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3 must have inclusions in your residential aged care agreement

Once you have accepted a place at an aged care facility or nursing home, they will send you one or more contracts to formalise their offer.
The documents are given a variety of names including agreements for residential aged care, aged care agreements or aged care contracts. They can include a resident agreement, accommodation agreement and extra services agreement. (See our client information sheet on agreements for residential aged care for more detailed information.)
What 3 items should I ask to be included in and agreement for residential aged care?
Our expert aged care lawyers recommend that you ask the aged care facility for your agreement(s) to include these three items.

User Rights Principles

The principles deal with security of tenure for care recipients, access for persons acting for care recipients, and the information the provider must give care recipients. The principles also describe your rights and` responsibilities of recipients of both residential care and home care.

Charter of Aged Care Rights

This list of rights is contained within the User Rights Principles.
It came into effect on 1 July 2019 replacing previous charters of care recipients’ rights and responsibilities. The new Charter provides the same rights to all consumers, regardless of the type of subsidised care and services they receive.
A residential aged care facility must inform you of the Charter of and assist you with comprehending your rights. They must give you a copy and an opportunity to sign the Charter.

Aged Care Quality Standards

The Aged Care Quality and Safety Commission expects organisations providing aged care services in Australia to comply with the Quality Standards. However, we see countless cases of some aged care facilities not complying with these standards. The regulator (the Commission) still provides accreditation to aged care facilities who do not meet all standards.
Why should I include these 3 items?
Any agreement must comply with the User Rights Principles detailed in the Aged Care Act. However, the User Rights Principles, the Charter of Aged Care Rights and Aged Care Quality Standards are NOT an enforceable set of legal rights unless they form part of your agreement with the aged care provider.
If you do not include them within your agreement you have to rely entirely upon the complaints system to address any issues and concerns you may have whilst living within residential aged care.
Expert help and advice regarding aged care agreements and contracts
Moving into an aged care facility is a big lifestyle change and financial commitment. A lawyer who is familiar with these types of contracts can help to ensure the contracts make sense to you and that you are protected.
Our expert, caring and experienced aged care and elder law team can:

assist families with how to make a complaint
help to navigate aged care regulation
act as the advocate for the resident or family
advise on residential aged care agreements
advise and prepare a negligence claim.

Contact us today on (02) 4929 3995 or [email protected]
Our website has a range of other resources including expert articles and client stories on the many ways we help people (and their families) plan for growing older.
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July 1 Medical Indemnity Law Reform to be tested to help victims of disgraced Dr Blackstock

The specialist health and medical law firm representing 65 victims of disgraced cosmetic surgeon, Dr Leslie Blackstock, is testing new reforms to medical indemnity laws to help its clients and other women gain justice and compensation for their suffering.
The Medical and Midwife Indemnity Legislation Amendment Bill 2019 came into effect on July 1. It streamlines various schemes and extends them to more insurers, in a more level playing field, who must provide universal cover to medical practitioners.
Catherine Henry, principal of Catherine Henry Lawyers, says the legislation and reformed medical indemnity schemes should provide greater certainty and protection for patients and health professionals.
Ms Henry says a current clause means that retired doctors under 65 are not necessarily covered by ‘run off cover’, which provides insurance even after a doctor stops working and paying premiums.
The NSW Medical Board suspended Dr Blackstock’s registration in 2017 and he has retired. Complaints made by Ms Henry’s clients and other women against Dr Blackstock include: procedures being performed without an anaesthetist; asking patients while sedated if they are satisfied with the appearance of their breasts; no examination or assessment pre procedure; surgery having to be redone multiple times; and incompetently managing complications from his surgery.
Ms Henry says Dr Blackstock’s insurer has already settled some clients’ claims but others are complicated by Dr Blackstock’s insurance being a “claims made and notified” scheme. He did not notify his insurer of the other women’s claims before retiring and ceasing to pay premiums.
“Although untested, our interpretation of the new legislation is that a medical practitioner retiring before the age of 65 is covered by Run off Cover regardless of the type of notification scheme,” Ms Henry says.
“We have started to lodge claims with the insurer,” she says.
“We didn’t want to leave our clients vulnerable to claims solely against Dr Blackstock’s unknown personal wealth.
“These women have suffered and deserve redress for loss of income, psychological trauma, and to cover the cost of additional surgery to correct Dr Blackstock’s mistakes.”
Ms Henry says medical indemnity is professional indemnity insurance for health practitioners. It pays the cost of claims against medical practitioners for medical malpractice proceedings. In Australia, all registered health professionals must be covered by indemnity insurance. Privately practising health practitioners must arrange their own indemnity insurance, while medical services provided under the public health system are covered by state and territory professional indemnity arrangements as part of their employment arrangements.
“As little as 25 years ago, doctors and health professionals – unlike other professionals including lawyers and accountants – weren’t required to have professional indemnity insurance.
“The current scheme was established by the Federal Government in 2002 to essentially subsidise medical indemnity after Australia’s largest medical indemnity provider, United Medical Protection, went into liquidation – leading to a spike in premiums.
“The schemes play an important role in supporting affordable health care and ensuring that patients who make legitimate claims against medical practitioners and midwives are able to be compensated for any loss they have suffered.”
A First Principles Review of the Medical Indemnity Fund was undertaken in 2018. It found that the schemes should continue, were largely fit for purpose, but could be improved. The new law removes two now redundant acts and amends three acts.
Catherine Henry Lawyers is a regional NSW based law firm specialising in health and medical law. Ms Henry has more than three decades of experience in the area.
If you or a loved one has experienced poor treatment from a health care practitioner, our caring, expert female lawyers can help advocate for you and seek justice. Please talk to us about the options available to you.
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Dr Blackstock victim settles claim for botched breast implants l Our client’s story

