Tuesday, 12 November 2024

Bills

Aged Care Restrictive Practices Substitute Decision-maker Bill 2024

Second reading

Debate resumed.

Tim BULL (Gippsland East) (14:59): I will pick up where I left off. Over the course of the royal commission we heard numerous stories about substandard care. We heard about staff referring to aged care clients as ‘old coots’, verballing them and talking about things that they had done that were inappropriate. We heard about substandard care in a range of areas, including provision of food, medication administration misuse and management of skincare and chronic conditions. Of most concern, though, in the royal commission were those areas that were documented that were deliberate acts of abuse. Sadly, we heard that it has taken place in the use of restrictive practices, which is what this bill is about. That is not taking anything away from the enormous number of great staff we have in our aged care facilities, but unfortunately, as is the case with royal commissions, it is to highlight those areas where there is substandard care that needs to be rectified.

In 2019–20 residential aged care services reported 5718 allegations of assault under mandatory reporting requirements in the Aged Care Act 1997. That is an extraordinary number, 5718. But a study conducted by KPMG for the federal Department of Health, which I think that study was for – that is right – estimated that in the same year a further 27,000 to 39,000 additional alleged assaults occurred. The issue is that they are exempt from mandatory reporting because they were resident-on-resident incidents. The royal commission described this resident-on-resident abuse as a national shame. This is often where restrictive practices need implementation, to stop that resident-on-resident abuse. If misused, restrictive practices, as we know, can result in quite serious physical and psychological harm, and sadly, as the royal commission heard, in some cases it can result in death.

Restrictive practices have been identified as a problem in aged care for well over two decades, and the inappropriate use of unsafe and inhumane practices has continued. As I said earlier in my speech, despite multiple reviews – we have had multiple reports and multiple inquiries highlighting the issues around abuse of restrictive practices – it has continued to be a problem. I stress that probably the most pertinent or crucial line in that royal commission report into abuse was simply those four words: it must stop now.

Following the royal commission, as an interim measure to allow the states that do not have these processes in place a little bit more time, the Commonwealth introduced what it called a temporary hierarchy to guide the identification and appointment of substitute decision-makers. This included substitute decision-makers being appointed based on proximity to the person they were being appointed for but also based on personal connection to the resident – obviously the goal is not to have a stranger appointed to this position. This structure is to be repealed in mid-2025, and by then the states and territories that do not have these processes in place to pick up will need to put it in place. There are three states and territories that do not have systems in place. They are Victoria, Queensland and the Northern Territory. So when this federal hierarchy ceases to exist, we cannot have a legislative gap sitting within those jurisdictions, and that is very much the reason for this bill.

It is always the intention on entry into aged care that a resident has a substitute decision-maker in place. In most cases, the vast majority of cases, this is exactly what occurs. However, there will always be cases where a substitute decision-maker is not in place. That can be for a whole range of reasons. It can be that when the person goes into aged care there is no-one that can be easily identified to take on that role. But we also have residents who have gone into aged care where they have nominated their restrictive practices decision-maker but that person either gets to a situation of being not of sound mind quicker than the person they are making these decisions for or in some cases, sadly, passes away and therefore we have a void in this process.

Once the decision-making capacity of a person who has been nominated has eroded, obviously you need to look for someone to take their place. There needs to be a process in place for the appointment of a decision-making person or entity, and that is what this bill goes into some detail with and outlines.

It is estimated that almost half the people living in retirement homes have one of the many forms of dementia – that is probably the best way of putting it. Given that many cases of dementia are undetected, it is likely to be well over half of the people in nursing homes that are suffering from this affliction. The general summary of the royal commission is that in some cases the levels of care of these people were abysmal – that was the terminology that they used. Again, that is not taking away from the many amazing staff that we have, but as I said, royal commissions will focus on the underbelly of some sectors in an effort to get it right. It simply pointed out that there has been far too high a prevalence of mistreatment and that in a number of settings the quality of care and the standards of care needed to be brought up to scratch.

