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Aged Care Amendment (Security and Protection) Bill 2007

CHAIR (Senator Humphries) —Good afternoon. I am pleased to declare open this public meeting of the Senate Standing Committee on Community Affairs, and I welcome representatives who have come to provide us with evidence in this inquiry into the Aged Care Amendment (Security and Protection) Bill 2007. I welcome particularly here representatives from Elder Rights Advocacy and the COTA Over 50s alliance. Thank you all for being here today.

Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you, I understand. We have submissions from both groups, and we thank you for those. We also unfortunately have a tight time frame this afternoon, so we want to move through as quickly as we can. I suggest that, if each of the groups would like to make an opening statement, hopefully running for no more than seven or eight minutes, we can then move on to ask you some questions. I invite Elder Rights Advocacy to kick off this afternoon.

Ms Lyttle —Thank you very much for the opportunity to speak to the committee today. Our day-to-day role is working as advocates supporting the right of older people using aged-care services in Victoria, as part of the national program. As part of this role, we support people to have their complaints addressed either by the facility directly or through the complaints resolution scheme as it currently exists. So we therefore have quite a deal to do with that.

I would like to say at the outset that we do welcome the measures that are in place and proposed in the bill and commend the minister for the initiative that has been taken to this stage. We would like, of course, to see this initiative extended to community care programs of the Commonwealth and the government, rather than simply residential care. We have a couple of concerns that we would like to reflect on. One is to do with the types of complaints accepted and how they are then dealt with and also the weight that will be given to information provided by complainants. That has been an issue, which we are happy to talk about more later.

We believe all complaints should be accepted as a standard, and the investigation process, importantly, should be able to accept the prima facie evidence of family members and others bringing complaints forward. We also believe that complaints about psychological abuse and neglect should be the subject of compulsory reporting to the department for action and investigation, and we do not think that residents with dementia should be denied their rights by a system of exemptions, when a serious injury may have occurred. We believe that these matters should also be reportable, at least to the department, for investigation.

The investigation process for complaints overall we think needs to be very open and responsive to consumers and their families. Importantly, it should deal with complaints promptly—those have been issues we have heard of in the past, about time taken—and, also importantly, provide detailed information about the result of the complaints and the action taken. It is not clear to us at the moment as to how much information on compliance action taken on a matter, in the future, would be relayed to the complainant. At the moment, any compliance action taken is not reported—not able to be reported—to the complainant. So we are just not clear where that is going in the future process.

Again, we would come back to that issue of the information provided by the complainants and the weight that is given. We think this is quite appropriate, particularly in the light of the changes, I guess, that have been put in place by the government, which we are not critiquing. But, in relation to people paying more for their aged-care services, providers relay this to us as people being more demanding. We would see it as people having different expectations because they are users and they are paying their way a lot more. But, as part of that, I think they increasingly will not accept anything less than a very robust complaints system that is very responsive to them. That is certainly our view of people whom we get involved with.

We also have a side issue. We do not often like to think we, as advocates, look after ourselves, but now and again we do. There are some whistleblower protections for staff so people can feel comfortable about speaking up, which is fantastic. There are times—there have been in the past—when people may relay something initially to an advocate because they have been speaking to us about something else. We notice that there is no protection for us in the legislation around even some qualified privilege for defamation. We realise the hiring and firing parts of the protection are related to staff directly. As a funded program we understand we are going to have obligations to report certain things that will be in the new guidelines. That is, again, fair enough. It would be helpful if we had that protection.

We have in the past been threatened with legal action for simply assisting people to use the complaints process as it exists now and we have had to report that to our own professional indemnity insurers. Nothing has occurred from that but we have been threatened. I am just saying that on a couple of occasions we have been threatened with that simply for assisting people to use the process of speaking up and presenting their submissions to a committee. We thought it was a good opportunity to raise the matter now. As I said, the protections for the workforce are very good.

