Advocates for older Australians have been left appalled after the federal government amended its aged care bill, which allows aged care workers immunity from criminal prosecution for using any physical or chemical restraints. The government amended the bill last month before it went through the House of Representatives.
The eleventh-hour amendment would give providers immunity if they comply with a yet-to-be-created set of consent guidelines, reports The Sydney Morning Herald.
Aged care workers had sought the immunity provision after receiving legal advice that written consent obtained by providers was “left on shaky ground by discrepancies with state and territory guardianship laws,” Aged and Community Services Australia chief executive, Paul Sadler, told the newspaper.
Otherwise, providers and families would be in a position where a piece of federal legislation would not coincide with state laws on who is able to make decisions regarding restrictive practices, Sadlers explained.
State and territory governments are currently working on a” uniform guardianship law”, but the reforms are slow-moving.
A spokesperson for the Minister of Aged Care Services says the immunity plan will allow providers “who may not be authorised under current state and territory laws” to be protected from civil and criminal liability “where consent was given by an authorised person”.
The definition of who gives this consent is currently being updated and defined under Quality Care principles. The updated principles will ensure that a restrictive practice aligns with the consent that has been provided (such as the particular type of restrictive practice, and the time specified).
“The Quality of Care Principles also require that restrictive practices must only be used as a last resort, only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient,” the Aged Care Services spokesman said.
However, Elder abuse lawyer, Rodney Lewis, warns that the bill gives providers a “formidable barrier” for the elderly who are seeking legal action against unlawful treatment and restraint.
“It is an astounding discrimination,” Lewis told The Sydney Morning Herald.
Lewis is currently running a case in the NSW Supreme Court on behalf of one such man, Terry Reeves. Reeves, an elderly man with dementia, is seeking damages for being falsely imprisoned by a career from Garden view Aged Care in West Sydney.
In 2019, the royal commission heard that Reeves had been strapped and restrained in a chair 30 times over two months, for nearly 14 hours a day, when his daughter had only given permission for her father to be restrained as a “last resort” and for “one or two hours a day.”
Lewis says this case could allow “many others” to seek justice for their mistreatment in aged age homes.
Director for Aged Care Matters, Sarah Russell, also agrees that the amendment would strip age care residents of “the civil and criminal protections to which all other Australians are entitled”.
Russell told the news publication, “If a member of the public is restrained without their consent, the perpetrator can be charged…In contrast, an aged care resident who is restrained without their consent will have no legal recourse.”