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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-17 Daily Xml
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Ageing and Adult Safeguarding (Restrictive Practices) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 October 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (20:42): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. All South Australians deserve compassionate treatment and care, respect and dignity in their older years. We want to know that our loved ones will be treated well if they enter an aged-care facility and that restrictive practices will only ever be utilised when there is absolutely no alternative.

The bill before us seeks to regulate restrictive practices used by prescribed aged-care service providers to older people in residential or home care. I understand that this bill was inspired by the similar restrictive practice legislation for the disability sector and that, while the work on this legislation predated the findings of the royal commission into aged care, the royal commission findings were supportive of such efforts to reduce restrictive practices. Specifically, as the Hon. Mr Darley has already noted in the council, recommendation 17 of the commission's final report stated that restrictive practices should not be used unless:

…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 the recommendation by an independent expert…with a report on the constraint to be provided as soon as practical after the restraint starts to be used.

This bill ensures that restrictive practices are confined to a limited number of instances: they must be the last resort, for the shortest possible time frame and in the least restrictive manner possible. Importantly, the legislation makes it clear that such practices cannot be used because of understaffing, a lack of appropriate resourcing, as a punitive measure or out of convenience.

The introduction in this legislation of a substantial authorisation process to enable restrictive practices means that aged-care providers are prompted to think about what other strategies might be the best available to them. It is important to note that restrictive practices refers not only to the use of physical restraints but equally to chemical restraints, the use of medications to control behaviour before other approaches have been considered and attempted.

It is abundantly clear that the Hon. John Darley and his office have spent many hours on this legislation, and we commend their efforts. While the opposition supports the principles of the legislation, and we do highly support its intent, we also note that this bill is extremely detailed in nature. We note the substantial number of very extended submissions we have received and continue to receive from various stakeholders on this bill.

The Australian Nursing and Midwifery Federation (SA Branch) flagged a substantial number of potential amendments and requests for further clarification. They raised concerns regarding the potential duplication of existing frameworks. They cite behaviour support plans, serious incident response schemes, and the National Aged Care Mandatory Quality Indicator Program as examples. They go on to highlight a substantial number of clarifying questions in relation to the bill.

The ANMF, along with the Aged Rights Advocacy Service, Council on the Ageing and Lived Experience Australia recommend the appointment of a senior practitioner role. However, concerns have been raised in relation to whether this practitioner can reasonably meet the outlined expectations within existing resourcing limitations.

Similarly, the psychological association of Australia raises concerns that staff with inadequate training attempting to manage response behaviours meet with varying levels of success. Dementia Australia, while supporting the intent of this bill, recommend clarification on clause 37S(1), and Lived Experience Australia, again while strongly supporting the intention of the bill, point out that the bill establishes an authorisation process for positive management plans ensuring transparency and accountability. They welcome this, but have concerns for its operationalisation use within everyday practice.

The Council on the Ageing, while supporting, again, the intent of the bill, have listed a number of aspects that they require further clarification on, including the fit with commonwealth legislation, the fit with the Aged Care Quality and Safety Commission and the senior practitioner role that I mentioned earlier.

SASMOA supports the principle of avoiding restrictive practices wherever possible and only using them as a last resort and for the shortest period possible. They raise concerns over the potential and unintended consequences for the Public Service in hospitals when practitioners are unable to manage the challenging behaviours of nursing home residents. SASMOA listed a number of concerns in terms of further clarification.

Suicide Prevention Australia raised concerns regarding clarity around restrictive practices where there is not a positive behaviour support plan in place. Sir—

The ACTING PRESIDENT (Hon. T.A. Franks): Sir?

The Hon. K.J. MAHER: Ma'am; I have just looked up, Madam Acting President.

The ACTING PRESIDENT (Hon. T.A. Franks): It is not the first time I have been called sir.

The Hon. K.J. MAHER: Madam Acting President, ideally this bill would have come via a government-led process, with all the support and departmental resources it brings to the drafting process, but in the absence of that we sincerely thank the Hon. John Darley and his office for bringing it to the house as a private member's bill.

It is a complex new legislative framework and needs careful consideration. The opposition, having clearly heard a variety of different feedback on this legislation about matters that need to be considered, will continue to analyse and consider the detail of the bill, given the substantial feedback we have received from stakeholders, between the houses.

