Our health law team helped a social worker in regional NSW to successfully respond to a complaint made against her by a client to the NSW Health Care Complaints Commission. 
Her client alleged breach of privacy and inappropriate disclosure of information.
Our client is an Accredited Mental Health Social Worker with more than a decade of experience. She had never had a complaint made against her.
She terminated her initial consultation with her client once it became clear to her that she knew of other family members and perceived a conflict of interest. Her client became agitated when she explained that there was a conflict of interest, despite her offering to arrange for him to see someone else and offering some general tips on anxiety management.
What did we do?
The Commission reviews complaints and considers the most appropriate way to deal with the concerns raised in accordance with the Health Care Complaints Act 1993.
We assisted our social worker client to understand the Health Care Complaints Commission’s process and to draft her response. We submitted the complaint on her behalf.
The result
The Health Care Complaints Commission assessed the complaint against our social worker client and took no further action. It saw no issues of boundary violation or inappropriate disclosure of information and found our client appropriately ended the counselling session.
Social workers are unregistered health practitioners but are bound by the Code of Conduct for Unregistered Health Practitioners. The Commission did not identify any breach of the Code of Conduct or any risk to public health or safety.
Assessing conflicts of interest for health professionals
Health care professionals in rural communities, particularly sole practitioners, face difficulties and ethical dilemmas including in relation to conflicts of interest.
Sometimes the cost of refusing a service to a client based on their contact with another client (even though these clients are not in conflict with one another) may be more detrimental to the client’s well-being than providing a service.
Health care professionals are all aware of their privacy and confidentially obligations. These obligations are magnified in rural and remote communities where it often seems that ‘everyone knows everyone’.
Opportunities for improvement
Despite the Health Care Complaints Commission finding no basis for the complaint, our client used the process as an opportunity to improve her procedures. She has modified her initial intake discussions to better explore other known parties to the client to avoid conflicts of interest before preliminary discussions take place. 
Legal support for health care professionals facing a formal complaint or regulator disciplinary action
The chances are that most medical practitioners will be the subject of a notification (complaint) at some point in their career.
Catherine Henry Lawyers’ expert health law team is experienced in helping health professionals navigate complaints processes and disciplinary action matters.
Our Principal, Catherine Henry, has previously worked for the NSW Health Care Complaints Commission.
Read our tips on responding to patient or client complaints here
Read our guide for psychologists on complaints investigation processes here
Read our information sheet on the framework in NSW for dealing with complaints about registered medical practitioners here.
If you or another health professional needs confidential support or advice, call our team on 02 4929 3995 or contact us here.  
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A matter is currently before the Court relating to an elderly man suffering financial abuse, being defrauded approximately 1.3m by his lawyer and carer.
The elderly man entrusted a South Coast lawyer with carrying out legal services on his behalf. After identifying the elderly man’s wealth, it is alleged that the lawyer had herself appointed as his power of attorney and sole beneficiary of his estate. It is also alleged that she entered into an agreement with his carer to defraud the elderly man, including withdrawal of large amounts of money from his account and the purchase of a property for the lawyer. Police have charged both women for fraud, and the Law Society is currently investigating the matter.
Subject to the above allegations being proven, this is a very sad case of financial elder abuse. From our experience, we are finding that abuse is perpetrated by someone who is in a position of trust. In this particular case, both women have a fiduciary relationship with the elderly man (an ethical and legal relationship of trust). In these relationships, there is a commitment to act in the other person’s best interest – in this case, the elderly man.
Adopting the case’s factual circumstances, it can be alleged that both women used their positions – and in respect to the lawyer, a violation of her appointment as a power of attorney – to benefit themselves and breach the duty owed to the elderly man. Not only are there criminal sanctions that can be imposed for this behaviour, but there can also be civil and equitable ramifications. If found guilty of the offence, it is also likely to result in the South Coast lawyer’s suspension/debarring.
To avoid these kinds of issues, people must consider appointing an attorney or attorneys known to them and trusted. Conditions can also be placed on the appointment to protect the interest of the principal – including the appointment of more than one attorney for transactions involving significant value. From a family and friend perspective, we recommend maintaining contact and a close relationship with the person, which can help identify any suspicious behaviour should it arise.
To discuss any concerns you may have for a loved one, or if you wish to obtain estate planning documents for peace of mind, please contact our Estates and Elder Law team on 02 4929 3995 to speak to one of our experts.
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We recently acted for the son of an elderly woman who still lived at home but was suffering from symptoms of dementia. Our client had been his mother’s carer since 2018, and while he had his own residence, our client would stay with her on a nearly full-time basis. He engaged a home care provider to assist his mother with personal care and domestic tasks around the home.
Our client expressed his dissatisfaction of the services performed to the provider on numerous occasions. He also requested documents and information from the provider. However, the provider refused this request as he was not appointed as his mother’s formal guardian/financial manager.
Following the provider’s refusal to furnish the documents and information, our client terminated the service with the intention of engaging a new home care provider. The initially engaged provider then made an application to the New South Wales Civil and Administrative Tribunal (‘NCAT’) seeking the appointment of the Public Guardian as the mother’s formal guardian. The basis for this application was that the provider believed our client’s decision to terminate services was not in his mother’s best interest. There were also allegations alluding to concerns of elder abuse perpetrated by our client towards his mother.
NCAT is a self-represented tribunal; however, our client was granted leave to have legal representation. Our client engaged us to appear on his behalf in respect to the provider’s application and to make an application on behalf of our client to seek that he be appointed as the financial manager for his mother.
Upon provision of the material in support of the provider’s application, it became apparent that there was no primary evidence produced in support of the application. We argued that the application was only brought by the provider because of their commercial interest in the matter. Our client otherwise furnished evidence supporting his character, his relationship with his mother, and his ability to be financially responsible.
