Two new major reports for the Royal Commission into Aged Care Quality and Safety by Flinders University researchers show that Australia is lagging well behind other overseas countries when it comes to aged care funding, staffing and innovation. The reports identify many opportunities for improvement. They reinforce the major problems, and the need for major changes to be made to Australia’s aged care system, that have been highlighted over and over again by many experts and aged care advocates.
One report examines how aged care is delivered in 22 countries and the types of innovative approaches used. Denmark and Sweden are identified as countries with good quality long term care systems. Both have government expenditure on long term care for older people greater than 4 per cent of GDP. Both countries fund long term care through local authorities with federal grants and local taxes. The focus is on providing long term care in people’s homes with a moderate proportion of care recipients in residential care institutions.
In contrast, Australia spends around only 1.2 per cent of GDP on long term care – sadly among the lowest of the countries in the study. The big difference between Australia and other countries is our approach to long term care. The researchers found that the best performing countries focus on “ageing in place” whereas we focus on residential care. Around 45 per cent of Australia’s long term care recipients are in residential institutions.
The report focuses on staffing levels in our residential institutions which are – unsurprisingly – at the lower end of the range internationally – for both total staffing and nursing. The report rightly recommends increased transparency in staffing levels and mandatory training or registration of care workers to improve professionalism and care. Mandatory staffing ratios – as are in place in hospitals and day care centres – would help address that issue.
Australia scores less well than many for quality of coordination between long term care and other services including health care. This is not surprising given the appalling care I often see in my work representing families of aged care residents and those shared at Royal Commission hearings.
Many other better performing nations have multiple levels of responsibility for regulation of quality. Here we have a single central regulator, the Aged Care Quality and Safety Commission, which lacks independence and has a poor investigative model and a multiplicity of functions.
An increasing number of countries use mandatory reporting and provide public quality of care data to empower consumer choice and drive improvements in quality. We have no such system in Australia which leaves aged care facilities able to hide poor performance and older people and their families in the dark when comparing facilities.
The report authors note the need to think of a care system from the social rather than just economic perspective. The problem is our Aged Care Act. It is weighted in favour of providers and has promoted the privatisation of services, allowing profits to prevail over quality of care. It needs to be rewritten, before funding is increased to the sector.
One of the reports examines approaches to aged care that are not widely available in Australia. The Commission is discussing models for and approaches to care at an upcoming workshop in Adelaide. Models being discussed are increased support for home-based care and informal carers; individualised training for people with dementia living at home and their carers; system navigators to facilitate streamlined access to care for people with dementia or other chronic health conditions; small, domestic residential care homes; respite services aligned to people’s backgrounds, such as farm settings for people with dementia living in agricultural areas; telehealth communications; and ‘health smart homes’ which monitor a person’s health conditions and signs they need assistance. This is important work and these initiatives will improve care for older people.
But, here we have more reports reinforcing the issues highlighted in the Commission’s hearings and the countless inquiries and reports produced over the past two decades. Our aged care system is broken and better performing countries have different approaches to aged care provision, staffing, and regulation. The Government must start to act on these matters before the Royal Commission’s final report is handed down at the end of the year.
This opinion piece appeared in the Newcastle Herald on Saturday 8 February 2020.
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Section 57(1)(d) of the Succession Act 2006 (NSW)[1] (‘the Act’) allows for a former spouse to make a family provision claim against an estate (in other words, contest a will). However, a former spouse must identify factors (past or present) that warrant making an application, as well as establishing the need for additional provision from the estate for the purposes of maintenance, education and advancement in life.[2]
When determining a former spouse’s eligibility to make a claim, the Court is to consider a range of factors as outlined in Section 60 of the Act.[3] These factors include (but not limited to):

The nature of the relationship between the former spouse and the deceased;[4]
The obligations and responsibilities owed by the deceased to the former spouse;[5]
The former spouse’s financial circumstances;[6]
Any disability suffered by the former spouse;[7]
Any provision made to the former spouse during the deceased’s lifetime.[8]

It is evident that there is not a direct entitlement for a former spouse to make an application, and the Court will exercise their discretion when determining the weight that should be applied to each consideration.
The recent decisions of Lodin v Lodin[9] sheds further light as to how Courts should approach family provision claims made by former spouses.
The factual circumstances of Lodin v Lodin were as follows:

The deceased was a doctor and had met the former spouse when she was a patient at his practice in 1984.
They had a daughter together born in 1986.
The former spouse and deceased married, and they commenced cohabitation in 1988.
The former spouse and the deceased separated in 1990, and eventually divorced in 1995.
Following separation, the former spouse made a complaint to the professional standards board on the basis that the deceased had relations with the former spouse who was initially his patient.
Family law property division proceedings were commenced in 1992, and it was ordered that the former spouse was to receive assets in the total of $164,500.00, representing 38% of the asset pool. The former spouse resumed cared for the daughter, and the deceased maintained his obligation with payment of child support.
In 1994, the former spouse commenced proceedings in the Common Law Division seeking damages relating to the deceased’s breach of his professional duties, however these proceedings were discontinued in 1998.
The former spouse was involved in motor vehicles accidents in 1997, 2000 and 2008 in which she received compensation. She had been in receipt of a disability pension since 2000 following the injuries sustained in that motor vehicle accident.
The deceased died in 2014 without a Will, leaving an estate worth approximately $5,000,000.00 to his daughter.[10]

The former spouse made a family provision application against the estate. In first instance, Brereton J of the Supreme Court found in favour of the former spouse, ordering the estate to pay her a legacy of $750,000.00.[11] Bereton J provided the following reasons:

The deceased had a moral responsibility to provide testamentary provision to the former spouse.[12] It was considered unfair that the daughter would receive a large estate without any provision to the former spouse.[13]
The deceased’s conduct during and following separation contributed to psychological trauma suffered by the former spouse, and ultimately to her current financial position. [14]
The former spouse allowed the deceased to financially prosper by resuming care for their daughter.[15]

The decision of Brereton J was then overturned by Basten JA, White JA and Sackville JA of the Court of Appeal. [16]The reasons for the Court of Appeal’s decision was as follows:

The primary judge erred in finding that a moral responsibility existed on the basis that the estate was large, and the sole beneficiary was a member of the deceased’s family whom the former spouse had responsibility for.[17]
While it was alleged that the former spouses persecutory conduct was explained by a psychological condition caused by the deceased, there was no evidence to support this finding.[18]
The deceased and former spouse separated quite some time ago, and their relationship was short lived.
There was no evidence to suggest that the deceased’s conduct caused the former spouses current financial position.[19] The Family Court orders relating to property division were considered significantly relevant. The deceased substantially provided for the daughter’s maintenance and education, and he complied with his child support obligations. [20]
The Court also considered other unrelated factors that contributed to the former spouses’ financial position. These considerations included the former spouses’ prior motor vehicle accidents, and her decision to institute and maintain legal proceedings without benefit.[21]