Overall we believe that the measures are good. We have a problem, though, in that we have not seen the principles. We work with those things and the Aged Care Act each and every day. We have well-thumbed copies. We are very boring—we read these at night on occasion to assist our clients. We would like to see the rest of the detail—the devil is always in the detail. We hope it is not; we hope that some of the measures that people are suggesting can be included in the principles to make this very workable. Thank you.

CHAIR —Thank you, Ms Lyttle. Mr Aivaliotis, do you wish to say anything at this stage?

Mr Aivaliotis —No.

CHAIR —Mrs Heathcote, I invite you to make a statement on behalf of COTA.

Mrs Heathcote —Good afternoon, Senator Humphries, and members of the committee. It is often said that you can judge a country by the way it treats its older people. Successive governments have been too long in addressing the issues of abuse of older people in our Australian community, although its existence has been raised by many for a considerable length of time. COTA Over 50s has participated in government consultations on the issues covered in the current bill, including police checks and compulsory reporting of incidents occurring in residential aged care facilities. We believe that the pragmatic and workable legislation that has resulted should be supported.

Measures such as police checks on all staff and the drafting of this legislation to support implementation of, for example, compulsory reporting of physical and sexual assault and protection of staff who report incidents send a clear message to approved providers, the staff as well as the residents and their families, that these forms of abuse will no longer be tolerated by the community.

Whilst over the last 12 months this government has instigated a variety of measures to combat the more serious forms of abuse—serious physical and sexual assault in aged-care services—it marks only the beginning, if as a country we mean to stamp out all forms of abuse. Within the broader community, underlying issues of ageism and negative age stereotyping that give rise to discrimination and abuse need to be addressed. This will require significant public awareness campaigns and national strategies to ensure that age discrimination legislation is effective and is used by older people. Financial abuse is considered to be both the most prevalent form of abuse and the most difficult to eradicate. Thank you.

CHAIR —Thank you very much. Do the other members from COTA wish to make a statement at this stage?

Ms Reeve —No.

Ms Richards —No.

CHAIR —Thank you very much to all of you for those opening statements, and thank you for keeping them succinct. I assume that you are all aware that in the attachment to the department’s submission to this inquiry—I think that is available on the website now, and there are copies over here—there are guidelines which the department has drafted with respect to the way in which the act will work. These are not the same as the principles, I understand, but they seem to give flesh to what is going to be behind the principles. Have any of you had a chance to look at those guidelines at this stage?

Ms Reeve —No.

Ms Lyttle —No.

CHAIR —Okay. That is all right. It seems to me that some of the questions that have been raised in both of your submissions might be answered by those guidelines. You might care to have a look at them and see if there are other issues arising out of that that you would like to address to the committee and perhaps come back to us with a written statement of some sort on that front.

Can I pick up on an issue that Ms Lyttle raised about the reporting arrangements. Certainly in the submissions we have received we have noticed a variety of positions on reporting requirements. On the one hand we have had comments like the one that you made today that all incidents need to be reported, particularly if they involve people with, say, dementia, even if it is only to the department. We have had others at the other end of the spectrum say that people should have the right not to have an incident reported—that if they wish not to proceed with the matter they should have the right as a resident to say, ‘No, I don’t want that to be taken any further.’ There are obviously a variety of views coming through in the submissions. Can you give us a principle you believe should govern our deliberations on this? How should we opt in that spectrum for a particular position that satisfactorily addresses both the rights of older people in those settings and the need to make sure that there is a transparency about the process of bringing those complaints to the public eye, where that is appropriate?

Ms Lyttle —I guess we have accepted—that is probably implied—that the reportable environment will be in place about serious issues. It is then a matter of which incidents and which types of things. If you do accept that reporting serious matters such as sexual and physical assaults is a given, our view then is: why would you leave out people with dementia who have had something perpetrated upon them? The exemption, as we understand it, is to do with if there is already an identified cognitive impairment—this is an explanation that we have had—and that a behaviour plan is in place—

CHAIR —Could I interrupt you there. My understanding of the way the act is meant to work is that the exemption for people with a mental impairment is in respect of the perpetrator rather than the victim. If the perpetrator has a mental impairment, then there is discretion in some circumstances not to go to the police.

