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By Rodney Lewis

In the evolving field of elder law, the emphasis on individual autonomy has led to an increasing  shift from substitute decision-making to supported decision-making (SDM). This approach allows individuals with cognitive impairments, such as dementia, to retain greater control over their lives with the assistance of trusted supporters. The move towards SDM is based in Australia’s commitment to the Convention on the Rights of Persons with Disabilities (CRPD), which underscores the right of individuals to legal capacity and autonomy.

The Evolution of Supported Decision-Making in Elder Law

Supported decision-making empowers individuals to make their own choices with guidance, rather than having decisions imposed by substitute decision-makers like guardians or attorneys. In this model, the person retains decision-making authority while receiving necessary support to understand options and consequences. This contrasts with substitute decision-making, where another party makes decisions on behalf of the individual.

Australia’s commitment to SDM is reflected in its ratification of the CRPD in 2009. Article 12 of the CRPD establishes that persons with disabilities have the right to recognition as persons before the law and to exercise legal capacity on an equal basis with others. This legal foundation has influenced Australian policy, including the National Disability Insurance Scheme (NDIS) and the Aged Care Act 1997, which incorporate elements of SDM into their frameworks.

Legal and Policy Developments in Supported Decision-Making in Elder Law

Several significant legal reforms and inquiries have developed the principles of SDM:

• NDIS and Aged Care Legislation: The NDIS, legislated in 2013 and fully rolled out by 2020, supports individuals with disabilities, including those with cognitive impairments, in exercising their legal capacity. Similarly, the Aged Care Act 1997 includes provisions that recognise the rights of older Australians to make decisions about their care.
• Australian Law Reform Commission (ALRC): Reports from the ALRC and recommendations from the Aged Care Royal Commission have emphasised the importance of enabling older persons to exercise autonomy through supported decision-making models.
• State Legislation: Victoria, South Australia, and the ACT have enacted laws promoting SDM, reflecting a broader national trend towards enhancing the rights of individuals with cognitive impairments.

Safeguards to Prevent Abuse

SDM must be accompanied by robust safeguards to ensure that the individual’s rights and preferences are respected without exploitation. Article 12(4) of the CRPD requires that safeguards be free from conflicts of interest, proportional to the individual’s circumstances, and subject to regular review. Examples of safeguards include:

• Oversight Mechanisms: The NDIS Quality and Safeguards Commission requires providers to report restrictive practices, and the Aged Care Act mandates that providers inform consumers about complaint mechanisms.
• Judicial Oversight: Courts play a vital role in reviewing decisions and ensuring compliance with legal standards. For instance, financial managers can seek guidance from the NSW Trustee or the Supreme Court to ensure decisions align with the individual’s best interests.
• Alternative Dispute Resolution: Mediation and arbitration can offer binding resolutions where complaints mechanisms fail to deliver effective remedies.

Case Law Illustrating Supported Decision-Making in Elder Law

Recent case law illustrates the complexities of balancing autonomy and protection:

1. Dowdy v Clemson [2021] NSWSC 1273: Justice Lindsay highlighted that financial managers must respect the preferences of individuals under their care, even when making substitute decisions. The court emphasised the importance of managers exercising independent judgment while prioritising the welfare of the person they serve.
2. KSD Case [2022] TASCAT 67: In this case, the tribunal determined that a woman with cognitive impairments could not make a consistent decision about her accommodation, necessitating a substitute decision. The case illustrates the limits of SDM when individuals lack the capacity to engage in meaningful decision-making.
3. Rainger & Cadis [2023] FedCFamC2F 591: This family law matter involved parents with intellectual disabilities. The court recognised the role of a litigation guardian in balancing the mother’s wishes with the need to ensure the child’s welfare, demonstrating the nuanced application of supported and substitute decision-making in complex family law cases.

Challenges and Limitations of Current Systems

While SDM represents a progressive approach to decision-making, challenges remain:

• Lack of Enforceable Rights: Both the NDIS and Aged Care systems emphasise complaints mechanisms over enforceable rights. Consumers often lack access to binding remedies.
• Reliance on Complaints Systems: The Aged Care Act 1997 and the NDIS framework provide for complaints but do not offer direct avenues for individuals to enforce their rights, leaving gaps in access to justice.

To address these issues, consumers and their legal representatives could negotiate contractual terms with service providers that incorporate statutory rights, making them enforceable under contract law.