I indicate that, as is not unusual practice, we are happy to support the bill in this chamber today. We are happy to support this bill in the chamber today. As I have said, ideally—

The Hon. S.G. Wade: What a joke! You are not going to do the work. You haven’t had a single voice in support of it.

The ACTING PRESIDENT (Hon. T.A. Franks): Order!

The Hon. K.J. MAHER: Ideally—

The Hon. S.G. Wade: You haven't had a single voice in support of it.

The Hon. K.J. MAHER: If the government had been willing to do something about this—

The Hon. S.G. Wade interjecting:

The ACTING PRESIDENT (Hon. T.A. Franks): Order!

The Hon. K.J. MAHER: —it would have been a much better thing to do, but in the absence of the government doing this work—

Members interjecting:

The ACTING PRESIDENT (Hon. T.A. Franks): Order!

The Hon. K.J. MAHER: —we will be supporting the Hon. John Darley.

The Hon. S.G. Wade: You are just playing games.

The ACTING PRESIDENT (Hon. T.A. Franks): Order!

The Hon. K.J. MAHER: The government does not want to support the Hon. John Darley. They often do not support crossbenchers and opposition. If it is not their idea, all too often they do not want to support it. We are not going to do that. We will support it.

The Hon. S.G. Wade interjecting:

The ACTING PRESIDENT (Hon. T.A. Franks): Order! The member will be heard in silence.

The Hon. K.J. MAHER: We are happy to look at changes between the houses and we thank the Hon. John Darley for doing the sort of work that the government has not.

The Hon. F. PANGALLO (20:49): I rise to say that SA-Best will support this bill in principle, but we do believe—

Members interjecting:

The Hon. F. PANGALLO: It can be fixed.

Members interjecting:

The ACTING PRESIDENT (Hon. T.A. Franks): Order! The member will be heard in silence.

The Hon. F. PANGALLO: We will support it in principle, but we still believe there needs to be much more work on it, and we are prepared to see where it goes between the houses. If the government has amendments or ideas to improve the bill, we will certainly look at them.

The intent of the bill is to curb the abuse of the elderly through the use of various restrictive practices, be they restraint devices or through the abuse of anti-psychotic drugs and other methods. Of course, the royal commission into ageing recommended that the use of restrictive practices in aged care must be based on independent expert assessment and subject to ongoing reporting and monitoring. It found that restrictive practices should be prohibited, unless recommended, and only used as a last resort to prevent serious harm after the provider has exhausted all avenues to mitigate harm. They should be proportionate to the risk of harm and for the shortest possible period of time.

There is a current employment crisis in aged and disabled care, but certainly in aged care. They are struggling to find enough care workers. Many are finding employment now in the disabled sector. Where there is a shortage of workers participating in aged care, it places enormous pressure on those operators and also the staff there to maintain the high standards of care that are expected. As we know, it can lead to neglect of residents and, as we continue to see, even after the royal commission, so many instances of abuse continuing. Such is the frustration that is being created because of this crisis in the aged-care sector. This should never happen.

I do appreciate and understand the enormous difficulties that can occur with residents who have complex medical conditions and needs, like dementia or psychiatric disorders. Restraints should only ever be used as a last resort, as the royal commission found. They cannot be used—and this is an area that I have highlighted to the Hon. Mr Darley, and perhaps an area that needs to be explored—without the express consent of a resident, if they are capable of making that decision, or their families or someone designated to be their power of attorney or holder of an advance care directive.

Drugging residents to the point where they are left in an almost vegetative state is reprehensible. I have been in many aged-care facilities over the years, and even more recently, and it continues to happen. I find it disturbing and I am quite alarmed when I see aged-care residents almost in a comatose state in their chair or in a lounge after they have been drugged, basically to try to calm them down.

As I mentioned, sometimes there is a necessity because these residents could be a danger to themselves and also to the staff and other residents there. But, as has been pointed out, it needs to be done, firstly, through an attempt at some kind of holistic therapy and, before they resort to drugs, specialist advice should be sought by families so that they consider any harms or benefits of taking these drugs.

