The Aged Care Amendment (Implementing Care Reform) Bill 2022I (Aged Care Bill) proposed a series of measures in response to the 17 recommendations of the royal commission’s report on aged care quality and safety. The legislation was passed yesterday (2 August) in the Senate. 

The new legislation is aimed at “fixing aged care and protecting vulnerable Australians”, stated Mr Albanese; it seeks to improve “transparency and accountability”.

However, aged care advocates and lawyers have called for the removal of schedule 9 of the Aged Care Bill. This clause provides civil and criminal immunity to aged care providers, as long as the provider complies with the restrictive practices’ obligations in the Quality of Care Principles; these obligations have not yet been fully elaborated. 

“The current aged care bill includes a clause that will unfairly strip legal rights away from aged care residents in situations involving the use of restrictive practices,” stated Rodney Lewis, spokesperson for the ALA, author of the text Elder Law in Australia, and practising solicitor specialising in elder and aged care law.

This immunity would remove the basic legal and human rights of residents, and have serious social, legal, policy and human rights consequences, he stated. 

“Like the rest of the community, aged care residents must retain the right to seek justice for a wrongdoing,” said Mr Lewis.

“It is an appalling idea to give more power to aged care providers, many of whom have a long and well-documented track record of neglect, poor treatment and abuse of the people in their care — particularly in relation to the use of restrictive practices.

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“People who have been abused should always be able to access their common law rights, regardless of where the abuse occurred,” he added.

“Offering immunity to commercial businesses is unprecedented. Many aged care providers are ‘for-profit’ and some are publicly listed companies.

“Providing one particular sector of the business community with immunity from criminal charges, which can result in penalties of up to 10 years imprisonment, and civil claims in return for compliance with regulations made under an act of Parliament, signals a new and serious blow to upholding the rule of law.

“It was not a recommendation of the royal commission nor of the Commonwealth in its response to the royal commission’s recommendations.

“This clause must be removed.”

Mr Lewis noted a possible solution: to offer indemnity rather than immunity. This would work based on the history of claims arising from unlawful or restrictive practices. 

There are previous examples of such indemnity schemes, most recently, the one offered by the former federal government for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.

“In order to avoid the legal and constitutional challenges to the immunity proposal, the indemnity scheme may be vastly more acceptable, reasonable and preferable for all parties to the debate,” said Mr Lewis.

The ALA has been working alongside other aged care advocates, such as Dr Sarah Russell, director of Aged Care Matters, to call on politicians to properly consider the consequences of schedule 9 in its current form.