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Standing Committee on Health, Aged Care and Sport
Quality of care in residential aged-care facilities in Australia

BURGESS, Ms Mary , Public Advocate, Office of the Public Advocate Queensland

SIEGEL-BROWN, Ms Natalie, Public Guardian, Office of the Public Guardian Queensland


CHAIR: Welcome. Thank you for agreeing to do this jointly. Do you have any objection to being recorded by the media today?

Ms Burgess : No.

Ms Siegel-Brown : No.

CHAIR: Great. I am required to remind you that these are formal proceedings of the federal parliament. The giving of false or misleading evidence is a serious matter and could in some circumstances be considered a contempt of parliament. Today's proceedings are being recorded by Hansard and your evidence attracts parliamentary privilege—so feel free to say whatever you want about each other without fear of prosecution or defamation! The Office of the Public Advocate has provided a submission. Thank you for that. I would like to invite both of you to make opening statements before we move onto questions.

Ms Burgess : Thank you. I want to express my thanks to the chair and the committee members for the invitation to speak today. This is a really important national issue, so I very much appreciate that opportunity. Before I commence, I want to acknowledge the traditional owners of the land on which we are meeting today—the Jagera and Turrbal peoples—and acknowledge their elders past, present and emerging. I also want to acknowledge all older Australians residing in aged-care facilities and their contribution to the growth and development of our country, and our obligation to ensure the protection of their right to respect and dignity and their treatment and care as they age.

Before I commence, I would like to make the point that old age doesn't happen to other people, it's the future for all of us—that is, of course, unless we die sooner. So we all need to remind ourselves that the issues the inquiry is considering—about the quality of care in residential aged-care facilities—will eventually for some of us, sooner rather than later, be very relevant in our own lives. So, ultimately, it is in all of our interests to get this right.

There are a number of points that I want to emphasise today that I have made in my submission. As you may recall from the submission, I had a very strong focus on the unregulated use of restrictive practices in residential aged care. Seclusion, restriction of movement, physical, chemical and mechanical restraint are all restrictive practices that are regularly being used in residential aged-care facilities, and this is occurring outside of a proper legal regulatory framework. I am focused on unregulated restrictive practices because they are the most obvious and blatant form of institutionalised elder abuse happening in residential aged care in Australia.

As there is no legislation specifically governing the use of restrictive practices in aged care, there is no valid legal basis upon which these practices can be used except in very limited cases where there is a legal justification or a defence. What this means in legal terms is that where restrictive practices are being used routinely to manage a person's challenging behaviour, even with the consent of relatives or enduring attorneys—which, incidentally, cannot be given for this purpose—they amount to a criminal act. So, depending on the circumstances, it may amount to unlawful deprivation of liberty, assault or even the administration of a stupefying substance if it is the use of a chemical restraint.

The point I am making here is that this is really serious. Every day in aged-care facilities across Australia people are being subjected to criminal treatment that is being regarded as an ordinary part of their care. The flipside of that is that aged-care staff are also being exposed to the risk of criminal prosecution for doing what has somehow come to be seen as part of their jobs. We don't know how frequently it is happening. We don't know whether the practices are being overused, or how badly they are being applied, because there is no requirement to report their use or to formally train staff. This unacceptable situation could be so easily resolved with the introduction of legislation to regulate these practices.

There are a few other matters that I would also respectfully encourage the committee to consider in your recommendations. The first is the importance of having a combination of mechanisms to protect aged-care consumers. A single complaint system, even a world's best practice complaint system, will be insufficient alone to protect the rights and interests of consumers.

Complaint systems rely on individual action to initiate a complaint. We know that only about five per cent of the general population who have a complaint actually make that complaint, so we can't expect that percentage to be any higher when we're talking about the most vulnerable people in our community initiating a complaint. If you add to that the complication of whether people know how to make a complaint, whether they have the capacity and confidence to participate in a complaints process and whether they're prepared to pursue a complaint against the people they're reliant on for their care, you can see that a complaints system can't be the only response in this space.

If we look at the number of complaints the Aged Care Complaints Commissioner received in the last financial year—4,700, she reports—and assuming that that represents a generous five per cent of the people who had complaints about their care in aged care, we potentially have another 90,000-plus people who, for all of those reasons I've outlined, didn't make a complaint. For those people, their issues and concerns will never be known and they won't be addressed, so I think we should assume there's a problem or there could be a problem. For some people there are significant problems.