At the hearing, NCAT ordered the dismissal of the application by the provider and appointed our client as financial manager for his mother. This was a fantastic result for the client.
If you are finding yourself in need of legal assistance with guardianship or financial management issues, contact the Estates and Elder Law team for expert advice.
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We often have people contact us who have separated, but their finances are tied up in assets jointly owned with the other party, or they are a stay at home parent and do not have the day to day cash flow to pay for a solicitor. This can be a helpless feeling and can feel to some that they have to agree with what the other party is offering because they cannot afford to negotiate the matter any further.
In a lot of cases, Catherine Henry Lawyers can still assist you in negotiating your property settlement, even though you aren’t able to afford your legal fees upfront. This is because we are accredited with Plenti Legal Finance (“Plenti”), Australia’s leading provider of loans for family law.
The process is relatively simple. You complete an online application form with Plenti. Plenti then contact us to submit a Lawyer Case Summary. Once these two things have been completed, Plenti will assess your application. If approved, Plenti will pay your fees as your matter progresses. They place a caveat or charge on your real or personal property as security for their loan to you. When your matter is complete, the loan from Plenti is first repaid from the funds that you receive in the property settlement and the caveat/charge is withdrawn. You get the remaining balance.
There is a lending criteria, fees and charges associated with the loan from Plenti, so you should carefully read the disclosure documents to ensure that the product is right for you. We are unable to provide you with financial advice regarding the loan. However, you are encouraged to seek your own financial advice before applying for a loan with Plenti.
If you need assistance with family law matters, our experienced team are here to help. Contact us today to arrange an appointment.
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Leading, regional NSW-based health lawyer, Catherine Henry, says a proposal to scrap mental health treatment plans in favour of online assessment tools is concerning for GPs and for people experiencing mental health issues and even mental illness.
The Productivity Commission’s Mental Health Inquiry, released November 2020, recommended the move.
While she welcomes the three-volume report’s central premise of a person-centred mental health system and a significant increase to mental health funding, Ms Henry agrees with the Royal Australian College of General Practitioners that more detail is needed on how scrapping mental health plans will benefit patients. The Australian Medical Association (AMA) also said the proposal to replace mental health treatment plans with an online tool will “undermine the holistic approach needed to care for patients with mental health concerns”. It also said removing support for GPs at a time when the burden of mental illness is growing is unacceptable.
Ms Henry says whilst the concept of mental health care plans might benefit from some tweaking, almost all GPs are now trained in the system and the associated funding allows GPs to spend more time with patients on their mental health issues.
“From the work we do gaining justice and compensation for people who have experienced poor mental health care, or where a lack of consideration of mental health issues has contributed to poor treatment of physical health issues, we see mental health care plans as a positive tool for patients and advocate for their use,” Ms Henry says.
“The College has said that if mental health treatment plans are no longer funded, GPs may resort to a more costly overall option of using chronic disease management plans – because many mental health conditions last longer than six months,” she says.
“Let’s evaluate these treatment plans and see if they can be improved before we throw the baby out with the bathwater.”
Mental health treatment plans, also called mental health care plans, were introduced in the 2006 Federal budget to improve access to mental health services by providing financial subsidies so that individuals can more easily access clinical psychologists and others who provide mental health services in the community. Read our information sheet here.
The Productivity Commission Report states that in any given year, at least five million Australians seek mental health help from their GP. Of these people, six in 10 are prescribed medication by the GP; three in 10 receive some counselling, education or advice. Only two in 10 receive a referral to a psychologist or a psychiatrist; about 400 000 people see private psychiatrists and 1.3 million people see psychologists.”
The report did note, however, that many GPs received “minimal training in mental health” and called for GP mental health training and professional development to be “re-oriented”.
Ms Henry says concerns raised in the report about over prescribing of antidepressants and other medication needed to be explored. She welcomes the report’s recognition of the strong relationship between physical health care and mental health care.
“In responding to the report, the National Mental Health Commission also made the important point that a specific strategy for addressing the mental health needs of older Australians, including those in residential aged care is needed.”
“This report is an important trigger for improving mental health care in Australia.”
Read more on ‘Why ditching mental health care plans is a very bad idea’ here.
If you or a loved one has experienced poor mental health care or treatment, talk to our expert health law team about legal options available to you. Phone 02 4929 3995 or contact us here. 
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Newcastle lawyer, Catherine Henry, has received a national civil justice award on top of other accolades for her work in aged care and health law.
On December 4 in Canberra, Ms Henry was presented with the Australian Lawyers Alliance 2020 Civil Justice Award which recognises the dedication, commitment and perseverance of individuals and organisations to social justice and human rights in Australia.
She joins previous winners such as Eddie Mabo (posthumous), former prime minister Malcolm Fraser AC, Andrew Wilkie, and co-founder of the National Justice Project, George Newhouse.
Over decades, Ms Henry has advocated for vulnerable people, for women, for health law reform, aged care law reform and improvements to health care and aged care delivery.
She has recently championed issues including the campaigns to decriminalise abortion in NSW and for action on vaginal mesh. Her firm has become a supporter of the National Justice Project. A strong critic of the current aged care system and 1997 Aged Care Act, Ms Henry was invited to address the Royal Commission into Aged Care Safety and Quality’s 2019 Newcastle public hearing.
Ms Henry said it is an honour to be acknowledged among other great champions of social justice.
“I am privileged to be a lawyer and believe that the law should be used as a tool to improve our society and community,” Ms Henry said.
ALA National President, Graham Droppert SC said Ms Henry is a truly deserving recipient of the annual Civil Justice Award.
“For many years, Catherine has effectively used the law to support and advance social justice and human rights in Australia,” Mr Droppert said.
