Research Page

Solutions to aged care crisis

Talk given to Southern Womens Action Network (Swan) on 20 November

Thank you for the invitation to speak today.

I also pay my respects to Boon Wurrung people of the Kulin Nation, their elders past, present and future. I extend my respect to all Aboriginal and Torres Strait people here on zoom today. The resilience and wisdom of your culture is our nation’s greatest treasure. I wish to acknowledge the respect your culture bestows on your elders. I also wish to acknowledge that sovereignty has never been ceded. It always was, and always will be, Aboriginal land.

The aged care sector is in crisis.

Evidence for this statement is in the 8 volumes of the Final Report of the Royal Commission into Safety and Quality of Aged Care. It’s also evident in the 20 plus inquiries that preceded the RC and the 75 articles I have published.

A year before the RC started, the federal government announced yet another inquiry into aged care. Soon after the announcement, I bumped into Greg Hunt jogging on the Mt Martha boardwalk. I stopped him to ask why we needed yet another inquiry. Surely the government was aware of the systemic problems in the aged care sector. I told him I thought our aged care system was a national disgrace. Greg disagreed, claiming Australia had a “world-class” aged care system. The RC, announced a year a later, certainly proved me right and Minister Hunt wrong.

This morning, I will describe what’s wrong with the aged care system.

But I don’t want to focus on what’s wrong.

I’d prefer to focus on solutions about how to fix the aged care system. The first step is to shift our ageist attitudes.

It was never part of my life plan to be an aged care advocate. I stumbled into aged care advocacy after my parents moved into an aged care home in 2010. With my background as a public health researcher and a registered nurse, I saw the systemic issues in aged care and began publishing my analysis of these issues in the media. I soon developed a reputation as an independent and informed aged care advocate.

It was also not my plan to stand as the Voices Endorsed Independent candidate for Flinders. However, when the Voices candidate pulled out, and members of Voices voted to endorse a candidate, I put my hand up to replace the Aged Care Minister in his seat of Flinders. I did this primarily to help Voices. But I was also motivated by the failure of successive governments to respond meaningfully to the crisis in aged care.

My parents enjoyed living in their aged care home. Most staff treated them with kindness, respect and love. Staff in aged care homes are often hard working, dedicated people doing a very difficult job for not much pay or professional kudos.

My parents chose the aged care home primarily because they could sleep together in the same room. It’s important to stress that “they” chose the aged care home themselves. Unlike many families who are forced to make the decision quickly after an older person has a health crisis (e.g. fall, heart attack), my parents moved into the aged care home when they were both in reasonably good health.

I noted with interest during the Royal Commission that Merle Mitchell, who had once been the president of the Australian Council of Social Service (ACOSS) and was a resident in an aged care home, did not describe her aged care home as “a home”. In contrast, mum and dad called Victoria By The Park their home. This suggests there are huge variations in aged care homes – ranging from the dangerously bad (like the ones we hear about in the media) to the very good (that we hear very little about in the media). My parents were lucky to choose a good aged care home. However, choosing a good aged care home should not rely on luck.

After dad’s death, I began visiting Mum most days for about 3 years until her death in 2015. I had a routine of arriving each day around lunchtime. I would sit at the dining table with Mum’s friends. Mum did not have a large appetite – but she was always given a full portion at lunchtime so that I could eat her leftovers. The food was excellent, certainly much better than I cook.

In the afternoon when Mum’s great grand children visited, we transformed the lounge room into romper room which Mum and the other residents really enjoyed. We had our own ‘Old People’s Home for 4 Year Olds’.

After a year or so of visiting Mum, I became concerned that the media only reported horror stories about aged care. Surely Mum was not living in the only good aged care home in Australia.

I designed an open-ended questionnaire for family and friends, asking them to describe their experiences of the aged care home.

174 people from around Australia completed the questionnaire. However, they mostly described their negative experiences, some that were quite shocking – similar to what we heard during the RC.

I sent my report to Ken Wyatt who at that time was the Minister for Aged Care. I encouraged him and his advisors to read it. It took a few months – and numerous emails and phone calls –  for him to actually read it. I am known for my persistence. When he and his advisor finally read the report, they told me it shocked them.

When politicians visit an aged care home, the manager/owner puts on a lovely afternoon tea, employs extra staff and introduces them to only the happy residents and families.

