Wednesday, 16 October 2024

Bills

Aged Care Restrictive Practices Substitute Decision-maker Bill 2024

Statement of compatibility

Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Health Infrastructure, Minister for Ambulance Services) (10:50): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The purpose of the Bill is to provide for the appointment of restrictive practices substitute decision-makers for the purposes of the Aged Care Act 1997 of the Commonwealth (the Aged Care Act).

In response to the 2021 Royal Commission into Aged Care Quality and Safety, the Commonwealth Government amended the Aged Care Act to require residential aged care providers to seek informed consent from substitute decision makers to the use of restrictive practices, where a care recipient in residential aged care lacks capacity to make that decision. The amendments were introduced to better protect the rights of people in aged care and create a more rigorous regime for the use of restrictive practices, including that they only be used as a last resort.

As part of the amendments, the Aged Care Act, now requires residential aged care providers to ensure that restrictive practices are only used in relation to residents in accordance with the Quality of Care Principles 2014 (the Quality of Care Principles).

The Aged Care Act sets out requirements for the use of any restrictive practices. The amendments require that informed consent to the use of the restrictive practice be given by the care recipient; or if the care recipient lacks the capacity to give that consent, the restrictive practices substitute decision-maker for the restrictive practice. Accordingly, if a care recipient lacks capacity to give informed consent to the use of a restrictive practice, that consent must be obtained from “a restrictive practices substitute decision-maker”.

Restrictive practices substitute decision-maker is now defined in regulation 5B of the Quality of Care Principles, as a ‘person or body that, under the law of the State or Territory in which the care recipient is provided with aged care, can give informed consent’ to the use of a restrictive practice. To date, there has not been any law to appoint such a person. An interim arrangement, allowing for a legislative hierarchy of decision makers for the authorisation of restrictive practices under the Quality of Care Principles and to give states time to provide for state appointments of restrictive practices substitute decision-makers is currently scheduled to be automatically repealed on 1 December 2024 although the Commonwealth government has committed to extending this arrangement, with a view to repealing it in 2026.

The Bill provides for the appointment of an individual in Victoria that satisfies this definition.

Victoria’s role in regulating the use of restrictive practices in aged care is limited to defining who can give informed consent to the use of restrictive practices in relation to a care recipient who lacks capacity – that is, who can act as a restrictive practices substitute decision maker for a care recipient.

The Bill creates standalone legislation to establish a hierarchy of decision makers who can act in Victoria as restrictive practices substitute decision-makers in residential aged care, in line with requirements under the Aged Care Act, before the Commonwealth’s interim arrangement expires. It is intended that this will include a framework for identifying a restrictive practices substitute decision-maker, some oversight arrangements in relation to restrictive practices substitute decision-maker, and provision for the Victorian Civil and Administrative Tribunal to make certain orders.

Part 1 of the Bill

Clause 3 of the Bill provides relevant definitions, many of which are done by reference to the Aged Care Act or the Quality of Care Principles, for example, restrictive practices and behaviour support plans.

Clause 4(1) of the Bill provides that a person has “decision-making capacity” to make a decision to which the Bill will apply if the person is able to:

• understand the information relevant to the decision and the effect of the decision;

• retain that information to the extent necessary to make the decision;

• use or weigh that information and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

An adult is presumed to have decision-making capacity, unless there is evidence to the contrary. That is, a person’s rights to freedom of movement, to privacy and freedom from medical treatment, for example, are to be not engaged by this Bill, unless there is evidence that prompts consideration of whether that person may not have decision making capacity to make decisions about, for example, whether to consent to restrictive practices being used in relation to them

Further, a person is taken to understand information relevant to that decision and the effect of that decision where they are given an explanation of the information in a way that is appropriate to their circumstances, whether by using modified language, visual aids or any other means. In this way, the Bill seeks to best protect the rights to recognition as a person before the law, to freedom from discrimination on the basis of disability and protection of the law without discrimination. That is, a person should not be discriminated against in the assessment of them as to their decision-making capacity.