“Using common law litigation and consumer law remedies backed up by public advocacy, Catherine’s work has contributed to positive reform in aged care and health services.”
“Catherine’s commitment spans more than one issue and draws from her experience as a health lawyer and aged care lawyer.”
The ALA Award comes on top of Ms Henry and her firm both being recognised in the prestigious 2020 Doyles Guide lists of NSW’s top medical negligence compensation lawyers and law firms.
Ms Henry is listed as one of 14 Leading Medical Negligence Compensation Lawyers (Plaintiff) for 2020. This is the fourth year in a row that she had made the list. She is one of only four regional NSW based lawyers to make the list. Her firm is one of the top 17 Medical Negligence Compensation Law Firms (Plaintiff) for 2020. This is the second year running that the firm has claimed top honours. Catherine Henry Lawyers is one of four regionally based firms to make the list.
Ms Henry said it is gratifying to make such a prestigious list alongside some very well-known and established capital city firms and lawyers.
She said she and her team who are passionate about using the law to gain compensation and justice for people whose lives have often been torn apart because of poor healthcare or aged care.
“Our firm strives to bring the sorts of legal services available in capital cities to people in regional areas,” Ms Henry said.
“This is important because the evidence shows that people in regional NSW have poorer access to health services and have poorer health outcomes than people living in capital cities,” she said.
“Our work plays an important role in not only providing justice and redress, but it also helps to improve professional standards of care.”
The ALA and Doyles recognition tops off a year of accolades for Catherine Henry and her firm. In August, Ms Henry was named Regional Lawyer of the Year and the firm won Regional Law Firm of Year in the 2020 Australian Law Awards.
The firm and Ms Henry are also finalists in the upcoming 2020 Australian Women in Law Awards (to be announced December 10). Catherine Henry Lawyers is one of 10 finalists vying for the Boutique Diversity Law Firm of The Year Award, and Ms Henry is one of 10 finalists in the running for the Executive of the Year Award.
Catherine Henry Lawyers specialises in health and medical law, elder and aged care law, family law, estate planning law and property and conveyancing law. It has offices in Newcastle as well as Taree and Sydney and serves people in the Hunter, mid and north coasts, Central Coast, Western and Far Western regions of NSW.
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Catherine Henry Lawyers and its principal, Catherine Henry, have again been recognised in the prestigious 2020 Doyles Guide lists of NSW’s top medical negligence compensation lawyers and law firms.
Ms Henry was listed again as a Recommended Medical Negligence Compensation Lawyer (Plaintiff) for 2020 – the fourth year in a row that she has had this honour. She is one of only four regional NSW lawyers to make this list – there is only one other in Newcastle and the Hunter region.
Her firm also received the accolade of Leading Medical Negligence Compensation Law Firm (Plaintiff) for 2020. Only 8 firms in NSW have had this recognition and only one other firm in Newcastle – Burgan Lawyers.
Ms Henry said it is gratifying to make such a prestigious list alongside some very well-known and established capital city firms and lawyers.
She said the recognition is due to her dynamic and extremely hard working team who are passionate about using the law to gain compensation and justice for people whose lives have often been torn apart because of poor healthcare.
“Our firm strives to bring leading medical negligence law services to people in regional areas,” Ms Henry said.
“This is important because the evidence shows that people in regional NSW have poorer access to health services and have poorer health outcomes than people living in capital cities,” she said.
“Our work plays an important role in not only providing justice and redress for people but it also helps to improve professional standards of healthcare and the healthcare system generally”.
The listings top off a year of accolades for the Newcastle-based firm. Ms Henry was named Regional Lawyer of the Year in the 2020 Australian Law Awards and is a finalist in the upcoming 2020 Women in Law Awards (to be announced December 10). The firm won Regional Law Firm of Year in the 2020 Australian Law Awards.
The 2020 listing of leading Plaintiff-focused NSW Medical Negligence & Malpractice Compensation Lawyers details solicitors practising within the areas of medical negligence and malpractice matters in the NSW legal market who have been identified by the state’s defendant insurance lawyers for their expertise and abilities in these areas. The 2020 listing of leading Plaintiff-focused NSW Medical Negligence & Malpractice Compensation Law Firms details firms practising within the areas of medical negligence and malpractice matters in the NSW legal market who have been identified by the state’s defendant insurance lawyers for their expertise and abilities in these areas.
Catherine Henry Lawyers specialises in health and medical law, elder and aged care law, family law, estate planning law and property and conveyancing law. It has offices in Newcastle as well as Taree and Sydney and serves people in the Hunter, mid and north coasts, Central Coast, Western and Far Western regions of NSW.
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Our client was 123 kilograms when she was advised to undergo gastric band surgery.
The defendant doctor – a general surgeon – was dismissive of the potential risks pre-surgery.
Our client developed a significant infection around the surgical site post-operatively. The defendant doctor treated the infection which did not abate and our client experienced significant pain.
A few months after surgery, the cause of the pain and infection was discovered – a haematoma (localised bleeding outside the blood vessels).
Our client requested to be transferred to another surgeon who operated at a different hospital. That new surgeon performed a number of corrective procedures and ultimately found a foreign object left in situ during the original surgery.
The original gastric band had also partially eroded leading to the development of sepsis – a  potentially life-threatening condition – which resulted in our client needing to remain in hospital for a 3 month period.
Our client had to undergo a number of surgical procedures and each time suffered from debilitating immune responses following the general anaesthesia.
She developed significant depression and became dependent on family members.
Astonishingly, the defendant surgeon claimed during the case that it was his view that our client had benefitted from the procedure!
We were able to achieve a positive outcome for our client and in doing so, held the defendant surgeon to account for his negligence.
Our expert health law team can help if you or a loved one has suffered the devastating impacts of negligent bariatric surgery. Contact our award-winning health law team today.
