Lyn Allison (Victoria, Australian Democrats) Share this | Link to 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”.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I want to make some comments on the Aged Care Amendment (Security and Protection) Bill 2007 for a wide range of reasons. As a member of the Senate Standing Committee on Community Affairs I was privileged yet again to have the opportunity to listen to a large number of people from the industry and also from families and carers who have genuine concerns about the welfare of people who are ageing in our community. I would like to add to that list the department itself, because the department consistently performs to a high standard, consistently cares about the people who are providing services to aged people in our community and works effectively to implement legislation, sometimes under very limited time frames. I will get that off my chest straightaway!

Once again, I think this legislation has been introduced for all the right reasons. There could be no-one in the community who could question the need for legislation to protect aged citizens. In fact, everybody agrees with that. But in terms of how it is done, yet again we have a process where there is a large, exciting announcement that there will be new legislation brought in to address a need, and that is greeted with a strong response. However, time frames for the introduction of this proposed legislation have been imposed on providers to ensure that their processes meet the requirements of the legislation. Here again we are in that very difficult situation of balancing appropriate care and accountability with the necessary paperwork and accountability mechanisms which must be imposed on providers. There is always a tension there, not through any lack of goodwill or desire to do the right thing in the overwhelming majority of cases, but simply because of, as we heard from a number of providers, the impost of actually introducing the systems, ensuring that they are working effectively and, most importantly, training every person who has a role to play and advising them of their responsibilities, what is expected of them and the protections they have in the system.

The intent is welcome, the energy that has been put in to ensure the process will occur is welcome and the goodwill of all the people who are involved is welcome. However, I still have lingering concerns about all those who need to be fully engaged to ensure that the legislation is most effective. We know that the changes will be brought in and Labor welcome that. However, always when introducing new legislation, the more that people can do before it is implemented, the stronger and greater the chance of success will be and, as I have said before, the greater the opportunity to engage everyone who should be engaged in the process.

I have concern with the time frame, and I will try really hard not to go back to that point and to focus on things that we can agree on for the rest of these comments. The changes themselves, as introduced by the minister in this place, to a large extent respond to community outrage at publicised events of elder abuse. The major words in that statement are ‘publicised events’ because, for every event that did receive publicity about the outrage at people being damaged or hurt in their care, we know many more have not been made public. Once again, we have the tension between ensuring that the issues are identified and addressed and ensuring that people are protected and their privacy is maintained to the best possible level whilst working through a process.

There was considerable discussion during the quite truncated time we had for the inquiry about how we actually ensure that people feel confident and protected in their situation and secure enough to actually make a complaint. The most effective complaint mechanisms that are imposed on a system are only as effective as the people who are able to enunciate the complaint and the resultant system that is put in place to investigate and respond to the complaint. Those two things have to have a common purpose. Throughout the debate we had in the inquiry there was great discussion about the confidence of people and also the mental and physical ability of people to effectively identify a fault.

There are differing opinions as to whether the nature of the complaint mechanism should be based on a mandatory process. There is still the opportunity during the implementation stages of this process. We on this side of the chamber, as always, strongly recommend ongoing review and constant monitoring of any implementation of a process but, moving forward as the new system is implemented, I think the mandatory process should be supported on the basis that if we set up a system where the outrage is clearly identified, abuse—and I use the word quite deliberately—in any form of any citizen but in particular of our most vulnerable citizens, those who are ageing, is an outrage. Once we actually identify that any abuse is an outrage, we can then engage all the people in the understanding of why this particular legislation is premised on a mandatory reporting mechanism.

Whilst I have great personal sympathy for the arguments around the protection of people’s individual privacy—and that was discussed at length during the committee process—in this debate I am falling on the side of bringing in the mandatory process in the introductory phases and then monitoring that effectively, and continuing with the ongoing community consultation, in particular with the members of the ministerial advisory group, all of whom have expressed great keenness to be involved in this process. If we continue to engage with all those persons who want the system to work and who share the desire for it to work, we would hope in future times to amend the process if required. But certainly by making the public declaration that we are aware that there is the outrage of elder abuse in our community, and by saying that when people are entering into formal aged-care arrangements they and their families must have the confidence that they will be protected, we can cooperate in a process which goes with the mandatory aspects.

