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senate vote 2022-08-01#3
Edited by
mackay staff
on
2022-08-12 14:10:43
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Title
Bills — Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022; in Committee- Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 - in Committee - Immunity from prosecution
Description
<p class="speaker">Janet Rice</p><p>I have some questions about the bill that I want to ask prior to moving my amendment. The Australian Greens, as indicated by our vote on the second reading question just then, support this bill overall. We think it includes some important steps forward in aged care in Australia. But we've got three areas of concern I want to ask some questions about. The first is the availability of allied health in aged care, particularly physiotherapy, under the new funding instrument, the AN-ACC. The second is issues we've got with the transparency of the findings of the independent pricing authority. And the third area I want to ask some questions about is schedule 9, about restrictive practices.</p>-
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2022-08-01.232.5) that [items (3) and (4)](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6875_first-reps%2F0009;query=Id%3A%22legislation%2Fbills%2Fr6875_first-reps%2F0000%22;rec=0) of schedule 9 stand as printed. In other words, they voted to keep those items unchanged.
- ### What are items (3) and (4) of schedule 9?
- Victorian Senator [Janet Rice](https://theyvoteforyou.org.au/people/senate/victoria/janet_rice) (Greens), who proposed to remove these items from the bill, [explained that](https://www.openaustralia.org.au/senate/?gid=2022-08-01.232.1):
- > *I didn't receive any good rationale as to why there should be immunity from prosecution for restrictive practices after they've gone through all of the various hoops. Yes, let's make sure that the provisions are appropriate, but at the end of the day there does not seem to be any justification for giving immunity from prosecution to providers for those circumstances. My amendment would remove the second half of schedule 9.*
- ### Text of items (3) and (4) of schedule 9
- > *3 At the end of Division 54*
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- > *Add:*
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- >> *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:*
- >>
- >>> *(a) an approved provider provides aged care of a kind specified in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f) to a care recipient; and*
- >>>
- >>> *(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:*
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- >>> *(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).*
- >>
- >> *(3) Each of the following is a protected entity :*
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- >>> *(a) the approved provider referred to in paragraph (1)(a);*
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- >>> *(b) an individual who used, or assisted in the use of, the restrictive practice in relation to the care recipient referred to in that paragraph.*
- >
- > *4 Clause 1 of Schedule 1*
- >
- > *Insert:*
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- >> **protected entity** *has the meaning given by subsection 54-11(3).*
<p>Starting off with allied health: I want to read out some of an email I received on Friday from Alwyn Blayse, the CEO and principal physiotherapist of the Allied Aged Care health group, who presented to the Senate inquiry on the previous version of this bill under the previous government late last year. What Mr Blayse said to me on Friday was that Labor is ignoring the concerns of allied health that they recognised in the Senate hearing of November 2021.</p><p>He said, 'Sadly, all of those predictions I and others made about the future of allied health in our submission have come true. Residents are being claimed for pain treatments not even occurring, and I've got proof, and removed from treatment for economic reasons. Homes have cut hours of allied health all over the country and providers like us in regional areas are facing impending job losses.'</p><p>He continued, 'My team and I are doing our best to avoid and bring staff to work in other areas but we want to stay in aged care. We can't, though, as providers are cutting our lists, not paying us and cancelling contracts, using any flimsy excuse they can. And I can share detailed emails on this and that refer to AN-ACC as the reason.' He gives information from various providers and others: 'Helping Homes—read between the lines that allied health isn't required. So cut it and use cheaper wellness and lifestyle instead, which risks unqualified staff treating frail people with hot packs and exercise. They aren't even insured or registered to do this.'</p><p>Mr Blayse continues, 'This isn't even the top of the iceberg: 23,000 veterans in aged care won't be looked after. You should see the waffling and buck-passing answers I get from the department of health and the Department of Veterans' Affairs, simply asking if veterans would be able to have treatment under the AN-ACC.'</p><p>So my question is: what are we going to be doing about these very serious concerns that allied health providers, particularly physiotherapists, have about this current bill?