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Wednesday, 14 February 2007
Page: 70


Ms ROXON (2:11 PM) —It gives me great pleasure to be speaking today on the Aged Care Amendment (Security and Protection) Bill 2007. In fact this is the first opportunity for me to address this House on aged care since taking on my portfolio responsibilities for health, so standing here representing my colleague Senator McLucas on this matter is a great honour.

We are dealing with a very problematic issue within the community—that is, the abuse of elderly residents in aged care facilities. This bill is the government’s response to some particularly appalling allegations of abuse which you, Mr Deputy Speaker, and I am sure others in the House would remember came to light in February last year. Members may recall a program that ran on Lateline on ABC TV on 20 February 2006. The story revealed by the family of an aged care resident was about the abuse of their grandmother in an aged care facility. The claim was of the alleged rape of an elderly Victorian woman in a specialist dementia unit. This story offended each and every Australian and was certainly a very confronting issue for many people to address. Further allegations of a less serious but equally offensive nature were also discussed. They included the allegation that an elderly woman was squirted in the face with a water bottle by a so-called care provider. This apparently happened at least three times.

Unfortunately these are not isolated cases. When we debate this very serious issue, and we do not want to downplay the importance of it, we should also rush to add that the vast majority of aged care providers in our community do a fantastic job and that the vast majority of aged care nurses and those who care for the frail and vulnerable are amongst the most compassionate people and staff that we could find in many areas within our communities. But these instances do occur and, unfortunately, they are not isolated. These stories of abuse, sadly, occur far more often than we think. Questions at Senate estimates hearings reveal that, from July 2006 to date, there were 29 allegations of abuse in aged care facilities, of which seven have resulted in charges being laid. That is not a large number, but obviously we need to do and want to do anything we can to make that number zero. This legislation is part of the government’s response to these and other reported events.

While Labor will support the legislation, our view is that it is but a small part of what is needed to tackle the abuse of older people in Australia, not just within aged care facilities but more broadly within the community. This bill does not deal with any of the issues of abuse of elderly people in the community. The key elements of the bill are: the requirement for compulsory reporting; the protection of those who report; the establishment of ‘investigation principles’ by regulation; and significant changes to the aged care complaints process.

Staff members will now be 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.

The particular subsection, 96-3(2), describes the matters that may be included in the way complaints are resolved, and section 63-1AA actually deals with responsibilities relating to alleged and suspected assaults. The section sets out the responsibilities of an approved provider of residential care in relation to an allegation or suspicion and defines what a reportable assault is. It includes unlawful sexual conduct, unreasonable use of force or assaults specified in the accountability principles, and there are a number of other matters.

Under this legislation, although this is instituting a process for compulsory reporting, approved providers are afforded with some discretion not to report some allegations of suspicions of sexual or physical abuse. In these cases covered by the investigation principles, all three of the following circumstances must exist in order for the providers to be given the discretion not to report. 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 the mental impairment of the offender; and, thirdly, there must be a behaviour management plan in place for the suspected offenders.

These protections are there, no doubt, as many in this House would know, because a number of sad instances do happen between residents, particularly when you have residents affected significantly by dementia. This regime is designed to protect the elderly people in aged care facilities from abuse at the hands of their carers and others who are running these facilities. It cannot and does not hope to deal with all the issues that occur between residents. Obviously, any assaults and other serious matters will still be reportable and there is nothing in any way which suggests that these sorts of incidents should not be reported. It merely provides the providers with an opportunity and a discretion not to report where some very tight circumstances and conditions are met and where it would not be in anyone’s interests necessarily to pursue this course of action. Where an allegation or suspicion of physical or sexual abuse is made to an approved provider, the provider is responsible for reporting that allegation or suspicion to the police within 24 hours and also to the Secretary of the Department of Health and Ageing.

A very important change as part of this bill is to make sure that, if you are going to have a regime of reporting, you protect those who actually make a report. The legislation requires that staff members who make disclosures must have their identities protected and must not be criticised for having made those reports. Further, it protects the people who have made the disclosure from civil and criminal liability.