While the decisions have explored the concept of ‘factors warranting the making of an application’ by a former spouse, there is still judicial uncertainty as to how the Courts are to approach such applications.
In late 2018, the High Court rejected the application for leave to appeal.
[1] Succession Act 2006 (NSW) s57(1)(d)   
[2] Succession Act 2006 (NSW) s59(1)(a)-(c)     
[3] Succession Act 2006 (NSW) s60(2)     
[4] Succession Act 2006 (NSW) s60(2)(a)   
[5] Succession Act 2006 (NSW) s60(2)(b)
[6] Succession Act 2006 (NSW) s60(2)(d)   
 [7] Succession Act 2006 (NSW) s60(2)(f)   
[8] Succession Act 2006 (NSW) s60(2)(i)
[9] Lodin v Lodin [2017] NSWSC 10; Lodin v Lodin [2017] NSWCA 327.
[10] Lodin v Lodin [2017] NSWSC 10 [1]-[32].
[11] Lodin v Lodin [2017] NSWSC 10 [102].
[12] Lodin v Lodin [2017] NSWSC 10 [51]-[66], [99]
[13] Lodin v Lodin [2017] NSWSC 10 [86]-[87]
[14] Lodin v Lodin [2017] NSWSC 10 [81]-[85]
[15] Lodin v Lodin [2017] NSWSC 10 [86]
[16] Lodin v Lodin [2017] NSWCA 327 [174]
[17] Lodin v Lodin [2017] NSWCA 327 [141]-[145]
[18] Lodin v Lodin [2017] NSWCA 327 [146]-[160], [166]
[19] Lodin v Lodin [2017] NSWCA 327 [163]
[20] Lodin v Lodin [2017] NSWCA 327 [164]
[21] Lodin v Lodin [2017] NSWCA 327.
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Following separation, most people want to sort out their property settlement as quickly as possible and get on with their life. Here are seven steps to achieving that:
1 – See a specialist family law solicitor as soon as possible. You need a solicitor with the experience and confidence to give you guidance as to the likely outcome.
2 – Through your solicitor, promptly provide financial disclosure to your ex. This may include obtaining:

Appraisals of the home
Appraisals of vehicles (eg through redbook.com.au)
Up to date super statements
Recent bank statements
Your last 3 tax returns
Your last 3 notices of Assessment

3 – Through your solicitor, promptly requesting financial disclosure from your ex.
4 – Once disclosure has been made, getting advice from your solicitor as to a fair outcome.
5 – Attending private mediation. The key features of mediation are:

Mediation usually involves 5 people attending: the mediator, you, your lawyer, your ex and your ex’s lawyer.
The mediator assists you and your ex to reach an agreement. They don’t decide the outcome.
Mediation can be face to face or shuttle (or a combination). Shuttle mediation is where you will not meet your ex-partner/spouse face to face.  This method is often preferred where there is a history of family violence in the relationship.
If agreement is reached, then it is usually formalised by a court order made on a later date.
A properly prepared for private mediation has a high rate of success. It will save you time, and the cost and emotional stress of court proceedings.

6 – Attending private arbitration. If you go to mediation and don’t reach an agreement, or if you decide that mediation is not appropriate, then you can have your matter decided by an arbitrator. The key features of arbitration are:

It proceeds much a like a court hearing.
Getting to a quicker resolution than court proceedings. The time frame from agreeing to arbitration to getting the decision will usually be about 6 months. The time frame from deciding to commence court proceedings to getting the decision will be about 2 years.
It is generally cheaper, notwithstanding that you pay 50% of the arbitrator’s fee.

7 – Be sensible! Make a sensible proposal. Accept a sensible proposal. Follow advice. Promptly provide requested documents.
There are no guarantees to a speedy resolution, but following these seven steps will increase your chances!
For more information about mediation read our article A Guide to Family Law Mediation
 
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Following separation, a spousal maintenance order can be made by the Court for one party to provide financial assistance to the other party. In this article we talk you through 10 quick facts to help demystify the area of spousal maintenance.
1 – Spousal maintenance is a payment from one spouse to another, following the breakdown of a marriage or a de facto relationship.
2 – You must apply for spousal maintenance within 12 months of the date of your divorce, or within 2 years of the breakdown of a de facto relationship.
3 – There are two elements to spousal maintenance:

that one party cannot support themselves adequately due to having the care of a child under 18, incapacity to gain meaningful employment or any other adequate reason; and
the other party has the capacity to pay.

4 – The court will look at many factors when considering whether or not to order spousal maintenance, including an in depth look at all of your expenses.
5 – The court may award spousal maintenance to cover all of your expenses, or some of your expenses.
6 – Spousal maintenance can be a periodic or a lump sum payment of money, or it can be also paid by transfer of property.
7 – You do not have to declare your spousal maintenance payments as income to the Australian Taxation Office, however you do have to declare your spousal maintenance payments to Centrelink and your family payment benefits may be reduced.
8 – Spousal maintenance can continue as long as ordered.
9 – Spousal maintenance can be varied by court order.
10 – Spousal maintenance will terminate on the death of a party or by the person receiving spousal maintenance re-marrying.
For more information on spousal maintenance from Catherine Henry Lawyers click here. For information from the Family Court of Australia click here.
 
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Spousal maintenance is financial support paid by a spouse to their former partner in circumstances where they are unable to sufficiently support themselves. According to the Family Law Court of Australia “under the Family Law Act 1975, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.” This case study will look at how the support may be determined.
Consider this example:
John and Mel have separated. They have a 6 year old son, Harry. Harry lives with Mel and spends time with John three nights per fortnight.
Mel works two days per week and earns $400 gross per week. She also receives a Centrelink payment of $500 per fortnight. She receives child support of $200 per week from John as assessed by the Child Support Agency.
Mel’s simplified weekly expenses are:

Tax: $50
Rent: $500
Groceries: $150
Utilities: $100
Fuel: $100
Entertainment: $250
Hairdressing: $50
Total: $1,200 per week

John works full time and earns $2,115 gross per week.
John’s simplified weekly expenses are:

Tax: $540
Mortgage: $600
Groceries: $100
Utilities: $80
Fuel: $50
Entertainment: $150
Child support: $200
Total: $1,720

