A compilation of Letters and Opinion 2012-2021
In early August 2020, Victoria had Covid-19 outbreaks raging in over 100 private aged care homes, yet the government refused to tell us which ones.
At a Senate inquiry hearing on August 4, 2020, Dr Brendan Murphy, secretary of the Department of Health, and Senator Richard Colbeck, the Minister for Aged Care, refused to name the aged care homes. They explained that providers didn’t want to be publicly named because they were worried about “reputational damage”.
It is not the role of the Department of Health or the government to protect aged care homes from reputational damage. Imagine the government refusing to tell the public which schools, workplaces, restaurants or child-care centres had Covid outbreaks because of concerns about “reputational damage”.
In my view, it was unconscionable for important information about aged care homes to be kept top secret. I shared this list in the interests of transparency. It had nothing to do with “naming, shaming or blaming”.
During the coronavirus lockdown, many of us are spending more time on social media. It is a golden era for lawyers to scroll though Facebook and Twitter looking for even the most mildly offensive comments.
Suing people for making ‘defamatory’ comments on Facebook is becoming an industry. While some lawyers chase car accidents, others chase social media posts. Those of us who are sued are often advised to pay ‘go away money’ rather than go to court. It is difficult therefore to gauge the size of this industry.
Australia’s defamation laws were written long before we all had access to social media. They were written with public figures and newspapers in mind. Defamation was once considered solely the domain of rich public figures. Although public figures continue to sue media organisations, private individuals are increasingly turning to defamation laws as a way of being vindictive.
Using the legal system to protest against offensive comments on social media was never the intention of defamation law. None the less, our defamation laws currently treat a Facebook post that is read by a handful of people the same as if the comments were published in a national newspaper.
Recently, a woman was ordered to pay $35,000 in damages after posting in a neighbourhood Facebook group that a member was “intimidating, bullying and threatening” women in the group. The plaintiff alleged that this Facebook post had “totally damaged” his credibility.
Federal Attorney General Christian Porter has described these types of social media cases as “neighbourhood disputes”: “There’s a balance there to be struck between people having the right to defend their reputation, but not clogging up the courts with stuff where there isn’t any actual, realistic, quantifiable damage to a reputation done simply because something was said in a neighbourhood dispute which was mean-spirited amongst neighbours.”
The regular Twitter “pile ons”, ad hominem tweets and personal attacks that are made on Facebook pages suggest that many people posting comments on social media are unaware of the possibility of being sued for defamation. Even an innocent mistake, like the one I made, can cost a significant amount of money.
I am a public health researcher and aged care advocate. I have published several research reports about aged care and had numerous opinion pieces published about systemic issues within the sector. I also administer the Aged Care Advocacy Facebook Group, which has become a go to page for older people and families wanting advice from other members on how to tackle problems.
In recent years, some people who claim to be aged care advocates have engaged in bullying online behaviour. They use social media in an attempt to destroy the reputations of people working in the aged care sector. Some focus their ad hominem attacks primarily on providers. Others attack anyone working in the aged care sector, including aged care advocates.
Social media has enabled a small group of women to play havoc with many people’s lives. Unfortunately, Facebook turns a blind eye to those whose relentless online abuse has caused depression and other mental health issues, including suicidal ideation.
After I exposed the abusive online behaviour of some of these aged care advocates, I then became their target. The abuse against me began with a silly direct message comparing my meetings with aged care providers to “having lunch with George Pell”. It later escalated to vulgar, bullying and harassing posts. The abuse was relentless, and included a large number of uninvited posts on my personal Facebook page.
My strategy was to ignore, delete, block. However, this was difficult because these people use many different Facebook identities such as Kirri Billi, Netty Elizabeth, Marilyn Munroo and Tess Tickle.
I did not read their posts. Instead, I deleted them and blocked the accounts. I later responded with a Facebook post that was intended to name and shame. In this post, I referred to those who had posted on my personal Facebook page as “trolls”, unaware that one of the identities was the name of a real person.
I was subsequently sued for defamation. The plaintiff claimed $100,000 in damages. While I now appreciate how easy it is to satisfy the legal criteria for defamation in Australia, it remains unclear to me what actual reputational harm my post caused. Did it cause the person to lose respect within her community? Her job? Her income?
Rather than sue for hurt feelings from a Facebook post, a person should be required to show serious harm to warrant defamation action. In the first Twitter defamation case in Australia to proceed to a full trial, a judge found a former student’s posts about a school music teacher were untrue. More recently, a registered nurse sued after Facebook posts falsely claimed malpractice by the nurse and that the nurse was drinking on duty. In both these cases, the social media posts caused serious harm by damaging professional reputations.
