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Thursday, 22 March 2007
Page: 41

Senator HUMPHRIES (12:17 PM) —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.