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STANDING COMMITTEE ON COMMUNITY AFFAIRS
01/03/2007
Aged Care Amendment (Security and Protection) Bill 2007

CHAIR —Welcome. Thank you for appearing before the committee. Information on parliamentary privilege and the protection of witnesses has been provided to you. Thank you for your submission and for supplying it in a short space of time. Before we ask you questions on your submission, I invite you to make a short opening statement.

Mr Mead —I thank the committee for the invitation to talk about the important matters touched on by the Error! No document variable supplied.. I would like to elaborate on a few points in our submission. Australian Unity has been providing aged care and retirement living services to older Australians for 45 years—a significant part of our 165-year history as a mutual organisation. We believe that we are successful in the sector because of our reputation as a values based company. Our philosophy is that we are providing a home environment for each and every individual whom we look after, and we have a responsibility to make that home environment as secure and safe as possible. We would like our residents not only to be safe but to feel safe—to feel that their entire wellbeing is important to our organisation and that they live in a caring, transparent and accountable environment.

Our organisation is interested more generally in the formulation of wellbeing in the Australian community as well as in our retirement and aged care operations. For example, we are the founder and publisher of the Australian Unity wellbeing index. In these particular operations, our care model revolves around identifying resident needs on each of the seven internationally recognised wellbeing domains: future security, standard of living, health, personal relationships, safety, achievements in life and community connection. We applaud the intention of this bill to protect residents against any possibility of an inadequate response to—or worse, a cover-up of—a known or suspected incidence of abuse. We believe that compulsory reporting of elder abuse is a necessary step to help the community at large feel that the security and welfare of older people is of primary importance to their service providers and obviously all Australians.

In some ways, Australian Unity’s existing policies go further than this bill in the scope of abuse considered. We currently require staff to directly report to their facility manager if they suspect or have been told about a possible instance of elder abuse. Our definition of elder abuse includes physical abuse, psychological or emotional abuse, sexual abuse, financial exploitation or abuse as well as neglect. Once that report is made, our policy requires the instigation of a thorough investigation, part of which involves informing the older person of their right to an independent advocate and their right to confidentiality. We believe compulsory notification requirements of the bill can be accommodated within our existing policy on notifications.

There has been some discussion about whether elder abuse is a symptom of training issues or workplace shortages. It is our policy to attempt always to recruit staff in our businesses in line with our company’s values—values that include customer driven integrity, community, our people, those sorts of things. We believe that staff who are aligned with positive values such as these will not consider harming an older person in any way. We believe that this approach provides the best protection to residents with regard to stresses that can arise in any workplace, and particularly in the care of the elderly and infirm.

Further, it is our practice to provide an employee assistance program which allows staff members to obtain counselling and support to address any stresses they might be experiencing, including those external to the workplace. We are preparing to fully train staff in the new legislation. We are preparing to update our induction program for staff in this area of our business. The obligations under this act, should it pass, will be an integral part of that program.

I would like to take a moment to comment on the specifics of the bill. The draft legislation requires us to report to both the secretary and the police an allegation of abuse or a suspicion that there has been an incidence of abuse. In making the following comments, I reiterate and underline that we are firm believers in transparency and accountability. However, we do feel that the draft bill does not allow for some of the complications of daily care of older Australians. In some instances of alleged abuse, the need to report the allegation to police would be clear. But in other instances this may not be so and could result in the unnecessary involvement of police in incidents that could stem from mental incoherence of an older person suffering from dementia, for example.

We note the Australian and New Zealand Society for Geriatric Medicine made reference to the potential frequency of these situations in its submission to your committee. Having good relations with our local police officers is also an important part of the management of our facilities. We would regret any situation where those officers felt we were burdening them with some baseless allegations, as we would be required to do under the proposed law. We made an early proposal to deal with this potential problem area in our written submission. Today, with the benefit of further research and consultation, we would like to amend our suggestion slightly.

