|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
|
The Aged Care and Other Legislation Amendment (Royal Commission No. 1) Bill
2021 seeks to amend the Aged Care Act 1997 and the Aged Care Quality
and Safety Commission Act 2018 to:
• set out requirements and preconditions in relation to the use of
restrictive practices;
• empower the secretary of the Department of Health to conduct
reviews in relation to the delivery and administration of home
care
arrangements; and
• remove the requirement for the minister to establish a committee to
be known as the Aged Care Financing Authority
The Aged Care Legislation Amendment (Royal Commission Response No. 1)
Principles 2021 amends the Quality of Care Principles 2014 to set out
requirements in relation to the use of restrictive practices and
responsibilities of approved providers relating to behaviour
support
plans.
|
|
|
Portfolio
|
Health
|
|
Bill introduced
|
House of Representatives, 27 May 2021
Received Royal Assent 28 June 2021
|
|
Last day to disallow legislative instrument
|
15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 3 August 2021). Notice of motion to disallow
must
be given by 18 October 2021[3]
|
|
Rights
|
Prohibition against torture and other cruel, inhuman or degrading
treatment; rights to health; privacy; freedom of movement; liberty;
equality and
non-discrimination; rights of persons with disability
|
2.3 The committee requested a response from the minister in relation to the bill in Report 7 of 2021.[4]
2.4 The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019[5] came into force on 1 July 2019. This legislative instrument regulates the use of physical and chemical restraints by approved providers of residential aged care and short-term restorative care in a residential setting. The Parliamentary Joint Committee on Human Rights undertook an inquiry (2019 inquiry) into the instrument, as part of its function of examining legislation for compatibility with human rights, and reported on 13 November 2019.[6] Among other things the committee recommended that there be better regulation of the use of restraints in residential aged care facilities, including in relation to exhausting alternatives to restraint, taking preventative measures and using restraint as a last resort; obtaining or confirming informed consent; improving oversight of the use of restraints; and having mandatory reporting requirements for the use of all types of restraint.[7] In response to this report the government introduced amendments to the Quality of Care Principles to make it clear that restraint must be used as a last resort, refer to state and territory laws regulating consent and require a review of the first 12 months operation of the new law.[8] The review, finalised in December 2020, made a number of recommendations, including to clarify consent requirements, strengthen requirements for alternative strategies, require an assessment of the need for restraint in individual cases and for monitoring and reviewing the use of restraint.[9]
2.5 In addition, the Royal Commission into Aged Care Quality and Safety considered the use of restrictive practices. The final report of the Counsel Assisting the Commission recommended new requirements be introduced to regulate the use of restraints in residential aged care and that these requirements should be informed by the report of the independent review, the committee's 2019 inquiry report and the approach taken by the National Disability Insurance Scheme Rules.[10] The Royal Commission into Aged Care Quality and Safety's Final Report made a number of recommendations to regulate the use of restraints.[11] The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (the bill) is stated to be in response to the recommendations of the Royal Commission and the independent review. [12] The bill received Royal Assent on 28 June 2021 and the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 (the instrument) was made the same day.
2.6 This bill (now Act) amended the Aged Care Act 1997 (the Act) to require that the Quality of Care Principles must set out certain requirements regarding the use of restrictive practices. It inserted a definition into the Act of what constitutes a 'restrictive practice' ‑– namely, any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.[13] The amendments in the bill ensure that the Quality of Care Principles must:
• require that a restrictive practice is only used as a last resort to prevent harm and after consideration of the likely impact of the practice on the care recipient;
• require that, to the extent possible, alternative strategies are used and any alternative strategies used or considered are documented;
• require that a restrictive practice is used only to the extent that it is necessary and in proportion to the risk of harm;
• require that if a restrictive practice is used it is used in the least restrictive form, and for the shortest time, necessary to prevent harm;
• require that informed consent is given to the use of a restrictive practice;
• require that the use of a restrictive practice is not inconsistent with any rights and responsibilities specified in the User Rights Principles; and
• provide for the monitoring and review of the use of a restrictive practice in relation to a care recipient.[14]
2.7 The bill also provided that the Quality of Care Principles may provide that a requirement specified in the Principles does not apply if the use of a restrictive practice is necessary in an emergency.[15]
2.8 The instrument sets out the detailed circumstances in which a restrictive practice can be used in relation to a care recipient and the responsibilities of approved providers relating to restrictive practices and behaviour support plans.[16] A restrictive practice includes the use of a chemical restraint, environmental restraint, mechanical restraint, physical restraint or seclusion in relation to a care recipient.[17] A restrictive practice may be used by an approved provider where the specified requirements set out in the instrument are satisfied.[18]
2.9 The instrument also sets out additional requirements regarding the assessment of the necessity of the use of restrictive practices. For the use of restrictive practices other than chemical restraint, an approved health practitioner (meaning a medical practitioner, nurse practitioner or registered nurse) who has day-to-day knowledge of the care recipient must have assessed the recipient as posing a risk of harm to themselves or others, assessed the use of restrictive practice as necessary, and documented the assessments.[19] For the use of chemical restraints, a medical practitioner or nurse practitioner must have assessed the care recipient as posing a risk of harm to themselves or others, assessed the use of chemical restraint as necessary, and prescribed medication for the purpose of using the chemical restraint.[20] This assessment, as well as other specified matters, such as the reasons why chemical restraint is necessary, must be documented in the care and services plan/behaviour support plan.[21] Additionally, the approved provider must be satisfied that the care recipient or the restrictive practices substituted decision-maker has given informed consent to the prescribing of medication.[22]
2.10 However, certain requirements relating to the use of restrictive practices, such as requiring the restrictive practice to be used as a last resort or with the informed consent of the care recipient, do not apply if the restrictive practice is necessary in an emergency.[23] The exemption of certain requirements only applies while the emergency exists, noting that if there is a need for the ongoing use of a restrictive practice it must be set out in the behaviour support plan.[24]
2.11 The instrument also sets out the responsibilities of approved providers while restrictive practices are being used, such as monitoring the care recipient and the necessity for the restrictive practice, and following the emergency use of a restrictive practice, such as informing the restrictive practices substitute decision maker and ensuring specified matters are documented in the care and services plan/behaviour support plan.[25] While the instrument requires certain matters relating to the use of restrictive practice to be documented, if the use is in accordance with the Quality of Care Principles, including the amendments made by this instrument, it is not a reportable incident.[26]
