|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
This legislative instrument amends the Quality of Care Principles 2014
to authorise certain individuals or bodies to provide informed
consent to the
use of a restrictive practice in relation to a care recipient
|
|
Portfolio
|
Health and Aged care
|
|
Authorising legislation
|
|
|
Last day to disallow
|
15 sitting days after tabling (tabled in the House of Representatives on
1 December 2022 and in the Senate on 6 February 2023).
Notice
of motion to disallow must be given by 21 March 2023 in the House and 29
March 2023 in the Senate[2]
|
|
Rights
|
Rights of persons with disabilities; equal recognition before the law;
equality and non-discrimination; access to justice; effective
remedy
|
1.92 This legislative instrument amends the Quality of Care Principles 2014 (Quality of Care Principles) to specify a hierarchy of persons who can give consent on behalf of persons in aged care to the use of restrictive practices, if the care recipient is assessed to lack capacity to give consent. Restrictive practices include physical, environmental, mechanical or chemical restraints or seclusion[3] (such as the use of restraining chairs, bed rails, locked doors or medications for the purpose of sedation). The instrument specifies who is classified as a 'restrictive practices substitute-decision maker'.
1.93 Under the instrument, the priority for who can give consent is an individual or body appointed under a relevant state or territory law (where the care recipient lives) who can give consent to a restrictive practice.[4] If no such person or body has been appointed and there is no clear mechanism for appointing such a person or body, or an application has been made but there is a significant delay in deciding the appointment, then the following persons or bodies can give consent in hierarchical order:[5]
(a) a restrictive practices nominee – being an individual or group of individuals nominated in writing by the care recipient while they still had capacity;
(b) the care recipient's partner with whom they have a close continuing relationship;
(c) a previous unpaid carer, who is a relative or friend of the care recipient with whom they have a close continuing relationship and who has a personal unpaid interest in the care recipient's welfare (and if more than one, the eldest relative or friend);
(d) the care recipient's relative or friend with whom they have a close continuing relationship and who has a personal unpaid interest in the care recipient's welfare (and if more than one, the eldest relative or friend); or
(e) a medical treatment authority, being a person or body appointed in writing under state or territory law as one that can give consent to the provision of medical treatment to the care recipient.
1.94 All of those who could consent on the care recipients' behalf have to themselves have the capacity to consent and have agreed in writing to act as a restrictive practices substitute decision-maker.
1.95 The Aged Care Act 1997 provides that if a restrictive practice is used on a person in aged care who is assessed to lack capacity to give informed consent to its use, an approved provider or anyone who uses the restrictive practice is not subject to any criminal or civil liability for its use, if informed consent was given by a person or body specified in delegated legislation.[6] This instrument provides that the persons or bodies listed in the instrument are specified for the purposes of this immunity.
1.96 Prior to the introduction of this instrument, the Quality of Care Principles only specified as a restrictive practices substitute decision-maker a person or body authorised under state or territory law to give consent to the use of restrictive practices.[7] This instrument is intended to address 'unexpected outcomes' as in many jurisdictions it is unclear if the relevant state or territory laws can provide the necessary authorisation. To this end, this instrument is intended to introduce interim arrangements to allow time for state and territory governments to make amendments to their consent and guardianship laws.[8] As such, the amendments last for two years, and then will revert back to provide that consent can be given only as authorised as per state and territory laws.[9]
1.97 Setting out who can consent to the use of restrictive practices on behalf of a care recipient engages and may promote and limit a number of human rights, as set out by the committee in previous report entries.[10] In particular, specifying who can consent on another person's behalf when that person is assessed to lack capacity to give consent, engages and limits the rights of persons with disabilities, including the right of persons with disabilities to consent to medical treatment.[11]
1.98 Article 12 of the Convention on the Rights of Persons with Disabilities provides that in all measures that relate to the exercise of legal capacity, there should be appropriate and effective safeguards to prevent abuse. Such safeguards must ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by an independent and impartial body.[12] The United Nations (UN) 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.[13] In other words, 'there are no permissible circumstances under international human rights law in which this right may be limited'.[14] While not all aged care recipients are people with disability, those who are assessed to lack capacity are invariably those with cognitive impairment and thus, in effect, the measure exclusively applies to people with disability. Enabling a substitute decision-maker to consent to the use of a restrictive practice on behalf of a care recipient would therefore engage the rights of persons with disability.[15]
1.99 The UN Committee on the Rights of Persons with Disabilities has stated that substitute decision-making should be replaced by supported decision-making.[16] 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'.[17] States are also required to create appropriate and effective safeguards for the exercise of legal capacity to protect persons with disabilities from abuse.[18]
1.100 In addition, the Convention on the Rights of Persons with Disabilities requires health professionals to provide care of the same quality to persons with disabilities as to others including on the basis of free and informed consent.[19] It also provides persons with disabilities must be protected from all forms of exploitation, violence and abuse.[20]
1.101 The engagement of the rights of persons with disability by this instrument was not acknowledged in the statement of compatibility accompanying the instrument, and as such, no assessment of the compatibility of the instrument with these rights has been provided.[21]
1.102 The explanatory statement to the instrument states that the instrument is not intended to displace the common law presumption of capacity.[22] However, it is not clear that the common law presumption would necessarily require aged care providers and their staff to provide for supported decision-making before approaching a restrictive practices substitute decision-maker.
