Aged care amendment (Security and protection) Bill 2007
THE INQUIRY
1.1
The Aged Care Amendment (Security and Protection) Bill 2007 was
introduced into the House of Representatives on 8 February 2007, passed
the House on 15 February and was introduced into the Senate on 26 February 2007.
On 8 February 2007, the Senate, on the recommendation of the Selection of
Bills Committee (Report No. 2 of 2007), referred the Bill to the Community
Affairs Committee (the Committee) for report.
1.2
The Committee received 15 submissions relating to the Bill and these are
listed at Appendix 1. The Committee considered the Bill at a public hearing in Canberra
on 1 March 2007. Details of the public hearing are referred to in
Appendix 2. The submissions and Hansard transcript of evidence may be
accessed through the Committee’s website at https://www.aph.gov.au/senate_ca .
THE BILL
1.3
The purpose of the Bill is to amend the Aged Care Act 1997 to
provide new measures to protect aged care residents, including:
- a regime for compulsory reporting of physical and sexual assaults
of people in aged care;
- protections for approved providers and staff who report assaults
of people in aged care;
- establishment of complaints investigation arrangements through new
Investigation Principles; and
- establishment of the Aged Care Commissioner to replace the existing
Commissioner of Complaints.
Compulsory reporting
1.4
In the Bill a 'reportable assault' is unlawful sexual contact,
unreasonable use of force, or assault specified in the Accountability
Principles and constituting an offence against a law of the Commonwealth or a
State or Territory that is inflicted on a person receiving Commonwealth funded
residential aged care services. If an approved provider receives an allegation
of, or starts to suspect on reasonable grounds, a reportable assault, the
approved provider is responsible for reporting the allegation or suspicion as
soon as reasonably practicable and in any case within 24 hours. The report
must be made to a relevant police officer and to the Secretary.
1.5
The proposed provisions outline an exception to this responsibility on
approved providers in the circumstances (if any) specified in the
Accountability Principles. The Department of Health and Ageing's Explanatory
Guide to the Bill states that this exception 'is intended to deal with very
specific and sensitive circumstances – such as assaults carried out by
residents with a mental impairment'.[1]
1.6
The proposed amendments define 'staff member' as an individual who is
employed, hired, retained or contracted by the approved provider (whether
directly or through an employment or recruiting agency) to provide care or
other services. Approved providers are responsible for taking reasonable
measures to require each of their staff members, who suspects on reasonable
grounds that a reportable assault has occurred, report the suspicion as soon as
reasonably practicable to one or more of the following: the approved provider;
one of approved the provider's key personnel; another person authorised by the
provider to receive reports of suspected reportable assaults; a police officer;
or the Secretary.
Protections for those who report
1.7
A disclosure of information by a person qualifies for protection under proposed
sub-section 96-8(1) if:
- the discloser is an approved provider or a staff member of an
approved provider;
- the disclosure is made to: a police officer, the Secretary, the
approved provider, one of the approved provider's key personnel or another
person authorised by the provider to receive reports of alleged or suspected
reportable assaults; and
- the discloser reveals their name and the disclosure is made in
good faith.
1.8
If a person makes a protected disclosure they are not subject to any
civil or criminal liability for making the disclosure and no contractual or
other remedy may be enforced against the person on the basis of the disclosure.
The person making a protected disclosure has qualified privilege in proceedings
for defamation and is not liable to an action for defamation relating to the
disclosure. A contract to which the person is party may not be terminated on
the basis that the disclosure constitutes a breach of contract.
1.9
If a court is satisfied that a person has made a protected disclosure
and that person's contract of employment has been terminated on the basis of
the disclosure, the court may order that the person be reinstated or paid an
amount by the employer.
1.10
A person must not cause detriment (by act or omission) to, or make a threat
(whether express or implied or conditional or unconditional) to cause any
detriment to, another person because they have made a protected disclosure.
1.11
Approved providers are also responsible for ensuring, as far as
reasonably practicable, the protection of staff members who make a protected
disclosure. In particular the approved provider must ensure, as far as
reasonably practicable:
- that any staff member who makes a disclosure does not have
contractual or other remedies enforced or exercised against them, because they
made a protected disclosure;
- that any contract with a staff member who makes a protected disclosure
is not terminated on the grounds that the staff member made the protected
disclosure;
- that any staff member who makes a protected disclosure does not
suffer a detriment because they made a protected disclosure; and
- that any staff member who makes a protected disclosure does not
suffer a threat because they made a protected disclosure.
1.12
This covers not only compliance by the approved provider itself but
extends to the ensuring as far as reasonably practicable that there is also
compliance by others, such as other staff members of the approved provider and
other parties with whom the approved provider contracts (for example an
employment agency).
1.13
If a person reports a suspected reportable assault to the approved
provider, the provider is responsible for taking reasonable measures to ensure
that the fact that the person was the maker of the report is not disclosed,
except to police, the Secretary, the approved provider's key personnel or when
required by law.
Investigation Principles
1.14
The Investigation Principles (to be made by the Minister) may make
provision relating to the investigation of matters (including complaints)
relating to the Act or the Principles including: which matters are
investigated; how investigations are to be conducted; considerations in making
decisions relating to investigations; and procedures for reconsideration or
examination of decisions in relation to investigations.
