Disclaimers in aged care, are they worth the paper they are written on?
24 Aug 2015
Care recipient’s right to take risks
A person’s right to autonomy or self-determination is deeply-rooted in the common law. It is about respecting an individual’s right to take risks and choose how they want to live their life.
It is important to acknowledge a care recipient’s right to maintain independence which includes taking personal responsibility for their own actions, even when those actions involve an element of risk.
In the context of aged care, a care recipient may wish to partake in a dangerous activity. For example, a care recipient with full capacity may refuse their medication while being fully aware of the risks inherent in doing so.
Approved provider’s need to balance risk
Clients have a right to accept the risks associated with an activity as long as they do not interfere with the rights or safety of others.
From an approved provider’s perspective the care recipient’s right to undertake a dangerous activity must be balanced with the provider’s exposure to liability arising from their duty of care and other responsibilities.
When a provider becomes aware that a care recipient wants to undertake an activity with an element of risk, a waiver, disclaimer or release will often be implemented with a view to balancing the risks between the parties.
How effective are these types of documents in protecting the parties’ interests?
The concept of assumption of risk is not new to the law. The courts are often called on to determine whether a party can rely on a waiver or disclaimer which operates to exclude some liability which they would otherwise have at law. As with any legal document purporting to waive a person’s liability, there can be issues with enforceability. This is compounded in the aged care setting where there are often questions of capacity, unequal bargaining power and informed consent.
Due to the complex factors in play, having a waiver or disclaimer in place does not give any guarantee that a care recipient or their family will not take action against the approved provider. If an issue does arise, the provider cannot be certain they will be released from liability simply by having an executed agreement in place.
Although a waiver may not be enforceable in all cases there are still benefits to having one in place. A signed waiver will certainly assist in establishing a defence in the event the care recipient or family takes action against the provider. And at the very least the mere presence of the waiver may prompt the care recipient and their family to carefully consider the risks associated with the activity and to understand the seriousness of the situation.
Best practice to use a Deed of Indemnity and Release
The decision to use a waiver will depend on the circumstances and the provider’s appetite for risk. Management will need to make a decision on a case by case basis by considering the risks inherent in the proposed activity and determine whether those risks outweigh the care recipient’s right to autonomy.
If the provider considers the care recipient ought to be able to exercise their right to take a risk, it is in the provider’s interest to have a signed waiver in place. For a greater likelihood of enforceability, we recommend using a Deed of Indemnity and Release detailing the risks that the care recipient acknowledges and assumes.
We have a standard short and long-form Deed of Indemnity and Release available here.
We are also happy to provide specific advice if any tricky scenarios arise.