Coalition parties & aged care industry unhappy with federal government proposal to make care providers criminally responsible for abuse and neglect of vulnerable older Australians in their care

 

In 2018 the Morrison Government established the Royal Commission into Aged Care Quality and Safety.

The Royal Commission's Final Report was delivered to the Federal on 1 March 2021. The Summary contained in Volume 1 of the report stated in part;

Over the course of 2019, we heard from many people about substandard care—those who experienced it, family members or loved ones who witnessed it or heard about it, aged care workers, service providers, peak bodies, advocates and experts. We heard about substandard care during hearings and community forums. We also were informed about it in public submissions. Substandard care and abuse pervades the Australian aged care system.

The accounts of substandard care were always sad and confronting. They were no doubt difficult to tell, and very difficult to hear and read. We acknowledge the courage people have shown in sharing their experiences with us. Their contributions have been essential to our inquiry and we are grateful.....

The abuse of older people in residential care is far from uncommon. In 2019–20, residential aged care services reported 5718 allegations of assault under the mandatory reporting requirements of the Aged Care Act. A study conducted by consultancy firm KPMG for the Australian Department of Health estimated that, in the same year, a further 27,000 to 39,000 alleged assaults occurred that were exempt from mandatory reporting because they were resident-on-resident incidents. In our inquiry, we heard of physical and sexual abuse that occurred at the hands of staff members, and of situations in which residential aged care providers did not protect residents from abuse by other residents. This is a disgrace and should be a source of national shame. Older people receiving aged care should be safe and free from abuse at all times......

Commissioner Briggs attached 148 specific recommendations to her final report and it is unclear exactly how many have been acted on to date, apart from the initial response found in the Aged Care and other Legislation Amendment (Royal Commission Response) Act 2021 and the subsequent Albanese Government's Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022.

So it should come probably come as no surprise that disturbing media reports were still surfacing in 2023.

May 2023 - a NSW police officer deliberately tasered a 92 year-old woman on a walking frame at the nursing home of which she was a resident. She died of her injuries.

July 2023 - an 89 year-old woman was allegedly bashed to death inside a Sydney nursing home room by a fellow dementia patient with his walking frame. She died of her injuries.

Nov 2023 - A woman in her 90s died in hospital after allegedly being sexually assaulted by an intruder in a nursing home on the New South Wales Central Coast.

Dec 2023 - A woman in her 70s was sexually assaulted in her room at an aged care facility on NSW north coast.

By 13 February 2024 The Guardian was reporting:

More than 1,000 cases of neglect are being reported in residential aged care homes each month, prompting a warning from the sector’s regulator.

The Aged Care Quality and Safety Commission (ACQSC) has flagged “a concerning spike” in neglect cases over the past 12 months and raised concerns about inadequate care standards.

So it was a relief when on 3 April 2024 the Albanese Government announced in a media release that it will:

• Introduce criminal penalties – including jail time - for dodgy aged care providers who seriously and repeatedly facilitate or cover up abuse and neglect of older Australians, and who deliberately breach the general duty of care they owe to their residents.

• Introduce a new duty of care, owed by providers, to recipients of aged care services, including a compensation regime when the duty is breached. This will create a path for class actions against dodgy providers.

• Create a new aged care complaints commissioner, to ensure complaints against providers are properly and thoroughly dealt with.

• Introduce new civil penalties for aged care providers who punish aged care workers, residents and families in retaliation for complaints.

• Give stronger investigative powers to the Aged Care Quality and Safety Commission, including powers to enter and remain in an aged care facility at any time to ensure the safety of residents, as well as full access to documents and records.

• Introduce measures to ensure the 215 minutes of care and nursing that Labor has pledged per resident per day is actually spent on care and clinical support - not on marketing, administration, maintenance or other activities that are not direct care.

• Require providers to publicly report on the expenditure of residents’ and taxpayers’ money – including a breakdown of money spent on caring, nursing, food, maintenance, cleaning, administration, and profits....

These measures implement and build on the Royal Commission recommendation to establish a General Duty of Care for aged care – which will set minimum standards to protect residents and workers....

However, it seems that the Albanese Government's plans to reform the dysfunctional aged care system have met with political headwinds.....

The Saturday Paper, 13 July 2024, "Criminal penalties proposed for aged care bosses", excerpt:

The Serious Incident Response Scheme (SIRS) – instigated after the royal commission to track and reduce the frequency of major incidents, including unreasonable use of force, neglect, psychological and emotional abuse, unlawful or inappropriate sexual conduct, stealing or financial coercion, inappropriate use of restrictive practices and unexpected death – came into force in April 2021 in residential settings. In December 2022 it was added for home care. This scheme, which asks providers to self-report serious incidents, has shown concerning levels of delusion and dishonesty among providers.

In the most recent SIRS figures, providers self-assessed that of the 2257 incidents of unlawful or inappropriate sexual contact in Australian nursing homes from April 2022 to March 2023, 95 per cent of residents affected had experienced no or only minor psychological impacts. Put another way, providers reported that only 5 per cent of aged-care residents who experienced serious and unlawful sexual contact or conduct have had major psychological impacts afterwards.

In the same report, providers self-assessed that of the 28,890 incidents of unreasonable use of force in the same year, 98 per cent of residents had no or minor psychological impact and 92 per cent had no or only minor physical impact. In the scheme’s first six months of operation, 75 per cent of the nation’s home-care providers had not reported a single serious incident of any kind to the aged-care regulator.

These figures reveal a sector that is still fundamentally in denial about its own performance and the effects of abuse and neglect on older Australians in its care.

Now, as the federal government attempts to muster bipartisan support for its new act, the aged-care lobby is circling its wagons again, this time to fiercely oppose the government’s proposed imposition of a statutory duty of care on aged-care providers and responsible persons that could result in civil and criminal penalties, including potential jail time in especially egregious cases.....

Nonetheless, providers, peak bodies, the Australian Institute for Company Directors and shadow minister for aged care Anne Ruston have all come out swinging at the proposed introduction of criminal penalties. 

They claim the penalties will lead to vast increases in insurances for directors, are unnecessarily punitive and will discourage good people from working in the aged-care sector. This is a bit like arguing we shouldn’t have child-abuse laws or require police checks to work with children as that might stop good people from opening kindergartens.

The extraordinary optics of arguing against criminal penalties – even in cases where there is no reasonable excuse for failures of care that have led to death or serious injury – seems to be lost on providers and the federal opposition.