On 25 October 2021, a bill entitled the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 (“Bill”) passed the House of Representatives and within a few hours the government presented further amendments including a proposal for legal immunity for aged care providers.
The terms of the 9th schedule adding s 54-11 to the Aged Care Act are as follows:
54-11 Immunity from civil or criminal liability in relation to the use of a restrictive practice in certain circumstances
(1) This section applies if:
…
(b) a *restrictive practice is used in relation to the care recipient; and
(c) the care recipient lacked capacity to give informed consent to the use of the restrictive practice.
(2) A *protected entity is not subject to any civil or criminal liability for, or in relation to, the use of the *restrictive practice in relation to the care recipient if:
(a) informed consent to the use of the restrictive practice was given by a person or body specified in the Quality of Care Principles made for the purposes of this paragraph; and
(b) the restrictive practice was used in the circumstances set out in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f).
How will the proposed amendments change the Aged Care Act?
Effectively, the Bill proposes to provide legal immunity to aged care providers in the event an aged care resident wishes to bring a civil claim or make a criminal charge when they consider they have been unlawfully chemically or physically restrained. It imposes a precondition that they must show that provisions of subordinate legislation, such as the Quality of Care Principles 2014, have not been complied with.
This imposition is not required of other litigants and, further, Quality of Care Principles already qualifies the access to immunity by requiring that the restrictive practices “meets the requirements [if any] of the law of the State or Territory in which the restrictive practices are used”. So, when regard has had to the common law on unlawful restraint, the circularity of the measure becomes absurd.
The rationale for proposing legal immunity was to allow providers to avoid having to make decisions about restrictive practices where the governing federal laws are not consistent with the state laws.
However, although different state and government guardianship laws are not uniform in relation to decisions regarding restrictive practices, the reforms to unify these law may take many years and, in the meantime, the vulnerable or frail aged, who are subject to the Bill, will be left as the only cohorts subject to the removal of the civil and criminal protections which protect all other Australians [although regrettably there is already similar legislation in S.A., W.A. and a proposal in NSW applying to the NDIS sector].
Ultimately, the proposed Bill seeks to strip aged care residents’ of their fundamental dignity and personal rights to freedom, including under the common law of Habeas Corpus, an ancient prerogative writ and an irreplaceable foundation to universal prima facie rights to personal liberty, the most important of all common law rights.
Rodney Lewis has practised in elder law since 1999.