‘More work needed on aged care bill’

In releasing an exposure draft of proposed new aged care legislation, the federal government has taken a significant step toward implementing some of the core recommendations from the 2021 Royal Commission into Aged Care Quality and Safety final report.

The Aged Care Bill 2023 contains 413 clauses in eight chapters covering, among other things, aged care eligibility and assessment criteria, the registration of providers, and the operation and powers of the Aged Care Quality and Safety Commission and its oversight body, the Aged Care Quality and Safety Advisory Council.

The bill contains – as the royal commission recommended – an expansive “statement of rights” (clause 20), which includes the rights of aged care service recipients to “exercise choice and make decisions that affect the individual’s life”, and to “be free from all forms of violence”. Although the bill makes clear (clause 21) that these “rights” would not be “enforceable by proceedings in a court or tribunal”.

The bill also contains important provisions concerning complaints processes and safeguards, which place enormous faith in a revamped Aged Care Quality and Safety Commission.

There are certainly several positive elements to the legislation, but I want here to raise concerns about the bill’s provisions that enable others to make decisions for aged care service recipients, and about the bill’s brief mention of restrictive practices.  

Ten years ago, the Australian Law Reform Commission, in its Equality, Capacity and Disability in Commonwealth Laws report (recommendation 6-2), called for the adoption of its proposed “National Decision-Making Principles” in aged care legislation. This recommendation was repeated in its 2017 report Elder Abuse – A National Legal Response (4-12). The disability royal commission also recently made similar recommendations.

These recommendations seek to enliven Australia’s human rights obligations to support people to make their own decisions, and to require a “substituted judgement” (“will and preferences”) approach to any substitute decision-making.

The Aged Care Bill 2023 exposure draft responds to this call and largely follows the ALRC blueprint. It sets out that the System Governor (defined at clause 7 to mean the department secretary) can appoint “supporters” and “representatives” of people “accessing, or seeking to access, funded aged care services” (clauses 374, 376).

Supporters, whose role would be to support decision-making by the person concerned, would have (clause 24) information gathering and communication powers and would be required (clause 26) to “act in a manner that promotes the will, preferences and personal, cultural and social wellbeing of the individual”.

Representatives, meanwhile, would have power (clause 27) to do anything that the person could do under the legislation except consent to restrictive practices, and would be required (clause 30) to “act in a manner that promotes the personal, cultural and social wellbeing of the individual” and act consistently with the person’s “will and preferences” unless this posed a “serious risk” to the person.

These initiatives, overall, are positive; they would bring our aged care legislation more into line with our international human rights obligations. But a considerable question hangs over how this scheme will interact with state and territory guardianship and related decision-making laws and practices.

With the bill’s enactment we would have two sets of substitute decision-making pathways:

• the current state and territory-based adult guardianship and self-appointment processes – such as enduring powers of attorney
• a new federal appointment process.

The bill requires any existing substitute decision-makers – such as guardians or people appointed under enduring powers of attorney or comparable instruments – to be appointed as representatives before having their powers recognised in relation to aged care decisions (clause 28).

The bill (clause 376) requires such people to be appointed as representatives where they request this, so long as the System Governor concludes that they will be able to meet “the duties of representatives” and after taking “into consideration the wishes (if any) of the individual”.

These provisions, which evidence the suspicion about existing substitute decision-making laws and practices that were voiced in an earlier consultation paper, will create integration problems.

The requirements mean that even after a state or territory tribunal has appointed a guardian, a Commonwealth departmental delegate would need to gain the views of the person in question before appointing their guardian as representative. What exactly the System Governor would do when a person is unhappy about their guardian being in place – which is far from rare – is unclear.

Moreover, in some jurisdictions – for example Western Australia and New South Wales – substitute decision-makers are still required to use the dated “best interests” (or “welfare and interests”) approach to decision-making rather than a “will and preferences” one, meaning they would have potentially conflicting duties, as both guardian and representative.

Australia’s modern adult guardianship system was only ever supposed to be used in exceptional circumstances. It is fair to say that this system is now overused, a view shared by most guardianship agencies. But, similar to the appointment of National Disability Insurance Scheme “nominees”, the proposed new system concerning aged care “representatives” will potentially be process free, and it seems to privilege administrative efficiency over everything else.

Meanwhile, it is unclear what will happen when there is family conflict, or where there is no one able to support the person – situations that routinely now result in guardianship appointments. Will people who currently seek guardianship orders in these situations – such as family members and hospitals – continue to do that, or will they seek direct appointment of representatives? 

And what of the role of public agencies such as public guardians, public advocates and public trustees? There is some uncertainty in particular jurisdictions about whether they could act as representatives, given the specific requirements contained in the state or territory legislation that creates their roles. And even if they can, would they first need to be appointed by their state or territory tribunal as guardian or administrator (financial manager) before they could be appointed as representative? Probably, although again that is not clear.

Better integration with state and territory systems is required.

In recommending a pathway here, it is important to ensure that guardianship processes are only used in situations of necessity and not simply for instrumental reasons. At the same time, we don’t want the appointment of representatives, who carry significant decision-making power, to be bereft of any process, especially in situations where there are, or should be, concerns about a particular appointment. 

An improvement to the bill would be for it to require that a person who does not already hold relevant decision-making power under a state or territory law can only be appointed as a representative if several conditions are met, including that:

• the appointment is consistent with the “will and preferences” of the person concerned; and
• the proposed representative has “a close and continuing relationship with the person” (borrowing a phrase that exists in Victorian medical decision-making legislation); and
• there is no significant contention about the appointment among people with a genuine interest in the wellbeing of the person. 

Further engagement with state and territory guardianship agencies would also lead to other improvements and ensure that the new aged care legislation will be optimally effective.

I have written several articles in this publication about the regulatory schemozzle that is the current regulation of restrictive practices in aged care settings.

The bill leaves the future regulatory situation in the hands of the drafters of new rules that will be made in this regard, although the bill sets out (clauses 17, 106) that any use of a restrictive practice must be “a last resort”, after the exhaustion of “alternative strategies”. The bill also specifies that the rules “must … require that informed consent is given to the use of a restrictive practice in relation to the individual” and that the rules may identify “the persons or bodies who may give informed consent to the use of a restrictive practice”. This allows the possibility that future rules will enable states and territories to determine their own authorisation procedures.

The use of “informed consent” in the bill is problematic for reasons I have articulated in this publication on multiple occasions. Asking a person to consent to their own restrictive practice is simply odd. And asking someone else to consent on their behalf is equally problematic, especially when we are increasingly requiring (as indeed this bill does) that substitute decision-makers make decisions that accord with the “will and preferences” of the individual.

A better course here would be, as I recommended in an earlier restrictive practices submission, that the bill simply require that restrictive practices can only be used where they are authorised according to the “applicable law of the state or territory in which the care recipient is provided with aged care” services. 

Attention would then shift to ensuring the adequacy of our state and territory restrictive practice authorisation processes, on which, of course, significant work is now needed. These state and territory authorisation processes should utilise a senior practitioner authorisation model, which is increasingly accepted to be superior to a consent-based model. The final report of the disability royal commission provides further support for this stance.

The effectiveness of such regimes will ultimately be judged, of course, according to whether restrictive practice usage is only ever exceptional, short-lived, and increasingly rare.

Dr John Chesterman is the Queensland Public Advocate

Consultation on the draft legislation closes on Friday 16 February 2024

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