Part 2 of the Bill

Part 2 of the Bill provides for the nomination and appointment of restrictive practices substitute decision-makers.

Clause 5 provides for a person to nominate an eligible adult to act as a person’s restrictive practices substitute decision-maker if the person has decision-making capacity at the time of making the nomination (as defined in clause 4) and understands the nature and effect of the nomination.

Clause 5 provides for certain requirements to be met for a valid nomination, such as the nomination being in writing and signed by the person making the nomination

An eligible person nominated as a restrictive practices substitute decision-maker cannot be an employee or agent of an approved provider that provides aged care to the person making the nomination, nor be a person that has been involved in the preparation of a behaviour support plan for the person making the nomination. In addition, an eligible person cannot be a person who is subject to a current family violence intervention order in relation to which the person making the nomination is an affected family member (within the meaning of the Family Violence Protection Act 2008) or a person who has been found guilty of committing an offence against the person making the nomination (other than a finding of guilt where the conviction has become spent under the Spent Convictions Act 2021).

Clause 6 provide that a person may revoke their nomination of restrictive practices nominee, if they have decision-making capacity at the time of the revocation and understand its nature and effect. Again, there are procedural requirements to a revocation to protect the integrity of that process.

Part 3 of the Bill

Part 3 of the Bill provides for the appointment of restrictive practices substitute decision-maker. Where a care recipient has nominated a person as their restrictive practices substitute decision-maker, the nominated person is then, by virtue of clause 7, appointed as the care recipient’s restrictive practices substitute decision-maker under the Bill, if the nominated person is reasonably available, willing and able to make restrictive practices decisions on behalf of the care recipient.

If a care recipient does not have a restrictive practices substitute decision-maker (as a result of nominating someone under the Bill who is reasonably available to be appointed), clause 8 of the Bill provides a hierarchy of persons, in a close and continuing relationship with the care recipient, that will be appointed as their restrictive practices substitute decision-maker for the making of a particular restrictive practices decision. As with a nominated person, the person appointed pursuant to clause 8 must be reasonably available, willing and able to make restrictive practice decisions on behalf of the care recipient.

Under clause 9 of the Bill, a person may apply to the Victorian Civil and Administrative Tribunal to be appointed as the restrictive practices substitute decision-maker for a care recipient, if the care recipient does not have one under clause 7 or clause 8.

VCAT may appoint a person as a restrictive practices substitute decision-maker for a care recipient where that person has an ongoing personal or professional relationship with the care recipient and is reasonably available, willing and able to act as a restrictive practices substitute decision-maker on behalf of the care recipient.

Part 4 of the Bill

Part 4 of the Bill provides for the consent to the use of restrictive practices.

Restrictive practice substitute decision-makers will make restrictive practice decisions under section ‍15FA(1)(f) of the Quality of Care Principles. However, where there is no restrictive practice substitute decision-maker for the purposes of clauses 7, 8 or 9, clause 10 provides that an approved aged care provider may apply to VCAT for consent to the use of a restrictive practice in relation to a care recipient in their care if the restrictive practice is set out in the behaviour support plan for the care recipient.

Part 5 of the Bill

Part 5 of the Bill provides for the making of other Orders. Clause 11 enables an eligible applicant to apply to VCAT for an order in relation to whether a care recipient has decision-making capacity, or not, or had or did not have decision-making capacity at the time of a nomination or revocation of a nomination.

An eligible applicant will also be able to apply to VCAT, under clause 12, for an order in respect of the validity of a nomination or revocation of restrictive practices nominee or the appointment of a restrictive practices substitute decision-maker. The Bill expressly provides that VCAT may declare a nomination to be invalid if it finds that the person who made the nomination was induced to do so by dishonesty or undue influence, or through the use of threats, violence or abuse. In this way, the Bill provides protection against the exploitation of care recipients.

Part 6 of the Bill

Part 6 of the Bill provides additional provisions for VCAT to determine matters under the Bill, including the parties to a proceeding before VCAT on an application under clauses 10, 11 or 12 and the notice that is required to be given to such parties. In this way, the Bill ensures that relevant perspectives are heard and taken into account, consistently with the Charter, in determining whether a person has decision-making capacity and whether VCAT should, or should not, consent to restrictive practices.

