Lyn Allison (Victoria, Australian Democrats) Share this | Hansard source

Individuals should be provided with all necessary information and relevant options and then encouraged and supported to make their own decisions, including the option to refuse to have the matter reported. The United Nations Principles for Older Persons is based on empowering older people and maintaining their dignity.

Compulsory reporting systems for older people that are similar to child protection systems strip older people of their dignity and reinforce the ageist perspective that older people are automatically fragile and need protection. The system being proposed would seem to be a breach of the rights of residents of residential aged-care facilities to determine who receives personal information about them.

We also need to think about the potential that such an approach has to actually discouraging older people from seeking assistance. If they believe their conversations will not be confidential, and that they will lose control over what happens, they may be less likely to let staff know what is going on.

I will be moving an amendment during the committee stage which will give residents of aged-care facilities—residents with decision-making capacity—the right to not have an alleged or suspected assault reported if they so decide. We will also be moving an amendment that allows for internal reporting of resident to resident and resident to staff episodes of abuse rather than compulsory reporting to the police.

As was pointed out in submissions to the inquiry, many residents of aged care have some form of cognitive impairment and inappropriate behaviour to some degree is not an uncommon occurrence. This is not to say that this behaviour should not be responded to but simply that behaviour management is a more effective response than reporting to the police. Compulsory reporting of this behaviour runs the risk of placing a huge burden on police forces to investigate incidents but does nothing to actually ensure that they are being managed in a way that provides the best care for all involved. Some incidents may need police involvement but many will be better handled by staff putting in place processes to manage that behaviour.

We are also aware that under the proposed regime any report must be made both to the police and to the Department of Health and Ageing. It would seem that this runs the risk of compromising cases where a criminal conviction is required. Given that the Department of Health and Ageing already has processes in place to assess the standard of care provided by a facility, it is unclear what additional benefit is provided by requiring reporting to the department. I will be moving an amendment to remove this unnecessary and costly duplication.

The bill also underpins its reporting arrangements with protection for those who report the abuse. This is a measure which is long overdue. The Senate committee inquiry report into aged care, Quality and Equity in Aged Care, recommended two years ago that the Commonwealth look at whistle blower protection. In fact, recommendation 17 of the Senate report recommends:

That the Commonwealth examine the feasibility of introducing whistleblower legislation to provide protection for people, especially staff of aged care facilities, disclosing allegations of inadequate standards of care or other deficiencies in aged care facilities.

A year ago, in March 2006, the Democrats moved an amendment to introduce whistle blower protections into the Aged Care Act. At that stage Labor supported our amendment but the government did not. It is encouraging that the government has finally decided to take some action on this matter but it is disappointing that that action is so limited.

The protections in this bill will cover only staff and aged-care providers who make reports of sexual and physical abuse. Residents, their families, friends and advocates are not protected from victimisation if they make a report. And if anyone complains about some other form of neglect or abuse—or, indeed, other inappropriate conduct—there is no protection. We do not think that is good enough. I will be moving an amendment to cover residents, their families, friends and advocates as well a staff who report on any form of abuse or neglect.

A further measure in the bill is the establishment of a new and independent aged care commissioner, replacing the existing Commissioner for Complaints. The previous Commissioner for Complaints was limited within the scope of the previous legislation to undertake investigations and to take action. This bill enhances the role of the commissioner and also the manner in which complaints are handled. It is worth noting that concerns were raised in the committee inquiry that the aged care commissioner would not be sufficiently independent from the Department of Health and Ageing and that limits on the functions of the commissioner would reduce the usefulness of the role. We urge the government to address these concerns.

I will be moving our standard appointments-on-merit amendment in relation to the aged care commissioner. The Democrats have persistently and consistently put forward the proposition that the minister should determine a code of practice for selecting and appointing board members in terms of merit, independent scrutiny of appointments, probity, openness and transparency set out in the criteria by which the selection and appointment is to be made.

There is still a great deal of uncertainty about how this new regime will operate, particularly given that the new principles are yet to be tabled. The changes required by this legislation would appear to have considerable resource implications, not only for aged-care providers but also for the police—resources that might be better directed towards preventing abuse and caring for older Australians.

There is also little evidence that mandatory reporting is effective or beneficial. It would seem essential that the impact of this legislation be adequately evaluated. We need to ensure that any response to this complex issue is effective and that it respects and protects the rights of older Australians. While the Democrats think it would be more desirable to get the legislation right before it is implemented, the very least we should do is evaluate how it is going. We will move an amendment that requires a comprehensive and independent review of the legislation to assess its impact. I move the second reading amendment standing in my name:

At the end of the motion, add:

                 “but the Senate condemns the Government for failing to:

             (a)    develop a comprehensive evidence-based approach to elder abuse which includes strategies to protect older people from all forms of abuse in residential and community settings;

             (b)    fund a comprehensive education campaign on elder abuse for professionals including residential and community care workers, older people, their families and carers and the broader community; and

             (c)    provide more resources for community support and respite for the elderly”.