Melissa Harrison’s experience of breast augmentation by disgraced cosmetic surgeon, Dr Blackstock, was so horrific that she says she contemplated taking her own life.
A mother of three and a dancer, Melissa went to see Dr Blackstock to “get back what she had lost”. She had seen him on TV and on Facebook and was attracted by his offer of an affordable payment plan.
From her research, she assumed Dr Blackstock was a qualified plastic surgeon. He had asked her to fill out a questionnaire and to get a referral from a psychologist – all of which added to her impression of his legitimacy. In Australia, a GP can offer cosmetic surgery services (as opposed to plastic surgery service).
The operation
But the first time Melissa saw Dr Blackstock in person was the day of the operation. They had only ever discussed implant options and sizes over the phone.
When she arrived at his western Sydney “surgery” Melissa says she felt anxious.
“It looked more like a shopfront or a veterinarian’s room,” Melissa says.
“And Dr Blackstock added an additional $1,000 to the bill for the procedure because he said my anxiety increased his costs and the time to do the surgery,” she says.
After a pre-op consultation of no more than five minutes she was on a steel surgical table. There was a nurse but no anaesthetist. Melissa says she felt the needles going in but didn’t feel like the anaesthetic was working. She felt the tearing and pulling. After complaining, Melissa says she felt like Dr Blackstock was irritated with her, but he increased the medication.
She could hardly focus when he put a mirror in front of her to ask her what she thought. She says all she could see was blood. She remembers saying she felt the implants were too big to which Dr Blackstock replied that she would only come back wanting them to be bigger if he didn’t use that size implant.
She remembers waking up in a lot of pain and being shown out via a back door but not before being given a form to sign to say that she was happy with the procedure. Her then partner had been called to take her to her hotel room. They had to call in to a pharmacy on the way for her to get the prescribed pain medication.
“The pain was unbearable and when I called to discuss the pain his response was to just take more medication.”
Melissa ended up becoming addicted to the prescribed pain medication.
Ongoing problems
Melissa says that for a long time after the operation she just felt unwell all the time. And she never healed properly.
Melissa was not happy with the outcome. She could see that her breasts were uneven. One was smaller than the other. Today, she still has visible scarring.
She developed fibroids in her breasts and later found out that Dr Blackstock didn’t test her for a bleeding disorder she had.
Ongoing impacts on her life
Rather than enhancing her self-image, Melissa says she became more self-conscious. Instead of helping her return to work, Melissa says she became mentally unable to work, ending up on a disability pension.
“I just shut down and shut everyone out. The impacts were not only on me but on my ability to look after my children. They suffered too.”
She says that, at the time, her grandmother was very ill and Melissa regrets that, because she was so unwell, she couldn’t spend time with her nan during her dying days.
“What I thought was going to be a simple operation to make my life better turned into five years of living hell.”
Dr Blackstock didn’t care
Melissa says when she made complaints to Dr Blackstock it was like he didn’t care.
“He provided little follow up and I felt like his attitude towards me changed post operation.”
“He told me as far as he was concerned the procedure was a success. He was irritated when we spoke and said that I was being like the other internet trolls.”
Dr Blackstock told Melissa he could remove the implants, but she would have to pay for that operation. She says he blamed some of her ongoing health concerns on the fact that she became pregnant (and miscarried) shortly after the procedure.
Other surgeons were reluctant to help her
Several years later, Melissa was well enough to consider having further surgery.
“I just wanted those implants out of me.”
But she didn’t have enough money to get them removed. Melissa got a payday loan, which had very high interest, to help cover the cost of the implant removal surgery.
“The operation has only removed my implants, not repaired the damage or enhanced them in a way that I originally wanted.”
Catherine Henry Lawyers helped Melissa reach a settlement
Initially, another law firm was representing Melissa in action against Dr Blackstock.
“That lawyer dropped me because she didn’t feel I had a case. I found Catherine Henry Lawyers and they have helped me reach a settlement that I am happy with.”
“Catherine Henry Lawyers understood what I had been through and were open and honest about my options in making a case against Dr Blackstock.”
“Finding Catherine Henry Lawyers to help me settle my case has also helped me to gain some closure and start to get on with my life.”
“If other people have had bad care from Dr Blackstock or other doctors I recommend they speak to Catherine Henry Lawyers.
Melissa’s message to other women
Despite her trauma, Melissa says she feels lucky compared to the many other women who were patients of Dr Blackstock.
“My message to women who are thinking about cosmetic breast augmentation is not do it. This experience has totally changed my attitude to cosmetic surgery.”
“If women are thinking about cosmetic surgery, they must do their research. I thought I had done enough research, but you need to ask lots of questions of different people to understand all of the risks.”
She says the impacts have been financial, physical and mental. Dr Blackstock also didn’t make her aware that the breast implants would need to be removed every 10 years or so, so the procedure was never going to be a one-off expense.
“I feel like I have some closure now. I am speaking out to make sure other women don’t experience what I went through. The system needs to change to prevent doctors like Dr Blackstock from practicing cosmetic surgery.
If you or a loved one has experienced poor treatment from a health care practitioner, our caring, expert female lawyers can help advocate for you and seek justice. Please talk to us about the options available to you.
Further media coverage of Dr Leslie Blackstock can be found at the links below:
7 News Sunday Night | Current Affair | Marie Claire
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Catherine Henry Lawyers in the running for two prestigious Australian Law Awards