Ms Lyttle —Yes, okay.

CHAIR —If the victim is the only party with a mental impairment then certainly, as I understand it, there is a requirement for the police to be notified.

Ms Lyttle —Yes, okay. It is a matter then of: can one party have supposedly informed intent to do this—is that right?—and to have some cognition around it?


Ms Lyttle —In our experience family members have still wanted some of those incidents reported, because they have not felt that the provider has dealt with this appropriately to keep their family member safe. I have certainly had instances where both parties have had some level of cognitive impairment, but the family have wanted this looked at by someone other than the facility. A couple of those have been very serious issues.

Senator MOORE —The family of the victim?

Ms Lyttle —Yes. Do you want to talk a bit more about things you have come across?

Mr Aivaliotis —Our understanding of the reading of the proposed legislation is that if the perpetrator has a cognitive impairment, discretion is there whether it is referred on. If there is an incident and there is a behaviour management plan that is organised and set up, and then there are multiple incidents after that, we would say, ‘Under those circumstances of behaviour management planning, is it working?’ and the department needs to be aware that we have an issue of concern here. It should be reportable under those circumstances to the department that we have a problem.

Ms Lyttle —We are not saying that it should all be reported to the police necessarily, but the department or someone outside the system ought to be looking to see what is being done to keep people safe. The underlying thing is that you are looking for safe care for people who should not be at risk of abuse. Now, how do we do that?

CHAIR —Turning to COTA, it seems to me from your submission that you are sort of at the other end of this spectrum. You say in your submission that there ought to be the discretion for a resident—or their family—who has been assaulted and who does not wish to press charges to have their wishes taken into account and respected and, presumably, for the matter not to be reported. Is that what you would say?

Ms Reeve —Yes. Our concern is that people—and I am not talking about people suffering from dementia or others not able to act in their own best interest—living in residential care should not, by virtue of living in residential care, have fewer rights than those of us in the rest of the community. So, unless there was a fear that the person was under duress, they should have that option considered. I think we might have finished up at the same point that Elder Rights did on the previous issue, but we certainly would not expect to be reporting to the police actions of people who are cognitively impaired. We would expect that the arrangements for people who may be violent or prone to assault other residents should be carefully monitored and that we should all ensure that these arrangements are appropriate. We do not think it is appropriate that police reporting is the way to go for dealing with such issues. In relation to the earlier issue of people who may not wish to report—there may be issues of family visiting et cetera such that people, in the interests of family relations, want to take a different stance—we think they should be listened to.

CHAIR —Can I take it that both groups agree that there should be a separation of circumstances where it is appropriate to inform the police and circumstances where perhaps only the department needs to be advised, so not necessarily the police as well.

Ms Reeve —Yes.

Ms Lyttle —Yes.

CHAIR —And the role of the families or the individuals who have been assaulted is important for determining which of those steps is taken?

Ms Reeve —Amongst other things.

Ms Lyttle —There could be a situation, as I understand it, where the police have been involved and then say to the person or the family, ‘Do you wish to press charges? Who is going forward with it?’ That is the point where you again get a choice. It has been reported, because we are required to report it. The police can then take it further—so what will the role of the police be around the particular incident?

CHAIR —My understanding is that the question of pressing charges and the question of reporting to the police are two different stages. It is compulsory to report but it is not compulsory for that report to lead to a charge being laid, if the person concerned does not wish to take it that far. That is my understanding, but we will clarify that with the department when they come.

Ms Lyttle —That is my understanding too. It comes back to Patricia’s point: at that point, people who are able can retain the capacity to say, ‘No, do not take it any further’—but at least the police have come to this point and investigated.

Mr Aivaliotis —Or they can say, ‘I will not be involved in any further proceedings.’ Some residents whom I have been involved with have said that. They say: ‘This has happened to me. The police are aware, but I don’t want any further part in the whole process.’ And the police have respected that and have not interviewed them any further, or they have stopped the interviewing process.