One of the elements that will be critical to ensuring that this process operates effectively is awareness of all the aspects of the process that has led to bringing this legislation before the parliament, awareness of the need and awareness of the various forms of abuse that are identified. There is strong evidence to say that the term ‘abuse’ should be extended to cover any form of abuse, not just abuse of the physical and sexual nature that is mentioned in the legislation. I think I heard Senator Allison talk about the wider definition of abuse. It is not just physical abuse, which is often able to be seen and identified; it is psychological abuse, mental abuse and also such things as standards of care.

In the additional comments from the Labor senators who were privileged to be on the committee looking at this legislation, we looked at having the form of protection for whistleblowing and the definition of abuse widened so that it would be any form of treatment which did not appropriately engage and nurture the resident in the aged-care situation. So it could be concerns about meeting other standards in the aged-care facility or concerns about treatment—even, as we have seen in some cases in Queensland, allegations of almost starvation treatment of residents in aged-care facilities. It was not that there was no food—though I have heard allegations in some places where it has been as horrific as that: that people have not been fed—but more that the quality of food was not effectively responding to dietary needs and giving people the genuine nutritional support that they need, as we all need.

So we would suggest that, in the discussion around this legislation, we look at widening and getting a greater understanding of the term ‘abuse’ and also a wider protection mechanism for anyone who would identify such failings. We have a very strong start in the legislation before us, which values the role of effective whistleblowing. Again, an issue that caused great discussion at the committee stages—and significantly over the last few years—is how the role of a whistleblower is identified and protected.

When I was fortunate enough to be in my previous role in the Senate Community Affairs References Committee, we were engaged in an aged-care inquiry that reported to this place in June 2005. We were privileged at that time to hear a range of evidence, particularly from the families of people who were receiving care in different organisations. The families that came before us were expressing concerns about the care being given to their family members but were also expressing genuine concerns and fear, on behalf of both the person in the aged care and themselves, about repercussions that they could suffer if they made too many complaints, made too much noise or in any way rocked the boat. I always remember some women who gave evidence to us who were frequent visitors to aged-care facilities. I think that they had families there themselves. They used that term ‘rock the boat’ about questioning too closely or making complaint about care. In the discussion around this bill, and perhaps as we move down the line in monitoring the impact of the implementation of this bill as it moves forward, we could look at whether the clauses about which complaint can be made, and also the protection that should flow on to anyone making that complaint, could be widened so that it is not as narrowly defined as it seems to me that it is now.

I think that here, once again, there is goodwill and there is genuine interest in being involved in this discussion, because the key element that precedes this legislation and moves us forward is the desire to ensure that people are safe. That safety also ensures that they are confident and secure in their home care.

I had a number of discussions during the committee process with the witnesses who came before us about the education component, which is absolutely essential in bringing forward this legislation. We can implement the best legislation in the world—hopefully. We can ensure that people have leaflets. We can ensure that they have information sessions. We can ensure that to the best of our knowledge we give information about what people’s rights and responsibilities are in the aged-care sector, as with any other care. However, the confidence of knowing that people not only have got that message effectively and understood their rights but are able to take the next step and exercise their rights is one key element of this process about which I still have some lingering doubts. Again, I have no worry that people do not share the need to have this process implemented. But I continue to have concerns about how you implement an effective education program and then how you make sure, after that, that people do not become too comfortable with the process, forget the process or think, ‘There’s a new crisis that has come upon us so this one’s yesterday’s news.’ So an ongoing part of whatever monitoring program is put in place as this legislation is implemented should be the concern and continuing engagement of the sector, families and people who are seeking aged care in understanding and developing perhaps their own education mechanisms.

Too often when we are talking about new publicity campaigns and education campaigns we use pre-existing models or we think we know what is best—or, horror upon horrors, we hire another consultant, who comes forward to give us the benefit of their knowledge. On this basis, I urge the department and the government to look clearly at the existing ministerial advisory group process and to use the knowledge which is already there. I urge them to implement the process of a consumer network. Consistently, in discussion of other medical areas, we hear about the importance of using the consumer network to ensure that people’s voices are heard. I think that perhaps in aged care that is a mechanism that we could use more effectively, particularly on something of this kind. It would be very useful to use the people who are thinking about using the system or being in the system themselves to look at how information can best be shared.

