What laws protect freedom to move and receive visitors in Aged Care?

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Australia has a number of laws that protect human rights. You can access them. If you are a resident of an Aged Care Facility, or a friend or family member of a resident, there may be things you can do to enforce your legal (human) rights.

This post sets out some key points to consider if you are being detained, put into solitary confinement in your room, or if visitors are being banned or restricted beyond any local State health restrictions.

To enforce any of these rights you will likely need to speak to a lawyer first, to get legal advice. This post is no substitute for legal advice in your situation.

But reading this should help you start a conversation with your Aged Care Facility or Provider about how you think they are breaching your human rights. Maybe they will stop their unlawful and unethical – even cruel – behaviour, when they start to realise the laws they may be breaking.

If not, then potential legal action is something you should find out about as soon as possible.

Tort law preventing false imprisonment

The law of tort is a very old concept. It is found in “common law”, which means it is a fundamental part of our legal system. The law of tort allows you to sue someone who unlawfully detains you, or falsely imprisons you.

If you sue someone for false imprisonment and win, the Court will order that you be set free, and you can receive a sum of money from the person who imprisoned you. It could be tens of thousands of dollars for a very very short time of imprisonment.

Basically, if someone detains you, they need to have a legal power to detain you. A prison detaining convicted criminals has such a power. A police officer who lawfully arrests you has such a power.

But a Facility which provides you with shelter does not, generally speaking, have such a power. And if they do, they have to point to it in answer to a claim for false imprisonment.

If they point to their policy that will be a pretty useless answer. How can their policy create a power to imprison people?

Detention comes in many forms

Now detention comes in many forms. It doesn’t have to be a physical lock and key. It can be an assertion of power over the person being detained.

A kind of bullying can be detention

Like what happened to my Mum. “You must stay in your room for 2 weeks.” they said, back in 2020. And who is “they”? A church based non-profit provider of Aged “Care”. They made up this rule. It wasn’t a government rule. And if my Mum tried to sneak out of her room to get a little sunlight in the courtyard, they would yell at her “get back in your room”. She was 92, vulnerable, and dependant on them for just about everything.

They didn’t use a lock or key.

Now that’s a form of detention.

And they had no authority to impose it.

Other forms of restriction?

Restricting movement is a key element of detention. But if an Aged Care Facility locks the doors to visitors, that could be another way of treating you like a prisoner. The Facility is asserting control over its building in a way which prohibits you from freely meeting with people you need to see. Those people need to see you so that they can care for you (and you can care for them).

It’s no answer to say that you, the resident, can just leave if you like: to live elsewhere, or to meet visitors outside the facility and come back. You might not be able to leave. You might be mobility impaired. Likely you have no other home or possible home to go to.

Banning visitors without authority could give rise to all sorts of legal actions. But the basic principle underlying these possible actions is that the Aged Care Facility has no power or authority by law or by agreement to decide by itself to shut its doors and prevent residents from receiving visitors.

And now, even the Aged Care Quality and Safety Commission agrees that a Facility needs to give an answer for locking their doors. Here’s a post on their July 2021 ‘fact sheet’ where they encourage you to ask your Facility “Are your visitor access restrictions based on a public health order…?” and “What is your authority for restricting my freedom of movement?”

Visitor restrictions imposed by the Government

During Covid, there have been visitor restrictions imposed by State and Territory Health Departments. That is, Government Departments. Those restrictions are only lawful if they are made under the authority of legislation. Legislation is passed by the Government, which has been elected by the people. That’s what we call democratic government. The only way these restrictions have been lawful are because they are made under various Acts of Parliament.

For example, in Victoria, there is a Public Health and Wellbeing Act. A section of that Act says that the Minister can declare a “State of Emergency” on the advice of the Chief Health Officer and after consultation with others. After that happens, authorised officers under that Act can exercise powers to restrict movement of people, or give other directions.

Do you see how important this statutory regime is? The Parliament of Victoria decided when they passed this Public Health and Wellbeing Act that you needed a very clear and transparent line of authority before you could order people to be detained as a result of a public health emergency. And that line of authority requires decision makers to be authorised by the government.

Let’s assume that these State Government restrictions have been lawful. In most cases around Australia, these restrictions on visitors in Aged Care facilities have still allowed visitors who are caring for the residents.

But the Facilities have ignored these government restrictions, and made up their own rules.

When the Facility makes up their own rules, they are pretending to be equal to the government. They are ignoring the clear and transparent lines of authority set up by the State legislation. They are not authorised officers. They have no statutory authority. They are not elected by the people.

They are private operators (whether for profit or not).

By and large, they have no legal authority to prevent the freedoms that our democracy holds dear.

So don’t accept their bullying or misrepresentations of the truth. Don’t let them split families apart just because they want to. Take action and fight to be able to see each other.

What can you do in terms of Tort law if the Aged Care Facility is detaining you or banning you from seeing people?