The draft bill requires a provider to report an allegation of abuse. It seems to imply that this reporting is necessary regardless of whether there is any considered likelihood of substantiation of that allegation. We submit that the draft bill should be amended so that a provider be compelled to report an allegation only where there is reasonable grounds to suspect that the information indicates a reportable assault has occurred. We note that such a reasonable grounds standard is already represented in the legislation as it relates to the protection of a person who discloses an allegation of suspected abuse. We believe the legislation would be more consistent if that standard also applied in relation to a provider’s compulsory reporting obligations.

However, we would say additionally, as an approved provider, that we should fully support the mandated recording of all allegations, even when there are no reasonable grounds to suspect a reportable assault. We would, if legislators choose to adopt such a course, expect that such records would be open for review at any time by the department. We think that that combination of reporting obligations and recording obligations would be a more appropriate legislative setting for this complex area.

We wish also to note the needs of residents, as the other witnesses have already discussed today. As I have explained, our current policy in relation to elder abuse recognises the right for any competent older person to request or consider confidentiality and privacy in relation to the reporting of abuse. Unfortunately, this bill does not extend that right, and instead removes it from the older person. Should we discover ourselves, as operators and providers, in a position where a resident asks us not to report an offence we will find ourselves with competing pressures that will require careful management. We believe such situations could be handled in conjunction with police, particularly those trained in dealing with victims of domestic violence or sexual assault.

We appreciate your attention to these concerns and others we have raised in our submission. We trust they have been somewhat useful to your investigation of these important matters. My colleague and I would be pleased to answer any questions.

Senator McLUCAS —I want to go to the question of your proposed amendment. It would require that, if an allegation is made of serious assault or sexual abuse, you would then add on ‘with reasonable grounds does require reporting’.

Mr Mead —Would require.

Senator McLUCAS —Who would do the assessment to ascertain the ‘reasonable grounds’? Walk me through a practical example, if you would.

Mr Mead —I might ask my colleague to further elaborate on the day-to-day experience, but it would obviously be the staff of the provider in situ. They are the people in contact with the event in question. Inevitably, judgments occur at the coalface.

I would preface comments on this area by reminding us all that these facilities are people’s homes. What is more, they are shared homes. The blunt instrument of legislation in this area can potentially produce undesired effects. Our recommendation would be that there would be a parallel set of obligations—one based on reasonable grounds and one entirely mandatory, no matter the reason; one reporting and one recording—so that, if there were any suspicion that a provider were not using their judgment appropriately in relation to the reporting of reasonably based allegations, there could be a documentary record open to investigation such that appropriate regulatory and compliance steps could be taken. That would be a general comment.

Senator McLUCAS —Before we go on, could you also have the requirement that all allegations, whether they be on reasonable grounds or not, be reported to the department within 24 hours?

Mr Mead —It would be fair to say that it is true that the area of our concern here is perhaps at its highest in relation to the compulsory reporting to the police because of the potential for residents to be uncomfortable in certain circumstances with that mandated step. We would agree that there is probably a further nuance here between reporting to the police and reporting to the department. Nevertheless, in all, we would still submit that it is appropriate in the context of people’s homes that this judgment be left to the best efforts of well-intentioned staff to try and manage in the best way possible. That is the substance of our submission. But we acknowledge the gradation that you identify.

Mr McMillan —Perhaps I can illustrate our point by talking through a specific example. Our current policy would dictate that the facility manager or one key personnel member would be the responsible officer to investigate that initial allegation. That investigation would look for reasonable grounds based on physical evidence. There would be interviews with the victim, other staff and other residents. There would be observations from other staff members. Those could be in relation to residents, the victim and the alleged perpetrator, whether they are staff members or not. It would also look at whether the resident’s behaviour had changed. Those would be the types of investigations that a manager would undertake to assess whether there was reasonable ground for suspicion. We think that that policy works well at the moment with our current elder abuse framework. We would recommend that as quite a reasonable methodology for assessing the intent of this bill.

Senator McLUCAS —And your staff are currently trained to do that?

Mr McMillan —That is right. Our key personnel at each site and our village managers, with their experience, knowledge and responsibility, are trained to assess those situations.