As a first port of call we look to Mel’s need. This includes looking at Mel’s income. Both the Centrelink payment and the child support payment are not counted. Her income is $400 per week. There may well be consideration as to whether Mel has the capacity to earn a higher income, particularly as Harry is at school. For the purpose of our example, we will assume that it is considered that, due to her primary care of Harry, $400 per week is a reasonable figure to assume as Mel’s income.
We then look at Mel’s expenses. It is highly likely that the amounts of $250 per week for entertainment and $50 per week for hairdressing are challenged as being unreasonably high. Let’s assume that they are factored in at $100 per week & $10 per week instead. Mel’s expenses are therefore $1,010 per week. Her need is therefore $710 per week –  which is calculated as expenses minus income equals need (i.e. $1,010 – $400).
We must then look at John’s capacity to pay spousal maintenance.
He has a capacity of $395 per week which is calculated by income minus expenses (i.e. $2,115 – $1,720). It may be that his entertainment expense is also reduced to $100 per week if need be. If so, his capacity becomes $445 per week (i.e. $2,115 – $1,670).
The result is that John pays Mel spousal maintenance of $445 per week. It may be that this payment is for a specified period of time, until Mel is able to retrain and obtain additional employment and therefore a higher income from which she can pay her own expenses.
For the background to spousal maintenance, we suggest that you read our article on spousal maintenance here.
If you need help with your family law matter, get in touch with our experienced family law team today at (02) 4929 3995 or contact us.
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Mediation is a great method of resolving a dispute in both parenting and property matters in family law.  Two of the biggest advantages of family law mediation are the time that it will save you going through the court system, and the cost is significantly less.  Mediations which have been properly prepared for have a high rate of success.
Mediation involves an independent third person (a mediator) assisting the parties to resolve a dispute.  The mediator does not determine the outcome.  This gives you and your ex-partner/spouse greater control of the outcome, rather than having someone else (eg, a Judge) determine who gets what.
The mediation can take place face to face, or it could be a shuttle mediation, where you will not meet your ex-partner/spouse face to face.  This method is often preferred where there is a history of family violence in the relationship.
A mediation typically lasts for 3-6 hours.  Some mediations go for longer than this, so it is a good idea not to have anything else scheduled on the day of your mediation.
Before you get to the mediation for a property settlement it is important that both parties exchange full and frank financial disclosure and sort out any valuation issues.
A family law mediation (except for a shuttle mediation) typically begins with a joint session.  In property matters, the parties, their legal representatives, and the mediator discuss the assets and debts of the relationship, the contributions made by both parties and any future needs issues (such as care of the children).  In a parenting matter the joint session will discuss any issues regarding the parents and the care of the children.
Some parenting matters may benefit from a ‘child inclusive’ mediation.  In this, a counsellor will speak to the parties and the children prior to the mediation, and then attend the mediation to aid in reaching a resolution which benefits all parties, including the children.
After the joint sessions, each party will usually go into a separate room with their solicitor and the mediator will go between each room, exchanging offers between the parties and assisting them to resolve their dispute.
If agreement is reached it is generally not formalised on the day.  The parties may sign a document setting out the agreement, but it is not binding until Court Orders are made, or a Financial Agreement is entered into.
If agreement is not reached at the family law mediation then you will need to either continue negotiating with the other party or commence court proceedings.  If your mediation was for parenting arrangements, you will be issued with a section 60I certificate which you will need to attach to your application to the Court.
Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995 or [email protected] or visit www.catherinehenrylawyers.com.au
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The Aged Care Royal Commission into Quality and Safety held a hearing in Canberra from December 9 to 13.
The Canberra hearing inquired into interfaces between the aged care system and the health care system, including both Commonwealth and state/territory programs. The Commission examined whether older people, particularly those living in residential aged care facilities, are able to access the health services they need as they age. And the answer was, NO.
A need to improve access to primary health care services in aged care – palliative care
During the five days of hearings, the Commission looked at the need to improve access and consistency in primary health care services, particularly access to general practitioners (GPs), nurse practitioners and primary care nurses for older people in residential aged care.
Evidence presented suggested a need identified for improved data collection, communication and planning in relation to the health needs of older people accessing aged care services. A number of witnesses spoke of the problems their loved ones faced when they were dying. One witness spoke of how her mother’s aged care facility was not equipped for dying with staff becoming upset about her mother’s decision to refuse treatment. Her mother was no longer eating and rarely conscious but staff would suggest getting her up for a shower.
Several palliative care nurses told the Commission that these experiences were not unusual despite the fact that aged care residents should be able to get care that matches their symptoms..
The evidence has prompted calls for proper access to state or territory funded palliative care services for people living in residential aged care.
Dementia and pain
The Commission also heard disturbing evidence that many people with dementia – which is a large proportion of aged care residents – are suffering pain unnecessarily. There is a misconception that people with dementia don’t feel pain, and therefore and a reluctance to use opioids.  One expert told the Commission that there are many tools available to help in assessing dementia patients and no excuse for not caring for them properly.
Aged care facilities becoming more like hospitals but not
Ahead of the hearing the chief executive of the Councils on the Ageing (COTA) Australia, Ian Yates, said access to such services among older Australians was poor and subject to some of the ageism that the royal commission had already called out. He said older Australians in aged care were often left with a rushed visit from a visiting GP. Many doctors are calling for a new model that doesn’t treat health care for aged care residents as an afterthought.
“Once a person is in residential aged care, there is a strong tendency across Australia for them to not have the same kind of access to the health system as they used to when they were living in the community,” he said.
Evidence from some witnesses showed the link between poor health care and insufficient staffing.
“My experience has been that unless people who can’t speak on their own behalf have someone to advocate for them, then they’ll be overlooked and basically neglected because of insufficient staffing levels,” one family member of an aged care resident said.
There were many stories during the hearing of poor care. In one case a man who complained of chest pain – and that he was having a heart attack – was dismissed by staff.  They told him it was “all in his head” and even told his family there was no point in calling an ambulance for him as it wouldn’t come. His family took him to an outside GP where it was confirmed he was having a heart attack.
“He shouldn’t have to beg staff for it or he shouldn’t have to wait until we’re able to advocate for him,” his daughter said on the issue of her father asking for Panadol.
Advance care directives in the spotlight
An Advance Care Directive is a document people can create to give instructions to people about their care when they are no longer able to communicate.
As the Royal Commission heard, the details that are important because they can impact the way death unfolds in an aged care facility.
The evidence presented shows the importance of people getting expert help in preparing an appropriate and effective Advance Care Directive. Discussing the directive with family is important so that they can ensure an aged care facility and health practitioners are honouring the directive. (For more information you can read my blog – “How the dying can ensure their wishes are met – Advance Care Directives”.
Next hearing
The Royal Commission into Aged Care will take a break over Christmas. More hearings will be scheduled for 2020.
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Christmas is supposed to be a time for family and friends, filled with giving, peace and goodwill, but it can also be the loneliest and most stressful time of the year. So it’s no coincidence that once the mistletoe gets taken down, January becomes peak season for relationship issues.
It’s little wonder. Christmas coincides with travel and school holidays and this can bring financial stress, family feuding, fatigue, alcohol use and the general mayhem and emotions of an extended family get together. Add in the stress of the big post-Christmas clean-up and the festive season can be the last straw in an already strained relationship.
So if you’re experiencing relationship problems how do you get through the next few months?
Here are five tips for surviving a separation in the holiday season from our family law team:

