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Aged Care Amendment (Security and Protection) Bill 2007

CHAIR —Welcome. I think you are all experienced in the giving of parliamentary evidence and know about the rules—in particular, the committee not asking you to give opinions on matters of policy, although we can ask you questions that explore the explanations of policy and when and how policies were adopted. We have the submission that the department has prepared. Thank you for that. Can I express my appreciation for the fact that some of you have been here all afternoon to listen to the evidence. It makes it easier for us to then ask you about some of that evidence. So thank you for making yourselves available for that purpose, which will make the committee’s work a bit easier this afternoon. Do you want to make an opening statement before we ask you questions about the evidence we have heard today?

Ms Smith —Yes.

CHAIR —Please proceed.

Ms Smith —The department would like to thank the senators for the opportunity to appear today at the public hearing of the Senate Community Affairs Committee inquiry into the Aged Care Amendment (Security and Protection) Bill 2007. I intend to make a very short opening statement to allow maximum time for us to respond to any issues the committee may have.

The department has read and considered each of the submissions made by other stakeholders to the committee and would be happy to discuss the issues raised with the committee. I am pleased to note that the submissions are broadly supportive of the legislation, both the underlying policy and the proposed means by which to implement the policy. This level of support is in part a result of the extensive consultation that has informed the development of the legislation.

The department is very grateful for the input that has been provided by stakeholders. However, as acknowledged by stakeholders, this is a very complex and sensitive area which requires the cooperative effort of the government, the industry and the community.

The legislation represents the government’s commitment to increasing protections for care recipients, which, with the supporting measures already in place, will increase the overall quality of care delivered in Australian government subsided aged care services.

In the absence of the investigation principles, which cannot be finalised until the bill has been passed, the department has developed an explanatory guide to the legislation, which explains the proposed content of the principles. As you have noted before, this was included with the department’s submission. It is available on the department’s website, and it has also been widely circulated.

The level of interest and response from the sector is encouraging and their views will assist the department in finalising the detailed principles and operating procedures. Decisions on the detailed arrangements will also be informed by the input through this parliamentary process. In closing, I again thank the committee for the opportunity to appear and welcome any questions or comments you may have.

CHAIR —Thank you. We might proceed thematically to explore some of the issues that have been raised in the hearings today. Do you want to kick-off, Senator McLucas?

Senator McLUCAS —Chair, we can do it two ways. I have a number of issues that have come up through the evidence today that are hopefully quick issues. There is the issue of resident-on-resident activity. I want to go to the costing and to the question of time—not how much we have got, but when it is going to happen.

CHAIR —Implementation timing.

Senator McLUCAS —Yes. I am in your hands.

CHAIR —Why don’t you run through some of those individual issues and we will get them out of the way.

Senator McLUCAS —Okay. A solicitor, Mr Herd, has put in a submission talking about the question of retrospectivity. He is saying it is retrospective law and we should not, on principle, make retrospective law. Is that an issue that you have had a look at and is it possible for us to get a response to that?

Ms Smith —The department does not believe this is retrospective law. It is a bit difficult to tell from his submission exactly why he believes it is retrospective, because it is a very brief submission. I can only assume that it may relate to the compulsory reporting requirement. The bill requires that if an issue comes to the provider’s attention after 1 April, which is the proposed commencement date, then that must be reported.

CHAIR —But an incident might have occurred 10 years in the past.

Ms Smith —The incident may have occurred on 30 March and it comes to the provider’s attention on 1 April. Because the bill is imposing a reporting obligation, there is a reporting obligation on the provider once they become aware of the incident.

Senator McLUCAS —That clarifies that well. With the current diagnosis of mental impairment, how will that work? It is a very key question. The approved provider will have discretion if there is a current diagnosis of mental impairment. How can that be put into effect?

Ms Smith —In entering an aged care facility and being assessed for what level of care the resident needs there is an assessment made of the resident’s physical needs, their emotional and cognitive state, what care they will need and what care needs they will need met. So it is our expectation that that diagnosis will be recorded on the resident’s care plan.

Senator McLUCAS —Let us take the case of my grandmother, who entered residential aged care eight and some years ago with no mental impairment at all. On her passing she had quite significant dementia. She would not have had on her admission sheet a current diagnosis of mental impairment. So how in that instance does the approved provider have a document which could be looked at in a legal sense that is a current diagnosis of mental impairment?