1.103 Further, it is unclear whether an individual or body appointed under state or territory law would be required to try to determine the will and preferences of the care recipient or the best interpretation of their will and preferences. For example, while some jurisdictions have legislation stating that medical treatment decision makers should respect the preferences of the person they are making decisions on behalf of,[23] other jurisdictions require substitute decision-makers to 'act in the best interests' of the person.[24] Yet, as stated above, 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'.[25]
1.104 The instrument provides that a person appointed under state or territory law takes precedence over other persons listed in the instrument. It is not clear if guidance has been provided to aged care providers to make it clear in each state and territory when they should follow the laws of the state or territory or when they should use the list of persons in this instrument. It is also not clear exactly when the list of persons has effect, noting that the instrument states that it only has effect if there is no such individual or body appointed under state or territory law and either there is no clear mechanism for appointing such a person, or an application has been made for an appointment but there is a significant delay in making the application.[26] It is not clear who determines whether there is a 'clear mechanism for appointing' a person under the state and territory laws, or what is a 'significant delay' in deciding an application. It is also not clear what happens if an application has been made, but not yet determined, but there is no significant delay. In such cases it would appear that while no-one may yet be appointed under the state and territory law, the list of persons in the instrument would not yet take effect.
1.105 Further, it appears that there is no requirement on persons in the list, be they nominees, partners, carers, relatives or friends, to seek to determine the will and preferences of the aged care recipient in consenting to the use of the restrictive practice. It is also not clear that partners, friends or relatives would have the necessary skills or expertise needed to question the use of restrictive practices. There are also a number of terms in the instrument which likely leave a great deal of discretion to the aged care providers and their staff to determine, such as who has a 'close continuing relationship' with the aged care recipient, who was 'a carer' for them on an unpaid basis, and who has a 'personal interest in the care recipient's welfare'.[27]
1.106 In addition, under the instrument the last option for gaining consent is to seek consent from a 'medical treatment authority'. This is someone who has been appointed in writing as someone who can give consent to medical treatment on the aged care recipient's behalf under state or territory law. However, it is not clear if all states and territories have laws that would always authorise persons 'in writing' to give consent. If not all state and territory laws fit within the definition in the instrument it would appear that there would be no one legally able to provide consent to the use of the restrictive practices, and as such, if providers, out of perceived necessity, use the restrictive practice without consent, there would be no consent to that use, and therefore limited oversight.
1.107 In addition, this instrument, in specifying persons who may consent for the purposes of granting immunity from all civil and criminal liability to those who rely on that consent, engages and may limit the rights of persons with disabilities to equal recognition before the law, equality and non-discrimination, and access to justice and has implications for the right to an effective remedy.[28] The committee considered the immunity provision in 2022 when it was introduced as an amendment to the Aged Care Act 1997 and concluded that it did not appear to be compatible with the above listed rights.[29] This instrument, in specifying the persons who may give consent, to ensure the immunity applies, raises the same concerns. These concerns were not addressed in the statement of compatibility and so no assessment of compatibility with these rights was provided.
1.108 The committee notes that setting out who can consent to the use of restrictive practices on behalf of an aged care recipient engages and may promote and limit a number of human rights. In particular, the committee considers this may limit the rights of persons with disabilities. Further, specifying persons who may consent for the purposes of granting immunity from all civil and criminal liability to those who rely on that consent, engages and may limit the rights of persons with disabilities to equal recognition before the law, equality and non-discrimination, and access to justice and has implications for the right to an effective remedy.