1.15
The Investigation Principles may make provision relating to actions
which must be taken if it is found in an investigation that an approved
provider has not complied with its responsibilities.
The Aged Care Commissioner
1.16
The new role of Aged Care Commissioner has a number of functions,
including:
- to examine certain decisions made by the Secretary under the
Investigation Principles and make recommendations to the Secretary arising from
examinations;
- to examine complaints made to the Aged Care Commissioner about
the Secretary's processes for handling matters under the Investigation
Principles and make recommendations arising from examinations;
- to examine complaints made to the Aged Care Commissioner about
the conduction of an accreditation body (currently the Aged Care Standards and
Accreditation Agency) relating to its responsibilities under the Accreditation
Grant Principles; or the conduct of a person carrying out an audit, or making a
support contact under those principles. Examinations of conduct may also be
initiated by the Aged Care Commissioner. The functions of the Aged Care
Commissioner expressly exclude examination about the merits of a decision;
- to advise the Minister, at the Minister's request, about matters
relating to any of the Aged Care Commissioner's functions; and
- other functions (if any) specified in the Investigation Principles.
BACKGROUND
1.17
On 27 July 2006 the Minister for Ageing, Senator the Hon Santo Santoro
announced a $90.2 million package of reforms to take effect from 1 April 2007 aimed at further safeguarding residents in aged care homes from sexual
and serious physical assault.[2]
This followed an earlier announcement of compulsory police background checks
for aged care staff and volunteers and an increase in random unannounced
inspections of aged care homes. These measures formed part of the Government's
response to incidents which came to light in 2006 involving the alleged serious
assaults and mistreatment of people in residential aged care.
1.18
The Minister for Ageing and the Department of Health and Ageing
undertook consultation in the development of Bill, in part through the
Minister's Aged Care Advisory Committee which met four times in 2006. The
Minister also invited members of the public, including care recipients and
their families, to write to him through the Residential Aged Care Taskforce
established in February 2006.[3]
1.19
The Aged Care Amendment (Security and Protection) Bill 2007 was
introduced into the House of Representatives on 8 February 2007 with a commencement date of 1 April 2007.
ISSUES
1.20
Amongst the submissions which the Committee received there was broad
support for the reforms in the Bill to increase protections for elderly people
in residential care from physical and sexual assaults. However, a number of
significant issues of concern were also raised.
Commencement
1.21
The Bill provides that the new procedures commence on 1 April 2007 as was the intention when the Minister announced the reforms in July 2006. As the
explanatory memorandum states 'this means that approved providers will be
expected to start complying with the new responsibilities imposed by this
legislation (including new responsibilities to compulsorily report certain assaults)
from 1 April 2007'. The Explanatory Guide outlines the requirements for
providers:
From 1 April 2007, the approved provider must also have in place
systems to alert staff to the reporting requirements. The approved provider
must also have systems in place to protect the identity of staff that make
disclosures and also to protect such staff from victimisation.[4]
1.22
Provider and staff representatives claimed that with the Bill still
before Parliament and the Principles containing all the operational detail not
to be finalised before the Bill has passed, it was not feasible to have all
these new systems in place by the 1 April commencement date. They argued
that to develop materials for and organise training so that staff can be
appraised of and actually trained in their new responsibilities required a
longer timeframe. Some proposed a delay of eight weeks to enable full and
thorough implementation of the new arrangements.[5]
Investigation Principles
1.23
The amendments proposed in the Bill set the general framework for the
reforms. Much of the operational detail about the practices and processes that
will give effect to the reforms will be included in subordinate legislation, Aged
Care Principles made under the Aged Care Act 1997. Proposed Division 94A
provides for Investigation Principles that will detail the processes and
procedures for complaint handling and investigation. However, while the Department
has advised that the Principles cannot be finalised until the Bill has passed
it has prepared an Explanatory Guide 'setting out the proposed content of the
Principles in order to provide stakeholders with information about the totality
of the proposed arrangements'. The Department has undertaken 'to consult on the
content of the proposed Principles as they are developed and welcomes input
from stakeholders'.[6]
1.24
The Principles are fundamental to the operation of the new measures dealing
as they do with issues including the matters to be investigated and how
investigations are to be conducted. A number of groups could only provide
general comment without access to draft Principles. As the Elder Rights
Advocacy commented:
Overall we believe that the measures are good. We have a
problem, though, in that we have not seen the principles...We would like to see
the rest of the detail—the devil is always in the detail. We hope it is not; we
hope that some of the measures that people are suggesting can be included in the
principles to make this very workable.[7]
1.25
The Committee received a number of suggestions about what should be
included in the Principles and how the procedures they provide should operate,
including what would trigger an investigation, managing vexatious complaints,
anonymous complaints, training requirements for staff, level and form of
evidence, procedural fairness and appeal processes.[8]
1.26
A number of submissions highlighted the need to ensure that principles
of natural justice and administrative fairness were reflected in the
Investigation Principles and investigation procedures. The COTA over 50s Alliance
commented:
The amendments, along with the Investigation Principles, must
ensure that, whilst they provide the appropriate mechanisms to achieve thorough
and comprehensive investigations of reportable assaults, at all times natural
justice is afforded all relevant parties. By the very nature of these offences,
often presented as allegations and suspicions, there needs to be ample
opportunities for all relevant parties to be able to answer or provide further
explanations without fear of reprisal.[9]
1.27
Catholic Health Australia noted there was 'no provision for a
complainant to be informed of the Commissioner's recommendations or have
recourse should the complainant be dissatisfied with these recommendations.'[10]
Similarly Aged and Community Services Australia commented:
The Bill does not adequately address the issue of informing both
the complainant and the party complained about on the outcomes of an
investigation. The legislation should specify that both parties are informed of
the outcomes of an investigation.[11]
1.28
The Department gave a commitment that 'all relevant parties, including
approved providers, will be afforded natural justice and procedural fairness
during the course of investigations (and this will be expressly provided for in
the Principles)'. [12]
1.29
The Committee expects that all these issues relating to the Principles will
be considered during the process being undertaken by the Department in the
development of the Principles. The Committee does note that consultation drafts
of the Private Health Insurance Rules were available for public comment while
the Private Health Insurance Bill 2006 was progressing through Parliament and
that this assisted in an understanding of many aspects of that Bill.