Parts 7 – 10 of the Bill

Part 7 of the Bill provides for certain offences in relation to the decisions to be made under the Bill. These are an offence of inducing another person to nominate a restrictive practices nominee, by dishonesty, undue influence or through the use of threats, violence or abuse and an offence to knowingly make a false or misleading statement in relation to another person’s restrictive practices substitute decision-maker nomination.

Further, transitional provisions, in Part 9, provide for some nomination or appointments under the interim Commonwealth arrangements in the Quality of Care Principles to continue under the Bill.

In Part 10, there are also consequential amendments to Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to provide a new Part 2AA – Aged Care Restrictive Practices Substitute Decision-maker Act 2024, that will provide for representation and the constitution of the Tribunal for a rehearing.

Charter considerations

Under the Charter, I am required to make this statement setting out whether, in my opinion, the Bill is compatible with human rights and if so, how it is; and, if, in my opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility. In this statement, I address the human rights implications of decisions under the Bill rather than the human rights implications for posterior decisions, made by aged care providers, under the Aged Care Act in relation to the use of any restrictive practice.

For the reasons I discuss, I consider that the Bill has achieved its aim of better protecting and promoting the human rights of people receiving care in the use of restrictive practices, by enabling a care recipient to nominate a restrictive practices substitute decision-maker and for the appointment of that person to consent, or not consent, to proposed restrictive practices.

The application of a restrictive practice on a person, especially where that person lacks capacity to understand the nature and reason or reasons for that practice, and cannot consent to its imposition on them, is likely to engage and may limit that person’s human rights. However, those decisions are made under the Aged Care Act and Quality of Care Principles, which, together sets out a range of protections against the unlawful limitation on human rights so that aged care recipients can experience the full enjoyment of their rights, including if restrictive practices are to be used in relation to them.

This Bill’s focus is limited to identifying who can provide consent to a proposed restrictive practice or practices. While the identification of those persons may engage the rights of the person being nominated as a restrictive practices substitute decision-maker and may also engage the rights of the care recipient, that engagement of rights differs from how those persons’ rights may or may not be engaged or limited by subsequent decisions to consent to and apply restrictive practices under the Aged Care Act and Quality of Care Principles, or other Commonwealth or Victorian legislation.

Foundationally, the purpose of this Bill is to identify and appoint a person who may then consent to restrictive practices to be used in relation to a care recipient, where that person does not have capacity to do so. If a person’s capacity may be declining, the Bill creates a regime for a person to nominate, in advance, a restrictive practices substitute decision-maker. In making this nomination, a person may also set out their preferences or values in relation to restrictive practices.

If a care recipient later lacks capacity to make a restrictive practices decision, the Bill ensures that a restrictive practices substitute decision-maker will be separate from the aged care provider that will impose those restrictions and so the process creates a secondary check on the use of any proposed restriction.

As much as possible, the Bill will enable a person that might be best placed to know a care recipient’s known values and preference in relation to restrictive practices, given their close and continuing relationship with the care recipient, to be that care recipient’s restrictive practices substitute decision-maker. The Bill provides that a person nominating a restrictive practices substitute decision-maker will be able to record their values and preferences. The Bill will require VCAT to consider a person’s known values and preferences in relation to restrictive practices if VCAT is requested to consent to the use of restrictive practices with respect to the person.

This regime will occur within the context of the Commonwealth requirements. Under the Aged Care Act the use of restrictive practices must be proportionate and the least restrictive measure required in the circumstances. This is consistent with the permissible limitation on human rights under 7(2) of the Charter.

I am confident that the requirements under the Aged Care Act and the Quality of Care Principles, including as amended in response to the Aged Care Royal Commission, in relation to the use of restrictive practices better protects the human rights of aged care recipients in Victoria.