2.12 Finally, from 1 September 2021, the instrument introduces other responsibilities of approved providers relating to behaviour support plans.[27] Behaviour support plans are prepared by the approved provider, in consultation with the care recipient and relevant health practitioners, and must include specified matters, including information about the care recipient's behaviour and support needs and alternative strategies for addressing behaviours of concern.[28] Where the use of restrictive practice is assessed as necessary by an approved health, medical or nurse practitioner, additional matters must be set out in the behaviour support plan, including the care recipient's behaviours of concern that necessitate the use of the restrictive practice; how the restrictive practice is to be used, including duration, frequency and intended outcome; best practice alternative strategies that must be used before using the restrictive practice; monitoring and review requirements; and a record of the giving of informed consent by the care recipient or their restrictive practices substituted decision-maker.[29] The behaviour support plan must also set out additional specified matters if a restrictive practice is used and if there is a need for ongoing use of a restrictive practice.[30] The approved provider must also review a behaviour support plan on a regular basis and as soon as practicable after any change in the care recipient's circumstances.[31]
2.13 Setting out requirements relating to when restrictive practices can be used by aged care providers engages a number of human rights. To the extent that the bill strengthens the responsibilities of approved providers by enhancing safeguards regarding the use of restrictive practices, the measure may assist in ensuring rights are not limited and may promote other rights,[32] including:
• the prohibition on torture or cruel, inhuman or degrading treatment or punishment:[33] the United Nations (UN) Committee on the Rights of Persons with Disabilities has stated that Australia's use of restrictive practices (which includes chemical and physical restraints) on persons with disability may raise concerns in relation to freedom from torture and cruel, inhuman or degrading treatment or punishment and has recommended that Australia take immediate steps to end such practices.[34] The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has also raised concerns and called for a ban on the use of restraints in the health-care context, noting that such restraint may constitute torture and ill-treatment in certain circumstances;[35]
• the right to health: which includes the right to be free from non-consensual medical treatment.[36] Australia also has obligations to provide persons with disability with the same range, quality and standard of health care and programmes as provided to other persons;[37]
• the right to privacy: which includes the right to personal autonomy and physical and psychological integrity, and extends to protecting a person's bodily integrity against compulsory procedures.[38] Similarly, no person with disability shall be subjected to arbitrary or unlawful interference with their privacy;[39]
• the right to freedom of movement and liberty: the right to liberty prohibits States from depriving a person of their liberty except in accordance with the law, and provides that no one shall be subject to arbitrary detention.[40] The existence of a disability shall also, in no case, justify a deprivation of liberty.[41] The right to freedom of movement includes the right to liberty of movement within a country.[42] A restriction on a person's movement may be to such a degree and intensity that it would constitute a 'deprivation' of liberty, particularly if an element of coercion is present.[43] These rights may be engaged and limited by intentional restrictions of voluntary movement or behaviour by the use of a device, or removal of mobility aids, or physical force, and limiting a care recipient to a particular environment;
• the rights of persons with disability: as set out in the Convention on the Rights of Persons with Disabilities, including the right to equal recognition before the law and to exercise legal capacity;[44] the right of persons with disabilities to physical and mental integrity on an equal basis with others;[45] and the right to freedom from exploitation, violence and abuse;[46] and
• the right to equality and non-discrimination: which provides that everyone is entitled to enjoy their rights without discrimination of any kind, including on the basis of age or disability.[47]
2.14 However, noting the complex interplay of existing laws regulating the use of restraints by approved providers, if the regulation of restraints for aged care providers leads to confusion as to when restraint is, or is not, permitted in residential aged care facilities, the practical operation and effect of the measure may mean, depending on the adequacy of the safeguards, that in practice this measure could limit the human rights set out above. As such, it is necessary to consider if the safeguards and protections set out in the bill ensure sufficient protection so as not to limit the human rights of aged care recipients.
2.15 In order to fully assess the compatibility of this bill with human rights, further information is required, in particular:
(a) why the bill does not prohibit the use of restrictive practices unless used in accordance with a behavioural support plan;
(b) who determines that the requirements for the use of a restrictive practice is met, for example who determines that a restrictive practice is the last resort, the least restrictive and used to the extent that is necessary and proportionate;
(c) what are the criteria for determining whether a situation constitutes an 'emergency' and who makes this determination;
(d) why is it appropriate to enable the Quality of Care Principles to override any of the requirements set out in the bill in an emergency, in particular the requirements that the restrictive practice: be used only to the extent necessary and in proportion to the risk of harm; be used in the least restrictive form and for the shortest time; and be monitored and reviewed;
(e) in requiring informed consent for the use of a restrictive practice, how long does such consent remain valid and, in the case of chemical restraint, is consent required only when medication is prescribed, or is it also required (or required to be confirmed) when medication is administered;
(f) who will monitor and review the use of restrictive practices, and will they be independent from the person who used the restrictive practice;
(g) why does the bill not appear to provide that each use of a restrictive practice must be documented; and
(h) will a restrictive practice undertaken in an emergency and therefore not in accordance with the requirements be a reportable incident.
2.16 The committee welcomed these proposed amendments as it considered these offered much stronger protections regarding minimising the use of restraints against vulnerable aged care residents. The committee considered this bill may assist in ensuring there are appropriate safeguards to protect the right not to be subjected to torture and other cruel, inhuman or degrading treatment, and may also promote the rights to health, privacy, freedom of movement, liberty, equality and non-discrimination and the rights of persons with disability.
2.17 However, some questions remained as to how some of these restrictions on the use of restraints will operate in practice, and so the committee sought the minister's advice as to the matters set out at paragraph [2.14].
2.18 The full initial analysis is set out in Report 7 of 2021.
2.19 The minister advised:
As stated in the scrutiny report the Royal Commission Response Bill No. 1 provides that the Quality of Care Principles 2014 can make provisions for the requirements of approved providers of residential aged care (approved providers) for the use of restrictive practices. The operationalised specific details of approved provider requirements have been included in the proposed amendments to the Quality of Care Principles. The exposure draft of the principles, the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 is now publicly available on the Department of Health's website and should be read in conjunction with the Royal Commission Response Bill No.1.
