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Monday, August 15, 2022

Lawyers and advocates unite in last minute bid to halt controversial restrictive practices bill

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Furore has reignited in the aged care advocacy community after the revival of a controversial immunity clause tabled last parliament.

Schedule 9, section 54-11 within a list of amendments to the Aged Care Act 1997, presented to parliament last week by aged care minister Anika Wells, offers legal immunity to aged care providers and workers administering restrictive practices in ‘certain circumstances’.

Restrictive practices are a range of interventions used to restrict a person’s freedom of movement, justified by the Aged Care Quality and Safety Commission as a ‘last resort’ to subdue an individual who poses a risk of harm to themselves or others that cannot be mitigated through other means.

For example, the prescribing of psychotropic or mind-altering medication to influence a resident’s behaviour is an example of a restrictive practice known as ‘chemical restraint’, whereas confining a resident to their room or a chair are other examples of restrictive practices known as ‘environmental restraint’ and ‘physical restraint’, respectively.

Immunity, in this context, would apply to restrictive practices given to older Australians who lack the capacity to give informed consent themselves — for example, those living with advanced dementia — whereby consent was given on their behalf by a ‘substitute decision maker’.

Secondly, the provider and its employees must administer restrictive practices in accordance with the Quality of Care Principles 2014 (Quality Principles).

But who may be considered a valid substitute decision maker under the Quality Principles?

The answer to this question is one of many red flags, according to legal experts.

Aged-care Legal Advocacy and Reform Matter (ALARM), a not-for-profit providing legal assistance to elders facing systemic abuses, issued a statement highlighting the fact that the bill places no boundaries on the persons or bodies who may be authorised to give informed consent on behalf of residents without decision making capacity.

While a representative is commonly a resident’s next-of-kin or other trusted family member, the Quality Principles also allow a state-appointed guardian to take on the role of ‘consumer representative’.

Bryan Keon Cohen AM QC, retired barrister and ALARM president, foresees a number of disturbing outcomes if the bill passes in its current form.

“The Principles can be varied by the responsible minister without any requirement to ensure that the class of persons capable of providing vicarious consent is consistent with, or supportive of, the rights of aged care residents,” he says.  

“If enacted, this legislation may well result in an increase in abuses uncovered by the aged care royal commission.

“For example, aged care residents classified as ‘difficult’ could be restrained without their families knowing.

“Therefore, this legislation should not proceed without clear guidance on the types of persons who can act as substitute decision makers following proper public debate.”

Dr Bryan Keon-Cohen AM QC, senior barrister and president of ALARM, says that blanket immunity given to providers administrating restrictive practices threatens their human rights.

But the issue also goes deeper, to the heart of the philosophies underpinning Australia’s democratic legal system.

Rodney Lewis, senior solicitor at ElderLaw, noted in a submission to parliament last November that such immunity could violate fundamental legal tenants such as habeus corpus, torts relating to battery and false imprisonment and even elements of consumer law.

“It takes away — from all aged care residents — some of their most important fundamental legal and human rights,” Lewis tells Aged Care News.

Members of ALARM echo these concerns.

“Removing an individual’s fundamental right of legal redress on the basis that an aged care provider has ostensibly complied with the Quality of Care Principles is an egregious abuse of basic human rights,” Keon-Cohen says.

Consideration should be made, Keon-Cohen adds, as to how such a move would implicate the current government in a breach of international covenants.

“Australia has ratified the International Covenant on Civil and Political Rights [ICCPR], and its Optional Protocol, which allows for complaints regarding Covenant breaches to be made to the UN Human Rights Committee, once domestic litigation avenues have been exhausted.

“ALARM firmly believes that Australian aged care residents are being denied their ‘right to liberty’ per Article 9 of the Covenant through this proposed Commonwealth legislation,” he says.

Amina Schipp, a Perth member of Aged Care Reform Now, says that the schedule 9 amendments would pose a significant barrier to justice for elders experiencing systemic abuse.

She says that, in her experience, there is a need for greater provider liability, not less, having tried — to no avail — to hold the a Perth aged care provider accountable for the abuse and neglect that allegedly resulted in her mother’s death.

“I think that providers already have enough power, and they’ve already caused a lot of heartache and damage over the years, so to make them immune would be a real insult to those of us who’ve lost a loved one [living in aged care].

 “And it is also a really horrible prospect, for those of us who are ageing and facing the possibility of being in those circumstances, being treated in the same way and having no recourse.”

Amina Schipp (left) is now a full-time aged care advocate with Aged Care Reform Now. She is fighting for a better aged care system after her mother passed away after allegedly experiencing severe systemic abuse.

Last minute push to overturn amendment

The aged care advocacy community has been desperately lobbying the Government over the last 72 hours, with the bill set to progress through the Senate this week.   

Greens Senator Janet Rice has attempted to strike down Schedule 9, having moved an amendment for the bill, which is currently being debated in parliament.

Dr Sarah Russell, qualitative researcher at Aged Care Matters, appealed to ministers Wells and Kearney directly over the weekend.

“We have to stop this, or at very least we have to try,” she tells Aged Care News.

In a letter co-authored with Lewis and four other legal and community advocates, Russell implores Wells to stop the bill passing in its current form.

“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.”

An indemnity scheme has been proposed as an alternative to blanket immunity, which would involve government taking responsibility for any legal claims made by the public against providers.

“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,” Russell and associates write.

A spokesperson for ALARM tells Aged Care News that their members would ideally like the whole amendment removed; however, they agree that an indemnity clause would be a valid compromise.

They also have recommended the following alternative actions to ministers Wells’ and Kearney’s offices:

  1. Defer the proposal to allow for increased consultation with all relevant stakeholders;
  2. Negotiate with the states and territories to develop a temporary framework regulating consent;
  3. Apply a one-month sunset clause and hierarchy of substitute decision makers;
  4. Increase consultation with Mark Dreyfus QC, Attorney General, to ensure future policy does not undermine rule of law and human rights.

“We implore the new Government to take the opportunity to prioritise the health and wellbeing of aged care residents by ensuring there are comprehensive safeguards in place for the application of restrictive practices,” Keon-Cohen says.

“The current proposal fails to achieve this so we suggest the alternatives are instead introduced.”

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