The Morrison Government is proposing astounding discrimination against vulnerable aged care residents

24th Mar 2022

When our Parliament is presented with a Bill which removes fundamental rights and liberties from a discrete cohort of Australians only, a cacophony of objections may be expected. In this case, however, the victims have no voice.

In the Foreword to the Australian Government’s Response to the Royal Commission into Aged Care Quality and Safety, the three Ministers responsible formed themselves into a small chorus to exclaim: ‘Respect for senior Australians is, and must be, a national priority. Out of respect comes all that we value in the care of our ageing loved ones: dignity… and safety.’

Just 6 months later, a Bill containing a measure nothing short of astounding for its discrimination against aged care residents was introduced in the Senate with the effect of removing, by an offer of immunity to the Providers, the most basic legal rights which all other Australians enjoy.

The long title to the Bill is the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021. The Bill inserts a new s 54-11 into the Aged Care Act 1997:

‘54-11 Immunity from civil or criminal liability in relation to the use of a restrictive practice in certain circumstances

(1) This section applies if:

(a) an approved provider provides aged care … to a care recipient; and

(b) a restrictive practice is used in relation to the care recipient; and

(c) the care recipient lacked capacity to give informed consent to the use of the restrictive practice.

(2) A *protected entity is not subject to any civil or criminal liability for, or in relation to, the use of the *restrictive practice in relation to the care recipient if:

(a) informed consent … was given by a person or body specified in the Quality of Care Principles … and

(b) the restrictive practice was used in the circumstances set out in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f).’

The qualifier upon which the immunity depends is Provider compliance with the Quality of Care Principles – which is of no comfort at all, since overwhelming non-compliance with the Quality of Care Principles was a leading issue resulting in the appointment of the Royal Commission into Aged Care in the first place.

The rationale made out by the Department of Health that consent is very hard to understand and to achieve from the lawful representative of the person because of differing state and territory laws is specious. The problem of lack of knowledge among aged care Providers is something which has been around for decades and pre-dates the Aged Care Act. To meet that ignorance with immunity as the solution is no solution at all.

This offer of immunity was not recommended by the Royal Commissioners, neither was it referred to in the Commonwealth’s Response. It comes as a surprise package with minimal opportunity for public debate.

Commonwealth overreaching its constitutional powers

This particular Bill has many underlying faults, not the least of which is it appears to represent a serious example of constitutional overreach by the Commonwealth.

What is happening is the granting of immunity to privately owned as well as not-for-profit businesses – both of which receive funds from the Commonwealth. Some are even listed on the ASX. It is unprecedented as a protective measure to the private sector.

Moreover, extending immunity from civil claims and criminal prosecutions to aged care providers is an astonishing favour to a discrete part of the private sector. Not only that, but removing from the most vulnerable in our community their fundamental rights, which this Bill does, is a breathtaking assault on the rule of law.

The offer of immunity in this instance is quite likely beyond the constitutional authority for the Commonwealth, not the least reason for which is that the legal recourse for which immunity is granted is almost entirely affecting state laws.

International human rights covenants

No international covenant to which Australia is a party authorises a grant of immunity from claims and prosecution to commercial interests or businesses. Quite the contrary, as Australia has ratified the International Covenant on Civil and Political Rights [ICCPR], and its Optional Protocol. The latter permits complaints on breaches of the Covenant to be made, once local litigation has been exhausted, directly to the UN Human Rights Committee.

In this case what we have is the ‘right to liberty’ [Article 9] being expressly denied to aged care residents by Commonwealth legislation. The right historically springs from the common law developed in the centuries since Magna Carta, including the basic remedy supporting every Australian’s right to be free, of a writ of habeas corpus. This is what is at risk because of the discriminatory provisions of the Bill in its miserable 9th Schedule. Is this what the Ministers consider dignity and respect?

The proposed Immunity

The legal matters from which Providers are to be immune include both civil claims and criminal charges.

There are many potential civil claims which arise out of the application of unlawful restrictive practices. First the centuries-old claims for intentional torts: assault, battery and false imprisonment.

Immunity from civil claims must also include claims for breach of contract, since every intending resident must be offered a contract.

Finally, the Australian Consumer Law contains within it, potential for claims arising from the delivery of services. These include unconscionable conduct, that no force to be used in delivery of services [s.50], that services are delivered with due care and skill [s.60], that services are fit for purpose [s.61] and the popular claim for misleading conduct. In the aged care context that may mean a promise to ensure the resident’s safety and wellbeing, eventually followed by locked wards, isolation, or chemical restraint.

This is an edited version of an article first published by Pearls and Irritations: John Menadue’s Public Policy Journal

Rodney Lewis has been a practising solicitor in Sydney for 50 years. In the late 1990s, Rodney jointly initiated and lectured students in the first course in Elder Law in Australia, at the University of Western Sydney. He also authored the first text on the subject, Elder Law in Australia, Lexis Nexis, with a second edition in 2011. Rodney has delivered many seminars to the legal profession and others in elder law since about 2000. Rodney has promoted significant reform in elder abuse and in the aged care system.

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Royal Commission into Aged Care Quality and Safety Rodney Lewis Aged Care Act