Specifically, under regulation 15FA of the Quality of Care Principles, restrictive practices must:

• only be used as a last resort to prevent harm to the care recipient or other persons; and after consideration of the likely impact of the use of the restrictive practice on the care recipient;

• to the extent possible, best practice alternative strategies must have first been used before the restrictive practice is used;

• the alternative strategies that have been considered or used must have been documented in the behaviour support plan for the care recipient;

• the restrictive practice to be used must only be to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons;

• the restrictive practice is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons;

• informed consent to the use of the restrictive practice, and how it is to be used (including its duration, frequency and intended outcome), has been given by:

• the care recipient; or

• if the care recipient lacks the capacity to give that consent – the restrictive practices substitute decision maker for the restrictive practice (which is to be addressed by this Bill);

• the use of the restrictive practice is in accordance with that informed consent;

• the use of the restrictive practice complies with any provisions of the behaviour support plan for the care recipient that relate to the use of the restrictive practice;

• the use of the restrictive practice complies with the Aged Care Quality Standards set out in Schedule 2;

• the use of the restrictive practice is not inconsistent with the Charter of Aged Care Rights set out in Schedule 1 to the User Rights Principles 2014; and

• the use of the restrictive practice meets the requirements (if any) of the law of the State or Territory in which the restrictive practice is used.

These requirements are consistent with the protection of the Victorian Charter rights.

Rights engaged

Although the purposes of the Bill are beneficial and aim to promote the dignified care of care recipients, provisions in the Bill are likely to engage the following Charter rights in relation to both the rights of restrictive practices substitute decision-makers and the rights of care recipients and their families: equality (s 8); the rights not to be subjected to cruel, inhuman and degrading treatment (s 10(b)) or medical treatment without consent (s 10(c)); freedom of movement (s 12); privacy (s 13(a)); freedom of thought, conscience, religion and belief (s 14); the right to the protection of families and children (s 17); cultural rights (s 19); liberty (s 21); the right to humane treatment when deprived of liberty (s 22); the right to a fair hearing (s 24) and the right not to be tried or punished more than once (s 26). In my view, the Bill is compatible with the enjoyment of these rights, which I also consider are not limited by the Bill.

Equality

Section 8(3) of the Charter provides that every person is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that laws and policies are applied equally, and do not have a discriminatory effect. Discrimination under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in s 6 of that Act, which includes a lack of capacity (within the meaning of disability under the EO Act).

Where a person lacks capacity to make decisions about whether to consent to a restrictive practice being applied to them, the Bill provides for who might be able to make that decision. In this way, it may directly discriminate against people on the basis of their disability. Direct discrimination occurs where a person treats a person with an attribute unfavourably because of that attribute. The provisions will enable restrictive practices substitute decision-makers to make decisions about people without capacity differently from other people on that basis, however those decisions occur under the Aged Care Act. To the extent that there might be a limitation on the right in s 8(3), any limitation would not be occasioned by the Bill. In certain circumstances, where a person does not have a restrictive practices substitute decision-maker, VCAT may decide whether to consent to restrictive practices, and in making that decision may treat that person differently to other people on that basis. In making decisions under the Bill, VCAT would be obliged to give proper consideration to the rights protected by the Charter and to consider a person’s right to freedom from discrimination and whether any limitation on that right is reasonable and justified.

Cruel, inhuman or degrading treatment

The application of a restrictive practice to a person may amount to cruel, inhuman or degrading treatment within the meaning of the human right protected by the Charter. The provisions in the Bill provide for the appointment of a person to consent to such restrictive practices. A restrictive practices decision may engage but does not, in my view, limit this right, as the separate decisions on consent and when and how to apply a restrictive practice is made pursuant to the Commonwealth Aged Care Act (and Quality of Care Principles). Those subsequent decisions may occasion conduct that engages this right, including by amounting to inhuman or degrading treatment. This will depend on all the circumstances, including the duration and manner of the treatment, and its physical or mental effect on the care recipient, and the purpose for which the restraint was imposed.

