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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill 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
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Portfolio
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Health
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Introduced
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House of Representatives, 27 May 2021
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Rights
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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
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1.4 The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019[2] 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.[3] 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.[4] 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.[5] 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.[6]
1.5 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.[7] The Royal Commission into Aged Care Quality and Safety's Final Report made a number of recommendations to regulate the use of restraints.[8] The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 is stated to be in response to the recommendations of the Royal Commission and the independent review. [9]
1.6 This bill seeks to amend 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 inserts 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.[10] The amendments in the bill would 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.[11]
1.7 The bill also provides 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.[12]
1.8 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,[13] including:
• the prohibition on torture or cruel, inhuman or degrading treatment or punishment:[14] 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.[15] 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;[16]
• the right to health: which includes the right to be free from non-consensual medical treatment.[17] 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;[18]
• 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.[19] Similarly, no person with disability shall be subjected to arbitrary or unlawful interference with their privacy;[20]
• 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.[21] The existence of a disability shall also, in no case, justify a deprivation of liberty.[22] The right to freedom of movement includes the right to liberty of movement within a country.[23] 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.[24] 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;[25] the right of persons with disabilities to physical and mental integrity on an equal basis with others;[26] and the right to freedom from exploitation, violence and abuse;[27] 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.[28]
1.9 As the committee considered in its 2019 inquiry report, 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, this measure may not itself directly limit human rights.[29] 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.
1.10 In this regard, the bill appears to provide significant protections which are aimed at reducing the use of restraint, in particular the requirements that restraints may 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; and after informed consent is given; and that the use of a restrictive practice is monitored and reviewed. These are important safeguards that are likely to ensure better protection around the use of restraints in aged care facilities.
1.11 However, some questions remain as to how some of these restrictions on the use of restraints will operate in practice. In particular, it is unclear why the bill does not prohibit the use of restrictive practices unless used in accordance with a behavioural support plan, which sets out in an individualised way for each care recipient how any behavioural issues may be dealt with. The Royal Commission into Aged Care Quality and Safety recommended restrictive practices be prohibited unless recommended by an accredited independent expert as part of a behaviour support plan.[30] This is also a requirement under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (NDIS rules). The explanatory memorandum states that the Quality of Care Principles will 'clarify' that from 1 September 2021 'approved providers will be required to create behaviour support plans to inform the use of restrictive practices on a care recipient'.[31] However, it is not clear why this is not provided for in this bill, and why the legislation does not state that restrictive practices are prohibited unless done in accordance with such a plan. It is also not clear who makes a decision around when these requirements apply. For example, who determines that use of a restrictive practice is a last resort, the least restrictive and used to the extent that is necessary and proportionate – is it a health practitioner, an aged care worker, or a specialist behaviour support provider (as required by the NDIS rules)? [32]
1.12 Further, there appears to be a gap in protection for the use of restrictive practices when such practices are used in an 'emergency'. The bill provides that the Quality of Care Principles may provide that 'a requirement' specified in those Principles does not apply if the use is necessary in an emergency.[33] What constitutes an emergency is not defined in the bill. The explanatory memorandum provides no further detail in relation to this, simply restating the provision in the bill and adding 'noting that an emergency could be behaviourally based'.[34] Of particular concern is that there is no limit on what aspect of the restraint requirements could be overridden during an emergency. If all of the requirements are stated not to apply in an emergency situation, depending on how an 'emergency' is interpreted, this could undermine the safeguards contained in the bill. It is not clear, in particular, why it is necessary to allow the following requirements to be overridden in an emergency: 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 – noting that these appear to be requirements that could still comfortably operate during an emergency situation.