Soon after Ken read my report, he asked whether I could do similar research for home care. Ken recognised that I am truly independent –unlike COTA, Older People’s Advocacy Network and National Seniors, I do not receive any government money. My aged care advocacy work is all voluntary.

Ken wanted to know older people’s experiences of in home care – from those who receive home care packages and Commonwealth Home Support Program. I wish staff at Morningon Peninsula Shire Council had read this report before they made their decision to transition council’s home care to private providers.

My consumer research on residential and home care should contribute to evidence-based policy. However, there are some barriers. Aged care policy is primarily determined by providers, bureaucrats and politicians – not older people, families and staff.

Before I start talking about solutions, it’s important to talk briefly about the RC. Scott Morrison’s announcement of a royal commission into aged care surprised everyone, including the aged care minister, Ken Wyatt, who, just the week before had told me we did not need one. We had all the evidence we needed. We just needed the political will to act.

The announcement of the RC came on the eve of ABC Four Corners’ special two-part investigation into the failings in aged care. When the RC was announced, I argued in the Guardian that “government by media” had replaced careful consideration of the evidence. I believe the RC into aged care, like the RC into banking, was a strategy for the previous government to continue to kick the can down the road.

Before jumping into yet another expensive royal commission, it would have been prudent for the government to review the numerous inquiries that both LNP and ALP governments had initiated over the past 2 decades. Surely the government didn’t need Four Corners to inform them that the aged care sector is in crisis.

There have been so many inquiries, reviews, consultations, thinktanks and task forces that have provided mounds of evidence of inadequate personal care, negligence, neglect, abuse and assault. These inquiries have resulted in a large number of really good recommendations, most of which have been ignored by successive governments. I predicted the findings of the royal commission would be similarly ignored. And I was proved correct – though my fingers are crossed with our new federal government.

Ken Wyatt invited me to assist with the terms of reference of the royal commission. But in the end, the major failing of the RC was the 2 royal commissioners disagreed. People think I am joking when I say Lynelle Briggs and Tony Pagone should have had counselling – to sort out their differences – before making their recommendations. Their disagreements resulted in the RC recommendations being a total dog’s breakfast.

When Anika Wells, the new ALP aged care minister, said the ALP government would accept ALL the recommendations from the RC, I contacted her to ask which recommendations – Lynelle Briggs or Tony Pagone’s?

It has become increasingly clear that Anika Wells, the Department of Health and providers all support Lynelle Briggs’ recommendations. Her recommendations tinker with the aged care system. Tony Pagone’s recommendations would have genuinely reformed the aged care system. Not surprisingly, I supported Tony Pagone.


Tinkering with the Aged Care system will not fix it. We need an aged care system that positions older people (not providers) front and centre. We desperately need a new aged care system that is focussed on the Human Rights of older Australians not the profits of providers.

I have made a list of 15 suggestions for reforming the aged care system.

A new Aged Care Act that focuses on the human rights of older people

Effective regulation

Accountability and transparency

Financial transparency

Increased staffing levels and skill mix

Improved training of staff

Registration of personal care attendants

Disclosure of performance indicators

Public access of regulator’s reports

Public reporting of complaints including how they were managed and resolved

Banning the use of antipsychotic drugs unless prescribed by a psychiatrist

Mandatory reporting of elder abuse

Home care that prioritises each individual’s need for support

Working with older people and families when designing aged care services

Stopping the unjust detention of residents in aged care homes

I will spend the remainder of my talk speaking briefly to each of these suggestions.

Firstly: We need a new Aged Care Act that focuses on the human rights of older people

The primary cause of the of the systemic failures in the aged care system is John Howard’s 1997 Aged Care Act. This aged care act put providers in the drivers’ seat, not older people.

One of the most common complaints heard during the royal commission is aged care homes do not employ enough staff. The current Aged Care Act (1997) states that providers are required to employ “adequate numbers of appropriately skilled and trained staff”. This lack of clarity enables providers to determine what is an “adequate number” and what is “appropriately skilled”. As a result, private providers have replaced registered nurses with much less skilled staff. And, given staff salaries are the main outgoings for aged-care providers, many providers minimise staff numbers so they can maximise profits.

Thank goodness, a new aged care act is something both Commissioners agreed on. So it was music to my ears when their 1st recommendation was: A new aged care act – to come in no later than July 2023. They also stipulated in 2nd recommendation that this new aged care act should focus on human rights of older people. Yay!