  1. If your Aged Care Facility is imprisoning or detaining you beyond what the State or Territory restrictions provide, you could write to them and demand that they set you free. Or if you are a family member or friend of someone who is being detained, or their advocate, you could write to the Facility too. Write to the CEO of the Aged Care Provider as well as the local Facility. Ask for urgent action.

2. Then you could go to a lawyer and get them to write a letter to the Facility, and if your lawyer advises that you have a case, you can go to Court to seek Court orders. If the Facility doesn’t set you free, you can go to Court and get the Judge to order that you be set free, and also order that the Facility pay you money for unlawfully detaining you, as well as paying for your legal fees.

3. You could also complain to the Aged Care Quality and Safety Commission and request that they urgently demand the Facility to set you free. I have had little faith that they will give you an urgent result or any proper result at all. They tend to work behind closed doors, and they seem to take a long time to negotiate compromises rather than take real action. When I complained to them about my parents in mid 2020, they did not formally respond to my complaint for a year. However, they do have a new fact sheet on this issue, which may be a shift in their view (July 2021). Further, I still think it’s better that they get these complaints on the record, and maybe they will get better at taking action over time.

Negligence – another tort law which relates to detention and banning of visitors?

Another very important tort is the tort of negligence. If a Facility owes a duty of care to a resident of an Aged Care Facility (which they clearly do), and they breach that duty, and the resident is harmed as result, then the Facility or Provider may be sued in negligence.

We have heard story after story after story. And I have experienced this issue myself. By banning family members from seeing their relatives in Aged Care Facilities, the residents suffer immensely. Loneliness, anxiety and depression from the social isolation. Onset or worsening of dementia. Severe health outcomes from lack of nutrition, poor hygiene and inadequate medical treatment. Loss of mobility due to nobody helping them exercise. All of these things can often be prevented when family come to visit – because they see the problems, hear the complaint of the resident, and do something to make sure it doesn’t keep happening.

4. Get legal advice on negligence if you can. If you can’t, you can still assert that the Provider/Facility has a duty of care to your Mum, Dad, husband or wife. That banning your visits or detaining them breaches the duty of care. And that harm is resulting. Take steps 1. – 3. above.

Criminal law preventing false imprisonment

Similarly to the law of tort, there is a very old law which makes false imprisonment a crime. The elements of the crime are similar to the elements of the tort.

For the crime of false imprisonment, the person imprisoning unlawfully can be convicted and sentenced.

What can you do in terms of Criminal law if the Aged Care Facility is detaining you or banning you from seeing people?

You can complain to the police about the false imprisonment you allege. I am pretty sure that the police will ignore you, because they won’t understand the law in the aged care space. They will have never heard of such an action, and they will assume that the Aged Care Facility is doing the right thing, even if they are not.

However, it may be worth going to the police. Perhaps by writing in to them rather than turning up to a local station. (And ask for a written reply.)

As for turning up at the local station, I confess that I did that once, in desperation, but it didn’t make me feel good to have the local copper stare at me blankly. I was desperate because the CEO of the non-profit Provider told me that he knew the law better than I did (although he was no lawyer), and the complaints manager of the Aged Care Quality and Safety Commission had told me the same thing (although he was no lawyer either). The law can be there, but unless we can enforce it we can still feel powerless.

Here’s one reason why I think people should consider going to the police. The Aged Care Facilities, or at least their staff, have been known to call the police themselves to order carers off the premises, or to warn them not to come back.

This is totally outrageous, but it has happened. And the police were so confused by the constantly-changing Covid laws that they have actually done the wrong thing and terrorised the family with threats and warnings. In one case, a son was visiting his mum, with the full support of the Facility, as one of her carers. They were having a nice time, until the police turned up at the facility, having received a “tip off” from one of the staff. They ordered the son outside and told him he must not come back, as he was breaking the law.

He wasn’t breaking the law.

The police didn’t even know what the law was.

So be ready. Have the State government law printed out in your pocket. And consider complaining to the police if the Facility won’t let you in.

5. Consider going to the police and complaining about false imprisonment, to see if they will help you or even launch a prosecution.

While it is possible to launch a private prosecution, that might not be something that many people would want to try. But it is another option. Perhaps talk to a lawyer before doing this.

Breaches of Occupational Health and Safety Legislation

Australian States and Territories have occupational health and safety legislation which applies to employers. Employers have obligations to keep their employees safe. But they also have obligations to persons who are not employees.

When you visit a factory or an office as a ‘visitor’, and you slip on the floor, there might be a breach of the occupational health and safety act. Even though you are not a worker in the factory, your health and safety must be protected by the employer when you are in their factory.

For example, in Victoria, the Occupational Health and Safety Act 2004 provides:

23 Duties of employers to other persons
(1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: … 9000 penalty units for a body corporate.

(2) An offence against subsection (1) is an indictable offence.

As at August 2021, a penalty unit is $181.71. So 9000 penalty units is $1,635,390. That’s over one and a half million dollars.

