Mitigating the legal risks of delivering care in the home

An increasing number of Australians, particularly the elderly, are choosing to receive health and medical care in the family home. This article details the legislative landscape that governs home-based care.

COVID-19 supercharged a global trend towards home-based health care and the adoption of digital health services. A study by global consulting firm McKinsey found up to $265 billion worth of care or 25% of the total cost of care in the United States could shift to the home by 2025 — a three- to fourfold increase on the current at-home spend.

While research has shown in-home health care can result in equivalent or better outcomes for patients, robust governance frameworks are required to mitigate the increased legal risks — for health providers and nursing and allied health practitioners — associated with providing highly regulated health care services in often uncontrolled and unpredictable settings.

Currently, in-home health care services in Australia are primarily delivered through the aged care system, National Disability Insurance Scheme (NDIS) and state-based hospital-in-the home programs.

Providers that deliver in-home nursing and care services are often limited in their access to resources, equipment, supervision and control over the environment in which their staff operate compared with providers of services in hospitals, residential aged care facilities or medical practices.

This can give rise to regulatory and legal risks for providers as well health professionals — particularly nursing staff (registered and enrolled nurses) and allied health workers — who must operate within the bounds of their individual professional scopes of practice.

Aged care

The Aged Care Act 1997 imposes various requirements on approved providers relevant to clinical governance. The Quality of Care Principles set out responsibilities of approved providers including the requirement to comply with the Aged Care Quality Standards. A new Code of Conduct for Aged Care — which describes the standards expected of aged care providers, their governing persons and aged care workers — was introduced in December 2022.

This framework provides processes for assessment of compliance and sanctions by the Aged Care Quality and Safety Commission and the Secretary of the Department of Health for non-compliance such as revoking, suspending or restricting a provider’s approval to operate.

Key obligations on aged care providers include:

• maintaining a competent workforce, including by delivering ongoing training and undertaking regular performance assessments;
• meeting workplace health and safety obligations to staff by identifying and reducing potential hazards;
• undertaking ongoing assessment and care planning of patients;
• training staff to recognise a change or deterioration in a patient’s medical status or their capacity to provide valid consent, and having appropriate processes in place to escalate these concerns to an appropriate health practitioner for assessment and treatment;
• medication management which is governed by state and territory Medicines and Poisons legislation;
• having an effective incident management system in place, including reporting serious incidents to the Commission — a new obligation from December 2022.
   

The federal government is currently developing a new program for in-home aged care in response to recommendations by the Royal Commission into Aged Care Quality and Safety.

Significant industry and community consultation has already taken place on the design of the new program, which is due to commence from 1 July 2024. This will result in changes that will impact providers and health practitioners operating in this area.

National Disability and Insurance Scheme (NDIS)

The NDIS Act 2013 imposes a range of requirements on providers and employees who deliver support services. The NDIS Code of Conduct sets out expectations for the conduct of both registered and unregistered providers and workers. The NDIS Practice Standards specify the service quality standards to be met by registered NDIS providers.

Compliance is regulated by the NDIS Commission, which has the power to undertake regular audits and investigations which can result in actions against providers such as deregistration and civil penalties.

Key obligations on NDIS providers include:

• ensuring workers have the necessary training, competence and qualifications for their role;
• imposing particular competency obligations on staff who perform higher risk ‘high intensity daily personal activities’ such as complex bowel care, ventilator support, tracheostomy support, complex wound care, and epilepsy and seizure support.

Obligations on individual practitioners

Individual health care practitioners are responsible for understanding and working within the bounds of their professional scopes of practice.

Nurses are subject to greater regulation than unregistered care workers. The most significant scope of practice challenges for in-home care providers and workers arise in areas that require registered nurse involvement or supervision, such as medication administration and patient assessment and care planning.

The practical difficulties of meeting supervision requirements across a geographically dispersed nation with a nursing shortage are in part reflected in the nursing professional framework. The Nursing and Midwifery Board of Australia (NMBA) describes its framework as ‘broad and principle based’ so that it is sufficiently flexible to apply in a range of different settings.

Registered nurse and enrolled nurse supervision can in many instances be ‘indirect’, including remote, subject to the circumstances and questions of competence and risk. Telehealth may provide some assistance with these challenges, particularly in remote locations, provided that safety and quality can be maintained.

As in-home health care grows, it is incumbent on individual practitioners to understand their responsibilities and obligations under relevant professional practice, registration and code of conduct requirements and to keep up to date with changes. Not knowing exposes nursing, care and allied health staff to unnecessary legal risks.

*Samantha Pillay is a highly regarded Insurance and Health Law Principal with award-winning national law firm Barry Nilsson. Pillay specialises in a wide range of health law matters including clinical governance, regulatory requirements, medical malpractice, professional indemnity, patient capacity and consent, vaccination and public health matters.

Her expertise is regularly sought by clients including public and private hospitals, medical and allied health practitioners, medical transport and retrieval services, home care, aged care and disability support providers, medical centres, diagnostic service providers and their insurers and brokers.
 

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