Senate debates

Thursday, 22 March 2007

Aged Care Amendment (Security and Protection) Bill 2007

Second Reading

Debate resumed from 26 February, on motion by Senator Scullion:

That this bill be now read a second time.

11:42 am

Photo of Jan McLucasJan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | | Hansard source

The genesis of this legislation was in the horrific allegations of sexual abuse in a residential aged care facility in Victoria in February of 2006. All Australians heard about this. People will recall the allegations of rape of an elderly woman. Those allegations were aired on The 7.30 Report by her granddaughters. Each and every Australian was offended at the commentary that we all had to endure during that time. Those media reports, as we know, were followed up with further allegations of abuse. While of a lesser nature, they offended each of us. These were allegations of victimisation and of mental torture. Horrific events were alleged and in some cases substantiated. They offended us all. It is important to say, though, that many operators and staff of residential aged care facilities contacted my office at and around that time and they were equally offended at what they had seen. I want to place on record my recognition and respect for those many providers of residential aged care who have principles and processes in place that mitigate against the abuse of the elderly in their care. They have, through careful consideration, constructed a culture of respect and dignity in their facilities and they are to be commended for that. The Aged Care Amendment (Security and Protection) Bill 2007 before us today is the government’s response to the events of last February.

Labor will support this legislation. But, in doing so, I need to say that it is extremely limited in its scope. It only addresses serious sexual and physical abuse in residential aged-care facilities. In doing so, it reinforces the myth that abuse of the elderly happens predominantly in aged-care homes. Whilst data in Australia is limited, international research does tell us that between two and six per cent of older people are abused in the community generally. We know that abuse in the community is far more prevalent than it is in aged-care facilities. We also know and are concerned by the fact that abuse mainly occurs from a family member.

Abuse has a range of forms. It is not just sexual and physical abuse. It also includes psychological abuse, emotional abuse and neglect. That is an area that we need to consider far more. Neglect of an elderly person, whether intentionally or through poor training of care providers, is considered abuse as well. As I said, this legislation only addresses serious sexual and physical assault and only in residential aged-care facilities.

However, there are events that are occurring in residential aged care that require a response. I have been questioning the department since these events. Unfortunately, we were advised in February estimates that there have been 29 cases of abuse reported to the department and that six staff members have been charged following those reports. That warrants a response, and this legislation will be supported in the hope that it will assist to protect the 166,000 residential aged-care residents in Australia.

The elements of the bill before us include a requirement for compulsory reporting, a protection of those who report, the establishment of investigative principles by regulation and significant changes to the aged-care complaints process. When suspicion on reasonable grounds—and that is important—is held by an approved provider or an allegation of unlawful sexual conduct, unreasonable use of force or assault is made to an approved provider then the approved provider is required under this legislation to report that allegation or suspicion to the police within 24 hours and to the Secretary of the Department of Health and Ageing.

Under this legislation, approved providers are afforded discretion not to report some allegations or suspicions of sexual or physical abuse. In these cases, covered by the investigation principles, all three of the following circumstances must exist: firstly, the approved provider must have reasonable grounds for believing that the offender is a resident; secondly, a medical diagnosis must have been made of mental impairment; and, thirdly, there must be a behaviour management plan in place for the suspected offender. Staff members are required to report assaults. They can report to the approved provider or an approved provider’s key personnel, to the police, directly to the secretary of the department or to another person authorised by the approved provider to receive reports of suspected reportable assaults.

During the Senate inquiry into this bill a number of issues were raised relating to compulsory reporting. I firstly want to go to the issue of ‘reasonable grounds’. The legislation indicates that if a suspicion on reasonable grounds is held by a staff member or an approved provider then compulsory reporting is required. Interestingly, though—and we will go to this during the committee stage—an allegation of abuse must be reported irrespective of whether there are reasonable grounds. It does seem to be anomalous. It was raised by a number of witnesses to the committee. As I said, we will pursue that during the committee stage.

The second issue is the issue of reporting to police. Concern has been expressed about consultation with state and territory police forces. The department indicated during the inquiry that they had convened meetings with the ACT, Queensland and Victoria between themselves and their police forces and that other meetings were to be arranged. I have to say that that indication was met with some bemusement by residential aged-care representatives in Queensland. They indicated to me that it has taken them some months and many meetings with the Queensland Police to develop processes for the police checks in that state. The concern that has been expressed, about whether the various police agencies have been fully consulted, remains.

Many witnesses to the committee talked about the need for sensitivity from police when entering aged-care facilities. There was concern expressed about uniformed officers regularly attending residential facilities and the impact that that may have on the health and wellbeing of residents generally. The question was also raised of the need for privacy for those people who had been abused. The visitation of police into aged-care facilities will have to occur carefully, respecting the privacy and the dignity of all residents.

