LASA Home Care Seminar

What’s happening behind the closed door?

Sabine Phillips, Principal

17 November 2014

Doc ID: 3519987

• Legal issues in home care

• Consumer Directed Care

• Duty of Care

• Meeting expectations

• Difficult situations

• Who is the client?

Objectives

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• Accepting a client

• Agreements

• Care planning

• Scope of package

• Goal setting

• Security of tenure

Home Care Package Program Guidelines

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• Service delivery, monitoring and reassessment

• Funding and costs

• Informal carers

• Declining a request

• Specified care and services

• Taking on preferred providers

Home Care Package Program Guidelines

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• IS

• Enabling clients to have greater control over their care and service choices and including who will deliver that service

• IS NOT

• It is not a free for all

• It is not a fight

• It is not new

Consumer Directed Care

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• What do you offer?

• Are you able to meet expectations?

• Who is the consumer and who is directing the care?

• Client

• Carer

• Family

• Provider

Consumer Directed Care

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EXPECTATIONS

Challenges

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“Anger always comes from frustrated expectations”

Elliot Larson8

• Duty of care

• The agency must owe a duty of care to a person

• Breach in the duty of care

• The agency must have done something unreasonable

• Injury

• Some harm must be caused to the person as a result of the agency’s action or inaction

The Three Elements of Negligence

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• Causation: was the injury caused by the negligent act?

• Reasonableness – how would a reasonable person act?

• Reasonable foreseeability – possible, real risk, not unlikely to happen

Negligence

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• The availability of precautions should be considered

• If the risk of harm can be reduced or removed by taking relatively simple precautions then it will not be reasonable to continue without taking those precautions

• If no feasible precautions then have to assess whether it is reasonable to continue

Reasonable Precaution

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• Where many effective precautions, the facility should choose the least restrictive precaution that would avoid or reduce the risk

• The cost of the precaution has to be balanced against the likelihood of risk and the utility of the precaution

Precautions

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• If there is little benefit for a consumer from an activity but it involved real risks it would not be reasonable to continue

• If benefit was great and risks relatively small then it may be reasonable to proceed

• Professional judgment very important

Purpose of the activity

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• What steps can be taken?

• The availability of precautions must be considered

• If the risks of harm from an activity can be reduced or eliminated by taking relatively simple precautions, then it will not be reasonable to proceed without taking those precautions

Steps to reduce risk

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• A reasonable person takes reasonable precautions to avoid a reasonably foreseeable risk

Managing duty of care issues – the Golden Rule

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Documentation

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• Document

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• Good Records = Good Defence

• Poor Records = Poor Defence

• No Records = No Defence

Documentation

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SCENARIO

Mrs Molly Jones is 84 and lives alone in a suburb where she has lived for over 20 years since her husband died and she sold the family home.

She downsized so has significant assets but she wants to stay in her home.

SCENARIO

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• Recently Molly suffered a stroke and was having difficulty walking.

• She was also having problems eating but she wants to stay in her home.

• The hospital arranged for your organisation to provide her with a home care package at a level 3

Molly Jones

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• Molly had a daughter Gina Hardface who lived fairly close but could not assist her mother.

• Gina arranged for Molly’s friend from next door, Agnes to stay with Molly overnight or to be available if Molly called.

Molly Jones

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• The case manager had visited the home and assessed Molly.

• Her care plan was ensuring that Molly ate only soft foods, that she was assisted with her shower and the gardening was done.

• Each month Molly would also have a staff member staying overnight to provide respite for Agnes.

Molly Jones

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• After a few weeks, a new resident in the house.

• Molly has a son, Leroy Brown and he has a dog Fluffy.

• He has lived in Sydney for many years and has decided to return home to his mother and to avoid issues he had in Sydney.

Molly Jones

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Leroy and Fluffy

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You return from four weeks leave and visit Molly

Molly Jones

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• Leroy

• Likes to clean his guns in the lounge room

• Fluffy

• Scares most of the staff and Leroy doesn’t like him to be outside.

Molly Jones

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• Food

• Leroy encourages Molly to eat foods that she has difficulty with.

• Gardener

• Staff were not aware that Leroy had sent the gardener away and was keeping the gardening money.

Molly Jones

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• Fees

• Molly now owes over $2,000 in fees because Leroy has taken money from his mother’s account

• Gina

• Blames you for Molly eating foods that have caused her to aspirate.

• She also refuses to attend because of Leroy.

Molly Jones

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• Manage expectations

• Clear boundaries

• Clear reporting

• Duty of care

• Document

Summary

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QUESTIONS

The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly.

Disclaimer

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