Senator McLUCAS —You also make the comment in your submission about the requirement to report within 24 hours and the difficulties that that poses for an event that may occur on a weekend. Can you walk us through the practicalities of that?

Mr McMillan —It is not so much the difficulty of reporting to the police, but it is difficult to report to the department. The department is open nine to five, Monday to Friday, while our business is a 24-hour, seven day a week business.

Senator McLUCAS —We might raise that with the department. We might get a hotline. It has been put in other submissions that there is a potential conflict with the principles of the act in the compulsory reporting of abuse and the issue of the right not to report if a resident expresses that right. Have you looked at that in terms of a legal construct? Do you think that there is potentially a conflict in the act, given that the act is premised on the rights of the residents?

Mr McMillan —There are clearly some categories here involving the cognitive position of the residents. Leaving those issues aside for a second, the situation is that this bill removes a right that is currently available to all other adults in Australia. That is an issue that we would definitely ask the committee to reflect on. The spectrum of potential complexity here is enormous. The very legitimate right of residents to make an assessment about their own privacy and confidentiality has to be borne carefully in mind.

It seems to me that elder abuse of the type that we are discussing here today falls into four categories, and they relate to the perpetrator. There would be concerns about the staff of any operator, fellow residents, strangers and family. I am sure that the committee would fully understand that there are complex issues in all of those categories. We fully support the laudable public policy intentions of this bill but we would suggest that there should be appropriate consideration given to the right to privacy and confidentiality in this complex area.

Senator McLUCAS —If there is time at the end, I might come back and we can talk further on that. Thank you.

Senator PATTERSON —I am a bit confused about what happens to the rights of the person who has had the accusation made against them. Not everyone who is old is nice. They may be set against a particular staff member or somebody else. How do you protect the privacy of the other person? They are accused. The accuser is protected in your system. I do not quite understand how that would work if it were a vexatious accusation. And that can happen.

Mr McMillan —We believe that having reasonable grounds before reporting can address some of those issues. If there is a proper investigation conducted—and that may be within half an hour or an hour of the allegation—then the vexatious claims are limited.

Senator PATTERSON —But you do not make the law for the best nursing homes; you make them, sadly, for the lowest common denominator. A good nursing home might undertake that investigation immediately. But for one that does not want to be criticised and is reluctant to admit that there is something going on in their nursing home, wouldn’t that be a way for them to cop out of it? You have to think about some of the worst ones that you have ever seen. There are some around. We try to make sure that they are not like that, but some of them deteriorate. You are assuming that they all act in good faith in carrying out an investigation within a certain time. Put your nasty hats on and think about it.

Mr Mead —We are exceedingly aware of the types of circumstances that you describe. It would seem to us to be regrettable that in attempting to address those issues we penalise the amenity of many thousands of Australians who do not live in such facilities and who may find, for example, under the currently proposed wording of the bill, uniformed police officers attending routinely in ways that disturb harmony or alarm members. For example, a baseless allegation could be made by someone with some cognitive impairment. If we admit that example of a baseless allegation, the situation would be that the machinery of this act would require the involvement of the police. There are very legitimate concerns to be balanced against the equally legitimate concern that you raise.

Senator PATTERSON —If you were to adopt this thing that you are suggesting, could a facility that fails be then subject to the more stringent approach? You would have a second level. I do not know how you would do it or how it would be written. But it seems to me that you have to protect those people who are in a facility, such as an aged care facility, that isn’t all hunky-dory.

Mr Mead —Certainly. Without the benefit of extensive consultation, my instincts say that we would support a tiered process of the application of mandated reporting. For example, it may be that the type of regime we have recommended obtained for all except in circumstances where the department determined that a different regime should apply. Perhaps that is one route through this particular set of issues.

Senator PATTERSON —If you had failed a number of accreditation points, for example, that could be a measure. There might be other ways of doing it; I am just trying to think of a way. I am a bit anxious about your solution because it is being taken from a position of goodwill and good intent. We will mull over that, I suppose.

