Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I rise to speak on the Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020. This bill represents a reform by at least establishing a serious incident response scheme that mandates providers to report an alleged, suspected or actual serious incident. The Greens support the bill in principle; however, we have some concerns about the bill, which I will articulate now. I've also circulated amendments to seek to address those serious concerns. I will also articulate that the Greens very strongly believe we need to also have such a scheme for home care, and I will ask some questions in Committee of the Whole around that.

In this bill, a serious incident is defined as:

(a) unreasonable use of force …

(b) unlawful sexual contact, or inappropriate sexual conduct …

(c) psychological or emotional abuse …

(d) unexpected death …

(e) stealing from, or financial coercion of, the residential care recipient by a staff member of the provider;

(f) neglect …

(g) use of physical restraint or chemical restraint … (other than in circumstances set out in the Quality of Care Principles);

(h) unexplained absence … from the residential care services of the provider

Aged care providers are required to not only report incidents but also provide support to residents, conduct investigations, monitor actions taken and use data to drive continuous improvement to prevent similar incidents from occurring. This bill also offers protections to people who disclose serious incidents, including providers, staff, residents, family members, carers and advocates. The Aged Care Quality and Safety Commission will be responsible for regulating the scheme. The commission will assess a provider's compliance with incident management obligations, receive reports on serious incidents and respond to incidents using the full range of regulatory actions available.

This scheme represents a significant departure from the existing reportable assaults scheme. We have all seen the failures in aged care over the years. There's a long list of them, quite clearly showing the current system has not been working appropriately. At the moment, aged-care providers are only required to report incidents involving unlawful sexual contact or unreasonable use of force against a resident, and we know that they haven't even been doing that. There are also exemptions under the current scheme around reporting assaults if they are committed by residents with cognitive impairment. This has been a serious barrier to preventing and dealing with the sexual abuse of older people in residential aged care. Sexual abuse by a person who is cognitively impaired is still, actually, sexual abuse. I am pleased to see that the new scheme will be expanded to include the reporting of assaults by residents with cognitive impairment.

The introduction of the Serious Incident Response Scheme is a welcome change, but I ask the government: why has it taken so long? The new scheme was recommended by the Australian Law Reform Commission all the way back in May 2017 in its final report Elder abuse—a national legal response. This recommendation was then endorsed by the Carnell-Paterson review of October 2017 following investigation of the terrible failures in Oakden. A committee of this very chamber, the Senate Community Affairs References Committee, had an inquiry into Oakden as well and also highlighted the massive failures in the system at the time. And yet it is in 2021, just before the royal commission comes out with its report, that we are now discussing these particular amendments, and they don't go far enough. So the government is still squibbing it. Older Australians and their families have had to wait four years for action. This is just not good enough. The Australian Greens support this bill in principle; however, we have concerns about the bill—that it doesn't go far enough. We've circulated a series of what I think are substantive amendments which would strengthen the proposed scheme.

Falls are missing from the definition of serious incidents. I'm extremely disappointed to see that falls are not included under the definition of serious incidents. In the government's implementation guide, falls are mentioned only once, where they are used as an example of an unexpected death. Aged-care residents are at a high risk of falls that can cause serious injuries, result in a sudden decline in health and, we know, lead even to death. Data from Monash University shows that 15 per cent of all deaths in residential aged-care facilities have preventable causes and, of these, 90 per cent are from falls and choking. An avoidable death rate of 15 per cent would be cause for outrage in other sectors. Why is aged care treated differently? Falls are often the result of systemic failures, such as insufficient staff and inadequate clinical care. Recent data shows that 10.5 per cent of residents were admitted to hospital in 2018-19 because of a fall, which is up from 8.5 per cent in 2014-15. So we know this issue is getting worse. They should be reported and investigated to identify case-specific and systemic issues that can be changed. I'm not saying that we need to wrap people in aged care in cotton wool. I'm not saying that at all. We shouldn't be doing that. But we should be using this scheme to identify falls, investigate them and see what happened.

I was on a community affairs committee delegation a couple of years ago to New Zealand where we looked at aged care. It was part of the reason we were there. I discussed with people in New Zealand this issue around falls. In their processes, although it's not part of a legislative response, they have been reporting and looking into the impact of serious falls and requiring them to be notified of them so that they can actually look at whether they can have the benefit of improving the system. My understanding, from my discussions over there, is that they have in fact been improving the procedures around serious falls. So I ask the minister, and I'll be asking in the Committee of the Whole: why haven't falls been included in the scheme? If the purpose of this scheme is to encourage providers to continuously improve and to reduce the likelihood of incidents reoccurring, surely falls, one of the leading causes of preventable death, should be included in the scheme. I will be moving an amendment to add falls under the definition of 'serious incidents'. To pre-empt the answer 'the royal commission is coming': we know the royal commission is coming, and we know this is an issue. We don't need the royal commission to tell us that falls are an issue.