Don’t get overwhelmed trying to do everything at once. Put priorities in place and deal with them one at a time. Secure your personal safety first if needed, then organise accommodation, get financial assistance, and seek legal advice.
If you have children, get them a ‘normal’ routine as soon as possible, including keeping in touch with the other parent (where possible). Separation is incredibly stressful for the adults involved, but for children, it can be totally bewildering.
Remember it’s OK to ask for help. Recognise when you need legal or practical assistance, and act on it as soon as you can. Experienced lawyers can give vital advice and refer you to appropriate services before things get out of hand. Counsellors can help you to avoid an emotional meltdown. And don’t hesitate to call on trusted friends and family for support.
Take stock. Go through your financial records and other paperwork to get a true picture of your situation. What is your current income? Can you afford your living expenses? What are your assets worth? What debts are you responsible for? Gathering this information will help your lawyer to advise you and it will also give you a much-needed sense of control and the ability to start planning for your future.
Forgive yourself. Separation is not a sign of your failing as an individual. Unfortunately it is the reality for many people. About 46% of Australian marriages end in divorce. A relationship takes two people to work, and two people to fail.

For further information or to arrange a consultation contact Catherine Henry Lawyers on 02 4929 3995.
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Christmas is a joyful time for many, but as we know navigating the holiday season can be fraught with challenges. Whilst financial elder abuse may not be top of mind, often complex family dynamics sit alongside pressures to overspend, and when a dousing of alcohol is added to the mix, these combined forced may serve to create the perfect storm for our most vulnerable.
As both our ageing population and house prices continue to rise, increased pressure is being placed on older Australians, often by their adult children, to provide financial support to fill the gaps of modern life. This pressure has been dubbed ‘inheritance impatience’ and is a form of financial elder abuse.
According to the World Health Organisation (WHO), “elder abuse can take various forms such as financial, physical, psychological and sexual. It can also be the result of intentional or unintentional neglect. WHO estimates that 15.7% of people 60 years and older are subjected to abuse.”
For some, Christmas is a difficult time. Family members may feel stressed or believe they are entitled to access part of their parents’ wealth early. As a result, older people can fall victim to family pressure at gatherings around the holidays.
Indeed, according to The Senior, “financial and psychological are the two most common forms of elder abuse and 60 per cent of perpetrators are sons and daughters.” These adult children are often relying on the assumption that in time the money will be theirs, and they are simply speeding up the process by approaching parents who are still alive.
Financial elder abuse is complex and can range from Power of Attorney’s placing their own interests before those whom they are acting for, to pressuring an older person for a loan. Christmas is a time where we must protect the most vulnerable in our communities. Keep an ear out for conversations where older persons are being persuaded to make financial decisions that don’t serve to benefit them. Keep a record of events and, if appropriate, help the older person seek assistance from a relevant organisation.
If you or someone you know is a victim of elder abuse call the Ageing and Disability Abuse Helpline (previously called the Elder Abuse Helpline and Resource Unit) on 1800 628 221. For further reading visit our blog Should reporting of elder abuse be mandatory?
 
