The ability of a home care provider to cease providing care is dependent upon balancing competing obligations under different legislative regimes.
A client’s security of tenure is protected by the Aged Care Act 1997 (Cth) which prevents an Aged Care Provider from depriving a client with care arbitrarily and without due process being followed.
Competing with the obligation to provide ongoing care is an obligation on the provider as an employer under Workplace Health & Safety legislation to provide a working environment to employees that is safe and without risks so far as is reasonably practicable. A workplace will include the home of a client. Criminal sanctions can apply to breaches of Workplace Health and Safety legislation.
In cases of conflict between a client and a caregiver it may be that the only way to adequately manage the risk is to stop providing care to the client. This may include cases where clients display violent or abusive behaviour, harass or bully the care giver, and generally have an unsafe home environment.
Under the s23.21(a) of the User Rights Principles 1997 a client’s place may be reallocated if the client cannot be cared for in the community with the resources available to the approved provider. The client must receive reasonable written notice that his or her place is being reallocated and be provided with assistance to make suitable alternative arrangements. If an approved provider decides to reallocate a client, it is important that the client is provided with “due process”, which may include:
– reasonable written notice of the reallocation;
– an identification of the client’s responsibilities and how the provider does not have the resources to continue to provide care;
– preparing a “transition” strategy and assisting the client to make suitable alternative arrangements.
There is a risk that, if it is determined that the provider did in fact have the resources to continue care, they may be compelled to resume caring for the client, or may receive a sanction under the Aged Care Act 1997 (Cth) for non compliance.
Are you a home care provider that is dealing with an aged violent and/or abusive client?
Call our office and speak with our Business Development Officers for an appointment with one of our Elder Law lawyers. Call us on (07) 3252 0011.