</p> <p class="speaker">Katy Gallagher</p><p>Thank you, Senator Rice, for the question about how allied health will operate under the new model, the AN-ACC model.</p><p>Residential aged-care providers are funded for and required to provide allied health services to residents in accordance with their obligations under the Aged Care Act 1997 and the associated quality standards. The Australian National Aged Care Classification removes the inbuilt incentives that exist within the ACFI to deliver specific allied health treatment, such as massages for pain management, that are not necessarily the most clinically appropriate or effective approaches for some residents.</p><p>This allows allied health professionals more freedom to provide the best targeted treatments that directly benefit the individual, consistent with their individual care plan—for example, treating pain through an exercise program. Existing ACFI funding, which includes funding for an allied healthcare provision, will be rolled into the AN-ACC funding allocation.</p><p>The 2021 StewartBrown survey identified that providers currently spend approximately four per cent of their care funding on allied health or approximately $400 million. Under AN-ACC this equates to approximately $700 million of the care funding that will be provided in 2022-23. Furthermore, the 2021 StewartBrown survey also identified that providers currently spend approximately three per cent of their care funding on lifestyle, approximately $300 million, and under AN-ACC this equates to proximately $550 million of the care funding that will be provided in 2022-23.</p><p>From 2020 to 2021, and moving to quarterly from 1 July 2022, more detailed expenditure information will be collected from aged-care providers, including staffing costs and direct-care hours delivered across a range of staffing types, including allied health. This will give visibility over the use of allied health services during and following the transition to AN-ACC, enabling the government to respond as necessary. I hope that answers your question.</p> <p class="speaker">Janet Rice</p><p>Thanks, Minister. Sadly it doesn't, because it doesn't give certainty to the physiotherapists as per Mr Blayse's concerns of having their contracts cut as of now. It will take some time before we have that transparency to show whether or not the physiotherapy is continuing to be provided.</p><p>The evidence, certainly, that was presented to our Senate committee and what Mr Blayse has followed up on with his email, as of Friday, is that physiotherapy services are being cut. So what certainty can you give to physiotherapists and other allied health providers in the interim, before we have the extra transparency information and before there may, indeed, be further modifications under the new aged-care legislation that would make sure that all residents get the allied health services they need?</p> <p class="speaker">Katy Gallagher</p><p>R (—) (): Thank you, Senator Rice. I think the answer—and I did cover it in that earlier question. There will be some changes but there's extra resourcing going in and extra flexibility, and decisions will be made on the needs of particular residents or residents' individual needs. If you're getting advice that providers are making decisions about what services will be offered, I'm not in a position to argue with that. But the position is, as outlined in my earlier answer, that there is additional resourcing going in and additional flexibility about how that resourcing is used to match the needs of individual residents, whether that be physiotherapy or some other type of allied health care that's required. I don't think it's fair to say that resourcing would be reduced, but certainly changes may be made as to the type of therapy or allied healthcare service that residents might receive based on their individual needs.</p> <p class="speaker">Janet Rice</p><p>I certainly hope that you're correct, but there is grave concern from the allied health sector, as of now, about the allied health services that residents in aged-care facilities need not being provided. At this stage, I think it is going to be a situation where we're waiting. I would have liked to have seen some more certainty being given to these allied health providers, but it sounds like you're not able to give me that certainty.</p><p>I want to move on to some questions about schedule 8—the independent pricing authority. We've just been talking about further transparency, so that the information's on the table about what money is being spent in the aged-care sector. One of your key election commitments was to increase transparency in the aged-care sector. What I want to know is why you haven't made it a requirement that the Independent Health and Aged Care Pricing Authority publish its findings, rather than leaving it to the discretion of the government.</p> <p class="speaker">Katy Gallagher</p><p>Just to finish off on that final question in the area that you were asking about in allied health: I would say that, from the government's point of view, we acknowledge that concerns have been raised and we are actively engaging with the sector, and we'll continue to do so during the transition to the new arrangements.