Ms Lyttle —Again, people need to know their rights. We have raised that in our submission—that if it is a competent resident they have the rights that anyone has under police interviewing. They need to know about that.

Senator McLUCAS —I want to pick up on the question of the right not to report. Can you give the committee an understanding of on what basis people do not want to progress with a matter? What are the reasons residents give you for saying, ‘I don’t want to progress this any further’?

Mr Aivaliotis —As an example, in one case that I was involved in, the resident said that it was because it was a long process: the amount of interviews, what they had to do. Other significant factors were that other people would find out and that the resident had to still live there. We were having a conversation, just prior to the hearing starting, about the unfamiliarity of the police intervention—will they come in uniform, will they enter the facility, will people look at the police coming in to talk to them, what is the context, what will happen to them under those circumstances? It varies from person to person, but the main issue has been that it will take too long so they are not interested in taking it any further—that they have made the statement they needed to make.

Senator McLUCAS —And that is sufficient for the victim to find a sense of closure?

Mr Aivaliotis —Yes, in that instance. The two people I was involved with said that, yes, the authorities were aware of it and that was enough.

Senator McLUCAS —You cannot extrapolate policy from individual issues, but I was just interested to understand why people do not want to do that.

Ms Lyttle —And their safety was assured.

Mr Aivaliotis —Yes, the providers had implemented strategies to ensure that the circumstances that brought on the issues were not to be repeated. They ensured that it would not be repeated, with particular measures.

Senator McLUCAS —I would like to go to the issue of no whistleblower protection for an advocate. I think you raise a very important point, which certainly has not come across my desk, so I am pleased you did. Have you raised that with the department?

Ms Lyttle —Not specifically. We have only put it into the submission, mostly because of time I guess.

Senator McLUCAS —We might talk about time later.

Ms Lyttle —We will not talk about that; that is fine. I am not criticising.

Senator McLUCAS —You are quite welcome to.

Ms Lyttle —In fact, I did not even put it into the submission. We did this in a fairly tearing hurry, and then we began thinking, ‘Gosh, where are we in something like that?’ Given that we had had a couple of situations, we thought this would be the opportunity to get it in.

Senator McLUCAS —Are you suggesting that whistleblower protection should be provided to funded advocacy organisations?

Ms Lyttle —Yes.

Senator McLUCAS —What about family advocates?

Ms Lyttle —Where families sit in this is another matter. I guess it is a matter of how you put that in the legislation. If that can be got in, that is excellent. If there is protection for anybody who reports in good faith, then why not extend it to them also?

Senator McLUCAS —You spoke of a number of threatened legal actions that your organisation has experienced. Is that an experience shared by other advocacy organisations that you are aware of?

Ms Lyttle —I believe a couple of them may have, but I have to say it is not common; it has not happened to us too often. It has been in more recent years—I have been in this job since advocacy started—particularly when homes have had sanctions. There has been an environment where providers have thought that we were being too open with information or assisting people too much and various things like that. I guess they have tried to push the whistleblower, which is what we sometimes are in that environment in helping people. That is where it has come up.

I think it has come up in more recent days—and this is purely speculation—because we are entering a more sophisticated environment in which much more is at stake for a provider’s reputation, with a more commercial environment. So, increasingly, we find ourselves facing lawyers in situations with providers, because they take advice at that level. We are out there as advocates, waving the flag and assisting people, with very little protection, if you like—apart from our professional indemnity insurance.

Mr Aivaliotis —There have been instances where other family members have witnessed incidents of abuse and they have raised that with the family of the other resident involved. The provider has asked, ‘Who told you?’ and the ongoing issue in that instance was that if they raised it again they would sue them for slander because they did not have proof—even though the family member actually saw the assault take place. So we would say to the committee that, on top of advocates having consideration about whistleblowers, family members who are acting in good faith should be considered.

