Nursing home guidelines to clarify contract of care
The consumer protection watchdog has published its guidelines for nursing home contracts which it says will stop “unfair” terms being imposed on residents and their families.
The Competition and Consumer Protection Commission says its guidelines will bring transparency, certainty, and clarity to consumers and service providers.
It said the urgency with which the need for a nursing home can sometimes arise, the limited options available to consumers, and the nature of the service provided means those looking to enter an agreement with a residential care provider are in a vulnerable position.
An example of one potentially unfair contractual condition found during the CCPC’s research was the stipulation a resident or their next of kin are made responsible for all costs associated with their care, without the nursing home outlining the full nature and extent of these liabilities.
Others include terms that seek to limit or restrict a nursing home’s liability for incidents caused by the negligence of the nursing home in failing to adequately address a hazard that later caused an injury to a resident.
The guidelines suggest ways contracts of care should deal with issues like changes to agreement, variations, and additional fees, and what happens upon death of a resident.
However, the CCPC said only the courts can ultimately determine if contractual terms are fair — but that the watchdog can form a view on these conditions.
The CCPC can apply for an injunction to stop a nursing home relying on a contractual term if it sees fit, and it said consumers who take their own case can rely on the guidelines in court by admitting the new document as evidence.
CCPC chairperson Isolde Goggin said it is up to each nursing home provider to review their standard form contracts of care to ensure they are in compliance with consumer protection law.
After a period of time to allow for any changes to be made, the CCPC plans to again assess compliance in the sector.
"The law protects consumers from standard form contracts which are imbalanced in favour of a business to the disadvantage of a consumer. While it is up to the courts to decide if a term is unfair, our guidelines highlight examples of potentially unfair terms in contracts of care currently in operation in the sector.
"Our consumer booklet provides assistance to residents who may wish to challenge similar terms if they exist in their contracts of care.”
The CCPC’s intervention in the nursing home sector will not have an impact on the ongoing debate over and review of the Fair Deal scheme, however.
“Our guidelines will not resolve all of the issues in this sector, however, our goal in undertaking this work was to ensure that residents and their families have more certainty and clarity in what they, and the nursing home, are committing to when they sign a contract of care,” she said.
“If there are any changes, for example, to fees, after the contract is signed, these changes must be reasonable, taking the resident’s interests into account and be clearly communicated.”
The guidelines cover both public centres and private enterprises and have been published after consultation with various stakeholders.
The CCPC said it does not consider existing contracts that contain these conditions to be invalidated by the publication of the guidelines, and that if a contract can continue in place without having to rely on a specific unfair term, then it will.
