Janet Rice (Victoria, Australian Greens) Share this | Hansard source

The health, the wellbeing and the rights of older Australians are absolutely critical, and our aged-care systems so often in recent years have failed them, and that's been an indictment of Australian society. It's no surprise that the state of aged care has been a focus of government for a number of years now, which is reflected in the attention rightly given to the royal commission—in fact, the circumstances that led to the royal commission coming into being—and its recommendations, and the focus that both the Labor Party and the Liberal Party and us as Greens and the crossbench put on aged care during the election, because it's very clear that something needs to change. The system is broken.

The Australian Greens believe that the federal government has to play an absolutely central role in the provision, the regulation and the support of aged-care services. We believe that older Australians, their carers and their families should have the right to choose appropriate and affordable care services that meet their needs and maintain their dignity, their independence and their quality of life. So, of course, we want to see a high-quality aged-care system characterised by quality support, quality nursing and personal care; safe and comfortable surroundings for older people, whether in residential, home or hospital care; and for this to be what everybody gets—to not have people falling through the cracks, to not have providers that aren't meeting these standards.

Older Australians have got a right to freedom from discrimination and freedom from violence, a right to social security, a right to work and a right to health, and we want to see and enable a paradigm shift towards seeing older people as rights-holders and as active contributors to society. We need a human rights approach to aged care, and we feel that the regulatory framework underpinning aged care must be based on the human rights of older Australians and acknowledge the interdependence and the interconnectedness of those rights. Under a rights based approach, older people would be guaranteed access to the level of care and support that they are assessed as needing.

Now, of course, we are hoping that the complete right of the Aged Care Act that is going to begin this year is going to reflect this human rights based approach and is going to have this total reconsideration of the paradigm that we hold older Australians and aged care in. Clearly, what we are debating today, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022, is not that. It's an interim measure. It's a bill that is implementing some urgent recommendations from the royal commission, but it is just an interim measure. And we also know that it is largely the same bill that the previous government brought to the previous parliament. It was interesting to hear Senator Ruston talking about the delay of that bill. It was a bit of a rewriting of history, because I remember that that bill actually got through the Senate. It had been through the House and it had gotten through the Senate with an amendment that said 'required—24/7 nurses in aged-care homes', because the majority of the Senate felt that that was an important provision to be in place. And then the government chose to not take that amendment through the House. So it was the previous government that blocked the adoption of aged-care legislation at the end of the previous parliament.

The bill that we are looking at today is pretty much the same as the previous government's approach. We are really grateful that there have been some amendments to it. I'm very grateful to the previous government that they adopted most of the Greens amendments in the final version that went before the last parliament. We have also, after discussions and negotiations with the Minister for Aged Care over the last month, had some other measures that the Greens were very concerned about adopted in this new legislation. We are particularly pleased that the government has removed the previous schedule 2 on screening checks, because there was clearly a lot more work that needed to be done on the issue of screening checks for aged-care workers. It's a very important measure to make sure that the people who are providing aged-care services are able to be relied upon to be the most quality people possible, but there were some big issues with the screening checks as they were previously outlined in schedule 2.

There are other areas, in particular, where we feel that this bill should go further, but we recognise that it is an interim approach. We also know that it's in the context of further legislation that the government is going to be bringing before the parliament, that is also being introduced. That legislation is going to go off to committee to implement the measures that were in their election commitments, particularly around workforce and making sure that the care being provided is of the highest quality and that there is transparency of information on where aged-care providers are spending their money. We look forward to having a thorough interrogation of that bill and to see that bill pass through the parliament as well. But, similarly, both of those are just going to be interim measures before the required full rewrite of the Aged Care Act.

A critical change, of course, in this bill compared with our current aged-care legislation is the introduction of the Australian National Aged Care Classification, or AN-ACC. My predecessor, Rachel Siewert, worked really closely with the sector, highlighting the problems with the previous instrument, the Aged Care Funding Instrument, which is no longer fit for purpose. Overall, we are broadly supporting this bill, but we have two major concerns with it as it stands. One is the lack of mandatory requirements for the provision of allied health services under the new AN-ACC funding model. Allied health services like physiotherapy play a vital role in maintaining the wellbeing of older Australians. Without adequate access to allied health services, many residents of aged care and many people receiving home support would not be able to adequately manage their pain or reduce their risk of falls. Physiotherapy, for example, has been shown to decrease falls by 55 per cent. Under the previous funding model, the provision of allied health services, or a certain amount of allied health services, was mandatory. It is now no longer mandatory under the AN-ACC. The allied health professionals that I have spoken to are extremely concerned. We know that it is so important for older people to get those services as they require them—and physio, for example, is critical.