Behaviour Support Plans
From 1 September 2021, the proposed amendments to the Quality of Care Principles will introduce new responsibilities for approved providers to implement behaviour support plans for care recipients that need them. Under these responsibilities, a restrictive practice may not be used unless assessed as necessary in the behaviour support plan. The only exception to this is where there is a situation which may be deemed an emergency. The Quality of Care Principles specify details of what needs to be included in a behaviour support plan, including having best practice behaviour support strategies that are responsive to the care recipient's needs and seek to reduce or eliminate the need for restrictive practices. These supports should be individualised and address the underlying causes of the behaviours of concerns, while safeguarding the quality of life of care recipients.
Behaviour support plans also need to specify where the use of a restrictive practice has been assessed or necessary and where a restrictive practice is being used. While approved health practitioners (a medical practitioner, nurse practitioner or registered nurse) may assess a restrictive practice as necessary, it is important to note that comprehensive behaviour support planning and management is intended to reduce the use of restrictive practices.
Behaviour support plans should be developed in consultation with the care recipient, their nominated representative, any relevant health practitioners, and their restrictive practice substitute decision-maker if the care recipient lacks the capacity to provide informed consent.
The intention of these provisions in the Quality of Care Principles is to ensure the approved provider takes a more preventative approach in relation to the use of restrictive practices by considering alternative strategies in the first instance, while examining and seeking to understand the cause of the behaviours. The approved provider should consider any past events or experiences that led to behaviours of concern to help prevent future behaviours of concern occurring that may be related, to these causes or triggers.
If a behaviour support plan includes a restrictive practice that has been assessed as necessary, any use of a restrictive practice must be reviewed regularly or as soon as practicable after any change in the care recipient's circumstances. This includes any circumstance where a restrictive practice is used in an emergency. Any changes in behaviour should mean that the use of the restrictive practice should be reconsidered and reduced or stopped as soon as practicably possible.
Who can assess a restrictive practice as necessary?
The proposed amendments to the Quality of Care Principles set that an approved health practitioner who has day-to-day knowledge of the care recipient can assess that the use of a restrictive practice, other than chemical restraint, is necessary and that the care recipient poses a risk of harm to themselves or others. An approved health practitioner is defined as medical practitioner, a nurse practitioner or a registered nurse as defined by the Health Insurance Act 1973. Additionally, these assessments need to be documented.
The proposed amendments to the Quality of Care Principles set that only a medical practitioner or nurse practitioner can assess whether a chemical restraint is necessary. These professions are required to comply with their appropriate professional codes of practice and any applicable state and territory legislation in the state they practice. Prescribing medical or nurse practitioners are required to document the reason they have prescribed medication for the purpose of chemical restraint and they must have obtained informed consent from the care recipient or, if the care recipient lacks capacity, from their restrictive practice substitute decision-maker.
If medication has been prescribed as a chemical restraint, approved providers must engage with the prescribing practitioner and the care recipient to communicate the impact and effectiveness of the restraint and any conditions around its use. The approved provider is required to satisfy themselves that the prescribing practitioner has obtained informed consent for the use of the medication as a chemical restraint.
Emergency use of restrictive practices
The term 'emergency' in new subsection 54-10(2) is not expressly defined, and therefore has its ordinary meaning. In aged care the scope of emergency situations can be quite broad and adopting a prescriptive definition is likely to result in unintended consequences and may exclude situations of genuine emergency. This could foreseeably have the impact of placing the safety, health and wellbeing of care recipients and others at risk.
An emergency situation only applies while there is an immediate risk or harm to a care recipient or other person. Once this risk has ceased the emergency situation has passed, emergencies are not intended to last for long periods of time and are not a mechanism for approved providers to justify the continuous use of a restrictive practice.
If a restrictive practice is required after the immediate risk of harm has passed, this would be considered ongoing use and is not subject to emergency exemptions. Additionally, ongoing use of a restraint requires informed consent prior to its use.
The proposed amendments to the Quality of Care Principles detail the responsibilities that must be met following the emergency use of restrictive practices. This includes:
• informing the restrictive practices substitute decision maker about the use of the restrictive practice, if the care recipient lacked capacity to consent to the use of the restrictive practice; and
• documenting the reasons for the restrictive practice and the alternative strategies that were considered or used prior.
These responsibilities must be met as soon as practicable after the restrictive practice starts to be used.
During an emergency approved providers must still seek to ensure the least restrictive form of a restrictive practice is being applied and that it is used for the shortest time possible. Approved providers must also continually seek to consider whether an alternative strategy can be used and whether the restrictive practice can be reduced or stopped. These requirements are intended to ensure the use of restrictive practices are reduced and the inappropriate use of restrictive practices are eliminated.
Approved providers should be actively engaged in care recipients' behaviour support planning, which should significantly reduce the occurrence of emergencies. Approved providers must consider and manage triggers for care recipients' behaviour to prevent an emergency in the care planning for care recipients.
In practice, the Aged Care Quality and Safety Commission (the Commission) will be able to question the circumstances in which emergency use of a restrictive practice was activated.
Informed consent arrangement for the use of restrictive practices
The proposed amendments to the Quality of Care Principles inserts a new term, restrictive practices substitute decision-maker. A restrictive practices substitute decision-maker, for a restrictive practice in relation to a care recipient, means a person or body that, under the law of the state or territory in which the care recipient is provided with aged care, can give informed consent to the following if the care recipient lacks the capacity to give that consent:
• the use of the restrictive practice in relation to the care recipient; and
• if the restrictive practice is chemical restraint, the prescribing of medication for the purpose of using the chemical restraint.
State and territory legislation regulates who can give informed consent to the use of a restrictive practice and the prescribing of medication for the purpose of using that medication as a chemical restraint. The proposed amendments to the Quality of Care Principles do not affect the operation of any law of a state or territory in relation to restrictive practices. They seek to complement and clarify those state and territory laws that protect individuals from interference from their personal rights and liberties.
Care recipients must provide informed consent to the use of a restrictive practice wherever possible. If a care recipient does not have capacity to consent, consent must be obtained from someone with authority to provide it, in this case, a restrictive practices substitute decision-maker.
Informed consent must be obtained before the restrictive practice is used, unless the restrictive practice is necessary in an emergency. If the use of a restrictive practice was used in an emergency and the care recipient lacked capacity to consent to the use of the restrictive practice, the restrictive practice substitute decision-maker must be informed as soon as practicable after the restrictive practice starts to be used.