Conclusion

Supported decision-making is a cornerstone of modern elder law, reinforcing the right of individuals with cognitive impairments to exercise autonomy with appropriate support. Legal practitioners play a critical role in ensuring that SDM frameworks are implemented effectively and that robust safeguards protect vulnerable clients. By navigating the complexities of SDM, practitioners can uphold the dignity and rights of older Australians in an evolving legal landscape.

Elderlaw Legal Services notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Elderlaw Legal Services are here to help. Please get in touch with us on 02 9979 1009 today to make an enquiry.

By Rodney Lewis

Granny flats are an increasingly popular living arrangement, allowing older Australians to remain close to family while maintaining some independence. However, these arrangements come with legal and financial complexities that must be carefully navigated to avoid future disputes and financial loss.

Gifting and Deprivation Rules Under the Social Security Act

Centrelink has strict rules around gifting and asset deprivation to prevent individuals from restructuring their financial position to qualify for a pension. Under the Social Security Act, a person can dispose of assets up to $30,000 over five years, with a limit of $10,000 in any one financial year. Amounts exceeding these limits may be counted as assessable assets, impacting pension eligibility.

Allowable Exceptions:

• Transferring money or assets in exchange for a granny flat interest [subject to a ‘reasonableness’ test imposed by Centrelink]
• Transferring a farm to a close relative in recognition of past contributions
• Paying a family member for substantial work that goes beyond normal familial obligations

Granny Flat Interests and the Asset Test

A granny flat interest is exempt from the asset test if the person:

• Acquires a right to accommodation for life in a private residence, or
• Holds a life interest in the property.

The value of the granny flat interest is assessed based on the money or assets transferred in exchange for the right to reside. This could include:

• Transferring ownership of a home
• Paying for the construction of a separate dwelling on a family member’s property
• Purchasing a property in another person’s name while retaining a life interest

Early Termination of a Granny Flat Interest

If an income support recipient leaves a granny flat within five years of its creation, Centrelink may treat it as a disposal of assets unless the departure was due to unforeseen circumstances. Acceptable unforeseen circumstances include:

• A sudden illness requiring aged care admission
• Family breakdown
• Elder abuse
• Property damage making the residence uninhabitable

If the termination was foreseeable at the outset, Centrelink may classify the arrangement as an attempt to reduce assessable assets, which can affect pension entitlements.

When Granny Flat Arrangements Become Problematic

Example A: A mother sells her rural property and gives the proceeds to her son, who builds a separate unit for her on his land. A few months later, she has a falling-out with her daughter-in-law. Her son sides with his wife and asks his mother to leave. Left without a home or the funds to secure another, she struggles to enforce her right to remain.

Example B: A mother moves in with her son’s family based on a handwritten note stating she has a lifelong right to live in any home he owns. As tensions rise, she is restricted to part of the house and excluded from family life. She wants to assert her right to stay but faces difficulties proving the agreement’s validity.

Legal Options When Relationships Break Down – See Your Lawyer

If a granny flat arrangement becomes unworkable, options include:

• Attempting to maintain the arrangement until the parent moves into aged care
• Engaging in mediation or conciliation to reach a resolution
• Reviewing the agreement for exit clauses or dispute resolution provisions
• Seeking equitable remedies, such as claims for undue influence, constructive trust, or resulting trust

Aged Care Considerations

If an elderly person moves into aged care, several legal and financial issues arise:

• The existence of an Enduring Power of Attorney or Enduring Guardianship
• Family disputes over care arrangements and financial contributions
• The appointed attorney’s integrity in managing the elder’s finances
• Recovering funds to pay a refundable accommodation deposit (RAD)
• Legal challenges to retrieve money from the aged care provider if there is a dispute over contributions

Loan vs Gift Considerations

A common source of dispute is whether money provided to a family member was a gift or a loan. To avoid misunderstandings, best practices include:

• Formalising the arrangement with a written loan agreement, preferably under a deed
• Clearly defining repayment terms, such as repayment upon the elder’s entry into aged care
• Securing the loan via a mortgage or caveat on the property

Preventing Sibling Disputes After Death

Family conflicts often arise over asset distribution, particularly when there are concerns about financial abuse or changes to wills. Preventative measures include:

• Transparent agreements that involve all key family members
• Oversight by a professional, such as an accountant, to ensure financial accountability
• Considering potential family provision claims under the Succession Act 2006 (NSW)
• Including mandatory mediation and arbitration clauses in agreements

Final Thoughts

Granny flat arrangements can be beneficial but require careful legal planning to avoid disputes. Clear documentation, structured financial agreements, and proactive conflict resolution strategies can help protect all parties involved. If you are considering a granny flat arrangement, seek legal advice to ensure your rights and interests are safeguarded.