There was also concern about compulsory reporting leading to over-reporting as residential aged-care providers report anything so their obligations under this legislation are covered. For these reasons, and because of the lack of a clear response by the government, Labor supports the second recommendation of the Senate inquiry into the bill. The intent of that recommendation is to flag to the government that vigilant and ongoing monitoring of the operations of compulsory reporting needs to start from day one. The alternative consideration is a recommendation of a review in two years. Those two options are not mutually exclusive. It is important, though, that we send a strong message to the government that the committee was concerned about how compulsory reporting will work. Labor will be monitoring the implementation of this component closely to ensure that its operation does in fact improve the protection of our vulnerable elderly.

The other issue that was raised about compulsory reporting is the discretion not to report. As outlined earlier, the bill establishes a regime where if the perpetrator is believed to be a resident and has a medical diagnosis of mental impairment and a behaviour management plan is in place then the discretion not to report exists. The issue was canvassed at the inquiry, and we still require resolution on how the medical diagnosis is to be made and recorded. There was conflicting evidence provided to the inquiry and, once again, we will pursue that at the committee stage.

I think the Aged and Community Services Association and Aged Care Queensland have written to all senators indicating their concern about the implementation of the compulsory reporting regime and that in fact it removes a right that every Australian has not to report abuse. Every person who has been sexually or physically abused has a right not to pursue that with the police. But this legislation ensures that any abuse is reported to police. It is a fraught question because it changes the rights of those who live in residential aged care, and it is one that I have trouble with.

However, Dr Yates, who is I think an experienced paediatrician from the Australian Medical Association, answered a question which was asked on behalf of Senator Moore at the inquiry. I thought his evidence was quite compelling. The chair, on behalf of Senator Moore, asked Dr Yates what he would do in a circumstance where a resident requested not to report an assault which they had received from a staff member. The question was, ‘Should we not take it any further?’ He was asked what he thought. He said:

Too bad. This is not an issue for that person alone. That is an indication of risk to everybody else in that residential care service and anywhere else that that casual worker might be working. The other thing I would have to say is that residents are sometimes frightened in that environment. They fear being thrown out. They fear not receiving the services. If you cannot walk and you are dependent on the people around you to stand you up so that you are not wet that day, it is very tough. I think that, irrespective of that, it will have to be worked through with the resident. Even if they have cognitive impairment, you would have to work through it with them … I do not think you can allow a situation where there has been a clear episode of abuse and the resident says, ‘Don’t take it any further,’ because the alleged perpetrator of that abuse is a risk for everybody else in the residential care centre.

I think Dr Yates’s commentary has to be considered and adopted. Another element of the legislation is protection of those who report abuse. The legislation requires that staff members who make disclosures must have their identities protected and must not be criticised. Further, it protects disclosures from civil and criminal liability. That is an essential element of the legislation. On the ABC’s Lateline program, broadcast on 20 February 2006, in relation to the elder abuse story in a specialist dementia unit in Victoria, an unnamed aged care worker said:

In the facility, in this particular facility, it was starting to happen before I left more and more and you feel you have—you can’t do anything. You have no recourse to say anything. Because if you do say anything, you are then bullied by management, from right up, the head office right the way down. You have no recourse. There is nowhere—you put in reports and say that this is happening. Nothing is ever done. It disappears never to be seen again.

That is why we need to have comprehensive whistleblower protection protecting those who report abuse. Labor support the measures in the bill, but we are of the view they do not go far enough. In the report of the Senate Standing Committee on Community Affairs into aged care, tabled in June 2005—a report, I must say, that has not as yet been fully responded to—we recommended that the committee 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.

Appropriate whistleblower protection needs to be extended to the reporting of all forms of abuse—sexual, physical, emotional, psychological, financial or neglect. Those issues of abuse are far more prevalent than the abuse we are dealing with today. Of course, the protection is only warranted when those allegations are made on reasonable grounds. If they are vexatious they should be treated as such, but people who report any type of abuse, including neglect, should be protected. Many cases of retribution during that inquiry were raised when people raised concerns.

Adopting whistleblower protection of the nature that I have described will encourage a culture of reporting. People will recall that the inappropriate sexual dealing shown on The 7.30 Report was witnessed by another staff member, who did not report it. It is beyond me why you would not report it. Perhaps it was because there was no whistleblower protection in place. Labor are also of the view that we need to extend protection to all people involved in residential aged care services, not only to staff members. This matter was raised in a quite compelling way by the Victorian advocacy organisation that presented at the inquiry, and we will move amendments to that effect during the committee stage.