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We acted for a number of family members of a woman who tragically died from septic shock from the complications of weight loss surgery.
The deceased had a BMI of only 33.6 and should therefore have been regarded as “borderline for any surgery.”
The defendant surgeon performed a gastric bypass procedure.
In the days following the operation, Ms X vomited bile stained fluid and was in significant pain and had stomach distension. A CT scan showed fluid in the bowel and pelvis. She was taken to theatre for a gastrostomy. Post-surgery, the deceased reported worsening abdominal pain.
24 hours later the surgeon operated again – this time performing a laparotomy. The clinical notes of the immediate post-operative period showed signs of possible sepsis. The deceased was very agitated and difficult to sedate, had impaired gas exchange and her abdomen was even more distended.
Again she was taken to theatre for further surgery – a subtotal gastrectomy. In theatre, the patient was significantly unstable.
The day following the fourth surgical procedure, the deceased died. An autopsy reported the cause of death as septic shock following complications of gastric bypass surgery.
Our independent expert was of the view that it was inappropriate to have performed weight loss surgery and that non-operative measures should first have been attempted. The patient’s BMI was below the generally accepted guideline for the performance of bariatric surgery.
The technique used to access the proximal small bowel was not appropriate and likely to cause obstruction.
The third operation – the laparotomy – should have included a decompressing gastronomy. By the time of the fourth operation, it was not appropriate to perform a subtotal gastrectomy.
If you or a loved one have experienced the negative impacts of bariatric surgery, please get in touch with one of our caring, expert, health lawyers about the options available to you.
Taking legal action holds those responsible accountable for avoidable outcomes leading to injury and loss.
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A leading regional NSW based law firm that specialises in legal support for women is in the running for two national 2020 Australian Women in Law Awards.
Catherine Henry Lawyers is one of 10 finalists vying for the Boutique Diversity Law Firm of The Year Award and its principal, Catherine Henry, is one of 10 finalists in the running for the Executive of the Year Award.
Ms Henry said diversity is important from a workplace, client, and community perspective. She said her firm has particularly championed greater representation of women.
Of the firm’s nine lawyers, seven (78%) are women. The firm’s management team comprises 66% women and, overall, 85% of the firm’s full time and part time staff are women. Almost half work part time.
It supports initiatives and policies to foster gender diversity within the legal profession and the broader community including signing up to the Law Council’s Equitable Briefing Policy and supporting women’s groups, legal groups and business networks to advance the role of women and diversity.
During 2019/20, 36 per cent of the barristers and mediators briefed by Catherine Henry Lawyers were women. Those briefings to women accounted for 70 per cent of the value of all briefs.
Ms Henry established a local chapter of the Women Lawyers Association in Newcastle shortly after she moved from Sydney to her home town in 2002 and is its current convenor. Her firm supports the University of Newcastle’s Empower program, the Newcastle Equal Futures International Womens’ Day breakfast and has also produced free e-resources for women on legal issues.
It is rare for a woman to be the sole principal of a law firm – the firm has 29 employees. This year, Ms Henry has driven the firm’s growth and diversification of the firm.
“We continue to try and bring more legal work in specialised areas such as health, aged care and elder law services to this regional area – these areas of work are usually the realm of only capital city firms,” Ms Henry said.
Ms Henry does not shy away from difficult cases or low quantum matters – that other firms turn away –  despite her firm’s relatively small size.
She also spends considerable personal time and the firm’s resources advocating for vulnerable people – in areas of health services in rural and regional areas and aged care law reform and improvements. She is the Australian Lawyers Association’s national spokesperson on aged care and elder law and was invited to present a statement to the Royal Commission into Aged Care Safety and Quality when it held a community forum in Newcastle in 2019.
She has championed women’s health issues for decades – specifically the decriminalisation of abortion in NSW and the use of controversial vaginal mesh products for women with prolapse issues.
“I have a great, supportive team at the firm – one that helps me ensure we deliver the best legal representation to clients as well as taking a stand where needed and using the law to improve our society and community.”
Earlier this year Ms Henry was named Regional Lawyer of the Year in the Lawyers Weekly Australian Law Awards. She has also been recognised in the prestigious Doyle’s Guide list of top medical negligence and malpractice compensation lawyers for four years running.
The Women in Law Awards is dedicated to recognising the outstanding women shaping and influencing the legal profession. The winners will be announced via an online event on December 10.
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For those of you who thought the Stolen Generation was a thing of the past – think again.
The annual Family Matters report – issued this week – shows that Aboriginal and Torres Strait Islander children are around 9.7 times more likely to be in out-of-home care than non-Indigenous children. There are more than 20,000 Indigenous children in out-of-home care.
This over-representation has increased every year over the last 10 years in every state and territory.
Another disturbing trend is that 81% of Indigenous children are in state care to the age of 18. The report says those children are “at serious risk of permanent separation from their families, cultures and communities”. In NSW, the use of permanent care orders is twice the national average.
Earlier this month distinguished legal academic, Indigenous rights advocate and 2011 NSW Australian of the Year, Professor Larissa Behrendt AO, presented on this topic at Newcastle’s third annual Margaret Henry Memorial lecture.
Prof Behrendt said whilst the Black Lives Matter movement has appropriately focused attention on incarceration rates and deaths in custody, an equally important issue is keeping Aboriginal children with their families. She said the rate of Indigenous child removal has almost doubled since the Apology in 2008.
Much of Prof Behrendt’s work is campaigning for those Aboriginal children who are considered to have been appropriately removed from their parents but have not been placed with extended family. More than half of Indigenous children are living without an Aboriginal and Torres Strait Islander carer. The issue here is lack of connection to culture.
