Dignity in decision and discussion – South Australia shifts law easing process of family members to move seniors from hospital to rac

In the latest update to ease pressure on hospitals, updates to law have been passed by the South Australian (SA) government. These legislative changes have essentially smoothed out processes for family members to transition seniors from hospitals into aged care. However, aged care advocates have been quick to question the move, fearing the change hollows out independent oversight of these delicate decisions, potentially nullifying the ethos of person-centred care. 

The problem of seniors stuck in hospital is a serious one, as SA struggles with 250 seniors in hospital waiting for RAC. Yet advocates and provider leaders offer caution, getting seniors out of hospital may not result in a RAC placement of quality, as well as opening up seniors with cognitive diseases to increased financial abuse vulnerability.

Haste brings questions

Between exorbitant ramping wait times outside hospitals and the thousands of seniors marooned in hospitals with nowhere to go, the tension points are pulled taut for most of Australia’s health ministers. Well reported are the ping-pongs of blame thrust to Canberra, and the federal responses of “more needs to be done”. In the multi-sector complexity of hospitals at capacity, RAC in similar straits and Support at Home accessibility obstacles, growing pressure is fueling solutions from all areas. Within this environment, a bill passed SA parliament without fanfare last month, opening up the powers of substitute decision-makers and guardians to transition those in hospital into dementia facilities.

Peeling back the layer of the solution-‘gift’ shows a potential for harm and exploitation. Advocates have pointedly questioned the legislative update, saying it weakens the rights of senior Australians within the haste to meet the issue of seniors stuck in hospital.

Bill changes

Substitute decision-makers have been given increased powers with the legislative change. Under the new law, most likely a family member but also a carer or even friend of a senior, who has reduced capacity to make their own decisions, has been legally entitled to “authorise the detention of the person for the purposes of transporting” from the hospital setting to a specialised aged care facility.

The reach of powers extends. The substitute-decision maker is permitted to authorise the senior’s detention within the RAC facility, if the move is “reasonably necessary” to mitigate or diminish a “significant risk of serious harm that the person presents to themselves or to others”.

Previous conditions

Under the old conditions of the law, the substitute decision-maker or approved guardian would be required to pursue the same power through an application to the South Australian Civil and Administrative Tribunal (SACAT).

In order to be granted the special powers, an application would be legally and procedurally required to persuade and justify why they were necessary in the senior’s specific instance.

State reasoning

When questioned as to the necessity of the bill, passing with bi-partisan approval a fortnight ago, the state government has situated justification within the overarching problem of overcapacity in hospitals. The changes are framed as intending to: “alleviate any delays associated with administrative processes” in the process of moving seniors out of hospital and into RAC.

Leaders and advocates across the sector, however, see the change as hollowing out safeguards for vulnerable seniors, removing systemic protections of independent oversight from SACAT, as the tribunal would no longer be required or empowered to review the detention orders for the span of six months.

Advocates high exploitation possibility

Speaking to the ABC, Carolanne Barkla, Aged Rights Advocacy Service chief executive points to the importance of the approval process through SACAT, “The current system requires that to be done before the person is effectively moved”.

“So, we seem to be sacrificing the rights of older people for expediency.”

She notes that there are straightforward hypotheticals which can be used to test the robustness of the new system to safeguard rights or lack thereof.

For a senior, who is happy at home, being supported in their dementia in an environment that is most familiar to them, with one fall, their world could be upended.

A substitute decision-maker could then use this opportunity to approve the detention and move of the senior into a RAC facility, ignoring the wishes of the senior, without any checks or balances. The decision to forcibly detain the senior in a RAC facility, against their will, could be done without independent oversight for half a year.

Ms Barkla continues, “[The substitute decision-maker] may well see an opportunity that they can now place an older person into a residential aged care facility and possibly accelerate their inheritance or access to controlling the older person’s finances”.

“We should not be sacrificing the liberty of older people without having some independent oversight and the ability for them to be able to say, “I don’t agree, and this is why I don’t agree”, she advocates.

“Doing that six months later is not appropriate.”

Balancing rights and solutions

The SA government has in the past noted that the six-month review was the extreme, and “in many cases”, SACAT would be reviewing detention order even sooner. Yet for seniors, the worry remains, checks and balances have been removed, with detention reviews up to the chance of bureaucratic bandwidth. For mandatory detention against a person’s will, it is likely a day is interminable, let alone the possibility of review earlier than six months but with no guarantee.

State officials have also conveyed that substitute decision-makers would routinely be guided through the process with expert advice from hospital medical staff, as to the veracity of senior RAC need.

As the blatant tension points of strained hospitals and RAC become more and more evident, advocates, seniors and provider heads are calling for strategic and ethical oversight when seeking to implement changes to meet the complex intersection of multi-sector issues.

Home remains the place that the majority of seniors wish to be, from being stuck in hospital to detained in aged care, the ethos of the new act has been missed. Supporting seniors and carers to manage at home remains the core goal that advocates and providers are calling to be substantively realised in reform and funding.

Provider leadership of high-performing facilities are clear, it is paramount seniors have a choice in entering RAC, this allows the potential to find a new home in the new. Within the dignity of choice, seniors, front-line staff and the critical morale ‘substance’ of a RAC facility are set up to pursue thriving.