2. Effective regulation

In 2017, the government released the aged care roadmap. The aged care roadmap promotes “lighter regulation” and a “consumer driven and market-based system”. This is intended to increase competition within the aged care sector.

Paradoxically, the providers of aged care services lobby simultaneously for a decrease in regulation and an increase in government subsidies.

Providers believe the government should step back and let the free market operate. But these so-called “consumers” are often frail elderly people some with dementia. How can an elderly person with dementia “drive” the aged care system in a free market?

Furthermore, when the taxpayer is subsidising the care of elderly people, the public’s investment needs to be protected in the form of more regulation, not less.

In my opinion, our new federal government should ditch the Aged Care Roadmap that has driven aged care down the neo-liberal road and over the cliff.

The aged care sector desperately needs a regulator with teeth that ensures providers are accountable.

3. Transparency and accountability

My research on residential aged care and in-home care indicates the public want more transparency in the aged care sector.

Although many people, myself included, believe the care of older people is too important to be left to the free market, our local council clearly supports a consumer driven and market based system, as evidenced by their decision to transfer local council aged care services to 2 large private providers. It was also evident when the Mayor’s justified this decision on ABC radio with Virginia Trioli.

In a free market, so-called “aged care consumers” require access to information to inform their choice of product.

For example, to make an informed decision when choosing an aged care home, “aged care consumers” require information about the home’s standards of care. However, aged care homes are not required to disclose information about their standards of care. How can people make informed decisions when they do not have access to this vital piece of information?

The most common reason providers give for not sharing this information with the public – please don’t faint – this information is “Commercial-in-confidence”.

After lobbying from advocates such as myself, a crossbencher, Rex Patrick, tabled three critical amendments to the Aged Care Legislation Amendment Bill in 2019.

If these amendments had been passed, they would have been a game changer. They would have improved transparency and accountability around finances, staffing ratios and complaints in aged care homes. However, they did not pass, thanks to LNP and Pauline Hanson.

Without financial transparency, the public has no way of knowing how providers spend the government subsidy, which is now a whopping $21 billion each year. Do they spend the subsidy on providing nursing care, meals and activities for residents or on salaries (or sports cars) for their executive team?

The peak bodies representing providers say they welcome transparency. Yet they lobbied against the financial transparency amendment by producing a “red tape” report. This report claimed that sharing financial data with the public leads to excessive costs. This claim is total nonsense given that providers are required to share financial data with the Department of Health.

My next suggestion is an obvious one: Increased staffing levels and skill mix

A key to high quality aged care is a good staff-resident ratio. Without mandated ratios, many aged care homes operate with too few registered nurses and personal care attendants.

My research found that aged care homes with high numbers of well-trained, empathetic staff invariably provide high quality care. The physical environment matters much less than the personal care. Residents’ wellbeing depends on staff having time to deliver genuine person-centred care, irrespective of whether there is a chandelier in the lounge room.

Which brings me to 180 or so Victorian state operated aged care homes. In 2015, the Andrews government introduced nursing staff ratios to public hospitals AND public aged care homes. Although these state operated homes are often in older buildings, they are really well staffed.

During the past 2 years of the pandemic, most residents who died from Covid were in private aged care homes not state operated aged care homes, highlighting the importance of high numbers of well trained staff.

I am a huge fan of these Victorian aged care homes and fully support Kate Lardner’s advocacy for a state operated aged care home in Mornington.

In addition to improving the numbers of staff, we also need to Improve their training

Caring for older people with complex health issues is a demanding job that requires specific expertise. TAFE offers reputable 12 month courses. However, there are also fast-tracked courses (some as short as 6 weeks). These short courses do not equip graduates to work competently with older people.

Registration of personal care attendants

Currently, there is oversight of most health professionals who work in aged care homes. Registered and enrolled nurses, psychologists, social workers etc. must all be registered with respective professional bodies. But personal care attendants are not registered with any professional body. To work in an aged care home or home care, personal care attendants require only a police check.

Currently when personal care attendants are sacked for poor standards of care, they simply get another job in a different aged care home or with a different home care provider.

I witnessed this in Mum’s aged care home when standards of care declined after a new manager started. In addition to the complaints about standards of care, there were also allegations of theft, abuse and negligence against 2 personal care attendants.

