I want to make some comments on the Aged Care Amendment (Security and Protection) Bill 2007 for a wide range of reasons. As a member of the Senate Standing Committee on Community Affairs I was privileged yet again to have the opportunity to listen to a large number of people from the industry and also from families and carers who have genuine concerns about the welfare of people who are ageing in our community . I would like to add to that list the department itself, because the department consistently performs to a high standard, consistently cares about the people who are providing services to aged people in our community and works effectively to implement legislation, sometimes under very limited time frames. I will get that off my chest straightaway!
Once again, I think this legislation has been introduced for all the right reasons. There could be no-one in the community who could question the need for legislation to protect aged citizens. In fact, everybody agrees with that. But in terms of how it is done, yet again we have a process where there is a large, exciting announcement that there will be new legislation brought in to address a need, and that is greeted with a strong response. However, time frames for the introduction of this proposed legislation have been imposed on providers to ensure that their processes meet the requirements of the legislation. Here again we are in that very difficult situation of balancing appropriate care and accountability with the necessary paperwork and accountability mechanisms which must be imposed on providers. There is always a tension there, not through any lack of goodwill or desire to do the right thing in the overwhelming majority of cases, but simply, as we heard from a number of providers, the impost of actually introducing the systems, ensuring that they are working effectively and, most importantly, training every person who has a role to play and advising them of their responsibilities, what is expected of them and the protections they have in the system. The intent is welcome, the energy that has been put in to ensure the process will occur is welcome and the goodwill of all the people who are involved is welcome. However, I still have lingering concerns about all those who need to be fully engaged to ensure that the legislation is most effective. We know that the changes will be brought in and Labor welcome that. However, always when introducing new legislation, the more that people can do before it is implemented, the stronger and greater the chance of success will be and, as I have said before, the greater the opportunity to engage everyone who should be engaged in the process. I have concern with the time frame, and I will try really hard not to go back to that point and to focus on things that we can agree on for the rest of these comments. The changes themselves, as introduced by the minister in this place, to a large extent respond to community outrage at publicised events of elder abuse. The major words in that statement are 'publicised events' because, for every event that did receive publicity about the outrage at people being damaged or hurt in their care, we know many more have not been made public. Once again, we have the tension between ensuring that the issues are identified and addressed and ensuring that people are protected and their privacy is maintained to the best possible level whilst working through a process.
There was considerable discussion during the quite truncated time we had for the inquiry about how we actually ensure that people feel confident and protected in their situation and secure enough to actually make a complaint. The most effective complaint mechanisms that are imposed on a system are only as effective as the people who are able to enunciate the complaint and the resultant system that is put in place to investigate and respond to the complaint. Those two things have to have a common purpose. Throughout the debate we had in the inquiry there was great discussion about the confidence of people and also the mental and physical ability of people to effectively identify a fault. There are differing opinions as to whether the nature of the complaint mechanism should be based on a mandatory process. There is still the opportunity during the implementation stages of this process. We on this side of the chamber, as always, strongly recommend ongoing review and constant monitoring of any implementation of a process but, moving forward as the new system is implemented, I think the mandatory process should be supported on the basis that if we set up a system where the outrage is clearly identified, abuse-and I use the word quite deliberately-in any form of any citizen but in particular of our most vulnerable citizens, those who are ageing, is an outrage. Once we actually identify that any abuse is an outrage, we can then engage all the people in the understanding of why this particular legislation is premised on a mandatory reporting mechanism.
Whilst I have great personal sympathy for the arguments around the protection of people's individual privacy-and that was discussed at length during the committee process-in this debate I am falling on the side of bringing in the mandatory process in the introductory phases and then monitoring that effectively, and continuing with the ongoing community consultation, in particular with the members of the ministerial advisory group, all of whom have expressed great keenness to be involved in this process. If we continue to engage with all those persons who want the system to work and who share the desire for it to work, we would hope in future times to amend the process if required. But certainly by making the public declaration that we are aware that there is the outrage of elder abuse in our community, and by saying that when people are entering into formal aged-care arrangements they and their families must have the confidence that they will be protected, we can cooperate in a process which goes with the mandatory aspects. One of the elements that will be critical to ensuring that this process operates effectively is awareness of all the aspects of the process that has led to bringing this legislation before the parliament, awareness of the need and awareness of the various forms of abuse that are identified. There is strong evidence to say that the term 'abuse' should be extended to cover any form of abuse, not just abuse of the physical and sexual nature that is mentioned in the legislation. I think I heard Senator Allison talk about the wider definition of abuse. It is not just physical abuse, which is often able to be seen and identified; it is psychological abuse, mental abuse and also such things as standards of care. In the additional comments from the Labor senators who were privileged to be on the committee looking at this legislation, we looked at having the form of protection for whistleblowing and the definition of abuse widened so that it would be any form of treatment which did not appropriately engage and nurture the resident in the aged-care situation. So it could be concerns about meeting other standards in the aged-care facility or concerns about treatment-even, as we have seen in some cases in Queensland, allegations of almost starvation treatment of residents in aged-care facilities. It was not that there was no food-though I have heard allegations in some places where it has been as horrific as that: that people have not been fed-but more that the quality of food was not effectively responding to dietary needs and giving people the genuine nutritional support that they need, as we all need.
So we would suggest that, in the discussion around this legislation, we look at widening and getting a greater understanding of the term 'abuse' and also a wider protection mechanism for anyone who would identify such failings. We have a very strong start in the legislation before us, which values the role of effective whistleblowing. Again, an issue that caused great discussion at the committee stages-and significantly over the last few years-is how the role of a whistleblower is identified and protected.