Compulsory reporting
Scope
1.30
Under the provisions of the Bill if an approved provider receives an
allegation or starts to suspect on reasonable grounds a reportable assault the
approved provider is responsible for reporting to the relevant police force and
the Department of Health and Ageing. There were significant concerns expressed to
the Committee about the details of the operation and scope of the compulsory
reporting requirements, particularly the requirement to report to police. The
undesirability of reporting resident-on-resident and resident-on-staff assault
was a common theme among submissions. There was much commentary on the
practicality of a system of otherwise compulsory reporting and a number of
possible alternatives to the proposed model were proffered.
1.31
Aged and Community Services Australia noted that 'an allegation must be
reported whether it is based on reasonable grounds or not, but suspicions have
to be on reasonable grounds...wouldn't the same test of reasonableness apply to
both allegations and suspicions?'.[13]
Australian Unity argued for a higher threshold before approved providers were
required to report allegations or suspicions:
Section 63-1AA (2) states
"If the approved provider receives an allegation of, or
starts to suspect on reasonable grounds etc..."
Our recommendation is that the word 'or' should be replaced with
'and' so that aged care providers may assess the situation and establish that
on reasonable grounds a particular incident is a case of suspected abuse.[14]
1.32
Australian Unity fully supported mandatory recording of all allegations,
even when there were no reasonable grounds to suspect a reportable assault.
They also noted that requiring reasonable grounds before requiring reporting
would limit the number of mistaken or vexatious claims.[15]
1.33
In evidence Australian Unity offered an alternative position. In some
cases, it was suggested, police involvement is unnecessary. Excessive police
involvement would over-burden the system. It argued that care-providers should
report only where there were 'reasonable grounds to suspect...assault'. They felt
a parallel set of obligations, one based on reasonable reporting, and one based
on the mandatory recording of all incidents, would be sufficient. All records
could be reviewed by the Department of Health and Ageing at their convenience.
Family members, dissatisfied with the actions of health-providers, could demand
that incidents be reported.[16]
1.34
The Australian Medical Association argued that the scope of the
compulsory reporting responsibilities was too broad and should be focused on
the abuse of elderly residents by staff. They commented:
The AMA has maintained that while abuse between residents needs
to be addressed, extending the focus of compulsory reporting to resident-on-resident
and resident-on-staff interactions is inappropriate, and will have significant
resource implications. The AMA strongly believes that the core focus of
compulsory reporting should be on preventing elder abuse by health care
workers.[17]
1.35
During the hearing the issue was raised that the compulsory reporting
measures in the Bill could lead to police and Department resources being
diluted or diverted, so that serious cases of abuse by staff members or others were
not adequately investigated. Dr Ford of the Australian Medical Association
stated that resident on resident assaults in aged care facilities were very
common:
If the staff or the providers take a defensive approach to this
and basically see that they cannot define it and will report everything, then
it could become unworkable and the element that we wish to really pursue would
fail to be addressed.[18]
1.36
However the Department commented that in developing the legislation a
blanket exemption for all aged care residents did not seem defensible.
There are 170,000 people every night in residential aged care.
They consist of a complete slice of the human community in Australia. There are
people there that have been in the past perpetrators of very serious crimes.
There are people there who are bullies. There are people there who are
predators. There have been also, in the past, for people who have worked in
aged care for a long time, some really very grievous examples of
resident-on-resident abuse.[19]
1.37
There was concern that the language of the Bill in relation to
compulsory reporting requirements for approved providers and staff members
lacked clarity. Aged and Community Services Australia noted that:
The use of terms "unreasonable" and "start to
suspect" are vague and open to interpretation. A tighter definition of
these terms is required. Providers should not be required to report on the
basis of suspicion - this is likely to waste time and resources of both the
providers and the police forces.[20]
1.38
Australian Unity sought 'clarification on the obligations of other
health professionals involved with our residents, such as GPs and allied health
professionals in advising us as the approved provider of a suspected abuse'.[21]
The Department noted that:
There are existing mechanisms in place which encourage health
professionals to report abuse. The Aged Care Act currently requires approved
providers to comply with relevant state and territory laws...