In the committee process we had a discussion with a number of people about how to determine a person’s ability to understand their situation. In some cases an exclusion mechanism is put in place to identify the fact that, particularly in aged care, there are people who are not fully competent to understand what is going on around them or perhaps to understand the impact of their behaviours. It is always a vexed area. We were very privileged to hear evidence from people who have great experience in aged-care delivery. There was strong support for the provisions in the legislation which ensure that some people are excluded from causing the involvement of the police in complaints if those people are determined not to have the capacity to understand the actions that they are taking. Once again, it is a very sensitive area and one that continues to need monitoring as we move forward. I think a level of sensitivity has been shown by the department and the people drafting the legislation in acknowledging that exclusion process and working effectively with the providers of care and also with the police.

We heard evidence through the committee process about the involvement of the people who would be at the other end of the complaint. We heard that if we had a mandatory complaints system people would be automatically brought in to respond to the complaints. I hope that as we move forward with this legislation—and I hope you note, Mr Acting Deputy President Ferguson, that I continue to talk about moving forward with this legislation in a positive way—we involve those people who would be the receivers of the complaint so that their knowledge and their expertise is increased in this process.

A degree of concern was expressed by some of the people who came to our committee about how that would actually work. Whenever you introduce a program of mandatory complaint there is a feeling that perhaps there could be a wave of complaints, which would actually minimise the impact. As I said before in this contribution, that could lead to some sort of comfortable response to the whole process. That would indeed be very sad. As I said, we need people to have effective training and an understanding of everyone’s responsibility in this process. That must involve the engagement of those who will be responding to the complaint.

There are greatly experienced people already involved in the aged-care assessment process and also in the review of aged-care facilities. I hope that added resources will be given to the process so that their numbers will be increased. Their knowledge should be used in order to work effectively with the various state police departments so that people are sensitised to the process. In working with aged people there needs to be respect and understanding. People need to feel a degree of security and comfort with the situation. We do not need to cause further stress and anger to those people who are seeking our help and respect.

There are a number of amendments to be put before the chamber. I am looking forward to the committee stage of this bill because I think we will be able to work effectively in moving forward with the legislation. Again, the intent of this bill is good. We all want to ensure that we have the security of knowing that our older family members—and many of us are moving rapidly towards that age—are safe and secure in aged care. It does not really matter whether that is in an aged-care facility or in their own homes. Safety must be paramount.

The process will involve many different people who may not have experience at the moment in working effectively in aged-care facilities, and that must be acknowledged. I note that the committee has recommended that the implementation process be delayed a little to allow people to get the knowledge that we have talked about. I hope that the government will accept that. I hope that in the implementation of the Aged Care Amendment (Security and Protection) Bill 2007 we will be able to say that we have responded cooperatively to the community’s demands.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak today on the issue of aged care in Australia—an issue which, because of our rapidly ageing population, is of increasing relevance to most Australian families. Indeed, with the demands of modern life ensuring that children of ageing parents are increasingly time poor, the demand for quality aged care services is on the rise. With the increase in demand comes an increase in scrutiny of the quality of services provided by aged-care providers. It is arguably this increased scrutiny that inevitably prompted the government to introduce this bill, the Aged Care Amendment (Security and Protection) Bill 2007.

The bill was introduced in the parliament after a number of media reports in February 2006 detailing the terrible sexual abuse and assault of residents in aged-care facilities. While Labor questions why such a bill was not introduced earlier, on the basis of the recommendations made in the 2005 Senate committee report Quality and equity in aged care, which found deficiencies in the operation of the current Aged Care Complaints Resolution Scheme, Labor nevertheless supports the introduction of the current bill.

The purpose of the bill is to amend the Aged Care Act 1997 by establishing a new regime that is designed to help protect elderly people in aged-care facilities from serious forms of abuse, such as physical and sexual abuse. The regime includes: a system for compulsory reporting of physical and sexual abuse of people in aged care; qualified protection for approved providers and staff who report assaults of people in aged care; the establishment of complaint investigation arrangements through new investigation principles; and the establishment of the Aged Care Commissioner to replace the existing Commissioner for Complaints. Such measures are obviously welcomed, as they are aimed at providing some degree of necessary protection for elderly people in aged-care facilities—arguably one of the most vulnerable and dependent groups of people within the Australian community.

