Quality of Care Amendment (Minimising Use of Restraints) Principles 2019-Committee comments [2019] AUSStaCSDLM 155 (27 November 2019)

• Chapter 1
• Committee comments
• Personal rights and liberties4
• Significant matters in delegated legislation5
• Previous committee consideration
• Private briefing
• Committee comment

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Chapter 1

Committee comments

1.1 This chapter details the instruments in relation to which the committee holds the most significant scrutiny concerns, and has resolved to place a notice of motion to disallow the instrument to emphasise those concerns and to provide the Senate with additional time to consider the instrument with the benefit of the committee's comments. Where appropriate, this chapter also details the committee's reasons for withdrawing notices of motion to disallow such instruments.

1.2 Copies of any relevant correspondence regarding these instruments are available on the committee's website.^[1]

Quality of Care Amendment (Minimising Use of Restraints) Principles 2019

FRL No.	F2019L00511[2]
Purpose	To amend the Quality of Care Principles 2014, to limit the use of chemical and physical restraint by approved aged care providers of residential care and short-term restorative care.
Authorising legislation	Aged Care Act 1997
Portfolio	Health
Disallowance	15 sitting days after tabling (tabled in the Senate on 2 July 2019). Notice of motion to disallow given on 16 September 2019.[3]

Personal rights and liberties^[4]
Significant matters in delegated legislation^[5]

1.3 Senate standing order 23(3)(b) requires the committee to ensure that instruments do not trespass unduly on personal rights and liberties. In addition, Senate standing order 23(3)(d) requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via primary rather than delegated legislation).

1.4 The instrument amends the Quality of Care Principles 2014,^[6] to limit the use of chemical and physical restraints by approved providers of residential aged care and short-term restorative care.^[7]

Previous committee consideration

1.5 Between July and September 2019, the committee sought the minister's written advice about the appropriateness of including matters with a potentially significant impact on the rights and interests of people in residential aged care in delegated legislation.^[8] The committee placed a 'protective' notice of motion to disallow the instrument on 16 September 2019, to provide it with sufficient time to consider the minister's advice before the disallowance period expired.

1.6 In correspondence with the committee, the minister explained that the instrument is one component of a suite of reforms which has been implemented via delegated legislation, and that it seeks to improve the quality and safety of aged care, and therefore promote rights and liberties. Within this context, he emphasised that the inclusion of such matters in delegated legislation allows the government to act promptly in the interests of vulnerable persons, and to refine the regulatory framework for aged care services in line with community expectations. The minister also noted that the instrument has been subject to consideration by the Parliamentary Joint Committee on Human Rights, and the Royal Commission into Aged Care Quality and Safety.

1.7 Whilst noting the minister's advice, the committee remained concerned that there was an insufficient justification for regulating the use of physical and chemical restraints in aged care via delegated legislation, rather than primary legislation. The committee's concerns were informed by its regard to the importance and uniqueness of the scrutiny inherent in enacting matters in primary legislation, and its longstanding position that consistency with existing regulatory approaches is not a sufficient reason to include matters with a potentially significant impact on personal rights and liberties in delegated legislation.

1.8 In light of its scrutiny concerns, the committee drew the instrument to the attention of the Senate in Chapter 1 of Delegated Legislation Monitor 7 of 2019, and resolved to keep the notice of motion to disallow the instrument in place to provide the Senate with additional time to consider the matter.

Private briefing

1.9 On 16 October 2019 the Chair wrote to the minister on the committee's behalf to advise him of the committee's ongoing concerns, and suggest a private briefing between the minister or senior departmental officers and the committee to discuss the matter further. The minister accepted the committee's suggestion and the committee met privately with the minister and senior departmental officers from the Department of Health on 12 November 2019. The minister subsequently provided the committee with the following written summary of the briefing:

Thank you for the opportunity to brief the Senate Standing Committee on Regulations and Ordinances (Committee) on 12 November 2019 in relation to the Quality of Care Amendment (Minimising Use of Restraints) Principles 2019. These amendments are introduced under Part 4A of the Quality of Care Principles 2014.
In consideration of the concerns raised by the Committee, and others, my intention is to make amendments to Part 4A, and for these to come into effect prior to the expiry of the Committee's notice of motion to disallow the Instrument on 28 November 2019.
The amendments will provide for Part 4A to be reviewed after 12 months of operation and repealed after two years of operation. These amendments will set out that:

• the review will consider the effectiveness of Part 4A in minimising the use of physical restraints and chemical restraints by providers of residential aged care in relation to their consumers in the period 1 July 2019 to 30 June 2020

• the review will make provision for consultation and is to be completed by 31 December 2020

• the report of the review will be published on line and tabled in both Houses of Parliament.

Given the Royal Commission into Aged Care Quality and Safety focus on the use of restraints in residential aged care, the timing of the review will allow for consideration of the Royal Commission's recommendations.
As outlined at the meeting with the Committee, the introduction of regulations is just one component of a suite of measures aimed at minimising the use of restraints in residential aged care.
At the request of the previous Minister for Aged Care, the Hon Ken Wyatt AM MP, the Aged Care Clinical Advisory Committee was established to consider options to reduce the inappropriate use of chemical restraint in residential aged care. The Australian Government has endorsed all of the non-regulatory recommendations.

Committee comment

1.10 The committee welcomes the minister's undertaking to amend Part 4A of the Quality Care Principles 2014 to provide for a review of the operation of the provisions inserted by the instrument after 12 months, and to repeal the provisions after two years, in consideration of the concerns raised by this committee and others. The committee further welcomes the fact that an instrument to implement the minister's undertaking was registered on the Federal Register of Legislation on 25 November 2019.

1.11 In light of the implementation of the minister's undertaking, the committee has resolved to withdraw its notice of motion to disallow the instrument.

1.12 The committee thanks the minister for his constructive engagement with the committee regarding its scrutiny concerns, and commends this approach to the government as a highly effective means of ensuring that delegated legislation complies with the committee's scrutiny principles, and the broader principles of parliamentary oversight and propriety that underpin them.

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[1] See www.aph.gov.au/regords_monitor.

[2] Accessible on the Federal Register of Legislation at https://www.legislation.gov.au/.

[3] Notice given by the Chair of the committee. See Disallowance Alert 2019: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Alerts.

[4] Scrutiny principle: Senate Standing Order 23(3)(b).

[5] Scrutiny principle: Senate Standing Order 23(3)(d).

[6] [F2019C00205].

[7] Subsections 15F(1) and 15G(1) of the instrument. Subsections 15F(2) and 15G(2) set out procedures that must be followed by an approved provider where a chemical or physical restraint is used.

[8] This correspondence is summarised in Chapter 1 of Delegated Legislation Monitor 7 of 2019, and is reproduced in full on the committee's website: see correspondence relating to Delegated Legislation Monitor 7 of 2019, available at www.aph.gov.au/regords_monitor.