Dear Prime Minister,
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, it beggars belief that the Albanese government remains committed to Schedule 9.
Schedule 9 provides immunity to aged care providers who comply with the Quality of Care Principles under the Aged Care Act, 1997. Yet these principles haven’t even been written!
Furthermore, Schedule 9 is unjust and discriminatory. It provides immunity for providers and their staff for some of the most objectionable aspects of aged care – the use of restrictive practices without having obtained lawful consent. Such practices, which include chemical restraint, physical restraint and seclusion, attracted the most ire from the Aged Care Royal Commissioners.
Schedule 9 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.
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.
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 Albanese government, like the Morrison government, simply adopted the solution put forward by the aged care providers – immunity against civil or criminal action.
By giving providers immunity against criminal charges and civil claims if the provider complies with the restrictive practices’ obligations in the still to be written 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 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 workable solution: an offer of an indemnity rather than immunity. The number of recorded court cases arising from unlawful restrictive practices in aged care 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 – despite the well-documented track record over decades of neglect, poor treatment and abuse – 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 Morrison government for health practitioners in that event that people receiving COVID-19 vaccines experience serious adverse events.
People who have been abused should always have access to their common law rights, regardless of where the abuse occurred.
Do you really want your government to be remembered as the one that stripped many older Australians of their fundamental legal and human rights? Surely you don’t want to be the government that took such unprecedented action simply to protect the profits of aged care providers, many of whom are multinationals, over the rights of vulnerable Australians.
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
Catherine Henry – Solicitor, Australian Lawyers Alliance
Professor Wendy Lacey – Executive Dean, Faculty of Business, Government & Law, University of Canberra