Regardless of any legislative requirements to report, it is
important to note that:
- any person
(including health professionals) may at anytime make a report to the Department
and this will be investigated;
- the
Department (including through approved providers) encourages any reporting of
abuse or other issues of concern regarding the treatment and safety of
residents;
- the
Department’s communications strategy for the new arrangements will target GPs
and hospitals; and
- approved
providers can also encourage health professionals to report any abuse to the
approved provider (who plays a crucial role in relation to the care and safety
of residents) or to the police or Department. [22]
Compulsory reporting and police
1.39
A number of submissions and witnesses stressed the need for sensitivity
in investigating assaults in residential aged care facilities. Australian Unity
noted:
Where police are required to investigate, we believe that
community policing squads or sexual assault units are the most appropriate
police to intervene in these cases...Consideration of the gender of
the investigating police officer will also be paramount to the victim and their
family.[23]
1.40
Aged and Community Services Australia also noted that the definition of
'reportable assault' in the Bill may require approved providers to report non-criminal
conduct to police.
The phrase "unreasonable use of force" encompasses criminal
and non-criminal conduct. Given the reference to unlawful sexual contact and an
assault, it is unclear what this is referring to. To the extent that it covers
non-criminal conduct, it seems inappropriate to require such a report to the
police.[24]
1.41
The Department advised that:
The guidelines to the industry will make it clear that if an
approved provider is in any doubt as to whether unreasonable force has been
used, the approved provider should err on the side of reporting to police and
the Department. Approved providers are currently making similar assessments
when they decide whether or not to report incidents to the Department or the
police under existing voluntary reporting arrangements.
While each case will be judged on its merits, an example of reasonable
use of force in the context of compulsory reporting of assaults would be where
a staff member is genuinely trying to assist a care recipient, but despite
their best intentions the care recipient is accidentally injured.
An example of unreasonable use of force would be where a staff
member is violent towards a resident.[25]
1.42
The Committee is concerned that with the new reporting arrangements to
commence on 1 April, the level of consultation undertaken with
Commonwealth, State and Territory police forces in developing the terms of the
Bill, and particularly in developing procedures to respond to the additional
burdens compulsory reporting might put on police resources, has been
inadequate. This was especially the case as the Department indicated there was
no available data to even indicate approximately how many incidents would be
reported to police as a result of the legislation.
1.43
The Department advised that members of the Australian Federal Police had
attended meetings of the Aged Care Advisory Committee when the issue of
compulsory reporting was being explored. While the Department's State and Territory
offices have been meeting with relevant police forces, since January 2007
meetings have only been held in the ACT, Queensland and Victoria to discuss
police check requirements and the issue of compulsory reporting. Meetings with
other States are being arranged.[26]
1.44
As noted earlier, compulsory reporting has a dual reporting requirement
– to the police and to the Department. The Department explained the purpose of
this requirement:
The purpose of the police involvement is to assess whether
criminal activity has occurred and if charges need to be laid. The police are
the best and most appropriate authorities to make that judgement. The purpose
of reporting to the department is for us to consider whether the approved
provider has actually met its responsibilities under the aged-care legislation.[27]
While the Investigation Principles will outline how the
Department, through the new Office of Aged Care Quality and Compliance, should
conduct investigations, the investigation procedures to be adopted by police in
assessing whether criminal activity has occurred will continue to be determined
by the relevant State/Territory police service.
The right not to report
1.45
A number of submissions expressed concerns about whether the Bill would
respect a competent person's right not to have an assault disclosed or reported
to police or others. Australian Unity commented:
An aged care facility is the resident's home and we believe, where
appropriate, victims should have a choice as to the level of disclosure of
their situation to the wider community within their aged care facility, and
that any intervention by officials, either police or departmental, must be
respectful of the victim's right to privacy.[28]
1.46
Aged and Community Services Australia considered that without such an
option 'we [would be] giving older people fewer rights than we would to anyone
else, simply because they are residents in residential care'.[29]
Similarly the Australian and New Zealand Society for Geriatric Medicine argued
that 'Young rape victims have the option of treatment without police
intervention. Cognitively intact elderly residents should be accorded the same
right.'[30]
1.47
Aged and Community Services Australia expressed concern that aged care
providers would be forced to act against the wishes of residents:
ACSA is concerned that the introduction of compulsory reporting
takes away the rights of competent older people to determine whether or not
they wish to take any action on an assault. Under the provisions of this Bill,
approved providers are required to make reports in the absence of the alleged
victim’s consent and even in the face of their refusal to grant such consent.[31]
1.48
However during the hearing it was also noted that while the Bill
required approved providers to report reportable assaults to the police, the
individual could still decide their level of cooperation with the
investigation. The Department indicated that if residents 'do not want the
police to continue investigation or they do not want charges to be laid, they
can have that discussion with the police.'[32]
1.49
The AMA argued strongly that the nature of the relationship between a
resident and their provider mandated that there not be a discretion for the
former not to report an assault:
This is not an issue for that person alone. That is an
indication of risk to everybody else in that residential care service and
anywhere else that that casual worker might be working. The other thing I would
have to say is that residents are sometimes frightened in that environment.