Related to this, I'll also be moving an amendment that stops the use of physical and chemical restraints from not being reported as a serious incident when they are used in line with the circumstances in the quality-of-care principles. We think all use of restraints should be reported. We have to start treating the use of chemical and physical restraints as a serious incident. As this chamber knows, I've been pursuing this issue for a long time. We shouldn't be using chemical and physical restraints; we should be eliminating the use of chemical and physical restraints. That is why we need to be using this scheme to treat them as serious incidents when they occur and to report all of them. We know the current instrument on the use of chemical and physical restraints falls short of the standards and falls short of moving to eliminate the use of these restraints. If we are serious about phasing out, ending and eliminating the use of these restraints, we need to treat it seriously and get serious about using these mechanisms to ensure that happens. I strongly believe that, if we require providers to report and publish data on restraints, we will see a significant reduction in their use, as has been the case in the United States.

Another serious omission from this scheme is the public reporting of incident data. I understand that the commission will be responsible for the publication of sector trends and key risks to support quality improvement and capacity building in the sector. However, this falls short of the recommendation by counsel assisting the royal commission that the new incident reporting scheme require the quality regulator to publish the number of serious incident reports on a quarterly basis at a global level, a provider level and a service or facility level. This recommendation goes to the heart of this issue. These incidents need to be reported at a provider level and a service or facility level to really drive improvements. You can look at what's just happened in Western Australia, at Regis, to see why we need to be reporting these incidents at a provider and facility level. If there is no public reporting on which providers and facilities are experiencing serious incidents, how can we drive continuous improvements across the sector? How can consumers compare providers and make informed decisions if that information isn't publicly available?

I also strongly believe that consumers and their families should have access to this information so that they can make informed choices about aged-care services. The public has a right to know which facilities are of concern and which are managing quality risks well. Public reporting of information across the aged-care sector is fundamentally missing, and I think we need to address that if we are to build transparency and accountability and improve performance throughout the sector. We need to have public reporting of serious incidents on a quarterly basis at global, provider and facility levels if we are going to achieve improvement in quality care, and I'll be moving amendments to address these issues.

I want to move to the next lot of amendments that we'll be moving and articulate the issue. Under the new Serious Incident Response Scheme, providers are responsible for supporting consumers and families if an incident occurs. They are expected to go further than under the current scheme and work to prevent similar events from occurring. This is, of course, a welcome reform. However, there is no guidance for providers on how they should support older people who have been involved in an incident.

I'll be moving an amendment today that ensures that everyone who has experienced a serious incident will be automatically referred to an independent advisory service, such as the national aged care advisory program. Whether the consumer chooses to take this up is up to them, but at least they'll be required to be provided with that information. Many people will actually want to go to an independent person rather than be supported by the provider, who potentially has been responsible for the incident. This amendment will ensure that older Australians have guaranteed access to that independent support if they experience sexual abuse, emotional abuse, neglect or any other serious incident defined in the bill.

Despite the merits of this strengthened scheme, serious incidents won't tell us everything. The government must not use this scheme as an excuse to delay reforms in other areas that will prevent serious incidents occurring in the first place—reforms like ensuring that every resident receives four hours and 18 minutes of care, which is the recommended level of care, or ensuring that nurses are on 24/7 and that the right ratio and skills mix is available at all times for residents. If we are really going to reduce the number of falls and incidences of neglect, we need to ensure that we have enough qualified staff to care for residents in the first place.

I hope that the government will seriously consider the amendments that I've circulated in the chamber. I encourage all senators to look at and support those amendments, which will strengthen this scheme. I also hope providers will see that the new scheme is an opportunity to fix issues and provide better care to older Australians and their families. We should not lose sight of the purpose of the Serious Incident Response Scheme, which is to protect the safety and wellbeing of residents and to drive changes in the way care is provided across all these facilities. We no longer want to see the shocking incidents we have been seeing in aged care for years and years. This scheme is well past due. It needs to be in place, it needs to be strengthened and then it needs to be funded and staffed enough to ensure that it has its desired effects.