1. LASA Home Care Seminar What’s happening behind the closed door? Sabine Phillips, Principal 17 November 2014 Doc ID: 3519987

2. Legal issues in home care Consumer Directed Care Duty of Care Meeting expectations Difficult situations Who is the client? Objectives 2

3. Accepting a client Agreements Care planning Scope of package Goal setting Security of tenure Home Care Package Program Guidelines 3

4. 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 4

5. 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 5

6. 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 6

7. EXPECTATIONS Challenges 7

8. “ Anger always comes from frustrated expectations ” Elliot Larson 8

9. 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 9

10. 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 10

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12. 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 12

13. 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 13

14. 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 14

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16. 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 16

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18. A reasonable person takes reasonable precautions to avoid a reasonably foreseeable risk Managing duty of care issues – the Golden Rule 18

19. Documentation 19 Document

20. Good Records = Good Defence Poor Records = Poor Defence No Records = No Defence Documentation 20

21. SCENARIO

22. 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 22

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24. 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 24

25. 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 25

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27. 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 27

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29. 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 29

30. Leroy and Fluffy 30

31. You return from four weeks leave and visit Molly Molly Jones 31

32. 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 32

33. 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 33

34. 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 34

35. Manage expectations Clear boundaries Clear reporting Duty of care Document Summary 35

36. 36 QUESTIONS

37. 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 37