The federal Attorney General has indicated an overhaul of defamation law that will require plaintiffs to demonstrate serious harm. Damaging professional reputations is serious; hurt feelings are not. An overhaul of the law would make it more difficult for vindictive “neighbourhood disputes” to go to court.
I did not drag my case though the courts and instead settled the case quickly. There’s no suggestion that the particular lawyer involved in my case scrolled through Facebook for the post, but I was nevertheless left wondering how much the lawyer was paid.
First published in Online Opinion 2 June 2020
Article in SMH
If amendments had gone through the Senate, they would have been a game changer for the aged care sector. They would have improved transparency and accountability around finances, staffing ratios and complaints in aged care homes.
22 July 2019
The title of this year’s Victorian Healthcare Week Great Debate was: Do We Need Mandated Staffing Ratios in Aged Care? Are we better off focusing on the quality outcomes for older Australians rather than mandated staffing ratios?
Lisa Giacomelli (Chief Operating Officer YMCA NSW) and I (Director, Aged Care Matters) received an invitation to speak on the opposing team. We were told we had been specially selected based not only on our expertise but also our ability to marry humour with intellect.
Lisa presented a strong case to show that mandating ratios does not guarantee quality. Lisa used examples from the childcare industry, an industry that has mandated ratios.
“I have worked in the child care industry for nearly a decade. Ratios are mandated there and services are audited and checked by the regulator to ensure they are ‘in ratio’.
“When something occurs in a service when things don’t go to plan, the first question asked is always: ‘Are we in ratio?’ And I can tell you the answer is almost always ‘yes’.
“Being in ratio does not prevent poor practice, it does not prevent care standards being upheld, or staff taking their eye off what they are meant to be doing, or clients acting in a way that wasn’t anticipated, or allergic reactions to medication or accidents, nor does it prevent policies and procedures being breached.
“In fact, ratios can have the opposite effect. The need to be ‘in ratio’ (a golden term in the children’s services industry) causes all kinds of stress for coordinators and directors who spend their time finding staff and managing rosters rather than focussing on quality of care, listening to the voices of children and dynamic educational leadership. It’s hard to be inspiring when you are struggling to ‘stay in ratio’.
“Mandated ratios result in a higher reliance on agency staff which, due to the inconsistent nature of agency staff who do not understand the service or know the children, can create inconsistency of care, lack of commitment to the service and the role and undermine the safety that children feel in a familiar and consistent environment. Agency staff, whilst doing their best, just cannot have the same engagement with service and organisational culture, or with clients than long serving staff can.
“They also create a false sense of security. It is not difficult to envisage services believing that as long as we are ‘in ratio’ we are offering good quality, engaged and inspired care. Management and leadership can take their focus off what staff are doing to focus on how many staff are doing it. Leadership becomes more about rosters and less about staff development, more about regulation and less about client experience, more about ‘not getting caught out’ and less about the very people that aged care services are there to serve. This is the danger of ratios and they can be dangerous.
“If you want to mandate quality care – mandate engagement with clients, families and communities. Ensure that staff culture is positive, resilient and empowering. Train the best and brightest and pay them that way.”
Sarah began by asking the audience to raise their hands if they wanted all older people living in all aged care homes to have the best quality of life possible. As you would expect, there was a sea of raised hands.
“I am a public health researcher and aged care advocate. My research shows there are good aged care homes. However, anybody who has paid even the slightest attention to the Royal Commission on Aged Care Quality and Safety knows that not all aged care homes are good.
“In any profit-based system that relies on government subsidies, like pink batts, private colleges and aged care, there are always some shonky providers. These shonky providers thrive because of systemic and regulatory failures.
“Will the systemic problems in aged care be miraculously fixed by mandating staff ratios? The answer is indisputably ‘No’. A shonky provider will make up the numbers with the cheapest, most unqualified staff possible.
“My colleague has presented a strong case to show you that mandating staff ratios in childcare centres does not guarantee quality. To the opposition, I say: ‘Be careful what you wish for’.
“The opposition has used the same arguments that have been shouted for years. These arguments regularly appear as memes on social media. In response, the peak bodies for providers tweet their own memes. The memes and tweetsgo back and forth but nothing changes.
“It is unusual for an aged care advocate not to support mandating staff ratios. Other aged care advocates get very exasperated with me. They tell me it is simply ‘common sense’ that more staff on duty = better service. This was certainly not the case at my local café last Friday when 2 regular, experienced, competent and cute waiters were sick. They were replaced with 2 agency staff who knew nothing about how the café operated – not even how to use the coffee machine or where to find the tomato sauce. They did not improve the quality of the service. In fact, they reduced it.
