As aged
care providers continue to grapple with balancing their duty of care and their
obligation to respect their clients’ dignity of risk, some are asking clients
to sign an acknowledgment which includes waivers/releases and indemnities as a
way of mitigating the risks. These acknowledgment forms can be used in a range
of scenarios where the client wishes to engage in an activity that creates a
risk to themselves or others. For example:
- A resident’s family wants the
resident to use an electrical scooter despite the resident having difficulty
controlling it
- A guardian wants the resident to be given food that presents a risk of choking
- A home care client wishes to engage
a worker/service provider that is not part of their preferred supplier list.
A risk
acknowledgment/waiver form can form a part of your dignity of risk processes in
these sorts of situations. However it is important to understand the associated
benefits and limitations.
What is
the role of the risk acknowledgment form?
The first
thing to understand is that there is a difference between a “waiver”, “release”
and an “indemnity”.
- Waivers and releases have similar
effects – they are essentially a promise by the client that they will not sue
the provider if something goes wrong.
- An indemnity goes a step further and
essentially says that if the provider is sued by someone else because of
the client, that the provider can then sue the client. For example, if a
contractor were injured by a client riding an electrical scooter and sued the
provider, the provider could then seek to recover its costs from the client.
As you can
see, these documents are largely about mitigating the risk of being held
civilly liable. They can’t protect you from all legal risk, such as being found
non-compliant with the Aged Care Quality Standards. Approved providers must
ensure they are complying with their obligations. The following is important:
1. Critically,
the client must be assisted to understand the risks involved. For
example, does the guardian in the above example about food understand how
traumatic and painful choking can be and that the consumer could die? Does the
resident’s family understand that if they crash their scooter, they may injure
other residents or staff as well as the resident? This could lead to an injury
that they may not recover from. Providers must ensure the consumer/their
representative is well informed, it is not enough to provide little details or
refer them to guidance material. Failing to assist the
client/representative to understand the risks is not only a breach of
responsibilities but may render any waiver/release or indemnity ineffective.
2. Approved
providers must also ensure they are taking steps to mitigate the risk, insofar
as they can. For example, they must provide appropriate supervision to the
resident while eating or using their scooter. Likewise, if a consumer chooses
to use their own service provider, the approved provider must still implement
appropriate screening and other requirements to ensure that the services
provided meet the Standards. To be clear, no form can absolve an approved
provider of their responsibilities under the Aged Care Act.
3. Before
asking the client to sign anything, you should also consider whether it is
appropriate for the approved provider to involve itself in this particular
decision. For example, a home care consumer chooses to participate in a
high risk sport, that is not a matter for the approved provider. Likewise, it would not generally be appropriate to ask a competent resident who
wishes to travel via plane contrary to medical advice to sign a waiver.
4. It
is also important to consider your obligations under the legislation, including
the Charter of Rights when considering using a waiver/release or indemnity.
Although the legislation is silent on these sorts of measures, asking a client
to sign a risk acknowledgment form could be seen as a restriction on
their choice and it is possible the Aged Care Quality and Safety Commission may
take issue with this. For this reason, it is critical you consider whether
asking the client to sign such a form is reasonable in the particular
circumstances. For example, are you asking them to sign it because the client
is asking you to do something that you would not normally do (eg provide food
contrary to their assessed needs)? Or are you asking them to sign it because
you do not have a service provider that can provide the service they require in
their area? In the former case, the client is choosing to take on a risk.
However in the latter case, the client does not have a genuine choice so you
may be criticised for this as being inconsistent with your obligations under
the legislation.
Providers should be prepared for a situation where a representative refuses to sign a waiver/indemnity and train their staff to respond appropriately. The response will depend on the reason for refusing to sign and the level of risk that the activity poses. It may be that a provider will refuse to facilitate an activity without a signed form, or refuse to fund the purchase using home care package funding. This does not necessary mean a consumer cannot engage in the action in the facility or their home, however your staff may not facilitate the activity. However, a provider may need to facilitate the activity regardless so as to not limit consumer choice. A judgment call will need to be made for every situation.
5. Finally, providers should not rely on an acknowledgment form alone. A discussion with the consumer and their representatives is always critical. Providers should ensure they document such discussions including:
- Any discussion(s) they have had regarding the
issue, including any questions and answers
- The information provided concerning risks and
benefits is prepared prior to meeting and documented
- That the information provided was understood by
the consumer/representative.
This will help avoid over-reliance on the form and
will also assist in:
- Making the release and indemnity more effective
- Showing compliance and meeting the Aged Care
Quality Standards
- Ensuring the discussion is genuinely appropriate
When used
in appropriate circumstances, and when clearly drafted to the particular
circumstances of the case, an acknowledgment of risk signed by a client can
provide some protection for providers however they are not a “get out of jail
free” card.
How we can help?
Russell
Kennedy has a template risk acknowledgment form that contains a release, waiver
and indemnity, and can assist in reviewing your dignity of risk policies. We
also provide training on duty of care and dignity of risk for home care and
residential care providers. For further information, contact Anita Courtney,
Felicity
Iredale, Johanna
Heaven or a member of our Aged Care Team.
Other useful resources
Key Personnel obligations for all approved aged care providers take effect 1 December 2022
Russell Kennedy Key Personnel Package of Documents: Russell Kennedy has developed a range of resources that approved providers can purchase individually or as a pack to ensure compliance with the new requirements of key personnel. We have a Key Personnel Suitability Matters Information and Assessment Form and Guide to assist with gathering and assessing the information. We have letters and guides for key personnel explaining the changes, the regulatory context and their key obligations. We have also developed a template policy, as well as clauses for agreements and contracts.
Download our flyer here to find out about the key personnel package, and email rkagedcare@rk.com.au to find out about pricing and to purchase all or any of the resources available.