Disciplinary action for elder abuse

Ms Kalati was a 57-year-old care service employee / assistant in nursing (AIN). The Health Care Complaints Commission (HCCC) confirmed that Ms Kalati was employed by PAC to provide round-the-clock nursing care to ageing residents, including “u003cemu003eassessing health problems and needs, assistance with activities of daily living, implementation of nursing care plans, pain therapy, feeding, wound care, medication management and documentation.”u003c/emu003e (HCCC Statement of Decision dated 24 March 2021)u003cbr/u003eu003cbr/u003eMany families therefore placed their trust in Ms Kalati and PAC to provide a high level of care to their vulnerable loved ones.u003cbr/u003eu003cbr/u003eMs Kalati had previously worked as an AIN at Holy Spirit Aged Care in Croydon, Sydney between October 2006 and November 2018, and she worked as a disability support worker at Connecting Families Disability Services (Sydney) between September 2018 and February 2020.u003cbr/u003eu003cbr/u003eMs Kalati was still employed at PAC at the time of her arrest on 5 February 2020.  She was detained by NSW Police and charged with eight (8) counts of common assault against eight (8) aged care residents.u003cbr/u003eAccording to a statement released by the Health Care Complaints Commission (‘HCCC’) on 24 March 2021, Ms Kalati pleaded guilty to seven (7) of the assault charges and was convicted on 7 September 2020 at Burwood Local Court.u003cbr/u003eu003cbr/u003eMs Kalati was sentenced to an intensive correction order for seven months, which will expire on 18 May 2021.

The repeated theme of complaints about Ms Kalati concerned elder abuse – manifesting in several physical assaults on a number of vulnerable aged care residents under her care in 2019 and 2020.

u003cbr/u003e1.     In February 2020, NSW Police arrested Ms Kalati after several serious allegations were made by patients and family members.u003cbr/u003e u003cbr/u003e2.     In September 2020, the NSW Local Court sentenced Ms Kalati to serve a seven-month intensive correction order.u003cbr/u003e u003cbr/u003e3.     On 24 March 2021, the HCCC permanently prohibited Ms Kalati from providing any health services in any capacity, either paid or voluntary. (a link to the Statement of Decision is available u003cstrongu003eu003cuu003eu003ca href=u0022https://www.hccc.nsw.gov.au/Decisions-Orders/Public-statements-and-warnings/public-statement-ms-tovale-kalati-assistant-in-nursing-permanent-prohibition-orderu0022u003ehereu003c/au003eu003c/uu003eu003c/strongu003e)

The short answer is “yes”. Following the u003cemu003e“relevant approach”u003c/emu003e adopted by the High Court in the case of u003cemu003eAlfred College Incorporated v ADCu003c/emu003e [2016] HCA 37, the courts are to consider:u003cbr/u003e u003cbr/u003eu003cemu003e“…any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.u003cbr/u003eIn determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important.u003cbr/u003eWhere, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”u003c/emu003e

Persons affected by Ms Kalati have a number of options for redress:u003cbr/u003eu003cbr/u003e• Victims’ Compensationu003cbr/u003eFirstly, primary victims of crime can apply for immediate financial support of up to $5,000.00, as well as 22 hours’ counselling.u003cbr/u003eu003cbr/u003e• Court Proceedings for Damagesu003cbr/u003eSecondly, aged care residents and their families can make a common law claim in intentional tort for the criminal acts perpetrated against them by Ms Kalati while under the care of a residential aged care facility.u003cbr/u003eu003cbr/u003eIf a person claims damages for personal injuries that they have received as a result of either medical negligence or intentional tort, they could seek compensation for any losses caused by the injuries, including the loss of income or income earning capacity, the care they require and are provided either commercially or by their loved ones, and for the pain and suffering that they have suffered.

Contact Usu003cbr/u003eWe can speak with you either in person, by audio visual means, or by telephone, by way of a free initial consultation – in order to understand the circumstances of your potential claim. We will talk to you about your case and advise initially whether we think the case is worth your while to investigate.u003cbr/u003eu003cbr/u003eObtain Your Clinical Notesu003cbr/u003eIf we agree that your case has prospects of succeeding, we will request your relevant clinical records, as well as any relevant police records. Once we have reviewed those records thoroughly, we will advise you whether we think there is merit in pursuing a claim.u003cbr/u003eu003cbr/u003eCourt Proceedingsu003cbr/u003eOnce we have the supporting documents and evidence necessary to commence court proceedings, we can do so on your behalf and act for you in those proceedings until the case is resolved.

Yes, generally three (3) years from the date on which a personal injury becomes discoverable, and not more than twelve (12) years after the offending took place.u003cbr/u003eu003cbr/u003eIt is extremely important to speak with a solicitor as soon as possible if you think you have a claim.