This is an essential element of the legislation. Too often in the past, aged care workers who have made reports concerning suspicions of sexual or physical abuse have themselves been ostracised in their working environments. Again, on the Lateline program that we saw early last year an unnamed aged care worker said, in relation to the elder abuse story in a specialist dementia unit in Victoria:

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.

As part of this proposal it is vitally important not just to protect people who do make a report but also to protect the identity of anyone who makes the report. There is a specific provision in the act, section 96-8(7), which specifies how a person should be treated and methods that should be used to ensure that the person’s identity is not given. Identity can only be provided where it is necessary to one or more of the following: a police officer with responsibility relating to the area, including the place where the assault is suspected to have occurred; the secretary of the department; and a person, authority or court to which the approved provider is required by law to disclose the fact.

Obviously this is important. It means that a person is protected from having their information passed on to other staff, to family members, or perhaps to a range of other people who may have some vested interest in playing havoc with the fact that a report has been made. This is similar to the protections that are provided in many other circumstances when people report offences, to make sure that they are not going to be victimised for bringing the proper attention of the authorities to somebody who is alleged to have committed a terrible offence.

The third element of this bill relates to the provision of ‘Investigation Principles’ by regulation. These principles will provide guidance for which matters are to be investigated, how investigations are to be conducted, considerations in making decisions relating to investigations and procedures for reconsideration or examination of decisions relating to investigations.

This is a significant change to the way complaints about aged care will be dealt with. Many complaints about the current system focus on the frustration caused by the current requirement for complaints to reach a mediated resolution. This has not always proven to be possible or necessarily to be the best way to deal with these matters. For example, Advocacy Tasmania in its evidence to the Senate inquiry into aged care, which was tabled in June 2005, said:

... you cannot mediate about some things. It depends on the actual incident that has happened ... Mediation is fine if there has been some behaviour ... someone being nasty. Ideally it should be recognised that that did happen and there should be some acknowledgement of the fact that it happened ... mediation is not always satisfactory, and unless people are supported it can be extremely intimidating.”

So this system should improve on that situation. The new Office of Aged Care Quality and Compliance 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 apply sanctions if necessary.

The fourth element contained in this bill is the insertion of a new part 6.6 into the act and concerns the Aged Care Commissioner. The Aged Care Commissioner will replace the existing Commissioner for Complaints and will have the powers to investigate complaints arising from the actions taken by the new Office for Aged Care Quality and Compliance with regard to investigations and 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 an 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 these principles.

It may all sound like a fairly technical process with the number of new offices, but I think in this area it is really important to get good procedures in place, and this is the government’s attempt to do that. These technical changes will hopefully make a difference to the safety and security of people who are in our aged-care facilities and also to the comfort and confidence of families that their loved ones are being treated appropriately.

The commissioner—and I think this is quite an important addition—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.

While there is some flexibility in the terms of the commissioner’s functions, the bill also ensures there is appropriate parliamentary scrutiny of any additional functions that might be proposed in the future. The commissioner will have some discretion not to deal with a complaint when a complaint is deemed to be frivolous or vexatious, or was not made in good faith because it was already being reviewed by a court or tribunal.

I turn now from the key elements of the bill to the financial impact of these changes. It is important for the House to note the financial impact statement in the explanatory memorandum, because it is staggeringly brief. It baldly states:

The new initiatives that are implemented through this Bill are part of a $90.2 million … package of reforms aimed at further safeguarding older people in Australian Government-subsidised aged care from sexual and serious physical assault.

But these words in no way indicate what the financial impact of this legislation will actually be. Deputy Speaker Jenkins has been in this place a lot longer than me and probably remembers when financial impact statements were introduced—he may not go quite that far back; I am certainly not trying to cause any offence to the Deputy Speaker! They were introduced by the Hawke government, by the then finance minister, John Dawkins, who set out the need for governments or parliaments to tell the community what action they are taking, why they are taking it and how much money they are going to spend on it.