Any individual complaint system has to, really, be complemented by some other mechanisms. The sorts of things I'm suggesting would be properly funded individual advocacy services and an independent community visitor program or inspector program. I'm sure that you've had people already speak to you about these, and we've addressed that issue in our submission.

I'd like to make the point that if the government has responsibility to oversee a responsive residential aged-care program it needs to have independent eyes and ears on the ground to ensure the quality of the service that's being provided, and these kinds of advocacy and community visitor programs can provide those independent eyes and ears. I think sometimes people see those kinds of services as a bit of a thorn in their side, but they're the early-warning system. They raise issues that we'd rather not hear about but they raise them early, and if you respond to them early you can nip problems in the bud.

The final matter I want to talk about today is the approach to aged-care accreditation standards. I know that there are new draft aged-care quality standards. I've looked at them and they're certainly an improvement, I think, on the current aged-care accreditation standards, but my concern about them all is that they have this very broad-brush approach, with a lack of detail about the service and resourcing inputs that are expected, and a strong focus on outcomes that are expressed in very general terms, and they're hard to pin down. They provide minimal guidance for service providers about the approach, in practical terms, that's expected, in terms of the quality of care that they're to be giving.

The limitation of this approach is that by the time it becomes clear that the standards are not being met or that they're not achieving the desired outcome the consumers of aged care services may have suffered significant if not dire consequences, in terms of their health and wellbeing. And the lack of specificity in aged-care standards means that we also have no mandated minimum staff-to-resident ratios in aged-care facilities. I'm aware the Australian Nursing and Midwifery Federation supports minimum staff ratios. And I'm also aware that aged-care providers argue there's no substantive evidence that minimum staff-to-resident ratios achieve better health outcomes. However, it flies in the face of logic to argue that residents of aged-care facilities won't get better quality care with more staff.

While it's difficult to measure care quality, and it's not a simple issue and there's training and qualifications and other issues that are in the mix there, there are some basic practicalities and maths that you can't deny here. If you're trying to compare a ratio of, say, one staff member to five residents with one staff member to eight residents it's going to be difficult to distinguish between the quality of care. But it's obvious that, at a certain point, as the ratio becomes larger, the quality has to suffer. People just don't have the time available to deliver the services that each resident they're assigned to needs. And that can manifest itself in a range of ways.

Recently, it's been reported in the media that people don't get help to eat meals. We get a lot of people contacting our office concerned about their family members going into care and suddenly losing weight really rapidly. This is because the facilities don't have the staff to ensure that people can eat their meals. They place it before them and, if they don't eat it, they come back and take it away. Also, they leave them on toilets for long periods. They put them there and then they go to do something else and forget they are there, and they are there for an hour or so. That has been a complaint from Bundaberg about some of the nursing homes there. Also, they resort to using unlawful restrictive practices, because it is easier to manage the residents when they are developing some challenging behaviours.

From my point of view, if you look at the staff-to-resident ratio and extrapolate it, when does it become too much? Is it one to 20? Is it one to 50? I've been told that in some nursing homes staff are on a one to 30 ratio at night. It is very difficult for them to be able to give the care that people need when they need it. There has to be a point at which the quality and safety of people in these facilities will diminish if the staff ratio falls too low. I would ask the committee to consider recommending some specific standards around minimum staff-to-resident ratios and also the qualifications of staff. That concludes my opening statement.

CHAIR: Thank you very much. Ms Siegel-Brown, would you like to make an opening statement?

Ms Siegel-Brown : Yes, thank you. Firstly, I would also like to acknowledge the Turrbal and Jagera people, the traditional owners of the land on which we are meeting, and pay my respects to their elders past, present and emerging, and the extraordinarily high number of my own clients who are engaged in aged care who Aboriginal and Torres Strait Islander people.

I am enormously grateful to the committee for the invitation to appear today. This inquiry represents an opportunity to hear the horror stories and the problems that are coming out of aged care, which are absolutely frightening. I fear that what we see is purely the tip of the iceberg, certainly based on my own experience. But this is also a great opportunity to look at other care systems that were in the same quandary decades ago and see how far we have come from those places and how well those protections work now. I think there is a lot about them that is fit-for-purpose, and I will talk to that in a moment.