Reunifying a child with their family or extended family should always be the goal of any care and protection system. Only 26% of Indigenous children in out-of-home care were identified for possible reunification compared to 37% of non-Indigenous children. Of those children, only 19% of Indigenous children were reunified compared with 28% of non-Indigenous children.
Placing children in permanent care or adoption, particularly with non-Aboriginal carers, takes the child off the Government’s hands but often has devastating consequences.
The Family Matters report lays out sensible recommendations to address this issue. Aligned with the views of Prof Behrendt, it concludes that self-determination and placing the voices of Indigenous people at the centre of this issue is the way forward.
Catherine Henry has more than 30 years’ experience as a health, medical and aged care lawyer and is the principal of Newcastle based firm Catherine Henry Lawyers.
This opinion piece, ‘Care trend shows new Stolen Generation’, appeared in the Newcastle Herald on Saturday 21 November 2020.
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We were pleased to participate recently in the launch of the University of Newcastle Law School Older Persons Legal Clinic.
The clinic began seeing clients over 12 months ago, but the launch was delayed due to COVID-19. The Clinic used this opportunity to reflect on the successfulness of their first 12 months in which they saw over 350 clients and provided advice on over 450 matters.
The Clinic offers free legal advice and assistance to people aged 60 years and over and to Indigenous people aged 50 years and over.
The Older Persons Legal Clinic is staffed by lawyers and law students and can offer information, referrals and advice on matters such as wills, family law, neighbourhood disputes, tenancy issues, disputes with government departments and elder abuse and care issues.
Catherine Henry Lawyers is pleased to have been invited to work collaboratively with this innovative community legal service to provide support, advice and representation to some of the most vulnerable people in our society – older people.
At the online launch, the NSW Attorney General The Hon. Mark Speakman SC MP congratulated the Clinic on a successful first year and recognised the important role community legal centres play in providing the most disadvantaged members of society with access to vital legal advice and representation.
“Elder abuse is a terrible scourge on our society” Speakman said. He emphasised the importance for older people experiencing abuse, especially those facing hardship and difficulties due to COVID-19, to be informed of their legal rights and options and receive legal representation when they need it most.
We at Catherine Henry Lawyers recognise the importance for older persons to get legal advice and representation; especially older persons planning for the future, considering or living in a retirement village or residential aged care, experiencing elder abuse or who have been significantly affected by COVID-19.
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Consumers need easy access to data about the performance of individual aged care facilities so that they can make informed decisions, says the Australian Lawyers Alliance (ALA).
ALA spokesperson and aged care advocate Catherine Henry welcomed this week’s release of a research paper detailing performance against 50 aged care quality and safety indicators by the Royal Commission into Aged Care Quality and Safety.
“The information released by the Royal Commission was made public for the first time,” Ms Henry said. “We would not accept this lack of transparency in any other setting.
“Older Australians are suffering and at risk in aged care facilities and those caring for them face an uphill battle to provide appropriate care. Families need access to quality performance data so that they can make informed decisions about placement of their elderly relatives.
“The research report shows that accessing the data is possible. To make this information useful for families it needs to be publicly available and narrowed down to individual facilities.
“Families choosing a child care facility can easily go online and check whether the individual facilities in their local area meet, exceed or fail to reach the expected quality standards. In both the UK and the US, this type of quality information about individual aged care facilities is available online with a simple postcode search.
“Similar publicly available information about the performance of aged care facilities in Australia will help to support consumer choice and, importantly, motivate aged care facilities to improve.”
Ms Henry said the report also showed that aged care facilities run by the state and not-for-profit organisations performed better across the indicators than those run by for-profit organisations.
“The privatisation of the aged care sector in 1997 has not worked. It’s a system that was designed by providers for providers. We agree with the recommendation made by Counsel assisting the Royal Commission that it’s time for a new Aged Care Act that embeds quality indicators and better regulation of the sector’s performance.”
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WARNING: This story talks about an Aboriginal person who has died
Catherine Henry Lawyers is a supporter of the National Justice Project co-founded by civil rights lawyer George Newhouse.
NJP is a not-for-profit legal service dedicated to representing and giving voice to the vulnerable who would otherwise be unable to find legal representation. It is a wonderful example of how court work and advocacy can be used to build a fairer justice system and more equitable society.
As they say on their website, the NJP uses “strategic litigation, education, and advocacy as tools to fight discrimination and demand systemic change for the most marginalised people. (Their).. clients include First Nations people who have been harmed by discrimination in health care, children in offshore detention whose fragile psyches have been destroyed by years of isolation on Pacific islands due to Australia’s policy of sending asylum seekers offshore for processing, and the families of those who have died in custody at coronial inquests.
The NJP have seen reform in health services, prisons, and detention centres as a direct result of our work.
Last month, the firm’s principal, Catherine Henry, gave a lecture to the National Justice Project Social Justice team on the subject of promoting social justice through health care litigation.
An example of the important work of the NJP is a coronial inquest into the tragic death of Wiradjuri woman, Naomi Williams, who was 22 weeks pregnant when she died of septicaemia in Tumut Hospital in NSW.
The NSW Deputy Coroner who presided said the issue for the inquest was broader than the circumstances of Naomi’s death. It looked at whether the care Naomi received was affected or compromised by unconscious, implicit bias or racism.
The Coroner found that when Naomi went to hospital that night the hospital should have received further examination rather than being discharged earlier than was clinically indicated. It also heard evidence of stereotyping Indigenous people as more likely to use drugs and alcohol.
The Court found Naomi’s care was affected by unconscious and implicit bias or racism. The Coroner highlighted that many Aboriginal people “feel they cannot go up to the hospital as they won’t get the treatment they need.” The unequal treatment and state wide health outcome inequality amongst Aboriginal people– exemplified by this tragic case –  is prevalent. It certainly affected the care provided to Naomi.