Ms Smith —Without wanting to comment on your grandmother’s case, because I am certainly not qualified to do so, we would certainly imagine and expect that a care recipient’s needs will change over time. Their physical frailty may change and may increase, and their cognitive capacity may decrease over time. They will be being seen by a medical professional on a regular basis to assess the needs that that resident has. So I do not see that a care plan is a static document. Indeed it should not be a static document. It should be updated as the care recipient’s needs change over time.

Senator McLUCAS —That gets to the real nub of it. Does the current diagnosis have to be made by a medical practitioner?

Ms Smith —It is our expectation it will be made by a medical professional.

Senator McLUCAS —What is a medical professional then? Is a nurse a medical professional?

Ms Smith —Our expectation is that it would be a GP or some other gerontologist.

Senator PATTERSON —I am sorry but gerontologists are not medically trained. Geriatricians are.

Ms Smith —Sorry. I mean geriatrician.

Senator PATTERSON —You are talking about medically qualified people in terms of having a medical degree; is that what you are talking about?

Ms Smith —Yes, that is what we are talking about.

Senator McLUCAS —When a resident sees a general practitioner, that relationship is between the resident and the general practitioner; the GP will carry the case notes. What right does the approved provider have to get the GP to tell them that one of the residents has a mental impairment?

Ms Smith —I think that increasingly there is multidisciplinary care planning that is actually occurring.

Senator McLUCAS —Increasingly there is, but we all bemoan the fact that it is not happening enough. I am concerned that this is a very significant point. The basis on which discretion can or cannot be applied is very grey. There is no right for the approved provider to have the case notes of the GP. The GP could quite rightly refuse to give those notes to them because I think that would break the confidentiality arrangement between the GP and their patient. But this ability for discretion to be applied is contingent on a current diagnosis of mental impairment. I cannot see how that is going to happen on a routine enough basis to sit on a care plan, register or something in that facility.

Ms Scheetz —I think our view is that if somebody has a mental impairment which would preclude them from being responsible for their actions that would be clearly understood by the provider. It would be on their care records and they would be under some sort of treatment or care for that condition.

Senator McLUCAS —This could be a point of law. Under the way the legislation is currently drafted, if someone does not refer an incident to the police and a complaint is made by the victim’s family, for example, the question will be whether the person has a diagnosis of mental impairment. It sounds very vague as to whether or not there will be a document that the approved provider can use to say, ‘There’s their diagnosis of mental impairment.’ It sounds very vague to me.

Ms Smith —We believe that if the approved provider is to be currently caring for that person, managing their behaviour appropriately and looking after their care needs, then it would be very difficult for them to be doing that under their existing responsibilities if they did not have a diagnosis in place.

Senator McLUCAS —I think you heard Dr Yates a moment ago talking about the difficulty of diagnosis. I am now concerned that we are putting approved providers into a difficult position in a legal sense about whether they can or cannot apply their discretion because they will not have that diagnosis—whatever it is and whoever owns it.

Mr Stuart —I think that the incentive in this case is in the correct direction—that is, to have medical input into the diagnosis and care plan of the resident—for a number of reasons. This legislation obviously helps you to manage resident-on-resident abuse within a care paradigm rather than within a legal and police paradigm. In this measure there is a measure of incentive for the provider to engage with the medical community in understanding the care needs of their clients and planning for them.

Senator McLUCAS —I understand that.

Mr Stuart —I think that is very common.

Senator McLUCAS —I agree.

Mr Stuart —Increasingly, as we move towards the implementation of the aged-care funding instrument, which will have specific funding levels relating to dementia, that will be recognised through the funding instrument as well. I think both of those things together really move us in the right direction.

CHAIR —Can I just interpose here? I just need to clarify something. Which clause of the bill contains the discretion? I am just trying to find what it actually says.

Senator McLUCAS —Mr Maskell-Knight would have just rattled off that number.

Ms Smith —If you look at 63-1AA, subsection (2) has the requirement to report, and subsection (3) says:

Subsection (2) does not apply in the circumstances (if any) specified in the Accountability Principles …

The exemption will then be in the accountability principles. That has been outlined in the department’s explanatory guide. In view of the sensitivity and complexity of this issue, it was seen to be more appropriate to put the exemption in the principles because there may be a need to look at that over time and amend it.

CHAIR —Given the complexity of the problems that Senator McLucas is raising, and they seem to be quite real, we have a bit of room to play with the principles as to how we actually define the way that exemption works. Is that right?

