23 November 2021

Astounding discrimination against vulnerable people in aged care

The Federal Government has proposed a law which changes the Aged Care Act and helps aged care providers to dismiss and avoid claims by their aged residents arising from unlawful restraint incidents. 

The Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 offers immunity from civil and criminal claims and charges. 

This is completely unacceptable and undermines the legal and human rights of the aged care residents around Australia who may be in a locked ward, or have been given medication to change their behaviour, or have experienced other physical restraints.

The potential criminal charges can mean up to 10 years imprisonment in some States, if a person is convicted of breaking the law on restraints. There are also civil claims which may be possible.

The right thing to do is for the government to withdraw the proposal.

It is clear that there has been little or no debate or assessment upon this particular measure of immunity for Providers.

The Community Affairs Committee in its Report to the Senate made reference to a number of points of criticism of the immunity proposal which were contained in one of the submissions, but they were ultimately dismissed by the Committee.

There has been no proper or adequate public debate on the particular measure, concerning as it does, removal by immunity from our vulnerable elders on what would otherwise be legal recourse available to all Australians.

The Senate must not allow the Bill to be passed, when the legislation comes before it and that will allow an opportunity for consultation and debate on this drastic measure while the Parliament is in recess.

The International Commission of Jurists has written to some of the members of the Senate expressing “serious concerns” relating to the provision granting immunity from civil and criminal claims and charges and endorsed Rodney Lewis's submission to the Committee. They too, found the provision to be "completely unacceptable and contrary to the legal and human rights of the aged care resident".

For all media inquiries please call Rodney Lewis, Aged Care Crisis Legal Issues Columnist and Senior Solicitor for Elderlaw Legal Services, Sydney
Tel: 02 9232 8033

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