When I look at your terms of reference, I can speak most directly to the first and the third terms, which relate to incidents of mistreatment, adequacy of responses and complaint mechanisms. The difference between Mary and I—and I know that, in many of the states and territories you have been to, the public advocate does the role of the public guardian and so on—is that Mary is the systemic advocate for adults with impaired capacity in a range of different settings, be it with respect to disability or mental illness. My role as public guardian came about in 2014. I am both the child guardian and the adult guardian. I have approximately 25,000 clients, of which about 12,000 are children in care systems and disability systems. In the adult guardian space, I have four roles which I think are of relevance here and which I think you will be most interested in.

The first role and the one on which you have invited me here today is that of guardian of last resort for adults with impaired decision-making capacity. My client cohort is growing exponentially due to the rise and prevalence of dementia and the fact that we are living longer. Unfortunately, not all of us are holding our decision-making capacity all the way through to death. I also oversee and conduct one of the most comprehensive community visitor programs in the world for both children and adults. It is the only program which runs paid independent community visitors for adults in Australia. I visit people in disability services, mental health services and particular level 3 hostels. My community visitors sit quite outside the systems that fund those programs, and they advocate for the human rights of the clients in those systems. To give you an idea: in any year, my visitors will regularly visit about 1,200 sites. Last year, 2016-7, we made 5,224 visits across Queensland and raised 1,931 issues. A very large proportion of those related to the personal safety, security, abuse and assault of people in those institutions. I often think to myself: had they not visited, how would those issues have been raised? How would they have come to the attention of any complaints mechanism, when we are talking about people who by the very definition of their impairment may not have the self-efficacy or the self-advocacy to raise these issues with the complaints commission? Community visitors are the integral bridge between the client, the consumer, the adult and any complaints mechanism. I fail to see how complaints mechanisms can be set up to succeed without them.

I have two other roles which I think have great bearing here. One is that I am a legislative decision-maker for restrictive practices in Queensland. You may be aware that the way that restrictive practices in disability in Queensland are regulated is one the world's leading regimes. It is the oversight that is given to external bodies to approve the usage of those restrictive practices, and it has come from a long body of work about best practice, about reducing harm and about a requirement to ensure that such practices are not used willy-nilly at the decision of a particular worker or in the instance where workers are in short supply or training is insufficient. From that perspective, I would like to offer you some of the learnings we have had in disability, which I think are equally applicable here.

Lastly, I am very fortunate to have been given the power by the Queensland parliament to invoke investigations and mete out particular consequences for elder abuse. The powers that we have in Queensland in relation to elder abuse are fairly unparalleled elsewhere in the world. While they do not relate to elder abuse by institutions such as aged care, I can investigate all abuse, exploitation and neglect allegations against anybody who is suspected to have impaired decision-making capacity. Once I think the investigation has reached a particular point, where, on the balance of probabilities, the allegations appear to be substantiated, I can suspend powers of attorney, I can cross-examine the alleged perpetrator and I can execute a warrant to remove somebody whose safety is jeopardised. I am very grateful for those powers. Just to give you a small insight: the reports and investigations I'm undertaking increased by 70 per cent just in the first quarter of this year—that is on the 30 per cent of last year.

One of the primary sources of referrals I get of elder abuse is actually from aged care homes themselves. It is fantastic that they are the lead source of reporting, but my chief concern in that space is the way I tend to find out about this. An aged care facility will report suspected elder abuse to me when, for example, somebody has been given a power of attorney over someone's financial affairs and the nursing home fees have fallen $30,000 or $40,000 in arrears and they say: 'Look, we've been sending the bills constantly. They don't get paid. We think something might be up here.' I'm just thinking of a case most recently where we turned up at the aged care facility and there was an eviction notice on the adult's table beside the bed. If that aged care facility had reported those arrears to me when they were $5,000 then not only would that assist their bottom line or profit margin—I would think, if we're talking about multiple clients, which we are, hundreds of clients, in meeting their own financial obligations—but would also mean that I could save somebody from eviction. So I think quality of care requires a duty to report abuse where there are organisations or institutions in place in states and territories, like my own office, to report to. It has to be a commensurate obligation if you are caring for a person to report where you suspect there to be financial abuse. Sadly, more often than not, where I investigate financial abuse I find other very frightful forms of abuse as well that are not financial.

