Aged Care and Other Legislation Amendment (Royal Commission Response No 1) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 137 (23 June 2021)

• Chapter 2
• Commentary on ministerial responses
• Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021
• Significant matters in delegated legislation
• Broad discretionary power1

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021

Purpose	Schedule 1 to the bill seeks to amend the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018 to further strengthen legislation on the use of restrictive practices in aged care Schedule 2 to the bill seeks to amend the Aged Care Act 1997 to allow the Secretary to conduct reviews (assurance reviews) to assure the arrangements for the delivery and administration of home care are effective and efficient Schedule 3 to the bill seeks to remove the requirement for the minister to establish a committee known as the Aged Care Financing Authority
Portfolio	Aged Care
Introduced	House of Representatives on 27 May 2021
Bill status	Before the House of Representatives

Significant matters in delegated legislation
Broad discretionary power^[1]

2.2 In Scrutiny Digest 8 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to leave the details of when restrictive practices can be used in an aged care setting, including what would constitute an emergency, to delegated legislation;

• whether the bill could be amended to include additional high-level guidance about when restrictive practices can be used on the face of the primary legislation; and

• whether the bill could be amended to include:

• at least an inclusive definition of 'emergency'; and

• limits around which considerations set out in proposed subsection 54‑10(1) can be overridden in an emergency. ^[2]

Minister's response^[3]

2.3 The minister advised:

Use of restrictive practices
The Royal Commission Response Bill No. 1 provides that a restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restraining the rights or freedom of movement of the care recipient. This directly responds to the recommendations made by the independent review of legislative provisions governing the use of restraint in residential aged care undertaken in 2020.
These amendments also align with the intent of recommendation 17 of the Royal Commission into Aged Care Quality and Safety (Royal Commission) final report that further legislative amendments be made in aged care line following the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to ensure that the treatment of people receiving aged services is consistent with the treatment of other members in the community.
The Royal Commission Response Bill No. 1 sets the limited circumstances in which a restrictive practice can be used and strengthens the responsibilities of approved providers of residential aged care (approved providers) in relation to the use of these restrictive practices.
The Royal Commission Response Bill No. 1 identifies the use of a restrictive practice as a last resort to prevent harm to the care recipient or other persons. A restrictive practice may only be used following the approved provider's consideration of the likely impact of the use of the practice on the care recipient and only used in the least restrictive form and for the shortest time possible.
Additionally, approved providers are required to consider and use alternative strategies before the restrictive practice is used and must obtain informed consent for the use of the restrictive practice. These requirements ensure that the use of restrictive practice is a proportionate response to the circumstances of a particular care recipient and ensure the rights of the care recipient are given primary consideration and protection.
The Royal Commission Response Bill No. 1 also requires that any use of a restrictive practice needs to be consistent with the User Rights Principles 2014, and appropriately enables the Quality of Care Principles 2014 to provide detail on the requirements and define when a practice or intervention is a restrictive practice in relation to a care recipient. This will enable unforeseen risks, concerns, omissions and emerging trends to be addressed, aligns with community expectations in relation to restrictive practices and is the key aim of regulating restrictive practices, which is to protect older Australians from use of such practices.
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. The proposed principles are a disallowable instrument and also subject to scrutiny through parliamentary processes.
As part of broader legislative reform in response to the Royal Commission the restrictive practice requirements will also be considered in drafting the new aged care act as recommended by the Royal Commission.
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 exemption. Additionally, ongoing use of a restraint requires informed consent prior to its use.
The proposed amendments to the Quality of Care Principles 2014 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

• 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.
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 will be able to question the circumstances in which emergency use of a restrictive practice was activated and, its oversight of restrictive practices is being strengthened through the appointment of a Senior Practitioner. Additionally, the Royal Commission Response Bill No. 1 expands the Commission's powers with the ability to impose civil penalties where an approved provider is not meeting its restrictive practice obligations.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that any use of a restrictive practice needs to be consistent with the User Rights Principles 2014, and that the bill appropriately enables the Quality of Care Principles 2014 to provide detail on the requirements and define when a practice or intervention is a restrictive practice in relation to a care recipient. The committee notes the minister's advice that this approach will enable unforeseen risks, concerns, omissions and emerging trends to be addressed, aligns with community expectations in relation to restrictive practices and is the key aim of regulating restrictive practices, which is to protect older Australians from use of such practices.

2.5 The committee has generally not accepted a desire for administrative flexibility to be a sufficient justification for leaving significant elements of a legislative scheme to delegated legislation. The committee reiterates that its concerns in this instance are heightened noting the potentially significant impact of the inappropriate use of restrictive practices and the vulnerable nature of the persons to whom the Quality of Care Principles would apply. The committee notes that a legislative instrument is not subject to the same level of parliamentary scrutiny as amendments to primary legislation.

2.6 In relation to the definition of emergency, the committee notes the minister's advice that the term 'emergency' in proposed subsection 54-10(2) is not expressly defined, and therefore has its ordinary meaning. The committee also notes the minister's advice that 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 and that this could foreseeably have the impact of placing the safety, health and wellbeing of care recipients and others at risk.

2.7 The committee acknowledges that a prescriptive definition of 'emergency' may not be appropriate in this instance, however, it remains unclear to the committee why an inclusive definition of 'emergency' cannot be included in the bill.

2.8 The committee considers that the bill provides the minister with a broad discretionary power to determine, in delegated legislation, when the requirements for the use of a restrictive practice no longer apply. The committee continues to have significant scrutiny concerns in relation to this ability to override any of the requirements in the Quality of Care Principles in circumstances where there is no guidance on the face of the primary legislation as to what may be considered an emergency.

2.9 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving the details of when restrictive practices can be used in an aged care setting, including what would constitute an emergency, to delegated legislation.

2.10 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[1] Schedule 1, item 1, proposed paragraph 54-1(1)(f) and item 3, proposed sections 54-09 and 54-10. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2021, pp. 1–4.

[3] The minister responded to the committee's comments in a letter dated 22 June 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 9 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.