Ms Smith —Yes. One of the key issues for consultation has been how you handle resident-upon-resident abuse within this framework. It has been one of the most difficult issues to work through. The industry certainly raised their very strong concerns about how workable it would be if these issues were all captured within the reporting framework. The view was very strongly put, as Mr Stuart has outlined, that these issues were more appropriately dealt with within a care paradigm than a criminal paradigm. However, there was never a suggestion put to us from the industry that a resident who was in full control of their mental faculties and who engaged in a potentially criminal act should not have that behaviour assessed by the police as the authorities best placed to determine whether criminal behaviour had occurred.

Senator McLUCAS —So the AMA did not raise with you the matters that they have just raised here?

Mr Stuart —Not in terms of a complete exemption of resident-on-resident abuse; in terms of context: there are all kinds of people living in residential aged care. There are 170,000 people every night in residential aged care. They consist of a complete slice of the human community in Australia. There are people there that have been in the past perpetrators of very serious crimes. There are people there who are bullies. There are people there who are predators. There have been also, in the past, for people who have worked in aged care for a long time, some really very grievous examples of resident-on-resident abuse. So it did not seem to us, in advising the government on this, that it was defensible to have a blanket exemption for all residents.

Senator McLUCAS —Mr Stuart, I think you were here when I was talking with the AMA to try and understand what number of people we are talking about. We are talking about resident-on-resident activity. If you remove those people who do have—however it is going to be found—a current diagnosis of mental impairment, what is the frequency of events in those 170,000 people where there is resident-on-resident or resident-on-staff abuse that is perpetrated by a person who does not have a mental impairment?

Ms Smith —I do not think we have data on that to enable us to give you an accurate answer. I do not think it is as simple as saying that 75 per cent to 80 per cent of the resident population has dementia, because I suspect, though I have not got the data to prove this, that more of the incidents would be perpetrated by people with dementia.

Senator McLUCAS —I agree, but are we talking about 20 incidents a year or 1,000? To make a judgement on how big the hammer has got to be, I think that we have got to have some understanding of the scope of what we are talking about.

Mr Stuart —In the consultations with the industry, they were most keen not to have police turn up to interview people with dementia, either perpetrator or victim, perhaps neither of whom could remember or explain what they had done or what had happened to them. We understand that argument.

When it comes to the other residents, there is not data collection of incidents of this kind and there never has been. Just to respond again to Senator Humphries’s question, I think an important reason for having these arrangements in the disallowable instrument is that we expect we are going to learn a great deal about this in the initial year or two. We are asking providers to keep registers of information and we are going to be asking the accreditation agency to make sure those registers are kept. I think we will all be a lot wiser in a year or two.

Senator McLUCAS —Okay; I am happy with that. Australian Unity put up a proposal that discretion could be applied to all resident-perpetrated activity, and then it was somewhat amended by the AMA’s proposal. So, instead of compulsory reporting of all incidents of abuse perpetrated by a person who did not have a mental impairment, everything would go to the police; but, if it was a resident who was the perpetrator, the AMA was saying, ‘Well, maybe if you just record all that and then it could be open to the department.’ Then there was a suggestion of compulsory reporting to the department rather than to the police. Was that an option that was canvassed, teased out or thought through by the department, and what is your view on it?

Ms Smith —With the compulsory reporting, we have a dual reporting requirement: one is to the police and one is to the department. The purpose of the police involvement is to assess whether criminal activity has occurred and if charges need to be laid. The police are the best and most appropriate authorities to make that judgement. The purpose of reporting to the department is for us to consider whether the approved provider has actually met its responsibilities under the aged-care legislation. Our concern if you were to require reporting to only the department is that you would be involving the department in assessments of potential criminal behaviour, which we do not believe is appropriate.

CHAIR —I understand the point that you are making there, but look at it from another point of view—and I will cite a member of my family here. My mother spent a number of years in an aged-care facility before she died and she was demented for the last three or four years of her life. On every occasion that I visited her, she told me about how she had been in some way attacked by the staff of the facility, and the staff told me that she made that complaint every day. I did not ask, but I got the impression that this was a problem that was shared by a number of other residents in the facility. Now, how would the New South Wales Police in that part of Sydney respond if they had five, six, seven calls a day in relation to one facility which was mandatorily reporting allegations of assault by one or more residents of that facility? We would get to the stage very quickly where the police—who, after all, are state police forces, not Commonwealth forces—would simply say: ‘This is out of control. We can’t respond to these. We simply haven’t got the resources to chase up cases which transparently, in the majority of circumstances, are without foundation?’