Leading regional NSW based law firm, Catherine Henry Lawyers, is in the running for two prestigious Australian Law Awards.
The firm is one of eight finalists for Regional Law Firm of the Year and its principal, Catherine Henry, is one of 10 finalists for Regional Lawyer of the Year.
Ms Henry has pioneered bringing health, aged care law and elder law services, usually only available from capital city law firms, to regional NSW since returning to work in Newcastle more than a decade ago.
She is humbled by the nominations and proud of her team.
“Congratulations to the awards’ organisers for having categories for regional Australia,” Ms Henry said.
“It is really important that people who have experienced poor health care and aged care in regional areas have access to the highest quality representation,” she said.
“These nominations encourage my team and I to continue our work in giving people robust representation and help them obtain justice, redress, and compensation.”
“Litigation is also a way to hit poor operators and providers where it hurts – in their hip pockets – and thereby forcing positive change in healthcare standards.”
Ms Henry said her firm, which offers health law, elder law, family law, wills and estate planning and property conveyancing services, had achieved much over the past 12 months. She said her team’s hard work is paying off with the firm seeing a doubling of incoming work.
“We are representing more than 80 women who have received poor medical care from disgraced doctors – representing them individually rather than via a class action.”
“We have maintained our 100 per cent success rate in medical litigation cases.”
She is continuing to expand and diversify health law, aged care law and elder law services. In addition to gaining justice for victims of poor care, the firm has developed a health disciplinary practice representing health professionals whose conduct has been questioned – and, in some cases, prosecuted – by health regulatory bodies. The firm is also doing work in challenging health decisions, preparing contracts for assisted reproduction, as well as health transactional work which give rise to both health and consumer law remedies.
Expanded aged care and elder law services being offered by the firm include aged care advocacy (accommodation disputes and challenging and negotiating aged care contracts) and financial elder abuse.
More lawyers with clinical experience have joined the team including a senior lawyer midwife. Ms Henry said the team is also supported by an in-house nurse who helps to carefully and quickly assess cases and to ask the right questions to help establish liability.
Ms Henry said some clients have been rejected by capital city law firms but Catherine Henry Lawyers has successfully taken them on.
“Not many firms take on the confronting task of representing the frail aged, particularly in regional areas,” she said.
On another positive note, Catherine Henry Lawyers has continued to serve clients in a safe manner during the COVID-19 pandemic.
“Unlike many other firms, we have neither cut jobs nor staff hours.”
“We also try to play our part in improving the law profession and giving back to the communities in which we operate.”
These award nominations are not the only accolade for Catherine Henry and her team. She and the firm have been recognised in the prestigious Doyle’s Guide lists of NSWs’ top medical negligence and malpractice compensation lawyers and law firms. Ms Henry, who has been recognised three years running, is one of only two lawyers in the list that are based outside of Sydney. The Newcastle Business Club also bestowed Ms Henry with its 2019 Individual Award for her contribution to the commonweal of Newcastle and the Hunter.
The Australian Law Awards is in its 20th year. Lawyers Weekly editor Emma Ryan said the awards showcase professional development and innovation, celebrating both the individuals and firms that are leading the way in the industry.
“This annual event represents the premier benchmark for those operating in the business of law, covering vast practice areas, level of experience and contribution to the profession,” Ms Ryan said.
The winners will be announced via an online event on August 7.
 
 
 
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Join us in preserving Newcastle’s historic Victorian Theatre

Preserving heritage and encouraging the arts is essential for thriving communities. That’s why Catherine Henry Lawyers has become a Founding Ambassador for Newcastle’s historic Victorian Theatre.
The Vic is the oldest surviving heritage theatre building in NSW.
This building is of national significance. Its retention should be unequivocal. When completed, the theatre will have a capacity of up to 900 and will lend itself to host live presentations, music, dance, theatre, local productions and solo artists. It will be a much needed addition to Australia’s touring circuit as well as providing a complementary cultural asset to Newcastle and Hunter citizens and vistors.
Reviving the Victoria Theatre will positively impact Newcastle. It will provide greater community connections for local artists and a venue of significance and inspiration to showcase their creative talents. The community will enjoy greater access to high quality music, dance, and theatre productions to celebrate fine arts and build social cohesion.
I love opera – having been involved in choral music for many years both in Sydney and here in the Hunter – and I am looking forward to enjoying extraordinary live performances here in Newcastle.
Founding Ambassadors
Our firm is one of  10 Founding Ambassadors from across the Hunter who recognise the significance and importance of returning the Victoria as a working heritage theatre to the Hunter community. An initiative of the Victoria Theatre’s Campaign Cabinet, Founding Ambassadors have committed resources to take the next major strategic step in the revive the Victoria Theatre campaign.
This includes completing a new business case for a fully operational theatre, commissioning an economic impact assessment, and engaging leading advocacy firm, Premier State. Combined, these initiatives are progressing the compelling case to the highest levels of government to fund the revival of the Victoria Theatre. Progress on the theatre’s return to glory is being made. This month the Heritage Council of NSW  approved its revival plans. This is a major step forward and should now pave the way for the Development Application approval from Newcastle Council.
Join us in preserving Newcastle’s historic Victorian Theatre
To find out more and to see how you can be involved in the restoration of the Victorian Theatre visit this website.
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Aged Care Royal Commission hearings to resume as 4 Corners reports on Newmarch House tragedy

It is pleasing to see that the Royal Commission into Aged Care Quality and Safety will resume hearings next month after pausing in light of coronavirus – this coincides with a recent 4 Corners report featuring the Newmarch House tragedy in Sydney.
At the time the Royal Commissioners suspended hearings on 20 March 2020, a hearing was to commence on mental health, oral health and allied health care in aged care provision. This hearing will now take place in Melbourne from 15 to 17 July 2020.
The Royal Commission says that commissioners and staff have continued to work on research and policy development as part of preparation for the final report which is still due to be finalised in November 2020.
Melbourne Hearing 4 will be closed to the public due to COVID-19 restrictions. Interested members of the public can view proceedings on the live webcast.
Adelaide hearings
Before the Royal Commission suspended hearings, several hearings and workshops were held in Adelaide. Read our summary of the February workshop, and Adelaide Hearing 3 on the future of the aged care workforce here.
On March 4, the Commission held a fourth Adelaide hearing to receive submissions from Senior Counsel Assisting, Peter Gray QC, on aged care program redesign.
A second Adelaide workshop was held on March 16 and 17 covering research, innovation and technology that can be utilised in aged care and how to apply new practices in the sector.
Commissioners were investigating whether the aged care sector and the Government are putting enough support behind innovative technology developments, and spoke with a range of witnesses and industry experts to understand the barriers to innovation, how to translate the research in aged care practice, and utilise technology to help older Australians.
COVID-19 and the Newmarch House tragedy
The Royal Commission will look at the issue of the COVID-19 pandemic in its final report.
I have argued that while a focus on COVID-19 by the Commission doesn’t hurt, an independent inquiry into the deaths is needed. Read my thoughts here. Thankfully, the NSW Coroner will now also investigate the deaths at Newmarch House.
Meanwhile, there was a very good ABC TV 4 Corners program on Newmarch House. The investigative team has produced an excellent timeline of the events surrounding the tragedy. View it here.
Nineteen elderly residents of Newmarch House died during the outbreak. Two of them had recovered from COVID-19 at the time of their deaths and were not counted towards Australia’s overall COVID-19 death tally.
Confirming my view that an independent inquiry is needed – in the program Anglicare boss Grant Millard said that the Royal Commission would inquire only and it was not about apportioning blame
But the family members said they wanted someone to be held accountable and acknowledge their role in the deaths. They, rightly and understandably, want a full blown investigation – they want answers.
One-fifth of Australia’s deaths from COVID-19 occurred at Newmarch House – did they die in order to keep the community safe? The community needs answers too.
More information and help with aged care and elder law issues
We will continue to provide summaries of the Royal Commission’s work as well as other aged care and elder law issues in our blogs and in our newsletter. Subscribe to our newsletters hear.
If you or a loved one in an aged care facility has been impacted by Covid-19 or is dissatisfied with care provided, talk to our expert team about the options available to you.
 
