Providers are always balancing risks while delivering services. In aged care, it isn’t possible to remove all risks and hazards, including when people want to take personal risks. Older people have the right to choose how they live, even if there is some personal risk to them. However, providers still have obligations to do their part to reduce risks for older people. One of these is their statutory duty.
Statutory duty for providers
The statutory duty for providers means they must do as much as is ‘reasonably practicable’ not to cause negative effects to the health and safety of people accessing aged care. This is non-delegable, meaning that providers are legally responsible and can’t give this responsibility away to someone else.
Statutory duty for responsible persons
Responsible persons have a statutory duty to use due diligence to make sure providers are carrying out their duty. Due diligence includes the person taking reasonable steps to make sure they understand:
- the requirements that apply to providers
- the kinds of service their provider delivers
- the potential negative impacts that can occur when delivering those services.
The exact action they can take to carry out their duty depends on the situation. However, it could include having training on the requirements under the Act or making sure the provider has processes to meet their statutory duty.
There are serious financial penalties for providers and responsible persons who haven’t carried out their statutory duty.
Compensation pathway
The Act sets up a pathway for compensation if a current or former provider hasn’t carried out their statutory duty in certain circumstances. If the provider has been found responsible for causing serious injury or illness to an older person, a court may make an order for compensation. This pathway doesn’t replace other personal injury compensation pathways.
Statutory duty in practice
A resident in an approved residential aged care home suffered a fall resulting in serious injury. An investigation showed that the resident had a known fall risk, but the residential care home had not done anything to reduce this risk. For example, walkways were not kept clear, and the provider hadn’t installed handrails or other changes to the resident’s room to prevent falls. Under the Act, the provider breached its statutory duty to take all reasonably practicable steps to make sure it doesn’t cause adverse effects to the health and safety of the resident. The resident pursued compensation through the Act’s new pathway, which allows courts to award damages for serious injury caused by a provider breaching its statutory duty.
Disclaimer
This publication is not legal advice and must not be used or relied upon as a substitute for legal advice. Users must seek their own independent legal advice in relation to their particular circumstances.