The legislation also proposes changes to the departmental section of aged-care quality and compliance, which will be established as the Office of Aged Care Quality and Complaints. It will have the power to investigate all complaints. In the case of a breach, the office will have the power to require the approved provider to remedy the situation and to apply sanctions if necessary. This is a significant change to the way in which complaints about aged care generally will be dealt with, and it will be supported.

There are also changes to the office of the Aged Care Commissioner. The bill inserts a new part into the act establishing the Aged Care Commissioner. The commissioner will replace the existing Commissioner for Complaints and will have powers to investigate complaints arising from action taken by the new Office of Aged Care Quality and Compliance with regard to investigations and the conduct of the office. The commissioner will also examine certain decisions and complaints made by the office and make recommendations accordingly. The commissioner will examine complaints about the conduct of the accreditation body or the conduct of a person carrying out an audit or making a support contact under the accreditation grant principles. The commissioner may make recommendations to the accreditation body arising from the examination but will not examine a complaint about the merits of a decision under those principles. The commissioner will also have the capacity to undertake own motion reviews. The commissioner will advise the minister at the minister’s request about any matters that arise from examinations. The commissioner will have some discretion not to deal with a complaint where a complaint is deemed to be frivolous, vexatious or not made in good faith or to be already being reviewed by a court or a tribunal. He or she will have that discretion. We support those changes and again refer the department to the committee’s report Quality and equity in aged care, which was tabled in June 2005.

I want to place on record, though, Labor’s offence at the dismissive financial impact statement in the explanatory memorandum tabled with the bill. Financial impact statements were introduced by Labor in 1983, with good reason. People making decisions about legislation need to have full knowledge of the costs of implementing such legislation. Further information was provided from the department subsequent to the inquiry, but I have to say that it is still incomplete.

The commencement date was of strong interest to all witnesses to the inquiry. Almost every witness and submitter recommended a delay in commencement, and I am pleased to see that the government has acknowledged that and has now introduced amendments to that effect.

The events of February 2006 shocked and appalled all Australians, but the response of the minister and the government has been too limited and unfortunately has reinforced the incorrect perception that abuse occurs mainly in residential care. The truth is that most abuse of older people occurs in the community, and this bill does nothing to address that reality. Labor will support the legislation, but in the context of the need for a far more comprehensive response to abuse. Our vulnerable elderly deserve protection from abuse in all its forms and deserve our support.

12:02 pm

Photo of Helen PolleyHelen Polley (Tasmania, Australian Labor Party) Share this | | Hansard source

I want to acknowledge in the chamber today the contribution to this debate of our shadow minister for ageing, disabilities and carers, and her ongoing commitment to this area. I congratulate her. The hearing that took place was very important. But I also rise today to speak on the Aged Care Amendment (Security and Protection) Bill 2007. Firstly, I wish to commend the government’s allocation of $90.2 million from next month towards further safeguarding residents in aged-care homes from sexual and serious physical assault. This is a welcome move but tragically late in its delivery and sadly limited in its impact.

I remind honourable senators that this bill was only introduced in February this year. For six long months after the minister promised those funds to safeguard aged-care residents the $90.2 million has just been sitting there waiting for this legislation. It is also now a long time—two years—since the Senate inquiry on quality and equity in aged care. And it is one full year since the shocking revelations on the ABC’s Lateline, when distressed relatives told of the sexual abuse of their grandmother in a residential aged-care home. Sadly, that shameful story is not an isolated case.

Nor is the abuse of the elderly limited to criminal assault. It extends to negligence, psychological mistreatment, bullying and neglect. Our aged citizens—our parents and our grandparents—deserve our protection and care. It is a minimalist approach to limit that protection to alleged criminal behaviour. The government should be proactive in compelling providers of aged care to provide care which complies not merely with the criminal law but with standards of decency.

Many of our aged-care institutions do provide that quality of care, particularly in my home state of Tasmania. Most aged-care workers look after the aged and infirm inmates of those institutions with professionalism and dedication that go well beyond the call of duty.

It was extremely helpful for the members of the Senate inquiry into this legislation to hear from associations representing the interests of the ageing community and of the people caring for them. Their knowledge and concern were evident in their submissions and are indicative of the care and commitment of those who look after our aged and infirm. It is just a pity that more use was not made of their valuable expertise when the bill was being drafted. For several of the key stakeholder organisations not to have been involved at all, or to have been involved in only an incidental manner, in the consultations leading up to this legislation is very damning of this government—but that, I would have to say, is proving since I have been in this place to be fairly typical of this arrogant government.

Labor supports the provisions of this bill to the extent that they address the pressing problems faced in aged-care institutions. Compulsory reporting of suspected sexual and physical abuse is as necessary for our aged persons in care as it is for our young people in our schools, but this is overdue. And protection of those who report suspected abuse is essential if the legislation is to be fair for those reporting, as well as effective for those abused. A greater capacity for the Department of Health and Ageing to investigate complaints, and an ombudsman-like Aged Care Commissioner, independent of the department, to scrutinise the department’s investigations are also essential to the effectiveness of this legislation.