One of the aims of this bill is to encourage these more holistic approaches before other methods are applied and we certainly endorse that. When you read the bill and research what has happened in other facilities with the use of restraint, what really jumps out at you is something that I have been quite passionate about since I entered parliament three-and-a-bit years ago; that is, the beneficial role that CCTV cameras in residents' rooms and in open areas can play here. Not only can they be used to alert staff to incidents requiring urgent attention or medical assistance, but they can also be used to gather evidence in the event that residents are in fact being abused. With that, we will support this bill in principle at the second reading.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (20:55): The Ageing and Adult Safeguarding (Restrictive Practices) Amendment Bill was introduced by the Hon. John Darley on 27 October. That was less than one month ago. As the Leader of the Opposition has indicated, it is complex and it needs a lot of work. The bill seeks to amend the Ageing and Adult Safeguarding Act 1995 to introduce a new scheme in South Australia for authorising the use of restrictive practices in aged care, both residential and home care settings, and includes the appointment of a senior practitioner.

The bill provides that the amendments come into effect six months from the Governor's assent. In response to the findings of the Royal Commission into Aged Care Quality and Safety, the commonwealth government has made recent changes to the Aged Care Act 1997 and the Quality of Care Principles 2014 relating to the use of restrictive practices in residential aged care and will also establish a new role of senior practitioner. In addition, the South Australian Attorney-General's Department is undertaking a project to assess and develop a uniform approach to the regulation and authorisation of restrictive practices in South Australia across all settings—aged care and beyond.

Given the significant work being undertaken in relation to restrictive practices for older people at a state and national level, further consideration of the amendment bill is required to ensure the provisions are complementary rather than duplicative of work that is already underway. Whilst the government is committed to improving the current restrictive practices authorisation process, the bill requires significant work to ensure it is workable, cost-effective and will achieve its objectives.

The opposition has detailed a range of clear advice from stakeholders, that in spite of their support for the principles they do not believe this bill is workable. But what the opposition has said today is just as they could not be bothered doing the work for Oakden, they could not be bothered to do the work on this bill. This government cannot support the bill in its current form.

The Hon. J.A. DARLEY (20:58): First of all, I would like to thank the Hon. Kyam Maher, the Hon. Rob Simms, the Hon. Frank Pangallo and the Hon. Stephen Wade for their contributions, and I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Mr Darley, the honourable Leader of the Opposition indicated that concerns had been raised with him by stakeholders such as SASMOA, Lived Experience Australia, COTA, ANMF and so on in relation to this bill. I just wonder if you have received those representations and what your response to them is.

The Hon. J.A. DARLEY: The answer to that is we have not received that correspondence.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 5, lines 9 and 10 [clause 4, inserted section 37B(4)(a)]—Delete ', or an express or implied threat that force will be used against another person'.

This amendment removes the discretionary judgement that is not needed in this legislation. It is not necessary to leave a discretionary judgement with the provider in the definition of harm. The commonwealth legislation governs any judgement a provider may make prior to the development of a positive support plan.

The use of restrictive practices under this legislation is only authorised in relation to a positive behaviour support plan, the detail of which is in accord with section 37W and will be laid down in regulations which will include guidelines.

The Hon. S.G. WADE: I ask the honourable member: considering this is a Darley amendment to a Darley bill, what was the stimulus for the need to amend his own bill?

The Hon. J.A. DARLEY: In developing this bill, we had discussions with parliamentary counsel and we also had access to a similar bill that was passed in the Australian Capital Territory. As a result of that, we needed to amend our original bill.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 5, line 11 [clause 4, inserted section 37B(4)(b)]—Delete ', or an express or implied threat of self-harm'.

Similar with amendment No. 1, it is not necessary to leave a discretionary judgement with the provider in the definition of harm. The commonwealth legislation governs any judgement a provider may make prior to the development of a positive behaviour support plan.

The use of restrictive practices under this legislation is only authorised in relation to a positive behaviour support plan, the detail of which is in accord with section 37W and will be laid down in regulations which will include guidelines.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–1]—

Page 5, lines 32 and 33 [clause 4, inserted section 37C(1)]—Delete 'in each case being an act or omission done without the consent of the person,'.

This amendment removes from the definition of 'restrictive practices' consent as an exclusion from the meaning of restrictive practices. It is not necessary nor does it add to our understanding of what restrictive practices are contained in the definition.