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The Royal Commission in to Aged Care Quality and Safety recently held a hearing in Hobart and conducted a Community Forum in Newcastle.
Hobart hearing
The Hobart Hearing inquired into the operations of selected Approved Providers that operate residential aged care facilities in Tasmania and elsewhere in Australia.
The Commission heard more stories of neglect.
Neville King was name an Officer of the Order of Australia in 2018. He is credited with helping develop and spread the widely-used cognitive behaviour therapy. The 74 year old has Huntington’s disease and moved into Glenara Lakes aged care home after his wife’s health also deteriorated.
Dr King’s wife said at the hearing that the care provided to him was so bad “if he was a dog, she’d call the RSPCA”. His condition deteriorated so badly at the facility that he was once found on all fours, rendered delirious by dehydration. Mrs King had to repeatedly push staff at the facility to properly hydrate her husband.
The hearing also heard that older Tasmanians are more likely to be impacted by failing aged care services than mainland seniors because the state has the highest proportion of seniors coupled with a small number of services. Tasmania’s aged care workforce is under pressure.
In another example of the inadequate regulation of the aged care sector, October 2018, the quality agency found Bupa South Hobart failed to meet 32 of the 44 expected outcomes, and only met four of the 17 health and personal care expected outcomes, but continued to operate.
Staff shortages and turnover were also highlighted with a story of one resident 90-year-old resident assisting a 90-year-old blind resident to visit the bathroom. That same resident was also looking after her husband and taking on roles that staff were expected to do including dressing him, assisting with incontinence, washing clothes and making their bed, according to her daughter. The daughter said her parents were often waiting 20 to 40 minutes and in one instance did not get a response at all when using the call bell.
Former staff attested that the model of care at the facility had undergone a transition that resulted in a reduction of staff and nursing hours.
There were also horror stories about Yaraandoo Hostel.
Senior Counsel Assisting the Commission summarised the evidence. It was noted that, in the context of the case studies, the provision of quality care had been insufficiently prioritised in favour of financial considerations, with troubling and disturbing consequences. A familiar story!
Aged Care Royal Commission Newcastle Community Forum, November 27
Meanwhile, people from key regional NSW areas including Newcastle, Lake Macquarie, Hunter Valley and the Mid-North Coast had the opportunity to provide views to Commissioner Lynelle Briggs AO at a community forum in Newcastle.
I was privileged to speak in my capacity as an aged care lawyer and advocate as well as the Australian Lawyers’ Alliance spokesperson on aged care. My speech is here. You may also wish to read the ALA media release here or the opinion piece I wrote for the Newcastle Herald following the release of the Commission’s Interim Report here.
I said to the Commissioner that through my aged care work over the course of the last decade, it is clear that the regulatory regime currently in place is not working. The cases of substandard clinical care I have seen demonstrate failure in governance, accountability, policy and the regulatory framework.
I strongly support the statement made in the Commission’s interim report – that a “fundamental overhaul of the design, objectives, regulation and funding of aged care in this country is required”.
There needs to be an independent tribunal – along the lines of the NSW Health Care Complaints Commission – to hear complaints of substandard care with functions including the hearing of complaints with powers to issue fines; the power to cancel accreditation; to publicly reprimand providers; and to order monetary compensation. Hearings could be conducted by the NSW Civil and Administrative Tribunal. We also need a new Aged Care Act – one that ensures transparency and accountability.
Community forums are another way that members of the public can engage with the Commission. Forums are taking place in a number of locations around the country. The forums are an opportunity for members of the public to hear about the work of the Commission and to offer their ideas on the challenges and strengths of aged care. This is also a chance for anyone to propose ideas for improvement.
Next hearing
The next hearing will be in Canberra on December 9 to 13. The Canberra hearing will inquire into interfaces between the aged care system and the health care system, including both Commonwealth and state/territory programs. It will examine whether older people, particularly those living in residential aged care facilities, are able to access the health services they need as they age.
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On Wednesday 28 November, our Principal, Catherine Henry, spoke at the Aged Care Royal Commission’s Newcastle Community Forum. Her statement follows.
I’d like to begin by acknowledging the traditional owners of the land on which we meet today – the Worimi and Awabakal people – and pay my respects to elders past, present and emerging.
I’m pleased to have the opportunity to make a short statement to the Commission.
I am a health and aged care lawyer practising in Newcastle. For the last 10 years, I’ve been involved in the legal aspects of aged care – principally handling negligence cases against aged care facilities.
I am also the national spokesperson on aged care issues for the Australian Lawyers Alliance – a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual. I was involved in the writing of its submission to this Commission.
Here in the Hunter, we have a significant population of elderly people.
We’ve had more than our fair share of aged care horror stories. Recently, sanctions have been imposed on aged care facilities with significant local media attention – Tinonee Gardens and the Bethel aged care facility.
I acted for two of the families in civil actions against Summit Care. There were incidents involving appalling clinical care at its residential aged care facility in Wallsend. AIN, Gary Davis, was ultimately convicted of the murder of two aged care residents and the attempted murder of a third due to lethal injections of insulin.
The ABC 4 Corners programme featured two Hunter residents – both are clients of my firm.
I’m of course mindful of the fact that we have many aged care facilities across the country that provide good quality care. The public just needs to know how to find them.
My focus in this statement is on the legal and regulatory aspects of aged care.
I agree with the statement made by the Royal Commission in its interim report – that a “fundamental overhaul of the design, objectives, regulation and funding of aged care in this country is required”. The cases I’ve worked on show failures in governance, accountability, policy and the regulatory framework.
The current system places undue focus on internal complaint mechanisms. The Aged Care Quality and Safety Commission and the Government funded Older Persons Advocacy Network still direct complainants back to their service providers. This practice fails to properly recognise the implicit threat of reprisal. In my experience, reprisals often occur.
Every client in my aged care practice – family members of aged care residents – has reported negative experiences with the Aged Care Quality and Safety Commission and been mindful of its lack of independence.
We need a new Aged Care Act – one that ensures transparency and accountability. The current Act does not use the terms “regulation” or “regulatory system” in relation to compliance systems. It has nothing meaningful to say about staffing of facilities – often put at the front and centre of aged care reform issues. All the predictions of those speaking against the introduction of the Aged Care Bill back in 1997 have been realised. Then Senator Gibbs described the new legislation as a “reckless act” by a government captured by the private nursing home lobby.
The Aged Care Quality and Safety Commission – apart from lacking independence – is a poor investigation model. It has a multiplicity of functions – accreditation, assessment, monitoring, compliance and complaints management for all Australian care providers.
The Australian Lawyers Alliance and I recommend the introduction of an independent tribunal to hear complaints of substandard care. Its functions should include: the hearing of complaints with powers to issue fines; the power to cancel accreditation; to publicly reprimand providers; and to order monetary compensation. A suitable model is the NSW Health Care Complaints Commission. Hearings could be conducted by the NSW Civil and Administrative Tribunal.
Currently consumers are not provided compensation unless they undertake civil litigation on a private basis. The managers and boards of residential aged care facilities should be held personally accountable when standards are not met. It’s not sufficient to revoke accreditation only to have it re-conferred in a subsequent accreditation inspection (as this Royal Commission has heard in evidence). Those who suffer as a result of unarguable clinical negligence are entitled to compensation.
There are clear benefits of common law litigation in maintaining professional standards in the aged care industry. In my experience, the families of residents are not so much concerned with the level of compensation as sending an effective message to the system that has failed to meet community expectations and to provide a reasonable level of care to one of society’s most vulnerable groups.
Image: Catherine Henry with geriatricians Dr John Ward and Dr Kevin Grant
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Leading health and medical lawyer Catherine Henry and her firm have both been recognised in the prestigious Doyles Guide lists of NSW’s top medical negligence and malpractice compensation lawyers and law firms.
Catherine Henry Lawyers is one of 12 firms practising within the areas of medical negligence and malpractice matters in the NSW legal market who have been identified for their expertise and abilities in these areas.
Ms Henry is one of 17 solicitors to be recognised. She is one of only two lawyers in the list that are based outside of Sydney.
It is the third year in a row that Ms Henry been recognised by Doyles Guide. She said it is an honour to be given such high praise from within the industry.
She said the recognition given both to her and her firm was a result of a strong team at the firm. It was also significant for those living in rural and regional NSW to have strong and specialist representation.
“It is really important that people who have experienced poor healthcare in regional areas have access to the highest quality representation,” Ms Henry said.
“My team and I are encouraged to continue our work in giving people robust representation and help them obtain justice, redress, and compensation,” she said.
“We are seeing increasing numbers of enquiries across all areas including reports of and cases involving rogue doctors in hospitals and private practice. Negligence and abuse in aged care facilities is also very important work.”
“These terrible situations continue to occur more often than not because of poor regulation or enforcement of standards. Health care providers can’t be allowed to get away with unacceptable care. ”
“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 has three decades of experience in the field of plaintiff medical negligence.
The lists were released in November 2019. Doyle’s Guide is an independent body that rates, ranks and recommends Australian law firms based on extensive interviews with clients, peers and relevant industry bodies.
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This week, Her Honour Justice Katzmann SC of the Federal Court delivered her judgement in Kathryn Gill & ORS v Ethicon Sarl & ORS, a class action against Johnson and Johnson in respect of pelvic mesh used to repair pelvic organ prolapse in 1,350 women in Australia. This class action was commenced approximately two years ago.
Katzmann J held amongst other things that, “the applicants made out their case.” This judgement is a “win” in Australia given that Johnson & Johnson has paid more than $240 million already in settlements in the United States.
Bloomberg reports that Johnson & Johnson… “has paid more than $240 million in settlements over claims it hid risks and marketed [vaginal mesh] too aggressively to U.S. In addition, [a] California judge… is weighing whether to slap the company with about $800 million in penalties over the state’s claims the mesh devices were fraudulently marketed.”
Katzmann J also found that Johnson & Johnson knew there was a risk of erosion of the mesh product into the vaginal canal, that the product could cause chronic pain and discomfort and risks years later, and that multiple operations may be necessary to eliminate pain.
Katzmann J was satisfied having regard to all circumstances that, “…at all relevant times the product design had a defect and was unfit for the particular purpose required.” And further that the devices were oversold having not been adequately evaluated and that the product was “only ever suitable for use in a clinical trial.”
Our specialist health and medical lawyers have represented a significant number of women who have taken individual negligence actions against discredited gynaecologists who used the TFS mesh product causing serious and debilitating injuries. You can read about one of our client’s for whom we recovered significant damages.
If you – or a loved one – has experienced complications resulting from the use of TFS vaginal mesh, our caring, expert female lawyers can help advocate for you and seek justice. Please consider contacting us to talk about the options available to you.
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We helped a woman successfully resolve a case against the Hunter New England Local Health District in respect of a failed tubal sterilisation in 2010 at a Hunter Valley Hospital.
Background
The procedure was performed by a first-year registrar in training who was also an employee of the hospital. A visiting specialist obstetrician gynaecologist was present in the operating theatre and supervised the first-year registrar during the procedure.
As it transpired, our client’s right fallopian tube was not occluded, and the tube remained patent. In 2012 our client discovered she was pregnant. She gave birth to her fourth child by way of caesarean section in 2013. During the caesarean, the same specialist obstetrician gynaecologist who supervised the tubal sterilisation in 2010, removed both fallopian tubes and sent them for histopathology analysis.
The histopathology report revealed that the left fallopian tube had been occluded however, the right fallopian tube was intact and had not. The results were forwarded to the specialist obstetrician gynaecologist.
After reviewing the histopathology report and following the delivery of our client’s fourth child, she asked the specialist why she became pregnant after having had the sterilisation procedure in 2010. The specialist told our client that the right fallopian tube had grown back together. This was false.
Ongoing gynaecological problems following the pregnancy
Following the pregnancy, our client developed abnormal uterine bleeding for which she consulted another gynaecologist in 2015. That gynaecologist recommended and performed a hysteroscopy (viewing inside the uterus by way of a hysteroscope) and dilatation and curettage of the uterus to try to resolve the bleeding, however, it continued.
Ultimately, our client had to undergo a vaginal hysterectomy. The histopathology of the uterus following the hysterectomy revealed adenomyosis (a condition where the endometrium breaks through the muscle wall of the uterus which can result in heavy menstrual periods) as the cause of our client’s abnormal uterine bleeding.
The adenomyosis was caused or contributed to by the fact of our client’s fourth pregnancy – a consequence of the failed tubal sterilisation.
Pursuing an outcome for our client
We argued that the hospital had a non-delegable duty (the imposition of liability on one person for the negligence of another – in this case the hospital and the Hunter New England Local Health District for the negligence of the two doctors) to manage our client with reasonable care and skill in the performance and supervision of the sterilisation procedure she underwent in 2010.
Further, that the hospital breached its duty of care in respect of the actions of the first-year registrar in training, who failed to appropriately occlude our client’s right fallopian tube with reasonable care and skill. In respect of the specialist obstetrician gynaecologist, we argued that he failed to ensure that the first-year registrar in training was properly supervised in the performance of the sterilisation procedure and further, that he told our client that her pregnancy, following the sterilisation procedure 2010, was due to the right fallopian tube having grown back together when he knew that was false.
Damage caused to our client
The breach of duty of the hospital and specialist gynaecologist in failing to properly supervise the trainee registrar caused or contributed to cause our client injury, loss and damage including our client’s pregnancy with her fourth child; labour and delivery of that child; the development of adenomyosis; abnormal bleeding; the need for medical and surgical treatment of the abnormal bleeding; emotional distress and pain and suffering.
While the birth of our client’s fourth child was a joyous occasion, the consequential medical issues she suffered and the surgery she required to correct those issues, were avoidable and unnecessary but for the original failed surgery. We successfully sought and obtained significant compensation for our client.
If you or a loved one has experienced injuries as a result of medical negligence, our caring, expert lawyers can help advocate for you and seek justice. Please consider contacting us to talk about the options available to you.
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What happens in a family law property settlement when property is held in a discretionary trust? It’s important to start with the basics.
Section 79(1) of the Family Law Act says: “In property settlement proceedings, the court may make such order as it considers appropriate:

