Queensland’s tough compensation laws effectively discriminate against elderly abuse victims, making it virtually impossible for them to pursue claims for injuries arising out of poor care and neglect in nursing homes.
That’s the view of Bennett & Philp Director and personal injury law Specialist Mark O’Connor who says moves for a national plan to address a growing tide of elder abuse would lack any bite under current Queensland law.
Mark says legislative changes to the compensation system introduced by the Queensland government in 2002/2003 significantly reduced compensation awards for personal injury and impairment for most injured persons including the elderly. They introduced damages thresholds which had to be exceeded before an injured person could recover their legal costs from the responsible party.
"Unless an injured elderly person can recover damages and compensation in excess of $73,490 then they would likely recover little of their legal costs from the responsible nursing home. Their legal costs would have to be paid from their damages. Sadly it is often not cost-effective for them to pursue a claim no matter how appalling the neglect or abuse which has caused an injury," he says.
"It is virtually impossible for old people to pursue a claim which is financially viable because they most often do not have potential damages awards which will reach the legal costs threshold. Often there needs to be a claim for loss of earnings for an injured person to exceed the cost threshold and for obvious reasons this will not apply to old people."
The issue of elder abuse, especially of elderly in nursing homes, has drawn recent media attention.
Mark says one of the effects of the common law system is that it acts as a disincentive to bad behaviour - if someone is sued enough they will stop engaging in the behaviour which is leading to the lawsuits.
“But in Queensland the proprietors of nursing homes know it is unlikely they are going to get sued.
“Also there are the thresholds which need to be navigated in regard to damages which they recover. If say, because of negligence of a nursing home, friends and family need to, for a period provide domestic assistance to an injured old person to assist their recovery, before any damages can be recovered for that domestic assistance, there needs to be a provision of at least 6 hours assistance per week for a period of 6 months.
“The combination of the inability to recover costs and inability to recover for the likely cost of care means that many old people are cut out of the system and effectively can’t claim compensation for physical injuries received in nursing homes or elsewhere,” he says.
Mark wants a reform to allow old people who are subjected to abuse in nursing homes who bring a civil claim to be exempt from the costs threshold.
“Also they should be able to recover the domestic assistance which might need to be provided to them by friends and family to assist them get back to where they were before - this means they will be able to recover financial compensation for pain suffering they may suffer because of the poor treatment in nursing homes,” he says.
His comments come as a national plan to study the prevalence of elder abuse and propose studies to combat it was announced by Federal Attorney-General Christian Porter and the Council of Attorneys-General.
Bennett & Philp Senior Associate Charlie Young, an Elder Abuse lawyer, says the plan was overdue because elder abuse was not only confined to rest homes – commonly it involved family members or ‘friends’ preying on the life savings and other property of vulnerable relatives.
He says while topics such as marriage equality had dominated federal political debate last year, there was an apparent attitude that elder abuse was not ’sexy’ enough for political purposes.
“The media seems more fixated on who said what on “Married At First Sight” than the physical, emotional and financial abuse being suffered by our elderly.”
Late last year amid reports that almost 72,000 elderly Queenslanders are being abused by their own families or trusted friends stealing their savings, Mr Young lamented the lack of Commonwealth action.
For a start, Charlie wants the establishment of a national online register for enduring power of attorney documents and changes to aged care legislation to increase accountability of aged care providers where instances of elder abuse occur.
He says increased attention is now being made to people exploiting the Enduring Power of Attorney system.
Elderly people who have appointed a relative or friend as their Enduring Power of Attorney (EPA) to manage their finances for them are especially vulnerable to being ripped off.
In particular there needs to be a formal register of all Powers of Attorney because there is no system in place at present which makes it difficult to prevent abuse of an EPA until it’s too late.
“A person with a signed EPA can turn up at the bank and access the accounts of the person who gave the EPA. The banks don’t know which EPAs are current or not, so they have no way to check whether an EPA is still valid. The system needs more controls,” he says.
Mark and Charlie say the new focus on elder abuse is welcomed but we now need changes to Queensland’s laws to protect our vulnerable elderly.