It does, however, insert a problem of informed consent freely given. The intention is not to allow a provider to pressure a resident or family to agree with restrictive practices so that a provider can avoid preparing a positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 4 [Darley–1]—

Page 7, lines 36 and 37 [clause 4, inserted section 37I(b)]—Delete ', or may cause,'

As with amendments Nos 1 and 2, it is not necessary to leave a discretionary judgement with a provider in the definition of harm. The commonwealth legislation governs any judgement a provider may make prior to the development of a positive behaviour support plan. The use of restrictive practices under this legislation is only authorised in relation to a positive behaviour support plan, the detail of which is in accordance with section 37W, and will be laid down in regulations which will include guidelines.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 5 [Darley–1]—

Page 7, line 40 [clause 4, inserted section 37I(c)(i)]—Delete 'is, as far as is practicable, consistent with' and substitute 'takes into account'

This amendment seeks to amend the relationship between restrictive practices and to acknowledge that human rights must be taken into account. It is understood that protection from harm is the only factor in using restrictive practices and must always be done in a manner that takes the person's human rights into account. Section 37I(c)(i) and (ii) clearly specifies this relationship.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 6 [Darley–1]—

Page 8, lines 8 and 9 [clause 4, inserted section 37I(d)]—Delete ', if possible, be done in a way that is consistent with, and in accordance with,' and substitute 'be done in accordance with'

This amendment removes any ambiguity, clearly stating that restrictive practices must be done in relation to a person's positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 7 [Darley–1]—

Page 12, line 32 [clause 4, inserted section 37R(3)]—After 'must' insert:

, in accordance with the requirements set out in the regulations,

This amendment clearly links the positive behaviour support plan being kept under review to regulations.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 8 [Darley–1]—

Page 12, line 43 [clause 4, inserted section 37R(5)]—Delete 'as soon as is reasonably practicable' and substitute 'within 24 hours'

This amendment ensures that any variation or revocation of the positive behaviour support plan must be notified to the senior practitioner within 24 hours.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 9 [Darley–1]—

Page 13, line 2 [clause 4, inserted section 37S(1)]—Delete 'may' and substitute 'must'

This amendment ensures that the aged-care provider must apply to an accredited approval panel for approval of a positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 10 [Darley–1]—

Page 13, after line 5 [clause 4, inserted section 37S]—Insert:

(1a) A prescribed aged care service provider who, without reasonable excuse, refuses or fails to comply with subsection (1) is guilty of an offence.

Maximum penalty: $5,000.

This amendment inserts a penalty for a provider not complying with the requirement to apply to the accredited approval panel.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 11 [Darley–1]—

Page 13, line 16 [clause 4, inserted section 37S(3)(b)]—After 'granted' insert:

(or such shorter period as may be specified in the approval)

This amendment stipulates that an approval of a positive behaviour support plan for 12 months from approval can also be for a shorter period.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 12 [Darley–1]—

Page 14, line 17 [clause 4, inserted section 37U(1)]—Delete 'may' and substitute 'must'

This amendment ensures that the aged-care provider must apply to the senior practitioner for registration of a positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 13 [Darley–1]—

Page 14, after line 20 [clause 4, inserted section 37U]—Insert:

(1a) A prescribed aged care service provider who, without reasonable excuse, refuses or fails to comply with subsection (1) is guilty of an offence.

Maximum penalty: $5,000.

This amendment inserts a penalty for a provider not complying with the requirement to apply to the senior practitioner for registration of a positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 14 [Darley–1]—

Page 14, lines 31 to 40 [clause 4, inserted section 37V]—Delete inserted section 37V

This amendment deletes the general provisions, as they are not necessary. The provider would be following the process laid out for the preparation and authorisation of a positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 15 [Darley–1]—

Page 15, line 17 [clause 4, inserted section 37W(3)]—After 'person' insert:

in accordance with the person's positive behaviour support plan

This amendment makes clear that restrictive practices mentioned in this subclause are in accordance with the person's positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 16 [Darley–1]—

Page 15, lines 21 to 23 [clause 4, inserted section 37W(3)(b)]—Delete 'for as long as is reasonably necessary to prevent the prescribed person from causing harm to themselves or others' and substitute:

no longer than is reasonably necessary to prevent the prescribed person from causing harm to themselves or others, in accordance with the person's positive behaviour support plan

This amendment puts the proposition of the length of time a restrictive practice may apply in the positive assertive form and in any case in accord with the person's positive behaviour support plan.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 17 [Darley–1]—

Page 16, after line 14 [clause 4, inserted section 37X]—Insert:

(3) To avoid doubt, nothing in this Part provides protection to a prescribed aged care service provider who uses restrictive practices in relation to a prescribed person other than in accordance with the prescribed person's positive behaviour support plan.

