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Thursday, 24 June 2021
Page: 4


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (09:46): I rise to make a contribution to the debate on the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021. The Greens welcome this bill as the government's first attempt to address the royal commission, but we don't think it goes far enough. The government's response to the royal commission is basically designed to look like they are accepting most of the recommendations of the royal commission, but, if you look at the details, in fact that is not the case. In addition, it is going to take far too long to roll out the recommendations that they do truly accept and it's going to take far too long before we see the changes needed to our aged-care system put in place. I'll come back to that in a bit more detail later on.

I want to address some of the provisions in this current bill. Restrictive practices, which are addressed in this bill, have been a serious issue in aged care for more than 20 years—a very long time. In this place a number of us, including me, have been strongly advocating to end the use of physical and chemical restraints in aged care. Restraints, including the use of dangerous antipsychotics, have for too long been used to control older people's behaviour. They've been used to quieten people because the aged-care facilities are not designed the way they should be. Instead of addressing the issue, they restrain, both physically and chemically, older people who are in need of care and need our compassion. It is not a compassionate approach to drug somebody to manage their behaviour or to physically restrain them.

The Royal Commission into Aged Care Quality and Safety found that the prevalence of restrictive practices in aged care is unacceptable and the ongoing use of restrictive practices represents severely substandard care. As expressed by the commission in their final report:

The inappropriate use of unsafe and inhumane restrictive practices in residential aged care has continued, despite multiple reviews and reports highlighting the problem. It must now be stopped.

My comment here is that, in terms of those reviews, governments have not enacted those recommendations. They have been slack when it comes to these issues. It's about time we finally started addressing these issues properly and sending a strong message to those providers—and I'm not using a broad brush here—who are not doing the right thing.

The introduction of the minimising the use of restraints principles in 2019 represented an important step forward in regulating restrictive practices in aged care. However, as I articulated in this place, they fell short in many areas, including the absence of behaviour support plans and the absence of any requirement to gain informed consent before using chemical restraints.

I'm pleased to note that this bill provides a stronger framework and better safeguards for the use of restrictive practices in aged care. Importantly, it aligns the definition of restrictive practices with the definition used in the disability sector. It also provides the Aged Care Quality and Safety Commissioner with additional powers to respond to providers who break the rules around restrictive practices, including through the application of civil penalties. Another positive step forward is the requirement for providers to create behaviour support plans when using restrictive practices from 1 September this year. I believe this will help providers to think through how they are using restrictive practices and ensure that they are only used as a last resort.

I would like to go through some of the areas where the new restrictions do, unfortunately, fall short. For example, the new regulations do not apply if the use of restrictive practices is necessary in an emergency. Stakeholders noted concerns that the use of 'necessary in an emergency' is broad and subjective. COTA in particular raised concerns that there are no time lines in the regulations attached to an emergency. They believe that no more than seven days should be the absolute maximum period that emergency rule should apply. Allowing aged-care providers to determine when an emergency has passed could provide a loophole. From our discussions with the department we understand that using the emergency provisions on the same person more than once will constitute a red flag for the Aged Care Quality and Safety Commission. I seek clarification on this matter to ensure this is the case, and I will continue to follow this up.

The royal commission recommended that restrictive practices should only be used after alternative evidence based strategies have been explored, applied and documented. I am concerned that the regulations qualify the need to use alternative strategies through the phrase 'to the extent possible'. This leaves the door open to aged-care providers to determine alternative strategies only to the extent that they believe is necessary. The royal commission also recommended that restrictive practices should be prohibited unless recommended by an independent expert. The regulations require an approved health practitioner to approve the use of restrictive practices. However, it is unclear whether these health practitioners will need to be independent of the facility and the provider—there is a conflict of interest if they are the health practitioner of the actual facility and the provider. As a result, aged-care providers may be able to use in-house health practitioners to approve the use of restricted practices, which, as I said, is in my opinion a clear conflict of interest.

The draft regulations include chemical, physical, environmental and mechanical restraint, and seclusion, as restrictive practices. Some providers were concerned about the need to obtain consent from substitute decision-makers where a person lacks the capacity to give their consent, particularly in the case of locked or secure facilities, and the impact this could have on public guardians. My understanding is that secure facilities were already in the scope under the existing minimising the use of restraints principles. So providers should have been seeking consent for locked or secure facilities under existing provisions. This is a really important point.