It is clear—and I would imagine this is why your inquiry was set up—that aged care systems are needed to better protect residents from abuse and poor practices. My guardianship clients in the aged-care system are the most likely to have nobody else in their lives. That's why I've been appointed. They tend to have the most complex needs. Some of them have come directly from prison or mental health facilities and go straight into aged care, and they are very vulnerable to abuse and need somebody to represent their rights and interests and speak out on their behalf. But I also have many clients who are young adults for whom there are no other appropriate accommodation options other than aged-care facilities because of their high or complex needs. They might be in those institutions because of, for example, acquired brain injuries. All of these adults are heavily dependent on daily personal support. They often have limited ability to speak out against ill-treatment, abuse or poor practice. My community visitors, as you would be aware, don't have the power to go into aged-care facilities because they're federally overseen. Often, obviously, they're privately run institutions, so we have no jurisdiction to be there. But, should those practices have occurred in state funded or NDIS funded facilities, or where clients are NDIS funded, I would have been able to pick that up through my Community Visitor Program and would have acted a lot sooner.

In the experience of my staff, the complaints processes within aged-care facilities often offer very little opportunity, if any, to resolve complaints. My guardianship clients may have a serious issue that needs to be resolved by an aged-care facility. However, often complaint mechanisms fail to effect any real change to meet my clients' needs and sometimes the only recourse I have available is to arrange for the adult to be moved to a different facility. You would imagine that in some areas, particularly in rural and remote locations and particularly for Aboriginal and Torres Strait Islander clients who still need to be amongst their community, this is an almost impossible ask. These concerns might be addressed in only some part by the introduction of national standards for aged-care complaint mechanisms, but it has to be teamed with much stronger regulation—in particular, of restrictive practices—and independent oversight of aged-care facilities, for example, through the introduction of professionalised and paid community visitor programs like my own, which have been catalysed through inquiries very much like this one and have gone on for decades.

When determining how aged-care facilities can improve complaint mechanisms and systems, we already know that business models for aged-care facilities can perpetuate or facilitate the abuse of an aged person's rights. We've experienced issues where guardianship clients are moved to other placements due to the operational needs of the organisation without any consultation with us or the client or determination as to whether the new placement is even suitable, appropriate or meets the preferences of the person. Invariably, this appears to occur against the person's will. Obviously, there needs to be greater cooperation and collaboration between state and territory agencies and the Aged Care Complaints Commissioner to address serious issues and potential elder abuse experienced by residents at aged-care facilities, including that perpetrated by a resident's personnel attorney, guardian or administrator, much like I explained at the beginning of my statement. There are also issues of limited availability of aged-care facilities in regional, rural and remote areas, and of course that leads to a power imbalance as there is a lack of alternative service and accommodation options. I would recommend that an aged-care complaints framework imposes a penalty if a facility threatens to withdraw or change a resident's security or welfare as a result of the complaint, which we see happen all the time.

What I would like to say in closing is that the aged-care system, albeit for a different cohort of people, at the end of the day is not that different to a lot of the other care systems in which I work. The disability system, whether it be for NDIS funded clients or state funded clients, has a completely different set of rights and entitlements when it comes to protections and abilities to complain about service. Why is it fair to have a two-tiered system of rights? Why is it okay to regulate restrictive practices for people in NDIS funded or disability services, but, as soon as they turn 65 and find themselves in an aged-care facility, they lose that right?

Why is it fair that all of us who may be at very real prospect of entering aged-care facilities should be entitled to a lower level of rights and not receive community visitors to be the eyes and ears of what is happening to us when we may be non-verbal or not have the capacity to advocate for ourselves?

I think there are three or four main protections that could be afforded that I see in my work in disability that are directly translatable here. If you are interested in hearing about each of those today, I'd be very happy to be quizzed on those. I think that we are vastly lucky in Queensland, and I say that with the greatest of respect to Queensland. It's tough for me to say as a Victorian that Queensland is leading the way. I know that Victorians like to spruik that they're doing it best. But we have some of the high protections for people with disability in Australia. I think there are some real quick wins and easy gains that have come from the decades of inquiries that we've had into our disability institutions here which are directly translatable into the aged-care space.

I'm very happy for you to ply me with questions on whatever you would like given that you don't have a formal submission from my office, or I'm very happy to explore some of those mechanisms further if you'd like—however you'd like to proceed.

CHAIR: Thank you both. I might kick off with a question to each of you which is slightly different. For you, Ms Burgess: your submission goes to this some degree, but, in relation to restrictive practices, how comprehensive are the common law rights in relation to habeas corpus? Is it within the capacity of states to regulate restrictive practices in aged-care facilities? It's effectively the criminal law, I would have thought, which is outside the general Commonwealth purview. If there is Commonwealth legislation, could you elaborate on how the model works in Queensland for the use of restrictive practices in the disability and mental health sector?

