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Thursday, 22 March 2007
Page: 45

Senator ALLISON (Leader of the Australian Democrats) (12:37 PM) —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.

The ACTING DEPUTY PRESIDENT (Senator Marshall)—Order! Pursuant to orders of the day, the time for this debate has now expired.