The new regime within a limited framework provides for the protection of aged-care residents’ rights to bodily integrity and personal safety, the most basic of human rights, which we the general public take for granted. However, it is important to note that this is only the tip of the iceberg: the bill only provides for limited protection of limited rights of aged-care residents in limited circumstances. Essentially all this bill does is reinforce the basic human rights of aged-care residents—rights which they are often too weak or vulnerable to enforce or to protect themselves.

The limitations of the bill were addressed during the committee hearing and are reflected in the committee’s report, which was handed down on 9 March. The major areas of concern included the limited scope of reportable assaults; the limited detail provided by the government thus far on the investigation principles; the limited time frame given to service providers to adequately implement the new regime; and the limited protection provided to those people who are required to report.

Under the bill a reportable assault is defined as any ‘unlawful sexual contact, unreasonable use of force, or assault specified in the accountability principles and constituting an offence against a law of the Commonwealth or a state or territory, that is inflicted on a person receiving Commonwealth funded, residential aged-care services’. Under this limited definition, the whistleblower protections provided for under the bill will only be available in the reporting of incidents of unlawful sexual or physical assault of residents in aged care.

As the Health Services Union noted in their submission, many other different forms of potential elder abuse exist. They noted a guidance list on elder abuse issued by the Department of Health in the UK, which identified six different forms of potential abuse, including physical and sexual abuse; psychological abuse; financial and material abuse; and neglect and discriminatory abuse. It is likely that the majority of abuse that occurs in aged-care facilities takes the form of psychological and material abuse and neglect but, under the bill, such forms of abuse are not classified as reportable and therefore may not be reported by aged-care providers and their staff, who are not awarded any whistleblower protections under the bill for reporting such forms of abuse.

This situation is unsatisfactory for two reasons: one, because the effect of such forms of abuse on aged-care residents can be just as serious as those stemming from sexual or physical assault; and, two, while aged-care workers will receive some degree of training in relation to this new regime, in practical day-to-day situations they are unlikely to be able to neatly categorise different forms of abuse and are likely to err on the side of caution and not report abuse for fear of losing their job or being ostracised. This was recognised by the committee in 2005 in the Quality and Equity in Aged Care inquiry in which it recommended:

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.

This is why, in our additional comments attached to the report, we recommended that the bill be amended so as to afford whistleblower protection to people who report on reasonable grounds any form of abuse or neglect in residential aged care facilities.

The issue of the limited scope of reportable assaults ties in with the other main concern raised in the public hearing about the bill: that being the limited scope of the whistleblower protections awarded to people who report elder abuse. Under the legislation, a disclosure of information relating to a potential case of abuse only attracts protection if the disclosure is made by an approved provider or a staff member of an approved provider, it relates to a reportable assault and is made in good faith.

The Aged Care Crisis Team noted in its submission to the Senate Standing Committee on Community Affairs:

Only a small minority of cases of elder abuse involve breaking the law; so the vast majority of cases do not come under compulsory reporting. Thus, most cases of physical abuse, all emotional abuse, financial abuse and incidents of neglect are not covered.

Whistleblowers are only protected if they report reportable offences. So, again, the whistleblower will have no protection if he/she reports the vast majority of cases of elder abuse ...

Aged and Community Services Australia also noted that the protection provisions ‘do not extend to non-staff members who have a complaint, such as residents themselves, family members and visitors’. The extension of protections to other people, such as residents, who may fear suffering reprisals from providers or staff members if they report may pave the way for a higher number incidents of abuse being reported.

Limited information provided in relation to the investigation principles and the limited time frame are the other two major matters of concern that were raised. Limited information has been provided thus far by the government in relation to the investigation principles and a limited time frame has been given by the former Minister for Ageing to providers to effectively implement the new regime. The department advised that the investigation principles to be made by the minister and to be included in subordinate legislation could not be finalised until the bill had passed. The principles are fundamental to the operation of the new measures as they deal with issues such as which matters are to be investigated and how investigations are to be conducted.