Elderlaw Legal Services notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Elderlaw Legal Services are here to help. Please get in touch with us on 02 9979 1009 today to make an enquiry.

By Rodney Lewis

The Aged Care Act 2024 introduces a modern regulatory framework aimed at focusing on “the safety, health and wellbeing of older individuals and places their needs at the centre of the aged care system, with funding and regulation of programs targeted for the benefit of older individuals, their families and carers aged care residents.”  It seeks to improve safety, accountability, and transparency while placing older individuals at the centre of the system. The Act, comprising 602 clauses, focuses on rights, regulatory oversight, and funding mechanisms.

Consumer Rights Under the Aged Care Act 2024

The 2024 Statement of Aged Care Rights outlines residents’ entitlements, including the right to dignity, privacy, and quality care. However, these rights are not legally enforceable under the Act. The Act maintains similar limitations found in the 1997 Act, leaving residents with few options if their rights are violated.

Despite this, consumers retain protections under the Australian Consumer Law. Providers must deliver services with due care and skill, ensure services are fit for purpose, and avoid misleading or unconscionable conduct. Legal avenues such as negligence claims, breach of contract, and consumer law complaints remain available.

In addition, aged care residents and their families should be aware of advocacy groups that can assist in navigating the system. The Older Persons Advocacy Network (OPAN) and the Seniors Rights Service provide support and advice to individuals experiencing difficulties with their aged care provider. These organisations work to ensure that consumers are informed about their rights and can take action when necessary.

Star Ratings and Regulatory Gaps in the Aged Care Act 2024

The Department of Health and Aged Care manages a star rating system for aged care homes. Ratings are assessed based on four sub-categories: Residents’ Experience, Compliance, Staffing, and Quality Measures. While this system helps consumers compare providers, it lacks enforceable penalties for poor performance. The Act states that the Secretary of the Department is not liable for damages arising from published ratings.

Consumers should use the star ratings system as a guide but should also conduct their own research before choosing an aged care facility. Speaking to current residents and their families, reviewing complaints data, and consulting with legal professionals can provide a more accurate picture of a provider’s quality of care.

Serious Incidents and Legal Immunities

The Act requires registered providers to maintain a record of incidents. The Serious Incident Response Scheme (SIRS) will no longer apply. The Act also provides registered providers with immunity from civil and criminal liability in certain circumstances. If a restrictive practice is used on a resident unable to consent, providers may not face legal consequences if consent was given by an authorised third party.

Elder abuse laws in various states offer some protection. In NSW, the Crimes Act 1900 and the Criminal Procedure Act 1986 provide penalties for unlawful restraint and neglect. Other legal remedies include claims for false imprisonment, negligence, and breaches of consumer law.

Families must remain vigilant in monitoring the care of their loved ones. If any signs of mistreatment arise, they may make a complaint or should seek legal assistance immediately. Documenting concerns, filing complaints with relevant authorities, and pursuing legal action can help prevent further abuse and hold providers accountable.

The New Compensation Claims Scheme

The Act introduces a compensation framework for residents who suffer serious injury or illness due to provider misconduct. The Federal Court or the Federal Circuit and Family Court may order compensation if a provider breaches its duties. However, claims must be lodged within six years, and legal hurdles may limit access to justice.

The compensation claims scheme is a step forward in providing financial redress to victims of negligence or misconduct. However, the burden remains on the resident or their family to prove that the provider’s actions directly resulted in harm. Legal professionals can assist in gathering evidence, filing claims, and representing clients in court proceedings.

How Legal Support Can Help

Navigating aged care laws and contracts requires expert legal guidance. Lawyers can assist residents in understanding contracts, supporting their rights, and seeking compensation for mistreatment. Alternative legal avenues, including advocacy services and consumer protection laws, may also provide recourse.

Families should not hesitate to seek legal advice when facing difficulties with an aged care provider.

Many legal professionals specialise in elder law and can provide tailored advice on issues such as unfair contract terms, elder abuse, and compensation claims. Seeking early legal intervention can prevent disputes from escalating and ensure that residents receive the care they deserve.