The Coroner also concluded that the care the hospital staff gave to Naomi’s family, following her death, was neither compassionate nor appropriate.
The Coroner made a number of recommendations to the Murrumbidgee Local Health District (MLHD) around strategies for developing culturally appropriate care, making the Aboriginal Health Liaison Worker program available 24 hours a day, staff training, and measuring implicit bias.
The NJP is correct when it says that while access to healthcare is a basic human right, many Aboriginal and Torres Strait Islander people experience significant discrimination and even negligence in their medical treatment. That’s certainly my experience from the medical negligence cases and inquests our firm handles for Indigenous clients.
The NJP’s Aboriginal Health Justice Project is a targeted health-law service for First Nations peoples and communities who have experienced discrimination in healthcare or medical negligence.
The NJP does not seek or receive any government funding. It relies on donations from the community to run the practice.
To find out more about the work of the NJP visit www.justice.org.au
 
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WARNING: This story talks about an Aboriginal person who has died
We acted for an Indigenous woman from western NSW –a woman of the Ngemba, Ualarai, Murrawarri and Wailwan people – who tragically lost her child at 32 weeks pregnancy.
Our client had presented to the nearby small public hospital in remote NSW with severe lower abdominal pain – which she described as different to labour pain – and vomiting.
She did not have any back pain or blood loss but her uterus was very tender on palpation. The hospital was unable to manage her care so our client was transferred by air ambulance to a maternity hospital in Sydney. At that hospital,  our client was seen by a nurse and noted to be in distress from the pain. A CTG trace showed a rapid foetal heart rate. She was then seen by a resident who recorded her history and clinical findings. Apart from the suprapubic pain and tenderness the uterus was not tense. The resident discussed our client’s situation with a Registrar who did not see her but prescribed steroids to mature the baby’s lungs in case of premature delivery.
Our client’s pain continued and a preliminary diagnosis of urinary tract infection was made by the registrar who had eventually seen her at 0730. There was no consideration given to undertaking an ultrasound examination at this time. Later that evening, our client was seen by a more senior registrar who specifically recorded there was no evidence of accidental antepartum haemorrhage. Again a UTI was diagnosed. Ultrasound was deferred to the following day.
The following morning, nurses were unable to hear the foetal heart. At 12:00pm the senior Registrar discussed our client’s situation with the obstetric consultant who, at 2:00pm, examined her and recorded that the history was suggestive of placental abruption and that ultrasound examination confirmed foetal death in utero.
We successfully resolved our client’s case arguing that both the rural and city hospital had failed to follow all necessary and clinically appropriate procedures for antenatal monitoring in accordance with the guidelines of the Society of Obstetric Medicine of Australia and New Zealand. Our client had developed complex bereavement disorder, avoidance behaviour and had persistent intrusive thoughts. Her mood was disturbed, she developed anxiety and had social phobia. Her grief made it difficult to work.
We have conducted many cases of negligence arising from stillbirth pregnancy. Our clients have reported feeling vindicated and the process of resolution and holding the health providers to account cathartic.
How can we help?
If you are looking for information or help following a stillbirth or neonatal death, we can help you navigate the process. Our team can assist you by providing expert advice and legal support regarding your options. Contact us today. 
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WARNING TO READERS WHO ARE ABORIGINAL AND TORRES STRAIT ISLANDER. This story talks about people who have died.
Our client was only 50 when she died. She had an elective procedure so that she could undergo treatment for her chronic renal failure at home. That procedure was abandoned because our client suffered a cardio-respiratory arrest. She was resuscitated and an arterial line inserted in her thigh to monitor her blood pressure while in Intensive Care.
When that line was removed, it caused a haematoma (bleeding outside of blood vessels). The development of that haematoma – and the delay in its diagnosis – was caused by the negligence of the hospital and caused the death of our clients’ wife and mother. Our clients describe feeling their mother had been neglected and forgotten about by hospital staff.
Our case for justice and compensation
Our health law team made a case for the psychological trauma our clients suffered due to the manner of their loved one’s death. We argued that each suffered injuries and disabilities which are ongoing and which may in fact never resolve.
Our team exposed the paucity of records with respect to both the insertion and removal of the arterial line and the lack of nursing notes in our clients’ loved ones transfer from intensive care to the ward – which were used to prove inadequate quality of care. Hospital staff clearly failed in their duty to carefully apply digital pressure for the necessary period.
It is widely accepted amongst surgeons of all specialities in Australia that the puncture of a major blood vessel followed by a failure to achieve haemostasis needs the urgent involvement of a specialist vascular surgeon which did not occur.
The hospital’s own internal investigation noted poor handover and poor communication were contributing factors.
We used independent, expert opinion from an occupational therapist and psychiatrist to detail the mental and physical issues our clients face due to their loved one’s death.
Significant settlement
We were able to obtain a substantial settlement for each of our clients to help compensate them for their significant psychological and physical injuries resulting from the death of their wife and mother.
Let us fight for you or your loved one
If you or a loved one suspect you have experienced still-birth because of medical negligence please do not hesitate to talk to one of our caring, expert, health lawyers about the options available to you. Simply call 02 4929 3995 or get in touch here.
Taking legal action and holding health care professionals to account can play a role in changing health care practices.
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NAIDOC week invites all Australians to embrace the true history of Australia. With the spotlight on Indigenous communities, we look at the issue of stillbirth – the hidden tragedy impacting many Australians.
Sadly, in Australia, about 6 babies are stillborn every day. For Indigenous women that rate is doubled. Professor Caroline Homer, President of the Australian College of Midwives called the disparity a “national disgrace.”
The Australian Institute of Health and Welfare (AIHW) report that babies born to mothers living in remote and very remote areas were 65 per cent more likely to die during the perinatal period compared to their non-remote counterparts. Many Indigenous women live in remote areas of NSW.
