64 Older people may experience abuse or neglect in aged care. Aged care includes residential aged care, as well as aged care provided in the home, or other flexible care arrangements. Abuse may be committed by paid staff, other residents in residential care settings, or family members or friends.
65 The Aged Care Act 1997 (Cth) provides a regulatory framework for aged care. The Commonwealth provides funding for aged care and regulates its provision though prescribing responsibilities for approved providers of care. Sanctions may be imposed on approved providers who do not meet their responsibilities. Principles made under the Aged Care Act also regulate the provision of aged care and are contained in a number of legislative instruments.
66 The Aged Care Act regulates different forms of aged care: home care, flexible care and residential care. The Commonwealth also has responsibility for entry-level support services for older people through the Commonwealth Home Support Programme (CHSP) in all states and territories except Victoria and Western Australia. The Commonwealth Home Support Programme Manual 2015 contains grant recipients’ responsibilities relating to the provision of care. There are ongoing reforms to aged care, with a number of changes scheduled to be phased in over coming years.
67 The ALRC is interested in evidence or case studies about elder abuse in aged care.
Question 11 What evidence exists of elder abuse committed in aged care, including in residential, home and flexible care settings?
Right to live without exploitation, abuse and neglect
68 Recipients of care have ‘user rights’ set out in the User Rights Principles. The User Rights Principles contain Charters of care recipients’ rights and responsibilities. These include the right to be treated with dignity and to live without exploitation, abuse or neglect. In residential care, they also include the right to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction.
Assessment of care needs
69 Before being approved as a care recipient, a person must have their care needs assessed. For care regulated under the Aged Care Act, the assessment is conducted by an Aged Care Assessment Team (Aged Care Assessment Service in Victoria). For the CHSP, the assessment is performed by a Regional Assessment Service.
70 A range of factors are considered in an aged care assessment, including risks of neglect and abuse. The ALRC is interested in comment on the role that aged care assessment plays, or might play, in identifying and responding to elder abuse.
Question 12 What further role should aged care assessment programs play in identifying and responding to people at risk of elder abuse?
Decisions about care
71 The Charters of care recipients’ rights and responsibilities include rights in relation to decision-making in residential and home care, which include, broadly, the right to control or participate in decisions affecting them.
72 A person may require decision-making support or an appointed decision-maker for decisions related to aged care—including consenting to an aged care assessment and entry into agreements relating to aged care; and ongoing care decisions. In addition, home care is now delivered on a ‘consumer directed care’ basis, meaning a care recipient is responsible for choosing the services appropriate to their care needs. An appointed decision-maker may provide a safeguard against elder abuse. In some circumstances, however, such a decision-maker may take advantage of this role to facilitate abuse.
73 The Aged Care Act and associated Principles contain a number of provisions that contemplate support in decision-making, but these may benefit from review to ensure that they contain appropriate safeguards against elder abuse.
Question 13 What changes should be made to aged care laws and legal frameworks to improve safeguards against elder abuse arising from decisions made on behalf of a care recipient?
Question 14 What concerns arise in relation to the risk of elder abuse with consumer directed aged care models? How should safeguards against elder abuse be improved?
Quality of care
74 An approved provider has responsibilities relating to the quality of care it provides. It must, among other things, provide specified care and services—for residential care this includes assistance with daily living activities, meals, and nursing services; maintaining an adequate number of appropriately skilled staff; providing care and services consistent with rights and responsibilities of care recipients; and complying with relevant standards for the type of care being provided.
75 The ALRC is interested in comment on the extent to which current requirements relating to the quality of care provide adequate protections or safeguards against elder abuse in aged care. For example, there may be concerns about requirements relating to background checks for staff, or the ratio of staff to care recipients.
Question 15 What changes to the requirements concerning quality of care in aged care should be made to improve safeguards against elder abuse?
76 ‘Restrictive practices’ involve the use of interventions to control a person’s behaviour. Examples include physical restraint, such as removal of mobility aids; chemical restraint, such as the use of sedative medicine; or environmental restraints, such as locked wards. Such practices may be an interference with a person’s rights. They may also constitute abuse and, in some circumstances, a crime.