Ms Smith —I think that is why we did think very carefully about how this would apply and believed that an exemption for resident-upon-resident assault where the perpetrator has dementia was an appropriate response. In relation to the other issue, the department has done a number of things to establish a very good working relationship with the police services in each state and territory. We already have in most cases existing relationships and MOUs between our state offices and the police services. In light of both the police checks requirement, which has just come in, and the compulsory reporting requirement, which is about to come in, we have been renewing that contact and looking at how we can work more closely together. The other thing that was announced as part of the government’s dementia initiative in last year’s budget was that we have allocated money for training police about dementia so that they better understand the nature of the disease and how to deal with people who suffer from it.

CHAIR —The discretion will not apply where the allegation is made about a staff member committing an assault. I suspect that there would have been a number of such cases every day in this facility. It seems to me that even when you have trained—

Ms Smith —It is difficult to have a starting assumption that it is not true, because you could then get some very serious things swept under the carpet. That is why this area is so difficult.

Mr Stuart —The legislation covers situations where there is a suspicion that an assault has taken place. There is a first line of commonsense that prevails at the level of the home. The other thing which is important—

CHAIR —That is not quite what I understand the legislation to say.

Senator McLUCAS —Is it a suspicion or an allegation?

CHAIR —It is an allegation or a suspicion on reasonable grounds. In my mother’s case, every allegation she made against a staff member would have to be reported to the police under this arrangement.

Mr Stuart —I was also going to point out that the police have discretion. Listening to my colleagues from the AMA, the kind of mental picture I got was that there would be an allegation, there would be a call to the police and the police would arrive in the paddy wagon ready to interview and arrest. They can take some evidence over the phone and the aged-care home can provide a context for the report, and then the police have discretion as to how they deal with the complaint.

Senator PATTERSON —What consultation did you have with the police forces in the various states? Have you consulted them about how they see this working?

Ms Smith —As I indicated earlier, we consulted with the police last year in the development phase, and we are also in the process of arranging further discussions with each of the state police services.

Senator PATTERSON —I am talking about now the legislation is in this shape. What discussions have you had with the various police forces as to how this is going to be implemented?

Ms Smith —I would have to take on notice the exact dates and times of those discussions, but discussions have occurred and are continuing.

Senator PATTERSON —Hang on: you said that they occurred in the development of it. What about now that the legislation is in—

Ms Smith —There were discussions last year in the development phase and at—

Senator PATTERSON —That is right; I understand that; you said that to me just a minute ago.

Ms Smith —the moment each of our state offices is meeting with their relevant police force contacts at a local level.

Senator PATTERSON —Why didn’t that happen before the legislation was tabled?

Mr Stuart —It did.

Ms Smith —There was discussion last year, and that discussion is continuing.

Senator PATTERSON —I have heard that. Once the legislation was in a form that could be discussed with the relevant state police forces, why wasn’t there discussion with them about the workability of it before we saw it?

Ms Smith —The view that we took was that there needed to be ongoing discussion with them, both at a policy level and then as it got more fleshed out. Once the—

Senator PATTERSON —But we do not know whether they think it is workable or not.

CHAIR —Let Ms Smith finish. I want to hear the full answer.

Ms Smith —We thought that once the legislation had sufficient detail we would then have the detailed operational discussions about how that would work.

Senator PATTERSON —You are asking the parliament to pass legislation, and we do not know what the police force feedback has been as to how this will work. What I am saying is that it seems a bit back to front to me.

Ms Smith —In previous discussions that we had with the police in the development of this, the clear view expressed to us by some of the state police—and I say ‘some’ because I am aware of only some of the discussions—was that they were equipped to determine criminality of issues. Their view was that these things should be reported to the police.

Senator PATTERSON —Were they aware that there could be hundreds of these in Victoria or New South Wales—especially the large states?

Ms Scheetz —The evidence from the AMA was that the majority of cases relate to resident-on-resident assault with people with dementia. Under our legislation they are exempt. So we would hope that the number of cases would not be that big.

Senator McLUCAS —But we do not know, do we? We really do not know. There was also Senator Humphries’s comment that with a person alleging an abuse, even though they have dementia, under this legislation it must be reported.

Ms Smith —I think we also need to reflect on what is happening currently. A lot of providers already have protocols and procedures in place. They are already reporting to the police and to the department if these issues occur. Our state officers already have good working relationships with their local police services. They have MOUs about how they will work together. So there is an existing relationship that we are building on through this process.

Senator PATTERSON —And if I report an event to the police, who is to blame if it is not followed up? The state police force? The Commonwealth? The provider?

Ms Smith —If you are a provider who has reported to the police, you have met your obligation. If you have reported to the police and the department, you have met your obligation under these amendments.

