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Thursday, 22 March 2007
Page: 33

Senator McLUCAS (11:42 AM) —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.