77 Concerns exist over the use of restrictive practices in aged care, and over the processes for obtaining consent to their use where a person’s decision-making ability is impaired.
78 A national framework exists for reducing and eliminating the use of restrictive practices in the disability service sector. In aged care, the use of restrictive practices is not explicitly regulated, although guidance has been provided to support restraint-free environments in aged care.
Question 16 In what ways should the use of restrictive practices in aged care be regulated to improve safeguards against elder abuse?
Reporting alleged and suspected assaults
79 A reporting regime exists in residential aged care for alleged or suspected assaults. An approved provider must report an allegation, or a suspicion on reasonable grounds, of a ‘reportable assault’—broadly, unlawful sexual contact or unreasonable use of force—of a care recipient to police and the Department of Health within 24 hours.
80 There are some exemptions from reporting. Alleged or suspected reportable assaults committed by a care recipient with a cognitive or mental impairment are exempt from reporting requirements if, within 24 hours after allegation or suspicion, the approved provider puts in place arrangements for management of the care recipient’s behaviour.
81 The ALRC is interested in comment about the effectiveness of the reporting regime in aged care as a response to elder abuse.
Question 17 What changes to the requirements for reporting assaults in aged care settings should be made to improve responses to elder abuse?
Complaints and sanctions
82 Approved aged care providers must establish an internal complaints resolution mechanism for the aged care service. In addition, the Aged Care Act provides for an Aged Care Complaints Commissioner to manage and resolve complaints and concerns about aged care services.
83 There is also a separate sanctions regime, administered by the Department of Health. Sanctions may be imposed on an aged care provider that does not comply with its responsibilities. Sanctions include: revoking or suspending the provider’s approval as an aged care service provider; restricting such approval; or revoking or suspending the allocation of some or all of the places allocated to a provider.
84 There may be concern about the effectiveness of the complaints and sanctions regimes in responding to the abuse of people receiving aged care. For example, some have suggested that individual remedies should be available for breaches of the Charters of care recipients’ rights and responsibilities.
Question 18 What changes to aged care complaints mechanisms should be made to improve responses to elder abuse?
Question 19 What changes to the aged care sanctions regime should be made to improve responses to elder abuse?
85 Aged care support services may play a role in identifying and responding to abuse in aged care. The National Aged Care Advocacy Program (NACAP) provides assistance to people receiving aged care. Advocacy services may provide individual advocacy or information to clients, as well as educational activities including sessions for aged care recipients and workers.
86 There is also a community visitors scheme, in which recipients of both residential and home care are matched with volunteer visitors to facilitate contact with the community. Community visitors are not advocates, and are directed to report any concerns they have about care to the organisation that coordinates their visits. Some community visitors schemes in the disability sector take a more active role in monitoring potential cases of abuse and neglect. In Victoria, for example, it is a function of a community visitor to inquire into any case of suspected abuse or neglect of a resident, and the use of restrictive interventions and compulsory treatment.
Question 20 What changes to the role of aged care advocacy services and the community visitors scheme should be made to improve the identification of and responses to elder abuse?
87 The ALRC invites comment on any other changes that should be made to aged care laws and legal frameworks to identify, provide safeguards against and respond to elder abuse.
Question 21 What other changes should be made to aged care laws and legal frameworks to identify, provide safeguards against and respond to elder abuse?
Department of Social Services (Cth), Aged Care Assessment Programme Guidelines (May 2015) 23; Department of Social Services (Cth), My Aged Care Regional Assessment Service Guidelines (2015) 36.
See, eg, Aged Care Act 1997 (Cth) ss 96-5, 96-6; Quality of Care Principles 2014 (Cth) s 5; User Rights Principles 2014 (Cth) sch 2 ss 2(d), 5(d). See also Department of Social Services (Cth), Aged Care Assessment Programme Guidelines (May 2015) 15.