1.109 The committee considers further information is required to assess the compatibility of this measure with these rights, and as such seeks the minister's advice in relation to:
(a) what guidance has been provided to aged care providers to assist them in assessing if a care recipient lacks capacity to give consent (and so when it is, or is not, appropriate to rely on the consent arrangements in the instrument);
(b) what guidance has been provided to aged care providers to enable them to determine if the law in their state or territory allows for the appointment of an individual or body to give consent to the use of restrictive practices;
(c) who determines whether there is a 'clear mechanism for appointing' a person under the state and territory laws, or what is a 'significant delay' in deciding an application for appointment under the state or territory laws;
(d) who is authorised to give consent under the instrument if an application for an appointment to consent to the use of restrictive practices has been made under state or territory law but not yet determined, but there is no significant delay in deciding the application (yet no one is yet appointed);
(e) are all the state and territory laws that allow for the appointment of an individual or body to give consent to the use of restrictive practices consistent with the Convention on the Rights of Persons with Disabilities. If not, what is the Commonwealth, as the signatory to the Convention, doing to ensure the use of restrictive practices in aged care is compatible with human rights (now, and in two years when the instrument reverts back to provide that consent will only be as set out in state and territory law);
(f) why does the instrument not require that restrictive practices substitute decision-makers must have a duty to seek to ascertain the wishes of the care recipient and, where possible, act in a manner consistent with their will and preferences;
(g) will substitute decision-makers as specified in this instrument have the necessary skills and expertise to be able to properly give informed consent to the use of restrictive practices;
(h) do all states and territories have laws that allow for a medical treatment authority to be appointed in writing, and if not, what can aged care providers do to seek consent;
(i) since this instrument came into force how many notifications in aged care facilities across the Commonwealth have been made specifying that restrictive practices have been used without consent (organised per jurisdiction); and
(j) how is specifying persons as those who may give consent for the purposes of granting immunity from all civil and criminal liability consistent with the rights of persons with disabilities to equal recognition before the law, equality and non-discrimination, access to justice and the right to an effective remedy.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Quality of Care Amendment (Restrictive Practices) Principles 2022 [F2022L01548], Report 1 of 2023; [2023] AUPJCHR 9.
[3] See Quality of Care Principles 2014, section 15E.
[4] See Quality of Care Amendment (Restrictive Practices) Principles 2022, Schedule 1, item 3, subsection 5B(1).
[5] Quality of Care Amendment (Restrictive Practices) Principles 2022, Schedule 1, item 3, subsection 5B(2) and table.
[6] Aged Care Act 1997, section 54-11.
[7] See Quality of Care Principles 2014, section 4A definition of 'restrictive practices substitute decision-maker' (as in force before 1 December 2022).
[8] Explanatory statement to the Quality of Care Amendment (Restrictive Practices) Principles 2022, pp. 2–3.
[9] Quality of Care Amendment (Restrictive Practices) Principles 2022, Schedule 3.
[10] See most recently Parliamentary Joint Committee on Human Rights, Report 10 of 2021 (25 August 2021) pp. 63–90.
[11] The committee has previously commented on this, see most recently Parliamentary Joint Committee on Human Rights, Report 1 of 2022 (9 February 2022) pp. 23–39.
[12] Convention on the Rights of Persons with Disabilities, article 12(4). See also article 17.
[13] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [1], [5].
[14] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [5].
[15] The Committee on the Rights of Persons with Disabilities has made clear that practices that deny the right of people with disabilities to legal capacity in a discriminatory manner, such as substitute 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 substitute decision-making, see e.g. 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 (2017) vol. 23, issue no. 1, pp. 109–129.
[16] 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].
[17] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [21].
[18] 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).
[19] Convention on the Rights of Persons with Disabilities, article 25(d).
[20] Convention on the Rights of Persons with Disabilities, article 16.
[21] The statement of compatibility stated that the instrument only promoted rights, by setting out clear consent arrangements.
[22] Explanatory statement to the Quality of Care Amendment (Restrictive Practices) Principles 2022, p. 3
[23] See for example Medical Treatment Planning and Decisions Act 2016 (Victoria).
[24] See for example Guardianship and Administration Act 1990 (Western Australia).
[25] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [21].
[26] Quality of Care Amendment (Restrictive Practices) Principles 2022, Schedule 1, item 3, new subsection 5B(2).
[27] It is noted that subsections 5B(3) and (4) set out some detail about who was a carer and who has a personal interest in the care recipient's welfare – but this is on the basis of what the person was not (i.e. was not a paid carer, was not hired by the care recipient), rather than on the basis of what they must have done or be doing to satisfy this requirement. See Quality of Care Amendment (Restrictive Practices) Principles 2022, Schedule 1, item 3, new subsections 5B(3) and (4).
[28] International Covenant on Civil and Political Rights, articles 2 and 26; Convention on the Rights of Persons with Disabilities, articles 5, 12 and 13.
[29] Parliamentary Joint Committee on Human Rights, Report 1 of 2022 (9 February 2022) pp. 23–39.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2023/9.html