Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to present the report of the Parliamentary Joint Committee on Human Rights inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019, together with the Hansard record of proceedings and documents presented to the committee. I move:

That the Senate take note of the report.

I was honoured last month to be elected Chair of the Parliamentary Joint Committee on Human Rights. As senators no doubt know, the mandate of this important committee is to examine all bills and legislative instruments that come before either house of the parliament for compatibility with Australia's human rights obligations under the seven international human rights treaties ratified by Australia, and to report to both houses of the parliament on that issue. The committee's work is focused on prevention and education with regard to human rights compatibility. As such, the committee seeks to determine the risk that legislation may be applied in ways that could breach human rights and to suggest avenues and safeguards for addressing areas of concern.

As part of this mandate, on 29 July 2019 the committee resolved to conduct an inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. This legislative instrument seeks to minimise the use of physical and chemical restraints in residential aged-care facilities. The use of physical and chemical restraints without consent raises significant human rights concerns, including in relation to the absolute prohibition on cruel, inhuman or degrading treatment or punishment; the rights to health, privacy and liberty; the right to equality and nondiscrimination; and the rights of persons with disabilities.

The committee has examined this instrument in detail, including holding a public hearing and receiving a number of submissions from experts, advocates, the aged-care sector and the Department of Health. The committee strongly supports the instrument's intention to seek to minimise the use of physical and chemical restraint by approved providers in the aged-care setting, noting that, under international human rights law, Australia is under an obligation to take steps to reduce and eliminate such practices.

After reviewing all the evidence, the majority committee report has concluded that, while, on the face of it, the instrument appears to engage and limit a number of human rights, existing state and territory laws continue to apply to regulate the use of restraints. As these other laws continue to apply, the committee report has concluded that this instrument, by further regulating approved providers, does not directly limit human rights. Nonetheless, the instrument appears to have created widespread confusion around the legal obligations of approved providers. In particular, there appears to be confusion around the issue of consent, which is particularly concerning, given the evidence recently noted in the interim report of the Royal Commission into Aged Care Quality and Safety regarding the overprescription of psychotropic medication and poor practice regarding consent. Considering the evidence presented to our inquiry, the committee is concerned that this confusion may have also led to confusion about the permissibility of the administration of both physical and chemical restraints being used in residential aged-care facilities without informed consent and without first exhausting all alternatives. As such, in practice, this may limit a number of human rights.

The majority of the committee has therefore recommended that the instrument and explanatory materials be amended to clarify that other laws continue to prohibit the use of restraint without informed consent, and that the minister should undertake extensive consultation with relevant stakeholders to work towards further strengthening the regulation of restraints. The majority report has taken this approach rather than seeking to recommend that the instrument be disallowed, as to disallow the instrument would result in an absence of federal regulation of the use of physical and chemical restraints. An absence of any express federal regulation would be a major backward step and also not send an appropriate message to the aged-care sector. For this reason, the majority of the committee strongly take issue with any attempt to disallow this instrument, which we believe would be irresponsible and may lead to unintended consequences.

In this regard I welcome the Minister for Health's quick response to the interim report of the Royal Commission into Aged Care Quality and Safety, and particularly his recognition of the need to take further steps in relation to the regulation of the use of chemical restraints.

I encourage my fellow senators, the government and others to examine the committee's report, and with these comments I commend the committee's report on the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 to the Senate.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I wish to make some comments on the report that's just been tabled by the chair of the Parliamentary Joint Committee on Human Rights, and I thank Senator Henderson for tabling that report and for the remarks that she's just given.

As one of the members of that committee who dissented from the majority report of the committee, I want to place on the record the reasons for that. But, before I do that, I do wish to inform the Senate that it's my understanding that this is the first ever dissenting report issued by the Parliamentary Joint Committee on Human Rights, and that decision was not taken lightly by the members of the committee who have endorsed the dissenting report, those members, along with me, being Mr Perrett MP, who is the deputy chair of the committee; Senator Green; Senator Dodson; and Mr Georganas MP, from the other place.

