Home' Australian Ageing Agenda : AAA Jan-Feb 2013 Contents an important element of the case. I've
never forgotten that."
Herd says he was so stirred by that
experience, he embarked on some
research into the area. He discovered
that in the US there was a specialisation
in law relating to services around older
people. Closer to home, he discovered the
existence of the peak body, Aged Care
Queensland (now LASA Queensland) and
he decided to take 'a large right hand turn'
in his career and focus on aged care.
"It is unusual in the law to change
direction like that and it's hard to do," he
reflects. "I had to convince my colleagues
and partners, so I summarised the results
of my research. I explained that, in law,
we needed to expand and diversify and
be self sustaining and we had an ageing
population; and aged care was a highly
regulated industry -- the more laws, the
more legal work!"
At the time, Herd says, most lawyers
working in aged care were in the
commercial transaction area -- buying
and selling facilities or beds. But the
new aged care act in 1997, he says,
'revolutionised aged care'.
"A whole system was born in 1997 -- it
was a biblical act with biblical principles.
"Before the introduction of the Aged
Care Act, there were not a lot of aged
care services requiring lawyers. At
that stage, most lawyers were glorified
property lawyers. But the new act opened
up a whole new vista of areas around
regulations and compliance."
FINDING A PASSION
Herd says that one of the most interesting
aspects of aged care he found is what he
calls "that poignant pairing of caring for
vulnerable people and the business of it."
"On the one hand there is a very human
element and then there is the hip pocket
element. It's counterintuitive," he says.
"You don't find that sort of cleavage
in many industries. The business person
is basically living with their client and
providing care for them, at a price. It's
very unusual: they have to care for you
and they charge you a lot of money for it.
"All this started to percolate in my
head and I found it very stimulating. It
fermented a passion. And I don't have any
passion for mortgage debentures. It's hard
to have a relationship with documents."
A GOVERNING MISSION
Realising that most of the transactional
legal problems he was dealing with
resulted from internal failures of
governance, boards and governance
quickly became an area of focus for Herd.
"A lot of what comes from governance
comes from law as it applies to directors.
So we see it as part of our core business,
as a core part of our provision of services
"A lot of what I do in governance is
restructuring organisations. A lot of my
clients are rural and regional providers,
good intentioned butchers, bakers and
candlestick makers who don't understand
what to do or why they are there. They
need training and on that basis you can
restructure the organisation.
"So many of the problems I see come
down to a lack of training. You see it in
most disputes because they don't know
or can't remember or because they've
forgotten what the law says," Herd says.
The association, established more
than a decade ago, with Aged Care
Queensland brought about a nice
confluence of opportunity to pursue
his training mission with a stage and an
While Herd has no background in
performance, he has recently joined a
choir for the first time and he admits
he thoroughly enjoys his outings on
conference speaking platforms.
"I have always been a frustrated actor
and I see speaking platforms as a stage
and enjoy getting up there and putting on
"I enjoy it naturally and it has opened
up a lot of opportunities. But secondly
it gives me the opportunity to address a
major issue, which is a lack of knowledge
borne of a lack of training.
"The more people know, the more in
control and confident they are to make
decisions and do their job well and the
less they will feel worried about making
mistakes," he says.
And while training must be informative
and educative, Herd's philosophy is that if
you can make it more entertaining, it will
be more memorable.
THE SHAPE OF
THINGS TO COME
Brian Herd worries about the future for
a lot of aged care providers -- mainly the
smaller rural and regional services which
he believes will struggle to survive all the
changes ahead under the Living Longer.
Living Better reform plan.
"A lot of my clients are small services
in rural and regional areas and similar tiny
services in rural and regional communities
throughout Australia. The only way they
can survive is to diversify or merge.
"But a lot of them just aren't geared
up for that. They're geared up for care
and a lot of them have a passive 'victim
of circumstance' mentality, instead of the
'hero of their own destiny' approach."
Will the coming few years sort out the
sheep from the goats? "Undoubtedly,"
he says. "The government is moving
from a handing out the money approach
to one where they're saying you go and
negotiate with the residents and see what
you come up with.
"The reality is that many are not viable
in themselves without diversification.
They'll go out of business or be taken over.
Most of them are not for profits and their
stakeholders are the local community and
that really needs to be considered.
"Right now for-profits are taking over
other for-profits, getting bigger and
corporatising. And a lot of bigger not-for-
profits are now gobbling up smaller not-
for-profits. The bigger you are, the better
you are; the more diversified you are, the
better you are."
Herd's advice to those services facing
the tough questions is to get outside and
look beyond the front door for potential
opportunities. He'd also like to see some
sort of mandatory in-house training for
"Aged care providers are only as
good as the last staff member who joins
them. We need a more serious approach
to training. Not just a once-in-a-while
approach. It needs to be constant, in-
house, regular, repetitious and regulated.
And it needs to be fun." n
"I would like to say that I admire those change merchants called politicians. But politics
gets in the way of policy. The reality is we are so over analysed and reported on...
politicians like to analyse... Since 2000 we have had reams and reams of reports and in
reality, very little change."
"The fish rots from the head. So much of good aged care is about what happens at the
level of the board and senior management but a strong board is so important."
ON AGED CARERS
"A lot of what I see in aged care, I have to admire. It's difficult work and it's not glamorous,
sexy or top of the pops; but people frequently perform above and beyond the call of duty
and they don't get paid very well for the duty."
ON AGED CARE LAWYERS
"We few aged care lawyers have a real succession issue because it isn't easy to get
people on the aged care bandwagon and it requires both real expertise and experience
to conquer the legal demands of the sector. Young lawyers will generally look at the more
lucrative areas of law with big commercial transactions and it is hard to convince them to
go for challenge and interest over remuneration."
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