1 August, 2022
(Letter sent under Australian Lawyers Association letterhead)
Dear Minister Wells,
Thank you for your determination to reform the aged care system.
We welcome most of the changes incorporated within the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (“the Aged Care Reform Bill”). However, we are opposed to the inclusion of Schedule 9 in its current form. It is unjust and discriminatory. It denies older people who live in residential aged care – a vulnerable cohort of people – the same legal protections given to all other Australians.
The Bill before Parliament purports to being within the bounds of the Royal Commission’s recommendations and the Commonwealth’s responses to those recommendations. Yet the Royal Commission made no recommendation that providers and their staff should have immunity for some of the most objectionable aspects of aged care – restrictive practices without having obtained lawful consent. Such practices attracted the most ire from the Commissioners.
Some “consumer” organisations which are funded by the government have indicated support for Schedule 9. However, we are a coalition of independent advocates and elder/aged care lawyers who speak without fear of losing government funding and are able to voice our legitimate and strongly held opposition to Schedule 9.
When the former MP Tim Wilson introduced Schedule 9, his rationale was to “address unexpected outcomes in relation to the interaction with State and Territory guardianship and consent laws”.
From 1 July 2021, strengthened arrangements regarding the use of restrictive practices came into effect. These arrangements require consent to have been provided either by the care recipient or – more likely – the care recipient’s substituted decision-maker.
It has been claimed that legislative differences among states and territories present a risk to aged care providers because of the uncertainty and difficulty in identifying who has the lawful authority to consent to restrictive practices.
The aged care providers’ solution – adopted by the present and former federal governments – is to offer immunity to providers who comply with the Quality of Care Principles under the Aged Care Act, 1997. Yet there is another solution that does not undermine people’s fundamental common law rights that have developed over centuries.
By giving providers immunity against criminal charges and civil claims if the provider complies with the restrictive practices’ obligations in the Quality of Care Principles, Schedule 9 subordinates the common law to regulations made under the Aged Care Act (i.e. Quality of Care Principles).
It is an extraordinary overreach of Constitutional powers for the federal government to grant aged care providers immunity from key legislation enacted by states and territories. This includes immunity from consumer law, the common law crimes of unlawful restraint, assault and battery and writs of habeas corpus.
Offering immunity to commercial businesses is also unprecedented. Many providers are private ‘for-profit’ – including publicly listed – companies (Estia, Regis) and multinationals (Bupa, Opal).
Schedule 9 also breaches Australia’s obligations under the International Covenant On Civil And Political Rights and the Optional Protocol and Optional Protocol to the Convention Against Torture that Australia has signed.
We put forward a solution: An offer of an indemnity rather than immunity. Such a solution is workable based on the history of claims arising from unlawful restrictive practices in aged care. The number of recorded court cases over the past 25 years could be as little as six (and not all were a success for the complainant). Given that residents and their families have rarely taken legal action against providers – despite the well-documented track record over decades of neglect, poor treatment and abuse of the people in their care – the willingness of government to protect approved aged care providers is staggering.
There are many examples of similar indemnity schemes – most recently that offered by the former Federal government for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.
To avoid the legal and constitutional challenges to the immunity proposal, the indemnity scheme may be much more acceptable, reasonable and preferable for all parties to the debate. It would also ensure that the government’s determination to reform the aged care system proceeds without delay.
People who have been abused should always have access to their common law rights, regardless of where the abuse occurred.
Dr Sarah Russell – Director, Aged Care Matters
Rodney Lewis – Solicitor – Elderlaw, Author – Elder Law in Australia
Frank Ward OAM – Resident, Harbourside Haven Village
Elizabeth Minter – Aged Care Matters
Professor Wendy Lacey – Executive Dean, Faculty of Business, Government & Law, University of Canberra
Catherine Henry – Solicitor, Australian Lawyers Alliance