We didn't take this decision lightly. But we believe, on the balance of the evidence that was provided to the committee during our hearings and during our inquiry into this instrument, that it was important that we did agree to submit and endorse a dissenting report. Before I go to the detail of some of that evidence, it's worth saying that this does come in the context of an interim report from the royal commission that said the following about the instrument that we are recommending be disallowed:

The Principles add to, rather than overcome, concerns regarding regulation of physical and chemical restraint, including on issues of consent.

That was broadly reflected in much of the evidence that the committee entertained during our hearing. For example, we had evidence from Mr Geoff Rowe who's the chief executive officer of Aged and Disability Advocacy Australia, who said that the instrument legitimises behaviour that occurs currently.

It's worth pointing out that the interim report of the royal commission laid bare a horrendous tale of abuse and neglect perpetrated on older Australians in particular. Certainly, speaking on behalf of the Australian Greens, we believe the government needs to do much more than it currently is to respond to those revelations, and much more than is currently contained in the regulation that this dissenting report recommends be disallowed.

The royal commission in its interim report also identified a significant overreliance on chemical restraint in aged care as one of the three areas requiring urgent action. It is my view as the Australian Greens representative on the Parliamentary Joint Committee on Human Rights that the way this instrument seeks to regulate chemical restraint is far worse than the way this instrument seeks to regulate physical constraint.

I do also want to address comments made by the chair that disallowing this instrument might result in there being no regulation at all. I will just make it very clear that in fact disallowing this instrument would not necessarily have to result in no regulation of the use of chemical restraints or physical restraints. That is because, even though our dissenting report does recommend disallowing and even though Senator Siewert has withdrawn the disallowance that I co-sponsored with her, there are still two disallowance motions sitting on the Notice Paperone that I've tabled on behalf of the Joint Committee on Human Rights and one other. Those are to be postponed until the next week that we are sitting, which, of course, is not next week but the following week, so the minister has got a couple of weeks now to come up with a decent set of regulations. If there is a disallowance moved and this Senate does decide to disallow the existing instrument, the minister has two weeks notice. If I were the minister, I would be head down and backside up, working as hard as I could to come up with an instrument that actually does the job and properly regulates the use of restraints, both chemical and physical, to the satisfaction of the Senate. The instrument that this inquiry assessed and the one that the dissenting members of the committee are recommending be disallowed is just not fit for purpose. It simply does not do the job that it should do and, particularly, that is able to be argued in the context of the interim report of the royal commission.

The recommendations in our dissenting report are: firstly, that the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 should be disallowed; importantly, secondly, that in the short term we urgently re-introduce a new instrument to ensure the provision of informed consent for the use of chemical restraints, reducing the use of restraints, oversight and effective reporting of the use of restraints; and, thirdly, that a widespread consultation process be implemented urgently to determine the best regulatory framework to protect residents of aged-care facilities in the use of restraints.

So we don't need to vacate this space, and it is actually important that we don't vacate the space. But the ball now is firmly in the minister's court, because Labor members and the Australian Greens member on the Joint Committee on Human Rights have made it abundantly clear through the mechanism of this dissenting report that in fact we do not believe that the current instrument does the job of properly regulating the use of restraints in aged-care facilities and in supported-care facilities.

I say to colleagues that there is now a little bit of time for the minister to do the work that actually should have been done before this instrument was created, came into force and was tabled in this Senate. Two weeks is long enough to do the job. We've got all the evidence so painstakingly gathered by the Joint Committee on Human Rights. I do want to thank members of that committee and the secretariat of that committee for their really outstanding work on this issue. But, ultimately, we did not take this step lightly. This is, on my understanding, the first dissenting report to be tabled in the Joint Committee on Human Rights. Quite simply, dissenting members believe that, as some of the most vulnerable people in Australia, older Australians who are living in aged care do deserve the same human rights protections as everybody else in this country. And we do not believe that the current instrument, the principles, provides for the requisite level of certainty around protecting the human rights of people who are in supported accommodation in Australia.

In concluding, I just want to again urge the minister to take the opportunity that he now has, with a week and a half or two weeks of time to do the job that actually should have been done by the previous minister who tabled this instrument and craft an instrument that actually does satisfactorily protect not just the human rights but the lives of the people affected by this instrument.

Question agreed to.