This amendment inserts a provision making clear that no protection is given to a provider who uses restrictive practices other than in accordance with a person's positive behaviour support plan. Although commonwealth legislation provides guidelines for a provider in the area of restrictive practices, this bill requires a provider to report to the senior practitioner within 24 hours and no protection is given to the provider in this process.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 18 [Darley–1]—

Page 17, lines 4 to 20 [clause 4, inserted sections 37ZA and 37ZB]—Delete inserted sections 37ZA and 37ZB

This amendment deletes sections 37ZA and 37ZB, which refer to the NDIS and are not particularly relevant to the operation of this act. The senior practitioner will be able to use his discretion to notify other parties without the insertion of these sections.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 19 [Darley–1]—

Page 21, line 7 [clause 4, inserted section 37ZM(2)]—Delete '12' and substitute '3'

This amendment changes the number of sitting days after the annual report is received by the minister before the minister must table in parliament. This is to enable the report to be tabled in the same calendar year.

The Hon. S.G. WADE: If I can speak on this amendment, I would like to thank the Hon. Mr Darley. On reflection, he has made 19 amendments to his own bill without access to a range of stakeholders the opposition had access to, and his amendments do improve his bill. I think it does reflect on the laziness of this opposition, that they had a range of strong advice from stakeholders that there were serious operational issues with this bill—from SASMOA, from ANMF, from Aged Rights Advocacy Service (ARAS) and Lived Experience Australia—

The Hon. K.J. Maher: And what did you do? What amendments did you move?

The CHAIR: Order, the Leader of the Opposition!

The Hon. S.G. WADE: —and they could not even be bothered—

The Hon. K.J. Maher: You did not even have one amendment.

The CHAIR: Order!

The Hon. S.G. WADE: —to have one amendment to this bill.

The Hon. K.J. Maher: You did not even move a single amendment.

The CHAIR: Order, Leader of the Opposition!

The Hon. S.G. WADE: A lazy opposition that has no commitment to improving aged rights.

The CHAIR: I will call the Leader of the Opposition.

The Hon. K.J. MAHER: I will calmly reflect upon on the facts, sir.

The Hon. S.G. Wade: Lazy, lazy.

The CHAIR: Order! The minister is out of order.

The Hon. S.G. Wade: Oakden all over again.

The CHAIR: Order! The Minister for Health and Wellbeing is out of order.

The Hon. K.J. MAHER: It is well out of order, sir. It is quite embarrassing is it not, sir?

The CHAIR: No; I will make those judgements.

Members interjecting:

The CHAIR: Order! The leader has the call.

The Hon. K.J. MAHER: I am not really sure what has got into the 'minister—

The CHAIR: Order!

The Hon. K.J. MAHER: —for wealth and hellbeing' tonight, sir, but it is quite unbecoming. I will just point out that the Minister for Health and Wellbeing talks about the opposition not having moved amendments. The government themselves have whole departments to look at this—

The Hon. S.G. Wade: And we are doing the work. We are working on it. We are not doing a botched job.

The CHAIR: Order!

The Hon. K.J. MAHER: —and, sir, I do not think they have moved many amendments either. It is a curious thing that the government would seek to outsource the work that they might do, with all their departments and hand them to the opposition. But I can understand if the government—

The Hon. S.G. Wade: Why talk to stakeholders?

The CHAIR: Order! The Minister for Health and Wellbeing is out of order.

The Hon. K.J. MAHER: —do not wish to do that, that is their business.

The Hon. S.G. Wade: What's the point? Why talk to stakeholders when you won't move amendments?

The CHAIR: Order, minister!

The Hon. R.P. Wortley: It's outrageous.

The CHAIR: The Hon. Mr Wortley is out of order as well. I am going to put—

Members interjecting:

The CHAIR: Order! I am going to put the question that the amendment be agreed to.

Amendment carried.

The Hon. S.G. Wade: Oakden all over again.

The CHAIR: The Chairman is talking.

The Hon. R.P. Wortley: You shirk your responsibilities.

The CHAIR: Order! The Hon. Mr Wortley should know better, having sat in this place. The question now is that clause 4 as amended be agreed to.

Clause as amended passed.

Title passed.

Members interjecting:

The CHAIR: Order! The President is on his feet.

Bill reported with amendment.

Third Reading

The Hon. J.A. DARLEY (21:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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