</p><p>In relation to your question, Senator Rice, about the Independent Health and Aged Care Pricing Authority, both of the aged-care amendment bills currently before the parliament will contribute to increased transparency in the aged-care sector. The provisions in this bill ensure that the parliament and the public will have visibility of the work of the Independent Health and Aged Care Pricing Authority. The pricing authority will independently and transparently advise on aged-care pricing, supporting the transparent and evidence based assessment of the costs of delivering aged care to older Australians.</p><p>Schedule 8 of the bill specifically provides for the pricing authority to report annually to the parliament its healthcare costing and pricing advice. This is not discretionary. That advice will also be the result of an extensive annual public consultation and fact-finding process. These arrangements will enhance community confidence in aged care and the funding allocated to aged care. The government remains accountable to the community for the expenditure of resources across health services, including aged-care services. As a result, having considered the pricing authority's advice, the government will continue to determine aged-care prices through a legislative instrument.</p> <p class="speaker">Janet Rice</p><p>Thank you. I'm sorry; I got distracted with sorting out our logistics here. You're saying that, yes, the government will retain that decision-making process. But why, as part of that, won't you commit to actually publishing the findings of the Independent Health and Aged Care Pricing Authority? Will you commit to making the pricing authority's findings public?</p> <p class="speaker">Katy Gallagher</p><p>Yes. I did say earlier in my comments that it would be reported annually to the parliament.</p> <p class="speaker">Janet Rice</p><p>Thank you. I'm sorry I missed that amongst all of the things going on here. I want to move onto schedule 9—restrictive practices—which is one of the biggest areas of concern that many advocacy groups have raised with me. The concerns with schedule 9 are about both the hierarchy of decision-makers in order to authorise restrictive practices and the immunity from prosecution. As we know, the issue of restrictive practices was a massive issue that was covered in the royal commission, the use of physical and chemical restraints, and the royal commission made some very strong recommendations about reducing the amount of restrictive practices. We also have the evidence that since the royal commission in fact the use of restrictive practices has not decreased, and the data is showing that there has continued to be an unacceptably high use of physical and chemical restraints.</p><p>I've certainly been having quite a lot of communication with the minister's office about schedule 9 and about who gets to decide whether restrictive practices are going to be put in place. As I understand it, there is going to be subordinate legislation that will be put in place that will outline that hierarchy of decision-makers and quality-of-care principles. My question is, first, we are discussing this legislation now, but those quality-of-care principles and the hierarchy of subordinate decision-makers are not yet public, so I want to know: when are you going to make public those quality-of-care principles and the hierarchy of subordinate decision-makers?</p> <p class="speaker">Katy Gallagher</p><p>Thank you. I'm just getting some wise counsel before I jump to my feet. On the quality-of-care principles, an exposure draft of the amendments to the quality-of-care principles is expected to be made publicly available imminently, so very soon. Publication is intended to assist with sector preparedness and is also aimed to alleviate any concerns regarding the proposed immunity provision, as it will confirm how the immunity is proposed to be limited. In relation to the of subordinate decision-makers in the quality-of-care principles, the answer there is the same: it will be released very soon. I can talk a bit about the hierarchy of decision-makers, if you want, but the answer to your question is: very soon.</p> <p class="speaker">Janet Rice</p><p>If you were able to share some more information about the hierarchy of decision-makers that would be helpful.</p> <p class="speaker">Katy Gallagher</p><p>I led into that one, so I'm not sure I'm going to tell you anything that you might not be already be aware of. But let me have a crack. Where an individual cannot provide informed consent to restrictive practices, it's considered that the person who knows the person best be identified as someone to consent to the specialised care of their loved one. The amendments in schedule 9 create a pathway for the quality-of-care principles contained in subordinate legislation to establish a hierarchy of substitute decision-makers from a person's partner to family and friends with a close connection to for the person. It will also be possible for the person, where they have capacity, to nominate a person to take on the role of substitute decision-maker for restrictive practices in the event that they lose capacity. But I understand you have had a briefing, Senator Rice, so that's probably information that's for the chamber rather than for you.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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