When an Aged Care Facility arbitrarily detains all the residents, or bans them from seeing their caring family and friends, they may be breaching Occupational Health and Safety Laws. You do not need to prove that the detention is causing their dementia to worsen, or anxiety or depression to develop. You don’t have to prove that they have lost mobility or weight because you can’t visit them, or that the lack of accountability and family care is causing the resident’s physical condition to worsen. You only have to prove that the conduct of the Aged Care Facility is exposing the resident (and arguably their family too) to risk to their health and safety.

6. Report the Aged Care Facility to your State or Territory’s WorkSafe Authority if you think they are risking the health or safety of a resident in their ‘care’.

Breaches of the Aged Care Act

An approved provider of residential aged care is a company which has been formally approved by the Federal Government under the Aged Care Act 1997 to provide such residential care.

The approved provider has obligations under the Act (statutory obligations) to provide certain things, and to not do certain things, in relation to residents receiving “residential care”. The Act calls residents “care recipients”. This term is a bit awkward, but it refers to the fact that the provider is providing “care” and the resident is receiving “care”.

That’s the theory, anyway.

For example, the approved providers have to provide “security of tenure” (s 56-1(f)). Which means they can’t force you to leave just because they feel like it, or because they don’t like you.

They have to allow people acting for residents to have certain types of access to the service (s 56-1(k)).

They must “not act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles” ( s 56-1(m)).

So all of this means that the approved provider must do these things. They can’t get out of it. It doesn’t matter what any contract says, or what any policy that they create might say. They have to comply with the Aged Care Act.

Otherwise, ultimately, the Government could take away their “Approved Provider” status. In other words, their business.

There are also parts in the Act which set out what must be in the contracts with residents. The Act calls the contract a “resident agreement”.

There is another piece of legislation that works with the Aged Care Act. It is called the User Rights Principles 2014. These principles contain more detail about the obligations of Approved Providers. They state that the resident has rights set out in the “Charter of Aged Care Rights” (cl 9, Schedule 1).

The principles also say that an approved provider “must not act in a way which is inconsistent with the legal and consumer rights of a care recipient” (cl 9A).

Charter of Aged Care Rights in the Aged Care Act

The Charter of Aged Care Rights is so important, that I will set it out in full here:

I have the right to:

1.  safe and high quality care and services;

2.  be treated with dignity and respect;

3.  have my identity, culture and diversity valued and supported;

4.  live without abuse and neglect;

5.  be informed about my care and services in a way I understand;

6.  access all information about myself, including information about my rights, care and services;

7.  have control over and make choices about my care, and personal and social life, including where the choices involve personal risk;

8.  have control over, and make decisions about, the personal aspects of my daily life, financial affairs and possessions;

9.  my independence;

10.  be listened to and understood;

11.  have a person of my choice, including an aged care advocate, support me or speak on my behalf;

12.  complain free from reprisal, and to have my complaints dealt with fairly and promptly;

13.  personal privacy and to have my personal information protected;

14.  exercise my rights without it adversely affecting the way I am treated.

If the Approved Provider runs a Facility where the residents are unlawfully detained, arbitrarily put into solitary confinement, or had visitors banned or unduly restricted at the Facility’s discretion or whim; then they will be breaching the Aged Care Act, and the Charter of Aged Care Rights. They will be failing to fulfil the responsibilities they have to residents under the legislation, and under the resident’s agreement.

For example, confining a person to their room for 14 days just because they went to see a doctor breaches the Rights numbered 1, 2, 4, 7, 8, 9, for a start.

And banning visitors (not because the government mandates it, but because the Facility wants to do it), breaches the same Rights.

Further, Aged Care Facilities have been continually telling residents and families since Covid began (that is, for over 18 months) untruths or lies about why they are detaining the residents or banning visitors. I have seen numerous examples of communications from different Facilities where they misrepresent the law, and pretend that the detention and visitor banning is government mandated, when it isn’t.

This breaches the legal and consumer rights of the residents, contrary to cl 9A of the User Rights Principles. It also breaches at least clauses 5 and 6 of the Charter of Aged Care Rights.

So what can you do?

7. Complain to the Aged Care Facility and the Approved Provider if you think they are breaching your rights under the legislation.

8. Complain to the Aged Care Quality and Safety Commission about any breaches of the Act, the User Principles, and the Charter of Aged Care Rights. Ask them to investigate urgently and take immediate action against the Provider. There is no reason why they can’t immediately advise the Provider of the law. They don’t need to take 12 months to investigate in order to say this.

9. Go to a lawyer and seek legal advice about your rights and what you can do about any breaches of the legislation and how they might also constitute breaches of the resident agreement. After all, you may well decide that you are paying for a service that is not being provided, that is not in accordance with the Act, and that is actually a de facto jail rather than a place that provides you with proper care.

More to come…

There are other legal actions you can take. It will be interesting to see what legal actions residents and their families take over time. If the Aged Care Quality and Safety Commission is failing to regulate in this space, then residents and their families will have to do so. This post is not finished yet!

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