Aged care advocates and the Australian Lawyers Alliance are calling on politicians to urgently remove the clause in the proposed aged care legislation – the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 – that provides civil and criminal immunity to aged care providers.
“Like the rest of the community, aged care residents must retain the right to seek justice for a wrongdoing,” says Rodney Lewis, spokesperson for the Australian Lawyers Alliance (ALA), author of the text Elder Law in Australia and practising solicitor specialising in elder and aged care law.
“The current aged care bill includes a clause that will unfairly strip legal rights away from aged care residents in situations involving the use of restrictive practices. It was not a recommendation of the Royal Commission nor of the Commonwealth in its response to the Royal Commission’s recommendations. This clause must be removed before the bill is passed.
“It is an appalling idea to give more power to aged care providers, many of whom have a long and well-documented track record of neglect, poor treatment and abuse of the people in their care – particularly in relation to the use of restrictive practices. People who have been abused should always be able to access their common law rights, regardless of where the abuse occurred.”
Schedule 9 of the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 offers aged care providers immunity against criminal charges and civil claims if the provider complies with the restrictive practices’ obligations in the Quality of Care Principles. These obligations and standards have not yet been fully elaborated.
The Bill seeks to address an apparent concern – voiced by the former Government when attempting to pass similar legislation in the previous parliament – that, due to different models of legislation in some states and territories, there is uncertainty identifying who has the lawful authority to consent to restrictive practices.
“Immunity removes the basic legal and human rights of residents which has serious – and unprecedented – social, policy, legal and human rights consequences,” said Mr Lewis.
“Providing one particular sector of the business community with immunity from criminal charges, which can result in penalties of up to 10 years imprisonment, and civil claims in return for compliance with regulations made under an act of parliament signals a new and serious blow to upholding the rule of law.
“Offering immunity to commercial businesses is unprecedented. Many aged care providers are ‘for-profit’ and some are publicly listed companies.
“A possible solution is the offer of an indemnity, rather than an immunity. Such a solution would be workable based on the history of claims arising from unlawful restrictive practices in aged care. The number of recorded cases over the last 25 years is probably as little as half a dozen and not all were successful for the complainant.
“There are previous examples of such indemnity schemes – most recently the indemnity scheme offered by the former Federal government for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.
“In order to avoid the legal and constitutional challenges to the immunity proposal, the indemnity scheme may be vastly more acceptable, reasonable and preferable for all parties to the debate. It would also ensure that the government’s determination to reform the aged care system proceeds without stalling.”
The ALA has been working alongside other aged care advocates such as Dr Sarah Russell, Aged Care Matters to call on politicians to properly consider the consequences of Schedule 9 in its current form. The Bill is currently before the Senate having been introduced into the House of Representatives last Thursday.