For you, Ms Siegel-Brown: I'm interested in getting a better understanding of your community visitors program. Are they effectively public servants that are employed? Are they well-equipped volunteers? How do you maintain effectively the professional standards if you are using volunteers? When you first walk into a nursing home, as we do as elected representatives, they're generally confronting experiences, and that's just by nature of the place, so how do you equip people to do the job in a way which is effective? In relation to your role as guardian, you mentioned that there were some limitations of your powers in relation to aged-care facilities because they're federally funded, but presumably you hold guardianship over residents of aged-care facilities. Do you have investigative and punitive powers where you're acting in the interests of individual clients in relation to aged-care facilities?

In 25 words of less!

Ms Siegel-Brown : I'll handle the legislation question if you like, because I'm an administrator under the restrictive practice legislation here in Queensland.

Ms Burgess : What I will say about that is that we made some reference to it in our submission. I'm not sure if I sent you the paper. We released a paper last year about restrictive practices in aged care which does an analysis of the legislation in all jurisdictions in Australia. I'd be very happy to send that to you, so I'll do that. That outlines it really clearly and also describes the way the state restrictive practices legislation works.

CHAIR: But presumably it does have effect on aged care because criminal law doesn't stop at the boundaries of an aged-care facility.

Ms Burgess : I think what happens is that, because it's become so routine to treat people this way, people don't realise that what's happening to their family members is actually unlawful. We also have this other problem where, when they make a complaint, the facility threatens to withdraw services—they can move. If you've ever put someone in aged care or tried to move them, you know it's very difficult. Of course, once you buy into a lot of these facilities—and you would already have heard about this—when you try to move from one facility to another, there are all these, in a sense, exit penalties, so you often don't have money to pay what's necessary to get into another facility. So people feel as though they're sort of trapped and, if they make a fuss, their family member won't get the care that they need and they could be left high and dry.

I suppose the states could legislate in this space—

CHAIR: If it's already unlawful, why is there a need for Commonwealth legislation?

Ms Burgess : Because what we want to do is regulate it. We know that for some people there do need to be some interventions around the management of challenging behaviours. That's why we've legislated in Queensland for restrictive practices and disability. Natalie can outline to you how that works. But I think that just saying you can't do it doesn't mean it won't happen. What's happened here is that it's happening routinely. I didn't really want to refer to Oakden, because that's sort of become the thing, but in the Oakden case one of the reasons the family made a complain was that the man looked as though he'd been tied to something—that he'd had his hands tied. It appears that those kinds of restrictive practices were routinely happening in that facility.

It's just that it's a legal vacuum at the moment. We know people need some kinds of interventions sometimes for different behaviours, but, when you regulate it, it first requires organisations to acknowledge that they're doing it. We're not really having a debate about this. The aged-care providers are not really admitting it's happening, although it is happening. Everyone knows it's happening.

CHAIR: I don't think we've had anyone come and say that it's not happening. We had UnitingCare before who talked about it.

Ms Burgess : They don't really want to discuss it, because the difficulty is that you're in legal limbo when you're doing it. Once you legislate, you can train people. You can acknowledge that it happens. You can train people in the best techniques. You can also talk like, 'Rather than doing this with the person, there are these alternative ways of managing them.' But the real problem with all of this is that in most cases it's going to take more resourcing to manage it. But it takes more resourcing to treat people with humanity. That's the bottom line.

So I don't think it's a case of just, 'Yes, it's unlawful.' What happens to a family who wants to make a case to the police? I'm actually starting to say to anyone who calls my office about this, 'You call the police and make a complaint, and if they have any issue they can call me, and I'll explain it to them,' because I think that, unless something like this starts to happen, we're not going to see any change. I'm aware of the case in America where a group of residents in an aged-care facility took a class action against their providers for the use of restrictive practices against them and, in particular, the use of chemical restraint: antipsychotic medications.

