While proposed new aged care legislation makes steps toward implementing core recommendations from the aged care royal commission, I have concerns over the bill’s provisions that enable others to make decisions for aged care recipients.
On the positive side, supported and substitute decision-making initiatives in the Aged Care Bill 2023 would bring our aged care legislation more into line with our international human rights obligations by supporting people to make their own decisions, and by requiring a substituted judgement (“will and preferences”) approach to any substitute decision-making. But 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; and
- a new federal process for appointing “supporters” and “representatives”.
As it stands, there are going to be significant integration problems. These include potential duplication of processes, unclear decision-making pathways, and conflicting duties in some jurisdictions where people are appointed, for instance, as both guardian and representative. At the same time – and like the appointment of National Disability Insurance Scheme nominees – the proposed appointment of aged care representatives runs the risk of being process free. On recommending a better way, it is important to ensure both that adult guardianship is only used in situations of necessity, and that the appointment of representatives is appropriate.
An improvement would be for the bill 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;
- the proposed representative has “a close and continuing relationship with the person”; and
- there is no significant contention about the appointment among people with a genuine interest in the wellbeing of the person.
It would be better if the bill simply stated that restrictive practices can only be used where they are authorised
Dr John Chesterman
The other area of concern is the legislation’s brief mention of restrictive practices. The bill leaves the future regulatory situation in the hands of the drafters of new rules that will be made in this regard, although it does set out that any use of a restrictive practice must be “a last resort”.
Unfortunately the bill also states that the rules have to require “informed consent” before a restrictive practice is used. For many reasons, the consent model is problematic when it comes to authorising restrictive practices. It would be better if the bill simply stated 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.
Dr John Chesterman is the Queensland Public Advocate
More stakeholder views from this edition
Embrace reforms as a means of recovery by Tom Symondson
Why we keep talking about rights in aged care by Patricia Sparrow
Reable the whole aged care sector by Dr Claudia Myer
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