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Thursday, 22 March 2007
Page: 130


Senator ELLISON (Minister for Human Services) (8:20 PM) —I thank senators for their contribution to the Aged Care Amendment (Security and Protection) Bill 2007. Since announcing the measures to address sexual and serious physical assault in residential aged-care homes last year, this government has listened closely to stakeholders, and their advice has been critical to the government’s understanding of the needs of this sector and how best to implement appropriate reforms, including through the bill before us.

By working with the sector, we have been able to ensure that the nature and degree of regulation in this bill is reasonable—and I want to acknowledge the work done by the former Minister for Health and Ageing, Senator Santoro, in relation to this. A summary of the issues raised by the senators who contributed to this debate reveals that certainly everyone is in support of the intention of this legislation, but there are differences as to how this should be achieved and the extent to which the legislation should be taken.

The government believe that we have the balance right, and I will deal with a number of issues in turn. The legislation requires that approved providers report allegations or suspicions of unlawful sexual contact or unreasonable use of force on a resident in a residential aged-care service. The report must be made within 24 hours to both the police and the Department of Health and Ageing. While it was the government’s original intention that all allegations of abuse be compulsorily reported, representations were received from the sector in relation to the very sensitive issue of assaults carried out by residents suffering from dementia or mental impairment. Therefore, the bill provides the capacity to exempt reporting of certain allegations or suspicions of assault in circumstances prescribed in principles. This provides some flexibility to address specific issues as they arise. One of the issues proposed to be addressed in the principles is abuse by residents with mental impairment. In this case, it is proposed to provide a discretion not to report and to allow a clinical response through an appropriate behaviour management plan rather than a police and department response.

The bill underpins new compulsory reporting arrangements with protections for staff and approved providers who make disclosures about reportable assault, including protection from civil and criminal liability. The bill also enables a court to order that an employee be reinstated or be paid compensation if their employment is terminated because of the protected disclosure. I appreciate that the question of whistleblowing was the subject of some comment, and I will return to that shortly.

The bill establishes a new and independent Aged Care Commissioner to hear complaints about action taken by the new Office of Aged Care Quality and Compliance and the conduct of the Aged Care Standards and Accreditation Agency. The new office will have the power to investigate all complaints and information; it will have nationally structured intake and prioritisation of all contacts by high-level, specifically trained staff; and it will have the power to determine whether a breach of the approved provider’s responsibilities has occurred. Where a breach is identified, the office will have the power to require the approved provider to take appropriate action to remedy the breach. This will make it easier for people to lodge complaints, it will ensure more timely resolution of complaints, and it will provide greater feedback to all parties.

There was, of course, an inquiry into the bill by the Senate Standing Committee on Community Affairs, and I thank those senators who participated in that inquiry. The government has responded to the recommendations of the committee, and I am pleased to say that, overall, the committee supported the bill and has recommended the passage of this legislation. The government has listened carefully to the issues and concerns raised by submitters and by the committee itself, and I will address each of the committee’s recommendations in turn. Recommendation 1 of the Senate committee is:

That in recognition of the additional responsibilities the Bill places on approved providers especially in relation to training staff members and instituting new systems, the commencement date, particularly in relation to the reporting provisions, be deferred for a period of at least one month.

In response to this recommendation, I will be moving a government amendment to the bill to extend the implementation time frames. The new complaints investigation arrangements and the establishment of the new Aged Care Commissioner will take effect from 1 May 2007, and the compulsory reporting requirements and whistleblower protections will take effect from 1 July 2007. This provides extra time for any staff communication and necessary changes to internal systems and procedures. In relation to the time frames for investigation of complaints, the government is proposing an extension of only one month rather than an extension of three months as is proposed for compulsory reporting. This is because the investigation processes will relate primarily to the roles and responsibilities of the Department of Health and Ageing and the Aged Care Commissioner.

In contrast to the compulsory reporting requirements, very limited changes will be required to be put in place by approved providers in relation to the new investigation processes. It is, however, proposed that the time frames for implementation be extended by one month to enable further consultation with stakeholders on the proposed content of the investigation principles. Recommendation 2 of the Senate committee is:

That the Department of Health and Ageing carefully and closely monitor developments in relation to the compulsory reporting regime… and that care is taken to ensure the reporting mechanism operates as intended.

The government also accepts this recommendation. The department intends to closely monitor both the compulsory reporting requirements and the complaints investigation arrangements, and agrees that there will be much to learn from the outcome of these arrangements in the first year or two. The data collected by the department during that time will also be significant for informing future public policy in this area. Recommendation 3 of the committee is:

That the Bill be amended to extend the whistleblower protections to aged care residents, the families of residents and aged care advocates …

The ALP and Australian Democrats also made recommendations suggesting broadening the whistleblowing protection for any form of abuse or neglect. The important point to note here is that aged-care residents, their families and advocates are not required by law to make reports of abuse, and therefore are not afforded statutory protection under the legislation. Rather, such people may choose whether or not to report, and may do so openly, confidentially or anonymously. The government will not be supporting any amendments to broaden the whistleblowing protections for the following key reasons. Firstly, as currently drafted, the bill protects staff and approved providers because they are required by law to report in the case of approved providers. They do not have the option of making an anonymous report in the case of staff. If they make a report to an approved provider, then they are most at risk of having their employment relationship affected by any disclosure they make. It is therefore appropriate that special protections be made for these people.

Secondly, by contrast, residents, families and advocates may provide reports confidentially or anonymously, and this is widely recognised as providing one of the greatest possible protections against reprisals. The Aged Care Act already includes stringent protections for information disclosed to the department and prevents subsequent disclosure by departmental officers, with criminal penalties for noncompliance.

Lastly, if other people choose not to report information confidentially or anonymously and they are as a result subject to defamation action, they would continue to have all of the usual common-law defences available to them, including truth and public interest. On balance, the government considers that the bill as currently worded provides appropriate protections and does not therefore propose to support any amendments to extend the whistleblowing protections.

A number of issues were raised, and they will no doubt be dealt with during the committee stage in dealing with proposed amendments from the opposition and the Democrats. As I say, there is one government amendment, which I have outlined, in response to the Senate committee recommendation. I think that the other issues that have been raised are best dealt with during the committee stage. The bill itself is an important one.

There was a concern raised by Senator McLucas which I will touch on in the second reading debate. It was about the requirement for a medical diagnosis of cognitive or mental impairment in order for an approved provider to exercise the discretion not to report an assault by a resident. The detail of this discretion is proposed to be provided in the principles, thus providing the flexibility for changes to be made to the proposed arrangements over time if this is required. The government has listened to the concerns raised during the Senate inquiry and, based on these, proposes that, rather than requiring a medical diagnosis to determine a cognitive or mental impairment, approved providers will be required to have an assessment made by appropriate health professionals, which could include, appropriately, qualified registered nurses. The government will continue to consult with the aged-care sector through the Aged Care Advisory Committee and also other stakeholders who made submissions to the inquiry on the detail of the arrangements of the principles which I have mentioned.

In summary, the reforms detailed in this bill give even greater confidence to the people of Australia about the already high-quality care that is provided in our aged-care homes today. I thank all those who have been involved and I commend this bill to the Senate.

Question negatived.

Original question agreed to.

Bill read a second time.