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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-27 Daily Xml
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Ageing and Adult Safeguarding (Restrictive Practices) Amendment Bill

Introduction and First Reading

The Hon. J.A. DARLEY (19:46): Obtained leave and introduced a bill for an act to amend the Ageing and Adult Safeguarding Act 1995. Read a first time.

Second Reading

The Hon. J.A. DARLEY (19:47): I move:

That this bill be now read a second time.

This bill regulates restrictive practices used by prescribed aged-care service providers to aged persons in residential care or home care provided under the commonwealth Aged Care Act 1997. The bill establishes an authorisation process for positive behaviour management plans ensuring transparency and accountability.

Restrictive practices are only to be used in limited circumstances as a last resort in the least restrictive way and for the shortest possible time. Restrictive practices are to be limited to circumstances where a person may be at risk of harm to themselves or others. Restrictive practices must be consistent with a person's human rights and proportionate and balanced between the level of risk of harm and the negative consequences arising from the restrictive practices.

Restrictive practices must be undertaken in a manner that maximises the opportunity for positive outcomes and aims to reduce or eliminate the need for their use. Restrictive practices must never be used as a punishment or for the convenience of others. Similarly, restrictive practices must not be used to address inadequate staffing levels or lack of adequate equipment or facilities.

The object of the bill is to bring about a change in community thinking, including amongst aged-care providers, by providing a framework for the significant reduction in the use of restrictive practices by means of a robust authorisation process. A person's positive behaviour plan will ensure restrictive practices are avoided wherever possible and then only used as a last resort for the shortest period possible, with a strategy in place to reduce the need for such practices over time.

The act specifically excludes providing any protection for prescribed aged-care providers who use restrictive practices outside of the authorised positive behaviour plan. However, where a provider uses a restrictive practice, pursuant to the commonwealth Aged Care Act 1997, they must, under the provisions of this bill, within 24 hours provide a report to the senior practitioner.

I would like to acknowledge advice received from Professor Richard Bruggemann, SA Senior Australian of the Year, who has extensive experience in the field and is a noted expert. Dementia Australia, in their submission to the royal commission on people with a disability in August 2020, addressed the overuse of the restraints on people living with dementia, especially in residential aged care, and how to minimise the use of restrictive practices. Dementia is the leading cause of disability in older Australians. The inappropriate use of chemicals and restraints for symptom management rather than effective non-pharmacological alternatives was noted by Dementia Australia. I quote:

The overuse and inappropriate use of chemical restraint (commonly antipsychotics, psychotropics and sedatives) on people with dementia is all too common in residential aged care. It is estimated that just over half of people living in residential aged care are receiving antipsychotic medications and about 80% of those people have dementia.

It is disturbing to read that half of the residents in residential care are receiving antipsychotic medicine, with Dementia Australia pointing out that clinical guidelines indicate that such drugs should be prescribed only after non-pharmacological approaches have been attempted. The widespread use of antipsychotic medicine, before non-pharmacological alternatives are explored, continues.

Physical restraint in residential care facilities is also widespread, ranging from 12 per cent to 49 per cent. Practices of physical restraint include bed boundary markers; deep chairs; lap belts; hand mitts; seat belts or leg, wrist or ankle restraints; and removal of mobility aids or restriction of a person to a locked area or secure ward. The impacts include humiliation, loss of freedom and feeling trapped, depression, withdrawal, stress and agitation, increased risk of falls from struggling to get free, decreased mobility and weakened muscles and pressure ulcers.

Dementia Australia outlines the need to take a holistic and person-centred approach, including high-quality communication with every individual, and suggests the possibility that increased pressure on the aged-care workforce is manifesting in the overuse of restraints. It is imperative, according to Dementia Australia, that psychosocial and non-pharmacological therapeutic approaches, rather than physical and chemical restraint, are used as a first measure to manage behavioural symptoms of dementia.