Elder Abuse and Legal Responses

Elder abuse remains a significant concern within the aged care system. An offender may be a member of staff or another aged care resident. Common forms of abuse include financial exploitation, neglect, and sub standard care.

Legal remedies for elder abuse include pursuing claims under coronial and criminal law, consumer protection laws, and civil litigation. In some cases, seeking an intervention order or applying to an administrative tribunal for the appointment or replacement of a guardian may be necessary.

Advocacy organisations continue to push for stronger protections against elder abuse. The legal profession also plays a crucial role in ensuring that victims can access justice. Increasing public awareness and providing clear legal pathways for redress will be essential in addressing systemic issues within the aged care sector.

Conclusion

The Aged Care Act 2024 signals reforms in governance and consumer protections. However, legal gaps remain, particularly concerning contract transparency [anticipated to be included in Aged Care Rules before the Act commences in July 2025] and enforceability. Understanding your rights and seeking legal advice is essential when entering into aged care agreements.

Families must take a proactive approach by reviewing contracts, researching providers, and seeking independent legal advice before making decisions. The legal framework governing aged care continues to evolve, and staying informed about legislative changes will help consumers navigate the system effectively.

Ensuring the protection and dignity of aged care residents requires a collective effort from legal professionals, advocacy groups, and government agencies. By working together, we can improve accountability within the aged care system and ensure that all individuals receive the quality care they deserve.

Elderlaw Legal Services notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Elderlaw Legal Services are here to help. Please get in touch with us on 02 9979 1009 today to make an enquiry.

Scenario

What can you do legally if your elderly father with dementia marries a woman 30 years younger?

How does marriage law apply?

The right to form relationships is a fundamental human right. The court does not have a right to interfere in marriages unless the exercise of this right involves abuse, exploitation, or sequestration of the person by the spouse. As with other areas of decision-making, the capacity to marry is assumed unless evidence calls this presumption into doubt.

In such a scenario, it is important to question who would be responsible for triggering a legal challenge to a person’s decision to marry? In the case of late marriage or remarriage where a person’s cognitive capacity may be uncertain, the reasonable concern of family members is expected. However, the court may exercise caution when looking to distinguish between the proper concern of family members and family conflict arising from, for example, disgruntled children who resent the remarriage of a parent. As with most matters of family law, this assessment is undertaken case-by-case.

What is the legislative basis for challenging the validity of marriage?

The most appropriate starting point is the legislative authority for marriage. The Marriage Act 1961 (Cth) (‘Marriage Act’)is the primary authority allowing ‘civil celebrants to solemnise marriage; a union of 2 people to the exclusion of all others, voluntarily entered into for life’.[1]

Sections 23 and 23B stipulate the ‘grounds on which marriages are void’. In a circumstance where an elderly man with dementia marries a significantly younger woman, section 23B provides that a marriage is void if ‘the consent of either of the parties is not a real consent’. In particular, if ‘that party did not understand the nature and effect of the marriage ceremony’.

A party’s inability to understand the nature and effect of marriage gives rise to the issue of cognitive capacity which the High Court addressed in Gibbons v Wright. The Court found that a person must have the cognitive capacity to understand the general nature of the particular transaction they’re participating in.[2] The cognitive capacity required is different for different transactions.[3]

What has the Court’s position been on capacity to marry?

Stemming from its English law roots, Australian marriage law does not directly provide a test for assessing capacity to marry. Rather, the standard for capacity to marry is based on an assessment of the person’s understanding of the nature and effect of the marriage ceremony. In Sheffield City Council v E [2004] EWHC 28, Munby J of the Family Division of the High Court of Justice in England summed up the law on capacity to marry in four propositions:

1. It is not enough that someone appreciates that they are taking part in a marriage ceremony or understands its words.
2. The person must understand the nature of the marriage contract.
3. This means the person must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.
4. Nevertheless, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.

Munby J echoes the court’s general reluctance to have the test for capacity to marry be set too high. His Honour notes that:

‘There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.’

– Sheffield City Council v E [2004] EWHC 28 98

However, in similar spirit the court is careful to also not impose a stringent test of capacity to marry. This would open the floodgates to easy legal challenges against the validity of regular or seemingly sound marriages.

How do Australian Courts deal with legal challenges regarding capacity to marry?

Following Munby J’s suggestion in Sheffield City Council v E, it may be possible to obtain an injunction in an Australian Supreme Court to restrain the marriage of someone who lacks the capacity to marry.