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Updated advice residential aged care facilities on minimising Covid-19’s impact

There has been media and community attention on the issue of minimising the impact of COVID-19 in residential aged care facilities (RACFs), particularly in relation to visitor access and healthcare at facilities.
The NSW Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 regarding influenza vaccination and facility access ended at midnight on June 22.
But, on June 19, the Australian Health Protection Principal Committee (AHPPC), chaired by the Chief Medical Officer, updated its April 21, 2020 advice for RACFs about minimising the impact of COVID-19. AHPPC continues to emphasise the significant health risk of COVID-19 for the elderly and individuals with co-morbidities or low immunity.
We’ve been told that the Aged Care Quality and Safety Commission will be following these recommendations, and AHPPC’s same cautious approach to the easing of restrictions, in the absence of the operation of the public health order in NSW.
As Australia does not have uniform orders/directions at law, states have various orders or directions expiring on different dates. The AHPPC recommendations offer considered, expert guidance and advice for RACF operators, residents and families.
AHPPC also said that as Australia moves towards becoming COVID Safe, the personal welfare and mental health of residents in RACFs must be balanced against the significant risks of COVID-19 outbreaks in RACFs.
AHPPC statement of advice to RACFs
Restrictions on entry into RACFs
AHPPC maintains that the following visitors and staff (including visiting workers) should not be permitted to enter a RACF:

Individuals who have returned from overseas in the last 14 days.
Individuals who have been in close contact with a confirmed case within the last 14 days.
Individuals who are unwell, particularly those with fever or acute respiratory infection (for example, cough, sore throat, runny nose, shortness of breath) symptoms.
Individuals who have not been vaccinated against influenza.

Recommendations for entry into RACFs
Based on emerging evidence and given the current epidemiological and public health situation in Australia, with low levels of local transmission, AHPPC recommends that:

children of all ages be permitted to enter RACFs — all visitors, including children, must adhere to restrictions on visitor numbers, social distancing and personal hygiene
visiting service providers such as hairdressers, diversional therapists and allied health professionals be permitted to enter RACFs when their services cannot be provided via telehealth or other adaptive models of care, and the resident cannot attend an external facility to receive these services; these providers must adhere to equivalent social distancing and hygiene practices as they have implemented in community settings
spouses or other close relatives or social supports are not limited in the number of hours that they spend with their spouse/relative

AHPPC recommends that facilities return to a higher level of protection (such as restricting visiting service providers) if there are recent cases of COVID-19 acquired in the local vicinity of the facility. A guide would be that there are cases in the surrounding suburbs or town that have not been acquired overseas.
AHPPC recommends that RACFs implement measures to reduce the risk of transmission to residents, including:

limiting visits to a maximum of two visitors at any one time per resident
visits should be conducted in a resident’s room, outdoors, or a specified area in the RACF, rather than communal areas with other residents
no large group visits should be permitted at this time, however gatherings of residents in communal or outdoor areas which adhere to social distancing and current jurisdictional requirements for gathering size may be permitted

Visitors must practise social distancing where possible, including maintaining a distance of 1.5 metres. Visitors have a responsibility to supervise any children with them, practise hand hygiene and respiratory etiquette, and to comply with directions given by RACF staff.
AHPPC recommends that RACF staff should not be required to supervise visits, however staff should promote compliance with COVID-19 prevention methods by:

educating visitors on entry about practising social distancing and hygiene during their visit
placing signage throughout the facility to remind visitors to maintain these measures
screening visitors on their current health status upon entry to ensure unwell visitors do not enter the facility

In the event a facility needs to return to a higher level of protection (for example, an outbreak of COVID-19 or local cluster in the community), facilities should recommence supervising visitors.
External excursions
AHPPC recommends that external excursions for groups of residents not be permitted.
However, individuals and family members (close friends, partners, couples or siblings/familial groups in an RACF) should be permitted to leave the RACF to attend small family gatherings.

The size of the family gathering should be in line with current jurisdictional advice and physical distancing and hygiene measures should be adhered to during the visit.
The RACF should conduct a risk assessment for each visit, taking into account the local epidemiology, number of people attending and the feasibility of physical distancing.  The RACF should maintain a record of the visit location, number of people in the gathering and the date of visit.

