Does the Albanian government really want to deprive older Australians of their rights?

Does the Albanian government really want to deprive older Australians of their rights?

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Does the Albanian government really want to be remembered as the one that has deprived many older Australians of their basic human and legal rights?

The federal government has recently made a number of welcome commitments to improve the lives of seniors living in residential aged care facilities. Yet there is an obvious problem with the elderly care reform bill recently passed by parliament.

List nine of the Aged Care Bill 2022 and other amendments to legislation (Royal Commission response) provides immunity to aged care providers who adhere to the principles of quality of care under the Aged Care Act 1997. However, the specific principles of quality care required to implement the immunity provision have not yet been published.

Related: “Virtual” nurses may be needed to fulfill the mandate of 24/7 aged care staff, says senior health care executive

Also, program 9 is unfair. It provides immunity for providers and their staff for some of the more questionable aspects of aged care: the use of restrictive practices without obtaining legal consent. Such practices, which include chemical restraint, physical restraint, and isolation, have drawn the most ire from the royal elder care commissioners.

The royal commissioners did not recommend that suppliers and their staff be granted immunity for the use of restrictive practices. So why include this program on your aged care response bill?

It has been argued that legislative differences between states and territories pose a risk to aged care providers due to uncertainty and difficulty in identifying who has the legal authority to consent to restrictive practices.

The solution of aged care providers is immunity if they adhere to the as yet unwritten principles of quality of care. The Morrison government, and now the Albanian government, have simply adopted this solution.

However, granting such immunity is discriminatory because it denies seniors living in residential aged care facilities – a cohort of vulnerable people – the same legal protections afforded to all other Australians.

It subordinates the common law developed over the centuries to regulations enacted under the Aged Care Act. It is an extraordinary overcoming of constitutional powers to guarantee suppliers immunity from key legislation enacted by states and territories.

Annex nine could also violate Australia’s obligations under the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention against Torture that Australia has signed.

It is also unprecedented to offer immunity to commercial activities. Many suppliers are private or publicly traded (Estia, Regis) and multinational (Bupa, Opal) for-profit companies.

Some government-funded “consumer” organizations have indicated support for program nine. However, independent advocates, elder abuse and human rights lawyers who speak out without fear of losing government funding have expressed strong opposition.

The number of court cases filed against aged care providers over the past 25 years is small, perhaps only six, and complainants have not always been successful.

Given that residents and their families have rarely taken legal action, despite the proven track record of decades of neglect, inappropriate treatment and abuse of those in their care, the willingness of governments to protect aged care providers is astounding.

One solution is to offer aged care providers an allowance and not an immunity. There are many examples of similar compensation schemes, most recently the one offered by the Morrison government for health care workers who could be held liable for paying compensation for serious adverse events experienced by people receiving Covid-19 vaccines.

A compensation scheme would also avoid potential legal and constitutional challenges to the proposed immunity and would not guarantee further delays in the Albanian government’s determination to reform the aged care system.

Related: Immunity on use of Australian aged care restrictions may violate torture conventions, lawyers say

Persons who have been abused should always have access to their common law rights, regardless of where the abuse occurred. Rather than protecting suppliers from litigation, perhaps the government should instead encourage suppliers to take out insurance to protect their business interests if a resident takes legal action.

When Australia’s top three elder abuse and human rights lawyers oppose this legislation, the government should listen. Surely the Albanian government does not want to be remembered as having taken unprecedented action simply to protect the profits of aged care providers, many of whom are multinationals, on the rights of vulnerable Australians.

A solution was on the table. The government is choosing not to take it.

• Dr. Sarah Russell is a public health researcher and advocate for aged care

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