If the ongoing use of a restrictive practice is assessed as necessary, informed consent for the ongoing use of the practice is required. Perpetual or ongoing approval cannot be given to the use of a restrictive practice. The care recipient or their restrictive practice substitute decision maker may withdraw their consent at any time. Therefore, the approved provider should take steps to regularly communicate with the care recipient or their restrictive practices substitute decision-maker, and obtain informed consent contemporaneously.
Monitoring and review of the use of a restrictive practice
The proposed amendments to the Quality of Care Principles stipulate that the use of restrictive practice must be regularly monitored, reviewed, and documented.
An approved provider must monitor a care recipient while a restrictive practice is being used, including monitoring of the following:
• signs of distress or harm;
• side effects and adverse events;
• changes in mode or behaviour;
• changes in well-being, including the care recipient's ability to engage in activities that enhance quality of life and are meaningful and pleasurable;
• changes in the care recipient's ability to maintain independent function (to the extent possible), and
• changes in the care recipient's ability to engage in activities of daily living (to the extent possible).
The proposed amendments to the Quality of Care Principles will also outline how the use of restrictive practices are to be reviewed, which includes consideration of:
• the outcome of its use and whether he intended outcome was achieved;
• whether an alternative strategy could be used to address the care recipient's behaviours of concern;
• whether a less restrictive form of the restrictive practice could be used to address the care recipient's behaviours of concern;
• whether there is an ongoing need for its use; and
• if the restrictive practice is chemical restraint–whether the medication prescribed for the purpose of using the chemical restraint can or should be reduced or stopped.
An approved provider must also review a behaviour support plan for a care recipient and make any necessary revisions on a regular basis and as soon as practicable after any change in the care recipient's circumstances.
Additionally, the use of a restrictive practice must also be continually monitored, reviewed and documented. If there is a change to a care recipient's circumstances or behaviour, a review should be completed to understand what has changed and whether the existing strategies remain best practice for the care recipient. This includes any circumstance where a restrictive practice is used in an emergency.
From 1 July 2021 all use of restraint, including the use of anti-psychotics will be reported to the Department of Health through My Aged Care under the National Aged Care Mandatory Quality Indicator Program.
Any use of restrictive practices that is inconsistent with their legislative requirements will need to be reported by an approved provider to the Commission under the Serious Incident Response Scheme. This ensures the Commission is able to focus on the incidents that pose the greatest risk to care recipients.
The Commission's oversight of restrictive practices is being strengthened through the appointment of a Senior Practitioner. Additionally, the Commission's powers will be expanded with the ability to impose civil penalties where an approved provider is not meeting its restrictive practice obligations.
Documenting and reporting restrictive practice use
Aged care providers are required to document and address the care needs of their care recipients under the Aged Care Act 1997. However, the proposed amendments to the Quality of Care Principles detail the specific matters required to be documented in relation to the use of restrictive practices and alternative strategies that have been used or considered, including their effectiveness.
2.20 As noted in the preliminary analysis, to the extent that the bill, and the legislative instrument, strengthen the responsibilities of approved providers by enhancing safeguards regarding the use of restrictive practices, the measure may assist in ensuring rights are not limited and may promote other rights.[49] The preliminary analysis stated that the measure may not itself directly limit human rights, noting that the regulation of the use of restraints in the Quality of Care Principles adds a layer of regulation on approved providers, but does not appear to affect existing state and territory laws and the common law regarding the use of restraints and informed consent.[50] However, noting the complex interplay of existing laws regulating the use of restraints by approved providers, if the regulation of restraints for aged care providers leads to confusion as to when restraint is, or is not, permitted in residential aged care facilities, the practical operation and effect of the measure may mean, depending on the adequacy of the safeguards, that in practice this measure could limit a number of human rights.[51] As such, it is necessary to consider if the safeguards and protections set out in both the bill and the legislative instrument ensure sufficient protection so as not to limit the human rights of aged care recipients.
2.21 The measure provides significant protections which are aimed at reducing the use of restraint, ensuring that informed consent is obtained prior to the use of restraint, and monitoring and reviewing the use of restraint. In particular, the requirements that restrictive practices only be used as a last resort; after considering all alternative strategies; to the extent necessary and proportionate; in the least restrictive form and for the shortest time; in accordance with the care and services plan/behaviour support plan; and after informed consent is given, would likely serve as important safeguards to ensure better protection around the use of restraints in aged care facilities.
2.22 However, the strength of these safeguards will depend on how they operate in practice. In this regard, some questions remain in relation to the development and implementation of behaviour support plans; the use of restraints in an emergency; the requirement of informed consent; and the monitoring and review of the use of restrictive practices.
2.23 While the bill itself does not prohibit the use of restrictive practices unless used in accordance with a behaviour support plan, the legislative instrument clarifies that the use of a restrictive practice must comply with any relevant provisions in the care and services plan/behaviour support plan.[52] This is an important safeguard as the behaviour support plan sets out an individualised approach to the use of restrictive practice in relation to a care recipient. The matters to be included in a behaviour support plan are relatively comprehensive (as outlined in paragraph [2.12]) and would likely help to reduce the use of restrictive practices and ensure that the least rights restrictive approach is [53]plemented.53 Although, noting the effect of this instrument is to prohibit, except in an emergency, the use of a restrictive practice unless used in accordance with a behaviour support plan, it remains unclear why this was not provided for in the bill itself.