In the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property.”

So, when property is held in a discretionary trust, the question is, is it “property of the parties to the marriage of either of them”?
In many Family Court cases this question has been answered yes. Property held in a discretionary trust has been treated as the property of one of the parties if the trustee is the “alter ego” or “puppet” of the party. The cases talk about looking at the “reality” of the position and seeing if the relevant party has control of the trustee.
In the 2007 case of Stephens v Stephens, Chief Justice Bryant provided a summary of the position of the Family Court when she said: “…a party who is the trustee of a discretionary trust, or has the capacity to appoint himself as trustee, and is also a beneficiary, or who has the capacity to become a beneficiary or become a majority shareholder in a company (who is or can become a beneficiary) can have the assets of the trust treated as if they are his or her own property… Were it otherwise, it is obvious that a party could, by simply acquiring or placing assets in a discretionary family trust, effectively avoid an order being made which would enable the other party to share in the property owned by the trust.”
An alternative approach sometimes taken by the Family Court has been to consider the property held by the discretionary trust, not as property of the parties to the marriage or either of them, but as a financial resource. This means that the property held by the discretionary trust is not included in the list of property to be divided. It is taken into account in dividing the ‘other’ property. In some cases, if there is sufficient ‘other’ property, it may make little difference whether the property held by a discretionary trust is considered property of the parties to the marriage or either of them or it is considered to be a financial resource. How the property held by the discretionary trust is considered, will certainly make a difference if there is minimal ‘other’ property. The court can only alter interests in property. If the property held by the discretionary trust is considered a financial resource, there may be nothing for the party without the interest in the trust to receive.
Very few family law cases end up in the High Court. So, lawyers take notice when they do! In the context of discretionary trusts, it is important to consider the case of Kennon v Spry, which was decided by the High Court in 2008. In this case, the trial judge considered that the property held in a discretionary trust was property to be taken into account in the property settlement. The appeal to the Full Court of the Family Court backed this view. So did the appeal to the High Court, by a 4-1 majority. But, like many cases, it is important to read the Judgments, as different judges had different reasons for coming to the decision that they did. And the facts are complicated!
Just focussing on the Judgment of Chief Justice French:

He held that the property held by the trust was “property of a party to the marriage” because the facts of this case were:

The property held by the trust were acquired during the marriage;
As trustee, the Husband had legal ownership of the trust property;
As trustee, the Husband had power to appoint the assets to the Wife; and
The Wife had the right to be considered as a person to whom the assets could be appointed.

He went on to say: “Where property is held under a trust by a party to a marriage and the property has been acquired by or through the efforts of that party or his or her spouse, whether before or during the marriage, it does not, in my opinion, necessarily lose its character as “property of the parties to the marriage” because the party has declared a trust of which he or she is trustee and can, under the terms of that trust, give the property away to other family or extended family members at his or her discretion.”