However, it is not enough to limit the scope of the legislation to criminal abuse and its prevention. All forms of abuse of the aged should have to be reported. The vast majority of abuses are not a matter of breaking the law but of breaking the hearts of the aged and their relatives. Poor nutrition, neglect—leaving residents unattended in wet and dirty beds—emotional abuse and financial abuse are among the examples of abuse and degradation submitted to the Senate inquiry. Labor, in response to this large, if largely hidden, range of abuses of the elderly, is proposing an amendment so that all forms of abuse must be reported. Deficiencies in nutrition, hydration, hygiene, verbal and emotional or financial abuse, as well as other instances of inadequate care, must be required to be investigated.

The so-called whistleblowers—those who report on these abuses—must also be protected. Labor is also proposing an amendment to widen the categories of people who should report abuses and to extend the same protection to them as is currently proposed only for aged-care providers. There are many people in a position to assess whether or not elderly residents of our aged-care facilities have been abused. Indeed, family members are often the ones best placed to discern the effects of abuse on a loved one. Others who are well placed to observe the abuse itself are other aged-care residents and aged-care advocates. These people, too, should be protected by law from victimisation inflicted on them as a result of their reporting.

Only by widening the network of protectors can we be certain that the aged and frail in our community do not suffer the pain, suffering and indignity that too many of them have been subjected to up to now. It is not only Labor that recommends an amendment of this kind. The Senate committee to which this legislation was referred recommended on 9 March, among other things:

That the Bill be amended to extend the whistleblower protections to aged care residents, the families of residents and aged care advocates where they have reasonable grounds to suspect that the information indicates that a reportable assault has occurred and the disclosure is made in good faith.

It was not only the Labor members of the committee who heard what witnesses had to say. The entire committee recognised that it was a significant oversight to exclude loved ones, as well as experienced, independent professionals, from reporting on abuse of the aged.

How arrogant of this government to ignore the advice it got from the very community that it invited to give advice. These are citizens who know firsthand about the care of the vulnerable in our community. These people took the time to write to the Senate committee and to appear before it. Their experience was taken on board by the Senate inquiry but not, apparently, by this arrogant government. This government will not even listen to its own coalition-dominated committee. As we all know, the committee structure was changed very recently to ensure that the government had control. The government is not even listening to its own committees.

This legislation gives all the signs of a botched job being rushed through by a confused and forgetful minister who himself has now moved on. Only a rattled, tired government would make such a mess of spending the promised $90.2 million. It has skimmed over the surface of the depth and detail of a complex problem. I do acknowledge the amendment being proposed to the impossible commencement date of 1 April—although it was pretty appropriate, being April Fools’ Day.

The changes mean that all staff must be informed. That date, 1 April, was going to make things almost impossible, because there is an onus on institutions to ensure that all staff are properly and correctly prepared for the changes. Anyone who has any idea of the enormous time it has taken to inform teachers, carers, counsellors and medical practitioners about the mandatory reporting of sexual harassment of young people would have some idea of the demands for training in new procedures. So I reiterate that I support the amendment to change the date.

The Senate inquiry was told by stakeholders just what pressures institutions will be under if they have to meet the deadlines of this legislation. With all the will in the world, it will be virtually impossible to set up the systems needed to report, sensitively, accurately and fairly, suspected and alleged instances of sexual abuse. We want to make sure that we get this right. As Catholic Health Australia submitted:

This Bill ... imposes extra administrative, training and legal responsibilities on approved providers without any additional funding flowing to enable the process to be as effective as possible.

Not only funding but clear guidelines are missing. Who will ensure that policies and practices are in place that will truly enable staff to report neglect and abuse without any fear of reprisal? A set of investigation principles has been foreshadowed by the government, but they will not be available until after this bill has become law. So there will be no scrutiny by parliament and no input from the stakeholders best qualified to say what will work and what will not.

Guidelines are essential if the legislation is actually to take effect. Staff will need to know which matters they must report. Management will need to know which matters it must investigate. Institutions will need to know how investigations are to be conducted, and they must exercise care to protect the aged residents and the carers. Procedures may have to be modified, especially where any element of dementia might be involved, and guidelines are crucial in an area of such sensitivity.

Our aged-care system faces a number of long-term challenges. Two years ago the Senate’s inquiry into quality and equity in aged care found deficiencies with the operation of the Aged Care Complaints Resolution Scheme and made recommendations to improve the system. It has taken media reports to shake this government’s complacency. Yet still it has reacted with one bandaid solution, poorly constructed, to a long-term social challenge.