They fear being thrown out. They fear not receiving the services. If you cannot
walk and you are dependent on the people around you to stand you up so that you
are not wet that day, it is very tough. I think that, irrespective of that, it
will have to be worked through with the resident. Even if they have cognitive
impairment, you would have to work through it with them, because it still has
to be addressed. I do not think you can allow a situation where there has been
a clear episode of abuse and the resident says, ‘Don’t take it any further,’
because the alleged perpetrator of that abuse is a risk for everybody else in
the residential care centre.[33]
1.50
The Department commented on the tension between compulsory reporting
requirements and the responsibility to respect residents' wishes not to have
the matter reported:
In the context of residential aged care, approved providers (and
the Government) have an obligation not only to protect the victims of abuse (and,
as far possible, to respect their wishes) but also to protect others in the
residential aged care service and ensure the safety of all.
Recognising the broader need to ensure the safety of others, the
legislation adopts a cautious approach by requiring reporting of all
allegations to police and the Department regardless of whether a resident
agrees that such reporting should occur.
While this may sometimes mean that the wishes of a particular
resident may not be met, it also ensures that:
- the safety of all residents is paramount; and
- there can
be no pressure on a resident to encourage them not to report because the
approved provider will be required to report.[34]
Discretion not to report
1.51
The Explanatory Guide to the Bill provides for a discretion for approved
providers not to report assaults in recognition that 'assaults by residents
with mental impairments are not uncommon, and in such cases, the focus should
be on behaviour management of the resident with the mental impairment and
protection of residents, and not police involvement, which can be traumatic for
all involved.' The Guide states:
[I]t is proposed that the Accountability Principles 1998
would provide approved providers with the discretion not to report a reportable
assault to the police and the Office if the following three circumstances all
exist:
- the
approved provider must have reasonable grounds for believing that the person
who carried out the reportable assault is a resident. The approved provider
must form this view within the 24 hours after the allegation of the reportable
assault or after starting to suspect on reasonable grounds that a reportable
assault has occurred;
- a medical
diagnosis of mental impairment must have been made in respect of the resident
and documentation must exist showing that the resident is mentally impaired.
Both the diagnosis and the documentation must exist prior to the allegation of
the reportable assault or the approved provider starting to suspect on
reasonable grounds that the reportable assault occurred. If this is not the
case, then a report must be made to the police and the Office, within 24 hours
of the allegation or suspicion; and
- the
approved provider has a behaviour management plan in relation to the particular
resident who is suspected to have carried out the assault.
It is also proposed that section 19.5 of the Records Principles
1997 be amended to require that the approved provider keeps a record of all
such incidents where assaults are not reported because of reliance on these
alternative requirements. [35]
1.52
The importance of the discretion for aged providers outlined in the
Explanatory Guide was highlighted in evidence to the Committee indicating the
high proportion of aged care residents with dementia or cognitive impairment.
The Australian and New Zealand Society for Geriatric Medicine indicated that 'Dementia
and cognitive impairment are very common conditions in residents of nursing
homes (at least 50%) and hostels (at least 30%)', while the Australian Medical
Association suggested that up to 60% of residents in low care and 80% in high
care could have some form of cognitive impairment.[36]
The AMA also noted the difficulties in the accurate diagnosis of dementia or
mental impairment and the currency of a formal diagnosis (which is required in accordance
with the procedure outlined in the Explanatory Guide):
While a diagnosis of cognitive impairment often occurs upon
admission to an aged care facility, this process is not always formalised at
this stage, the diagnosis does not always remain current, and the current
cognitive status of a previously competent resident might not be known.[37]
1.53
During the hearing there were concerns expressed about who would make a
diagnosis of mental impairment for residents and whether it was possible for
up-to-date medical records to be maintained. The Department indicated it
expected that residents would be seen by a medical professional on a regular
basis to assess their needs. The Department also indicated that it expected
that for the purposes of the Bill a diagnosis of mental impairment would be
made by a general practitioner or a geriatrician.[38]
1.54
There was concern that the discretion in relation to assaults by aged
residents with mental impairments would detract from approved providers'
obligations to provide a safe environment for all aged care residents. The Aged
Care Crisis Team noted:
We see here no requirement of the provider to exercise ‘duty of
care’. A frail elderly person, powerless to defend him/herself is not afforded
protection and has no recourse when the provider does not adequately manage the
resident with dementia.[39]
Training and Awareness
1.55
Staff training and awareness of the compulsory reporting requirements in
relation to abuse of people in aged care were identified as crucial to the
success of the Bill.[40]
The Liquor Hospitality and Miscellaneous Union submitted that the Bill should
include guidelines for training requirements for staff that are obligated to
report suspected assault under compulsory reporting. The Union noted that:
A compulsory reporting system will do nothing to stop the
incidence of abuse against elders if aged care staff members are not trained to
detect symptoms of abuse, and contend with the difficult discussions with
residents, providers, staff and families that could follow detection of abuse.[41]
Retrospective effect?
1.56
The Explanatory Guide to the Bill notes that, subject to the passage of
the legislation, approved providers will be expected to comply with these new
requirements from 1 April 2007. It continues:
From 1 April 2007, approved providers will have to report any
reportable assaults that come to their attention.