A number of groups stressed in their submissions the need for more detail in relation to the principles, with Elder Rights Advocacy noting in its submission that ‘the devil is always in the detail.’ While the department has undertaken to consult on the content of the proposed principles as they are developed, because of the effect they are likely to have on the new regime, I urge the minister to make such details available as soon as possible so interested parties have the chance, which they have currently been denied, to assess them and to have genuine input as to their fairness and workability.

Stakeholders were also concerned that the commencement date of 1 April 2007 was not feasible and a longer time frame would be practically necessary to effectively implement the new regime. They noted that, with the bill still before parliament and the principles containing all the operational details still not finalised, it would not be practically possible to have the new system in place by 1 April as effective implementation would require at the least enough time for development of materials and the training of staff as to their new responsibilities.

Some groups proposed a delay of eight weeks to enable the full and thorough implementation of the new arrangements. Labor supports this bill in principle as it is aimed at offering some degree of protection to residents in aged-care facilities, a group of people that are amongst the most vulnerable and dependent in the Australian community. It also considers the issue of elder abuse in aged-care facilities one of utmost importance, and one that needs to be addressed.

However, it appears that the government has rushed this bill through parliament in response to reports in the media detailing elder abuse without fully assessing the issue of elder abuse in aged-care facilities or wider problems with the aged-care system that have contributed to such abuse being covered up and not reported. This is reflected by the bill’s limited scope. It provides for the compulsory reporting of limited forms of abuse by a limited number of people in limited circumstances. It simply awards residents in aged care the right to bodily integrity and safety—rights which all citizens should be able to take for granted.

By not encouraging the reporting of other forms of potential abuse, such as financial and psychological abuse and neglect, the bill does not recognise or in any way combat the increased vulnerability of people in aged care to such forms of abuse. Furthermore, the limited whistleblower protections awarded under the bill to aged-care staff who wish to report abuse once again reflect the government’s ignorance of the practical realities of the workforce as staff are unlikely to risk their livelihood to report potential cases of abuse that may or may not attract whistleblower protections. The nature of the Work Choices reforms means that many staff in aged-care facilities simply cannot afford to be seen to be stepping out of line. More needs to be done to tackle the systemic problems in aged care. This bill only goes some way to addressing a very small tip of a very big iceberg.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Aged Care Amendment (Security and Protection) Bill 2007. This is a bill that Labor supports in principle but has argued, and continues to argue, that it does not go far enough to protect Australia’s most frail and vulnerable people: its elderly citizens. These are citizens who are now reaching the closing stages of their lives; citizens who have paid their dues to our society. We are talking about elderly women who scrimped and saved to bring up their children during the Great Depression of the 1930s, some of whom took over their husband’s jobs when their men went to serve the country during World War 2. Many of these women were forced back into their homes when they lost their jobs after the birth of their children. Most never got equal pay for their work or even decent superannuation. I speak also for their men—men who came home physically and mentally damaged after the war. Some came back to broken homes or to children who were estranged from them—children who did not know what a father was. Some never had a chance to find out.

For too long the Howard government has paid lip-service to this most admirable group in our community. Is it due to insensitivity, incompetence or merely flagrant arrogance that the current government has failed to act to adequately protect this most vulnerable group? Now, under pressure in an election year, it has finally tabled its amendment to the Aged Care Act of 1997 with alarming alacrity. More cynical persons than I would suggest that it has rushed this bill through the lower house and into the Senate in only matter of weeks with scant respect for either the citizens whose welfare it claims to protect or the many health workers and carers’ who, under unsatisfactory conditions, have tried to nurture and protect these elderly citizens in comfort and dignity. Many of these professionals and carers are poorly paid, and they have one of the least powerful positions in our workplace.

Labor support the Aged Care Amendment (Security and Protection) Bill 2007. However our concern is that it is incomplete and it just does not go far enough. I argue that the bill is narrow in its viewpoint. It does not deal adequately with the issues of abuse and is unlikely to achieve the desired outcome. I acknowledge also that there are some positives. The new bill’s intention to protect people in aged care from physical and sexual assaults is admirable. Its intention to offer providers and staff who report these assaults protection is admirable too. The bill intends to do this by establishing complaints and investigation procedures and arrangements. The appointment of an aged-care commissioner to replace the existing commissioner of complaints is a step in the right direction.

