QLS Proctor observes World Elder Abuse Awareness Day on 15 June. In a series of Proctor articles, key takeaways will be highlighted from the ‘Elder Abuse Joint Issues Paper’, released by Queensland Law Society and the Public Advocate of Queensland in February this year.
Over a year has passed since the Royal Commission into Aged Care Quality and Safety published its final report, which highlighted the prevalence of abuse and neglect in residential aged care settings and made 148 recommendations to reform Australia’s aged care system.1
Following release of the report, the Australian Government confirmed that reform of the aged care sector is necessary to address its inadequacies, including replacing the Aged Care Act 1997 (Cth) with a new Act.2 Although the extensive reforms accepted by the Government will take some time, a number of interim measures have been implemented. This article outlines two of those measures.
Serious Incident Response Scheme
On 1 April 2021, a new Serious Incident Response Scheme (SIRS) commenced, which expanded the types of incidents against residential care recipients that aged care providers must report to the Aged Care Quality and Safety Commissioner. Any of the following incidents that have occurred, or are alleged or suspected to have occurred, must be reported:
- Unreasonable use of force – for example, hitting, pushing, shoving, or rough handling
- Unlawful sexual contact or inappropriate sexual conduct – such as sexual threats or stalking, or sexual activities without consent
- Psychological or emotional abuse – such as yelling, name calling, ignoring a consumer, threatening gestures, or refusing a consumer access to care or services as a means of punishment
- Unexpected death – for example, in the event of a fall, untreated pressure injury, or the actions of a consumer resulting in the death of another consumer
- Stealing or financial coercion by a staff member – for example, if a staff member coerces a consumer to change their will to their advantage, or steals valuables from the consumer
- Neglect – including withholding personal care, untreated wounds, or insufficient assistance during meals
- Use of a restrictive practice3 – for example, where physical or chemical restraint is used without prior consent or without notifying the consumer’s representative as soon as practicable; where physical restraint is used in a non-emergency situation; or when a provider issues a drug to a consumer to influence their behaviour as a form of chemical restraint
- Unexplained absence from care – this occurs when the consumer is absent from the service, their absence is unexplained and it has been reported to the police.4
Importantly, the Aged Care Quality and Safety Commissioner must be notified of all reportable incidents, including those involving another care recipient with a cognitive impairment (such as dementia). This is a departure from the previous scheme where reporting was not required if the alleged perpetrator was another care resident with a diagnosed cognitive impairment, and the provider put in place arrangements to manage their behaviour.5
Regulation of restrictive practices
The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Act 2021 (Cth), which commenced on 1 July 2021, enacted important amendments to the Aged Care Act 1997 (Cth) and the Aged Care Quality and Safety Commission Act 2018 (Cth).
The amendments strengthened the regulation of restrictive practices used in aged care, such as physical or chemical restraints. Providers are prohibited from using any restrictive practice in relation to a care recipient except in compliance with the requirements specified in the Quality of Care Principles, including:
- the restrictive practice is used only as a last resort to prevent harm to the care recipient or other persons, and after considering the likely impact of the use of the practice on the care recipient
- to the extent possible, best practice alternative strategies have been considered, applied and documented
- the restrictive practice is used only to the extent necessary and proportionate to the risk of harm
- the restrictive practice is used in the least restrictive form, and for the shortest time, necessary to prevent harm
- informed consent to the use of the practice has been given by the care recipient or their restrictive practices substitute decision-maker
- the restrictive practice complies with the care recipients’ behaviour support plan in relation to the use of restrictive practices, and is used in accordance with the Aged Care Quality Standards, Charter of Aged Care Rights and the law of the state or territory in which the restrictive practice is used.6
An approved provider must also create a behaviour support plan to inform the use of restrictive practices on a care recipient, monitor the care recipient while the restrictive practice is in use, and document the use and effectiveness of the practice.7
These measures are an initial positive step toward protecting aged care recipients following the findings of the royal commission. Future proposals for reform include extending the SIRS to home care and flexible care in a home or community setting, and addressing concerns regarding consent to restrictive practices by substituted decision makers.
However, these reforms and more extensive aged care reforms anticipated under the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 lapsed on dissolution of the former government. If the Bill is reintroduced to Parliament, the legislative process will need to start over, with both Houses of Parliament required to again consider the Bill in detail.
Unfortunately, this will continue to delay implementation of much-needed protections for consumers of aged care services until the new Aged Care Act is enacted, which is proposed to take effect on 1 July 2023.
Sonia Smith is a Queensland Law Society Senior Policy Solicitor.
1 Royal Commission into Aged Care Quality and Safety, Care, Dignity and Respect (Final Report, 26 February 2021).
2 Australian Government, Department of Health, Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety (May 2021).
3 Other than in circumstances set out in the Quality of Care Principles 2014 (Cth) s15NB.
4 Aged Care Act 1997 (Cth) s54-3.
5 Accountability Principles 2014 (Cth) s53.
6 Aged Care Act 1997 (Cth) ch 4; Quality of Care Principles 2014 (Cth) s15FA(1), subject to emergency powers under ss15FA(2) and (3).
7 Quality of Care Principles 2014 (Cth) div 4 and 5.