In the event a facility needs to return to a higher level of protection (for example, an outbreak of COVID-19 or local cluster in the community), facilities should cease all external excursions.
Residents
The current AHPPC advice recommends:

active screening for symptoms of COVID-19 in residents being admitted or re-admitted from other health facilities and community settings should be conducted
no new residents with COVID-19 compatible symptoms should be permitted to enter the facility, unless the person has recently tested negative for COVID-19
residents admitted from other health facilities should be assessed by appropriate medical staff prior to admission to the facility and appropriate infection prevention practices should be implemented for residents returning from treatment or care at other facilities

There is no requirement for routine testing on admission or re-admission, unless clinically warranted.  Clinical judgement should be applied — for example, where a patient is coming to the RACF from an area with known community transmission.
One-off screening on entry or re-entry to the facility should comprise a questionnaire about symptoms of COVID-19 and an initial temperature reading.
If otherwise unexplained symptoms are present or indicated in the response to the questionnaire, or fever is present, the resident should not be admitted to the facility. If admission is unavoidable the resident should be isolated and tested immediately, and appropriate infection prevention and control precautions should be implemented.  The resident should be managed as per the CDNA recommendations for suspected COVID-19 cases.
Requirement for visitors to be vaccinated against influenza
Older Australians are at higher risk of morbidity and mortality due to influenza than the general population. While there is no vaccine or treatment for COVID-19, vaccination is a key protective factor against influenza infection. Unvaccinated staff and visitors pose a risk of introducing influenza into a RACF. This would burden the health system and endanger older Australians residing in RACFs.
As a protective measure, AHPPC continues to advise that only visitors and staff who have been vaccinated against influenza may enter RACFs. Individuals with a valid medical reason to not be vaccinated may seek a medical exemption to enter RACFs, in accordance with their jurisdictional requirements.
Management of staff and visitors that are ill
COVID-19 can be introduced into RACFs by staff and visitors who are unwell, which can result in significant outbreaks. RACFs must advise regular visitors and staff to be vigilant in monitoring their health for signs of illness, and staying away from RACFs if they are unwell.
RACFs should undertake health symptom screening of all people upon entry as recommended by the Aged Care Quality and Safety Commission. Residential aged care providers need to take responsibility for the health of visitors and staff to whom they grant entry to protect our most vulnerable community members.
Staff who have symptoms of COVID-19 should be excluded from the workplace and be tested for COVID-19. Staff must immediately report their symptoms to the RACF, even very mild symptoms, and not go to any workplaces. Sick leave policies must enable employees to stay home if they have any of the COVID-19 symptoms, as outlined on the Department of Health website.
What is the Australian Health Protection Principal Committee (AHPPC)?
The Australian Health Protection Principal Committee is the key decision making committee for health emergencies. It is comprised of all state and territory Chief Health Officers and is chaired by the Australian Chief Medical Officer.
Assistance to RACFs, residents and families
Our expert team of aged care and elder lawyers is providing legal advice and other support to RACF operators and managements as well as aged care residents and their families about the impact of COVID-19. If you need support please get in touch with us to discuss your options.
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Australia needs more than a Commission to fix rural and regional healthcare

The Australian Government needs to do much more than extend the Office of the National Rural Health Commissioner to tackle the disproportionately greater number of poor health outcomes experienced by rural and regional healthcare patients.
The government announced last week (June 12) that it will introduce legislation to expand the office it established in 2017 by appointing deputy commissioners. It will also appoint a new commissioner.
The government’s focus on rural and regional health through its ‘Stronger Rural Health Strategy’ is welcome but report after report shows it is sorely needed.
In September last year a damning ABC’s 4 Corners investigation – Health Hazard – shared the stories of patients who had died or suffered significant disability as a result of the care they received at their local regional hospital. Their injuries were preventable.  Our health system failed them. The program prompted an outpouring of similar stories from many regional communities. After the 4 Corners’ report, some regional NSW doctors called for a state inquiry into regional healthcare, which has been ignored.
When the commissioner’s office was appointed I predicted, sadly, that progress would be slow. The Commission’s big achievement – in two and a half years – has been to bring the Royal Australian College of General Practitioners and the Australian College of Rural and Remote Medicine together to agree to develop a national framework for the Rural Generalist medical specialty and a pathway for rural generalists. This is only one of the many rural health workforce issues.
It is important we have public data to monitor performance too. We still have agencies such as the National Health Performance Authority refusing to release national data on death rates and adverse events in hospitals. In the United States and England, this information is available to the public – by postcode – at the touch of a button.
Governments – state and federal – need a proper, data based strategy with more funding to improve rural healthcare.
The strategy needs to tackle the reality for regional patients. They experience poorer access to health services and they have to travel considerable distances to access services. The number of available doctors, including specialists, is considerably lower in rural and regional areas. Generalists are often performing specialised practices with far less experience (and therefore skill) than those in the city.
A 2019 Australian Institute of Health and Wellbeing (AHIW) report showed that the rate of potentially avoidable death increases from 94 per 100,000 people in the major cities to 129 in regional areas. The AIHW’s 2019 Rural And Remote Health report shows that people living in rural and remote areas have higher rates of hospitalisations, disease, mortality, injury and poorer access to, and use of, health services, compared with those living in metropolitan areas.
As a regionally-based health and medical lawyer, I see first-hand the impact of disproportionately poor health resourcing for rural and regional residents. I see too many negligence cases and inquests involving avoidable death and serious injury. I also see the benefit that legal action brings to garner focus on improved standards of professional responsibility and patient safety.
A Rural Health Commission is needed to tackle the issues impacting rural and regional healthcare, and quickly.
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Damages awarded due to inappropriately prescribed Gentamicin | Our Client’s Story

Catherine Henry Lawyers’ health law team has secured sizeable damages for our client after he was inappropriately prescribed Gentamicin whilst in hospital. What is Gentamicin? Gentamicin is a powerful antibiotic for fighting infection that belongs to a class of drugs…

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Elective surgery error led to sepsis and leg amputation | Our Client’s Story

The skill and knowledge of our in-house practice nurse was instrumental in successfully settling a claim for medical negligence by our client against a local NSW area health service and two specialist medical practitioners. During elective surgery, our client received…

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Deciding whether or not to act as a surrogate: birth mother’s costs in a surrogacy arrangement

When deciding whether or not to act as a surrogate for another person, you need to give consideration as to what expenses you are likely to incur and whether or not these are recoverable.  It is not possible for a…

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Amended laws allow aged care residents to live with their family during COVID-19