I've been messaging with my family as to how we can manage the care of my mother. She's currently in respite care after a fall at home three weeks ago. She broke two ribs. She spent a week in hospital. She's now had a week in respite care. She's hopefully going to be able to come home after that second week in respite care. So my sisters and my brother and I are trying to manage who can stay overnight with her over the coming months and what the long-term future for mum living at home by herself is. She was receiving physiotherapy but not enough. Clearly, there is a problem with the system. It's also incredibly complex to access care, even if it is theoretically available, even when you've got a family, like we have, of five siblings who are all doing our part to sort out the bits of care that mum is entitled to. Actually making it happen can be incredibly difficult. I think about the people who haven't got that level of family support, who are trying to manage their care packages pretty much on their own and not getting the support they need. The importance of allied health services to older people's quality of life was recognised by the royal commission, which recommended that residential aged care should include a level of allied health appropriate to each person's needs.

But, of course, it is not only people's access to it that we're concerned about; we are also concerned about the fact that there's a widespread shortage of allied health workers in aged care. According to the Australian Physiotherapy Council there was a shortage of 6,000 physiotherapists even before the pandemic. Without the provision of guaranteed funding for allied health services in aged care, this shortage of essential services could substantially increase. I've heard from allied health professionals and their representatives, who fear the worst for their industry and for the older people who need their services. One physiotherapist expressed to me that the lack of guaranteed funding for allied health in the AN-ACC model would be the death of allied health. If we want to improve the quality of services for older Australians in earnest, we must ensure that they've got adequate access to critical services, like allied health, and we have to make sure that allied health is funded properly.

In my discussions with the minister over the last weeks, it was clear that changes are needed but that in terms of what's going to happen and what the best model for ensuring that those allied health services are provided there is further consultation required with the sector. We acknowledge that there were problems with the previous funding model. We also think there are problems with this current funding model. So we will be supporting this legislation on this problem with allied health on the basis that there is still more work to be done on guaranteeing allied health services for older Australians.

The other really big concern that we have, which is reflected in the second reading amendment I'm going to be moving and also in a substantive amendment, is in relation to schedule 9 of this bill regarding restrictive practice. Let me start by revisiting the important work of the royal commission on this issue. In their final report, they noted that restrictive practices are:

… activities or interventions, either physical or pharmacological, that restrict a person's free movement or ability to make decisions. Where this occurs without clear justification and clinical indication, we consider this to be abuse.

They said that not only do restrictive practices have questionable success in minimising changed behaviours but they can result in serious physical and psychological harm, potentially increasing health complications and in some cases causing death. They also set out a clear pathway in recommendation 17. They said:

… the use of restrictive practices in aged care must be based on an independent expert assessment and subject to ongoing reporting and monitoring. The amendments should reflect the overall principle that people receiving aged care should be equally protected from restrictive practices as other members of the community.

When the previous Liberal government introduced changes through the previous bill, we welcomed the amendments that would reduce restrictive practices but were concerned that they didn't go as far as they should towards implementing the recommendations of the royal commission. As my former colleague Senator Siewert wrote in her additional comments to that legislation:

However, we believe the new regulations do not go far enough and do not fully implement the Royal Commission's recommendations on restrictive practices.

…   …   …

While the regulations require approved health practitioners to approve the use of restrictive practices, it is unclear whether these health practitioners will need to be independent of the aged care facility and provider. As a result, aged care providers will be able to use their in-house health practitioners to approve the use of restrictive practices.

In this legislation, we are assured that there are going to be some changes in terms of the hierarchy of a substitute decision-maker, and we understand that there are substitute decision-makers for if the older person is not able to give consent, which in these cases they would not be able to. We understand the concerns that the government is grappling with—that state and territory legislation is overall responsible for determining who alternative decision-makers would be. In some states and territories, that framework does not exist. So we understand that in subordinate legislation we are going to get a hierarchy of decision-makers. We understand that it is going to have to be done in accordance with a behavioural care plan. But this is all in subordinate legislation. We are basically having to take it all on trust.

It's easy to talk about principles, laws and regulations as though they're abstract frameworks, but they're not. They are matters of people's lives. The use of antipsychotic medication in aged-care facilities was identified by the royal commission as a significant problem. Post the royal commission, the statistics say that it's still continuing. I'm running out of time, but I want to share some case studies with you about people who have died because of the use of chemical restraints. According to the March 2022 residential aged-care quality indicators, as many as one in five aged-care residents are still receiving antipsychotics in 2022. So we are still really concerned.

In terms of schedule 9, we are willing to take on trust that, yes, okay, the subordinate legislation is going to better outline who the alternative decision-maker is to be, setting up that hierarchy. But the bit that we are particularly concerned about, also in schedule 9, is that, following this framework, any aged-care provider doing that would have immunity from prosecution if anyone wanted to take action against them about inappropriate use of restrictive practices. This is totally inappropriate. It is totally using a sledgehammer for a problem about which I have not been able to get any justification as to why immunity from prosecution is required. So I will be moving an amendment to address this, to remove that part of schedule 9, because I think it's a really important issue in a bill that otherwise is making steps forward to improve the quality of aged care for our older Australians.