2.24 However, there are some questions regarding the practical operation of a behaviour support plan. In particular, it is not clear who assesses a restrictive practice as necessary for the purposes of inclusion in a behaviour support plan; who develops and implements a behaviour support plan; and who decides when the requirements, including that the restrictive practice be used in compliance with the plan, apply. The instrument provides that it is a requirement for the use of a restrictive practice that it be assessed as necessary by an approved health practitioner who has day-to-day knowledge of the care recipient or a medical practitioner or nurse practitioner in the case of chemical restraint.[54] If a restrictive practice is assessed as necessary by a health, medical or nurse practitioner, the specific details regarding the use of the restrictive practice must be set out in the behaviour support plan. The plan is prepared, reviewed and revised by the approved provider in consultation with the care recipient or their representative (if they lack capacity to be consulted) and the relevant health practitioners, including the approved health practitioner who made the assessment regarding the necessity of using the restrictive practice. The approved provider, as opposed to the relevant health practitioner, decides whether the requirements set out in the instrument are satisfied in relation to the use of a restrictive practice. It remains unclear who within the approved provider would make these decisions in practice, for example, does the person require certain training or qualifications in order to determine whether the use of a restrictive practice is a last resort, the least restrictive and used only to the extent that is necessary and proportionate as well as in compliance with the matters set out in the behaviour support plan. The minister's response did not clarify this issue. As it remains unclear who determines whether a restrictive practice is the 'least restrictive' and 'proportionate', and the criteria relevant to making such a determination, much will depend on how use of restrictive practices pursuant to behaviour support plans occurs in practice. In relation to similar issues raised in the context of NDIS providers, the committee has previously stated that the government may need to monitor behaviour support plans to ensure that their use is compatible with Australia's human rights obligations.[55]
2.25 Another relevant consideration is how the matters in the behaviour support plan interact with the other requirements for the use of restrictive practices. The behaviour support plan may set out matters relating to the ongoing use of a restrictive practice where it is indicated as necessary following a review. It is not clear that an approved health practitioner is required to assess the ongoing use of restrictive practice as necessary, as a review of a behaviour support plan is undertaken by an approved provider, although the relevant health practitioner must be consulted. Where a behaviour support plan indicates a need for the ongoing use of a restrictive practice, it is unclear how the requirement to comply with these matters in a behaviour support plan would interact with the other requirements that a restrictive practice only be used as a last resort to prevent harm, to the extant necessary and proportionate to the risk of harm and in the least restrictive form, and for the shortest time necessary, to prevent harm. There appears to be some inconsistency between requiring compliance with a behaviour support plan that allows for the ongoing use of a restrictive practice and the requirements that a restrictive practice is only used as a last resort, to the extent necessary and proportionate, in the least restrictive form and for the shortest time necessary. This apparent inconsistency may create uncertainty around the practical implementation of the requirements.
Use of restraints in an emergency
2.26 Certain requirements relating to the use of restrictive practices do not apply if such practices are necessary in an emergency (as discussed at paragraph [2.10]). As noted in the preliminary analysis, this may create a gap in protection for the use of restrictive practices and undermine the overall effectiveness of the requirements as a safeguard. What constitutes an emergency is not defined in the bill or legislative instrument. The minister stated that the term 'emergency' is not expressly defined and has its ordinary meaning. The minister noted that the scope of emergency situations can be quite broad and adopting a prescriptive definition is likely to result in unintended consequences and may exclude situations of genuine emergency, thereby creating a risk to the safety, health and wellbeing of care recipients. While noting that the lack of definition of 'emergency' in the legislation may provide flexibility and allow different cases to be treated differently based on individual needs and circumstances, there is also a risk that without sufficient clarity as to the scope of any such power or discretion, broad powers may be exercised in such a way as to be incompatible with human rights.
2.27 The minister also noted that some requirements continue to operate during an emergency. For example, the restrictive practice must still be used only to the extent necessary and proportionate to the risk of harm, and in the least restrictive form, and for the shortest time, necessary to prevent harm. The continued operation of certain requirements would likely serve as a safeguard to ensure that restraints are used in the least rights-restrictive way even in an emergency. In addition, the minister stated that an emergency only applies while there is an immediate risk of harm to a care recipient or other person and once this risk has ceased, the emergency exemptions do not apply. If there is a need for ongoing use of a restrictive practice, this is subject to the requirements set out in the instrument. The provisions specifying that the emergency exemptions only apply while the emergency exists may assist with the proportionality of this measure by ensuring that the exemptions are time limited. Although, noting the lack of definition of emergency, the strength of this safeguard will depend on the length and frequency of emergencies in practice.
2.28 Furthermore, the responsibilities of approved providers following the emergency use of restrictive practices and the requirement to set out matters in behaviour support plans if a restrictive practice was used, including in an emergency, may also operate as safeguards in relation to the emergency use of restraints. The requirement to document matters in the behaviour support plan relating to the emergency use of restraint, such as the behaviours that necessitated the use of the restrictive practice and alternative strategies that were considered or used prior to the use of restraint, would ensure that relevant information is recorded for the purposes of monitoring and review. This could operate as a useful accountability mechanism. In this regard, the minister advised that the Aged Care Quality and Safety Commission will be able to question the circumstances in which emergency use of a restrictive practice occurred. The explanatory statement to the instrument also states that a lack of evidence of the approved provider obtaining consent prior to the use of restraint (noting that informed consent does not need to be obtained in an emergency) may lead to the Commission investigating the approved provider for non-compliance.[56] It stated that if emergencies are recurring and for extended periods of time, this may indicate to the Commission that the approved provider has not provided a safe environment for care recipients.[57] While this oversight framework would likely be an important safeguard, it does not appear to be provided for in the legislation. In the absence of a legislative requirement for the emergency use of restraints to be reviewed and monitored by the Commission, such a discretionary safeguard may not be sufficient of itself.
Informed consent
2.29 A key protection contained in the measure is the requirement that informed consent be given to the use of a restrictive practice. Informed consent may be given by the care recipient or where they lack capacity to give that consent, the restrictive practices substitute decision-maker. A restrictive practices substitute decision-maker means a person or body that can give informed consent to the use of a restrictive practice in relation to the care recipient and to the prescribing of medication for the purpose of using a chemical restraint, if the care recipient lacks the capacity to give that consent.[58] The explanatory statement to the instrument states that state and territory legislation regulates who can give informed consent to the use of a restrictive practice and the prescribing of medication for chemical restraints.[59] It notes that the instrument complements but does not affect the operation of these laws.[60] Regarding the timing of consent, the effect of the instrument appears to be that informed consent must have been given before the use of any restrictive practice, unless the use is necessary in an emergency. In the case of an emergency and where the care recipient lacks the capacity to consent to the use of restrictive practice, the approved provider must, as soon as practicable after the restraint is used on a care recipient, inform the restrictive practices substitute decision-maker about that use.
2.30 Regarding the ongoing use of a restrictive practice, the behaviour support plan must record the giving of informed consent to the ongoing use of the restrictive practice by the care recipient or their substitute decision-maker. However, it is not clear how informed consent would be obtained for the ongoing use of a restrictive practice, noting that this would seemingly require consent to be given for all future uses of a restraint. The explanatory statement to the instrument states that the approved provider should take steps to regularly communicate with the care recipient or their substitute decision-maker and obtain informed consent contemporaneously.[61] It states that informed consent for the ongoing use of a restrictive practice is required but perpetual or ongoing approval cannot be given to the use of a restrictive practice.[62] It is unclear whether the approved provider is required to obtain informed consent prior to each use of a restrictive practice, even where that restrictive practice is used on an ongoing basis in accordance with the care recipient's behaviour support plan. Clarification of this in the legislation would likely assist approved providers in complying with the requirement to obtain informed consent.