Such matters are often dealt with by an application to the Family Court of Australia for a declaration of nullity. A marriage can be declared void for reasons where the consent of either of the parties was not a real consent because:

1. the consent was obtained by duress or fraud,
2. a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed, or
3. a party was mentally incapable of understanding the nature and effect of the marriage ceremony.

In the inquiry for capacity, Australian Courts take the additional step of applying nature and effect of marriage. Chisholm J in the AK v NC [2005] Fam C 1006 case of the Family Court of Australia noted that mere awareness of going through a marriage ceremony was not enough; a person has validly consented if they have a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage they were entering into for the person whose consent was in issue.

What about the particular circumstance of a person with dementia marrying?

1. Assessing factors to identify general understanding of marriage

Oliver (Deceased) v Oliver [2014] FamCA 57 was a case where an elderly 78-year-old man diagnosed with dementia and under full-time nursing home care as a result of his mobility issues, married his 49-year-old former cleaner. In the weeks prior to their marriage, the couple amended the now-deceased man’s will, materially benefitting the woman. 

The court held the marriage invalid on grounds of mental incapacity because the evidence showed the deceased was not able to make rational decisions and understand the nature and effect of marriage.[4] In earlier UK and Australian court decisions, Justice Foster cites Mathieson v Perry [1939] 56 WN (NSW) 89 [24] and affirmed the judge’s reasoning in that case that a party is mentally capable if they understand the general obligations and consequences of marriage.

An application of the legal elements to particular circumstances is essential. In doing so, Foster J outlines factors considered in the reasoning of whether the deceased man was mentally incapable of understanding the nature and effect of the marriage ceremony to the woman. These are as follows:

a) the physical observations of the deceased; children and overall family being witness to his cognitive and mental capacity in the months leading up to the marriage ceremony;

b) the Respondent’s (49-year-old woman) oral evidence commenting on the cognitive capacity of the man in the period from February 2011 until the date of marriage;

c) the extensive pre-marriage medical history of the deceased, which supports a very strong inference of ongoing diminished cognitive capacity and dementia;

d) the diagnoses of the deceased upon his admission to hospital in May 2011, only some three weeks after the date of the wedding, supporting a very strong inference of ongoing diminished cognitive capacity and dementia;

e) the deceased’s General Practitioner certificate detailing his diminished capacity to make rational decisions and mental health condition at time of marriage

f) the age and financial disparity between the elderly man and the woman. Particularly the woman’s motives behind facilitating change of will.

g) the little evidence from the Respondent (49-year old woman) and her witnesses in relation to the man’s capacity at the time of the ceremony to understand the nature and effect of the marriage. His mere presence and participation in the ceremony is insufficient to deem capacity.

These types of evidentiary considerations indicate that the Court takes a comprehensive interpretation approach to identifying the validity of a marriage where capacity is in question.

2. Assessing specific consequences of marriage

Having explored what a general understanding of nature and effect of marriage means, Babich & Sokur and Anor [2007] FamCA 236 [249] explains what it means to have an understanding of the specific consequences of marriage for the person whose consent is at issue. Reference to a ‘specific consequence’ is an equally important consideration in the test for capacity. Mrs Babich’s son applied to the Family Law Court to have the marriage declared null on the basis of his mother’s vascular dementia and cognitive impairment from alcoholism. During witness questioning, Mrs Babich was asked “what happens when people marry?” She replied saying “they live together, help each other, stay together” and that a husband was closer than a friend. But while this may indicate a general understanding of marriage, the Court still held the marriage void as she was mentally incapable of considering the effect and specific consequence of the marriage on her. Even though Mrs Babich acknowledged Mr Sokur (Respondent) as her husband, she denied any intimate relationship between the two of them. Mullane J found this and the evidence of the Respondent marrying for financial advantage contributed to deeming the marriage invalid.

3. Distinguishing ‘simple’ and ‘complex’ decision-making in the context of marriage

In the recent 2021 case of Alford & Lyden [2021] FamCA 38, Baumann J held the marriage void on grounds of finding the man incapable of understanding nature and effect of the marriage ceremony. Based on a neurologist’s report, the man had a variant of Alzheimer’s Disease prior to his wedding with the Respondent. While he was capable to make his own decisions about personal health care, lifestyle accommodation and financial affairs, the neurologist emphasised his decision-making was limited to ‘simple decisions’. The man’s capacity to make complex decisions was diminished. This contributed to Baumann J reasoning that the man lacked capacity to make complex decisions which have long term consequences.