When I was fortunate enough to be in my previous role in the Senate Community Affairs References Committee, we were engaged in an aged-care inquiry that reported to this place in June 2005. We were privileged at that time to hear a range of evidence, particularly from the families of people who were receiving care in different organisations. The families that came before us were expressing concerns about the care being given to their family members but were also expressing genuine concerns and fear, on behalf of both the person in the aged care and themselves, about repercussions that they could suffer if they made too many complaints, made too much noise or in any way rocked the boat. I always remember some women who gave evidence to us who were frequent visitors to aged-care facilities. I think that they had families there themselves. They used that term 'rock the boat' about questioning too closely or making complaint about care. In the discussion around this bill, and perhaps as we move down the line in monitoring the impact of the implementation of this bill as it moves forward, we could look at whether the clauses about which complaint can be made, and also the protection that should flow on to anyone making that complaint, could be widened so that it is not as narrowly defined as it seems to me that it is now.
I think that here, once again, there is goodwill and there is genuine interest in being involved in this discussion, because the key element that precedes this legislation and moves us forward is the desire to ensure that people are safe. That safety also ensures that they are confident and secure in their home care. I had a number of discussions during the committee process with the witnesses who came before us about the education component, which is absolutely essential in bringing forward this legislation. We can implement the best legislation in the world-hopefully. We can ensure that people have leaflets. We can ensure that they have information sessions. We can ensure that to the best of our knowledge we give information about what people's rights and responsibilities are in the aged-care sector, as with any other care. However, the confidence of knowing that people not only have got that message effectively and understood their rights but are able to take the next step and exercise their rights is one key element of this process about which I still have some lingering doubts. Again, I have no worry that people do not share the need to have this process implemented. But I continue to have concerns about how you implement an effective education program and then how you make sure, after that, that people do not become too comfortable with the process, forget the process or think, 'There's a new crisis that has come upon us so this one's yesterday's news.' So an ongoing part of whatever monitoring program is put in place as this legislation is implemented should be the concern and continuing engagement of the sector, families and people who are seeking aged care in understanding and developing perhaps their own education mechanisms. Too often when we are talking about new publicity campaigns and education campaigns we use preexisting models or we think we know what is best-or, horror upon horrors, we hire another consultant, who comes forward to give us the benefit of their knowledge. On this basis, I urge the department and the government to look clearly at the existing ministerial advisory group process and to use the knowledge which is already there. I urge them to implement the process of a consumer network. Consistently, in discussion of other medical areas, we hear about the importance of using the consumer network to ensure that people's voices are heard. I think that perhaps in aged care that is a mechanism that we could use more effectively, particularly on something of this kind. It would be very useful to use the people who are thinking about using the system or being in the system themselves to look at how information can best be shared.
In the committee process we had a discussion with a number of people about how to determine a person's ability to understand their situation. In some cases an exclusion mechanism is put in place to identify the fact that, particularly in aged care, there are people who are not fully competent to understand what is going on around them or perhaps to understand the impact of their behaviours. It is always a vexed area. We were very privileged to hear evidence from people who have great experience in aged-care delivery. There was strong support for the provisions in the legislation which ensure that some people are excluded from causing the involvement of the police in complaints if those people are determined not to have the capacity to understand the actions that they are taking. Once again, it is a very sensitive area and one that continues to need monitoring as we move forward. I think a level of sensitivity has been shown by the department and the people drafting the legislation in acknowledging that exclusion process and working effectively with the providers of care and also with the police.
We heard evidence through the committee process about the involvement of the people who would be at the other end of the complaint. We heard that if we had a mandatory complaints system people would be automatically brought in to respond to the complaints. I hope that as we move forward with this legislation-and I hope you note, Mr Acting Deputy President Fer guson, that I continue to talk about moving forward with this legislation in a positive way-we involve those people who would be the receivers of the complaint so that their knowledge and their expertise is increased in this process.
A degree of concern was expressed by some of the people who came to our committee about how that would actually work. Whenever you introduce a program of mandatory complaint there is a feeling that perhaps there could be a wave of complaints, which would actually minimise the impact. As I said before in this contribution, that could lead to some sort of comfortable response to the whole process. That would indeed be very sad. As I said, we need people to have effective training and an understanding of everyone's responsibility in this process. That must involve the engagement of those who will be responding to the complaint.
There are greatly experienced people already involved in the aged-care assessment process and also in the review of aged-care facilities. I hope that added resources will be given to the process so that their numbers will be increased. Their knowledge should be used in order to work effectively with the various state police departments so that people are sensitised to the process. In working with aged people there needs to be respect and understanding. People need to feel a degree of security and comfort with the situation. We do not need to cause further stress and anger to those people who are seeking our help and respect. There are a number of amendments to be put before the chamber. I am looking forward to the committee stage of this bill because I think we will be able to work effectively in moving forward with the legislation. Again, the intent of this bill is good. We all want to ensure that we have the security of knowing that our older family members-and many of us are moving rapidly towards that age-are safe and secure in aged care. It does not really matter whether that is in an aged-care facility or in their own homes. Safety must be paramount.
The process will involve many different people who may not have experience at the moment in working effectively in aged-care facilities, and that must be acknowledged. I note that the committee has recommended that the implementation process be delayed a little to allow people to get the knowledge that we have talked about. I hope that the government will accept that. I hope that in the implementation of the Aged Care Amendment (Security and Protection) Bill 2007 we will be able to say that we have responded cooperatively to the community's demands.
22 March, 2007
