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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2022-02-10 Daily Xml
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Aged Care

The Hon. J.A. DARLEY (16:48): I move:

That this council—

1. Acknowledges, as a matter of the highest priority, the protection of the human rights of the frail aged;

2. Affirms, as a compassionate society, the need to fully support and protect the frail aged as some of our most vulnerable citizens;

3. Acknowledges the around-the-clock care many South Australians provide their elderly loved ones;

4. Acknowledges the necessity of residential aged care for many and the need for fully resourced and quality regulated services delivered by the aged-care sector;

5. Calls on the government to commit to the complete implementation of recommendation 17 of the comprehensive $100 million Royal Commission into Aged Care Quality and Safety;

6. Acknowledges the passing in this chamber of a private member's bill that implemented item 5 above; and

7. Expresses its disappointment that the responsible minister and the South Australian government have not been able to achieve this human rights protection in this term of government and urges all parties to commit to the above goal in the next term of parliament.

Recommendation 17 of the Royal Commission into Aged Care Quality and Safety recommended that in relation to the use of restrictive practices the principle must be that the treatment of people receiving aged-care services is consistent with the treatment of other members of the community. This is about basic human rights being protected and upheld for the frail aged, one of our most vulnerable groups.

The royal commission recommended that the use of restrictive practices in aged care must be based on an independent expert assessment and subject to ongoing reporting and monitoring; that is, restrictive practices should be prohibited, unless recommended by an independent expert accredited for the purpose as part of a behaviour support plan reviewed quarterly by the expert, with reports on implementation of the behaviour support plan being provided on a monthly basis.

There was also provision, 'where necessary, in an emergency to avert the risk of immediate physical harm'. The response by the federal government was to enact provisions for 'strengthening providers' and 'independent oversight for aged-care consumers to minimise the use of constraints' and to 'fund training and support services to support aged-care providers in better management of behavioural and psychological symptoms of dementia'.

The point of intervention for the federal government was via its regulation and licensing powers in relation to aged-care providers. Whilst well and good, it was not inserting the requirement from the royal commission that restrictive practices would be prohibited unless an independent expert made an independent assessment in accordance with a behaviour support plan.

I introduced a bill to protect and safeguard human rights of the frail aged. Delays in addressing human rights continue to impact on their lives, particularly in residential care, but also those receiving home care packages. Further safeguards and protections under the Ageing and Adult Safeguarding (Restrictive Practices) Amendment Bill would have provided significant protections. It is a tragedy for the frail aged that the bill was not passed.

Systemic reform in the aged-care sector is past overdue. Significant support and further regulation for our aged-care sector is important. Parliament was able to expedite consideration of legislation when it considered it necessary, evidenced by the 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.

The need for my bill was driven by the $100 million aged-care royal commission—recommendation 17, regulation of restraints—and the absence of the South Australian government preparing appropriate legislation. It took months for the bill to be prepared and then a delay while the policy in the draft bill needed to be properly addressed before its final presentation to this chamber very late in the parliamentary session. It also required that I introduce a further 19 amendments for the intent of the bill to be properly addressed after extensive interaction with parliamentary counsel. Unfortunately, the window for the bill to be considered in the other place closed.

Labor received submissions from a number of organisations they sought comment from. Labor provided these submissions to my office and face-to-face meetings and phone discussions with most were undertaken. Each was provided with a written response. Most of the issues arose from a copy of the bill, before the 19 amendments being sent to these organisations. I am satisfied that the bill I proposed is sound and it has stood the test of scrutiny by these organisations.

No amendments were offered by other honourable members, and the parliamentary debate between the major parties was not very enlightening. Both criticised each other for not preparing any amendments. There was no positive statement from the government's speech on my bill to indicate that they had conducted any real investigation or developed state measures to address practices in the aged-care sector.

It was some six months after the final report of the $100 million royal commission and the commonwealth government response to recommendation 17. It was also more than six months since I raised in the council in response to the NDIS restrictive practices the need to extend these safeguards and protections to other vulnerable groups, and particularly the frail aged. Government inaction dates from the Governor's speech on 3 May 2018:

In the wake of Oakden, my government will introduce legislation to provide legal safeguards for adults who are vulnerable to abuse or neglect.

It is not surprising, with the introduction of my bill the day before on the Tuesday, that the Minister for Health and Wellbeing took a government question:

Will the minister please update the council on what the government is doing to protect vulnerable South Australians?

The minister drew attention to the Adult Safeguarding Unit, which deals after the fact in responding to complaints. That is not what was implied in the statement in the Governor's speech, but would have been addressed in my bill.

I issued a media release on 29 April 2021 titled 'Broadening groups who will have legislative safeguards against restrictive practices'. I asked the Minister for Human Services a question on May 11. Her answer was unclear and ultimately not delivered in the months that have followed. The minister stated:

It certainly is the intention of the government to implement the legislation he has identified to minimise the use of restrictive practices. We agree with him that it can be a breach of human rights. Some practices have taken place in previous times because it was at the convenience of the providers and the like. We certainly are of the view that restrictive practices should be minimised. They should only be used for the safety and wellbeing of the person who is under the restrictive practice and/or other people who are around them.

