Home | Databases | WorldLII | Search | Feedback Precedent (Australian Lawyers Alliance)

Henry, Catherine; Boettcher, Kim --- "Unconscious bias against older people in the legal system" [2018] PrecedentAULA 60; (2018) 148 Precedent 37

UNCONSCIOUS BIAS AGAINST OLDER PEOPLE IN THE LEGAL SYSTEM

By Catherine Henry and Kim Boettcher

Unconscious bias is an issue in the legal profession, particularly in relation to older people. Lawyers, just like everyone else, unconsciously prefer dealing with those who share similar characteristics or experiences to their own. Being of a different age, vulnerability or life stage can make it difficult for legal professionals to appreciate their older clients’ issues, and easier for them to make invalid assumptions.

‘Unconscious bias’ has been described as an ‘implicit or unconscious bias (which) happens by our brains making incredibly quick judgements and assessments of people and situations without us realising. Our biases are influenced by our background, cultural environment and personal experiences. We may not even be aware of these views and opinions, or be aware of their full impact and implications’.^[1]

The existence of unconscious bias in the legal profession has been recognised by the increase in specialised training programmes designed to teach lawyers to explore unconscious cognitive biases and how they affect decisions made in the course of their professional practice.^[2]

Older people are disadvantaged by unconscious bias in their dealings with the legal profession for several reasons. As we age, our world contracts and it can become more difficult to speak for ourselves, let alone assertively. This can be due to a lack of confidence, difficulties with communication or just feeling intimidated by the situation. The result is that an older person is more likely to require the services of an advocate to help to articulate her/his views more clearly and to identify outcomes being sought.

A decline in cognitive capacity often requires the appointment of a substitute decision-maker. In many instances, the older person has not planned for their future and responsibility for articulating their wishes, concerns and rights will fall to family members who may not necessarily be available or interested. There are many situations involving the abrogation of the rights of older people which would be challenged had such situations involved younger people.

OBSTACLES TO OLDER PEOPLE SEEKING LEGAL ASSISTANCE

There are also many barriers to an older person seeking help. They may be unaware of the legal rights available to them. They may not be aware of what has occurred or what losses they have suffered. They may not have capacity to retain and instruct a lawyer. If not lacking in capacity, they might nevertheless be uncomfortable or nervous in dealing with professionals.

All of these factors, in addition to the increased likelihood of disability, poor health and the stress associated with a dispute, conspire to mean that older people are not litigators nor regular users of the legal system. In the limited situations where a dispute is initiated, letters of demand, negotiation and mediation at some point may not be enough to resolve the dispute. Yet there is little utilisation of the court system by older people.

In our experience, many legal practitioners, faced with an older client exhibiting some or all of these characteristics, will advise not to proceed with a legal remedy. Those practitioners would not give that same advice to a younger person.

Lawyers will be mindful of the obligations regarding the certification of a matter’s reasonable prospects of success (or not) in the Legal Profession Uniform Law Application Act 2014 (Cth), which says that a lawyer ‘must not provide legal services unless they reasonably believe, on the basis of provable facts and a reasonably arguable view of the law, that the claim has reasonable prospects of success.’ This will – often unreasonably in our view – cause a solicitor to advise an older client to end a matter.^[3] For older people, is that because of unconscious bias? Is there a perception that an older person’s issues are less significant or that less weight should be given to the evidence of a vulnerable person, particularly if the client has health issues or age-related memory loss?

