Legal loophole facilitates elder abuse

Monday 14 January 2019
Grace Bowran-Burge

Violent assaults by elderly residents in aged care homes are “woefully under-reported”, according to recent data.  The tales are horrific, and sadly not new. 

In December 2018, a 90 year old died from serious injuries following an altercation between two patients in the dementia ward of an aged care facility in Wollongong.  Earlier in the year, in Sydney, a 94 year old woman alleges that a 104 year old man indecently assaulted her.

National Coronial Information system and coroners’ files suggests that 90% of people in nursing home fights have dementia.  Data also suggests that males account for 86% of those who initiate violent altercations, and the risk of death from nursing home fights is twice as high for men than women.

So why is it that the aged care mandatory reporting framework state that facilities are not required to report assaults to the Department of Health if the alleged offender has a cognitive or mental impairment? 

Lawyer Grace Bowran-Burge says there is a risk that aged care operators could be found to be negligent for injuries inflicted by one resident on another.

“The risk is particularly significant if the violence is from a resident who has a history of similar aggressive actions, and this history is known to the aged care operators.”

Grace warns that by failing to take steps to prevent further violence, operators are potentially breaching their duty of care owed towards the injured resident.

“If aged care operators do not train their staff members in how to best intervene in these cases of aggression they’re again exposing themselves to legal proceedings.

Requiring providers to report allegations or suspicions of abuse where the offender is a resident is a step in the right direction to minimising these types of injuries.”

If a family member has been a victim of a violent assault, please call one of the expert injury lawyers at Adviceline Injury Lawyers on (03) 9321 9988 for free advice.

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