It is estimated that the number of Australians aged 70 or over will double over the next 20 years. We must act now to prepare for the future. The sector has suffered for far too long, and this is evident in the problems which are emerging now. Labor’s stance on this issue is clear: our elderly deserve the right to live in a safe and caring environment. Labor believes that healthy and positive ageing must be an achievable goal. Older Australians deserve the best our nation can provide.

Just one of the many important areas absent from this legislation is the critical issue of staff-resident ratios. Staffing levels have dropped since the introduction of the Commonwealth Aged Care Act 1997, which took away the connection between funding and the level of care provided in aged-care facilities. Various independent surveys have confirmed this. Currently there are no minimum levels of staffing required by Commonwealth legislation for aged-care facilities. The Commonwealth accreditation process only requires a facility to have ‘adequate’ staffing numbers. Residents who have specialised nursing care needs must have them met by ‘appropriately qualified nursing staff’. Opinions will inevitably vary as to what levels are adequate or whether staff are appropriately qualified. These terms must be clarified to end uncertainty.

There is now significant evidence that patient care and safety can be adversely affected by inadequate staff numbers. A well-trained, adequate and valued workforce is ultimately the best protection against elder abuse. The Aged Care Crisis Team has highlighted the importance of all levels of staff working in aged-care services, including management, to have an understanding of the issues of caring for frail older Australians. These issues include dementia and cognitive impairment, troublesome areas that have not adequately been accounted for in this legislation. Additionally, there are no requirements for registered nurses to have undergone specialist training. It is unacceptable for frail and ill elderly people to be cared for largely by untrained staff.

I recognise the inherent difficulties in the education and training of staff working in residential aged-care facilities, in particular assistants in nursing and personal-care staff. There is a critical shortage of aged-care nurses and a major wage disparity between nurses and personal-care staff in the aged-care sector and the acute-care sector. Labor will develop strategies to improve the recruitment and retention of aged-care nurses with a focus on addressing the wage disparity, improving working conditions, reducing the paperwork burden, and improving opportunities for further education and training.

To ensure high-quality service standards are adopted and maintained, Labor supports a rigorous accreditation process. We need to tighten the monitoring of aged-care facilities, especially for those that do not provide an appropriate level of care, to ensure that all aged-care facilities provide high-quality care and services to older Australians. In 1996 there were 800 surplus beds in aged care. We are now facing a massive shortage of beds for the elderly. Waiting time for a bed doubled between 2000 and 2005. Frail and elderly people were taking up acute-care beds in hospital as a direct result of this.

We should be providing aged-care services of the highest quality possible. I believe that older Australians who need residential care should be provided with the highest quality nursing and personal care in safe and comfortable surroundings. I support an effective complaints resolution process to ensure that residents of aged-care facilities and their families are able to resolve their concerns satisfactorily. I commend to the Senate the amendments proposed by the Labor Party.

12:17 pm

Photo of Gary HumphriesGary Humphries (ACT, Liberal Party) Share this | | Hansard source

It is my pleasure to rise to support the Aged Care Amendment (Security and Protection) Bill 2007 and indicate that it is a very significant step towards the greater protection of Australians who live in aged-care facilities. It would be easy to misunderstand the nature of what has occurred in Australia with the introduction of this legislation by listening only to the comments that have been made by those on the other side of the chamber. It would be easy to overlook that Australia has had a dramatic lift in the quality of its provision of care and support to older Australians in the last 11 years.

Let me make a few comparisons for that purpose. In 1995-96—that was the last year that Labor was in government—we spent a total in Australia of something like $3 billion on aged-care funding; as of last financial year, 2006-07, we were spending $7.8 billion on aged care. That is an increase of 160 per cent. The total number of aged-care places available in 1995-96 was 141,293; as of 30 June 2005 it had risen to 193,753, a 37 per cent increase, which obviously outstrips the increase in the size of the aged population. The increase over that time was in the order of about 28 per cent, so the increase in the number of aged-care places has been in excess of the rise in the aged population that might demand those services. We have not just overseen an increase in resourcing for aged-care facilities and services in Australia; we have also overseen a dramatic change in the tenor and the standards applicable in those facilities.

In the years preceding the change of government in 1996 dramatic cases reached the headlines of older Australians being severely neglected and abused in aged-care facilities. This government took a strong approach towards those problems and dramatically changed the landscape with respect to what had happened in aged-care facilities. There was a huge crackdown, many facilities were closed and the government demanded higher standards.

It has been interesting to hear in the debate in this place the opposition citing situations where those standards have not been met and to reflect on how far we have come because of the work of this government. There were no applicable standards in those days that required the kinds of standards we now expect in those aged-care facilities, and the sorts of things that were commonplace then are now rare enough to be commented on in debates in this place and the other chamber. We have unquestionably changed the landscape for older Australians for the better, and those figures that I cited before demonstrate that very clearly.