This includes assaults that may have occurred before 1 April 2007, but were not reported to the approved provider until after 1 April 2007.[42]
1.57
Several submissions raised the status of past allegations and suspicions
in relation to reportable assaults and the possible retrospective effect of the
Bill's provisions. Aged and Community Services Australia commented:
Given that a reportable assault may take place before or after
the commencement of the legislation, there is a potential for pre-1 April 2007
reportable assaults which have already been dealt with by an approved provider,
to be the subject of an allegation or suspicion post-1 April automatically
invoking the requirements under section 63-1AA(2).[43]
1.58
Mr Brian Herd also suggested that ' providers will now need to pour over
their records (or memory) to determine what past or existing allegations were
received or suspicions arose.'[44]
1.59
The Department commented:
The bill requires that if an issue comes to the provider’s
attention after 1 April, which is the proposed commencement date, then
that must be reported... The incident may have occurred on 30 March and it comes
to the provider’s attention on 1 April. Because the bill is imposing a
reporting obligation, there is a reporting obligation on the provider once they
become aware of the incident.[45]
Whistleblower protections
Scope of protections
1.60
Previously the Committee has recommended that the Commonwealth examine
the feasibility of 'introducing whistleblower legislation to provide protection
for people, especially staff of aged care facilities, disclosing allegations of
inadequate standards of care or other deficiencies in aged care facilities'.[46]
However the Health Services Union noted that the protections in the Bill are
limited to physical and sexual assaults and do not provide protections for
staff or others who make disclosures regarding other deficiencies in relation
to the services provided to those in aged care.[47]
1.61
This point was also addressed by the Aged Care Crisis Team in its
submission:
Only a small minority of cases of elder abuse involve breaking
the law; so the vast majority of cases do not come under compulsory reporting.
Thus, most cases of physical abuse, all emotional abuse, financial abuse and
incidents of neglect are not covered...Whistleblowers are only protected if they
report reportable offences. So, again, the whistleblower will have no
protection if he/she reports the vast majority of cases of elder abuse as
outlined above.[48]
1.62
Aged and Community Services Australia noted that the protection
provisions in section 96-8 'do not extend to non-staff members who may make a
complaint, such as residents, family members or visitors.'[49]
This issue was also highlighted by Elder Rights Advocacy who reported instances
of aged care advocates and families of residents being threatened with legal
action for pursuing complaints.[50]
1.63
Catholic Health Australia indicated the scope of the protection for
whistleblowers was limited by the Bill's focus on the role and responsibilities
of approved providers:
Whilst a person may not make a threat or cause any detriment to
another person, the only action that the Australian Government can take to
enforce these provisions is with respect to approved providers. Where an
individual staff member or a relative victimises a discloser, the Commonwealth
would be powerless to act.[51]
1.64
The Aged Care Association Australia argued that employers should also be
protected where they comply with their responsibilities.
ACAA is concerned that though there are specific provisions that
obliges employers to protect employees who report a reportable assault there
appears little protection for employers who undertake their obligations under
the legislation but are still potentially liable for unfair dismissal action,
defamation and slander where action is taken in response to an allegation or
suspicion which subsequently proves erroneous or false.[52]
1.65
In addressing this issue the Department argued that:
Family members, residents, visitors and funded advocates are not
required by the proposed provisions to report abuse and therefore they do not
have statutory protection.
However, such people will be encouraged to report abuse and if
they do so, they are able to report to the Department confidentially or
anonymously (as they can currently). [53]
Responsibility of approved
providers
1.66
Under the Bill approved providers are responsible to ensure staff
members who make protected disclosers are not victimised. The Explanatory Guide
noted that this responsibility 'covers not only compliance by the approved
provider itself with the provision but extends to the approved provider
ensuring as far as reasonably practicable that there is also compliance by
others, such as other staff members of the approved provider and other parties
with whom the approved provider contracts (for example, an employment agency)'.[54]
However some doubted approved providers would be in a position to comply with
this responsibility. Aged and Community Services Australia argued:
It is difficult for a provider to be held responsible for the
actions of a contractor once the contractor is off site or has completed their
role. It is impossible for the provider to ensure protection once the person is
no longer on site. The legislation should make the contractor responsible for
the actions of their employees. The definition of a staff member needs to be
narrowed to reflect this. A provider should not be held responsible for a third
party.[55]
1.67
The Department advised that:
...the legislation recognises that the approved provider cannot
ultimately control the actions of individuals be they staff, external
contractors or anyone else. This is why the legislation does not say that the
approved provider must prevent any victimisation against a discloser (something
for which the approved provider could not possibly exercise any control) but
rather that the approved provider take reasonable measures to prevent
victimisation – this could include, for example, limiting the number of people
who are told the identity of the discloser and advising such people about
responsibilities not to victimise. [56]
Protections for staff members
1.68
The Health Services Union proposed an amendment to the part of the Bill
relating to reinstatement and compensation of staff members who have had their
employment terminated because of a protected disclosure:
The union is also concerned that there is very little detail in
Section 96-8 (5) regarding how the clause would operate and apply and no
assurance that employees would be sufficiently compensated including all
financial and other costs involved in the victimisation such as legal costs and
compensation for pain and suffering where applicable. The clause currently
provides for reinstatement or “an amount instead of reinstating the
employee”. This should be amended so that employees who are reinstated also
have access to compensation.[57]
1.69
The Liquor Hospitality and Miscellaneous Union also submitted that the
protections for staff members should be 'extended to protect whistleblowers who
have their hours cut or established work tasks altered as a result of reporting
suspected abuse'.[58]
1.70
The Committee has noted in paragraph 1.11 that under the Explanatory
Guide an approved provider must ensure, as far as reasonably practicable, any
staff member who makes a protected disclosure does not suffer a detriment
because they made a protected disclosure.