Senator PATTERSON —Have the police got an obligation?

Ms Smith —I think they have an existing obligation to respond to issues that are reported to them.

CHAIR —It seems to me there is a danger that we may end up, when this regime is in place, with a situation where, every day, thousands of phone calls are being made by providers across Australia, reporting cases of alleged abuse to their local police station and where thousands of those calls are basically just being logged and not acted upon by the police because they cannot cope with that volume of such complaints. So we would end up with a regime which is, on paper, an advance towards compulsory reporting but which does not become, in fact, a regime of compulsory investigation.

Mr Stuart —We did consider that issue as part of the development of this policy. In the policy spectrum, at one end there is no requirement for reporting of resident-on-resident abuse. We have knowledge about some very serious things that do occur in aged care homes. There are people who feel bullied and persecuted by other residents. We have had very significant and serious events in nursing homes, at the hands of residents. At the other end of the spectrum is complete reporting of everything. We have tried to find a way through the middle, difficult though that is. I am not certain that there is a better place between those extremes than the one that is being put forward.

Senator PATTERSON —I had quite an interesting discussion, about a year and a half ago, with one of the state ministers responsible for child welfare. They had got to a point where every issue was reported, and his concern was that, as a result of this, you ended up with a situation—and this is what I think Senator Humphries is saying—where you could not see the wood for the trees, where there was so much noise that there was no signal. They had so many reports that people were swamped and overwhelmed, and the really serious cases did not come to the top because of the mandatory reporting of child abuse. So if a neighbour who was vexatious complained, and kept complaining, all those complaints got recorded. He was quite concerned about that. It was an interesting discussion; we were talking about child welfare—child welfare was in my portfolio—and that possibility had not occurred to me.

I am just worried that a similar thing could happen in this case. We could be taking a lesson from that—and often the lessons from early development do fit in adulthood and later adulthood. Are we going to have the same swamping effect and are people therefore not going to respond because ‘wolf’ has been cried so many times? I think that is what we are trying to get at: how do you get the really serious cases to float up to the top?

Ms Scheetz —We were very aware of that. It was certainly raised at the Aged Care Advisory Committee meetings that we did not want to replicate some of the problems that had occurred in the childcare arena. So reportable assault is defined as the serious sorts of assaults. We are talking about unlawful sexual contact and unreasonable use of force. We are hoping that definition will mean that the cases that are reported are the ones we would want the police to be involved in.

CHAIR —But it is any allegation that has to be reported. So there might be no foundation whatsoever but it has to be reported to the police under this arrangement. I think it is true to say that every witness who has come before us today has argued for some relaxation of that mandatory reporting regime.

Ms Scheetz —Compulsory. It is a very important differentiation.

CHAIR —Sorry, a compulsory reporting regime. Mr Stuart, you asked about alternative models. Some were put forward and one of those was that you must always report allegations of staff-on-resident assaults but that, in the case of resident-on-resident assaults, a discretion ought to exist for them to be logged and for the log to be submitted on a regular basis to the department. They are all recorded but police are only called in (a) when the provider feels that is an appropriate outcome or (b) when the allegation is of an assault by a staff member on a resident. Do you have a view on whether that may be a suitable model?

Mr Stuart —That is roughly where we are in relation to residents with dementia.

CHAIR —Yes, but only residents with dementia who assault—and putting aside the issue that Senator McLucas raised about the difficulty of defining what exactly that means. If it is the case that 95 per cent of the allegations raised in a given year relate to residents with dementia on other residents then we probably do not have a problem. If in fact the allegations are against staff members or they do not involve people with dementia as the perpetrators then we have a major problem in terms of the volume of such cases.

Mr Stuart —Certainly the providers that we have been consulting with were very keen to address the issue of residents with dementia, and saw that as being the key risk area for the kinds of issues that had arisen in the childcare area—not so much with other kinds of residents in aged-care homes. We feel as though we have thought about that issue and responded to it in this way.

Senator McLUCAS —That still goes to the point that we do not know how many events occur that are perpetrated by a person without dementia. It is difficult for me to make a judgement about whether or not the AMA’s proposal is reasonable. I am not saying that if there are only 10 then it is not too bad—if there is one, it is terrible; that is a conviction—but if we are talking about a very small number of events then I think we might have the balance a bit out of kilter. I just do not know, because we do not have the data. Without the data, how do you make the judgement?

Ms Scheetz —I think the concern is that we will not have the data until this regime comes into place, because we are not getting the reports. So the data is not available.

Ms Smith —That is the conundrum we face.