1.13 In addition, while the bill provides that a restrictive practice may only be used when 'informed consent is given to the use', it is not clear if this will require informed consent to be given each time a restrictive practice is used, or whether consent can be given for future uses of a restraint. The Department of Health previously advised the committee in its 2019 inquiry that informed consent must be met for each use of a physical restraint, which could mean, for example, that if bedrails are used because a care recipient is experiencing side effects while on antibiotics for 14 days, consent is given to the use of restraint for this full two week period.[35] In relation to chemical restraints (for example, psychotropic medications such as antipsychotics, benzodiazepines or antidepressants to sedate or subdue residents with dementia), it appears consent is meant to be obtained at the time the chemical restraint is prescribed.[36] It is therefore not clear if the bill's requirement for informed consent for the use of a restrictive practice would require consent to be obtained, or at least confirmed, when the chemical restraint is administered.
1.14 Finally, the bill provides that the Quality of Care Principles must make provision for, or in relation to, the monitoring and review of the use of a restrictive practice in relation to a care recipient. However, no information has been provided as to who will monitor the use of the practice, who will undertake a review into the practice, and whether such persons will be independent from the person who uses the restrictive practice. The bill also provides that any alternative strategies that have been considered or used in relation to a care recipient must be documented. However, it does not appear to provide that the use of the restrictive practice itself needs to be documented. It is also noted that the Aged Care Act 1997 now provides that the use of a restrictive practice in relation to a residential care recipient is a reportable incident (so that the Aged Care Quality and Safety Commissioner is notified of its use).[37] However, this does not apply when the restrictive practice is used in the circumstances set out in the Quality of Care Principles. As such, noting that the Principles can provide that none of the requirements set out in the bill apply to the use of a restrictive practice used in an emergency, it is not clear if such emergency use would be a reportable incident (noting it would be done in accordance with the Principles).
1.15 Therefore, 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.
1.16 The committee notes that this bill seeks to set out certain requirements regarding the use of restrictive practices in aged care facilities. These requirements would strengthen existing requirements, and would provide 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; and that the use of a restrictive practice is monitored and reviewed. However, these requirements may not apply in 'emergency' situations.
1.17 The committee welcomes these proposed amendments as it considers these offer much stronger protections regarding minimising the use of restraints against vulnerable aged care residents. The committee notes 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. The committee considers 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.
1.18 However, some questions remain as to how some of these restrictions on the use of restraints will operate in practice. 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 residents.
1.19 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such seeks the minister's advice as to the matters set out at paragraph [1.15].
[1] 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, Report 7 of 2021; [2021] AUPJCHR 60.
[3] Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019).
[4] 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.
[5] 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).
[6] 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).
[7] 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).
[8] 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).
[9] Explanatory memorandum, p. 1.
[10] Schedule 1, item 3, proposed new section 54-9.
[11] Schedule 1, item 3, proposed new subsection 54-10(1).
[12] Schedule 1, item 3, proposed new subsection 54-10(2).
[13] As identified in the statement of compatibility, pp. 4–6.
[14] International Covenant on Civil and Political Rights, article 7; Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5.
[15] 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].
[16] 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].
[17] 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].
[18] 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.
[19] International Covenant on Civil and Political Rights, article 17.
[20] Convention on the Rights of Persons with Disabilities, article 22.
[21] International Covenant on Civil and Political Rights, article 9. The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability.
[22] Convention on the Rights of Persons with Disabilities, article 14.
[23] International Covenant on Civil and Political Rights, article 12.
[24] 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].
[25] 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.
[26] Convention on the Rights of Persons with Disabilities, article 17.
[27] Convention on the Rights of Persons with Disabilities, article 16.
[28] International Covenant on Civil and Political Rights, article 26.
[29] 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 this bill 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'.
[30] 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).
[31] Explanatory memorandum, p. 10.
[32] National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, section 18.
[33] Schedule 1, item 3, proposed new subsection 54-10(2).
[34] Explanatory memorandum, p. 14.
[35] Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019), p. 39.
[36] Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (13 November 2019), pp. 39–41.
[37] Aged Care Act 1997, subsections 54–3(2)(g).
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