The Australian parliament has amended the Aged Care Act, 1997 to allow aged care residents to live with their family during COVID-19 without penalty.
The amendment ensures the Government will continue to pay subsidies for residents on emergency leave from aged care facilities. They have also backdated eligibility to April 1, 2020.
Residents who move out of their aged care homes to reduce the risk of COVID-19 infection will not be penalised or disadvantaged for breaking their agreement with the aged care facility.
That means if you have a loved one in care and don’t want them there, they won’t have to pay to hold their place during COVID-19 and similar emergencies.
Under the previous legislation, permanent residents can be away from their aged care residence for up to 52 days a year for non-hospital related reasons – called “social leave”. Government subsidies stop if a resident takes more than 52 days social leave, and the cost is usually passed on to the resident.
This is a sensible measure to help reduce an aged care resident’s risk of exposure to COVID-19 and the spread of the virus generally.
When the amendments were introduced into parliament, Shadow Aged Care Minister, Julie Collins MP, said around 500 Australians families were using the leave. She said the limits on leave had seen families cover the $200 a day subsidy themselves – clearly an unfair situation.
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New Aged Care Visitor Access Code helps families and residents during COVID-19 pandemic

Aged care advocates have worked with the aged care industry to develop a national visitor access code for aged care facilities during the COVID-19 pandemic.
The code was developed after thousands of complaints from aged care residents and their families and an urging from the Prime Minister.
We worked with aged care advocates, residents’ families and aged care facilities to provide input into the Code. The Code certainly provides clarity and some consistency in relation to loved ones seeing family members during pandemics is welcome, but the matter is not straightforward. Balancing the needs of family members with the ability of aged care facilities to have confidence that visitors are not putting staff and residents generally at risk is the challenge.
What does the new Aged Care Visitor Access Code mean for aged care facilities, aged care residents and their families?
The new code outlines the rights and responsibilities of facilities, residents and visitors and was finalised mid-May after a week of public consultation. It is set to be reviewed again at the beginning of June to address any issues and concerns.
There are separate regulations in place between states and territories, but this code does seek to provide some national consistency and clarity to the aged care sector, residents and families.
Importantly, there is a suggested access resolution process for families who feel they are being unfairly prevented from visiting their loved one.
The 13-point code adheres to advice from the Australian Health Protection Principal Committee. Key recommendations include:

visits should be only as frequent as required to support a resident, for a short duration and limited to a maximum of two people

a visit may occur in a resident’s room, designated internal areas, gardens or other designated areas

longer periods of visitation can be agreed to with the provider and may be given priority for family or friends of residents with dementia

where in-room or in-person visits cannot occur, a window visit may need to be offered

any visitor to an aged care facility is now required to have had a flu vaccination.

Additionally, the code outlines routine screening measures for all staff and visitors on entry. It underlines the need for one point of entry only, a short verbal questionnaire for visitors on arrival and a ‘no touch’ temperature test.
Rightly, the code specifies it is not reasonable to keep residents locked away from their families.
The Aged Care Visitor Access Code can be found here.
Expert advice for both families and aged care facilities on aged care visitor access
If you or a loved one needs support or advocacy or for any issue involved the legal aspects of aged care, Catherine Henry Lawyers’ expert team can speak with you about the options available to you.
Our team cam also assist aged care facilities who need advice or assistance regarding policy development or implementation on access, or in managing requests by families or residents for greater access that facility managers feel present a risk to staff and residents generally.
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Inappropriate use of Gentamicin caused permanent damage | Our Client’s Story

Catherine Henry Lawyers’ health law team has settled a claim for a large sum through mediation for a woman whose distinguished career was cut short due to permanent damage caused by hospital staff’s inappropriate use of Gentamicin.
What is Gentamicin?
Gentamicin is a powerful antibiotic for fighting infection that belongs to a class of drugs called aminoglycosides. Its devastating side effects are well known to medical professionals, which include being toxic to the ear and destructive to the kidneys.
Our client shouldn’t have been given Gentamicin
Our client was in a Canberra hospital for a routine procedure to remove a ureteric stent. There was no evidence of sepsis or infection to justify giving her Gentamicin.
Some urologists justify the use of Gentamicin because a urinary tract infection may include gram negative bacteria which can be resistant to several classes of antibiotics. Our client was already taking oral antibiotics which meant intravenous antibiotics were unnecessary in any case.
A distinguished career cut short
The Gentamicin caused our client to suffer from ototoxicity. The symptoms of ototoxicity are devastating and largely irreversible.
Our client suffered permanent damage to the sensory undertakings of the inner ear which control spatial orientation and balance.
Our client was an enrolled nurse and active member of the community who devoted her personal and professional life to helping others. In her own time, she generously volunteered with community organisations helping the less fortunate. She is no longer able to work or care for others in the personal or professional capacity she once enjoyed.
Our case for compensation
The main issues for the court were whether the choice of Gentamicin was appropriate and whether the hospital breached the duty of care owed to our client, their patient.
The hospital defended its choice to administer Gentamicin because of our client’s history with urinary tract infections.
But we argued that many medical professionals have concluded that there is no safe dosage for the drug, and its use for her small procedure was misguided.
We provided independent expert opinion that there were safer and equally effective alternative antibiotics the hospital should have used.
The effects of Gentamicin are heightened when the body is dehydrated. As directed by the hospital, our client was fasting twelve hours prior to the procedure with no food or liquid. Hospital staff should have been aware of the enhanced risk posed to our client.
We also showed that the hospital failed in its duty of care to disclose and explain the risks of the Gentamicin to our client prior to the procedure.
Let us fight for you or your loved one
If you or a loved one have experienced the negative impacts of Gentamicin or poor medical treatment at the hands of a medical practitioner, please get in touch with one of our caring, expert, health lawyers about the options available to you.
Taking legal action can also help change health care practices and hold health care professionals to account so other people do not to have experience what you went through.
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Will changes, possible elder abuse and capacity issues | Our Client’s Story