Mr Stuart —I reiterate that, in our discussions, the provider organisations have been most concerned about the dementia issue, and I think we have responded to that in the kind of way that Senator Humphries has outlined.

Senator McLUCAS —Except where the victim is a person with dementia. I do not know that that is covered off yet. The LHMU raised the issue, in supporting the whistleblower protection for termination of employment, that they are concerned that victimisation might be having hours cut or having conditions reduced in some way. It is 5.2 in their submission. Could you take that on notice and respond to that concern, please?

Ms Smith —Certainly.

Senator McLUCAS —Thank you. Mr Mundy from ACSA raised a series of questions that his legal advisers had put to him. I wonder if you could take those on notice as well and respond to each of those concerns.

Ms Smith —Yes. Because certainly we had not heard those concerns before today.

Senator McLUCAS —As he said, he got them last night at 9.30, which brings me to the question of timing. It is true to say that the bill says this will be implemented on 1 April. Is it still the intention of the government to have this bill and the regulations in operation on 1 April?

Ms Smith —The government announced 1 April as the start date and the department has been working very hard to achieve that date.

Senator McLUCAS —I understand you have been working very hard.

Ms Smith —That is the current position.

Senator McLUCAS —I would be asking you for an opinion if you thought you could achieve that 1 April set-up, and that would be inappropriate. We will let that one hang. The other significant issue is the right not to report. A number of witnesses have talked about the fact that residents who have no mental impairment should have the right not to report. In fact it has been put to us that the act would be in conflict with itself, given the rights based fundamentals that the Aged Care Act 1997 is based on. Have you taken any legal advice about whether or not the compulsion to report may contravene a resident’s rights?

Ms Smith —We have not had formal legal advice on that issue, but I suppose the policy judgement that the department has taken is that in this area you are looking at the rights of an individual and balancing that against the rights of others. The gentlemen from the AMA were very clear on the fact that if you gave people a right not to report, you are potentially putting others at risk if that behaviour or perpetrator is not dealt with.

Senator McLUCAS —That right exists in the community. I am not saying I share the view. I am actually grappling philosophically with this question myself. But at the moment a victim of an assault or sexual abuse who lives in the community has a right not to report that. That is a human right that they carry. This legislation will remove that right for people who live in residential aged care who have no mental impairment. That is the point that COTA and the advocacy group made.

Ms Smith —We are aware of those issues and the concerns. In the end you have to distinguish that a residential aged care facility is a confined facility in which people are living in a group environment and that therefore poses different issues than living in the broader community in terms of the relative risk, I suppose, to others by your own behaviour.

Ms Scheetz —The person has the opportunity to exercise those rights in their dealings with the police. If they do not want the police to continue investigation or they do not want charges to be laid, they can have that discussion with the police.

Senator McLUCAS —I do not know whether you heard the evidence from the advocacy group, but I asked them why people do not want to report. It is to do with people knowing something about them, the police having to come, privacy and all those things. People weigh up that decision. It is a fraught question, but the evidence has been strong.

Mr Stuart —We have attended mostly to the responsibilities of the aged-care provider, in doing this legislation. The responsibility to report lies with the provider. The provider is responsible for the wellbeing and safety of the residents in their care. I think that is the best answer I can give.

Senator McLUCAS —Ms Smith, you said that you had not taken full legal advice on whether the right not to report contravenes the fundamental principles of the act. Have you taken some advice on that?

Ms Smith —Obviously, as we developed the legislation we considered how these provisions would interact with the Aged Care Act. But we have not commissioned a considered legal opinion on the issues that have been raised in the submissions. We only saw the submissions in the last couple of days.

Senator McLUCAS —But the question of the right not to report goes through all your consultations.

Ms Smith —Yes. It is a question that has been considered and carefully thought about, but we have not formally commissioned legal advice.

Mr Stuart —As a general observation, the lawyers who draft legislation for us always look at whether there are conflicts in legislation and they raise that for us if there are significant conflicts. They did not do so in this case.

Senator McLUCAS —I want to go to the question of costs. The explanatory memorandum makes the baldest and most useless statements about the financial impact of this measure. My criticism goes to the minister because he signed off on it. But to say that the new initiatives implemented through this bill are part of $90.2 million over four years aimed at further safeguarding older people in Australian government subsidised aged care gives the community no understanding at all of what they are signing off on. In fact, it gives us no information about what this is going to cost. We have a story about $90.2 million and we have the minister talking about $100 million. I would like to have a complete breakdown of the costs of the implementation of this bill, as a financial impact statement should in fact say, and a full breakdown of the total costs of the measure and where they would be able to be identified in the budget. Your submission gives some reference to costs, but I am afraid it is very unsatisfactory.

