Immunity over the use of restrictive practices in aged care

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Immunity over use of restraints in Australian aged care may breach torture conventions, lawyers say

Advocates say proposed laws are an ‘extraordinary overreach’ but minister says they are needed for safety

Proposed federal aged care laws that would give providers immunity from prosecution over the use of restraints may breach international agreements on civil rights and torture, advocates say.

A bill legislating the aged care royal commission’s recommendations passed the House of Representatives last week, and is expected to pass the Senate this week. It implements 14 recommendations including new funding, a staff code of conduct, and an independent pricing authority.

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It also mirrors a bill put forward by the Morrison government, which failed to pass the last parliament.

But advocates including the Australian Lawyers Alliance, Elder Law in Australia, and Aged Care Matters have called for urgent changes to schedule 9 of the bill. That section gives “immunity from civil or criminal liability” over the use of “restrictive practices in certain circumstances”.

The minister for aged care, Anika Wells, says the laws are necessary to prevent harm to other aged care residents and workers.

“It only protects people where all of the strong legal requirements around using restrictive practices are strictly followed,” a spokesperson from Wells’ office said.

According to the bill’s explanatory memorandum, the legislation will extend the provision “to the use of restrictive practices where a care recipient does not have capacity to consent”. It says the change is needed to address “unexpected outcomes” regarding interactions with state laws.

The memorandum notes it “may increase the use of” restraints, such as mechanical restraints like rails to prevent residents falling out of bed.

Rodney Lewis, an aged care law expert, said the provision must be “urgently” changed to not provide immunity when there is no informed consent, calling it an “appalling” idea that was not a recommendation of the royal commission.

“Aged care residents must retain the right to seek justice for a wrongdoing,” he told Guardian Australia.

“The current aged care bill includes a clause that will unfairly strip legal rights away from aged care residents.”

Lewis, Aged Care Matters director Sarah Russell, and Australian Lawyers Alliance solicitor Catherine Henry wrote a joint letter to Wells warning that the schedule 9 provisions were discriminatory.

“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,” they wrote. “This includes immunity from writs of habeas corpus, consumer law, and the common law crimes of unlawful restraint, assault and battery.”

They claimed it may also breach Australia’s obligations under the International Covenant On Civil And Political Rights and the Optional Protocol to the Convention Against Torture.

They suggested the immunity proposal be changed to a government indemnity scheme for providers subject to legal action.

“People who have been abused should always have access to their common law rights, regardless of where the abuse occurred,” they wrote.

In a statement, Wells’s office said the measure would only grant protection in limited circumstances and would not give general immunity.

“There is no indemnity against the inappropriate use of restraint – there is only an indemnity if the provider has done everything right in a State or Territory that has no legislative provision for representative consent,” a spokesperson said.

Aged care reform first bill to pass lower house under Albanese government

“The amendment requires aged care providers to obtain consent for the use of restraint or ensure that a prescribing doctor has received consent.”

Wells’s spokesperson said the amendment was supported by the Council on the Ageing, adding that “without it, harm to older Australians and aged care workers could occur”.

Ian Yates, chief executive of the Council on the Ageing, said he supported the bill and did not share the concerns about schedule 9.

The Greens senator Janet Rice has proposed amendments to remove the immunity provisions.

“I’m yet to hear a reasonable case for why providers should be given this huge exemption if they have caused serious physical or psychological harm,” Rice said.

“Pursuing legal claims against aged care providers in response to abuse is already difficult and these changes would make it harder.”

www.theguardian.com/australia-news/2022/aug/01/immunity-over-use-of-restraints-in-australian-aged-care-may-breach-torture-conventions-lawyers-say

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Does the Albanese government really want to strip older Australians of their rights?

Does the Albanese government really want to be remembered as the one that stripped many older Australians of their fundamental legal and human rights?

The federal government has recently made numerous, welcome commitments to improve the lives of older people living in residential aged care. Yet there is one glaring problem with the aged care reform bill that recently passed parliament.

Schedule nine 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. Yet the specific quality care principles required to implement the immunity provision have not yet been published.

Furthermore, schedule 9 is unjust. 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.

The royal commissioners did not recommend that providers and their staff be granted immunity for using restrictive practices. So why include this schedule in the aged care response bill?

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 is immunity if they comply with the not yet written Quality of Care Principles. The Morrison government, and now the Albanese government, simply adopted this solution.

However, granting such immunity is discriminatory because it denies older people who live in residential aged care – a vulnerable cohort of people – the same legal protections given to all other Australians.

It subordinates the common law developed over centuries to regulations made under the Aged Care Act. It is an extraordinary overreach of constitutional powers to grant providers immunity from key legislation enacted by states and territories.

Schedule nine may also breach Australia’s obligations under the international covenant on civil and political rights and the optional protocol to the convention against torture that Australia has signed.

It is also unprecedented to offer immunity to commercial businesses. Many providers are private or publicly-listed for-profit companies (Estia, Regis) and multinational corporations (Bupa, Opal).

Some “consumer” organisations that are funded by the government have indicated support for schedule nine. However, independent advocates and elder abuse and human rights lawyers who speak without fear of losing government funding have voiced strong opposition.

The number of recorded court cases against aged care providers over the past 25 years is tiny, possibly as few as six, and the complainants were not always successful.

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 of the people in their care – the willingness of governments to protect approved aged care providers is staggering.

One solution is to offer aged care providers an indemnity not immunity. There are many examples of similar indemnity schemes – most recently the one offered by the Morrison government for health practitioners who may be found liable to pay compensation for serious adverse events experienced by people receiving Covid-19 vaccines.

An indemnity scheme would also avoid the potential legal and constitutional challenges to the immunity proposal and would ensure no further delays in the Albanese government’s determination to reform the aged care system.

People who have been have been abused should always have access to their common law rights, regardless of where the abuse occurred. Rather than protecting providers from litigation, perhaps the government should instead encourage providers to take out insurance to protect their commercial interests should a resident take legal action.

When the three top elder abuse and human rights lawyers in Australia oppose this legislation, the government should listen. Surely the Albanese government does not want to be remembered as the one 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.

A solution was on the table. The government is choosing not to take it.

www.theguardian.com/commentisfree/2022/aug/03/does-the-albanese-government-really-want-to-strip-older-australians-of-their-rights