When our client’s elderly sister made Will changes, removing her family and leaving her estate to a young couple she had just met, concerns of possible elder abuse were raised and her capacity to make those changes were called into question.
Fortunately, we were able to negotiate on our client’s behalf and bring about an agreeable settlement which saw our client, and his family, claim their rightful share of his sister’s estate.
Drastic Will changes
In 1999, an elderly woman (hereafter called Mrs X) and her husband executed Wills which left each other their estate if either was to predecease, following which the estate was to be divided equally amongst their siblings.
Nine years later, when her husband passed away, Mrs X was left with substantial assets, including their residential premises. Mrs X was somewhat self-sufficient, and her home was her prized possession.
In 2012, Mrs X was befriended by a young couple who subsequently moved into her home. Contact with her remaining family who resided interstate became less frequent. When her family were in contact via telephone calls or visits, they noted that Mrs X’s behaviour was a little unusual and her appearance was dishevelled.
Two years after the young couple moved in with Mrs X, she changed her Will, Power of Attorney (POA) and Enduring Guardian appointing and favouring them; effectively writing her own family out of the Will.
Concerns of financial elder abuse
Mrs X had avoided doctors for many years. A neighbour noticed that Mrs X had been left at home for substantial periods of time and did not know how to prepare meals. Following welfare concerns, the neighbour reported the situation to the Aged Care Assessment Team (ACAT) and Mrs X underwent a capacity assessment by a geriatrician where she was diagnosed with cognitive impairment and a disorder of the mind.
Our client made an application to the NSW Civil and Administrative Tribunal (NCAT) reviewing the appointments under the new POA and Enduring Guardian. It was determined that while the Tribunal could not comment on the capacity of Mrs X at the time of executing the POA and Enduring Guardian, the appointments were to remain.
Mrs X’s condition deteriorated significantly over the years resulting in the need for 24-hour care. She was placed in a nursing home and her residence was sold for a significant amount of money. The elderly woman remained in the nursing home until her death in late 2018. She left behind a significant estate.
Questions about capacity
Our client, concerned about his sister’s capacity at the time of executing the Will and potential elder abuse, placed a caveat on probate on the basis he wished to contest the validity of the later Will as he had a material interest being a beneficiary under the prior Will. Proceedings were commenced by the young couple, who were the executors of the estate, seeking that the caveat be removed, and probate be granted in respect to the later Will.
Despite family members having limited exposure to Mrs X’s deterioration over the years, there was no contemporaneous medical evidence to support the finding of capacity issues around the time of executing the later Will.
The law identifies that in order to determine whether a person has testamentary capacity, at the time of making a Will, the solicitor needs to satisfy the following:

Does the will maker understand the nature and effect of making a will?
Does the will maker know the nature and extent of assets held?
Does the will maker comprehend and appreciate the claims to which he/she ought to give effect?
Is the will maker affected by a mental disorder influencing the disposal of his/her assets?

In order to determine whether Mrs X had testamentary capacity, a request was made to review the file of the solicitor who drafted the later estate planning documents.
Unfortunately, there were limited notes kept on file and upon further request for disclosure the solicitor advised that the file had been destroyed as a result of a natural disaster some years ago. Accordingly, there was no certainty as to whether such steps were taken to satisfy the test for capacity of Mrs X at the time of writing her new Will.
Negotiating a successful outcome
With any litigation matter, there is a risk of being unsuccessful and in order to reduce the legal costs, and potentially devaluing Mrs X’s estate should the matter proceed to a hearing, the executor and our client came to a settlement in which both the young couple and family were to share the estate.
Thankfully, awareness of financial elder abuse is growing and increasingly there are steps being put in place to protect the vulnerable in our community.
If you find yourself in this situation or are aware of a loved one that is potentially exposed to these issues, please contact our Wills and Estates and Elder Law team for expert advice.
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Suffering in silence: Ignoring Women’s Chronic Pain

The 2020 Newcastle Writers Festival tackled the issue of women’s chronic pain in a discussion titled  How Our Bodies Shape Us featuring writers Gabrielle Jackson and Lee Kofman.
In her book, Pain and Prejudice: A Call to Arms for Women and Their Bodies, Jackson talks about how the medical profession fails women with chronic conditions, as the cause of their pain can often go undiagnosed for years or their pain is often dismissed as being “all in the head.”
Jackson says that part of the reason why we don’t understand chronic pain is because most sufferers are women. She says that when women come to doctors with their pain, “they are seen as complaining.” There is also an expectation for women to put up with pain: from menstrual pain to childbirth. By placing this unrealistic expectation on women, she says, society has subjected women to years of pain, and that not doing anything about it results in even more pain.
Unfortunately, at Catherine Henry Lawyers we see the same substandard healthcare too often. Most of the women who have received inadequate medical treatment come to us because they want their stories to be heard and they want the opportunity to rebuild their lives.
Our health law team focus on women’s health because, as Jackson pointed out, women are the biggest users of our medical system. Catherine Henry Lawyers team of medical experts have seen how misdiagnoses not only subjects a patient to years of suffering, but it can lead to death.
Jackson relayed the tragic story of Naomi Williams, a 27-year-old Wiradjuri woman who was 22 weeks’ pregnant with a son when she died of septicaemia in Tumut Hospital. The inquest heard that she made 20 visits to the Hospital and several doctors about her pain in the seven months before her death.
In a case brought in the Supreme Court of NSW as a result of improper sepsis treatment, Catherine Henry Lawyers successfully sought damages for our client who was misdiagnosed with gastroenteritis. The experts we engaged in this matter found that our client was actually suffering acute bacterial infection of the bloodstream at the time of discharge and was at high risk of harm, including death, in the event her condition remained undiagnosed and in the event she was not promptly administered antibiotics. By the time IV antibiotics were finally administered, our client had gone into septic shock and experienced multiorgan failure.
It’s not surprising that women with chronic pain conditions report a reduction in pain when they find a doctor that they can trust and who doesn’t simply dismiss their symptoms.
If you think that you are not getting the right medical treatment or if you or a loved one has experienced medical negligence, please get in touch with one of our caring, expert lawyers about the options available to you.
Taking legal action can also help change health care practices and hold health care professionals to account so other people do not to have to experience what you went through.
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Have your say – Plan to cut Australia’s stubbornly high stillbirth rate

