The beginning of a new year is a useful time to step back and decide what should be done differently to achieve better outcomes in your aged care facility. As aged care lawyers, we see a lot of risk and liability issues arising from the same root cause – unsatisfactory residential care contracts, housed within an unsatisfactory contracts management system. If you own or manage a facility, you already know that residential care contracts should be regularly reviewed and updated to reflect changes in law, changes in the facility, and as part of a continuous improvement strategy – but, it can be hard to know where to start. To us, your review should always begin by finding the answer to these essential questions.
1. Are the contracts up to date?
The aged care industry is highly regulated, and the relevant laws frequently change. Your organisation should be aware of all changes in relevant laws and ensure that its residential care contracts are updated as required before those changes take effect. It’s also not unusual for the facility to change over time – e.g. changes to rules, room numbering, contact information, and services – so your review should also include ensuring that the contracts are factually accurate and up to date.
2. Are the contracts readable?
The aged care legislation requires residential care contracts to contain many prescribed terms, and several are quite complex. It can be difficult to ensure that the contract contains all these prescribed terms while still being easy to read and understand. Some practical ways of making the contract more readable include:
using plain and simple language;
using short and simple sentences;
avoiding repetition;
setting out the key information (e.g. fees, services, room type) in a summary table at the beginning of the contract.
When answering this question as part of your review, it is also worth considering the experience of the resident and their representative (usually a family member) when reading the contract. Usually, the resident will have complex care needs, and the person reading the contract may be under considerable emotional, health or financial stress. The facility may wish to consider what else it can do to help the resident and their representative navigate the contract – e.g. providing a factsheet or FAQ document.
Ensuring the contract is readable helps not only the resident and their representative, but also the facility – for example, by building trust and avoiding misunderstandings, disputes and complaints.
3. Do the contracts sit within an effective and efficient system?
It is important to have robust residential care contract templates that your staff can use to generate specific contracts to be entered into by a provider and prospective resident. It is equally important that the system those templates and finalised contracts sit within operates to support that contracting process to be carried out easily, efficiently, and without human error.
When answering this question, it helpful to ask the following questions:
Can the staff easily and accurately capture and retrieve all key details about the resident?
Can the staff easily and accurately determine what information needs to be captured in the system before generating the contract?
Does the system effectively minimise manual re-entry and double handling?
Does the system effectively minimise the risk of human error – e.g. when making entries and generating the contract?
Is all the key information accessible in a single system?
Is there version control?
Are all contracts and contract-related communications being stored in the system? If not, why not?
Is everything that should be automated, automated? For example, statutory amount calculations, pre-populated fields, exporting data into an automatically generated contract.
Is everything that should be customised, customisable? For example, optional clauses, special conditions, selections yet to be made by the resident.
4. Are the contracts doing everything they could do to reduce the organisation’s risk exposure?
The organisation has many legal obligations that it cannot contract out of. However, it can (and should) include clauses in its residential care contract to reduce its risk and liability exposure and better-manage practical challenges that arise in everyday facility operations. For example, your organisation may wish to include clauses which help:
reduce debtor and cash flow issues – e.g. provisions for guarantors, caveats, direct debiting;
manage safety issues – e.g. smoking, visitor misconduct, treatment of visitors and staff;
avoid disputes – e.g. clauses which explain who can make what decisions on behalf of a resident and when, and how the facility facilitates decision-making by the resident by reference to the principles of consumer-directed care and dignity of risk.
It is essential to ensure that these clauses are clear and comprehensive, legally enforceable, and not inconsistent with the aged care legislation or any other laws.
When answering this question, it can be helpful to ask this further question – Are there any risks or adverse events that the facility has experienced since the last review which we could address by updating the contract?
Your 2020 strategy
Having robust residential care contracts and contract-related system makes it considerably easier for facilities to manage risk, support staff and give residents the best possible care experience during their stay. It is important that these contracts are regularly and comprehensively reviewed and updated as part of your organisation’s continuous improvement process.
Your organisation can implement this strategy internally – e.g. via your in-house counsel and a systems review committee. Or – if your organisation does not have the internal expertise or resources to manage this process – the best strategy may be to seek external assistance from aged care specialists. For example, by engaging an aged care lawyer to draft and maintain your facility’s residential care contracts, or by using an aged care specific software system that includes integrated, high quality and regularly updated template contracts (our contracts are available via Mirus’ Admissions Companion - click here to find out more).
We hope that this article assists you and your team and wish you all the best for 2020. If you have any questions or would require our assistance, please call us on 02 9199 4563, or click here to book in for a free consultation.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.