Essentially, the majority of the High Court decided that if a party has control of a discretionary trust then the interest in the trust will be property to be included in the pool of property to be divided between the parties. Specifically, the majority concluded that the right to due administration and consideration is property.
It is, of course, true (and perhaps frustrating) to add that each case is decided on its own facts. But, it should be noted that the Family Court has a track record of often deciding that the property held by a discretionary trust is “property of a party to the marriage” or alternatively deciding that it is a financial resource to be taken into account when dividing the property.
If you would like further advice on discretionary trusts and property settlements, please contact us online or call (02) 4929 3995.
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There is a myriad of reasons why you might be selling a business. Many business owners not only fail to draw the full value for their business, but they struggle with the timing when they want to retire. The main reason for this is that they have failed to plan or create their exit strategy.
As a financial planner of over 20 years Brad Lonergan from BMK Financial Services suggests there are several things you can do when selling a business to improve the financial outcome for your business and your family.
Risk protection strategies (pre-retirement)
“I often hear stories of business owners that had set a date for retirement having to prolong their working life due to the unexpected. Our Risk Protection Strategies can provide protection if you, your family, or another valuable employee suffer a serious debilitating health issue or die suddenly. We’ll show you how to protect your business against an event like this so that your retirement is not delayed and you plan is kept under control.”
Superannuation accumulation strategies (pre-retirement) 
“The common question I get asked is ‘how much is enough for me to retire comfortably?’ It’s an all too common question, but the answer is never simple. The reason it’s not simple is that everyone has different goals, needs, and expectations of what their retirement should look like. Therefore, until you sit down and have that honest one-on-one discussion with a retirement planner like me, you will find it difficult to answer this question. I have 20 years’ experience assisting people to do just that, and a master’s degree that’s taken me many years of study to attain.
Most people just bounce along without a plan and consequently don’t get to retire when they want to. If we can assist you to put the correct amount of super away each year in the correct type of investment, paying the least amount of tax, then we can usually predict within a year or two when you will retire, and roughly how large your superannuation asset will be. Wouldn’t this be good to know well before you retire?
As a member of Lake Macquarie Business Hub, we can work collaboratively with your accountant, lender, or legal representative to give you the absolute best outcome for your super investments.”
Retirement planning and income transition strategies (pre- and post-retirement)
“Many business owners find it really hard to pull away from their business.  There are numerous reasons for this including not knowing the best time, not being able to afford to do so, not letting their long-term clients down, no-one they trust to take over, or not knowing what they would do without their work. Having a proper plan in place can help you avoid all the excuses for not retiring when you really want to.
A good planner doesn’t just consider the financial impact, they also consider the emotional impact, and the affect on the extended family and/or business partners. It’s important that your transition is as smooth as it possibly can be, and this can’t happen unless you sit down and discussed all your expectations and work out what is realistic. You also need to know what will really satisfy your goals, wants, and desires. A financial planner can help you work through this and come up with a realistic plan that will give you a reasonable time frame that you, your business, and your family can work with.”
The unexpected retirement or business sale – death, disability or divorce (pre- and post-retirement)
“Sometimes in life, no matter how much we plan, our choices are made for us. It’s true that things in life don’t always go to plan. The three Ds (death, disability and divorce) are often reasons business owners are forced to sell up or retire early. Sometimes it may mean that the loss of assets can force you to have to work a little longer. It happens a lot these days.
Statistics tell us that 50% of marriages end in divorce, and one in three of us will experience some form of cancer, heart attack or stroke before we reach retirement age. Having a financial planner by your side can help if these events occur. A planner can cut through the emotion and give you a realistic plan as to how and when retirement from your business may be possible.
If retirement has been forced upon you and you are selling a business, then the allocation of funds becomes paramount from a taxation, asset, and income perspective. This time is usually critical as we find that those that don’t implement a plan after these events often squander their assets quickly and prolong their working lives. With a well thought out plan or strategy they may have been able to structure the business and personal assets in such a way that they could retire immediately, or in the near future. Sometimes it just takes another person’s perspective to see your situation in a whole different light.”
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The Aged Care Act 1997 needs to be rewritten to improve safety and quality in aged care says the Australian Lawyers Alliance (ALA) ahead of the release of the preliminary report of the Royal Commission into Aged Care Quality and Safety.
The evidence presented to the Royal Commission has highlighted the urgent need for reform in a number of areas” said ALA spokesperson and medical negligence lawyer, Catherine Henry.
“Aged care industry representatives are saying that increased government funding for the sector is the priority but a new -or substantially revised – Act, meaningful regulatory structures and attention to staffing issues are just as critical,” Ms Henry said.
The Act is the overarching legislation that outlines the obligations and responsibilities of aged care providers in order to receive government funding.
Ms Henry said an underlying cause of the systemic problems in aged care is the Aged Care Act 1997 itself. She said it is weighted in favour of providers and has promoted the privatisation of services and competition allowing profits to prevail over quality of care.
“Despite 30 enquiries into aged care in the 20+ years since the Act was introduced, the legislation has pretty well nothing to say about regulation. The body charged with the responsibility for regulation, the Aged Care Quality & Safety Commission, lacks independence.”
“Many say that the most significant reform issue for the aged care sector is staffing – both skills and staffing levels. Many residential aged care facilities operate with dangerously low staff numbers.
“Yet the Act only requires that “sufficient” staff are on hand to provide necessary care. “Sufficient” is an unhelpful benchmark of what is adequate to provide appropriate levels of care.
“The Aged Care Act is legislation that was written for aged care providers by aged care providers – and this has resulted in a worrying imbalance of power between the provider and the care recipient.
“Rewriting the legislation would provide the opportunity to address key reform issues needing to be pushed forward – regulation, staffing and transparent data on key clinical indicators.”
The ALA is a national association of lawyers, academics, and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.
Ms Henry is the principal of Catherine Henry Lawyers, a Newcastle based law firm specialising is elder law and health and medical law.
For further details, contact Australian Lawyers Alliance Media Manager Karyn Lemon on 0419 496 591.
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Today is International Pregnancy and Infant Loss Remembrance Day. Having worked with many women who have tragically experienced miscarriage, still birth or neonatal death in our work as health lawyers, my colleagues and I believe we have an understanding of the profound impact that pregnancy and infant loss has on a woman and her family. It is difficult to imagine the range of emotions that a mother, father – and significant others – experience as a result of such tragedy.
While there is a lot of publicly available material for people to access in relation to stillbirth, the topic is still ‘taboo’. This can be for several reasons – the most common being friends and family not knowing how to respond for fear of upsetting those directly affected.
In my experience as a midwife and before I trained as a lawyer, I became aware that one of the most important aspects after a stillbirth is the time parents spend with their baby following the birth.
While there is much that can be – and is – written about stillbirth, it remains hard for those of us who have never actually experienced a stillbirth to articulate with certainty how those touched by it feel. I can say though, the emotions of loss and grief I felt during the labour, birthing and the post-natal period of stillbirth, whilst different to those directly involved as parents, have never been lost on me.
Recognising the impact of stillbirth on those who assist women during labour, birthing and the post-natal stage is sometimes overlooked. Women and their partners can develop close relationships with health professionals involved with their care during pregnancy. While the impact is different, the sense of loss and grief is not lost on those associated with the care and journey of a pregnancy that results in a stillbirth.
On a personal note, my grandmother gave birth to a beautiful daughter in 1943 who was, unfortunately, stillborn. In 2015, I went with my then 98-year-old grandmother to visit the Circle of Love at Rookwood Cemetery, Lidcombe. This is a special space created in the memory of children (including my grandmother’s daughter) interred in unmarked graves within the cemetery during the late 19th century. It became clear to me on that day how very important it is for women to be able to celebrate and remember the life of a baby born still born.
It is only in the last few years that intensive research has begun in earnest into stillbirth. Late last year, a report was published by a Senate Select Committee which held an inquiry into the future direction of stillbirth research in this country. Evidence was taken from individuals in major centres around the country and many submissions received. The recommendations were accepted in full by the Federal government which include the 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 key focuses of this specialist Centre 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”.
The causes of stillbirth have also been recently investigated by the World Health Organisation “(WHO”). Although it is believed that half of stillbirths happen in labour and that the major causes include childbirth complications, pregnancy continuing post – dates, maternal infections during pregnancy, foetal growth restriction and congenital abnormalities, the WHO has concluded that “the majority of stillbirths are preventable.”
Also in 2016, the prestigious medical journal, The Lancet, launched a series of papers entitled “Ending Preventable Stillbirths.” The focus of this series was to build on strategies to prevent stillbirths and provide better care to women and families following stillbirth.  It aims to end preventable deaths by the year 2030 using maternal, neonatal and child survival targets framed within the context of health, survival and overall quality of care for women and their babies.”   
Most recently, research has been published here in Australia – and as recently as last week – demonstrating that stillbirth occurs more frequently among women with non-white backgrounds born overseas than for Australian born women.
Our firm will be monitoring the work being done by the Queensland Centre of Research Excellence in Stillbirth and the implementation of targets identified by the Select Committee on Stillbirth Research and Education.
Our experienced health law team are currently assisting several women whose pregnancy resulted in stillbirth. Some stillbirths are inexplicable while others have been shown to have been preventable for a variety of clinical reasons. Whether action is taken or not, it is our experience that all women benefit from coming to an understanding of the likely reason the stillbirth has occurred.
We recognise the impact such a life changing experience can have on families who experience stillbirth.
There are a number of supportive organisations in the community who/which can provide support and care for families who have experienced the loss of a baby. Here are some links to a few Australian organisations: Bears of Hope, Stillbirth Foundation, Sands and Pregnancy Loss Australia
 
