Under the Aged Care framework (and more broadly at law), providers shoulder many responsibilities, including a duty of care to consumers.
What Are We Talking About?
Duty of care in an aged care setting involves an obligation to take reasonable steps to protect residents from harm including by providing quality care. Under the upcoming Aged Care Act 2024 (Cth), aged care providers and their responsible persons will also have statutory duties sitting alongside this duty.
Aged care providers must uphold their duty of care while also respecting the right of consumers to make their own decisions about their care and services, as well as their right to take risks. For instance, a consumer might choose to eat non-modified meals despite clinical recommendations to the contrary.
Providers often grapple with balancing this duty of care against a consumer’s right to make decisions involving significant and obvious risks (such as the example above). However, less attention tends to be paid to consumer decisions that carry no immediate or obvious risk, but which may, over time, lead to significant adverse consequences.
Examples of these less obvious risks include refusing:
• prescribed medication, such as a daily aspirin;
• routine medical care, such as a wound dressing;
• a scheduled blood glucose check or insulin injection; or
• to attend a clinical appointment.
In isolation, these decisions might seem inconsequential or an acceptable exercise of a consumer’s choice and control. Even where cognitive impairment is a factor for a consumer, in many cases, they still have capacity to make these kinds of choices.
The Problem
The challenge emerges when such refusals occur repeatedly without any obvious adverse consequences. Often, providers fail to spot a pattern, normalising the refusals and overlooking the cumulative risks that may arise. These scenarios have frequently been a subject of concern in compliance investigations undertaken by the Aged Care Quality and Safety Commission.
For example, a resident intermittently refuses: FIX FORMATTING
• wound care - which eventually results in infection and hospitalisation;
• insulin - which eventually results in ketoacidosis and emergency intervention; or
• laxatives - which eventually results in faecal impaction, hospitalisation and death.
The initial refusal might appear low-risk and unremarkable. However, repeated refusals (which may give rise to significant harm) tend to be overlooked due to a ‘normalisation’ of the refusal and associated risk. This may constitute not only a failure to uphold the provider’s duty of care, but also a compliance breach under the Aged Care Quality Standards, exposing providers to possible regulatory action.
Risk Management
How a provider identifies and addresses escalating risks (including patterns of refusal) is critical. This requires a nuanced approach that takes into account staff capabilities, the care environment, and the services provided.
Once risks are identified, appropriate steps must follow. For instance, providers should:
• implement risk assessment and mitigation strategies;
• hold open discussions with the resident (and if applicable, their decision-makers or supporters) about dignity of risk; and
• thoroughly document all decisions and risk management plans.
Providers should pay special attention to long-term residents, who tend to be the most susceptible to the normalisation of repeated ‘low-level’ risk-taking.
Providers should also ensure that their clinical governance frameworks encompass the above to enable them and their responsible persons to uphold their respective statutory duties.
For advice on managing ‘low-level’ decisions or improving your systems to identify and address risks, or for assistance with responding to enquiries from the Commission, contact Amber Crosthwaite at 9288 6931 or amber.crosthwaite@lavan.com.au.