It's been tasked to the Attorney-General to manage the overall process. We wanted to make sure that this legislation was introduced and implemented, because South Australia has been behind in terms of its legislation. Without the legislation that is currently before the assembly there are a lot of practices that take place that are actually unlawful, and for that reason a very large amount of reporting goes to the Quality and Safeguards Commission as part of their collection of information. So it is in process.

I can seek a response from the Attorney in terms of the time frame, but it is something that the government has been working on for quite some time with a range of representatives from most of those agencies that I have identified where restrictive practices take place. It's something that's very front of mind for us and is a very large work in progress at this stage.

On the basis of checking from my office with the minister's office, and receiving the advice that the minister did not intend to provide any further information arising from my questions, I decided to prepare my own bill. Following the outcome of the royal commission, and the federal government response in their legislation, I issued instructions to parliamentary counsel at the end of June.

A detailed modified bill on aged-care restrictive practices, based on the ACT Senior Practitioner Act 2018, was presented to parliamentary counsel. Unfortunately, it took until 8 October to receive the work in a very different form and further time to communicate with parliamentary counsel to ensure essential points were not compromised. I had sought not to be overly critical of the government record or progress in this space in the hope that the government may cooperate with my bill or prepare their own legislation vital to the human rights of the frail aged.

Following the second reading speeches in this chamber, in proposing to have the bill introduced by the member for Florey in the other place, I put forward the suggestion to extend the date of operation in the bill from six months until 3 January 2023. This would have allowed the abysmal intergovernmental relations in the aged-care area to be harmonised, to the best extent possible, the all-important regulations and guidelines to be completed with the involvement of all the key players and for the aged-care sector with its 'profit model' to prepare.

The submissions received and meetings I had did not point to the need for further amendments to the bill. My bill dovetailed into the commonwealth's legislative regime, filling the gaps to provide more comprehensive human rights protections. However, the need for extensive involvement of the aged-care advocacy bodies and the aged-care sector in the regulations and guidelines is definitely indicated and will be the responsibility of the executive government and parliamentary oversight of the regulations. It is not appropriate at this time to again discuss in detail the provisions and structure of my now lapsed bill.

However, I ask the chamber to support my motion and, particularly, to express its disappointment that the responsible minister and the South Australian government have not been able to achieve this human rights protection for the frail aged in this term of government, and I urge all parties to commit to the above goal of introducing the much-needed legislation in the next term of parliament.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:01): The Marshall Liberal government has a strong commitment to supporting South Australians to age well and to age safely. The Marshall Liberal government established the Adult Safeguarding Unit to respond to reports of abuse or neglect of adults vulnerable to abuse. The ASU responds to the Closing the Gaps report, which is subtitled 'Enhancing South Australia's response to the abuse of vulnerable older people'. The lead author was Professor Wendy Lacey. It led to a national first legislation to safeguard adults and was delivered in the first 100 days of this government.

We are undertaking an Australian first trial to assess the use of CCTV in aged-care facilities. We are working diligently to implement the recommendations of the Oakden oversight committee and the Royal Commission into Aged Care Quality and Safety. The government undertook an audit of all state-run aged-care facilities to ensure quality and safety.

The government has delivered a vision for ageing well over the next five years called South Australia's Plan for Ageing Well 2020-2025. The plan will provide a mechanism for SA Health to implement reforms that are consistent with the commonwealth government's response to the royal commission. In addition, the SA Health regional aged-care strategy has been developed by the department in partnership with the six regional local health networks. It will provide strategic direction for aged-care services to ensure high-quality contemporary aged-care services.

The honourable member's motion refers to his private member's bill, and I just wanted to highlight some of the concerns that the government has in relation to the bill. Of course, the commonwealth government has primary regulatory and funding responsibility for aged-care services. Following the Royal Commission into Aged Care Quality and Safety, the commonwealth government has made changes to the Aged Care Act and Quality of Care Principles 2014 relating to the use of restrictive practices in aged care and will also establish a new role of senior practitioner.

In South Australia, the Attorney-General's Department has been undertaking a project to assess and develop a uniform approach to the regulation and authorisation of restrictive practices in South Australia across all settings. Given the significant work being done in relation to restrictive practices for older people, at both a state and national level, it is the government's view that further consideration of the honourable member's proposal is required to ensure the provisions are complementary rather than duplicate the work already underway.

For example, the bill requires a senior practitioner to be appointed by the Governor, who would be accountable to the parliament and independent of direction and control by the minister for establishing and implementing a scheme for the authorisation of restrictive practices in aged-care settings, but it is unclear how this role would interface with a national senior practitioner for restrictive practices.

Currently, approval for the majority of restrictive practices is sought via an order from the South Australian Civil and Administrative Tribunal. The bill is not clear on the interaction between the proposed new scheme and the role of SACAT in authorising the use of restrictive practices under section 32 of the Guardianship and Administration Act, increasing potential for further confusion in the sector.

It is the government's view that the scheme proposed in the bill is not workable in its current form and risks duplicating existing systems at both the national and state level. While there is value in considering improvements to the current authorisation process, the bill requires significant work and consultation to ensure it is workable, cost-effective and will achieve its objectives.

Debate adjourned on motion of Hon. N.J. Centofanti.

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