While the appointment of a restrictive practices substitute decision-maker does not limit this fundamental right, I acknowledge the relationship between the appointment (under this Bill) and the later consent to and potential use of restrictive practices (under other legislation). As I have explained, the Aged Care Act requires that behaviour support plans set out proposed restrictive practices and also imbeds requirements on when and how they are used, where those requirements are, in my view, consistent with the protection of and lawful limitation on human rights in the Charter. It will be important that a restrictive practices substitute decision-maker is supported to make an informed decision on whether to consent and to weigh the benefits and risks of any proposed restriction.

Protection from medical treatment without consent

Section 10(c) of the Charter provides that a person must not be subjected to medical treatment without their full, free and informed consent. The right is concerned with personal autonomy and dignity. Restrictive practices are not medical treatment (HYY (Guardianship) [2022] VCAT 97). In my view, the Bill does not engage or limit this right, however, I appreciate that if a restrictive practices substitute decision-maker consents to a restraint, that restraint may be deployed to enable the medical treatment of the care recipient without their consent. The Bill’s provisions may facilitate the use of restraints, including to provide medical treatment. However, the specific decision to use a restraint to enable medical treatment is not one that is made under this Bill. It would be conflating those decisions, to consider that the Bill’s provisions limit the right to freedom from medical treatment without consent, even if that may occur pursuant to consequential decisions under different legislation.

Freedom of movement

Similarly, the application of restrictive practices (such as an environmental or chemical restraint) to a care recipient under the Aged Care Act may engage or even limit a care recipients’ rights to freedom of movement, in s 12 of the Charter. Once again, however, the engagement of that right would occur pursuant to the Commonwealth legislation. I am conscious of the implications of this Bill on that right.

The right provides protection from unnecessary restrictions upon a person’s freedom of movement. It extends, generally, to movement without impediment throughout the State and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest (Gerhardy v Brown (1985) 159 CLR 70, 102, cited in DPP v Kaba (2014) 44 VR 526, [100])

Relevantly, the right to freedom of movement will be engaged where a person is required to move to or from a particular place or is prevented from doing the same, is subjected to strict surveillance or reporting obligations relating to moving or directed where to live. Some of the ways that restrictive interventions are likely to be used will limit people’s freedom of movement.

Rights to privacy, family and home

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family or home unlawfully or arbitrarily interfered with. Section 13(a) contains internal qualifications; namely, interferences with privacy only limit the right if they are unlawful or arbitrary. An interference will be lawful if it is permitted by a law which is clear, precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. This requires a broad and general assessment of whether any interference on a person’s privacy extends beyond what is reasonably necessary to achieve the lawful purpose being pursued (Thompson v Minogue [2021] VSCA 358, [55], [56]).

The fundamental values which the right to privacy expresses are the physical and psychological integrity, individual and social identity, and autonomy and inherent dignity, of the person.

The ‘family’ aspect of s 13(a) is related to s 17(1) of the Charter, which states that families are entitled to protection by society and the State. However, whilst the two rights overlap, they are not co-extensive. Section ‍13(a) is a negative obligation that only prohibits unlawful or arbitrary interferences with family; whereas s 17(1) is a positive obligation on society and the State.

The ‘home’ aspect of s 13(a) refers to a person’s place of residence (Director of Housing v Sudi (2010) 33 VAR 139, [32]). What constitutes an interference with this aspect of the right to privacy is to be approached in a practical manner and may cover actions that prevent a person from continuing to live in their home (See Director of Housing v Sudi (2010) 33 VAR 139).

All three aspects of this right are engaged by the Bill, both in relation to the rights of restrictive practices substitute decision-makers and care recipients. The appointment of a restrictive practices substitute decision-maker may engage that person’s right to privacy, as it encroaches on their personal sphere and private relationship with the care recipient and requires them to publicly engage with aged care providers, on behalf of the care recipient in relation to restrictive practices. This is in the context of restrictive practices being measures which can be confronting and challenging to understand and the process of weighing and balancing their benefits and risks is not easy. The decision to consent to a restrictive practice in relation to a loved one is incredibly hard, it engages with their own belief system and requires them to weigh the benefits and risks of imposing a restraint, which in usual circumstances would be an affront to a person’s dignity and to which the person cannot consent. It is a human decision and a very hard one.