There are also many perceived and actual procedural barriers for the older litigant. These include the cost of initiating proceedings, case management requirements, as well as the risk – again theoretical rather than actual – of adverse costs orders if case management requirements are not met.^[4] There are many matters involving older litigants which find their way to the NSW Civil and Administrative Tribunal (NCAT), in divisions such as Guardianship or Retirement Villages or Consumer and Commercial. At NCAT, the procedural rules are not as onerous as in the courts and unrepresented litigants may initiate proceedings without having had the opportunity to obtain an accurate knowledge of the quantum of their claim, and a costs order will be made only if there are ‘special circumstances’.^[5] The increased use of online courts can isolate sections of an older population when they are faced with online filing, email and Dropbox. Similar considerations were raised in the 2016 Australian Law Reform Commission report in relation to access problems with myagedcare.gov.au.^[6]

RETIREMENT VILLAGES AND AGED CARE RESIDENTIAL FACILITIES

Unfortunately, there is much to litigate about on behalf of older people. In the retirement village sector, concerns raised about the fairness and transparency of operators’ business practices reached a peak following an explosive story in the national media,^[7] forcing the NSW Government Inquiry/Review into the Retirement Village Sector.^[8] The principal concerns included exorbitant exit fees hidden in highly complex contracts as well as misleading marketing and advertising. The moment of execution of a retirement village contract is unavoidably during a busy and stressful time for the older person and their family. There may be capacity issues and an attorney may have been appointed. Although an action may be brought for termination of contract where there is a dispute, it is only in very recent times that such actions have been contemplated. There are too many instances of operators overcharging fees and charges, contracting services and facilities that are not subsequently provided, or residents being sold a defective retirement village unit. Older people can find themselves in a position where they must enforce the contract that an aged care facility attempts to terminate due to rising land value or on the grounds that the resident is a tenant.^[9]

Frail and dependent older people living in the residential aged care setting, often in high-care facilities, are particularly vulnerable. Nearly one-quarter of a million people received residential aged care services in Australia last year. By 2050, nearly one-quarter of the Australian population will be over 65 compared with only 13 per cent today. These older people are hidden from public scrutiny and, unless visited regularly by family members, many will be neglected. We have seen many shocking cases of neglect and unacceptably poor clinical care being brought to light by the media, so much so that the word ‘crisis’ is being used to describe the general state of the aged care system.

NEGLIGENT STANDARD OF CARE IN AGED CARE SETTINGS

Despite falls, infections from bed sores, deaths from starvation and dehydration – and reports of a high incidence of avoidable deaths^[10] – litigation is uncommon. Why is there such little litigation against aged care facilities? Case law supports the prosecution of such cases both in negligence and in intentional tort. In A v Hoare [2008] UKHL 6 an employer care home was held to be vicariously liable for intentional assault on the part of an employee. Systemic cases of neglect and abuse have been run more often in the UK^[11] than in Australia despite the fact that complaints made about Australian care accommodation^[12] mirror the cases brought in the UK. The High Court in Prince Alfred College Inc v ADC [2016] HCA 37 outlined the position in the UK and upheld the concept of vicarious liability for intentional tort.

One possible reason for the low numbers of claims is the confronting nature of the injuries. The subject matter may be difficult to deal with, but the cases generally involve unarguable negligence. No wound care nurse will defend a case where an aged care resident has developed a grade 3 or 4 bed sore. The failure to identify the risk of bed sores and act to prevent them is almost always a negligent act. The only defence is to argue that the patient could not be moved for medical reasons, which would be an extremely rare situation.

There is broad condemnation of the use of antipsychotic medication in residential care facilities^[13] and especially prolonged or continued use. Such practices are often linked to falls. It is therefore hard to imagine any geriatrician accepting that the use of such medication amounts to acceptable clinical practice. It is not relevant to the determination of whether a particular aged care facility has breached its duty of care to have evidence that the facility has been understaffed or that the staff are overworked.

Family members wanting to complain about the standard of care provided to their loved ones are directed to the complaints mechanisms established under the Aged Care Act 1997 (Cth), s56(4). Reports from the Aged Care Complaints Commission have in our experience been useful in establishing whether there is evidence of negligence. The view has been expressed that evidence as to breach of such statutory standards will play a significant – but not necessarily determinative – role in assisting a court to establish whether the relevant standard of care has been breached.^[14] In all of the aged care cases we have seen, there has already been an investigation by the Aged Care Complaints Scheme. These lengthy, detailed reports generally show that the care provided has not complied with the Quality of Care Principles contained in the Aged Care Act 1997 (Cth).

