Opinion: Safety vs Rights – new Aged Care Act in danger of unintended consequences

This article was written by Geoff Rowe, CEO of Aged and Disability Advocacy (ADA) Australia, the Queensland member of the Older Persons Advocacy Network.

The exposure draft of the new Aged Care Act shows good intent, and a good start to creating a human rights-based approach to aged care, as recommended by the Royal Commission into Aged Care.

However, as an aged care advocate, I am concerned that the draft of the Act doesn’t go far enough to really turn the current system focus from the ‘business of aged care’ to the ‘people in aged care’.

Embedding human rights in aged care needs to be as important as the business of aged care. It’s this fundamental shift in our approach that is needed to really turn Australia’s aged care system around.

However, when we look at what in the draft Act is enforceable, there are new duties under the law for service providers, staff and organisations, but the new Statement of Rights, outlining the human rights of older people, are not enforceable. 

Without any measures to make sure the Statement of Rights are upheld, they simply become good intentions. The rights of older people in aged care must be given the same importance as measures to ensure the quality and safety of care. 

I understand that there is need to balance safety and rights in service delivery, but how can a balance be achieved if there is no weight on the Rights side of the scales? 

So, while the draft Act has stronger regulatory powers to address wrongdoing and negligence, which are welcome, issues around choice and control, an effective complaints process and enforceability of rights have yet to be resolved. 

The concern is that this imbalance could lead service providers to placing an even greater priority on blanket safety measures over the rights of older people to pursue their quality of life and have agency over their lives. 

For example, I can see where it could easily be deemed as ‘safer’ to restrict older residents in aged care from some activities, rather than developing an individual risk managed approach – say a person with early-stage dementia who wants to go out alone to the shopping centre or walk alone in the garden.

Aged care advocates are calling for service providers to have a positive duty to uphold the Statement of Rights in the Act, that they are directly enforceable and that there are appropriate consequences for breaches.

There is precedent for this. Following the Jenkins Review, the Sex Discrimination Act has a positive duty imposing a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work.

The Human Rights Act 2019 in Queensland states that it is unlawful for a public entity to act or make a decision that is not compatible with human rights or to fail to give proper consideration to human rights when making a decision, and that people affected may seek relief or remedy.

It’s important to note here that this is not about creating a legal minefield in aged care. It’s simply giving human rights equal consideration and acknowledging that people should retain the same rights as they have now, when they go into aged care.

Embracing human rights doesn’t need to be difficult, it is a change of perspective that needs to be supported by the legislation. We also recognise that service providers will need time to transition to changes that the new Aged Care Act will bring and would expect to see a staged implementation process when the Act commences. 

The Older Persons Advocacy Network and COTA Australia, in partnership with ten other older people and carer organisations, have identified 23 key issues that need to be addressed in the Aged Care Act Exposure Draft.

People have until 16 February to comment on the exposure draft of a bill for new Aged Care Act.