Senator McLUCAS —Thank you for raising that with us. We will raise it with the department. Did COTA want to comment?

Ms Reeve —We support the view that family members and visitors to institutions who, in good faith, report something ought to be protected however they can be.

Senator McLUCAS —During the inquiry into aged care that we did some years ago, the issue of retribution was raised by family advocates, but I think the threat of legal action is a new issue for this committee, and we appreciate you raising it. Mrs Heathcote, you said there should be police checks on all staff and you emphasised the word ‘all’. As I understand it, the legislation requires checks for persons who will have unsupervised contact with a resident. Are you slightly disagreeing with the scope of the legislation?

Mrs Heathcote —No.

Senator McLUCAS —I have misunderstood you then. Ms Lyttle, you talked about the weight given to complaints and you said you would like to expand on that. Could you do that, please?

Ms Lyttle —I think we can both talk about instances where that has happened. With the way things may be dealt with currently—and all we can go with is the current system—family members are not always writing things down, taking notes and documenting what happens. Sometimes they are; sometimes for all sorts of reasons they may make notes about what is occurring, particularly if they start to have a problem with the care. They may remind themselves with notes on what occurred, what time they put in a complaint or things that happened. But we have found it can be very hard for their information about what occurred and the subsequent complaint to be heard with the same weight when the provider then responds and says, ‘Well, we’ve documented what is happening for this person. It’s in the care plan that’s written up.’ The provider may have quite a pile of documentation; it is part of their obligations. That then makes the family member’s account of what happened perhaps less believable. We would like to see what they are saying as prima facie evidence and have often described it that way to the department. To be fair, in some instances in the process we have managed to get things taken up that had been rejected as a complaint. We have helped them to reframe information they had against the standards—and that is part of the support we can offer, because we understand the system—or to flesh out the detail of any evidence they have, so that there is a bit more to be explored in what occurred.

Senator McLUCAS —These are complaints that are taken through the complaints resolution scheme?

Ms Lyttle —Through the current system, yes. It is sometimes just too easy, I think, for the provider to reply with a lot of documentation and detail, and the family member’s information and evidence gets lost in that.

Senator McLUCAS —Do you think, then, that the shift from a scheme based on the principle of resolution to a system where the office will investigate will assist that process?

Ms Lyttle —If what the family member or complainant provides is also seen as evidence. How that is seen is crucial, really. Is that the experience you have had, Steve?

Mr Aivaliotis —It is about what information is available from the complainant to be handed over to the formal complaints resolution scheme to investigate. As Mary was saying, the level of evidence that they are able to provide is limited in certain circumstances to, for instance, some documentary evidence or dates. In certain circumstances that is not sufficient to warrant the acceptance of a complaint. These family members sometimes do not have the capacity to gather more evidence. Yes, there are certain family members who say, ‘We’ll set up video surveillance if that is what you want us to do,’ which is a bit extreme. However, short of that, they are saying, ‘What else can we possibly do? We only visit certain hours of the day. This is what we have observed; this is our evidence.’ As I say, in certain circumstances that is just not enough; it is not accepted.

Senator McLUCAS —I do not know that the change from resolution to investigation will necessarily affect your concern, but I think it is important that you have put it on the record.

Senator MOORE —I have only two questions. The first is a straight one about what role you had in the consultation around the development of this legislation. Because both organisations are so active in the industry and, in particular, with residents and families, I want to get on record what role you had in the consultation process.

Ms Lyttle —None.

Senator MOORE —That is short.

Ms Lyttle —Not any formal thing.

Ms Reeve —As members of the Aged Care Advisory Committee, we have been involved in discussions the minister had with that committee.

Senator MOORE —You are unaware of any other process?

Ms Reeve —No.

Mrs Heathcote —Anecdotal evidence to us and an involvement with the equivalent organisation in Western Australia have been used as the basis for much of our information.