Senator MOORE —How many complaints did you have last year?

Mr McMillan —Serious complaints?

Senator MOORE —Yes.

Mr McMillan —We had none last year and one the year before.

Senator MOORE —You are a very large organisation and the evidence that you have given is based on that experience. I think that is important to put on record in terms of the process. I asked my question about information and awareness campaigns. You expressed that you already have an operating system in your organisation and you described it to us. Can you suggest how we could learn from that in terms of ensuring that residents, families, staff members, visitors and police all understand their rights in the process? How can it be done?

Mr McMillan —Our current approach is to tackle this at what we would call induction or admission to the facility.

Senator MOORE —That is for the family and the resident?

Mr McMillan —That is for the family and the resident. Then, if there is a complaint, we would discuss their rights with them at the time of the complaint. As to further education, I think it is quite complex. I do not have a strong view on how we could extend that beyond our current staff and resident base into the broader community.

Mr Mead —For example, I think we would not resist a degree of greater formalisation of our current practices. If you were to generalise such practices—for example, the provision of information to all relevant family members at induction or admission, or a set of other potential information provision procedures at critical points in a resident’s care—I would have thought that, when multiplied by the community of residents, their families and staff, would go a significant way to achieving some of the critical awareness that you may be concerned with.

Senator MOORE —Currently at airports you have to have a special card to be allowed into parts of airports. There is a special card; I forget—and I should not forget, but I have forgotten—what it is called. It has been contentious. Anyone who is allowed to go into special parts of airports has to have training and awareness about what they are doing and about what rights they have there. They have to sign their lives away and actually apply to get this card to allow them to be in the area. I understand fully what the rights are for people who are staff members of your organisation, but, for people who come on campus—and I use the term campus because it is a generally used one—for things such as entertainment, maintenance or any of those other things—people you do not control—how do you actually get their rights and responsibilities to them?

Mr Mead —Again, this is a fraught area when we are seeking to achieve a home environment. So some of the people that you would be potentially—

Senator MOORE —Screening.

Mr Mead —involving in this mechanism might be volunteers, they may be family members. Could I tell you one story of two residents in a facility of ours. Let’s call them John and Jane. Four months or so after purchasing a retirement village unit—a separate discussion from the one we are having today—at one of our joint facilities, Jane had a fall that had some serious complications and led to some issues to do with cognitive impairment. She had that fall at home in a private home environment and so on. Jane, it so happened in this case, transferred to the adjacent and included aged care facility within the general community. John is able to drop in and out to visit Jane. We would do everything that we could to facilitate the ready access. I could describe any number of other instances, Senator, which we are talking about involving ourselves in in quite formal ways. So certainly there are remaining tortuous issues here.

Senator MOORE —Yes. I think the impact of the legislation is going to evolve as it goes through, but it is interesting. I just wanted to get your comments on record. Thank you.

CHAIR —I will start by asking you to tease out the model that you are talking about here as the alternative to the one that is in the legislation. Say you have a complaint by a person with dementia in a home that they had been assaulted by a staff member. The management of the home investigate and come to the conclusion that the claim is without foundation. That is recorded but not reported to the police. Who sees the recording of those incidents, if anybody?

Mr Mead —We would submit that those be generally available to the department on whatever basis the department required.

CHAIR —So you could be required, say, to submit those every six months or every year to the department.

Mr Mead —Whatever appropriate processes the department determined.

CHAIR —What if a family member of the demented person says, ‘We’re not satisfied. We believe this should be reported.’ What would happen then?

Mr McMillan —Our general principle is open dialogue with the family members of the resident. Most likely we would have discussed that allegation with the family members to let them know that they had made that allegation and we had investigated the complaint and found that it was baseless. If in fact they then wanted us to report it, I would think that we would then report it.

Mr Mead —Absolutely.

CHAIR —I am not asking what you would do. I am asking what the rule should be. Let’s just take the case Senator Patterson was raising of the less than ethical home. They may not want to report these instances. What should the law require where a provider decides they do not believe the matter needs to be reported but the family member, for argument’s sake, does?