1.71
The Department confirmed that:
If a staff member has their hours cut or work tasks changed by
the approved provider, solely on the basis of making a report, then the
approved provider would be in breach of its responsibilities not to cause
detriment to a discloser. Compliance action could be taken against the approved
provider by the Secretary, under the Aged Care Act. [59]
Vexatious or mistaken allegations
and suspicions
1.72
The Bill requires that a protected disclosure must be made in good
faith. However there was considerable concern expressed about situations where
vexatious or mistaken allegations and suspicions about reportable assaults
could be made. The Australian and New Zealand Society for Geriatric Medicine
commented:
The staff of residential care facilities may have concerns about
their rights if they are thought to be behaving inappropriately. There must be
safe guards for staff against false or mistaken accusations. This will need to
be balanced against the requirement for reporting. While this is incorporated
in the bill, there may be considerable disruption to the operation of the
residential care facility if each complaint is reported.[60]
1.73
The Aged Care Association Australia was also concerned that approved
providers may be left with staff on special leave, at considerable cost, for protracted
periods of time while a matter is investigated.[61]
Aged Care Commissioner
1.74
There was some criticism that the Aged Care Commissioner was not
sufficiently separate from the Department of Health and Ageing to independently
investigate complaints.[62]
Elder Rights Advocacy noted that the 'perceived and actual independence and
accountability of the Aged Care Commissioner's role in oversighting the scheme
will be an important aspect of ensuring public confidence in the aged care
system.'[63]
Similarly the Liquor Hospitality and Miscellaneous Union commented that 'when
the commissioner is internal to the Department, it seems that the perception of
independence, for staff who are aware of the links between providers and the
department, is what creates a lot of the difficulty around reporting'.[64]
1.75
Catholic Health Australia also noted that there was a risk that conflicts
of interest could arise:
The Commissioner may delegate all or any of his or her functions
to an APS employee in the Department. This could result in the Department's own
investigation officers from the Office of Quality and Compliance being asked by
the Commissioner to examine matters handled by the Office.[65]
1.76
There were also some concerns about the limits on the Age Care
Commissioner's functions. The Aged Care Association Australia commented:
The Bill seems to confine the areas of possible investigation by
the Commissioner to matters relating to the Investigation Principles and the
Accreditation Grant Principles. ACAA believes that the Commissioner should be
granted authority across all activities of the Aged Care Division, of the
Department of Health and Ageing and not just the Investigation Principles and
the Accreditation Grant Principles.[66]
1.77
The Aged Care Crisis Team noted that some limitations would make the
Aged Care Commissioner less useful for complainants.
The Aged Care Commissioner may only check that the Office for
Aged Care Quality and Compliance and the Aged Care Standards and Accreditation
Agency have followed the correct procedures; he/she is not permitted to deal
with a complaint about the merits of a decision. For example, the Commissioner
cannot indicate whether the investigation of a complaint resulted in a correct
conclusion. A complainant, therefore, will have to go to the Administrative
Appeals Tribunal (AAT), or even the Federal Court, for a full review of the
complaint.[67]
Other issues
Limits
1.78
A number of submissions pointed to the limits of the Bill in addressing
all potential forms of abuse of people in aged care facilities. These included poor
nutrition, hydration, hygiene, verbal and emotional abuse or financial fraud.[68]
Australian Unity noted the scope of the protection in the Bill is limited to
persons in Commonwealth funded aged care and noted that 'there are many older
Australian who live in residential settings, such as Boarding Houses, Supported
Residential Services in Victoria and Retirement Villages that could equally be
at risk of abuse'.[69]
1.79
Staff training and staffing level were also raised as important factors
in preventing elder abuse by some submissions. The Aged Care Lobby Group argued
that the basic causes of abuse result 'from a pervading lack of properly
trained and supervised staff in the majority of aged care facilities.'[70]
1.80
A number of submission and witnesses at the hearing were concerned the Bill
did not clarify the position of aged care residents who have been accused or
have been found to have committed a reportable assault. The Australia Medical
Association called on the Government to 'consider what the fall back position
might be for residents who are charged with assault in terms of the provision
of appropriate care and accommodation thereafter.'[71]
Aged and Community Services Australia noted:
The legislation does not address what would happen to a resident
accused of a reportable assault which is subsequently proven, and the resident
may be convicted. This needs to be addressed in relation to the security of
tenure provisions in the Aged Care Act.[72]
Sanctions
1.81
The new Office of Aged Care Quality and Compliance has responsibility
for investigating information about possible non-compliance by approved
providers under the Aged Care Act 1997. The Explanatory Guide notes that 'the
Office will have the capacity to issue Notices of Required Action to providers
who have breached their responsibilities, and take compliance action where the
provider fails to remedy the issue'.[73]
However Aged and Community Services Australia raised an issue regarding the
legal status of the sanctions in the measures outlined in the Bill:
In our opinion, the Department does not have the power to impose
punitive sanctions or require compensatory payments. It seems to be
contemplated that the Notice of Required Action may encompass a wide range of
actions. Given that the AAT has in the past admonished the Department for
imposing punitive sanctions, and we have seen in matters before the CRS
settlements involving compensatory payments, this is a real concern.[74]
1.82
In relation to this issue the Department noted that:
Notices of Required Action will require approved providers to
address any breaches of their responsibilities under the Aged Care Act 1997 and
to meet their responsibilities under that Act. If an approved provider does not
comply with a Notice of Required Action then compliance action may be taken
under the Aged Care Act – these are the same actions that can currently be
taken by the Secretary for non-compliance with any of the approved provider’s
responsibilities.
