Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report, incorporating a dissenting report, on the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I rise, as deputy chair, to present the report of the Parliamentary Joint Committee on Human Rights into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019.

As members no doubt know, the mandate of this important committee is to examine all bills and legislative instruments that come before either house of the parliament for compatibility with Australia's human rights obligations under the seven international human rights treaties ratified by Australia, and to report to both houses of the parliament on that issue.

The committee's work is focused on prevention and education with regard to human rights compatibility. As such, the committee seeks to determine the risk that legislation may be applied in ways that could breach human rights and to suggest avenues and safeguards for addressing areas of concern.

As part of this mandate, on 29 July 2019, the committee resolved to conduct an inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019. This legislative instrument seeks to minimise the use of physical and chemical restraints in residential aged-care facilities.

The use of physical and chemical restraints, without consent, raises significant human rights concerns, including in relation to the absolute prohibition on cruel, inhuman or degrading treatment or punishment; the rights to health, privacy and liberty; the right to equality and nondiscrimination; and the rights of persons with disabilities.

The committee has examined this instrument in detail, including holding a public hearing, in Sydney, and receiving a number of submissions from experts, advocates, the aged-care sector and the Department of Health.

The committee strongly supports the instrument's intention to seek to minimise the use of physical and chemical restraint by approved providers in the aged-care setting, noting that under international human rights law Australia is under an obligation to take steps to reduce and eliminate such practices.

After reviewing all the evidence, the majority committee report concludes that while, on the face of it, the instrument appears to engage and limit a number of human rights, existing state and territory laws continue to apply to regulate the use of restraints.

As these other laws continue to apply, the majority committee report has concluded that this instrument, by further regulating approved providers, does not directly limit human rights.

Nonetheless, the instrument appears to have created widespread confusion around the legal obligations of approved providers. In particular, there appears to be confusion around the issue of consent, which is particularly concerning given the evidence recently noted in the interim report of the Royal Commission into Aged Care Quality and Safety regarding the overprescription of psychotropic medication and poor practice regarding consent.

Considering the evidence presented to our inquiry, the committee is concerned that this confusion may have also led to confusion about the permissibility of the administration of both physical and chemical restraints being used in residential aged-care facilities without informed consent, and without first exhausting all alternatives. As such, in practice this may limit a number of human rights.

All of the Liberal Party members of the committee, making up the majority of the committee, have therefore recommended that the instrument and explanatory materials be amended to clarify that other laws continue to prohibit the use of restraint without informed consent and that the minister should undertake extensive consultation with relevant stakeholders to work towards further strengthening the regulation of restraints.

However, all committee members from the Australian Labor Party and the Australian Greens political party have issued a dissenting report, as we consider that the majority recommendations do not adequately rectify the human rights concerns raised in evidence to the committee.

It is unusual for a dissenting report to be tabled by the human rights committee. In fact, it is only the fourth time that a dissenting report has been tabled by this committee.

This committee has been operating since 2012, over the course of the 43rd, 44th, 45th and, now, 46th parliaments. The committee has tabled 114 reports during that time, and 110 of those reports have been bipartisan.

The Labor Party and Greens political party members of this committee did not dissent to the majority report lightly. We take very seriously our responsibility to this committee and our decision to dissent to the majority report was made with earnest consideration.

But the evidence presented to this inquiry, outlined in both the majority report and the dissenting report, was compelling.

The serious issues raised by witnesses impressed on members that this instrument was not only ineffective, it will, as the interim report of the Royal Commission into Aged Care Quality and Safety noted, 'add to, rather than overcome, concerns regarding regulation of physical and chemical restraint, including on issues of consent'.

As such, the dissenting report recommends that:

The dissenting report also recommends that a widespread consultation process be urgently implemented to determine the best regulatory framework to protect residents of aged-care facilities in the use of restraints.

I encourage my fellow members, the government and others to examine the committee's full report (including the dissenting report), and, with these comments, I commend the committee's report into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 to the House.

Celia Hammond (Curtin, Liberal Party) Share this | Link to this | Hansard source

by leave—I thank the member for Moreton for tabling the report in this House. As noted by the member for Moreton, this legislative instrument seeks to minimise the use of physical and chemical restraint in residential aged-care facilities. Importantly—and this is significant to note—prior to its introduction there was no regulation at the Commonwealth level over the usage of restraints. The usage of physical and chemical restraints without consent raises huge, significant human rights concerns. All members of the committee strongly support the instrument's intention to seek to minimise the use of physical and chemical restraints by approved providers in aged-care settings.

As noted by the member for Moreton, after reviewing all of the evidence the majority of the committee concluded that while, on the face of it, the instrument appears to engage and limit a number of human rights, existing state and territory laws continue to apply to regulate the use of restraints. As these other laws continue to apply, the committee report concluded that this instrument, by further regulating approved providers, does not directly limit human rights. Nonetheless, the majority also held that there are parts of this instrument which do appear to have created confusion about the legal obligations of approved providers, particularly around the issue of consent and poor practice regarding consent.

Considering the evidence presented to the inquiry, the majority of the committee was concerned that this confusion may also lead to confusion about the permissibility of the administration of both physical and chemical restraints being used in residential aged-care facilities. For the record, it should be noted that the majority of the committee determined that if this instrument were disallowed we would return to the situation where there is an absence of any federal regulation on the use of physical and chemical restraints. In light of the royal commission, the majority determined that an absence of any federal regulation would be a major backward step and would not send an appropriate message to the aged-care sector. It would be irresponsible and could lead to unintended consequences. For this reason, the majority of the committee has recommended that this instrument be allowed but that it—the instrument itself and the explanatory memorandum—be amended so as to clarify, firstly, that other laws at the state level continue to prohibit the use of restraint without informed consent and, secondly, that the minister should undertake extensive consultation with relevant stakeholders to work towards further strengthening the regulation of restraints. To this end, I note the government has already made a quick response to the interim report of the royal commission. I particularly note that it was announced yesterday that further amendments to these regulations are planned following consultation so as to ensure that it is very clear that the restraint must only be used as a last resort.