This piece of legislation is about further improving the environment in which older Australians live when they enter an aged-care facility. The amendment bill has four main components. Firstly and most critically, it argues for a comprehensive regime of compulsory reporting of assaults in aged-care facilities to police and to the Department of Health and Ageing. Secondly, it provides protections for whistleblowers, approved providers and staff members who report aged-care assaults. Thirdly, the bill establishes a complaints investigation process to ensure that less-than-scrupulous care providers are held to account. Finally, the bill establishes an Aged Care Commissioner to replace the existing Commissioner of Complaints.

In supporting this bill, we need to acknowledge that those are very significant steps to ramp up the level of protection for people who are vulnerable in aged-care facilities. I think it needs to be put on the record that, overall, Australian providers of services to the aged do a good job. They provide high-quality services and the people who use them get both good value for money and close attention to their needs and their concerns. It is unfortunate that, perhaps due to the vulnerable nature of many of the people who occupy those facilities, we sometimes find providers who are less than scrupulous and whose attention to the needs and rights of residents in their facilities is not as close as we would like it to be.

This legislation seeks to put in place a compulsory regime which says that when a person working in an aged-care facility encounters these cases of the abuse of a resident—albeit that they are relatively rare—they must be brought to the attention of the appropriate authorities. They must be brought to the attention of both the police service in the relevant state and the Department of Health and Ageing. That, in a sense, is a change of paradigm for this sector. There has been an expectation in the past that these matters would be dealt with using the common sense and judgement of those involved—staff members, operators, family members and so forth. But it has been made obvious by recent incidents in the last 18 months that in some cases that common sense does not suffice to address these problems adequately and that some form of compulsion needs to be in place.

There are exemptions from compulsory reporting. Those exemptions apply in the case of an assault by a person suffering cognitive impairment on another resident. When those exemptions apply, other mechanisms need to be put in place to protect the residents concerned from further assault. We are lifting very significantly and very dramatically the standard that we require for those who work and operate in this sector. In fact some of the evidence put before the committee suggested that in some ways we might be going too far—that the regime is overly onerous in requiring all assaults to be reported, with the exemptions that I mentioned put to one side.

In her remarks, Senator Polley said that the government had not given enough attention to the views of stakeholders in the development of these provisions. That claim is entirely false and without foundation. It has taken some time to bring this legislation forward precisely because the views of stakeholders were being carefully canvassed. I must say that the evidence of the thoroughness of the department’s examination of this issue—and indeed the minister’s scrutiny of the views of stakeholders—is that when this legislation came forward and the community affairs committee conducted our inquiry there was strong support from every one of the witnesses who appeared before us for the concept of this new, dramatically different regime in Australia’s aged-care sector. There was not one witness who said that we should not have a regime of compulsory reporting of assaults on those in aged-care facilities—although some witnesses certainly suggested that there should be modifications to the nature of that reporting regime. So I do not think the government has got that wrong. The government has understood the need to reflect the views of stakeholders in this respect and the regime put on the table in this legislation is essentially acceptable to those stakeholders.

There are issues, as I have suggested, about the extent to which that regime might be modified. The feasibility of a system of compulsory reporting was questioned by a number of providers during the consultation process and during the hearing that the community affairs committee conducted. Those providers expressed concern about the mandatory requirement to report assault allegations and suspicions to police in particular. For example, Australian Unity, one of those providers, suggested that aged-care providers—so as not to overburden police or create a backlog of relatively insignificant complaints which could cripple the system—should only report to police when the care provider deemed that there were reasonable grounds to suspect an assault. They argued that compulsory reporting stripped a resident of the right not to report an assault—a situation tantamount to giving older people fewer rights than anyone else simply because they are in residential care.

There are two issues here which I think we need to look at very carefully. The question of giving older people fewer rights is certainly a matter that vexed the committee for some period, and it was examined very carefully by the committee. We recognised that these concerns were valid but were convinced at the end of the day that there was a need for an element of compulsion in this reporting—that is, that we should not have a situation where a provider could say, ‘We choose not to report what a resident has told us is a case of assault.’ The Australian Medical Association pinned down this argument very well when it argued that without mandatory reporting one could in no real way protect the interests of the elderly in care. It said that duress would be a very real prospect in serious assault cases if elderly, highly dependent and frequently mentally impaired residents had the choice not to report an assault to police—that is, they could be put under pressure in those circumstances not to take a matter forward. That was an argument that ultimately convinced the committee, and we have not recommended in our report that there should be a right to opt out.