I was pleased to see that the draft regulations were put out for public consultation as an exposure draft, and I understand that the department did not receive much feedback and anticipates that the final version will be similar to the draft. While the regulations will provide more guidance and stronger protections, it's clear that we need to address structural issues in aged care if we are going to end the use of restrictive practices altogether—things like staff training, minimum hours of care, adequate mixtures of staff and enough registered nurses. The royal commission found that the overuse of restrictive practices in aged care often comes from a lack of knowledge about restraints, their impacts and alternatives. The department must ensure that we have adequate training and education in place for providers if they are going to successfully end the use of restrictive practices in aged care.

This bill also introduces home-care assurance reviews of the delivery and administration of home care. Under the changes, the secretary will be able to collect information in relation to assurance reviews. The secretary will also be able to publish information on providers who do not comply with notices to produce or do not provide reasonable assistance. My understanding is that the government, as they said to the committee, plans to undertake 500 home care assurance reviews in the first 12 months with a focus on unjustified administration charges and overheads. Given that there are around 928 home-care providers operating in Australia, not all providers will undergo assurance reviews, which is a concern. The department also clarified that the results of the reviews will be published on its website. While I welcome attempts by the government to improve the transparency of home-care fees, it's critical that the government takes more action to improve transparency and accountability across the whole aged-care sector.

Finally, this bill abolishes the Aged Care Financing Authority. Our understanding is that a new advisory group, reporting to the new National Aged Care Advisory Council, will replace ACFA from July. We don't have further details about the new advisory group, including who will sit on the group and what level of independence it will have. Given that the ACFA will be abolished, we expect that the government will publicly commit to a process for commissioning and publishing independent reports on the financial performance of the sector. Today I'm calling on the government to ensure that there is no gap between the dismantling of the authority and the introduction of the new group that will provide advice on financing issues in aged care, and to continue to fund and publish independent annual reports on the financial performance of the sector. The government has started its reform agenda but there is still much work to be done and many unanswered questions. It's up to the government to lead on these reforms. We will continue to do everything we can to demand significant ongoing funding commitments to achieve the structural reforms required to build a safe, accessible and high-quality aged-care system.

At this stage, we have still got far too many issues going on in aged care. We still have enormous waiting lists in aged care. We still have the ridiculous situation where you have to wait for nine to 12 months for level 3 and 4 packages and, in the meantime, you get put on interim packages. For some interim packages the waiting time is nine to 12 months—and that's while you're waiting for your other package, which also has a waiting time of nine to 12 months! It's an absolute farce! This situation needs a lot more urgency than the government is providing to these reforms. Where is the money in the budget for workforce pay rises? We get the weak excuse from the government that they're waiting for the Fair Work case, when anybody who has any understanding of aged care knows that carers, nurses and other personnel working in aged care need a wage rise. Put it in the budget!

We are not going to improve aged care until we have a workforce that is significantly increased. Everybody knows that we need a significantly increased workforce and that we need to pay them properly for the work they do and the dedication they show. Why wasn't it in the budget? Why wasn't it there? Don't hide behind the Fair Work case. They're taking the case because, for years and years, aged-care workers, personal care workers and nurses have been underpaid. We haven't had the right skill mix. You can't get your workforce to the level you need until you're paying them properly for the hours they put in and the work they put in. We can't deliver the hours of care, for those older Australians in aged care, until we have a workforce that is properly supported with ongoing training and other ongoing supports and until we have proper ratios in aged care. The way the government's going, we are years and years and years away from achieving the sort of aged-care system that Australians can only dream about at the moment.

Not only are we not addressing the issues, and not only has the government not put in the funding to properly pay aged-care workers, but we can't even get the vaccination process working properly. We can't get older Australians vaccinated, and we can't get our workers in aged care vaccinated, despite the deadly and awful lesson that was learned in Victoria last year, when we saw so many deaths. You would have thought that, no matter what, the government would have guaranteed that those living in aged care, and those providing the care and working so diligently in aged care, would have been vaccinated by now—all those who wanted it. You would have thought that would have happened, at the barest minimum. But no. It hasn't happened, nor has it happened in the disability sector.

We have a long way to go before we fix aged care in this country. Where's the government's commitment to all those other recommendations and making sure it happens at the pace that is needed? It isn't there, and it needs to be there. The Greens will be supporting these amendments, and I indicate that we are supporting Senator Watt's second reading amendment, because we need a greater sense of urgency to make sure those home-care packages are rolling out, that we've got the workforce there and that the provisions that we are agreeing to today, such as those on restrictive practices, are put into operation as soon as possible so that we can guarantee to older Australians that they're not going to be restrained, either physically or chemically, when they enter aged care.