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Letter to Aged Care Minister

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.  

Yours sincerely,

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

Indemnity not immunity

Schedule 9 of the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 provides immunity to aged care providers who comply with the Quality of Care Principles under the Aged Care Act, 1997.

Rodney Lewis, Catherine Henry and Professor Wendy Lacey, three top elder abuse and human rights lawyers in Australia, oppose this legislation. To avoid stripping older Australians of their legal and human rights, Rodney Lewis suggests providers be given indemnity rather than immunity.

The following outlines Rodney Lewis’ proposal.

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In 2021 the former Federal government offered an indemnity scheme for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.

In the case of the offer of immunity to aged care providers, the legal risk arises in some states and territories because there is uncertainty and difficulty identifying who has the lawful authority to consent to restrictive practices. In the absence of lawful consent, the legal defences are imminent harm to the person, or imminent harm to others.

The solution proposed by aged care providers and adopted by the present and former Commonwealth governments is to offer immunity to providers who comply with the Quality of Care Principles.

Regrettably, immunity removes the basic legal and human rights of residents which has serious and some unprecedented social policy, legal and human rights consequences.

The possible solution is the 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 last 25 years could be as little as six and not all were a success for the complainant.

To avoid the legal and constitutional challenges to the immunity proposal, the indemnity scheme may be vastly more acceptable, reasonable and preferable for all parties to the debate.

Letter to PM

1 August, 2022

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.

Yours sincerely,

Dr Sarah Russell – Director, Aged Care Matters

cc

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

Collection of my Opinion Pieces

Over the past decade, I have undertaken several research projects on both residential and home aged care.

I have also written 75 opinion pieces, published in The Age, The Guardian, Herald Sun and Michael West. I have also appeared on ABC TV  7.30, Afternoon Briefings Channel 9’s The Today Show and Channel 10’s The Project.

This document contains a collection of my Opinion Pieces and Letters.

We need a complete rethink on aged care

HeraldSun

23 January 2019

The Royal Commission into Aged Care Quality and Safety began last Friday. Scott Morrison announced the Royal Commission on the eve of last year’s ABC Four Corners’ investigation into inadequate personal care, negligence, neglect, abuse and assault in aged care homes.

Before jumping into another expensive royal commission, perhaps Scott Morrison should have reviewed the numerous inquiries, reviews, consultations, think tanks and task forces over the past 10 years. These inquiries provide evidence of appalling standards of care in some aged care homes. They have also resulted in a large number of recommendations, most of which have been ignored by successive governments.

The most dispiriting aspect of all these inquiries is the number of submissions by residents, relatives and staff that have been ignored. Submissions to the recent Review of National Aged Care Quality Regulatory Processes indicated strong support for mandatory staff ratios in aged care homes and for registered nurse to be on duty at all times. However, there was no mention of this in the report.

To prevent poor standards of care in aged care homes, a sufficient number of trained staff must be employed. Although it’s not the only remedy, evidence shows the value of mandating staff ratios in aged care homes.

The government values the safety of children in childcare enough to mandate ratios. The government also values the safety of patients in hospitals enough to mandate ratios. Clearly the government does not value the safety of older people in aged care homes enough to mandate ratios.

The Terms of Reference for the Royal Commission are primarily about the future of aged care. However, if the Royal Commission does not look back, it will not be able to move forward without making the same mistakes. As Albert Einstein said: “We cannot solve our problems with the same thinking we used when we created them”.

To improve standards of care in aged care homes, The Commissioners must review evidence on quality indicators such as pressure sores, medication errors, weight loss, falls, infection rates admissions to hospitals, staffing levels and training in all aged care homes. Currently, these data are not publicly available.

Who decided that data on residents’ safety and wellbeing in aged care homes must be kept top secret? To answer this question, we need to go back more than 20 years when the Aged Care Act 1997 was drafted.

The Aged Care Act 1997 was a turning point for aged care policy in Australia. It encouraged a large increase in private investment. Private equity firms, new foreign investors, and superannuation and property real estate investment trusts entered the residential aged care market. Many of these companies focus on profits rather than standards of care.

The dean and head of the University of South Australia’s law school Wendy Lacey has criticised the Aged Care Act, arguing that there is “a complete absence of any positive and mandatory legal obligation on the part of facilities to take proactive measures to promote mental health and wellbeing of their residents”.

The standards of care in aged care homes are a human rights issue. The only way to ensure higher standards of care is for the government to rewrite the Aged Care Act. The government needs to work not only with aged care providers, but also staff, residents and their families.

We need a new Aged Care Act that focuses on Human Rights of older Australians not the profits of providers. We need a new Aged Care Act to ensure the highest possible standards of care in all aged care homes.

Dr Sarah Russell is the Director of Aged Care Matters