Ms Smith —This measure is in the portfolio additional estimates.

Senator McLUCAS —It is not broken down to the level that we should expect.

Ms Smith —No, but I am just indicating where this measure was. In the budget this year there was an additional $8.6 million for the agency spot checks and police checks. So the figure of $100 million is the $90.2 million plus that $8.6 million.

Mr Stuart —We would be happy to take the additional detail question on notice.

Ms Smith —There was some information on costs in our submission to the inquiry too.

Senator McLUCAS —I found it unsatisfactory. In what time frame would I be able to get the full breakdown of the costs?

Ms Smith —By early next week.

Senator McLUCAS —That would be fabulous. Thank you very much. Ms Smith, you said at the beginning that the regulations cannot be finalised until the bill is passed. Why is that? I agree that they cannot be finalised, but why could we not have had draft regulations?

Ms Smith —There was a sequential issue about the timing of this whole process. You have to get the details of the bill settled to a large degree before you can draft the principles that underpin it. The drafting instructions for the principles are with the Office of Legislative Drafting and Publishing and we hope to have a draft very shortly.

Senator McLUCAS —So essentially you are telling me there was not enough time from the completion of the drafting of the bill to allow the drafting of the principles so that they could be promulgated in draft form?

Ms Smith —We could not settle our drafting instructions until the shape of the bill was relatively clear.

Senator McLUCAS —When was the bill completed?

Ms Smith —The bill was introduced into the House—

Senator McLUCAS —No, that was not the question. When was the bill finished being drafted?

Ms Smith —It was finalised in January.

Senator McLUCAS —In January? When you say that the regulations cannot be finalised until the bill is passed, that is technically correct. But if you take, for example, the private health insurance bill, we have the regulations in a draft form. Admittedly they were provided on the day we were inquiring into them, and they are about two inches thick, but you cannot say that they cannot be provided in a draft form prior to the bill being passed. I think it is accurate to say that, isn’t it?

Mr Stuart —It is in part a matter of the allocation of drafting resources. There is always a lot of call on the drafting resources and we are not in charge of those. So they prioritise work depending on the progress with the bill.

Senator McLUCAS —But the bill was only completed in January. Even if you had absolute top priority, there would have been no way that you would have had regulations ready from then on.

The point I am making is the timing question. I think every witness has complained about the time that they have had to provide submissions. Nearly every witness has been embarrassed about the quality of their submission because of the time frame that we are under because of the timetable that the Senate has imposed. We will talk as a committee about whether or not we are going to recommend an extension of time for implementation—

Senator PATTERSON —I want to add something here. I can understand some of your frustration, but let me just say this. I have been around the traps a while—a long while. In opposition, we would often get a bill on a Friday or Thursday and the following Friday we would have a hearing—more often than not, a one-day hearing—and that was the way it was run. It would go to the party-room meeting on a Tuesday and we would have the hearing on the Friday. So I think that you are being a little disingenuous by indicating what you did about the time frame. I know it is tight, but legislation is always tight, and we have to try and meet the deadline. People say—and I did not say anything when the witnesses were here—’I did not have time to prepare it,’ but we would often call a witness on a Tuesday or a Wednesday and ask them to give evidence on a Friday; we would do that more often than not. So let us just get the history in place.

Having said that, I do have a couple of concerns about this. I really would like to know what the police forces think about the legislation and whether they can implement it. But I think to labour the point about it being speedy is a bit rich.

CHAIR —We are running of time so let us—

Senator McLUCAS —When the minister rings me and asks me to treat it as non-controversial because we have a need to get this going, I think we have a problem, given what we have revealed today. This is not non-controversial legislation.

Ms Smith, I will go back to your point that the department does not want to make a judgement about whether or not a matter should be referred to the police. Doesn’t the legislation allow the approved provider to make that decision? I can understand that the department does not want to hold information and that they have to make a judgement about whether or not that should be sent to the police, but the legislation does say to the approved provider that they can make a judgement about whether this issue should be referred to the police.

Ms Smith —I think that is an existing responsibility they have. The approved provider is caring on a daily basis for a number of people and there will be incidents occurring in their facility that may or may not require reporting to police. They currently have to make that judgement—

Senator McLUCAS —But now there is a legal responsibility if they do not.

Ms Smith —and the department’s judgement has been that, as the provider of the care, they are much better placed to make that judgement than the department several steps removed.