“To address the systemic issues in the aged care sector, we desperately need ethical leadership. We need someone with a kind heart and open mind who can see past the vested interests. We need a Nelson Mandela, Jacinda Adhern or Greta Thunberg.
“During the past few years, the usual suspects have shouted for staff ratios. The other usual suspects have shouted for more government money. There has been a lot of noise but no leadership.
“Good leaders bring people with diverse views with them. They build consensus not division.
“So what should an aged care leader do?
“Firstly, they should listen to all key stakeholders – not just those with the loudest voice. They would also listen to staff, families, community members and, most importantly older people themselves. They would then bring all key stakeholders to the negotiating table.
“A good leader would put something achievable on the negotiating table – something that all key stakeholders may agree on. I propose we start with staff transparency.
“Yesterday, Rebekha Sharkie re-introduced her Private Members Bill that requires every aged care home to disclose and publish quarterly staff/resident ratios.
“Shonky providers will lobby against this legislation. However, good aged care homes with high numbers of well-trained staff have nothing to fear from staff transparency.
“When we have accurate staffing data we can perform the research needed to develop evidence based staffing guidelines.
“Rather than Staff Ratios that cause division, Staff Transparency is a much better place to start.”
10 July 2019
Last week, I was invited to comment on the requirement in the new Aged Care Quality Standards for open disclosure. I suggested all aged care homes and home care providers should be required to report adverse incidents not only to the older person and their family but also on their websites.
I am pleased both Ian Yates (CEO, COTA) and Darren Mathewson (Acting CEO of ACSA) have contested this idea for improving transparency. I always welcome debate. A public debate about transparency in the aged care sector is long overdue.
My research on residential aged care and in-home care indicates the public want more transparency in the aged care sector. Although many people, myself included, believe the care of frail older people istoo important to be left to the whims of the free market, both COTA and ACSA promote lighter regulation and a consumer driven and market based system, as outlined in the Aged Care Roadmap.
In a free market, so-called “aged care consumers” require access to information to inform their choice of product. For example, to make an informed decision when choosing an aged care home, “aged care consumers” require information about its standards of care. However, aged care homes are not even required to disclose their rosters/staffing levels. How can people make informed decisions about an aged care home’s standards of care when they do not have access to this vital piece of information?
In addition to staffing levels, I have tried unsuccessfully to get data on adverse incidents in aged care homes such as the incidence of pressure injuries, dehydration, malnutrition, medication errors and falls. This information is needed not only to help people make informed decisions when choosing an aged care home but also for an evidence-based discussion about standards of care.
The most common reason providers give for not sharing clinical indicators with the public are: (1) Privacy and (2) Commercial-in-confidence. It is not surprising, therefore, that Ian Yates opposes my suggestion for all adverse incidents to be reported on a providers’ website because it “would raise privacy and other issues”.
In my view, claims about breaching privacy are a red herring. I will use 2 examples to illustrate this.
When my mother had a fall in an aged care home that contributed to her premature death, the manager informed me and apologised (i.e. open disclosure). I am not suggesting the provider should post on the company’s website “Joan Russell had a preventable fall that contributed to her premature death”. Of course that would be a breach of my mother’s privacy.
I am instead suggesting the company be required to publish information about the adverse event. This would include information such as: a fall occurred in the lounge room, the date of the fall and how/why it occurred. The web site should also contain information about what the aged care home has done to prevent a similar adverse event occurring to other residents.
A 94-year-old woman was resuscitated in an aged care home despite having an advanced care plan stipulating ‘Do Not Resuscitate’. The aged care home did not practice open disclosure. The daughter had to fight to find out why/how/who resuscitated her mother.
In my view, the aged care home should be required to share information about this adverse event with the public without breaching the resident’s privacy. The public need to know the policies and procedures have been introduced to ensure other residents are not resuscitated against their wishes.
Several years ago, I asked Ken Wyatt to improve transparency in the aged care sector. I suggested public access to all reports produced by the Australian Aged Care Quality Agency by linking them to the ‘My Aged Care’ website.
Ken Wyatt took my suggestion to the Aged Care Sector Committee. The minutes of the meeting (obtained under Freedom of Information) show that Ian Yates opposed this suggestion for increased transparency. The committee decided the information in these reports was “too technical” for the public to understand. In my view, this was patronizing.
In the 1980s, I was part of a group of registered nurses in an intensive care unit who advocated for open disclosure policies. These open disclosure policies are now legislated in all public health services. I would like to see similar legislation in the aged care sector. I also welcome public discussion about this idea.
Recently, a woman contacted me because a 94-year-old woman was resuscitated in an aged care home despite having an advance care plan stipulating Do Not Resuscitate. Rather than die peacefully after breakfast, this woman had a slow and painful death in a hospital palliative care unit.