Although the parliamentary committee inquiry into this bill found that there was general support within the community, submissions raised concerns about the scope of the reporting requirements. Common themes among submissions included the requirement to report to the police and the reluctance to report resident-on-resident and resident-on-staff situations. Others raised doubts about the practicality of the system and proposed alternatives to the amendments. Aged and Community Services Australia pointed out that an allegation must be reported whether it is based on reasonable grounds or not, but not suspicions. Should not the same test apply to suspicions also?

Conversely, Australian Unity supported the mandatory reporting of all allegations, even when there were no grounds to suspect a reportable offence, on the basis that requiring reasonable grounds before requiring a report would limit the number of vexatious claims. Australian Unity felt that excessive police involvement was unnecessary because it would overburden the system. It argued that care providers should report only where there were reasonable grounds to suspect assault. Other issues about compulsory reporting were also raised in the committee’s hearing. Claims were made that police and department resources would be overloaded.

The department’s view was different again. It strongly believed that a blanket exemption for all aged-care residents was not defensible. It pointed out that there are over 170,000 people every night in residential care, which represents a complete slice of the human community in Australia. It argued that some had been past perpetrators of very serious crime, some were bullies and others predators. It said that there had been some really grievous examples of resident-on-resident abuse in the past. A number of witnesses and submissions criticised the language used, which they felt was insensitive—for example, phrases like ‘unreasonable force’. Others questioned the clarity and imprecision of phrases like ‘start to suspect’ and expressed concern about the vagueness of the definition of certain basic terms and words.

While compulsory reporting is a desired outcome, it is Labor’s position that the 1.30 rule, as it now stands in the bill, is sketchy and open to misinterpretation and abuse. Labor shadow minister for ageing, disabilities and carers, Senator Jan McLucas, has consistently argued that the bill is being rushed through parliament with little time to examine its detail and, as a consequence, its implications. The principles that underpin this bill were not ready for the Senate inquiry and so were unable to be examined. Senator McLucas has contended that, if the intended implementation date of the legislation, 1 April 2007, had been enforced, it would have created chaos. These views are backed up by the bipartisan Senate inquiry report on the bill. The government has also realised this, as demonstrated by its amendment to delay the implementation of the measures in the bill, with schedule 1 being deferred to 1 May 2007 and schedule 2 to 1 July 2007.

The bill also fails to address some other very important issues. Firstly, the unenviable role of whistleblowers. How much protection do they have? As the Aged Care Crisis Team pointed out in its submission: ‘Whistleblowers are only protected if they report reportable offences.’ Once again, whistleblowers will get no protection if they are compelled by their ethics and moral beliefs to take action in seeking justice for those too vulnerable to speak or advocate for themselves.

Another weakness in the bill is that it does not cover many cases of abuse. This, of course, rather defeats the purpose of it, as it leaves most people—victims, their families, nursing homes and whistleblowers—almost powerless to act in these situations. Then there are financial abuses and abuses of physical neglect. What protection is there in the bill for family members or visitors who report physical abuse? What protection is there for an individual staff member who is victimised? If the bill remains as it is, it seems that even the Commonwealth government will be powerless to act in such situations.

The Health Services Union has very serious concerns, too. It wants to ensure:

... that employees would be sufficiently compensated including all financial and other costs involved in the victimisation such as legal costs and compensation for pain and suffering where applicable.

Limitations to the position, power and functions of the proposed Age Care Commissioner was another concern raised in various submissions. It was suggested that the position of the Aged Care Commissioner was not sufficiently separate from the Department of Health and Ageing. Catholic Health Australia also raised the potential risk of conflicts of interest arising which could jeopardise the commissioner’s ability to follow a proper course of action in some incidents. Such criticisms deserve to be looked at far more closely to analyse their validity and to see what they might mean.