Senator McLUCAS —I certainly agree with you, but I am wondering about the legal responsibility on the approved provider to make that judgement for people who have dementia. I think it is interesting that the department does not want to have that responsibility but we let people who are approved providers have that responsibility. It is an interesting ethical issue.

Ms Smith —This is a very challenging area.

Senator McLUCAS —I agree. It has challenged me as well.

CHAIR —We have a couple of matters to place on notice with you and I will run through them quickly. If you have a one- or two-sentence response now I am happy to hear it but otherwise please take these things on notice. These points were raised in other submissions. Elders Rights Advocacy asked:

Is there a role for the Commissioner in promoting the complaints process to care recipients and the community, and reporting publicly on the outcomes?

I would like to have an answer to that question.

Ms Smith —We can outline the role of the department versus the role of the commissioner. I think that might be helpful.

CHAIR —That would be good. Thank you. Australian Unity pointed out that the requirement under section 63-1AA is for incidents to be reported to a police officer and the secretary within 24 hours. As I recall, it can be either to a police officer or the secretary.

Ms Smith —No, to both.

CHAIR —Sorry, you are right; it is both. And they pointed that if this occurs on a weekend it is very hard to do that.

Ms Smith —First, let me indicate that the secretary is not personally going to be taking all of these calls. If you are familiar with the Aged Care Act, you will know that the secretary holds a range of powers under the act and they are delegated to relevant departmental officers. We will have an arrangement where those calls can be taken on a weekend.

CHAIR —There was another question from Australian Unity about the way employees were defined and whether that covered health professionals such as GPs and other allied health professionals—podiatrists for example—who might be visiting the facility. Were they caught by these provisions? What about contractors such as gardeners who might work for a particular provider? What are their obligations, if any, under the provisions for employees in section 63?

Ms Smith —Yes.

CHAIR —There was a question raised by Aged and Community Services Australia about the issue of the complainant and the party complained about receiving information about the investigation. Is there a process for feeding back to them progress or outcomes with respect to the investigation? And, lastly, does the Aged Care Commissioner have the capacity to investigate the behaviour of the Aged Care Standards and Accreditation Agency as part of their brief?

Ms Smith —In relation to that last issue, yes, they do, and that is reflected in the legislation. In relation to the issues about feedback to the complainant and the approved provider, that will be specified in the investigation principles. There is an overview of those in the explanatory guide, and it is certainly the intention that there will be feedback throughout the process to the approved provider and the complainant. What we have to be mindful of at times is the nature of the relationship between the complainant and a particular care recipient, and sometimes if there is not a direct relationship the department is inhibited from giving full information if that would breach the person’s privacy. But within those constraints we would certainly aim to give as much information as possible throughout the process.

CHAIR —Lastly, there were the issues raised by Aged and Community Services Australia that their lawyers had alerted them to in the last 48 hours.

Senator McLUCAS —Yes, I have put that on notice.

CHAIR —You’ve covered that? Okay. Does anyone have any further questions?

Senator McLUCAS —Yes, just to put on notice—and it will possibly come through the full financial explanation of where this money is. A lot of the witnesses have talked about the need for an education campaign. Quite separate from the staff training issue, people need to know their rights as any of the players in the whole story. Could you explain what the department is proposing to do around that question?

Ms Smith —There is money allocated as part of this measure to provide that sort of information, and we can detail how that will work and what the plans are.

Senator McLUCAS —And the time frame for that as well, please.

Ms Smith —Yes.

Senator McLUCAS —Thanks. Can I just make the comment that my criticism of the time frame for implementation is not directed at department officials; it is very much directed at the minister. I think that his political needs are overriding the development of good legislation. I understand that staff have worked extremely hard to fit in with that.

CHAIR —I have one other question for you to take on notice, please. ERA, Elder Rights Advocacy, raised the question of whether advocates for people in aged-care accommodation would be protected by the whistleblower provisions. My reading of it is that they are not. If a person conveys to an advocate their concern about a case of abuse and that advocate then goes back into the system and makes representations on their behalf, will they be covered by the legislation and protected under the provisions that protect whistleblowers? If you could take that question on notice as well.

Ms Smith —We will take that on notice.

CHAIR —That’s great. I thank you for staying for so long, taking so many issues on notice and for providing so much information to the committee. I appreciate that we all have better things to do than sit here at eight o’clock on a Thursday evening at the end of a sitting period, but we really appreciate the time that you have given the committee. That concludes this public hearing. I thank the committee staff and Hansard staff for their time.

Committee adjourned at 7.43 pm