COVID-19 shows the cracks in our aged care system
20th Aug 2020
What we are seeing unfold in Victoria’s residential aged care facilities is a nightmare that could easily happen in other parts of Australia.
The Royal Commission into Aged Care Quality and Safety (Royal Commission) is looking into how aged care facilities have responded to COVID-19. The evidence began with senior counsel assisting Peter Rozen QC claiming that federal authorities had failed to make a specific plan for COVID-19 in residential aged care facilities.
Almost 70% of all COVID-19 deaths in Australia have been related to aged care. At the time of writing, 228 aged care residents have died from the virus and over 1,000 have tested positive.
The revelations from the Royal Commission arrive after it was announced that the Victorian coroner will investigate the COVID-19 deaths at St Basil’s Homes for the Aged. The NSW coroner is reported to be doing the same in respect to the Newmarch House deaths.
Why are we seeing so many COVID-19 deaths in aged care? It’s not just that older Australians are more vulnerable to the infectious disease.
The reasons for the crisis are systemic. We have a chronically underfunded and poorly regulated aged care sector staffed by unskilled (or inadequately trained) workers who are ill-equipped to deal with high-grade medical issues – and certainly not infection control. Aged care facilities cannot be expected to act as proxy hospitals.
There are good aged care facilities. Last week the media reported on a NSW aged care facility successfully averting a COVID-19 crisis through appropriate systems and staffing, and proper planning. Sadly this is an atypical situation.
We must learn quickly from the tragic situations we have seen over the past few months to prevent more unnecessary deaths and, for the sake of the families involved, hold those responsible to account.
It was shocking that Secretary of the Department of Health, Dr Brendan Murphy, did not think it appropriate to name those facilities currently battling COVID-19 due to the risk of reputational damage. The Minister for Aged Care and Senior Australians backed Dr Murphy’s comments. The Royal Commission also announced it will not be looking to apportion blame over the tragic deaths in its inquiry.
We would not accept this lack of transparency in any other setting. We must look at these deaths for what they are – the result of wilful and reckless neglect, and clinical mistreatment of vulnerable elderly patients.
Coronial investigations are welcome, as the appointed coroner will look at what happened and whether there has been compliance with appropriate standards of practice. The coroner has the power to make recommendations on how practices can be improved but government offices are stacked full of coronial recommendations, sitting around gathering dust. The coroner also has the power to refer conduct to the Director of Public Prosecutions for the consideration of criminal charges – manslaughter by criminal negligence would be the appropriate charge. However, experience shows that criminal sanctions are very unlikely. Here in Australia, as in the UK, we have had very few prosecutions of health providers for medically negligent manslaughter, and only one successful prosecution more than 200 years ago.
We know that regulation of the residential aged care system has been extremely poor. The Aged Care Quality and Safety Commission (and its predecessor) has been ineffective due to a lack of independence and transparency. We have an Aged Care Act 1997 (Cth) that does not mention the word ‘regulation’ and was written by aged care providers for aged care providers.
Actions in negligence brought by family members of aged care residents whose deaths were avoidable will help hold to account those who have not complied with the relevant standard of care. This type of legal action has been shown to be an effective way to achieve change in systems in the aged care sector and the healthcare sector.
The Federal Government must take responsibility for this crisis. Before the Royal Commission, we’d had 20 inquiries in as many years into aged care. Yet successive governments have not acted to reform our aged care system.
COVID-19 is, in many ways, just the next thing to expose the systemic problems in an aged care system that demands a major overhaul. Older Australians deserve better.
This is an edited version of an article originally published here.
Catherine Henry is Principal at Catherine Henry Lawyers and a health and aged care lawyer and advocate. She is also the national spokesperson on aged care for the Australian Lawyers Alliance.
 Department of Health, COVID-19 cases in aged care services – residential care.