Mr McMillan —I will respond to that firstly in the inverse. One of the challenges that we are wrestling with with this bill at the moment is the implications for our procedures come 1 April if it is to be assessed. One of those is: what do we do with the staff? If there is an allegation that needs to be reported, it will then be investigated, so should we then suspend that staff member? That then has a potential impact on staffing ratios, agency staff, quality of care as well as the rights of treating that staff member fairly, particularly if we believe that the allegation is baseless. But then can we not suspend that staff member if we are pending an investigation from the department?

CHAIR —It is a good question, but in a sense a separate one from the one that I am asking. What is the right of the person or their family to have a matter reported if the people operating the home do not want to report?

Mr Mead —There is only one answer here: the incident must be reported. If there is a competent person who is insisting on further investigation, it would be undesirable that that did not get reported.

CHAIR —That sounds like a reasonable position to take. You suggest in your submission that the principles in the legislation, I presume as modified—as you have suggested it should be modified—should apply to other residential facilities like boarding houses and retirement villages. I cannot quite see these arrangements working in the context of, for example, a retirement village. With aged-care facilities of the kind that this bill covers, we are talking about generally fairly vulnerable people, often frail, who are being provided with day-to-day services by staff. In a retirement village people may have relatively little interaction with staff, and they are often fairly independent, by definition, to be able to live in a semi-autonomous setting. As an operator, you do not have the same obligations towards those people to watch out for their interaction with other people that you do for a person in a nursing home. Wouldn’t you need some fairly extensive changes to these arrangements if they were to apply to people in retirement villages?

Mr McMillan —Perhaps it was slightly clumsily worded, but we were particularly focusing on those residents who receive, say, CAPs packages or additional care services that are government funded services. The bill as it stands does not apply to those residents and yet they are equally as vulnerable as, perhaps even more vulnerable than, residents in a residential aged-care facility. So it is really about whether we can make this bill more inclusive to capture all older persons—

Mr Mead —Who are recipients of assisted living.

Mr McMillan —who are recipients of care services, yes.

CHAIR —You suggest that there should be counselling and support offered to victims at the earliest possible time. Do you see that as the obligation of the providers of the services, or of the Commonwealth government, or of whom?

Mr McMillan —We would see it as our obligation to arrange those services. There is a range of government funded services that we would access, but in the first instance we would see it as our obligation to arrange those services.

CHAIR —You suggest training for the police in the way they enter homes and so forth. You would understand the difficulty in the Commonwealth imposing training regimes on state police forces, but perhaps some arrangements can be made in that regard. I think that has covered my issues. Are there any further questions?

Senator McLUCAS —Our committee is reporting on 9 March, the legislation has to pass through the parliament, and we have not yet seen the regulations. Practically, how do you start on 1 April?

Mr McMillan —Yes, I would have to say that the timetable is very tight for us because of the shiftwork nature of the staff, and recognising as well that staff do not necessarily always work full-time. For example, in a facility where there are 50 full-time equivalents there may be 120 staff members. I suppose that is why we are turning our minds to how we can modify the policies and procedures so that we have those clear before 1 April. But we certainly would appreciate some additional time if that were possible in order not only to crystallise our policies but also to then roll out the training to the staff. It could take a week to do that—to capture all of the staff.

Senator McLUCAS —A week?

Mr McMillan —Yes.

Senator McLUCAS —Providing you have prepared the training?

Mr McMillan —Yes.

Mr Mead —After preparation.

Mr McMillan —In terms of the implementation.

Senator McLUCAS —After preparation of the training?

Mr McMillan —Yes, just to implement it; just to pick up everybody’s shifts.

Senator McLUCAS —We might take that recommendation on board as well. Thank you very much for your time.

CHAIR —Thank you for your appearance today. If you have any further comments based on the guidelines published in the submission of the Department of Health and Ageing—they flesh out what the principles will ultimately say—you might care to make some further comments in writing to the committee.

 [4.50 pm]