Criminal liability call for aged care

National Seniors warn that regulation in the industry has been ‘captured by providers and their owners’.

National Seniors chief executive John McCallum.

Managers and management of aged-care providers should be made criminally liable for serious incidents of physical abuse of resident­s at their facilities, the royal commission has heard.

In a new submission to the aged-care commission, advocacy group National Seniors warned that regulation in the industry had been “captured by providers and their owners” and said criminal sanctions were required to effec­t real change in behaviour of staff in their handling of older Australians in their care.

“Our evidence indicates that people are frustrated with the continuing reports of abuse and ­neglect occurring in the care secto­r and lack of serious penalties. It appears that the regulatory game has been captured by provider­s and their owners,” the submissi­on said.

National Seniors chief executive John McCallum told The Australian that strong deterrent action was required in the wake of evidence at the commission, which had included “cases of outright murder, by neglect or by actio­n, as well as assault and batter­y, serious cases of physical abuse and chemical abuse”.

Professor McCallum noted that the ACT and Queensland have introduced industrial manslaugh­ter as a crime to pro­tec­t workers, and the Northern Territory, Western Australia and Victoria were expected to follow.

“It would be ironic in the extreme­, and disgraceful, if ­workers in aged-care facilities had more protection from egregious, dangerous acts, than the residents. There needs to be at least as strong regulation protecting residents as workers in aged care,” he said.

The aged-care legislation currently provides sanctions against providers not offering approp­riate and safe care to residents, but doesn’t include specific criminal penalties. The National Seniors submission urges reforms similar to those that have taken place in the building industry.

“Criminal sanctions for ­managers when a serious incident occurs under their control has led to significant investment in training, for example the building indus­try, where there is a focus on individual training and, as well, on work culture so that workers moderate the behaviour of one another,” it said. “Safety of residents deserves similar legislative ‘teeth’ and ­urgent cultural change in care ­providers.”

Professor McCallum said the reaction to the findings of the banking royal commission in ­February and the scandal surround­ing Westpac’s alleged breaches of the anti-money-laundering laws in November shows where the buck stops in other sector­s, and serious incidents of physical abuse in aged care should be treated no differently.

“It certainly is a managerial ­responsibility,” he said. “The role of a board is an oversight role, but they are responsible as well. It’s just in what context. In terms of board culpability, I haven’t investigated the legality of that. (But) in the university sector, where I used to work, you could be criminally responsible at the top for matters you should have been aware of and fixing. I was a deputy vice-chancellor and I could have gone to jail for such matters.”

Under current legislation, approve­d providers of residential aged-care services must report suspicions or allegations of ­assaults to local police and the ­Department of Health within 24 hours of becoming aware of or suspecting a reportable assault. Providers are responsible for ensuring they have systems in place to help maintain a safe and secure environment for care recipients.

In Sydney this week a woman was charged with assault occasioning actual bodily harm after an eastern beaches nursing home resident was allegedly tied to a chair. A 73-year-old woman report­ed to police that she had been tied by a nursing assistant to a chair with a plastic bag while being showered on Monday, sustaining severe bruising and pain.

An apprehended violence order has also been taken out on the injured woman’s behalf, and the assistant has been stood down by her employer.