A series of programs prepared by journalist Margot O’Neill and aired on ABC TV’s Lateline program in recent months provided a shocking account of abuse of the elderly. 

Also, ABC news and Lateline featured a story about a 67-year-old Aboriginal man who died of dehydration and starvation following substandard treatment in a NSW nursing home. His family, instructing my firm, had that day filed a negligence claim against the aged care facility. 

Deaths from starvation and dehydration in this sector are frighteningly common. Another common cause of death is sepsis following bed sores.

In addition to the many unnecessary deaths and perhaps even more disturbing are the many stories of mistreatment and assault of older patients, especially those with dementia. 

There are also far too many instances of unnecessary administration of anti-psychotic drugs, which can lead to falls.  

What can be done to reduce the incidence of death and inadequate treatment of the frail elderly in our community?  

Part of the problem lies in the fact that aged care facilities operate out of sight of the general population. 

When things go wrong, families are steered in the direction of the Aged Care Complaints Scheme. This is a scheme administered by the federal Department of Health and Ageing. 

That is, the same body that provides funding to aged care facilities, oversees the accreditation process and determines aged care policy is also charged with the role of investigating complaints of poor treatment.

It is not surprising, then, that investigations conducted by the Aged Care Complaints Service ensure that matters of poor care are kept in the dark and that public scrutiny is avoided.

At the conclusion of an investigation, the reports produced by the Aged Care Complaints Scheme will often report that a particular aged care facility has abjectly failed to provide basic care. 

Yet there are no sanctions. No disciplinary action is taken. There is no threat to the facility’s accreditation.

 Rather the facility is merely asked to demonstrate that they changed internal processes and procedures.

 The families I encounter are not satisfied by the outcome of the investigation by the Aged Care Complaints Scheme as they think nothing has been done. 

Typically, governments respond in a knee-jerk way to the revelations of unacceptable standards of care. Reviews are promised but not implemented. 

After the revelations of nursing home abuse on ABC’s Lateline were aired in July, Ita Buttrose, the chief executive officer of Alzheimers Australia, vowed she would shame governments into acting on aged care.   

In the recent federal election, aged care did not feature at all as a policy priority for either side of politics  apart from a glib promise of funding for dementia research by then Opposition Leader Tony Abbott. 

However, where internal investigations and government policy fail, litigation can play a positive role in improving patient care. 

In other areas of healthcare, litigation has been shown to provide a deterrent signal which more often than not leads to changes in practices, thereby reducing the risk of avoidable injury. 

This is done by creating economic incentives to improve patient care. The more mistakes are made, the more compensation will need to be paid. So, on the assumption that payment of compensation affects the operating bottom line, behaviours will be modified and fewer mistakes will be made, thus increasing patient safety. 

Experience has shown that economically driven patient safety strategy makes good sense for large organisations or enterprises such as hospitals and, relevantly here, aged care facilities. 

They are better placed to implement systems to reduce medical errors which are, more often than not, a consequence of systemic problems. 

The exposure that accompanies litigation arising from poor care also provides a deterrent signal. Aged care facilities are businesses and reputation is everything. Exposure is death.

However, it seems unlikely in the current climate that anything other than litigation will force change in this sector. 

Catherine Henry is a Newcastle solicitor who practises in health 

and medical litigation.