The imposition of a restraint may also affect the ability of families to gather with each other, including the care recipient, and the ability of the care recipient to reside in residential aged care which is their home.

At the same time, the appointment of a restrictive practices substitute decision-maker engages a care recipient’s right to privacy, as it removes from them their opportunity to make decisions about how they are treated. This may also occur in the context of that person not understanding that their capacity to make such decisions is impaired. These experiences are profoundly sad, the loss of a person’s mental capacity can occur in the context of disease, trauma or other harm. This impacts the person and their family, including each of their rights to privacy and protection of the family.

However, in my view, the measures in the Bill are compatible with the right to privacy and do not limit the right to privacy. As mentioned above, the right in s 13(a) of the Charter will only be limited where an interference with privacy is unlawful and arbitrary (Thompson v Minogue [2021] VSCA 358, [57]). The clauses of the Bill which authorise interference with a person’s privacy, family or home by the use of compulsory treatment measures will be lawful, by virtue of the clauses themselves being clear, precise and appropriately circumscribed, and not arbitrary, because the protective purpose and safeguards upon the use of the compulsory treatment measures will ensure that their use is proportionate to the legitimate aims sought to be achieved.

Other Charter rights that may similarly be engaged or limited, by the subsequent decisions to impose restraints, include the rights to freedom of religion or belief (s 14 of the Charter), freedom of movement (s 16 of the Charter) and cultural rights (s 19 of the Charter), where chemical, physical and environmental restraints may limit a person’s capacity to demonstrate their religion or belief as part of a community, to peaceful assembly and association and to engage in cultural activities. The foundational and elemental rights to liberty (protected by s 21 of the Charter) and humane treatment when deprived of liberty (protected under s 22 of the Charter) may also be engaged and may be limited by the imposition of a restrictive practice on a care recipient.

I have also considered whether the provisions in the Bill that exclude a person subject to a current family violence intervention order in relation to the care recipient, or a person who has been found guilty of committing an offence against the care recipient (clause 5(5) – definition of “eligible adult”, 8(4) and 9(2)(c)(iii) and (iv)) from being a restrictive practices substitute decision-maker engage the rights to privacy (s. 13 of the Charter), the right to families and children (s. 17 of the Charter) and the right not to be tried or punished more than once (s. 26 of the Charter). The right to privacy includes the right not to have family unlawfully or arbitrarily interfered with. These provisions preventing certain persons who may be family members from being restrictive practice substitute decision-makers for their family member may interfere with family dynamics in that the person who would ordinarily take on the role of a restrictive practice substitute decision-maker is prevented from doing so. However, such a restriction is lawful and not arbitrary, as the restriction is included for a protective purpose and has been included to promote the care recipient’s right to life. Similarly, I am of the view that the right to the protection of families in section 17(1) of the Charter is not limited as these limits on the persons who may act as restrictive practice substitute decision-makers for a person promote the safety of vulnerable adults in the family unit.

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law. This right is engaged by the provisions of the Bill which prevent a person who has been found guilty of committing an offence against a person from being appointed as the person’s restrictive practices substitute decision-maker (Spent convictions under the Spent Convictions Act 2021 are not considered for the purposes of this provision). In my view, this right against double punishment is not limited by these provision because the exclusion of such persons from the role of restrictive practices substitute decision-maker has a protective purpose rather than a punitive one, as it is intended to protect vulnerable aged persons.

Having regard to these factors, I consider the Bill to be compatible with Charter rights.

The Hon Mary-Anne Thomas MP

Minister for Health

Minister for Health Infrastructure

Second reading

Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Health Infrastructure, Minister for Ambulance Services) (10:51): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill will resolve a legislative gap that exists following amendments made to the Aged Care Act 1997. In 2021, the Commonwealth government introduced new legislative requirements for residential aged care providers to seek informed consent from substitute decision makers to authorise the use of restrictive practices where a resident lacks capacity.

