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Consumer choice and risk under the new Standards – home care

02 Aug 2018

This is the second edition of our series of information alerts regarding home care under the new Standards. In this article, we explore the concept of dignity of risk and increasing consumer choice in home care.

Increasing consumer choice and dignity of risk

We have seen the Increasing Consumer Choice reforms embed Consumer Directed Care (CDC) in home care and through these reforms home care clients already have rights to exercise choice about the way they receive care and services.

The exposure draft of the new Aged Care Quality Standards (available on the Department's website) demonstrates there will be an even more increased focus on consumer choice under the new Standards.

Consumer choice, dignity of risk and risk management are concepts that are central to the new proposed Standard 1.

  • Aged Care Quality Standards ‘Standard 1’ provides the following consumer outcome:
  • “I am treated with dignity and respect and can maintain my identity. I can make choices about my care and services and how they support me to live the life I choose.

Consumer choice requirements for approved providers

The exposure draft standards also include in the requirements for Standard 1:

“The organisation must demonstrate the following:

  • each consumer is supported to take risks to enable them to live the best life they can; and
  • information provided to each consumer is current, accurate and timely, and communicated in a way that is clear, easy to understand and enables them to exercise choice.”

These are specific requirements in terms of the level of support that must be provided to consumers to support them to take risks and the information the provider must give consumers about the risks associated with their choices.

Managing consumer choice and risk in home care

In supporting consumers to take risk, there are a few key factors that approved providers must consider when managing consumer choice:

  • Balancing choice and duty of care - it is important to acknowledge a consumer’s right to choose to partake in activities that involve an element of risk. However, this must be balanced with the provider’s exposure to liability arising from their duty of care and other responsibilities. In some circumstances it may be necessary to refuse a consumer’s request to partake in a particular activity, for example where the approved provider’s duty of care outweighs the care recipient’s right to exercise choice. In most situations the provider should be able to support the consumer’s dignity of risk by ensuring they have discussed the risks and have the appropriate documentation in place to record these discussions. The level of documentation will depend on the nature of the risks.
  • Capacity – a consumer’s level of capacity to make a decision can vary from time to time and with reference to the complexity of the decision that is being made.
  • Substitute decision making - quite often it will be the consumer’s substitute decision maker making the decisions in place of the consumer adding a layer of complexity, particularly when considering the change in consumer characteristics from generation to generation.
  • Choice is subject to the care and services a provider is required to provide - consumers will not always be able to exercise unfettered choice:
    • choice is influenced by the role of the organisation and the scope of the agreement between the organisation and the consumer (remembering that the agreement cannot contain any provision that is contrary to the consumer’s rights under the Aged Care Act and Principles);
    • choice is subject to the care and services you are required to provide and which you have agreed to provide under the agreement;
    • in some cases, access to a range of organisations and to particular care and services may be limited by location and environment;
    • choice is also subject to the limits of the home care package.

This is just an overview of some of the issues providers will need to consider when implementing the new Standards.

To help consider these concepts further, over the coming weeks we will explore the following issues in more detail:

  • Declining a consumer’s request – when it might be appropriate.
  • Risk waivers - are they worth the paper they are written on.

Questions?

The content of this report is not intended to be a substitute for legal advice. If you are interested in obtaining further advice in relation to consumer choice and risk management in home care please contact Julie McStay, Director – Aged Care and Retirement Living, Hynes Legal.

 

 

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