These examples show a lack of legal complexity in such cases. Yet personal injury lawyers (to whom this work would be expected to fall) do not aggressively chase aged care cases as they do catastrophic cases. Why is this?

REASONS FOR THE LOW NUMBER OF AGED CARE CLAIMS

Aged care residents are often unlikely to make a complaint for the reasons already noted. A poor attitude to complaints in the industry and an ineffective external complaints mechanism has compounded this culture. Contact with lawyers generally falls to family members.

Even when there is contact with lawyers, family members often encounter disinterest due to the low quantum of such cases. According to UK barrister Daniel Bennett, personal injury lawyers appear to have ‘an unhealthy obsession with high-quantum cases’.^[15] This accords with our experience. When acting for a retired person in a personal injury context, a quantum assessment at the lower end of the spectrum will follow. A retired person will have little or no loss of future income, superannuation and a shorter life within which to endure a reduced quality of life and/or require domestic assistance when compared with younger clients. Moving up the age spectrum, claims brought in the name of aged care residents would be regarded as commercially unviable although there are many reported cases in the UK. The frail aged person with several co-morbidities may well not exceed the 15 per cent threshold required to support payment for non-economic loss.

A fact often overlooked by some lawyers is that the claims we have brought against aged care facilities have been brought by family members usually following the death of a frail aged family member. As pure mental harm cases, most matters in our experience fall within the 30-40 per cent of the most extreme case assessment of non-economic loss.^[16]

Cases should be brought against aged care facilities and retirement home operators.

Alliances are developing between aged care advocacy groups and lawyers in the growing discipline known as ‘elder law’. These lawyers can see the connection between improved standards of care and litigation.

Given the recognised problems with available complaints mechanisms, litigation is rightfully seen as the best and most effective vehicle for highlighting systemic clinical problems in aged care. Successive governments have not demonstrated the necessary commitment to improve the quality of care for chronically ill aged people, with successive enquiries failing to review clinical standards in aged-care facilities.

In bringing a negligence action, the plaintiff is stating in a public way that they have been harmed by the carelessness or substandard behaviour of a person or institution who owes them a duty of care. The plaintiff is calling attention to a serious problem to prevent others from being harmed by a similar event in the future.

Litigation has been shown to have a strong deterrent role and has led to changes in social policy. The economic incentive provides a deterrent signal, as does the exposure that accompanies litigation arising from poor care. The aged care sector was opened up to huge private corporations as part of the Howard government’s overhaul of the sector which included the introduction of the Aged Care Act 1997 (Cth) and in a strongly competitive marketplace, reputation is everything.^[17]

FINANCIAL EXPLOITATION

In addition to clinical abuse, elder abuse that is based on financial exploitation has become an issue of national importance. ‘Granny flat’ accommodation is a common vehicle for exploiting an older person’s interests. Typically, the older person finances their own move to the ‘granny flat’ as an addition to their adult child’s property. Problems arise when the older person is ordered to leave, is mistreated to the point that staying is no longer an option, or when pre-arranged care arrangements have not been complied with. The available remedy involves an application to the Equity Division of the Supreme Court of NSW – often long, costly and highly stressful for an older person. Documentary evidence of the agreement is often not available to the lawyers involved. Recent cases include Pobjoy v Reynolds [2013] NSWSC 885, which involved a 79-year-old pensioner who was induced by her daughter to sell her home and buy a property in the name of her daughter and son-in-law. Divorce occurred, and the property was sold under family court orders. The mother obtained a declaration on the basis of proprietary estoppel that her daughter’s subsequent property was subject to an equitable charge in her favour and for the funds advanced to be protected by a caveat. Hayes v Hayes [2015] QSC 088 provides another example where the older person succeeded in protecting their property rights by constructive trust. All of the difficulties associated with accessing the legal system to enforce and protect the interests of the older person previously discussed are relevant here.