As an interim measure, the Commonwealth introduced a temporary hierarchy to guide the identification and appointment of a decision maker. The Commonwealth’s temporary hierarchy includes various decision-makers, identified based on proximity and personal connection to the aged care resident.

In Victoria, this temporary hierarchy has been in place since 2022, and has been relied on by aged care providers, aged care residents, and their supporters. This hierarchy was set to be automatically repealed on 1 December 2024. However, the Commonwealth government has committed to extending this arrangement, with a view to repealing it in 2026. Once this temporary arrangement is ultimately repealed, Victoria will need its own legislation in place to avoid creating a legislative gap whereby there is no substitute decision-maker identifiable under Victorian law.

Victoria currently does not have legislation that explicitly identifies and authorises substitute decision makers to consent to the use of restrictive practices in residential aged care. It is imperative that that we address this gap to ensure that there is a clear framework in Victoria to ensure aged care residents receive appropriate behavioural supports in accordance with the Aged Care Act.

This Bill will address this by establishing a clear framework for identifying who can act as a “restrictive practices substitute decision-maker”, by prescribing a hierarchy of decision-maker based largely on close and personal relationship to the aged care resident. This approach also builds in appropriate safeguards to protect the rights and interests of people living in residential aged care.

This hierarchy is only engaged when the aged care resident does not have capacity to provide consent for themselves. Under the Aged Care Act, providers will be expected to seek informed consent from the aged care resident first – and only seek out a substitute decision-maker if the aged care resident does not have capacity.

The Bill will allow aged care providers to identify substitute decision makers through a hierarchy. Under this Bill, decision-makers will be identified in the following order of precedence:

1. substitute decision-makers nominated in advance and in writing by the aged care resident;

2. a next of kin which is to be identified based on someone who has a close and continuing relationship with the aged care resident; and

3. a decision maker appointed by VCAT should no other decision maker be available; and if no such person exists, and as a last resort, VCAT can act as the decision maker.

This hierarchy embeds a person-centred approach, by prioritising the person that an aged care resident has identified in advance through a nomination.

If a nomination is not in place, or the nominee is not willing and able to act as decision maker, aged care providers will need to identify a decision-maker in accordance with the subsequent tiers of the hierarchy. Providers cannot move to the next tier of the hierarchy simply because a decision-maker withholds consent. A decision to provide or withhold consent by a valid substitute decision-maker must be respected.

The decision maker must be someone willing to and able to act at the time a decision is required, and cannot be employed by the provider, or have been involved in the development, implementation or review of the aged care resident’s Behavioural Support Plan, as an employee or agent of the aged care provider. A substitute decision-maker also cannot be someone that is subject to a current family violence intervention order relating to the aged care recipient, or if that individual is found guilty of committing a crime against the aged care recipient.

The Bill will ensure older people have as much autonomy as possible around decisions that concern them through the nomination function. Nominations by aged care residents must also be made in accordance with requirements prescribed in the Bill (such as to be in writing, and witnessed appropriately), to ensure that there is clarity and consistency around who these decision makers are. Aged care residents will be able to document their preferences for the decision-maker to consider these when making decisions.

New criminal penalties will also be created that will make it an offence for someone to coerce a nomination, or to fraudulently act as if they are a nominee.

The Bill will make minor amendments to the Victorian Civil and Administrative Tribunal Act 1997 to empower the Tribunal to act in an oversight capacity for the appointment of substitute decision-makers, and to act as a decision-maker of last resort should there be no other decision-maker reasonably identifiable.

Aged care residents will be assumed to have capacity to make, change or withdraw a nomination, unless it is demonstrated otherwise. The Victorian Civil and Administrative Tribunal will have jurisdiction to determine whether an individual has the capacity to make, change or withdraw a nomination; and whether an individual is willing and able to act as a substitute decision-maker.

Aged care providers must adhere to the Commonwealth’s requirements regarding determining whether an individual has capacity to provide informed consent for the use of restrictive practices, or whether they require a substitute decision-maker.

