Rodney Lewis

Rodney Lewis from Elderlaw Legal Services was invited for an interview by Thomas Oriti on the ABC Radio program – The World Today on 30 July 2020. There was a discussion upon issues in Aged Care Facilities with regards to management, staffing, and poor care of its residents. However, despite these issues occurring, the significant factor that prevents evidence of aged care shortfalls emerging is the lack of transparency and withholding of such evidence in the name of privacy. Despite this, Rodney believes that due to the impact of the Covid-19 virus, there is an opportunity to expose the weaknesses of the aged care system, and poor conditions affecting its aged residents. Questions need to be asked about what had been learnt from the experience of other countries which had experienced Covid and how their aged care systems reacted to better effect. There was prior experience and knowledge to observe elsewhere in the world and in other states of Australia during the pandemic which may have limited the lethal outcome for some of those who died.

Rodney believes that the issues surrounding the aged care system are systemic and despite the long history of serious harm and injury since the introduction of the Commonwealth Aged Care Act, a serious problem has been the persisting lack of development with regards the process for making a complaint. He says there must be a pathway for consequences for the aged care provider for poor care leading to harm and which provides a binding decision on complaints and allows for orders for the payment of money by way of restorative justice and for rehabilitation. An appeal should be available not just on the sterile grounds of administrative law but on the merits of the case, both on the facts and the law.

Despite it having not been used in relation to the aged care, Rodney believes that the Australian Consumer Law is a powerful tool in this area. He says consumer claims cases can produce exemplary damages and model cases which can act as references for changing the behaviour of people in the aged care system. For the future of the aged care system, these cases could lead the way to accountability and responsibility in aged care mismanagement.

To listen to the radio program, please visit the website below: https://www.abc.net.au/radio/programs/worldtoday/aged-care-providers-should-be-held-criminally-responsible/12507320

I think there are some matters which are not adequately covered in the Bill. 

In relation to the review of decisions, which is the opportunity for challenging, if necessary, the decisions of  the medical practitioners, a person who may bring the matters before the Tribunal includes [definition of  ‘eligible applicant’ s.108]: 

(a) a patient who is the subject of a decision [by the Tribunal under] section 109(1)(a)–(d), or (b) an agent of a patient … or 

(c) a person who the Tribunal is satisfied has a special interest in the medical care and treatment of  [the person]. 

The matters which are the subject of the application for review are [s.109]: 

(a) a decision of a patient’s coordinating practitioner in a first assessment that the patient— (i) … [residence qualification]; 

(ii) has or does not have decision-making capacity in relation to voluntary assisted dying, or

(iii) is or is not acting voluntarily and not [acting -rl] because of pressure or duress, 

(b) a decision of a patient’s consulting practitioner in a consulting assessment that 

the patient—

… 

(iii) is or is not acting voluntarily and is or is not acting because of pressure or duress, 

(c) a decision of a patient’s coordinating practitioner to make a statement in a final review form  certifying that [s/he] is satisfied the patient— 

(i) has or does not have decision-making capacity in relation to voluntary assisted dying, or (ii) … is or is not acting voluntarily and is or is not acting because of pressure or duress, 

(d) a decision of the Board to refuse an application for a voluntary assisted dying 

substance authority in relation to a patient. 

The identity of an ‘agent’ is in my opinion, obscure, in this context. It means ‘a person who acts on  behalf of the patient’ [Schedule 1-Dictionary]. 

It is unclear from the legislation who may be an “agent”. We have broad legal definitions of who may  be an agent, but here we have someone who may be so ill and focussed on unbearable pain, as to be  unable to make those kinds of decisions.  

Since the Bill is concerned only with capacity to understand ‘voluntary assisted dying’, the capacity  to understand who an agent is and their delegated functions, will likely be different. It is the same  capacity required to understand the making of a power of attorney [see Szozda v Szozda [2010] NSWSC  804].  

Will a written agency appointment be required? Is a solicitor an agent? Will a solicitor be denied  leave to appear if capacity to instruct is in doubt? The Bill makes a point about the capacity which  the person is required to have and that is, to understand the nature and effect of voluntary assisted  dying.  

In my experience in the Guardianship Division of NCAT and the Guardianship Tribunal before that, it  is sometimes essential, in the interests of the subject person and in the interests of justice and 

fairness to hear from family members who seek to be heard, especially when they have views and  experience which are not necessarily shared by the rest of the family. Family members seem to have  no status in this Bill, yet are among those whose views may be critical as to whether there is present,  any pressure or duress. 

Consider the circumstances which might exist and which may lead a medical practitioner to overlook  or mistake conduct by another person impacting upon the subject person, in the manner described  as pressure or duress. The definition found in the Bill of those words is “abuse, coercion,  intimidation, threats, undue influence from another person or other pressure or duress”. 

The Bill makes no attempt to guide the medical practitioners in how they may discover the facts and  circumstances which might show that any pressure and duress may have occurred. There is no  reference to making inquiries or the necessity or otherwise of consulting with family members. 

For those reasons, I suggest that an extra qualifying definition of an ‘eligible applicant’ should  include ‘any person who has a genuine interest in the welfare of the person’. That will enable not  only family but in cases where there is no family, others such as friends to make an intervention if  they have evidence of ‘pressure or duress’.

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).

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.

Sydney, 2 December 2021