This bill seeks to address the inappropriate overuse of physical and chemical restraint on people in aged care, identified by Dementia Australia, and the solution of what needs to be done to ensure the restraint is only used as a very last resort. The prevalence of restrictive practices in residential aged care is one of its worst aspects. The Australian government response to the final report of the Royal Commission into Aged Care Quality and Safety was delivered in May this year. Recommendation 17: Regulation of restraints, dictated that restrictive practices should be prohibited unless, and I quote:

…recommended by an independent expert…as part of a behaviour support plan…and reviewed quarterly by the expert…when necessary in an emergency to avert the risk of immediate physical harm, with any further use subject to recommendation by an independent expert…with a report [on the constraint] to be provided as soon as practicable after the restraint starts to be used.

The federal government response was to introduce legislative measures in May, which:

…clarifies the requirements approved providers must meet in relation to use of restrictive practices. Through these tighter requirements, approved providers will only be able to apply restrictive practices [in accord with certain principles].

It remained for the states to complete the next steps and require an authorisation process to oversee positive behaviour management plans, where restrictive practices are necessary in individual cases.

In late April, with the Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill before the Legislative Council, I noted in a media release that residents in residential care facilities also needed strong safeguards against practices that violated their rights and best interests. I noted that South Australia had a tragic history in both aged-care facilities and delivery of services in the home. I pointed out that regulating restrictive practices in aged care should lead to outcomes of higher staffing levels, including 24-hour nursing, and address community concern and disquiet about the level of control over practices and quality of care in residential care and in-home services.

In early May, in a media release, I noted with the successful passage of the voluntary assisted dying legislation the time was right to consider further systemic reform to improve options available to people, including the review of the successful functioning of the palliative care system and ongoing investment; enhancing the opportunities of the frail aged, and those with severe disabilities, to have a maximum level of independence; and a more highly regulated and resourced residential care sector that can provide a more acceptable option for those facing the need of these services.

I pointed out that fears over loss of independence and facing unattractive alternatives had led to several public cases of people heading overseas to use more liberal laws to end their lives. There was a collective social shame felt by many that enough may not have been available to these people. There is also a fear we may in the future also confront similar circumstances. People worry about being a burden to loved ones or facing an unattractive or poorly resourced residential care system with inadequate controls and lacking close supervision. Systemic reform is needed, including the provisions of this bill to improve services and their delivery, and to make options more acceptable to those needing extensive support in aged care.

Nearly 90,000 South Australians who are in residential care or receive home care will be subject to the provisions of this bill. Nearly 30,000 people are permanently in residential care or receive respite care. As a compassionate society, one measure is how well we support and protect our vulnerable citizens. It is with deep regret that I introduce this legislation so late in the parliamentary term, having waited several months in the queue with parliamentary counsel. My office has been particularly focused on this legislation, with one member coming out of retirement to assist after having supported a centenarian parent until her death.

The around-the-clock care many South Australians provide their elderly loved ones is acknowledged. The additional number of South Australians who need the services of residential care for their loved ones is also acknowledged. Those staff who provide the services for our elderly is also acknowledged. But, above all, some 30,000 residents of aged residential care in South Australia really do need to be acknowledged by our support.

Who better than I in my 85th year to introduce this legislation and draw attention to the urgent need for it to proceed as one of our highest priorities. As I have already stated, we considered voluntary assisted dying legislation earlier this year, with some having conscientious concerns about the slippery slope that such legislation may provide. I would expect those members would enthusiastically support this bill.

Systemic reform in the aged-care sector is past overdue. Significant support and further regulation for our aged-care sector is important. I note a bill on requiring a review of palliative care is proceeding through parliament. All these reforms and more, I would argue, are important to those members of parliament who want safeguards and improvements for those who unfortunately face unattractive end-of-life options.

Parliament has been able to expedite consideration of legislation when it considers it necessary, evidenced with the recent ICAC legislation. I would argue that the need for these protections for one of our most vulnerable group of citizens is of the highest priority. I commend the bill to the house.

Debate adjourned on motion of Hon. J.S. Lee.

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