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Thursday, 22 March 2007
Page: 124

Senator CAROL BROWN (7:57 PM) —I rise to speak today on the issue of aged care in Australia—an issue which, because of our rapidly ageing population, is of increasing relevance to most Australian families. Indeed, with the demands of modern life ensuring that children of ageing parents are increasingly time poor, the demand for quality aged care services is on the rise. With the increase in demand comes an increase in scrutiny of the quality of services provided by aged-care providers. It is arguably this increased scrutiny that inevitably prompted the government to introduce this bill, the Aged Care Amendment (Security and Protection) Bill 2007.

The bill was introduced in the parliament after a number of media reports in February 2006 detailing the terrible sexual abuse and assault of residents in aged-care facilities. While Labor questions why such a bill was not introduced earlier, on the basis of the recommendations made in the 2005 Senate committee report Quality and equity in aged care, which found deficiencies in the operation of the current Aged Care Complaints Resolution Scheme, Labor nevertheless supports the introduction of the current bill.

The purpose of the bill is to amend the Aged Care Act 1997 by establishing a new regime that is designed to help protect elderly people in aged-care facilities from serious forms of abuse, such as physical and sexual abuse. The regime includes: a system for compulsory reporting of physical and sexual abuse of people in aged care; qualified protection for approved providers and staff who report assaults of people in aged care; the establishment of complaint investigation arrangements through new investigation principles; and the establishment of the Aged Care Commissioner to replace the existing Commissioner for Complaints. Such measures are obviously welcomed, as they are aimed at providing some degree of necessary protection for elderly people in aged-care facilities—arguably one of the most vulnerable and dependent groups of people within the Australian community.

The new regime within a limited framework provides for the protection of aged-care residents’ rights to bodily integrity and personal safety, the most basic of human rights, which we the general public take for granted. However, it is important to note that this is only the tip of the iceberg: the bill only provides for limited protection of limited rights of aged-care residents in limited circumstances. Essentially all this bill does is reinforce the basic human rights of aged-care residents—rights which they are often too weak or vulnerable to enforce or to protect themselves.

The limitations of the bill were addressed during the committee hearing and are reflected in the committee’s report, which was handed down on 9 March. The major areas of concern included the limited scope of reportable assaults; the limited detail provided by the government thus far on the investigation principles; the limited time frame given to service providers to adequately implement the new regime; and the limited protection provided to those people who are required to report.

Under the bill a reportable assault is defined as any ‘unlawful sexual contact, unreasonable use of force, or assault specified in the accountability principles and constituting an offence against a law of the Commonwealth or a state or territory, that is inflicted on a person receiving Commonwealth funded, residential aged-care services’. Under this limited definition, the whistleblower protections provided for under the bill will only be available in the reporting of incidents of unlawful sexual or physical assault of residents in aged care.

As the Health Services Union noted in their submission, many other different forms of potential elder abuse exist. They noted a guidance list on elder abuse issued by the Department of Health in the UK, which identified six different forms of potential abuse, including physical and sexual abuse; psychological abuse; financial and material abuse; and neglect and discriminatory abuse. It is likely that the majority of abuse that occurs in aged-care facilities takes the form of psychological and material abuse and neglect but, under the bill, such forms of abuse are not classified as reportable and therefore may not be reported by aged-care providers and their staff, who are not awarded any whistleblower protections under the bill for reporting such forms of abuse.

This situation is unsatisfactory for two reasons: one, because the effect of such forms of abuse on aged-care residents can be just as serious as those stemming from sexual or physical assault; and, two, while aged-care workers will receive some degree of training in relation to this new regime, in practical day-to-day situations they are unlikely to be able to neatly categorise different forms of abuse and are likely to err on the side of caution and not report abuse for fear of losing their job or being ostracised. This was recognised by the committee in 2005 in the Quality and Equity in Aged Care inquiry in which it recommended:

That the Commonwealth 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.