It will no doubt come as no surprise that another query relates to the ‘$90.2 million over four years’ package of reforms referred to in the explanatory memorandum. It claimed that there was insufficient information on it in the bill. A more detailed breakdown of how the moneys are to be carved up has since been given by the department, but the committee should have been given this information much earlier. The list of concerns goes on and on, and it would take more time than I have available here today to enumerate them all. What I want to stress, however, is that every one of these queries supports the argument that the bill has been rushed far too quickly through the parliament, before it has been properly drafted. It is equally important to get it right. Time to clear up discrepancies is important.

I speak to this bill with passion. The pensioners, the frail and the elderly are not merely a segment of our society. They are our grandparents, parents, aunts, uncles, cousins, siblings, neighbours and friends. Ultimately, they will be us. Too often, these clever and dignified elders are treated as though they have passed their use-by date. Many are moved around locations like cans of beans on a supermarket shelf. Some are treated as infants or talked down to as imbeciles. Anything this parliament can do to protect them from all forms of physical and mental abuse should be done. We should never forget that this was the generation that shaped our country and gave it its personality. This generation made Australia internationally popular with their humour, honesty and easy going nature. They lived by the work ethic and the importance of family as being central to our society. These values never go out of date. We owe them a debt.

We need to ensure that this bill properly protects older people. We need to address the issues that are outstanding today and then pass legislation that will genuinely address the needs of those to whom our generation and future generations owe so much.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I thank senators for their contribution to the Aged Care Amendment (Security and Protection) Bill 2007. Since announcing the measures to address sexual and serious physical assault in residential aged-care homes last year, this government has listened closely to stakeholders, and their advice has been critical to the government’s understanding of the needs of this sector and how best to implement appropriate reforms, including through the bill before us.

By working with the sector, we have been able to ensure that the nature and degree of regulation in this bill is reasonable—and I want to acknowledge the work done by the former Minister for Health and Ageing, Senator Santoro, in relation to this. A summary of the issues raised by the senators who contributed to this debate reveals that certainly everyone is in support of the intention of this legislation, but there are differences as to how this should be achieved and the extent to which the legislation should be taken.

The government believe that we have the balance right, and I will deal with a number of issues in turn. The legislation requires that approved providers report allegations or suspicions of unlawful sexual contact or unreasonable use of force on a resident in a residential aged-care service. The report must be made within 24 hours to both the police and the Department of Health and Ageing. While it was the government’s original intention that all allegations of abuse be compulsorily reported, representations were received from the sector in relation to the very sensitive issue of assaults carried out by residents suffering from dementia or mental impairment. Therefore, the bill provides the capacity to exempt reporting of certain allegations or suspicions of assault in circumstances prescribed in principles. This provides some flexibility to address specific issues as they arise. One of the issues proposed to be addressed in the principles is abuse by residents with mental impairment. In this case, it is proposed to provide a discretion not to report and to allow a clinical response through an appropriate behaviour management plan rather than a police and department response.

The bill underpins new compulsory reporting arrangements with protections for staff and approved providers who make disclosures about reportable assault, including protection from civil and criminal liability. The bill also enables a court to order that an employee be reinstated or be paid compensation if their employment is terminated because of the protected disclosure. I appreciate that the question of whistleblowing was the subject of some comment, and I will return to that shortly.

The bill establishes a new and independent Aged Care Commissioner to hear complaints about action taken by the new Office of Aged Care Quality and Compliance and the conduct of the Aged Care Standards and Accreditation Agency. The new office will have the power to investigate all complaints and information; it will have nationally structured intake and prioritisation of all contacts by high-level, specifically trained staff; and it will have the power to determine whether a breach of the approved provider’s responsibilities has occurred. Where a breach is identified, the office will have the power to require the approved provider to take appropriate action to remedy the breach. This will make it easier for people to lodge complaints, it will ensure more timely resolution of complaints, and it will provide greater feedback to all parties.

There was, of course, an inquiry into the bill by the Senate Standing Committee on Community Affairs, and I thank those senators who participated in that inquiry. The government has responded to the recommendations of the committee, and I am pleased to say that, overall, the committee supported the bill and has recommended the passage of this legislation. The government has listened carefully to the issues and concerns raised by submitters and by the committee itself, and I will address each of the committee’s recommendations in turn. Recommendation 1 of the Senate committee is:

That in recognition of the additional responsibilities the Bill places on approved providers especially in relation to training staff members and instituting new systems, the commencement date, particularly in relation to the reporting provisions, be deferred for a period of at least one month.