In the event that a breach of the approved provider’s
responsibilities relates to, for example, failure to repay a resident their
full bond or over charging of a resident, then the Notice of Required Action
could require the approve provider to repay the resident the appropriate amount
– this is not a punitive penalty but rather seeks to restore the resident to
the position they should have been in had they not been overcharged. [75]
Review of approach
1.83
The Department indicated there may be changes to the Principles to
reflect the experience gained in implementing the measures in the Bill:
I think an important reason for having these arrangements in the
disallowable instrument is that we expect we are going to learn a great deal
about this in the initial year or two. We are asking providers to keep
registers of information and we are going to be asking the accreditation agency
to make sure those registers are kept. I think we will all be a lot wiser in a
year or two.[76]
1.84
The Health Services Union suggested that 'a comprehensive review of the
changes occur in two years time to evaluate their effectiveness.'[77]
Financial Impact Statement
1.85
The Committee raised with the Department concerns at the lack of
information contained in the explanatory memorandum's financial impact
statement.[78]
The explanatory memorandum simply states that 'the new initiatives that are
implemented through this Bill are part of a $90.2 million (over four years)
package of reforms aimed at further safeguarding older people in Australian
Government-subsidised aged care from sexual and serious physical assault'.
1.86
The Department subsequently provided a more detailed breakdown of the
$90.2 million divided over the 4 years by departmental, capital and administered
(offset) expenditure. An indication of the areas of expected expenditure for
2006-07 and future years was also provided.[79]
The Committee considers that at least this level of information should have
been provided in the explanatory memorandum.
Conclusion and recommendations
1.87
The Committee supports the measures being introduced in the Aged Care
Amendment (Security and Protection) Bill 2007. However, the Committee considers
that there are a few areas that could be improved or refined and has
recommended accordingly.
1.88
The Committee recognises the broad support for the Bill which contains
urgent reforms with the important aim of protecting vulnerable people in aged
care. However the Committee also acknowledges the legitimate concerns expressed
in relation to the period of time it will take for approved providers to
adequately inform and train staff members of the requirements of the Bill.
Recommendation 1
1.89
That in recognition of the additional responsibilities the Bill places
on approved providers especially in relation to training staff members and
instituting new systems, the commencement date, particularly in relation to the
reporting provisions, be deferred for a period of at least one month.
1.90
The Committee has carefully listened to the issues which have been raised
in relation to the compulsory reporting requirements for reportable assaults.
There are obviously difficult questions regarding the appropriate treatment of
resident-on-resident abuse and residents who may have mental impairments. The
Committee also acknowledges the broad consultation which the Minister and the
Department of Health and Ageing have undertaken in the development of the Bill.
Nonetheless the Committee has concerns the Bill is being implemented when there
is currently no clear evidence or reliable data as to the volume of reports
which may result.
Recommendation 2
1.91
That the Department of Health and Ageing carefully and closely monitor
developments in relation to the compulsory reporting regime upon its
commencement and that care is taken to ensure the reporting mechanism operates
as intended.
1.92
The Committee acknowledges that some concerns were raised that the
implementation of the new measures may not fully achieve the desired goal of
protecting vulnerable older people in residential care. The Committee notes
that the Department has regular meetings with the Aged Care Advisory Committee
and has undertaken to continue ongoing discussions with the sector in relation
to the Principles and new measures after their introduction. The Committee considers
that this process should provide appropriate opportunities for the sector to
raise and have resolved any unforseen consequences arising from the
implementation of the new measures. The Committee believes this process must be
proactive and dynamic to address emerging issues of concern. The Committee
leaves open the question of whether a more formal review of the legislation might
be appropriate after, say, two years of operation.
1.93
As currently drafted the Bill only provides protections for approved
providers and staff members who make protected disclosures. A number of submissions
and witnesses to the inquiry suggested that some other persons should also be
entitled to these protections where they make protected disclosures. The
Committee agrees.
Recommendation 3
1.94
That the Bill be amended to extend the whistleblower protections to aged
care residents, the families of residents and aged care advocates where they
have reasonable grounds to suspect that the information indicates that a
reportable assault has occurred and the disclosure is made in good faith.
Recommendation 4
1.95
That subject to the above recommendations, the Committee recommends that
the Senate pass the Bill.
Senator Gary
Humphries
Chairman
March 2007
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