He said at the time that the government was ‘taking this action on financial impact statements because it believes the community has the right to know the financial and economic effect of government policies and programs and that this reform would give tangible effect to this belief’. Unfortunately, if Mr Dawkins were here today to read the financial impact statement for this bill, I think he would be very disappointed. Labor put that framework in place for sound financial management, but the Howard government is now thumbing its nose at it—quite regularly, I might say, but particularly in relation to this bill. It is far from adequate, but it is not that surprising given the lack of respect that the Minister for Ageing—not to mention the Minister for Health and Ageing in this chamber—has traditionally shown for parliamentary processes and scrutiny. I would have thought that the department in particular would be desperate not to have this bill go forward with such a flippant explanation of its financial impact and so little opportunity to understand what it includes. The community, of course, have a right to know how much is being expended and on what.

I also want to draw the House’s attention to the issue of timing in relation to this bill. The issue of timing has been a regular problem for the Minister for Ageing. He announced that the government would introduce this legislation in July last year, with a start-up date of 1 April 2007. But it is not as though the legislation was available in July last year; that might have given people some time to think about it! He seems to have forgotten the need for what is perhaps just of passing interest to a minister: the legislation needs to pass through the houses of parliament to come into effect. Having only introduced the bill on Thursday and wanting it debated today, with no opportunity for feedback from the community, the minister seems to have taken it for granted that the parliament will pass whatever the government wants and in whatever time frame it wants. He does not seem to believe that the parliament has a proper right to be involved in this process and the community has a right to understand the proposals.

Although these concerns have been around for a long time—these issues have been raised regularly and the government could have acted much more quickly in responding to them—the government took their time to take any action. But now that they have taken action they are determined to rush the legislation through, to the point that the bill had not actually been introduced into this House when our shadow minister in the other place was asked to sign on to a Senate committee reviewing the bill, a bill that she had not even been paid the courtesy of being shown. She was asked to agree to a timetable for consultation through the Senate review process when the bill had not even been provided to her.

This is a ridiculous way to run a government. Unfortunately, we are seeing it more and more now that the government has the numbers in both this House and the Senate. The Senate has set a reporting date of 1 March 2007 for the committee reviewing this bill, a very short time frame—one that the government pushed through and expected Labor to agree to even though the bill had not been shown to the shadow minister. On what basis does the government think that people will make a decision if they do not even get to see the legislation before they are expected to agree to it?

Then, last Thursday, the bill was tabled in the House of Representatives and, of course, long before any opportunity for feedback or response, changes were able to be made in the Senate. We have come to expect this from the Minister for Ageing: on 21 December 2006, just four days before Christmas, this minister tabled a series of delegated instruments which were to have immediate effect and of which he had not given the aged-care sector any notice at all. I am not sure how the minister thinks the aged-care sector can actually deal with these sorts of issues when they are given no notice of changes and things are rushed through several days before Christmas.

As I mentioned, the bill has now been sent to a Senate committee legislation inquiry through which we will ascertain the workability of a number of these proposals. In particular, Labor senators will need a clarification of the discretion not to report; the definition of ‘mental impairment’, including the evidence needed to establish it; the process for establishing existing resident diagnosis; and the actual cost of the changes. Labor flags here that, as a result of the Senate inquiry, it may become apparent that amendments are needed to technical aspects of the bill.

In conclusion, while these measures are welcome and Labor supports the bill, the process for the bill is not welcome. The bill has been rushed into the parliament. The shadow minister was not even paid the courtesy of being shown the bill before the government recommended it go to a Senate legislation inquiry. The ‘Investigation Principles’ that support this bill are still in draft form and have not even been sighted; they are being implemented two years after a Senate inquiry. We are still being forced to rush the bill through the House even though the government dragged its feet for two years on this vital issue of protecting people in aged-care facilities from serious abuse. It is about time that the government took this seriously and worked with the community to deal with these shocking and appalling reports of how some older Australians have been treated, in limited circumstances, in aged-care facilities. We need to make sure that steps are also taken to deal with the abuse of older people outside aged-care facilities.

10000 SPEAKER, TheThe SPEAKER—Order! It being 2.30 pm the debate is interrupted in accordance with the resolution agreed to earlier today. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.