During a meeting with residents’ families, we all shared our complaints. Sharing complaints with each other was extremely important. Rather than everyone think their complaint was a “one-off”, it highlighted the fact that there was a serious problem in the aged care home.

So what did we do? Some wanted to go straight to the media but I did not see how this would resolve our problem. I suggested, in the first instance, families documented their grievances. I then wrote a 60-page report.

I met with the owner and gave him the list of the grievances. The first thing he did was to apologise. I could tell that it was a genuine apology. Then to his credit, he responded quickly.

The manager was ‘retired’ (a euphemism for ‘sacked’) and the 2 personal care attendants did not work in the aged care home again. My concern is they went to work in another aged care home.

I am glad one of the recommendations of the Royal Commissioners is to introduce a system of registration for personal care attendants similar to other health care professionals.

I advocated for this recommendation to be introduced immediately. However, the previous government did nothing. Thankfully, our new federal government has promised that personal care attendants will be registered. We now need the slow wheels of bureaucracy to move.

Disclosure of performance indicators

I have tried unsuccessfully to get data on adverse incidents in aged care homes such as the incidence of pressure injuries, dehydration, malnutrition, medication errors and falls. This information is needed not only for researchers such as myself to have an evidence-based discussion about standards of care – but also to help people make informed decisions when choosing an aged care home.

Let’s say a family is looking for an aged care home. After reading glossy brochures, they choose one. 6 months later, their loved one receives the wrong medication and is rushed to hospital. They then find out that there have been several medication errors in that aged care home over the past year. If they had that information BEFORE they chose the aged care home, they would most likely not have chosen it.

Public access of all regulator’s reports

I once asked Ken Wyatt to give public access to all Aged Care Quality and Safety Commission reports on aged care providers.

A Channel 9 Freedom of Information request showed Ken took my idea of the Aged Care Sector Committee. However, the idea was voted against after the CEO COTA (allegedly a consumer organisation) claimed patronisingly that the information in these reports would be “too technical” for the public.  This completely blew my head off.

Public reporting of complaints including how they were managed and resolved

Public reporting of complaints is part of my push for transparency. Although complains are inevitable, it is important to know how complaints are resolved.

Unfortunately, the Aged Care Quality and Safety Commission refuses to share this information.

The question I have been asking for 6 years is: Who decided that information on the safety and wellbeing of residents and recipients of home care must be kept top secret?

The federal government has a long history of being far more concerned about protecting aged care providers – some of whom are multinationals and large superannuation funds – than looking after the interests of those living in residential aged care and receiving home care.

For example, during Victoria’s 2nd lockdown, Richard Colbeck, the Minister for Aged Care, said he would not publicly name the aged care homes with outbreaks of Covid. He said he said he was worried about providers’ “reputational damage”.  So what did I do? I asked members of my Aged Care Matters Facebook group to name aged care homes with outbreaks. I then published the list of 124 names. It is the only time a tweet of mine has gone viral. Soon after this, The Department of Health published the names in a Weekly Report, and continue to do so.

Banning the use of antipsychotic drugs unless prescribed by a psychiatrist

The first national audit of psychiatric medication prevalence in aged care homes found nearly two-thirds of all residents were prescribed psychotropic agents regularly.

The overuse of sedative medication is “chemical restraint.”

This not a new problem. In the past 20 years, there have been several government inquiries into an over-reliance on medication to manage the behaviour of residents. These inquiries recommended educating staff working in aged care homes about alternative ways to manage behavioural problems. The elephant in the room, however, is doctors who prescribe the medication.

There is strong evidence that many psychiatric drugs are not only often ineffective but may also cause older people substantial harm, including falls, pneumonia and sometimes premature death. So why are doctors prescribing these drugs? That’s a rhetorical question – they are being prescribed because there is not enough suitably trained staff employed to manage challenging behaviours.

Mandatory reporting of elder abuse

Financial abuse appears to be the most common form of elder abuse. Research has identified adult children, particularly sons, as the most common perpetrators of financial abuse. The victims are often women over the age of 80.

I have worked hard to ensure red flags of financial elder abuse – e.g. a bank is now required to report when a financial power of attorney makes large withdrawals from an older person’s bank account.

It is worth noting, however, that the research in this area has been undertaken primarily in the community, not aged care homes.