Sometimes you need those circuit breaker kind of events that cause people to look at things through a different lens. At the moment, the approach seems to be, 'Oh, we've got all these older people. How do we manage them?' instead of, 'What's the best quality of life they can have and how do we make that happen in the most efficient way?' We tend to look at older people as a bit of a problem we've got to sort out rather than people who should be supported to lead the most autonomous lives that they can. All of this contributes to undermining all of that and feeds into this ageist sort of view that, once you get to a certain point, you're not very useful and you're a bit of a nuisance. Restrictive practices just become the response. I don't think people want to actively do bad things to people who they're providing care to. I think a lot of people who work in these industries really do care about the people they're looking after, but, if you're there and you're running between 20 residents, trying to make sure they're eating, getting to the toilet, getting changed and getting showered, something's got to give.

The state government hasn't stepped into this space, because they don't see it as their space to step into. They could claim to have the expertise, but they certainly don't have the legal or constitutional authority to step into that space.

CHAIR: I don't understand that. Surely it's a criminal law issue.

Ms Burgess : Yes, it is, but why would they? This is regulation. It's a regulatory approach. I can understand that they don't want to regulate where the federal government is responsible for the administration of the sector. We have a national aged care industry. We do not want to have different requirements in Queensland, Victoria and New South Wales. It adds to that whole bureaucratic burden. You would have different training in different states and different reporting mechanisms. It could be done, but I don't think the state governments would do it unless they were invited to do it by the Commonwealth.

Ms Siegel-Brown : To some degree we can draw a parallel with the NDIS—and I am sure lots of people at hearings have compared the system to the NDIS—but the obvious difference is that individual clients are funded under the NDIS, as opposed to the provider or the facility. This is an issue that we have had to grapple with, though, in the NDIS. With respect to restrictive practices, what the feds and states have arrived at is that, through the Quality and Safeguards Commission in the NDIS, they are able to regulate restrictive practices only insofar as they will or won't register a provider. But the framework they have drawn on to determine whether a provider should keep, maintain or lose their registration is very much through trying to homogenise the different restrictive practice approval regimes across Australia. So, if you like, there is a measure of how it is being done.

The current position under the NDIS is that the states and territories will retain their authority over regulating restrictive practices, effectively because it is a criminal activity that is happening on their own ground. But the decision to register or unregister a provider—indeed, if you had community visitors who located unauthorised restrictive practices going on, which my guys constantly do in the disability space, it gives them somewhere to report it to. And then that somewhere, being the Quality and Safeguards Commission, can make a choice as to whether they deregister that provider. So that is, dare I say it, the low water mark for what can be achieved in this space.

Queensland has divvied up authority for regulating restrictive practices between the Queensland Civil and Administrative Tribunal, the chief executive of the Department of Communities, and myself as the Public Guardian. The regulation is shared between the Disability Services Act 2006 and the Guardianship and Administration Act 2000. I have the power to approve short-term usage of restrictive practice when someone comes into a facility and there is an immediate need to restrict behaviours because they appear to be of harm to the person or to others and there is a belief that, before long-term decisions can be made around what restrictive practices can or can't be used for, some short-term approvals need to be put in place.

There are six categories of restrictive practices: containment, seclusion, physical restraint, mechanical restraint, chemical restraint and restricted access to objects. The idea of a short-term approval is that it is only designed to cover authority to use those practices until what is called a positive behaviour support plan can be put in place. So, under the rubric of the need to reduce and eliminate restrictive practice usage wherever possible, in disability the idea is that a positive behaviour support plan will demonstrate what is going to be put in place to reduce the person's harmful behaviours to themselves or others. In fact, we know from research in the restrictive practice space in disability, of which there has been plenty, that the best time to have good preventive mechanisms is when there are no behaviours at all. Obviously, in aged care, people present with very different conditions; but they do in disability too, so the rubric under which all of this legislation operates is exactly as Mary said.

Unfortunately, there will be instances where some restrictive practices will be required. I don't like admitting it myself because I think any restrictive practice is a human rights abuse. But if somebody is wielding a knife and running around a residence, there is obviously some need to take action there. But the idea is that it is only authorised in particular instances, that it is only authorised with respect to reducing behaviours of harm. Section 80ZH of the Guardianship and Administration Act and some of the provisions in the Disability Services Act set out the best practice on how you regulate that.

CHAIR: Community visitors?

Ms Siegel-Brown : Absolutely. Community visitors in Queensland do not visit aged-care facilities by virtue of their federal—

CHAIR: I'm asking about the way your community visitors program works. Are they volunteers? Are they paid public servants?

