Home' Community Care Review : CCR Aug-Spt 2015 Contents project was undertaken by Sue Field and Lara Matkovic, academics
with experience in community care, elder law and research. The
overall goal of the project was to explore how it is possible to
balance the provider's duty of care with choice and dignity of risk for
the consumer. CDC aims for flexibility in consumer directed service
delivery that can occur within legal parameters.
The boundaries for the study were to conduct:
1. A literature review that covered Australian and international
literature and would include:
• the role, responsibilities and challenges facing CDC providers
• the issues facing the consumer and/or their representative
• supported decision-making and the determination of legal
decision-making [in]capacity and the subsequent impact on the
care recipient, their representative, families, unpaid carers and
2. A qualitative study through telephone interviews with 51
people in the roles of approved providers, legal experts, peak bodies
(for consumers and providers), regulators and unions involved in
aged care. This consisted of 30-45 minute interviews which aimed
to determine the central legal issues, concerns and questions
associated with the transition to CDC.
THE LITERATURE REVIEW
Much of the literature reviewed was focused on the care and financial
models associated with the introduction of CDC, primarily in the UK
and the US. Literature in the disability sector was also used, however
minimal literature was found specifically on legal issues.
The review highlighted there was a clear tension for providers in
meeting duty of care and enabling consumers to have discretion.
The literature noted that CDC puts the care recipient's preferences
at the forefront. Providers needed to support, as much as possible,
the autonomy of the consumer while at the same time protecting
them from foreseeable risks. Each situation needed to be handled
on a case-by-case basis. Russell Kennedy Lawyers principal Sabine
Phillips suggested that: "the availability of precautions should be
considered. If the risk of harm can be reduced or removed by taking
simple precautions, then it will not be reasonable to continue
without taking those precautions."
The review highlighted that while providers expressed concern
about what they perceived to be their duty of care to the consumer,
it was important to note that when discussing a duty of care it must
be taken in the context of the laws of negligence. Generally there
are four elements to be considered in the law of negligence:
• a duty of care was owed
• there was a breach of that duty
• there was damage suffered as a result of that breach
• the damage was reasonably foreseeable.
The legal framework underpinning the Home Care Packages
Programme (which includes CDC) is as follows:
• the Aged Care Act 1997
• principles made under the Act
• determinations made under the Act
• there are other legal requirements that cover the provision of
home care, such as consumer and anti-discrimination laws.
The review highlighted that although the model adopted by
the Australian Government permits more choice, flexibility and
transparency for consumers than the earlier community care packages,
the accountability for the funding remains with the provider. This
limitation on who the consumer can choose to provide the actual
service highlights the major differences between models adopted
internationally, particularly in the US, and the model implemented here.
In 2013 Griffith University researchers Michelle Crozier and Heidi
Muenchberger reviewed the potential misuse of funds through self-
management in the disability sector and concluded that misuse of
funds or consumers being at greater risk of abuse was not clearly
supported by the evidence. However, this view does not consider the
under-reporting of financial abuse of older people in the community.
The literature review also highlighted that the importance
of accurate records cannot be overemphasized. Sabine Phillips
advocated the simple rule: "Good records = Good defence, Poor
records = Poor defence, No Records = No Defence." The review also
emphasised that the home care package guidelines prior to 1 July 2015
appear to address the issue of when it might be reasonable to decline
a request from a consumer, providing useful parameters for providers.
The literature review concluded "that it would appear that many
of the legal issues raised are addressed through the home care
package guidelines and that much of the legal framework already
in situ in Australia can address the issues raised." The review's key
concern, and the greatest legal immediate risk identified is the
current level of understanding of CDC by providers and consumers
and the potential misunderstandings that would come from this.
THE QUALITATIVE STUDY
The second and critical part of the project focused on listening to the
concerns and questions of providers, legal experts, peak bodies (for
consumers and providers), regulators and unions involved in aged care.
In brief, the concerns and questions raised in the interviews related
to both the introduction of means-tested care fees in home care
packages and the transition to a CDC approach. The issues included:
• the balance between duty of care and dignity of risk within a
context of greater consumer choice
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