogent evidence that some residents might struggle to provide. The accountability, deterrent and punitive aspects of the criminal process may fail to respond adequately to the traumatic acts that vulnerable residents all too often experience.
However, recent amendments to the Australian Capital Territory Crimes Act 1900 recognise these significant features in the abuse of vulnerable people and prescribe an area for criminal law reform that should be considered by other States. The definition of ‘vulnerable person’ which includes older Australians over 60 and, for example, with a disability, provides an added avenue and opportunity for litigation against abusive conduct, which may not be available generally.
International Comparison: Still, our criminal laws as applied to Aged Care lag severely behind those operating in other countries. In the USA, states such as Florida, California and South Carolina have long introduced criminal legislation which recognises the vulnerability of elders in long-term care, and specifically allows ‘elder abuse’ to be prosecuted. In particular, Californian law allows elder abuse to be treated similarly to child abuse, with a wider (including longer) range of sentencing options available. More importantly, legal systems in other states have been streamlined to accommodate, and protect, the elderly through special reforms such as changing evidence procedures, training law enforcement staff to deal with cases of elder abuse and providing support for victims across the litigation journey.
Civil Liability in Australia: As for imposing civil liability upon aged care providers, currently, claims for example, monetary compensation, can be pursued through the tort of trespass against the person (including assault, battery and false imprisonment), negligence, or breach of contract and claims arising under the Australian Consumer Law. These laws may apply to situations involving physical restraints, non-consensual rough and injurious physical handling, and substandard levels of care provided, for example, poor nutrition and hydration. However, when awarding damages for non-economic loss, only significant injuries and a high degree of impairment are normally accepted by the courts. This litigation record in Australia suggests that a large proportion of mistreatment of aged care residents may, in practice, fail to attract meaningful civil remedies. However, ALARM has been established for the purpose of changing the legal landscape in assisting aged-care residents to seek their own legal redress and achieve a refund of care fees, as well as the cost of remedial and restorative medical therapies where appropriate.
Alternatively, damages may be available against a provider for breach of contract. Although a seemingly easier pathway for redress, a clause in the provider-resident’s contract requiring a specified level of care is usually required. Many contracts used in aged care facilities that lack such a clear definition of the standard of care which will bind the aged care provider. The confusion about standards of care in the contract may help providers avoid accountability. In such cases, the implied guarantees of service quality and other provisions found in the Australian Consumer Law may well be of substantial assistance.
International Comparison – USA, California: The difficulties contributing to a failure to respond to abuse of vulnerable residents in the Australian civil justice system can result in inadequate damages. This unacceptable outcome is illustrated when contrasted with equivalent proceedings under Californian law. Under the Californian Civil Code and Welfare and Institutions Code, there are a broader and enhanced range of remedies, including damages, that can deliver significant compensation to a plaintiff. By recognising an older person as vulnerable and dependent, these laws allow a plaintiff access to punitive damages and recovery of attorney fees, in addition to compensation awards – such as for any physical and/or emotional damage suffered.
Regulatory mechanisms – Denmark: Recognising, in law, the dependency of vulnerable older people in both civil and criminal dimensions create a strong legal framework that is more likely to deter providers from acting arbitrarily and provides potential victims with increased ability to bring forth a claim. More importantly, the comprehensive nature of some aged care systems helps to prevent such abuse – and claims – from arising in the first place. For example, the licensure and quality-monitoring operated by local councils in Denmark provide a more community-focused regulatory mechanism compared to the centralised character of Australia’s regulatory system.
The core issue that concerns ALARM is the lack of clear and definitive recognition of elder abuse in all its relevant forms in aged care, let alone systemic support for vulnerable older Australians across all State and Territory criminal and civil legislation. The current legal rights available to abused residents against aged care providers are difficult to pursue. The Royal Commission’s recommendations to enable civil penalties to be enforced against providers have been relegated by the Morrison Government for further consideration. Even so, granting the Regulator the discretion to proceed with a claim for compensation to the injured elder, is unlikely to be successful across the whole system for individuals. One has only to consider how long it has taken to reach this point of systemic reform to see that. Moreover, the record of industry regulators in the finance, banking, consumer and corporate fields shows that they are themselves captive to their budget allowances from government and cannot hope to assist every complainant.
Current civil and criminal avenues for seeking compensation and accountability for providers are flawed because they fail to recognize vulnerable older Australians and facilitate them to individually address their claims. With an unprecedented proportion of our population predicted to be over 65 by 2050 the Morrison government should now recognise that abuse in the aged care system must be penalised appropriately, and to empower residents and their representatives to take their own action, in addition to regulatory oversight and penalties.
Recommendation #1: State and Territory governments should amend their current Crimes Acts to recognise older Australians as ‘vulnerable,’ and follow recent legislative amendments in the ACT. This should be coupled with special procedures for such victims.
Recommendation #2: State and Territory governments should implement legislative reforms allowing for civil redress in the courts which recognise vulnerable older Australians and consider lowering the threshold presently applying to personal injury damages under the various Civil Liability Acts around the country.
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.
 Law student, Monash University, ALARM volunteer. The author acknowledges the valuable assistance provided by senior ALARM volunteer lawyers in the preparation of this article.
 See Recommendation 101 of the Royal Commission into Aged Care Quality and Safety (Final Report, March 2021) vol 1, 273 (‘Royal Commission’).
 Australian Government response to the final report of the Royal Commission into Aged Carer Quality and Safety (Report, 11 May 2021) 65 (‘Australian Government Response’).
 Suzanne M Dyer et al, ‘Review of International systems for long-term care of older people’, Royal Commission, Research Paper 2, (January 2020), 40.
 ‘The complaints process’, Australian Government Aged Care Quality and Safety Commission (Web Page, 26 October 2020) <https://www.agedcarequality.gov.au/making-complaint/complaints-process>.
 Crimes Act 1958 (Vic) s 320.
 See Crimes Act 1900 (ACT) ss 36A–36C.
 Ibid s 36A.
 See, eg, Crimes Against Elders, Dependent Adults, and Persons with Disabilities, Cal PEN Code § 368(2) (2009); Omnibus Adult Protection Act, SC Code Ann, § 43-35-85(B)–(D) (1976); Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults, Fla Stat, § 825.102.
 Crimes Against Elders, Dependent Adults, and Persons with Disabilities, Cal PEN Code § 368(3)(d) (2009).
 ‘Prosecution of Elder Abuse, Neglect and Exploitation: Criminal Liability, Due Process and Hearsay’, American Prosecutors Research Institute, (July 2003) <www.nda.org/pdf/elder_abuse_web.pdf>.
 Wrongs Act 1958 (Vic) s 28LE.
 Elder Abuse: How well does the law in Queensland cope? A joint paper by the Office of the Public Advocate (Qld) and Queensland Law Society (June 2010).
 Cal Civil Code § 3345 (2009); Cal WIC Code § 15657 (2009).
 Cal WIC Code § 15657 (2009).
 Suzanne M Dyer et al, ‘Review of International systems for long-term care of older people’, Royal Commission, Research Paper 2, (January 2020).
 Except, currently, the Australian Capital Territory.
 Royal Commission (n 2) 273.
 Australian Government Response (n 5) 65.
 Rae Kaspiew, Rachel Carson and Helen Rhoades, ‘Elder abuse: Understanding issues, frameworks and responses’ (Research Report No.35, Australian Institute of Family Studies, Nov 2018) 15.
 See Crimes Act 1900 (ACT) ss 36A–36C.
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.