Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report entitled Human rights scrutiny report: Report 3 of 2023—Quality of Care Amendment (Restrictive Practices) Principles 2022.

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

by leave—I am pleased to present the Parliamentary Joint Committee on Human Rights Committee third scrutiny report of 2023 which was tabled out of session last week. In this report, the committee has concluded its consideration of the Quality of Care Amendment (Restrictive Practices) Principles 2022.

This legislative instrument amends the quality-of-care principles to specify a hierarchy of persons who can give consent to the use of restricted practices on behalf of persons in aged care, if the care recipient is deemed to lack capacity to give consent. Setting out who can consent to the use of restrictive practices on behalf of a care recipient engages a number of human rights limiting the particular rights of persons with disabilities. The committee thanks the Minister for Health and Aged Care and especially the Minister for Aged Care for their response to the committee's inquiries and acknowledges her advice that the instrument seeks to resolve issues raised by some of the states and territories about who can consent to the use of restrictive practice. The minister notes that this is intended as an interim arrangement until state and territory guardianship and consent laws can be amended or until around 2024.

The committee's mandate is to assess the compatibility of this legislation with Australia's international human rights obligation, and, as much of the details are left to the states and territories, it is difficult for the committee to fully assess this. The committee is concerned that the consent arrangements in this instrument are highly complex, and much depends on aged-care providers understanding the complex hierarchy and understanding the interplay between this legislation and the relevant state and territory laws. The committee considers this instrument risks being incompatible with a range of human rights, particularly the rights of persons with disability, noting that there is no requirement to provide for supported, rather than substitute, decision-making. Much depends on unknown safeguards in the state and territory legislation.

The committee has recommended some amendments to this legislative instrument; however, the committee considers its concerns are broader than what is set out in this instrument. The committee would like to express its appreciation to Dr John Chesterman, the Queensland Public Advocate, who wrote to the committee and met with us privately to express his concerns with the current authorisation model for the use of aged-care restrictive practices.

Given the vulnerability of people in aged care and the significant humans rights concerns that the use of restrictive practices raise, the committee considers further consideration should be given to whether or not the consent model on the use of restrictive practices is the best approach to protect the rights of aged-care residents. The committee has recommended that an extensive consultation be undertaken to consider these broader issues. It also considers the issue of substituted consent to the use of restrictive practices in aged care would benefit from a broad-ranging inquiry. As the human rights concerns go beyond what is contained in this legislative instrument, such an inquiry doesn't neatly fit in with this committee's remit, so the parliament may wish to consider referring these important issues to a relevant policy committee. With these comments, I commend the committee's scrutiny report 3 of 2023 to the House.