An article last weekend in The Guardian newspaper again highlights the tragedy of Australia’s unacceptably high stillbirth rate.
It tells the story of a mother, Anne-Marie, whose son Xavier was one of six babies a day in Australia who are born still.
Australia’s stillbirth rate hasn’t changed for nearly two decades. More than 2,000 babies are stillborn each year. This figure is more than a third worse than the best-performing countries.
It’s pleasing then that there is action from the Federal government to cut the rate of still-births in late pregnancy by 20% through the National Stillbirth Action and Implementation Plan as well as initiatives such as the national Safer Baby Bundle.
The Safer Baby Bundle – modelled on European programs – is a suite of eLearning modules, workshops – all part of a campaign for pregnant women targeting five key areas. It provides information to both pregnant women and to clinicians.
What is stillbirth?
A stillbirth is defined as the delivery of a baby at between 20-28 weeks gestation with no signs of life. Neonatal death is different – the death of a baby within the first 28 days of life.
Read more in our stillbirth and neonatal death fact sheet
Causes of stillbirth and impacts on parents
It is only in the last few years that intensive research has begun into stillbirth.
Late last year, the Federal government announced an investment of $52.4m for perinatal services and support and the funding of a specialist unit – the Centre of Research Excellence in Stillbirth within the University of Queensland.  One of the Centre’s goals is to “reduce the number of stillbirths that occur after 28 weeks’ gestation, and to improve the quality of care received by families whose baby is stillborn”.
Read more in this article by our Senior Health Lawyer, Linda Crawford, who was a midwife before becoming a lawyer. Linda wrote this article to mark International Pregnancy and Infant Loss Remembrance Day held each year in October.
Have your say on the National Stillbirth Action and Implementation Plan
The draft national stillbirth action and implementation plan – released in February 2020 – says developing a nationally consistent stillbirth auditing system, and supporting continuity of care, as goals that will have a substantial impact on tackling Australia’s stillbirth rates.
The plan’s priority areas, action areas, goals and implementation tasks were developed based on a Senate Select Committee Report, the outcomes of a Stillbirth Roundtable held with key stakeholders in February 2019, and a document prepared by the Stillbirth CRE and Stillbirth Foundation Australia.
The plan is open for public consultation. You can make comments before July 2020 here.
The law can help provide answers and cut still-birth rates
The law can play a vital role in helping parents get vital answers when they lose a child to still-birth. From the many cases that we handle involving still-birth, the majority of parents feel dissatisfied with the information and support provided by the health system. Lawyers can help gain the documents and answers on behalf of those families.
The law can also be a useful tool to prevent these tragic events from occurring. In our experience the trauma or death is often avoidable and a result of negligence. Holding those responsible accountable for any negligence ensures lessons are learned and changes to procedures are made. Learning what really happened and whether the death was avoidable – or not – helps give families a reason for the trauma and loss they have experienced and assists with the process of “moving on”.
There are a number of hurdles though for families seeking answers, justice or redress for the loss of their child.  The Coroner cannot investigate stillbirths because a baby must take an independent breath before a referral can be made to the Coroner.
Establishing that the death of the baby was due to negligent medical care can be difficult. Parents often refuse consent to an autopsy and later regret it. Sometimes an autopsy is the best chance for obtaining critical information about what happened to the baby.
To succeed in a negligence claim, one or both of the parents must be able to show not only that the stillbirth was avoidable but also that at least one of the parents has developed a recognizable psychiatric or psychological injury as a result of the death of their child. Whilst in most cases we have dealt with it has not been difficult to meet this legal threshold, it is important to know that there is no compensation for the loss of the child itself.
Our client’s stories
Despite these hurdles, our expert and caring health law team has settled many cases for families who have lost a child to still birth.
We successfully resolved a claim for negligence leading to stillbirth caused by a hospital’s failure to diagnose and treat her pre-eclampsia and HELLP (Haemolysis, Elevated Liver Enzymes and Low Platelet) which tragically resulted in the stillbirth of her daughter. Read the story here.
We successfully settled another client’s claim for negligence for mental harm caused by mismanagement of her pregnancy which resulted in the tragic stillbirth of her daughter. Read the story here.
Let us fight for you or your loved one
If you or a loved one has experienced injuries as a result of a pregnancy complication, stillbirth, neonatal death or birth trauma, please get in touch with one of our caring, expert, female medical lawyers about the options available to you.
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COVID-19 highlights the importance of living wills

The COVID-19 pandemic is demonstrating the importance and usefulness of advanced care directives (ACDs) – sometimes referred to “living wills”.
We have been talking about ACDs for years but, as the pandemic continues, they are a key focus for those working in the public health, palliative care and aged care sectors. They should be a focus for many Australians.
An ACD, or living will, is a document (it can be as simple as a card in a wallet) that clearly sets out a person’s wishes about the type of medical care that person wants – or doesn’t want – and preferred outcomes in the case of an (unexpected) life threatening injury or illness. The document can also nominate a substitute decision-maker.
ACDs give people a voice. ACDs also provide guidance to family, clinicians and other health professionals when faced with decisions about a person’s care.
Health professionals and family members must follow a valid ACD – to do otherwise can lead to criminal or civil sanctions. ACDs are given recognition at common law (except in Queensland) and in legislation in states and territories except for NSW and Tasmania. The law is different in each jurisdiction but in NSW, an ACD made in another state or territory remains enforceable.
Clinicians have pointed out that people incorrectly believe that every person who contracts COVID-19 will be in hospital and placed on a ventilator. Some people neither want nor need to be in a hospital environment. And in the situation of a rapidly deteriorating patient needing palliative care, this can be provided anywhere – in a home and in hospital. One less person going to hospital reduces demand on precious ventilators.
Clinicians need to be able to access a very clear plan for how to proceed when faced with a rapidly deteriorating patient. ACDs provide such clarity and are of particular value when having to make decisions about hospitalisation versus home care. A living will can be placed in your My Health Record.
Well run aged care facilities start advance care planning with residents and their families when the resident comes to live there. But the need for an ACD can occur at any stage of life.
COVID-19 is a reminder to us all about the need to have the conversation about treatment options at the appropriate time, and the need for an ACD.
Contact us today to discuss how we can assist you with an ACD or any other estate planning documents.
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