Ms Siegel-Brown : They are not volunteers. They are the only paid community visitors in the country—in the adult space and, in fact, in the child space as well. They have a very specific remit to visit the site and inquire into human rights, adequacy of service provision and a whole range of issues facing a client in a facility. That might be not just with respect to the way the facility itself is providing services; it might be around a whole range of other things they need to advocate for in a person's life. I have to say that the term 'community visitor' sits somewhat uncomfortably with me because it sounds like they are just going in there for a bit of company and paying a visit. Actually, they have very strong powers under the Public Guardian Act 2014—

CHAIR: That is probably because there is a visitors program which does that—the companionship type programs.

Ms Siegel-Brown : That's right. In Queensland, visiting is really just a function of the advocacy of community visitors.

CHAIR: So how would it be different from the annual unannounced spot checks that the accreditation agency currently performs?

Ms Siegel-Brown : I need to make it very clear that they are not auditors—which, to some degree, I see those people doing. I will quickly run through this for you. They are paid, they are independent officers and they advocate for the implementation of human rights for each of the clients in the facility. They are regarded as the true eyes and ears of the system. They identify whether clients have any knowledge of their rights. They inquire into the adequacy of services provided for assessment, treatment and support. They inquire into the appropriateness of standards of accommodation, health and wellbeing. They inquire into the adequacy of information available for consumers and the operation of effective and accessible complaints mechanisms. They also go in and do advocacy. For example, where restrictive practices are being used inappropriately, they are the reporting mechanisms for that. They have some very strong powers under the act to obtain information, to obtain site documentation.

At the moment, they investigate whether people's NDIS plans are being implemented and people are participating in the NDIS properly. That may seem irrelevant to aged-care facilities but when you have people in their 50s in some facilities, or even younger, it isn't. They play a really important role in identifying abuse which may otherwise remain undetected in residential settings. They are considered to be the eyes and ears of the system. They are effectively the bridge to the complaints system. At the moment, they visit most facilities quarterly—facilities where I consider there is a high risk of abuse, neglect and exploitation and facilities which I think are cut off from the eyes of the rest of the world. I have the power to determine how often they visit facilities. For example, for forensic facilities, I have them visit monthly.

Mr ZAPPIA: On the community visitors scheme that you run, are they currently also visiting aged-care facilities?

Ms Siegel-Brown : No. They have no jurisdiction to do so. I just want to go back to that figure I mentioned earlier. There have been 1,931 issues, many of which were about abuse, raised by community visitors at 1,200 different sites across the state. Who would have raised those issues if not them? And many of them we have been able to resolve through escalation processes.

Mr ZAPPIA: In the time that you have been in your roles, has there been an escalation in the number of complaints about aged-care facilities made to your offices?

Ms Burgess : I believe there has been in recent times. Having worked in other complaints driven organisations, I am aware that once these kinds of issues appear in the media it does generate more complaints. That doesn't mean that there wasn't a valid basis for the complaints; it just means that people are more motivated, more driven and feel more vindicated in their concerns. I believe we are getting more complaints. We are not actually officially a complaints receiver organisation, but people are raising things with us.

People are saying some really disturbing things. They say things like, 'You can't do this to animals; you can't underfeed animals and get away with it.' A lot of people complain about their family members losing a lot of weight and not getting support at mealtimes to eat properly. I had someone say to me, 'This would be murder, except it's an old person.' I understand what they're saying here. It's technically not that, but, from their point of view, it's reaching the point, in some cases, of what could almost be interpreted as criminal neglect. And no-one's intending to do that; it's just the way things are panning out. But it's pretty shocking to some families. In Queensland—you would've heard about this, I'm sure—they had a community meeting in Bundaberg where hundreds of people turned up, upset about the levels of care in a number of nursing homes there, not just one. So, there is this sense that the community wants something better because their family members are in there, and they don't think they're getting it. They can't work out how to get it.

Ms Siegel-Brown : As for my agency, Mr Zappia, I don't receive complaints externally, but what comes to the attention of my delegate guardians as complaints against aged care—again, I'd have to give you a gut feel of what I'm seeing, and I would say it's increasing. I also made a submission to the aged-care abuse inquiry, and I know that some of the examples I gave, which I've come across only in the last year or two—I've been the public guardian for two years now—have acquired some press attention. My gut feel is: I'm seeing more and more of it from my delegate guardians. That may be because there is increased pressure on facilities. Much of it is around some pretty horrific use of restrictive practices. But I couldn't quote you a figure to say it's definitely on the rise. It's just that there's a lot more coming to my attention.