The following AIHW Table provides insight into causes of death of stillborn babies born to Indigenous women.
Perinatal mortality rates by Indigenous status of the baby in Australia, 2013−14
 

Whilst the rates indicated in the above table are grim, progress albeit slow is on foot and, according to Dr Al-Yaman “Between 2005 and 2016, the rate of stillbirth among babies born to Indigenous women fell from 11.8 to 10.5 per 1,000 births.”[1]
Despite the headway, worryingly – one study in Queensland found “that Aboriginal and Torres Strait Islander women continued to be at increased risk of stillbirth as a result of potentially preventable factors including maternal conditions, perinatal infection, FGR (foetal growth restriction) and unexplained antepartum foetal death”[2]
With continued focus and investment in Indigenous health outcomes and in particular Indigenous women’s maternity and perinatal care, hopefully the numbers of stillbirth experienced by Indigenous women will continue to fall.
____________________________________________
[1]https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Stillbirth_Research_and_Education/Stillbirth/Report/c02
[2] Ibiebele, Coory, Boyle, et al, ‘Stillbirth Rates Among Indigenous and Non-Indigenous Women in Queensland, Australia’, p. 1482.
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The Royal Commission into Aged Care Quality and Safety has appropriately spent time looking at the specific and, at times, unique problems Indigenous Australians face in relation to aged care.
The aged care system is failing older Australians and these issues are magnified for Indigenous Australians.
The Royal Commission held hearing in Broome in May 2019.  As its hearings came to a close in October 2020, counsel assisting made specific recommendations to the Commissioners on reform relating to Indigenous Australians.
Broome hearings – issues and needs of Indigenous Australians needing aged care
The Broome public hearing inquired into access and inclusion. That included the unique needs of Aboriginal and Torres Strait Islander people, especially those living in rural and remote areas.
The Commission also looked at barriers to accessing aged care services and the challenges of maintaining an adequately skilled and culturally appropriate workforce.
Witnesses said the barriers include red tape and a lack of culturally safe services. I remember hearing one witness saying that residential care is seen as “a death sentence” by many older Aboriginal people.
The other glaring issue is the lack of cultural understanding in aged care facilities and the need for better training of staff. This is exacerbated by a lack of Indigenous people working in aged care.
Counsel Assisting recommendations on Indigenous Aged Care
During the final two days of hearings held by the Commission on October 22 and 23, Counsel Assisting submitted a lengthy list of 124 recommendations. These considered and sensible recommendations are heartening. They go to the root cause problems for the sector such as legislation, governance, regulation, public availability of aged care provider performance against benchmark quality indicators as well as minimum staffing, improved pay for aged care workers, and workforce training.
Eight of these were specifically related to Aboriginal Australians. Counsel assisting has attempted to address the issues raised in the Broome and other hearings. The recommendations are summarised below.

An Aged Care Commissioner within the Australian Aged Care Commission with oversight of Aboriginal and Torres Strait Islander aged care
Requiring all aged care system workers, to undertake regular training about cultural safety and trauma informed service delivery
Requiring all aged care providers to ensure that they are at an advanced stage of implementation of the Aboriginal and Torres Strait Islander Action Plan under the Diversity Framework
Ensuring care finders serving Aboriginal and Torres Strait Islander communities are local Aboriginal and Torres Strait Islander people and that – wherever possible – aged care assessments are conducted by Aboriginal and Torres Strait Islander people
Assisting Aboriginal and Torres Strait Islander organisations to expand into aged care service delivery
Developing a comprehensive national Aboriginal and Torres Strait Islander Aged Care Workforce Plan in consultation with the National Advisory Group for Aboriginal and Torres Strait Islander Aged Care
The Australian Government should block fund providers under the Aboriginal and Torres Strait Islander Aged Care Service Arrangements
Establishing or providing greater flexibility in funding streams for infrastructure, service delivery and to help ensure Aboriginal people in aged care who need to return to country can do so.

What lies ahead?
The Commission’s final report is not due until the end of February 2021. The Federal Government appears content to wait until then before deciding how to act in regard to aged care reform. My concern is that the government has a lack of will and sense of urgency to implement real reform. In the recent Budget there was little real action or funding in relation to aged care. How long it will take for the Government to act on the Royal Commission’s findings and reports? Meanwhile, more older Australians will needlessly suffer or die, including Indigenous Australians.
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I had the pleasure last week of being a panellist at the annual University of Newcastle Law Students Association (UNLSA) Women in Law event. Also on the panel were Newcastle barrister and public defender Lizzie McLaughlin and Rhanee Rego, solicitor and casual lecturer/PhD candidate at the UON Law School.
I’m always happy to give my time to this event when I’ve been asked in the past. I like to be able to provide some personal and professional insights into what I’ve found helpful for the next generation of female lawyers.
It was – yet again – another great event, and there were many challenging questions and discussion points. Here are some of them.
Is it critical to work in a legal environment when studying in order to get work as a lawyer upon the completion of a law degree?
No not critical but it’s certainly helpful. It has to be said though that there are limited opportunities in Newcastle. The UON Professional program does provide opportunities through the excellent legal clinic. There are also occasional openings in private firms. Here at Catherine Henry Lawyers, we offer positions to students working as paralegals. Some of those paralegals have gone on to work as solicitors at the firm. 
Any advice about a career at the bar in Newcastle?
Both Lizzie and I both were very much of the view that if you’re interested in a career at the bar in Newcastle that it’s important to have first worked as a solicitor. Solicitors in Newcastle don’t tend to brief barristers who haven’t first worked as a solicitor. In Sydney, floor clerks and other barristers can give more junior barristers work, but it is certainly still advisable to work first as a solicitor.