In more recent years, my attention has turned towards elder abuse in aged care homes – where the most common form of abuse is physical and sexual. We now have a Serious Incident Response Scheme – though I had hoped their reporting would be better.

Home care that prioritises each individual’s need for support

Most older people want to stay at home as they age.

In the old days, before My Aged Care, Victoria had one of the best home care systems via Home And Community Care. Local councils employed highly trained, caring and competent staff to provide an invaluable service to older people in our community.

In 2013, The Gillard ALP government introduced the Living Longer Living Better aged care reforms. These reforms were motivated by forecasts of a burgeoning ageing population and concerns – and quite legitimate concerns – about how the government could afford to provide services for older people in years to come.

These bipartisan reforms encouraged private home care aged care providers to enter what government bureaucrats call the “aged care market place”. Soon after these reforms were legislated, the Liberal and National Party won the federal election – and they have forged ahead with gusto to implement the neo-liberal reforms.

The Coalition government was determined to turn the provision of home care services into a competitive market – turning older people into “economic participants”.

Some Councils have rejected transitioning their long standing and long trusted services to a market-based system. These councils appreciated how important their services are to older people in their communities.

My research shows that council aged care workers are valued and sometimes loved by their clients. Older residents and their families appreciate having a highly trained and fairly remunerated Council employee provide aged care services. They can also be assured they are not being ripped off by a private provider that prioritises profits over care.

The most common complaint about corporate home care providers is the high turnover of unqualified, inexperienced, untrained and poorly paid support workers. A high turnover of staff is a recipe for disaster. It results in strangers being sent to work in an older person’s home. Older people simply have to trust that they will be treated with respect and kindness.

The health department has been talking about combing home care packages and Commonwealth Home Support Program since 2018. The new program, to be called the Home Support Program, was due to start next year. However, the Albanese government has delayed the start date until 1 July 2024. In announcing the delay, Anika Wells, the Aged Care Minister, said the government was “taking the time to address the concerns instead of rushing to failure.” As a result, several councils have delayed their decisions about whether to remain a home care provider.

The best way to ensure older people get the residential and home care services they deserve is for governments to work with older people and families when designing aged care services.

The new buzz word is co-design – however, like many bureaucratic buzz words, the word has been adopted but not the practice.

I’ve attended several co-design workshops with KPMG that have been tokenistic consultations. Again, let’s hope the new Labor government does it better.

My final suggestion relates to the pandemic when many aged care providers detained residents in aged care homes

The past 2 years of Covid has been a heartbreaking time for many residents in aged care homes, and their families.

When the pandemic took off in March 2020, all non-essential staff were banned from entering aged care homes. This included family members who regularly cared for their loved ones by helping with feeding, toileting, social support and so on.

Providers claimed a total lockdown was necessary “to save lives”. However, families who were locked out were far more afraid that their loved ones would die of neglect, not Covid.

In their special report, the aged care royal commissioners expressed concern about providers’ decision to keep residents locked in and families locked out. In several aged care homes, residents were confined to their room, some for more than two months. Taking away an older person’s liberty by confining them to their rooms was profoundly damaging to their mental and physical wellbeing. Some legal experts have suggested it may also have been illegal.

The royal commissioners also noted that the reduction in visitors had made it difficult for staff to meet the day-to-day care needs of residents. This admission points to how heavily private providers rely on the family members/friends and volunteers to help with meals, exercise and care for residents.

To conclude:

If the current Labor government genuinely wants to reform the aged care system, the Minister for Aged Care needs to engage recipients of aged care services – both residential and home care – families and staff.

Many years ago, I gave similar advice to the Department of Health. So they organised a “consumer round table” with Ken Wyatt (when he was the Minister for Aged Care). I was invited together with many CEOs of consumer organisations.

After introductions, I realised there was NOT one genuine consumer at the round table. So I said to Ken Wyatt (who was also the Minister for Indigenous Affairs):

“Can you imagine convening a meeting to discuss Indigenous affairs without one First Nations person at the table?”

Unlike many of the CEOs, Ken understood my message.

My message to federal government  and the Department (which is now called Department of Health and Aged Care – thanks to Lynelle Briggs’ tinkering – is to quote Einstein “We cannot solve our problems with the same thinking we used when we created them.”

Thank you.

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.

************************************************************

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