Given the vulnerability of our elderly population, the laws around their care are highly regulated and made with a view to protecting their best interests and quality of life. Should a provider fail to meet these standards, care recipients have several easily accessible avenues of complaint and can seek redress from a number of bodies.
Internal complaints mechanism
Providers of residential, community and flexible care must establish a complaints resolution mechanism for the service and use it to address any complaints made by or on behalf of a care recipient. Providers must provide information about the internal and the external complaints mechanisms to care recipients or their representatives.
Care recipients (and their representatives) have the right to complain about the care and services they are receiving and to take action to resolve disputes. They also have the right to access advocates and other avenues of redress. Providers are required to deal with complaints fairly, promptly, confidentially and without retribution (Home Care Standards; Charter of Residents’ Rights and Responsibilities; Charter of Rights and Responsibilities for Home Care).
Aged care complaints
If you have a complaint about aged care services that are subsidised by the Australian Government, contact the Aged Care Complaints Commissioner (see “Contacts”).
Anyone may make a complaint about a provider’s responsibilities under the Aged Care Act or the Principles. A complaint may be made orally or in writing. When the ACC Commissioner receives a complaint, it must do one of three things in relation to each issue:
• decide to take no further action on the issue;
• quickly resolve the issue to the satisfaction of the complainant by giving assistance and advice to the complainant or the provider;
• undertake a resolution process.
If the scheme undertakes a resolution process in relation to an issue it may adopt one or more of a number of approaches to help resolve the issue including requesting the provider to examine and attempt to resolve the issue and report back to the scheme, conciliation, mediation and conducting an investigation. More information can be found in the Complaints Principles.
The scheme may decide to end a resolution process in certain circumstances including if the issue has been resolved because the complainant and the provider have agreed on an outcome, if the provider has addressed the issue to the satisfaction of the scheme, or if the scheme has directed the provider to take certain action to comply with its responsibilities.
A complainant may apply to the scheme for reconsideration of a decision by the scheme to take no further action on an issue. A complainant or a provider may apply to the scheme for reconsideration of a decision by the scheme to end a resolution process. The application must be made within 28 days of the applicant being notified in writing of the decision. Within 28 days of receiving the application, the scheme must either:
• confirm the decision to take no further action or to end the resolution process; or
• decide to undertake a new resolution process.
If the scheme decides to undertake a new resolution process, an application cannot be made to the scheme for reconsideration of a decision to end the new resolution process. However, an applicant may seek examination of the decision by the Aged Care Complaints Commissioner.
The Australian Aged Care Complaints Commissioner (ACC Commissioner) holds a statutory appointment and is independent of the Australian Government Department of Health. The ACC Commissioner examines decisions made by the Aged Care Complaints Scheme in relation to complaints about providers and makes recommendations to this scheme arising from the examination (pt 6.6 Aged Care Act).
A complainant may apply to the ACC Commissioner for examination of:
• the scheme’s decision to take no further action on a complaint;
• the scheme’s decision to end a resolution process;
• the scheme’s decision to confirm a decision to take no further action or to end a resolution process after reconsideration by the scheme;
• the scheme’s decision to end a new resolution process where a new process has resulted from the scheme reconsidering an original decision to end a resolution process.
A provider may apply to the ACC Commissioner for examination of:
• the scheme’s decision to end a resolution process;
• the scheme’s decision to confirm a decision to end a resolution process after reconsideration by the scheme;
• the scheme’s decision to end a new resolution process where a new process has resulted from the scheme reconsidering an original decision to end a resolution process;
• the scheme’s decision to end a new resolution process, where a new resolution process has resulted from the ACC Commissioner examining an issue and recommending that the scheme undertake a new process, and the scheme’s new resolution process has been ended because directions have been issued to the provider (where such directions were not issued as part of the original resolution process).
An application must be made within 28 days of the applicant being notified in writing of the scheme’s decision. If the ACC Commissioner decides to examine the scheme’s decision then, within 60 days, the ACC Commissioner must either recommend that the scheme not undertake a new resolution process or that it undertake a new resolution process.
The ACC Commissioner also has the power to examine complaints made about the scheme’s processes for handling complaints under the Complaints Principles and to make recommendations to the scheme arising from the examination.
For the ACC Commissioner’s contact details, see “Contacts”.
Advocacy for care recipients
In advocating for people receiving aged-care services, it is important to understand the ageing process. A high proportion of care recipients suffer from a form of dementia, such as Alzheimer’s disease. Many will not be competent to give instructions or execute legal documents. If there is no enduring power of attorney (financial) or enduring power of guardianship, and decisions cannot be made informally, an application for administration and/or guardianship may need to be made to the Guardianship List at the Victorian Civil and Administrative Tribunal (VCAT). (For more information on these issues, see Understanding guardianship, and Understanding powers of attorney.)
Other care recipients may be physically frail but mentally competent to make decisions, although their frailty may cause them to tire quickly or limit their ability to express themselves.
Care recipients are in need of services on a continuing basis, and their dependency on the service provider can make complaining about deficiencies in services or breaches of rights very difficult. Care recipients may have few choices for alternative care. In addition, a fear of retribution (whether real or perceived) for complaining can often prevent a care recipient from taking action to resolve a problem.
Care recipients need information, advice, support and the time to decide about whether to proceed with any action against a service provider. The aged-care legislation expressly states that each resident of a residential care service has the right “to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights” (Charter of Residents’ Rights and Responsibilities, schedule 1, User Rights Principles 1997 (“User Rights Principles”)). Litigation is not the preferred means of resolution for many of the legal problems arising in aged care. The issues of cost, time, and continuing relationships make alternative forms of dispute resolution more appropriate, including advocacy and/or the Australian Government Department of Health’s Aged Care Complaints Scheme.
Advocacy services are funded in each state and territory under the Aged Care Act to provide free, independent and confidential information, advice and advocacy to people who are, or may become, care recipients, and to their representatives. Advocacy services can:
• assist care recipients and/or their representatives to resolve problems or complaints in relation to their aged-care services;
• inform and educate care recipients, their representatives, providers and the general community about the rights of care recipients and potential recipients of aged-care services;
• assist care recipients and their representatives to exercise those rights; and
• consult on policies to enhance consumer rights.
The Victorian advocacy service is the Elder Rights Advocacy (see “Contacts”).
A provider must allow an advocate from the advocacy service to have access to a residential care service during normal business hours, or at any time if a resident or their representative has asked an advocate for assistance.