2.31 The requirement to obtain informed consent contemporaneously before the use of a restrictive practice (except in an emergency) is an important safeguard to ensure that the human rights of care recipients are not limited. The use of physical and chemical restraints against a person without their consent may engage and limit the right to privacy, which includes the right to personal autonomy and physical and psychological integrity, and protects against compulsory procedures.[63] The requirement to obtain informed consent may therefore protect these rights as well as the rights of people with disability,[64] noting that some aged care recipients would be considered persons with disabilities for the purposes of the Convention on the Rights of Persons with Disabilities.[65] In this regard, the Committee on the Rights of Persons with Disabilities has emphasised that prior to the provision of medical treatment or health care or the making of decisions relating to a person's physical or mental integrity, decision-makers must obtain the free and informed consent of persons with disabilities.[66] Consent should be obtained through appropriate consultation and not as a result of undue influence.[67]
2.32 While the requirement to obtain informed consent is an important protection, there are concerns that the ability to obtain this consent from a restrictive practices substituted decision-maker may weaken this protection. It is acknowledged that while the instrument, which introduces the term 'restrictive practices substitute decision-maker', does not affect the operation of state and territory legislation that regulates substituted decision-making (including who can give informed consent), it does complement and clarify those laws and is therefore relevant in assessing the safeguard value of the informed consent requirement.
2.33 Article 12 of the Convention on the Rights of Persons with Disabilities provides that persons with disabilities have the right to equal recognition before the law, which includes the right to enjoy legal capacity on an equal basis with others in all aspects of life. It also requires States parties to take appropriate measures to provide access to support for persons with disabilities in exercising their legal capacity. The Committee on the Rights of Persons with Disabilities has confirmed that there can be no derogation from article 12, which describes the content of the general right to equality before the law under the International Covenant on Civil and Political Rights.[68] In other words, 'there are no permissible circumstances under international human rights law in which this right may be limited'.[69] The denial of legal capacity to care recipients through the provision of a restrictive practices substituted decision-maker would therefore engage this right.[70] The Committee on the Rights of Persons with Disabilities has stated that substituted decision-making should be replaced by supported decision-making.[71] Supports may include peer support, advocacy, assistance with communication or advance planning, whereby a person can state their will and preferences in advance should they be unable to do so at a later point in time. The Committee on the Rights of Persons with Disabilities has noted that 'where, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual, the "best interpretation of will and preferences" must replace the "best interests" determinations'.[72] States are also required to create appropriate and effective safeguards for the exercise of legal capacity to protect people with disability from abuse.[73]
2.34 The explanatory statement to the instrument notes that the care recipient should be supported or assisted to make their own decisions, including communicating with them in a way they can understand and providing them with an opportunity to discuss their concerns and expectations.[74] While encouraging supported decision-making is a positive step, it is not a legislative requirement and thus may not effectively protect the right to equal recognition before the law in practice. As such, while requiring informed consent from the care recipient before the use of restrictive practice would protect article 12, in the absence of effective safeguards for the exercise of legal capacity, the ability for a substituted decision-maker to consent to a restrictive practice in relation to the care recipient would appear to undermine this protection.
Monitoring, review, and oversight
2.35 While a restrictive practice is being used, the approved provider is required to monitor the care recipient for certain things, such as for signs of distress or harm; regularly monitor, review and document the necessity of the restrictive practice; and monitor the effectiveness of the restrictive practice.[75] Following the use of an emergency restrictive practice, the approved provider must document in the care and services plan/behaviour support plan certain matters, including the reasons the emergency restraint was necessary.[76] Regarding review of a behaviour support plan, the plan must be reviewed on a regular basis and as soon as practicable after any change in the care recipient's circumstances. It is unclear what constitutes review on a 'regular basis'. The explanatory statement states that if a care recipient's behaviour needs are stable and do not change over a 12-month period, 'a review must be completed within the 12 months'.[77] It further states that it is expected that a plan will be reviewed 'significantly more frequently than every 12 months'.[78] It is unclear, however, why the legislation does not reflect this expectation, for example by stating that a review must be completed within a specified timeframe, such as at least every 12 months, noting that discretionary safeguards are less stringent than the protection of statutory processes and can be amended or removed at any time.
2.36 While these review and monitoring frameworks appear to be an important safeguard, there remain concerns about the approved provider being both the person using the restrictive practice and the person documenting, monitoring and reviewing the use of the restrictive practice. This lack of independence may undermine the effectiveness of the monitoring and review mechanisms. In terms of external oversight, the Aged Care Quality and Safety Commissioner will only be notified of reportable incidents. The instrument clarifies that the use of a restrictive practice will not be a reportable incident if it is used in a transition care program in a residential care setting and in accordance with the Quality of Care Principles.[79] Therefore, if a restrictive practice is used in accordance with the requirements set out in the instrument (including in an emergency), it would not be a reportable incident and the Commissioner would not be notified of its use. As discussed at paragraph [2.28], there appears to be little oversight by the Aged Care Quality and Safety Commission of emergency use of restraints.
2.37 Furthermore, the minister noted that from 1 July 2021, all use of restraint, including chemical restraint, will be reported to the Department of Health through My Aged Care under the National Aged Care Mandatory Quality Indicator Program. However, as this information will presumably be reported by the approved providers, this reporting process does not address concerns regarding the lack of independence of those using, monitoring and reporting incidents of the use of restraint.
Concluding remarks
2.38 The effect of the instrument is to prohibit, except in an emergency, the use of a restrictive practice unless the use complies with the requirements specified in the instrument, including compliance with a behaviour support plan. To the extent that these requirements strengthen the responsibilities of approved providers by enhancing safeguards regarding the use of restrictive practices, the measure may assist in ensuring rights are not limited and may promote other rights. However, depending on the adequacy of the safeguards and noting the complex interplay of existing laws regulating the use of restraints by approved providers, the practical operation and effect of the measure could limit a number of human rights.