This bill sets the framework for a substitute decision-maker to be appointed to authorise restrictive practices for people who are in those situations. As stated, substitute decision-makers have preferably been nominated in advance, but that is not always the case. If it has not occurred and there is no substitute decision-maker in place on entry for that client into the nursing home, this bill outlines a clear hierarchy to be followed. A next of kin is hopefully the person that would be first looked at to be identified. If that does not exist, then perhaps there is a person with a close or continuing relationship with the individual, the aged care resident – this can be a spouse obviously, a partner or a primary caregiver. An adult child of the person would fit into this criteria or of course someone who has been a friend for a considerable amount of time. If this cannot be done, there is a process in which VCAT can appoint a decision-maker, someone that has been identified by others as being as close to that person as possible. It cannot be an employee of the nursing home and also cannot be, for obvious reasons, the determinator of someone who will be administering the restrictive practices, because there would certainly be a conflict. There are other safeguards around that, but they are two of the more important ones. Then if no such person can be located or no such person exists – you have gone through next of kin, you have gone through spouses, you have gone through family members, you have gone through people who may have had a close and enduring friendship and there is just no-one there – as a last resort, VCAT can act as the decision-maker.

Providers who are going through this hierarchy to identify these decision-makers cannot move to the next tier of hierarchy simply because a decision-maker withholds consent. Once this decision-maker is in place, a determination to provide or withhold consent by a valid substitute decision-maker must be respected. What we are saying there is if they think that the practices that are going to be implemented in relation to the aged care client are inappropriate and they say so, that determination must be respected.

Importantly, aged care residents are able to pre-document their preferences for the decision-maker to consider if the time arrives that they have to make that decision on their behalf down the track. I think that that is a very, very positive aspect, because it does give the client the opportunity while they are of sound mind to outline the level of treatment and the type of treatment that they would like to receive.

I asked a question in the bill briefing of what occurs if a person urgently requires the application of restrictive practices and there are hold-ups with VCAT hearings. We pick up the papers every day and we have people in our electorate officers every day talking about the delays that they experience at VCAT.

I was assured that VCAT will expedite these cases. There is an avenue for VCAT to expedite these cases, but in the interim period there is also an avenue for the aged care home in emergency situations to implement restrictive practices when they are required, and that is important. If that is done, their actions will later be reviewed, so there is still that level of accountability that sits around it, but if a nursing home or aged care facility staff member or team needs to take action they can do so. It will be reviewed, and then we have the situation where VCAT can expedite the appointment of that decision-maker.

I was also advised – and although it is not in this bill I am assuming it will be in a separate bill that will come before this chamber either in the last sitting week of this year or early next year – that there will be new criminal penalties created that will make it an offence for someone to coerce a nomination or to fraudulently act as if they are a restrictive practices substitute decision-maker when indeed they are not. That is not covered off in this bill, but if this legislation is to be implemented by July 2025, which we are told it needs to be, that supporting legislation will need to come into this chamber in the interim period.

I want to move on to the hierarchy that is being put in place. This bill does make amendments to the Victorian Civil and Administrative Tribunal Act 1998, which I have touched on, but it gives VCAT the power to act in an oversight capacity around these appointment processes and of course it gives them the power, as I said earlier, to be that determiner of last resort should no person be identified to accept that decision-maker responsibility. VCAT will also 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. Where that is going to be applicable is if someone goes into a nursing home and their partner, their spouse, their child – whoever it is – their close friend is appointed as the decision-maker and then there are concerns about their capacity to make the right decisions and the right determinations, VCAT can then make an assessment on that third party.

This legislation that we are debating today and that I repeat we are supporting here in this chamber today will sit under the Commonwealth Aged Care Act 1997 and Quality of Care Principles 2014. These outline the principles which require providers to only use restrictive practices – this is not in this bill, but I think it is worth recapping on some of these measures – as a last resort. I do not think there would be any member of this chamber that would disagree that restrictive practices should not be used as anything but a last resort. They should be used in the least restrictive form and for the shortest amount of time possible – again, I am sure every member of the chamber would be supportive of that – and only after less restrictive strategies have first been attempted. So, again, that touches on it being a strategy or an action of last resort.

It also demands that aged care providers must consult with a substitute decision-maker when preparing, reviewing or revising the use of restrictive practices. The key word in there is ‘preparing’. Consider the scenario where you have a loved one in an aged care residence and you can see them declining. I am actually going through this at the moment with my own mother. You can then have that discussion with the aged care provider around the appropriate levels of action that need to be taken should your loved one need protection from themselves or should your loved one, God forbid, need to be halted for the protection of other people.