Mr ZAPPIA: This is perhaps another question that would rely on your observations more so than on fact: would it be your perception that the treatment and the care of older people in aged-care facilities today has deteriorated from what it might've been five or 10 years ago? Do you have a view about that?

Ms Burgess : From what I'm hearing from people, there is a view that that's what they're seeing with their family members. It's very difficult. I wasn't doing this kind of work five years ago, so I can't say I can compare it with what I knew then. But the fact that we're having community meetings about these things tells me that something's up. And because we don't have community visitors or independent inspectors, all we can rely on are either individual advocacy services—and some of them are fabulous; I know you heard from some of them this morning—or family members. But family members do feel very limited, and people often complain to me that, when they made a complaint, they were somehow refused entry to the nursing home. That is an absolutely routine thing. As soon as you start to rattle anyone's cage or expect a little bit more for your family member, you're punished and the family member is punished. Then it can be open slather—no-one knows what's going on if you can't visit them. Of course, they can't do this, but people don't realise that they have a right—habeas corpus in that case, but you've got to go to the Supreme Court for that, and it's a very expensive application. People feel overwhelmed and outgunned.

Mr ZAPPIA: The possible protections that you, Ms Siegel-Brown, referred to—can you very briefly tell us what you think they would be.

Ms Siegel-Brown : Absolutely. I think that it would be very easy to parallel a community visitor program across to the aged-care sector that is modelled on the way we run it here in Queensland. That sounds a bit cocky, doesn't it!

Mr ZAPPIA: So that's one.

Ms Siegel-Brown : But I wouldn't mind responding to a question that you had, Chair, that relates to this. The community visitors in Queensland are paid; they're a professional workforce. They are not public servants. They're specifically employed by me, as the public guardian, as the chief executive—

CHAIR: How many do you have?

Ms Siegel-Brown : I've got 133 across the state right now. Many of them conduct visits to children and adults, but I also have a group of community visitors who just see adults. In the adult space, they're conducting over 5,000 visits. In the child space—I'm just giving you this by way of comparison, if you were to do it—they do about 33,000 visits to kids. If you add that up, there are 38,000 visits between about 133 visitors. They're pretty stretched. But it gives you an idea of what's possible. They go to rural and remote areas. I think the legislation is very strong in that regard, and I can only see a benefit in it.

Of course, I cannot predict the aged care sector's response to the institution of community visitors with similar powers that I think go way above and beyond and outside the scope of those who currently visit. But by comparison the disability sector's response to community visitors in Queensland is very strong. They see them as the canaries in the coalmine. That's what you need here, particularly when you're talking about people who couldn't possibly necessarily verbalise complaints to any form of complaints commission. It renders the thing useless.

I think the regulation of restrictive practices is vital. I think we are able to make such a change in people's lives. I can actually be a guardian for restrictive practices here in Queensland. In the disability space I can make decisions about the usage of people's restrictive practices, as long as they don't include seclusion and containment. What you see, where the right decisions are made, where the right questions are answered around what preventative mechanisms are being put in place, is a huge reduction over time in the use of restrictive practices, in particular chemical restraint, which I think is a vital one in this space.

Ms Burgess : Can I make one point. I've recently been looking at the Aged Care Complaints Commissioner's report. They've seen significant growth in complaints, which clearly is a measure of something changing in the system. It's a good report, and I think they're doing great work, but it concerns me that we don't get a breakdown of the kinds of complaints that they're getting. We can't see what issues are emerging and what's changing or what's improving in the system if there's no reporting on the different kinds of complaints and how they're trending over time. I know there's a proposal for a new combined body, and it's really important that that, at the very least, reports on those kinds of things, because they allow you to see what's happening in the system.

CHAIR: Thank you both very much for your time today and for your participation in the inquiry. You'll be provided with a Hansard transcript of today's proceedings. If there are any corrections, please let our committee secretariat know. I don't think we asked you to take any questions on notice, did we?

Ms Burgess : No, but I'm going to send you a paper on restrictive practices.

CHAIR: That's right, yes—and any additional information you think can be usefully provided. I don't know if you have a document that summarises the community visitor program, but if you do have something—

Ms Siegel-Brown : We actually did a media release on this issue with respect to community visitors last year. I'd be more than happy to send that in.

CHAIR: That would be great. Thank you for your time.

Ms Burgess : Thank you very much for inviting us to speak.

CHAIR: At this point I declare the hearing closed.

Committee adjourned at 13:53