2.39 The measure contains a number of important safeguards that would likely provide protection so as to help protect the human rights of aged care recipients. These include the requirements set out in the instrument, including using restraint as a last resort, to the extent necessary and proportionate, in the least restrictive form and for the shortest time; the behaviour support plans; and the monitoring and review frameworks. The strength of these safeguards, however, will depend on how they are applied in practice. Questions remain as to how the behaviour support plans will be implemented in practice, including who within the approved provider would make decisions about the use of restrictive practices, and how certain matters in the behaviour support plan would interact with other requirements for the use of restrictive practices. There are also concerns regarding the use of restraints in an emergency, noting that certain requirements do not apply to such use, and the lack of independence of those who use, monitor and review the use of restrictive practices. Other factors, such as staffing ratios, may also undermine the effectiveness of these protections in practice.[80]
2.40 The committee notes that this bill (now Act, noting that it has passed both Houses of Parliament) set out certain requirements regarding the use of restrictive practices in aged care facilities. These requirements were subsequently included in recent amendments to the Quality of Care Principles, as set out in the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021. This instrument strengthens existing requirements, and provides that restraints may only be used in aged care facilities: as a last resort; after considering all alternative strategies; to the extent necessary and proportionate; in the least restrictive form and for the shortest time; after informed consent is given; in accordance with a behaviour support plan; and that the use of a restrictive practice is monitored and reviewed. However, certain requirements do not apply in 'emergency' situations.
2.41 The committee welcomes these amendments to the Quality of Care Principles, noting that many of these amendments directly address recommendations made by the committee in its 2019 inquiry into the regulation of restraints under the Quality of Care Principles, particularly that restraints should only be used as a last resort and after all other alternatives to restraint have been exhausted.
2.42 The committee notes that to the extent that these requirements strengthen the responsibilities of approved providers by enhancing safeguards regarding the use of restrictive practices, the measure may assist in ensuring rights are not limited and may promote other rights. In particular, the committee considers the measure may assist in ensuring there are appropriate safeguards to protect the right not to be subjected to torture and other cruel, inhuman or degrading treatment, and may also promote the rights to health, privacy, freedom of movement, liberty, equality and non-discrimination and the rights of persons with disability.
2.43 However, some questions remain as to how some of these restrictions on the use of restraints will operate in practice, particularly in relation to the development and implementation of behaviour support plans, the use of restraints in an emergency, the requirement of informed consent, and the monitoring and review of the use of restrictive practice. The committee notes that the strength of the safeguards accompanying this measure will depend on how they are applied in practice.
|
Suggested action
2.44 The committee considers that the compatibility of the measure with
human rights may be assisted were the instrument amended to:
(a) specify who within the approved provider may make decisions
regarding the use of a restrictive practice, and the criteria on which
those
decisions are to be made;
(b) require all emergency uses of restrictive practices to be reported
to the Aged Care Quality and Safety Commission Care Commission;
(c) set out a model of supported, rather than substituted,
decision-making in relation to obtaining informed consent for the use of
a
restrictive practice;
(d) require that the person or body who monitors and reviews the use of
a restrictive practice must be independent from the person
who used the
restrictive practice, or at a minimum, ensure that a more senior practitioner
monitor and review the use of the restrictive
practice; and
(e) require the Department of Health to table a report in Parliament, at
least annually, on the use of restrictive practices in relation
to care
recipients, including the proportion of restrictive practices used in an
emergency.
2.45 The committee recommends that the explanatory statement to the
legislative instrument be updated to reflect the information which
has been
provided by the minister.
|
2.46 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 and Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], Report 10 of 2021; [2021] AUPJCHR 101.
[3] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.
[4] Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2021), pp. 2-10.
[6] Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019).
[7] Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019), recommendation 2, pp. 54–55.
[8] See Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019. See also Australian Government response to the Parliamentary Joint Committee on Human Rights report on the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019, 18 March 2020, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/QualityCareAmendment/Government_Response (accessed 9 June 2021).
[9] See Australian Healthcare Associates, Independent review of legislative provisions governing the use of restraint in residential aged care: Final report, December 2020, https://www.health.gov.au/sites/default/files/documents/2021/02/independent-review-of-legislative-provisions-governing-the-use-of-restraint-in-residential-aged-care-final-report.pdf (accessed 9 June 2021).
[10] See Royal Commission into Aged Care Quality and Safety Counsel Assisting's Final Submissions, 22 October 2020, recommendation 29, p. 151, https://agedcare.royalcommission.gov.au/sites/default/files/2021-02/RCD.9999.0541.0001.pdf (accessed 9 June 2021).
[11] See Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect – Volume 3A, The New System, 2021, recommendation 17, pp. 109–110, https://agedcare.royalcommission.gov.au/sites/default/files/2021-03/final-report-volume-3a_0.pdf (accessed 9 June 2021).
[12] Explanatory memorandum, p. 1.
[13] Schedule 1, item 3, proposed new section 54-9.
[14] Schedule 1, item 3, proposed new subsection 54-10(1).
[15] Schedule 1, item 3, proposed new subsection 54-10(2).
[16] The responsibilities of approved providers relating to restrictive practices are set out in schedule 1 and commence from 1 July 2021. The responsibilities of approved providers relating to behaviour support plans are set out in schedule 2 and commence from 1 September 2021. The explanatory statement states that the amended behaviour support plan requirements commence from 1 September 2021 to allow sufficient time for aged care providers to prepare to meet these requirements: p. 2.
[17] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, section 15E. Each type of restrictive practice is defined in subsections 15E(2)–(6).
[18] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, sections 15F and 15FA.
[19] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, subsection 15FB(1).
[20] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, subsection 15FC(1).
[21] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, paragraph 15FC(1)(b).
[22] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, paragraph 15FC(1)(c). The instrument notes that codes of appropriate professional practice for medical practitioners and nurse practitioners require practitioners to obtain informed consent before prescribing medication.
[23] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, subsections 15FA(2), 15FB(2) and 15FC(2).
[24] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, subsections 15FA(3), 15FB(3) and 15FC(3); schedule 2, item 9, section 15HE.
[25] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, sections 15GA and 15GB; schedule 2, items 6–8, subparagraphs 15GB(b)–(d).
[26] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 11, subsection 15MB(2).
[27] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2.
[28] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2, item 9, sections 15HA, 15HB and 15HG.
[29] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2, item 9, section 15HC.
[30] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2, item 9, sections 15HD and 15HE.
[31] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2, item 9, section 15HF.
[32] As identified in the statement of compatibility, pp. 4–6.
[33] International Covenant on Civil and Political Rights, article 7; Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5.
[34] United Nations (UN) Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, adopted by the committee at its tenth session, CRPD/C/AUS/CO1 (2013) [35]-[36].