That is a very important element of this bill, I think – that you can actually put those safeguards in place prior to them being needed when you can see the deterioration mentally of your loved one. Providers must also allow substitute decision-makers to consider the giving of consent without coercion and without being put under duress, as should be the case. Independent advocacy support services – and we have some wonderful people in our communities who offer up their time as independent advocates – can also provide advice and provide supports to substitute decision-makers to help them come to the decisions they need to come to in the care of their loved ones.

Existing behavioural support plans consented to at the time of the commencement of this bill – and again, it will come into effect in July next year – will still be considered valid, so if you have done that work with your aged care facility on behalf of your loved one, that plan does not need to be redone because of this legislation; it will sit on the table and it will still be considered alive and eligible. The arrangements around support plans I can certainly relate to. I just went through this process earlier this year with my darling 98-year-old mother, who is currently in the nursing home in Bairnsdale, and sadly I and my six siblings are seeing our dear mother gradually deteriorate in relation to her ability to make decisions on her own behalf and her ability to be rational about that. It is not great, but I am thankful for many things. While she is deteriorating in that area, my lovely mother is in no pain and at 98 years old is still enjoying a laugh and recognises us all, which is a terrific thing. But when reading through this legislation around these behavioural support plans, it resonated with me because of the personal experience of earlier this year. I could certainly relate to that. Whilst I have the utmost respect for the staff in the nursing home where my darling mother is, it was a good exercise to be able to go through to put in place the processes that I feel comfortable with and my siblings feel comfortable with and that we think she will be comfortable with should, God forbid, ever that time arrive where she does need to have her movement, which is what it would likely be, restricted.

Although this bill is solely about the process of appointing a substitute decision-maker on restrictive practices and not the restrictive practices themselves, I think it is worth just putting on the record a brief summary of some of the restrictive practices in place in their recognised forms. When we talk about restrictive practices on our seniors, there are generally five areas. The first one of those is chemical restraint. This is the most common form, and it basically involves the administration of medicines. It involves the administration of antidepressants and antipsychotics. It does not include medications for mental health disorders that are treated separately. They are generally medications that are used for the calming of one of our aged care residents who has become agitated.

The second one is environmental constraint, and this might involve restrictions around movement to a particular place or a particular area. For example, with a client who has maybe been a chef all their life and has a tendency to go to the meal preparation area, for their own safety you might need to keep them out of that area. You might need to keep tradies out of the maintenance areas where all the tools are stored. I had an interesting situation with an elderly friend of mine who spent all his life on the tools and continually wanted to get into the toolshed at the Paynesville nursing home because he thought he was at work, and unfortunately, restrictive practices had to be applied to keep him out of that toolshed. Environmental restraint is the second one.

The third one is mechanical restraint, and this looks at things like bedrails, to stop people falling out of bed, and restrictive clothing. It might be strapping on one part of the body if a person is self-harming or continually touching a particular part of their body. It can also be used to restrict a part of the body to administer medications that might be required under chemical constraints, which we have already covered off.

The fourth area is physical constraint, and this can include physically restraining a person from going to an area, should they not be going for safety reasons, or restraining a person to administer required medications. And the last area is seclusion, and this is perhaps the most extreme form of restrictive practices, because ‘seclusion’ is basically a nice way of saying ‘solitary confinement’. I am pleased to read in the second-reading speech on this bill that it clearly states that this is never to be used as a punishment and only ever as a last resort when safety comes into question. Of course that is one of the areas where we have the most conjecture.

Deficiencies in regulation of restrictive practices have been identified as a significant human rights issue here in Australia, and there is a stronger and more effective regulatory framework to control their use and practices as a priority. That will predominantly sit at the federal level, as I have discussed. This bill will certainly help with providing another level of oversight, but it will not be the complete answer to all the issues that were raised in the royal commission. It will assist, as I said, as an additional level of oversight, but obviously we need greater oversight over those perpetrators who do the wrong thing when they are presented with that opportunity. There cannot be a more horrible, I do not think, form of abuse than abuse against our senior citizens who can no longer defend themselves. When you see some of that footage of what has occurred, it is absolutely abhorrent, so the more that we can do the better. Again, that is one of the reasons we are supporting this bill.

