Duty of Care in Aged Care (NT)

In the Northern Territory, the aged care sector provides support to older people who need help with everyday life and other care needs. Providers and carers in the aged care sector have a common law duty of care to take reasonable steps to protect these vulnerable residents from injury or harm. In the Northern Territory, the duty of care in aged care is the industry standard of supervision, with allowance for the elderly resident’s dignity of risk. When someone is negligent in this duty, they can be reported and face criminal prosecution and civil liability. This article explains the duty of care in the aged care sector in the Northern Territory.

Federal legislation

The Aged Care Act 1997 is the federal legislation that regulates much of the aged care system in Australia. Currently, there is nothing in this Act that makes a care provider responsible for the resident’s safety or quality of care. The recent Royal Commission into Aged Care Quality and Safety Report 2021 recommended that this legislation should establish a statutory duty on providers to ensure reasonable quality and safety in aged care services. The Royal Commission emphasised that there should be a clear message that a provider’s primary duty is to ensure the well-being, health and safety of its residents. Failing to comply with this duty exposes residents to harm and exposes the provider and key personnel to civil penalties and compensation orders. In the absence of a statutory duty of care, however, care providers and workers are still bound by a common law duty of care.

Charter of rights

In the Northern Territory, aged care facilities that receive government subsidies must abide by the Charter of Aged Care Rights. This Charter establishes 14 rights for elderly residents, including:

1. High-quality care and services.
2. Dignity and courteous treatment.
3. Valuation and support for their culture, identity, and diversity.
4. Freedom from abuse and neglect.
5. Access to information about their own care in a way they can understand.
6. Access to information about themselves, their care and their rights.
7. Autonomy over their own social life, finances, and decisions involving personal risk.
8. Autonomy over personal aspects of their possessions, finances and daily life.
9. Independence.
10. The opportunity to be heard and understood.
11. A support person of their choosing who can speak on their behalf.
12. Personal privacy and protection of their personal information.
13. An opportunity to air grievances.
14. The ability to exercise these rights without repercussions.

For instance, one of the rights under the Charter is the right to validation of cultural identity. In the Northern Territory, over 40% of the aged care population is Aboriginal (compared to the national average of 3%). Especially given this representation, all aged care providers in the Northern Territory should take reasonable steps to support indigenous residents to embody their cultural identity.

Some of the rights included in the Charter relate to a resident’s dignity of risk. Providers and workers must allow a resident to take actions that enrich their life, even if that activity might carry an element of risk.

Duty of care in aged care in the Northern Territory

Aged care providers and workers have a duty of care to the vulnerable residents in their care. Just as medical professionals have a duty of care to their patients, carers have a high responsibility given the inherent vulnerability of the people they look after. At a minimum, an aged care provider must employ capable and compassionate staff, provide clean living quarters, and offer safe and adequate clinical treatment.

Beyond this, a duty of care is administered according to the needs of each individual resident. For instance, a resident who is still mobile and independent needs much less supervision than a frail resident with dementia. Workers in the aged care sector must thus adapt their approach to best suit the capacity and needs of the individual resident. While this can seem like an ambiguous definition, the standard of care is that which another worker would reasonably provide in the same circumstances.

Some examples of everyday duty of care services that might be provided in the aged care sector include:

• Giving assistance to help a resident with mobility problems;
• Helping a resident to shower or use the facilities;
• Keeping a resident hydrated, warm in cold weather and cold in hot weather;
• Feeding a resident if they have difficulty feeding themselves; and
• Ensuring that a resident takes their medication on schedule.

In addition, a primary duty of a carer must stay vigilant and report any issues that could pose a danger to the resident.

Breach of duty of care

Some nursing homes in the Northern Territory fail to provide the level of care required to properly look after elderly residents. Health and personal care are the most often cited complaint, with residents left unattended, their physical and emotional needs unmet, and a failure to provide the necessity of life such as water, food and medication. The most serious type of breach of duty of care is the abuse of residents, or the failure to report abuse. A worker has a compulsory reporting obligation to report elder physical or sexual abuse to the police within 24 hours and the Aged Care Quality & Safety Commission.

When an aged care provider or worker breaches their duty of care, a resident may suffer harm as a result. In that case, the breach of care should be reported to My Aged Care, and certain parties may face criminal charges. When there is negligence, the injured resident can make a civil liability claim under the Personal Injuries (Liabilities and Damages) Act 2003.

Get in touch with Go To Court Lawyers on 1300 636 846 if you have questions about the duty of care in aged care in the Northern Territory.

Our civil law team can provide advice and representation on any legal matter.