What about becoming a partner in a firm? 
I don’t think partnership in a private law firm should be seen as the holy grail – it’s not for everyone! You can certainly have a very satisfying career as an employed solicitor in private practice, and there are many other roles outside the law that lend themselves to someone with a law degree. The important thing is that you are in control of the career path you take.
However, if a partnership is something you aspire to, my advice is that you’ll need to demonstrate that you can attract work and develop a practice (as opposed to being given work by other lawyers). So my hot tip is to write, write, write! Get known by writing content in your area of practice – hopefully, you will find work in an area of the law that challenges you.
For those who find work in Newcastle, I also recommend developing relationships in the local legal community – with colleagues who can support or mentor you. Having worked for lengthy periods in both Sydney and Newcastle, I can confidently say that Newcastle has a very collegiate legal profession. We have a very active regional law society here in Newcastle and also a local chapter of the Women Lawyers’ Association of NSW, both of which encourage student memberships.
Why do we need women to be decision makers in law – either partners of law firms or women practicing on their own account as barristers? 
We need diversity and equality in all professions and decision makers who are both men and women. Judges and politicians are often chosen from the legal profession, and we need women to be able to have that pathway available to them.
I believe in and support affirmative action programs, and it’s good to see that the peak organisation – the Australian Lawyers Alliance (ALA) – has very recently launched a gender equality policy. This new policy articulates the ALA’s commitment to implement practical initiatives to address gender inequality – such as promoting a code of conduct calling out discriminatory and abusive conduct and a commitment to membership and participation quotas.
The ALA policy also strongly encourages lawyer members to adopt the Law Council of Australia’s Equitable Briefing Policy. At the ALA national conference which I attended last year as a speaker, I was surprised – but proud – to learn that my firm was one of the few plaintiff law firms to have formally adopted this policy. 
How can we assist women lawyers who’ve taken time out of the workforce for family reasons to continue on in legal practice? 
Some of those in the audience at this event were concerned about job prospects as an older lawyer. When recruiting, I always look further than the person’s continuity as a solicitor based on their CV. Life experience and maturity often make for a more empathetic lawyer and a better ‘bedside manner’.
My firm has always provided workplace flexibility and part-time/job share positions. Providing those options for men too plays a role in the equitable sharing of family responsibilities. 
How can we improve the very low numbers of Indigenous lawyers?
The fact that we haven’t seen the very low numbers of Indigenous lawyers improve in recent decades is really concerning. I believe the key to boosting the number of Indigenous lawyers is to promote opportunities for Indigenous students in our law courses. If we work on increasing the numbers of Indigenous individuals studying law through structural programs – such as the pathways we have at the University of Newcastle and UNSW – then we will have higher numbers of Indigenous graduates, and more legal role models for other Indigenous people.
How can we ensure a safe working environment – free of harassment – for all employees, especially women? 
As I’ve already said, we need to publicly say what is and isn’t acceptable conduct in the workplace. Every organisation – including all law firms- need to have a readily accessible and transparent policy.
In the workplace, men and women need to call out inappropriate behaviour and offensive jokes. And women need to be especially vigilant in supporting other women.
Last year I published an article in the Newcastle Herald on International Women’s Day, you can access it here.
Hopefully, some of this resonates with you. I am always happy to be contacted for help and assistance or to continue the discussion. Contact me here.
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University of Newcastle Law Students’ Association hosted an online event on the topic of  ‘Women in Law’.
Catherine Henry was one of the event’s online panelists highlighting and celebrating the leading contributions, innovations and talent that women in law from the Newcastle and Hunter regions offer to the wider Australian legal profession.
Our own paralegals, Emily Longhurst and Jordan Young who study Law at the university, attended last night’s event. We asked them what were their main take-home messages from the event.
Here are the key points:
Interested in becoming a barrister?
If you’re interested in a career at the bar in Newcastle, it is imperative to work first as a solicitor. Solicitors in Newcastle don’t tend to brief barristers who haven’t first worked as a solicitor. In Sydney, floor clerks and other barristers can give baby barristers work but it is still advisable to work first as a solicitor.
Want to become a partner in a law firm?
Don’t see partnership as the holy grail – you can have a very satisfying career as an employed solicitor – and it’s certainly not for everyone! If you do aspire to partnership, you’ll need to demonstrate that you can attract work and develop a practise (as opposed to be given work). My best advice is to get known by writing content in your area of practice – hopefully it’s an area that challenges you.
Is it critical to work in a legal environment when studying in order to get work as a lawyer?
 No not critical but certainly helpful. There are limited opportunities but the UON Professional programme provides opportunities and there are occasional openings in private firms. CHL offers positions to students working as paralegals. Recommend developing relationships in the local legal community – Newcastle has a very collegiate legal profession.
Why we need women to be decisionmakers in the law– either partners of law firms or women practising on their own account as barristers?
We need diversity and equality in all professions. Judges and politicians are more often than not chosen from the legal profession.
How can we assist women lawyers who’ve taken time out of the workforce for family reasons continue on in legal practice?
When recruiting, look further than the person’s continuity as a solicitor based on their CV – life experience and maturity are gold and often make for a more empathetic lawyer and good ‘bedside manner’. Embrace workplace flexibility and part-time/job share positions.
The very low numbers of Indigenous lawyers is concerning – and hasn’t improved ? Any thoughts? 
The key is to promote opportunities in legal education. If we increase the numbers of Indigenous individuals studying law through structural programmes such as the pathways those we have at UON and UNSW, then we will have higher numbers of Indigenous graduates.
How can we ensure a safe working environment – free of harassment –  for all employees especially women?
Need to publicly say what is and isn’t acceptable conduct Have a readily accessible and transparent policy. Call out inappropriate behaviour/offensive jokes. Support of other women is crucial.   
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