This is why, in our additional comments attached to the report, we recommended that the bill be amended so as to afford whistleblower protection to people who report on reasonable grounds any form of abuse or neglect in residential aged care facilities.

The issue of the limited scope of reportable assaults ties in with the other main concern raised in the public hearing about the bill: that being the limited scope of the whistleblower protections awarded to people who report elder abuse. Under the legislation, a disclosure of information relating to a potential case of abuse only attracts protection if the disclosure is made by an approved provider or a staff member of an approved provider, it relates to a reportable assault and is made in good faith.

The Aged Care Crisis Team noted in its submission to the Senate Standing Committee on Community Affairs:

Only a small minority of cases of elder abuse involve breaking the law; so the vast majority of cases do not come under compulsory reporting. Thus, most cases of physical abuse, all emotional abuse, financial abuse and incidents of neglect are not covered.

Whistleblowers are only protected if they report reportable offences. So, again, the whistleblower will have no protection if he/she reports the vast majority of cases of elder abuse ...

Aged and Community Services Australia also noted that the protection provisions ‘do not extend to non-staff members who have a complaint, such as residents themselves, family members and visitors’. The extension of protections to other people, such as residents, who may fear suffering reprisals from providers or staff members if they report may pave the way for a higher number incidents of abuse being reported.

Limited information provided in relation to the investigation principles and the limited time frame are the other two major matters of concern that were raised. Limited information has been provided thus far by the government in relation to the investigation principles and a limited time frame has been given by the former Minister for Ageing to providers to effectively implement the new regime. The department advised that the investigation principles to be made by the minister and to be included in subordinate legislation could not be finalised until the bill had passed. The principles are fundamental to the operation of the new measures as they deal with issues such as which matters are to be investigated and how investigations are to be conducted.

A number of groups stressed in their submissions the need for more detail in relation to the principles, with Elder Rights Advocacy noting in its submission that ‘the devil is always in the detail.’ While the department has undertaken to consult on the content of the proposed principles as they are developed, because of the effect they are likely to have on the new regime, I urge the minister to make such details available as soon as possible so interested parties have the chance, which they have currently been denied, to assess them and to have genuine input as to their fairness and workability.

Stakeholders were also concerned that the commencement date of 1 April 2007 was not feasible and a longer time frame would be practically necessary to effectively implement the new regime. They noted that, with the bill still before parliament and the principles containing all the operational details still not finalised, it would not be practically possible to have the new system in place by 1 April as effective implementation would require at the least enough time for development of materials and the training of staff as to their new responsibilities.

Some groups proposed a delay of eight weeks to enable the full and thorough implementation of the new arrangements. Labor supports this bill in principle as it is aimed at offering some degree of protection to residents in aged-care facilities, a group of people that are amongst the most vulnerable and dependent in the Australian community. It also considers the issue of elder abuse in aged-care facilities one of utmost importance, and one that needs to be addressed.

However, it appears that the government has rushed this bill through parliament in response to reports in the media detailing elder abuse without fully assessing the issue of elder abuse in aged-care facilities or wider problems with the aged-care system that have contributed to such abuse being covered up and not reported. This is reflected by the bill’s limited scope. It provides for the compulsory reporting of limited forms of abuse by a limited number of people in limited circumstances. It simply awards residents in aged care the right to bodily integrity and safety—rights which all citizens should be able to take for granted.

By not encouraging the reporting of other forms of potential abuse, such as financial and psychological abuse and neglect, the bill does not recognise or in any way combat the increased vulnerability of people in aged care to such forms of abuse. Furthermore, the limited whistleblower protections awarded under the bill to aged-care staff who wish to report abuse once again reflect the government’s ignorance of the practical realities of the workforce as staff are unlikely to risk their livelihood to report potential cases of abuse that may or may not attract whistleblower protections. The nature of the Work Choices reforms means that many staff in aged-care facilities simply cannot afford to be seen to be stepping out of line. More needs to be done to tackle the systemic problems in aged care. This bill only goes some way to addressing a very small tip of a very big iceberg.