Senator MOORE —We have been talking about this kind of thing for a long time. A question I want to follow up on is the education process. Your submissions talked about the important element of making sure that everybody knows their rights and understands how the system operates. Do you have any idea how that can be done? I do not know whether $1 million is enough, but that is the big question in terms of setting up structures with the best will in the world but then ensuring that people understand them, that people are comfortable with them and that people know how to use them. Do you have any suggestions? You may want to take that on notice and think about it and then come back to us on it. For the sake of this inquiry, I would be interested in whether you have any comment to make.

Ms Reeve —There is a base level at which we would want to see the government develop material for consumers. We would expect that providers would provide that material to residents and their families and that other groups, such as ours, the advocacy services and seniors information services, would make it available to any of their inquirers. Hopefully, the government would also do some broader public awareness campaign on these issues. As well as legislation, we know that we need to have a cultural change to bring about these sorts of changes.

Senator MOORE —Sure. Have you any ideas on how you would engage the institutions, their staff members and, in particular, police in the process? Chair, this is a supplementary of the original question. It is not a new one; it is all part of the same thing.

Ms Lyttle —Police are a challenge. We have not tried educating police. So I have to say that I am unsure about that one. In Victoria, there has been some involvement of the police and people with designated responsibility in that area implementing the code of practice guidelines. We are starting to get that through. But we still hear, as I heard last week, of someone calling a police station about a matter to report and not getting a very good response and then having to pursue it by asking to speak to the senior sergeant et cetera. So I think there is quite an educative role around that.

Some parallels to this can be found in the domestic violence area to say very similar things. ‘What does “no” mean?’ and all of those sorts of programs have gone out to say to people: ‘Don’t just walk away.’ As police, they know that they have to deal with it. We have developed some information as part of our own education program for residents, families and staff, and we will continue to do that, and we would be happy to do more of it. As Patricia said, COTA and other carer associations could provide information to people. So there are a range of already known measures, from the information leaflet to residents and families that says, ‘These are the new measures to keep people safe,’ through to a broader public awareness campaign about what the government sees as acceptable, which can start to talk about what this means.

Mrs Heathcote —In Western Australia, a group of organisations get together to talk about this issue. Represented on that group are people from the police force who have taken it upon themselves to go out and educate other police throughout Western Australia on the issue. That is one way of spreading the word that, when the police do get involved, they need to be aware of the sensitivities that are involved and that, in some instances, this sort of abuse is different from other abuse.

Senator MOORE —If anyone has any ideas on information for community awareness programs, could they please let us know. I am sure the department has some ideas. We can have inches of this paper; but, unless people get the process of awareness right, it is worthless. Mrs Heathcote, you mentioned Western Australia and an organisation that has a cross-consultative or interagency process. Is that a state based organisation?

Mrs Heathcote —Yes, it is.

Senator MOORE —Are you aware of any other states that have something like that?

Mrs Heathcote —I am not aware.

Ms Richards —New South Wales does. They are a similar group to ours in terms of education. I am not sure whether they disseminate information to police in particular, but they try to raise awareness within the general community and with particular people.

Ms Reeve —I think there are a number of initiatives—I know those in Victoria best—looking at issues of abuse of older people more generally. This would fit in as one component, and that is where we are beginning to see cross-agency work.

Ms Lyttle —The advisory group to the minister has been established again to meet in March. It is a cross-disciplinary group, with police involved as well.

Senator MOORE —Is that a state advisory group?

Ms Lyttle —Yes. It is Victoria’s abuse prevention strategy in the community.

Ms Reeve —I will follow up with our other members, because I think there are others.

Ms Lyttle —Our colleagues in advocacy programs in Western Australia and South Australia get state government money to run abuse prevention programs in the community. There is an abuse prevention hotline in Queensland. So there are two or three things in that area.

CHAIR —We thank you very much for the evidence that you have given to us this afternoon. It has been very useful. I repeat the invitation for you to come back to us in the next week or so if you have any further comments to make on the guidelines, which you can find in the Department of Health and Ageing submission on the website.

Ms Lyttle —Thank you.

[4.13 pm]