Of course it is possible, once police are contacted and if the police come to investigate a particular allegation, for them to take the views of a particular resident into account if that resident says, ‘I don’t wish this matter to be taken any further.’ But the concept of not being required to contact the police and not being required to report the matter to the department is one which I think the committee comprehensively rejects.

We know that approximately 75 per cent of residents in residential aged care facilities in Australia today have some form of cognitive impairment. As a result, there are very great variations in social behavioural norms among those residents. The committee noted that the regime which is being put in place here is being implemented in the absence of data about what kind of reporting incidence will occur as a result of those changes—that is, we do not know whether we can expect a flood of these sorts of complaints or whether they will be relatively modest in number and easily managed by both the department and the relevant police forces. This is a matter which I think only time will be able to provide an answer to.

The committee feels that it is necessary for the department to have regular meetings with the Aged Care Advisory Committee to discuss implementation issues and to ensure that what we end up with is a sustainable model of compulsory reporting. If the system proves to be unwieldy, it may be necessary to hold a formal review of the legislation, perhaps within the next two years or so—following a suggestion made by the Australian Medical Association—which might ultimately lead to the exclusion of certain sorts of assaults or assaults between certain categories of people: for example, an assault by a resident on another resident or a resident-on-staff assault. I think those issues need to be carefully examined. In due course, it may be necessary to have a system of reporting to the department but not necessarily to the police force. We simply indicate that there is a lack of data about this.

We do not yet know what the system is going to experience when the model comes into force at the beginning of April, but we do know that it will need to be carefully monitored and that the views of stakeholders will need to be carefully identified and considered while the system is being rolled out. We need to be aware that we are significantly changing the model that works in Australian aged care facilities. We have had a model where reporting did not need to occur if the provider did not feel that a matter needed to be brought to the attention of the authorities. We now have a model where the default position is that you do report, irrespective of whether you think the assault has in fact occurred and whether there is anything to investigate. That must be an important change in the mindset of the sector and one which I think the department understands will take some time for it to fully digest.

The Labor Party has proposed an amendment to require all forms of abuse or neglect within aged care facilities to be reported. I cannot understand why such an amendment would be moved when it was fairly obvious to the committee that examined these matters that the potential problem with the legislation is that the reporting requirements as they stand are too onerous—that is, they will require more reports to be made to the relevant authorities than, it was argued, those authorities would be able to comprehensively digest and process. The fear was expressed that there would be hundreds of complaints of assault coming to local police forces to investigate that were alleged by, for example, residents with a mental impairment, such as dementia, and that this would overburden the system.

That consideration was put forcefully during the inquiry, so it is hard to understand why the Australian Labor Party now says that we should make the reporting regime even more onerous by requiring even more things to be reported. I assume that they are responding more to the position of the party on this issue—it seems to me that they are playing an element of catch-up—than to the evidence which was placed before the committee during its inquiry. We need to see how these provisions work out in practice before we think of requiring further reporting to occur.

I cannot recall any evidence given during the inquiry itself about other forms of neglect or abuse or of a lack of services or standards being met within homes which would somehow require special arrangements to be put in place to provide for those things to be properly aired in a public way, such as with the Department of Health and Ageing. Mechanisms are already in place to deal with those issues, and evidence of there not being adequate arrangements, I think, was lacking. It is the right of those opposite to put these amendments forward. But I would say to them: if you actually carried them forward into law, they would impose an incredibly heavy burden on this sector and, moreover, they would impose a ridiculously heavy burden on others to try to make sense of complaints which would simply be beyond the capacity of the system to properly deal with.

As I said, this legislation is very significant; it is a very big change. Far from being the hallmark of what Senator Polley called ‘a tired and rattled government’, I think it indicates a government with a sense of vigour and determination to continue to improve the services offered to older Australians in care. We know that this system is essentially a good one. We know that it provides a very satisfactory, high quality of services to the vast majority of people who enter this sector. We know that further work needs to be done to raise those standards. This legislation more than anything else in the last few years does just that: it raises the standards. It improves the level of protection available to Australians in those settings. And I think it deserves to be strongly supported by the Senate.

I have no doubt that both the Department of Health and Ageing and the new Minister for Ageing will pay close attention to the issues which have been raised by the committee, look very carefully at the question of workload and capacity of the system to properly scrutinise complaints that are made and adjust, if necessary, the provisions of the new scheme to reflect those concerns if they materialise. But I have no doubt that the first and most important step is to put legislation of this kind on the table, have it enacted and engineer that significant ramping-up of protection to Australians in this context.