There is no criminal code at state or Commonwealth level that applies to elder abuse in institutional care or in the home, such as administering medication unlawfully, unlawful restraint, aggravated breach of fiduciary duty, and aggravated undue influence. There are lawyers actively engaged in elder law who are championing the cause of a specific piece of legislation or amendments to the criminal code to give statutory recognition to these types of elder abuse.^[18]

CONCLUSION

Access to justice for older people will become a reality only when procedural fairness becomes a reality. We need specialist and compassionate lawyers with the right skillset and understanding, and a lack of unconscious bias, to effectively make the case for older people.

Catherine Henry is the Principal of Catherine Henry Lawyers in Newcastle, NSW. EMAIL catherineh@catherinehenrylawyers.com.au. Kim Boettcher is a Barrister at Chalfont Chambers, Sydney. EMAIL kboettcher@chalfont.com.au.

^[1] Equality Challenge Unit, United Kingdom, <https://www.ecu.ac.uk/>.

^[2] Law Council of Australia, ‘Unconscious bias training now available to all Australian lawyers’ (Media Release, 8 March 2017), quoting then President Fiona McLeod SC.

^[3] Legal Profession Uniform Law Application Act 2014 (NSW), cl 2, sch 2.

^[4] Pursuant to ss56-60 of the Civil Procedure Act 2015 (NSW) (CPA). The modern approach to pleadings is that parties must promptly identify the issues in contest and particularise those issues where necessary ‘for the purposes that the parties can prepare to meet them’: Queensland v JL Holdings Pty Ltd [1997] HCA 1.

^[5] The circumstances do not need to be extraordinary or exceptional but ‘out of the ordinary’: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 pursuant to ss56-60 of the CPA.

^[6] Australian Law Reform Commission, Elder Abuse, Discussion Paper No. 83 (December 2006); Australian Law Reform Commission, Elder Abuse – A National Legal Response, Final Report No. 131 (May 2017).

^[7] A two-part programme on the ABC, 4 Corners, ‘Bleed them dry until they die: The retirement villages ripping off retirees’, which aired on 26 June 2017.

^[8] The Review (known as the ‘Greiner Review’, Kathryn Greiner being the Chairperson) was announced on 23 August 2017 and the findings published on 30 June 2018.

^[9] See Croydon Park Apartments Pty Ltd v Wei [2018] NSWSC 20; Butterworth v Trustees of the Society of St Vincent de Paul (NSW) [2012] DC 211.

^[10] J E Ibrahim, L Bugeja, M Willoughby et al, ‘Premature deaths of nursing home residency: An epidemiological analysis’, Med J Aust, Vol. 206, No. 10, 2017, 442-7.

^[11] See decisions cited in article by barrister Daniel Bennett, ‘Elder abuse and death claims’, AvMA Medical and Legal Journal, Vol. 18, No. 5, 2012.

^[12] There is no gateway provision such as section 16 of the Civil Liability Act 2002 (NSW) for the assessment of general damages but rather a track-based litigation system that compartmentalises claims on the basis of quantum of damages.

^[13] See S U Zuidema et al, ‘A consensus guideline for antipsychotic drug use for dementia in care homes: Bridging the gap between scientific evidence and clinical practice’, International Psychogeriatrics, Vol. 27, No. 11, Nov 2015.

^[14] E Brophy and H Lunt, ‘Statutory standards as indications of the standard of care in negligence: The nursing home context’, Torts Law Journal, Vol. 7, 1999.

^[15] Bennett expressed this view in a conference paper entitled ‘Acting for the vulnerable patient’, AvMA Clinical Negligence Conference, 25 June 2010.

^[16] See Civil Liability Act 2002 (NSW), s16.

^[17] These issues are explored more fully in D Hirsch, ‘Does litigation against doctors and hospitals improve quality?’ in J Healy and P Dugdale (eds) Patient Safety First – Responsive Regulations in Health Care (Allen & Unwin, 2009).

^[18] In particular, Rodney Lewis is a solicitor and the author of Elder Law in Australia, 2nd ed, Lexis Nexis, 2012.