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Tuesday, August 9, 2022

Restrictive practices bill gets green light, aged care advocates voice disappointment

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Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 has passed the Senate with bipartisan support, which will mark the first legislation to be enacted by the new parliament.

Much to the disappointment of aged care advocates, amendments proposed by Senator Janet Rice during the bill’s second reading last night were wholly rejected by Labor and Liberal senators alike.

These amendments aimed to address two key concerns highlighted by Aged Care News previously, including the provision of legal immunity to aged care providers ‘in certain circumstances’ pertaining to the use of restrictive practices, as well as the lack of a mandated minimum for allied health care minutes, along with a third concern relating to the transparency of the findings of the new Independent Pricing Authority.

“It’s so unfair. We tried so hard,” Amina Schipp, a Perth committee member of Aged Care Reform Now, who was part of the coalition of advocacy bodies who worked on a list minute appeal to the Senate, said.

Also part of this community coalition was Bryan Keon-Cohen AM QC, senior barrister and president of Aged-care Legal Advocacy and Reform Matter (ALARM), a not-for-profit legal advocacy group aiding elders experiencing systemic abuse.

The bill was to give a voice to aged care residents, however this immunity presents a barrier to justice and silences aged care residents, and their representatives, if they disagree with the provider’s version of events.

Senior barrister and president of ALARM, Bryan Keon-Cohen AM QC

He told Aged Care News that he is incredibly disappointed that Government turned a blind eye to their concerns.

“ALARM is very disappointed that the Bill has passed in its current form without any amendments to ensure the interests of aged care residents are protected,” he said.

“If a resident or family member wants to pursue an action against a provider in relation to a restrictive practice when consent has been obtained, they will now have a much harder fight on their hands.

“The bill was to give a voice to aged care residents, however this immunity presents a barrier to justice and silences aged care residents, and their representatives, if they disagree with the provider’s version of events.”

Zoe Daniel, independent member for Goldstein, pressed aged care minister Anika Wells in parliament today as to why the suggested alternative of an indemnity scheme had not been considered by the Government.

…the immunity will only apply where restrictive practices are used as a last resort, only to the extent that they are necessary, for the shortest time possible… and crucially, to prevent harm to the care recipient. It is a temporary measure … until we bring in the new Aged Care Act, which the Royal Commission has asked us to do by July 1 next year.

Aged care minister, Anika Wells

Wells responded that she wishes to reassure the public that this bill is merely a stop-gap measure before the ratification of a whole new Aged Care Act.

“Let’s use this opportunity to be clear: the immunity will only apply where restrictive practices are used as a last resort, only to the extent that they are necessary, for the shortest time possible… and crucially, I think here, to prevent harm to the care recipient,” she said.

“It is a temporary measure… and it is to clarify a gap between the Commonwealth legislation and the state and territory legislative requirements… until we bring in the new Aged Care Act, which the royal commission has asked us to do by July 1 next year.

“Without it, harm to aged care residents and aged care workers could occur.”

Wells furthermore noted that Schedule 9 of the bill, in its current form, has the support of Council on the Ageing (COTA) Australia and the Older Persons Advocacy Network (OPAN).

Fight for mandated allied health also dead in the water

Without clear mandates for minimum allied health, as with the incoming minimum 40 minutes of registered nurses’ time, many are concerned that providers will seek to cut costs by reducing provision of vital services such as physiotherapy and occupational therapy.

Rice was moved by advocates’ concerns, worried personally about the prospects for her own mother’s care.

“We know that it is so important for older people to get those services as they require them — and physio, for example, is critical,” she said in yesterday’s senate debate.

Clearly, there is a problem with the system… my question is: what are we going to be doing about these very serious concerns that allied health providers, particularly physiotherapists, have about this current bill?

Greens Senator, Janet Rice

“[My mother] is currently in respite care after a fall at home three weeks ago.

“She broke two ribs. She was receiving physiotherapy but not enough.

“Clearly, there is a problem with the system… my question is: what are we going to be doing about these very serious concerns that allied health providers, particularly physiotherapists, have about this current bill?”

Senator Katy Gallagher, Minister for Women, Finance and the Public Service, responded to Rice’s concerns by saying that additional resourcing and flexibility of services will make for better individualised care under the AN-ACC.

“I don’t think it’s fair to say that resourcing would be reduced, but certainly changes may be made as to the type of therapy or allied healthcare services that residents might receive based on their individual needs,” she said.

Alwyn Blayse, physiotherapist and campaign head of the Death of Allied Health lobby group, tells Aged Care News that too much flexibility may be an issue for quality of care, and he fears that cheaper, substitute services will be used in place of registered allied health professionals.

“Lifestyle coordinators and other staff who would be performing any sort of ‘allied health’ could cause serious risk of harm to older adults and legal risk to themselves and their facilities if they are not supervised appropriately by a university-educated professional.”

“They aren’t even insured or registered to do this.”

Despite failing to achieve amendments to the AN-ACC, Blayse says he is grateful to Senator Rice for elevating the issue to the level of parliamentary debate.

“On behalf of our team and residents we are very, very grateful to the Senator and Australian Greens for fighting so hard for allied health.”

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