12:37 pm

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

The Aged Care Amendment (Security and Protection) Bill 2007 is part of the government’s response to a number of alleged cases of sexual and physical assault of residents of aged care facilities last year—and it is, I might say, something we called for at the time. I think we can all agree that it is unacceptable that any form of abuse is perpetrated on the elderly, and I think I am safe in saying that we are all supportive of measures which protect vulnerable Australians, regardless of their age. That is why I will be supporting this bill; however, we do have some concerns about the legislation. They are not so much about the intent of the bill as about how it goes about putting that intent into practice. Perhaps more significantly, we have concerns about what the bill does not do. In fact, the bill is a very narrow response to a serious issue in our community. It is an issue which has not received the attention and considered response that we think it deserves.

We say that the government should be looking at comprehensive approaches to elder abuse, preferably approaches that prevent abuse in the first place and that help people to identify inappropriate behaviour and intervene before it escalates into a criminal offence. Compulsory reporting is often a case of shutting the gate after the horse has bolted. I should make it clear that we have in the aged care sector very dedicated, hardworking people who provide an invaluable service to aged Australians. This is not a criticism of them. The sector on the whole is willing to work with the government to put in place appropriate processes to ensure greater protection for their residents, but unfortunately this bill—like so much of what the government is dishing up—has been brought before the parliament in a rushed manner with inadequate consultation and consideration of some of the practicalities of what is being proposed.

The bill was introduced on 7 February, with an inquiry to be done and dusted by 14 March. That is actually a comparatively long period of time when you look at the ridiculously limited time given to other recent inquiries. The original expectation was that the measures would be implemented by 1 April. Of course, as we are increasingly seeing with this government, the bulk of the operational detail about the practices and processes that will give effect to the reforms will be included in subordinate legislation which no-one has yet seen. Although the government did manage to put together a rough and ready explanatory guide to flesh out some of the areas that lack clarity, it was not available until March and it still leaves many questions unanswered.

The bill builds on the measures introduced last year: the requirements for police background checks for aged-care workers and certain volunteers in aged-care facilities as well as the introduction of more unannounced inspections of aged-care homes. We supported these measures and, at the time, argued for a broader approach in tackling elder abuse. The problem is that the abuse of older Australians is not limited to residential care and it is not limited to physical and sexual abuse. This bill establishes a requirement for aged-care providers to report allegations or suspicions of unlawful sexual contact or unreasonable use of force on a resident in a residential aged-care service. But there is nothing in the bill that deals with other forms of abuse: psychological abuse, financial abuse or even neglect.

The Democrats argue that all abusive behaviour and exploitation is unacceptable. This bill does not contain any measures to tackle abuse, neglect or exploitation of older Australians that may occur in their own homes. It is true that the issues in relation to prevention, detection, intervention and response to elder abuse in community settings are different from those in residential aged-care facilities, but nonetheless we say they warrant equal attention. Conservative estimates suggest that some 97,000 Australians will be subjected to elder abuse in domestic settings by 2011. That is a frightening statistic. The government is supporting and encouraging older Australians to remain at home, where, it could be argued, there is even less scrutiny than in residential aged-care facilities. Yet the government is offering us nothing to protect these people. We favour a more comprehensive response that would protect the aged regardless of where their care takes place and regardless of what form the abuse might take.

I will be moving a second reading amendment which, amongst other things, calls on the government to 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. The key elements of the bill are a requirement for compulsory reporting, protection of those who report, the establishment of investigation principles by regulation, and significant changes to the aged-care complaints process. The bill establishes a compulsory reporting system for when a physical or sexual assault is alleged or suspected to have occurred. Aged-care providers must report this alleged or suspected assault regardless of the wishes of the person who has allegedly been, or is suspected to have been, assaulted.

It is true that allowances have been made for circumstances in which a resident with diminished mental capacity is involved in carrying out an assault. In these circumstances, there is some discretion allowed. But there is no discretion when it comes to the wishes of competent older adults with decision-making capacities. Many people no doubt see this as a good thing; indeed, the Australian Medical Association’s position is that the individual’s wishes are beside the point. This is certainly not an easy or straightforward matter to deal with, but it is seriously concerning that a system is being proposed that gives older people in residential facilities fewer rights than others.

Let us be clear: we are not talking about situations in which individuals are in some way impaired in their ability to make an informed decision about whether to report an assault to the police or not. We are talking about competent elderly people. In other circumstances the law assumes that competent adults can make their own decisions about whether or not to do anything about the abuse they experience. This does not mean that others would necessarily agree with the decision that they make, but at least they have that choice. The legislation explicitly denies older individuals with decision-making capacity that choice, simply on the basis that they are residents in residential care.

Being a resident of an aged-care facility does not automatically make an individual less able to make informed decisions, and it should not mean that they have fewer rights. Interventions relating to abuse should be victim focused, with the interests of the victim taking precedence over those of the care provider or the government. I am aware of the time, and it might be useful for me to seek leave to continue my remarks later.

Leave granted.

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

Order! Pursuant to orders of the day, the time for this debate has now expired.