In response to this recommendation, I will be moving a government amendment to the bill to extend the implementation time frames. The new complaints investigation arrangements and the establishment of the new Aged Care Commissioner will take effect from 1 May 2007, and the compulsory reporting requirements and whistleblower protections will take effect from 1 July 2007. This provides extra time for any staff communication and necessary changes to internal systems and procedures. In relation to the time frames for investigation of complaints, the government is proposing an extension of only one month rather than an extension of three months as is proposed for compulsory reporting. This is because the investigation processes will relate primarily to the roles and responsibilities of the Department of Health and Ageing and the Aged Care Commissioner.

In contrast to the compulsory reporting requirements, very limited changes will be required to be put in place by approved providers in relation to the new investigation processes. It is, however, proposed that the time frames for implementation be extended by one month to enable further consultation with stakeholders on the proposed content of the investigation principles. Recommendation 2 of the Senate committee is:

That the Department of Health and Ageing carefully and closely monitor developments in relation to the compulsory reporting regime… and that care is taken to ensure the reporting mechanism operates as intended.

The government also accepts this recommendation. The department intends to closely monitor both the compulsory reporting requirements and the complaints investigation arrangements, and agrees that there will be much to learn from the outcome of these arrangements in the first year or two. The data collected by the department during that time will also be significant for informing future public policy in this area. Recommendation 3 of the committee is:

That the Bill be amended to extend the whistleblower protections to aged care residents, the families of residents and aged care advocates …

The ALP and Australian Democrats also made recommendations suggesting broadening the whistleblowing protection for any form of abuse or neglect. The important point to note here is that aged-care residents, their families and advocates are not required by law to make reports of abuse, and therefore are not afforded statutory protection under the legislation. Rather, such people may choose whether or not to report, and may do so openly, confidentially or anonymously. The government will not be supporting any amendments to broaden the whistleblowing protections for the following key reasons. Firstly, as currently drafted, the bill protects staff and approved providers because they are required by law to report in the case of approved providers. They do not have the option of making an anonymous report in the case of staff. If they make a report to an approved provider, then they are most at risk of having their employment relationship affected by any disclosure they make. It is therefore appropriate that special protections be made for these people.

Secondly, by contrast, residents, families and advocates may provide reports confidentially or anonymously, and this is widely recognised as providing one of the greatest possible protections against reprisals. The Aged Care Act already includes stringent protections for information disclosed to the department and prevents subsequent disclosure by departmental officers, with criminal penalties for noncompliance.

Lastly, if other people choose not to report information confidentially or anonymously and they are as a result subject to defamation action, they would continue to have all of the usual common-law defences available to them, including truth and public interest. On balance, the government considers that the bill as currently worded provides appropriate protections and does not therefore propose to support any amendments to extend the whistleblowing protections.

A number of issues were raised, and they will no doubt be dealt with during the committee stage in dealing with proposed amendments from the opposition and the Democrats. As I say, there is one government amendment, which I have outlined, in response to the Senate committee recommendation. I think that the other issues that have been raised are best dealt with during the committee stage. The bill itself is an important one.

There was a concern raised by Senator McLucas which I will touch on in the second reading debate. It was about the requirement for a medical diagnosis of cognitive or mental impairment in order for an approved provider to exercise the discretion not to report an assault by a resident. The detail of this discretion is proposed to be provided in the principles, thus providing the flexibility for changes to be made to the proposed arrangements over time if this is required. The government has listened to the concerns raised during the Senate inquiry and, based on these, proposes that, rather than requiring a medical diagnosis to determine a cognitive or mental impairment, approved providers will be required to have an assessment made by appropriate health professionals, which could include, appropriately, qualified registered nurses. The government will continue to consult with the aged-care sector through the Aged Care Advisory Committee and also other stakeholders who made submissions to the inquiry on the detail of the arrangements of the principles which I have mentioned.

In summary, the reforms detailed in this bill give even greater confidence to the people of Australia about the already high-quality care that is provided in our aged-care homes today. I thank all those who have been involved and I commend this bill to the Senate.

Question negatived.

Original question agreed to.

Bill read a second time.