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Summary
This bill was the response of the coalition government to the rape scandal in 2006. This response was a host of draconian police checks and mandatory reporting requirements. With the coalition in power in both houses the outcome was predictable. No attempt was made to examine the underlying problems in the system although the democrats tried.
There were however a number of issues discussed. There were concerns that the wishes of the victim would be ignored under the mandatory reporting requirements. A particularly contentious issue was the limited nature of the whistleblower protection provided. Even the majority wanted it to be wider. Both labor and the Democrats wanted it to be much wider. There was some concern about the independence of the aged care commissioner. There was some concern about the limited nature of the bill as only limited forms of elder abuse and no forms of elder neglect were included.
Introduction
This report is the response of the then government and the then aged care minister to a multitude of negative events and a succession of public scandals (red flags) culminating in the rape of a number of frail ladies by their carers in nursing homes. Then there were revelations pointing to wider sexual abuse and the taunting of confused residents by their carers for fun. The pervading culture responsible for these signal events was revealed by the long time it took for co-workers to respond to their knowledge of what had happened; and the inappropriate response of some managers who were ultimately responsible.
The cynical responses by the Prime Minister and the aged care minister were pure public relations, denial and minimization, by suggesting without any in depth examination that the instances were rare exceptions and not red flags. The government made no attempt to examine the extent of the problems, nor the underlying sociological forces that made this possible and almost predictable. There were clear precedents in the USA where aged care had followed similar patterns.
Instead and like the USA the response was to rush through ever more onerous and demeaning regulation. While driving the discontent and demoralization underground so that it was less visible, it was likely to increase the general malaise in the system and destroy the motivation of staff. This was cynical political self interest, appealing and fanning the gut reactions of an angry community. No politician dared speak out against it - or appose it.
Much more was needed. Legislation to deal with the consequences of societal dysfunction may be necessary but that can never be an excuse for not dealing with the problem. This has not happened 3 years later.
The report
There were 15 submissions and 1 public hearing. The outcome of the report was never in doubt. The government now controlled the senate.
The purpose of the Bill is to amend the Aged Care Act 1997 to provide new measures to protect aged care residents, including:
Only one of the quotes from the submissions echoed my concern about the underlying issues. The solitary Democrat also commented on this in her dissenting report.
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. (Page 20)
The Australian Democrats also have reservations about the exclusive focus on mandatory reporting as the Government's response to what is a complex and multifaceted problem. In particular the Democrats argue that prevention rather than post-abuse legal responses is a preferable approach. Available overseas evidence indicates that mandatory reporting in itself will not guarantee improved safety. (Page 27)
The scope of the review
There was however a great deal of argument about the scope and consequences of the legislation.
Mandatory reporting
The regime of mandatory reporting was seen to be too broad by providers and appropriate by others. It applied only to staff and not to others who witnessed incidents including families, management and other health professionals. There were concerns that the trauma to the victim, and their wishes that the matter not be reported, would be overridden in the interest of protecting others. The Democratic senator took a different view in her report.
Denying individuals this right based on their location of residence would seem to be a breach of their rights to determine who receives personal information about them. There is also the potential that such an approach will have negative consequences, including discouraging older people from seeking assistance if they believe their conversations will not be confidential. (Page 28)
Whistleblower protection
Those who spoke out were guaranteed whistle blower protection but this was limited and extended only to staff and not to managers, other health care providers or residents and families. The ability of the providers to protect whistleblowers from other staff and from other contractors such as agency staff were limited. There was no protection when staff or other interested individuals reported other forms of elder abuse or serious deficiencies in nursing homes.
So, again, the whistleblower will have no protection if he/she reports the vast majority of cases of elder abuse as outlined above. (Page 16)
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.' 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. (Page 16)
- - 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. (Page 16)
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. (Page 17)
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. (Page 18)
The Aged Care Commissioner
In regard to the creation of the post of Aged Care Commissioner there were concerns that this person would be too closely associated with the department and would be using departmental staff. The perception of closeness would discourage residents' families.
In addition the commissioner was only empowered to check whether correct procedures were carried out. " - - he/she is not permitted to deal with a complaint about the merits of a decision".
Other Issues
In examining other issues the committee noted that
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. 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'. (Page 20)
The report and minority reports
The committee supported the bill but expressed reservations about some matters. They recommended that whistle blower protection be extended to residents, their families and aged care advocates.
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. (Page 23)
The minority report by the labor party pointed out that in 2005 this same committee, when labor were in a majority, had recommended wider whistleblower protection. This was ignored and the present legislation still did not provide it.
The Australian Democrats wanted more extensive legislation which would extend protection to the abuse of elders in the community.
That the Government develop a comprehensive approach to elder abuse which includes strategies to protect older people from all forms of abuse in residential and community settings.
That the legislation be amended to provide whistleblower protections to people who report, on reasonable grounds, any form of abuse or neglect. (Page 27)
The full report can be found at
http://www.aph.gov.au/senate/committee/clac_ctte/completed_inquiries/2004-07/aged_care_security_protect/index.htm
Click Here to go back to the main report page
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