[35] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53 (2013) [63]; UN General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, A/63/175 (2008) [55].
[36] International Covenant on Economic, Social and Cultural Rights, article 12. See UN Committee on Economic, Social and Cultural Rights, General Comment No.14: The Right to the Highest Attainable Standard of Health (2000) [8].
[37] Convention on the Rights of Persons with Disabilities. See also UN Committee on Economic, Social and Cultural Rights, General Comment No.14: The Right to the Highest Attainable Standard of Health (2000), [8]. The rights of persons with disabilities are relevant insofar as some aged care residents may have physical or mental impairments that constitute a disability.
[38] International Covenant on Civil and Political Rights, article 17.
[39] Convention on the Rights of Persons with Disabilities, article 22.
[40] International Covenant on Civil and Political Rights, article 9. The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability.
[41] Convention on the Rights of Persons with Disabilities, article 14.
[42] International Covenant on Civil and Political Rights, article 12.
[43] United Nations Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999) [7]; see also United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22.44 (2012) [55] and [57]; Foka v Turkey, European Court of Human Rights Application No.28940/95, Judgment (2008) [78]; Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (2010) [54]-[57]; Austin v United Kingdom, European Court of Human Rights Application Nos. 39692/09, 40713/09 and 41008/09, Grand Chamber (2012) [57]; Gahramanov v Azerbaijan, European Court of Human Rights Application No.26291/06, Judgment (2013) [38]-[45].
[44] Convention on the Rights of Persons with Disabilities, article 12. This includes an obligation to ensure that all measures that relate to legal capacity provide for appropriate and effective safeguards to prevent abuse.
[45] Convention on the Rights of Persons with Disabilities, article 17.
[46] Convention on the Rights of Persons with Disabilities, article 16.
[47] International Covenant on Civil and Political Rights, article 26.
[48] The minister's response to the committee's inquiries was received on 22 June 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[49] As identified in the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021, statement of compatibility, pp. 4–6. These rights include the rights to health, privacy, liberty, freedom of movement, equality and discrimination, the rights of people with disability, and the prohibition on torture or cruel, inhuman or degrading treatment of punishment.
[50] See Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019), pp. 45–47. Note also in relation to the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 that the explanatory memorandum, at p. 10, states: 'This Bill is not intended to affect the operation of those state and territory laws, which protect individuals from undue interference with their personal rights and liberties in relation to the use of restrictive practices'. Note in relation to the Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], at p. 15, the explanatory statement states: 'The amendments introduced by the Amending Principles do not affect the operation of those state and territory laws [that regulate who can give informed consent to the use of restrictive practices, including chemical restraint], which protect individuals from undue interference with their personal rights and liberties in relation to the use of restrictive practices'.
[51] For a discussion on the issue of legal vagueness in relation to the rights implications of a legislative instrument, see Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019), pp. 45–47. The High Court has found that vagueness remains a significant issue in considering the 'practical operation and effect' of legislation. In considering the impact of legislation on rights and freedoms, for example, the High Court has found that it is this practical operation and effect of any impugned measures that must be justified, regardless of any ultimate judicial interpretation of their proper construction: Brown v Tasmania (2017) 261 CLR 328 (Kiefel CJ, Bell and Keane JJ), [37], [77] and [79], [117]-[118] and [148]-[151].
[52] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, paragraph 15FA(1)(g); schedule 2, item 2, paragraph 15FA(1)(g).
[53] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 2, item 9, section 15HC.
[54] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, sections 15B and 15C.
[55] Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) p. 48.
[56] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 18.
[57] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 18.
[58] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 2, section 4.
[59] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 8.
[60] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, pp. 8 and 15.
[61] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 15.
[62] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, pp. 31–32.
[63] See, MG v Germany, UN Human Rights Committee Communication No. 1428/06 (2008) [10.1]. Note also that article 7 of the International Covenant on Civil and Political Rights expressly prohibits medical or scientific experimentation without the free consent of the person concerned. Article 7 may not be engaged in relation to non-experimental medical treatment, even when given without consent, unless it reaches a certain level of severity. See Brough V Australia, UN Human Rights Committee Communication No. 1184/03 (2006) [9.5], where the Committee concluded that the prescription of anti-psychotic medication to the author without his consent did not violate article 7, noting that the medication was intended to control the author's self-destructive behaviour and treatment was prescribed by a General Practitioner and continued after examination by a psychiatrist. However, with respect to persons with disability, the UN Committee on the Rights of Persons with Disabilities has held that 'forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention': General comment No. 1 – Article 12: Equal recognition before the law (2014) [42].
[64] These rights include the rights to equality and non-discrimination and equal recognition before the law; the right to respect a person's physical and mental integrity; the right to consent to medical treatment; and the right not to be forced to undergo mental health treatment. See Convention on the Rights of Persons with Disabilities, articles 5, 12, 14, 17 and 25(d). See also Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [31].
[65] Convention on the Rights of Persons with Disabilities, article 1, which states that 'persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others'.
[66] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [41]–[42].
[67] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [41].
[68] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [1], [5].
[69] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [5].
[70] The Committee on the Rights of Persons with Disabilities has made clear that practices that deny the right of people with disability to legal capacity in a discriminatory manner, such as substituted decision-making regimes, must be 'abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others': General comment No. 1 – Article 12: Equal recognition before the law (2014) [7]. For a discussion of the academic debate regarding the interpretation and application of article 12, particularly in relation to substituted decision-making, see, eg, Bernadette McSherry and Lisa Waddington, 'Treat with care: the right to informed consent for medical treatment of persons with mental impairments in Australia', Australian Journal of Human Rights, vol. 23, issue no. 1, pp. 109–129.
[71] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [15]–[16], [21]. The features of a supported decision-making regime are detailed in paragraph [29].
[72] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [21].
[73] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [20]; Convention on the Rights of Persons with Disabilities, article 12(4).
[74] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 15.
[75] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, section 15GA.
[76] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 9, section 15GB.
[77] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 32.
[78] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], explanatory statement, p. 32.
[79] Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021 [F2021L00923], schedule 1, item 11, section 15NB(2).
[80] Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect – Volume 3A, The New System, 2021, recommendation 17, pp. 109–110. At page 111, the report noted that changed behaviours of care recipients can be 'very difficult to manage, particularly in residential aged care facilities where there are inadequate numbers of staff and inadequate access to expertise and resources'.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/101.html