Aged care providers

With New Zealanders living longer, care of the elderly is a growing part of the health sector. Many older patients and residents are vulnerable and/or impaired, often with a mix of clinical, personal and financial needs.

Not surprisingly, there is increasing legal scrutiny of the aged care and retirement villages sectors. Aged care is a core area of our practice. We work with providers across the sector, from large corporates to owner operators and individual practitioners. We advise on issues relevant to private hospitals, rest homes and retirement villages. We frequently advise on treatment of patients with compromised decision making capacity and assist with the seeking of orders under the Protection of Personal and Property Rights Act. Our lawyers are experts in enduring powers of attorney, information management, and elder abuse professional responsibilities. We help respond to complaints, whether made direct to the provider or via an external agency such as the Health and Disability Commissioner. Our lawyers advise on commercial and employment matters and aspects of the Retirement Villages Act.

We believe that it is important to view legal issues in aged care in their clinical, social, funding and policy context. Solutions need to be practical, cost effective, and sensitive to the needs of residents and their families. Above all we appreciate that aged care is about putting people first.

We frequently advise aged care providers on:

Examples of work done by Claro lawyers

Provision of care for a terminally ill person who could no longer communicate. We advised a hospice on a patient whose health was deteriorating to such an extent that she no longer had capacity. We advised on the obligations of the hospice in relation to the patient’s previously stated wishes (i.e. advance directives) with respect to her personal care and welfare, and the role of the patient’s partner, who had been appointed as the patient’s Enduring Power of Attorney for personal care and welfare.

Disciplinary investigation in a residential care facility into allegations of abuse by a staff member. Previous allegations had resulted in disciplinary action and a subsequent personal grievance. We worked closely with the facility to address the personal grievance and ensure that subsequent investigations were carried out in a robust and procedurally fair manner.

Resolution of employment relationship problems and personal grievances. We advise health sector employers on the management of issues relating to employees’ health, competence and conduct; bullying and stress; breakdowns in the relationship between employers and employees; and personal grievances. We attend mediations and, if necessary, represent clients before the Employment Relations Authority or courts.

Health and Safety in Employment Act investigations and prosecutions. We have acted for both public and private sector organisations facing investigations and prosecutions relating to breaches of the Health and Safety in Employment Act. We have advised organisations and boards on their obligations under the legislation and the need to comply with guidelines such as the Institute of Directors guide Good Governance Practices Guideline for Managing Health and Safety Risks. We have advised public and private health providers on when patient falls and injuries resulting from clinical incidents require reporting under the Health and Safety in Employment Act.

Application for court orders on behalf of a DHB for placement of a patient in a residential care facility. The patient, with dementia and memory loss, had been admitted to hospital following a fall and was not safe to return to his home. The patient’s wife, who had enduring power of attorney for care and welfare, opposed his admission to a private hospital. We represented the patient’s geriatrician to apply for orders under the Protection of Personal and Property Rights Act 1988.

User friendly, legally compliant admission agreements. We often develop and modify existing admission agreements so that they are easily understood by residents and their families; comply with the unfair contract terms rules and Aged Related Residential Care Contract requirements; and anticipate and address issues that can arise from time to time. We frequently advise on the role of the resident’s Enduring Power of Attorney, and appropriate processes where a resident is not competent and there is no one legally entitled to act on their behalf.

Prescribing medicines remotely by text or email. The Medicines Act, Medicines Regulations and Misuse of Drugs Act contain important requirements relating to the prescription only medications and controlled drugs. We have advised on these various obligations, including whether such medications can be prescribed by text, SMS or email. We have also advised on whether text, SMS or emails can be used to communicate a ‘verbal order’ for prescription only medications and controlled drugs.

Challenge to mechanism for calculating charges imposed on residents by an aged care provider under an occupational right agreement. We represented the provider. A resident’s complaint about the provider’s increase in charges resulted in the initiation of the formal dispute process under the Retirement Villages Act. Amongst other things, the resident complained that the provider had not properly consulted residents and that the Code of Residents’ Rights had been breached. Following legal argument it was determined that the Disputes Panel Member did not have jurisdiction and the matter was not progressed.

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