Linda Crawford is a Senior Solicitor who specialises in health and medical law at Catherine Henry Lawyers. Before she started work as a solicitor 11 years ago, she was a midwife and registered nurse working in hospitals in both NSW and Queensland.  
If you would like to speak with someone from our health law team contact us or call (02) 4929 3995
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We recently acted for the family members of a woman who successfully committed suicide while she was an inpatient at a mental health unit of a regional hospital.
During her admission, the deceased had continuously expressed feelings of profound pessimism and hopelessness. Four days prior to her death, she was placed on close 15-minute observations after informing the hospital staff that she was feeling suicidal.
The next day, close observations were ceased despite the hospital staff in the mental health unit acknowledging that she had chronic suicidal thoughts that had heightened over the last 24 hours.
Over the next couple of days, the deceased continued to express thoughts of death.
On the day of her death, the deceased reported that she was feeling anxious. She was given a sedative and taken to her room, where she was left alone for one hour. When a nurse returned to check on her, the deceased’s bathroom door was locked. When the door was finally able to be opened, the deceased fell onto the floor. She was unresponsive with a dressing gown cord around her neck. She had hung herself after securing a dressing gown cord to a hinge of the bathroom door. A medical emergency team (MET) call was made and cardiopulmonary resuscitation (CPR) was commenced. Sadly, the deceased was unable to be revived.
The family members of the deceased suffered psychiatric injuries as a result of the manner and circumstances of the deceased’s death.
We successfully settled the family members’ claims at mediation for an amount which compensated them for their pain and suffering, medical expenses, loss of income and household assistance which they required as a result of their injuries.
If you have lost a close family member as a result of what you suspect to be negligent treatment, our team of expert medical negligence lawyers can advocate for you and help to ease your burden.
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Leading regional NSW health, medical negligence and elder law firm, Catherine Henry Lawyers, has opened an office in Taree.
The office, at Hooke Chambers in Victoria Street, Taree, is headed by Manning born and raised solicitor Erin Woodward. Ms Woodward joined the firm as a senior associate earlier this year.
Ms Woodward said the Furness inquiry relating to disgraced gynaecologist and obstetrician Dr Emil Gayed, who practiced in Taree, had again shone a spotlight on medical negligence issues experienced by local people. She said the Aged Care Royal Commission is also shining a spotlight on poor aged care providers.
“We want to help people and their families in the Manning and other parts of regional NSW to seek answers, to seek justice and compensation from rogue doctors as well as health care providers and aged care facilities who provide sub-standard care,” Ms Woodward.
“We fight passionately for our clients but also provide other resources and referrals for support because we understand our clients have experienced significant trauma,” she said.
“Our team is predominantly female, and we find that many women prefer to have a female lawyer represent them, particularly for women’s health law issues.”
“In the many cases we are currently running for victims of rogue doctors, such as Dr Gayed, we always take the time to listen and appreciate the impacts on our clients.”
She said that the firm’s in-house clinical nurse consultant means her team can quickly get to the crux of a legal issue and determine if there is a case with which to proceed.
Catherine Henry Lawyers’ principal, Catherine Henry, said many people living in regional NSW are reluctant to make complaints or to seek answers or justice from health professionals for fear of “rocking the boat”.
“Local people and local solicitors may be reluctant to take on local doctors because of close connections,” Ms Henry said.
“We take on those cases because litigation helps hold health professionals to account and forces changes to health care practices, so mistakes do not happen to another person or family,” she said.
Ms Woodward has lived and worked in Taree as a personal injury lawyer for more than 10 years. She is a Law Society of NSW accredited specialist in personal injury law. Ms Henry has decades of experience in health and medical law, working on many high-profile cases, particularly in relation to women’s health.
Catherine Henry Lawyers is the only firm headquartered in Northern NSW and one of only two firms based outside of Sydney to make the prestigious Doyles Guide list of NSW’s top 16 medical negligence plaintiff lawyers. It also has offices in Newcastle and Sydney.
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