How does one successfully challenge a person’s capacity to marry?

Challenging the validity of marriage is not a straightforward endeavour. It is difficult to displace the assumption that both people entering into marriage understood the ceremony and the long-term effect on their lives. The evidence must be strong. Health assessments conducted by experts, for instance, can help evaluate whether a mental disorder has influenced the person’s judgment of or affections towards the proposed spouse, the person’s understanding of the proposed marriage, and the responsibilities, duties and effect of marriage to that specific person. Ultimately, the onus of proving the person’s diminished capacity to consent to marriage rests on the claimant challenging the validity.

If you are looking to make a legal claim regarding Australian marriage law, please do not hesitate to contact Elderlaw Legal Services to make an enquiry. Our team of experienced solicitors at Elderlaw Legal Services are here to assist you. Please get in touch with us on 02 9979 1009.

[1] Marriage Act 1961 (Cth) s 2A.

[2] Gibbons v Wright (1954) 91 CLR 423, 437.

[3] Ibid.

[4] Oliver (Deceased) v Oliver [2014] FamCA 57 [205].

By Rodney Lewis

14 February 2023

Since the final recommendations of the Royal commission into Aged Care Quality and Safety were published and since the Commonwealth government response has become available for everyone to read, there has been a great deal of discussion and re-education of most people in the aged care system.

What then, are the areas for reform which have not attracted much attention? One of them at least is the perspective which lawyers might bring to the discussion on the way in which the Aged Care Act approaches rights for aged care residents and other aged care recipients.

There are of course many issues which arise out of the operation of aged care homes which give rise to legal issues and problems. They include the making of the residential care contract and whether or not the terms which have become commonly standardised throughout the aged care industry are reasonable and fair to residents.

There are also incidents which occur daily and which are reported by the Aged Care Quality and Safety Commission which also give rise to legal problems. For example, unlawful restraint, the quality of care, resident on resident assault including sexual assault, isolation of dementia sufferers where consents may not have been properly taken by the provider, neglect and harm. The latter commonly arises through, for example, staffing issues and which lead to serious health issues for the residents who may have been neglected.

Those who are observers of the system and its progress over the last few years can look forward to a discussion which is informed, fair and which pays particular attention to the rights, not only human rights but also legal rights of the residents.

One of the main underlying objectives for all concerned in the reform of the legislation and the production of a new Aged Care Act should be to ensure that being a resident in an aged care home includes retaining access to all the rights which all Australians enjoy under the law.

Rodney Lewis from Elderlaw Legal Services was invited for an interview by Thomas Oriti on the ABC Radio program – The World Today on 30 July 2020. There was a discussion upon issues in Aged Care Facilities with regards to management, staffing, and poor care of its residents. However, despite these issues occurring, the significant factor that prevents evidence of aged care shortfalls emerging is the lack of transparency and withholding of such evidence in the name of privacy. Despite this, Rodney believes that due to the impact of the Covid-19 virus, there is an opportunity to expose the weaknesses of the aged care system, and poor conditions affecting its aged residents. Questions need to be asked about what had been learnt from the experience of other countries which had experienced Covid and how their aged care systems reacted to better effect. There was prior experience and knowledge to observe elsewhere in the world and in other states of Australia during the pandemic which may have limited the lethal outcome for some of those who died.

Rodney believes that the issues surrounding the aged care system are systemic and despite the long history of serious harm and injury since the introduction of the Commonwealth Aged Care Act, a serious problem has been the persisting lack of development with regards the process for making a complaint. He says there must be a pathway for consequences for the aged care provider for poor care leading to harm and which provides a binding decision on complaints and allows for orders for the payment of money by way of restorative justice and for rehabilitation. An appeal should be available not just on the sterile grounds of administrative law but on the merits of the case, both on the facts and the law.

Despite it having not been used in relation to the aged care, Rodney believes that the Australian Consumer Law is a powerful tool in this area. He says consumer claims cases can produce exemplary damages and model cases which can act as references for changing the behaviour of people in the aged care system. For the future of the aged care system, these cases could lead the way to accountability and responsibility in aged care mismanagement.

To listen to the radio program, please visit the website below: https://www.abc.net.au/radio/programs/worldtoday/aged-care-providers-should-be-held-criminally-responsible/12507320