Aged care providers must make decisions and act in accordance with Commonwealth legislation, including the Aged Care Act and the Quality of Care Principles. This includes section 15FA of the Principles which requires providers to only use restrictive practices as a last resort, in the least restrictive form, for the shortest amount of time possible; and only using restrictive practices after less restrictive strategies have been attempted first.

Under section 15HA of the Principles, providers must assess the aged care resident’s behavioural support needs, and if restrictive practices are required, document this assessment and details of the proposed use of restrictive practices within a Behavioural Support Plan. This Behavioural Support Plan must be prepared in accordance with the Aged Care Act and the Quality of Care Principles 2014.

Aged care providers must, under section 15HG of the principles, consult with the substitute decision-maker when preparing, reviewing or revising the use of restrictive practices. In practice, substitute decision-makers can ask the aged care provider questions to satisfy themselves that they understand what they would be consenting to, and whether it meets the Commonwealth’s requirements for appropriate use.

Substitute decision-makers will be able to exercise their discretion to consent, or withhold consent, for the use of the restrictive practices. Aged care providers must allow substitute decision-makers to consider the giving of consent without coercion or duress.

This Bill does not change how aged care providers can use restrictive practices in emergencies, such as in cases of immediate threat to life or harm. Aged care providers must still uphold their responsibilities under the Aged Care Act and the Quality of Care Principles, including on mandatory reporting and notification of the emergency use.

When the Commonwealth progresses with its new Aged Care Act, it is expected that these requirements will continue to be prescribed in legislation. Aged care providers will continue to have these obligations placed on them as the Commonwealth progresses with its reforms.

Independent advocacy and support services will continue to have a role in assisting substitute decision-makers to make decisions about their loved ones living in residential aged care – including decisions related to financial matters, living arrangements and medical treatment decisions. As required, Victorians will continue to be able to seek help from organisations such as Victoria Legal Aid, the Older Persons Advocacy Network and Senior’s Rights Victoria, as appropriate.

The hierarchy provides certainty and consistency to both aged care providers and aged care residents, by aligning closely with the process used in existing Victorian legislation around medical treatment decision-making, whilst ensuring the use of restrictive practices remain regulated appropriately under the Commonwealth’s jurisdiction.

However, this Bill is a standalone piece of legislation, that will operate separate to, but alongside, other legislative frameworks for substitute decision-making (such as the Medical Treatment Planning and Decisions Act and the Guardianship and Administration Act). Having standalone legislation ensures that Victoria has an appropriate framework in place that is compatible with the requirements of the Commonwealth Aged Care Act for a substitute decision-maker to provide informed consent.

Any Behavioural Support Plans that are currently active and consented to at the time of commencement will still be considered valid and will not require new consent to be given. Any Behavioural Support Plan that is created or amended after commencement of this Bill will require consent to be given, with the decision-maker to be identified in accordance with this Bill. This includes any Behavioural Support Plans that are updated as part of regular review.

The Bill provides for a transition from the Commonwealth’s temporary hierarchy to the new one. Any individual who has been nominated as a substitute decision-maker in compliance with the Commonwealth’s temporary instrument will have that appointment recognised as being an appointment by a nominee under the Bill. This will ensure that any appointments made by aged care residents prior to the commencement of the Bill will remain in place, and ensuring people’s choices around who they trust to make decisions for them are preserved.

The hierarchy will be familiar to the sector, aged care providers and family and friends of aged care residents. All decisions made by substitute decision makers will be in accordance with the current and new Aged Care Act, the Quality of Care Principles, the Charter of Aged Care Rights, and the Aged Care Quality Standards to ensure the rights of aged care residents subjected to restrictive practices are safeguarded.

By enabling the Bill, the Victorian Government will ensure people entering or living in residential aged care can make decisions about their future care. Knowing that should the time come, a trusted loved one will be able to act in their interest. This Bill will also ensure all residential aged care providers are able to be compliant with the requirements of Commonwealth legislation.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:51): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 30 ‍October.