The Australian Law Reform Commission has recommended that there should be a nationally consistent approach to this. It also said that a consistent approach to restrictive practices in aged care and disability services is desirable, both as a matter of principle and pragmatism. What I am not sure about with this bill is how closely it will align with the similar legislation that we know is going to be forthcoming from Queensland and the Northern Territory, but I hope that we are working together – that our ministers are working together at the different state and territory levels – to ensure that we have a form of consistency across the board.

Restrictive practices should be about respecting and supporting people’s rights, their dignity and indeed their autonomy, and the frameworks we have put in place should provide clarity about the circumstances in which care and treatment can be authorised. In line with this, the royal commission recommended the use of restrictive practices must be based on an assessment by an independent expert, which we agree with. It also said it should be subject to ongoing monitoring and reporting, with the behaviour support plan lodged with the quality regulator. As we have said, restrictive practices should only be used when alternatives fail and to meet a person’s needs and ensure the safety of them and other residents. Any exception that applies, if a restrictive practice is necessary in an emergency, should only apply for the shortest possible period of time. Again, we still need other levels of oversight, primarily introduced at the federal level. I would love to see harsher penalties involved for those perpetrators of these horrendous crimes, but that would be a matter for other legislation and not for this.

Restrictive practices can be a contentious issue, and as we strive towards better safeguards, this is not the only area. We also had the mental health royal commission. Recommendation 54 calls on the state government to end seclusion and restraint in mental health and wellbeing services. The findings of this royal commission into mental health were tabled three and a half years ago, yet we have seen little solid action on this recommendation to date, so we would hope that at some stage in the future that is forthcoming as well. I will finish my contribution by thanking all the aged care providers, who do do an amazing job. I know much of my speech has been about those who do the wrong thing, but I certainly want to stress that the vast majority, the many loving people who work in our aged care sector, do a fantastic job. This is not aimed at them. I restate that we support this bill.

Sarah CONNOLLY (Laverton) (15:25): I too rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. This is a really important bill, and I really wish that my mum was able to sit here today in the chamber, because my mum was an aged care worker for the better part of a decade, much later in her career just before retirement. Mum had a lot to say about being an aged care worker and the type of care and compassion that she provided to people in the late stages of their lives and indeed to folks who had dementia, like my grandma, who was in an aged care facility, and what that was like, having cared many, many years prior for my grandma, who got dementia later in her life. Mum went on and had a career change as an aged care worker working in a dementia unit – how difficult and taxing that was on my mum. Mum had a lot to say, particularly during COVID, about how tough it was to be an aged care worker and – I am sure she would not mind me saying this, because she is not here in the chamber – being a woman in her early 60s, a very youthful early 60s, what that was like having to care for people, particularly in a dementia ward during that time wearing the full PPE gear, and the reaction of people who had dementia and Alzheimer’s towards that. It was a really difficult time.

My mum had a lot to say about the neglect of the aged care sector while it was under a federal Liberal government for nine to 10 years and what that was like. My mum really welcomed a federal Labor government coming into power a couple of years ago, in particular the federal minister the Honourable Anika Wells doing an absolute power of well-overdue work in this sector. I know this bill is not entirely attributed to that, but indeed we are here making changes, really important changes, to help protect really vulnerable elderly Victorians in the later stage of their lives whilst also ensuring that aged care workers have the support and the protections in place that they need to perform a really important job.

I do want to put on record that my mum worked for Bupa and the way in which she was treated as an aged care worker and the way they treated their aged care workers in northern New South Wales. Mum talked to me on a daily basis, and I was reminded of one of the most appalling practices and the absolute disregard for their workers, and this is why it is so important to respect these workers. It led every single day to my mum getting multiple texts because they were unable to get people to turn up for work. People took sick leave and mental health leave or just did not turn up to work because they were treated so poorly as part of that aged care facility. I do hope now that my mum has retired – she had to retire early because she could not take it any longer, how she was treated – that she can see it is a really important, caring, frontline profession looking after very vulnerable Australians. She could not believe the way in which she was treated.

But I digress. That is not wholly what this bill is about, but I do think it is really important, like the previous speaker said, to acknowledge the extraordinary work and the compassion and the care that aged care workers give to our senior and vulnerable Australians and Victorians. Quite often they are our mums and dads. It may well one day be us ending up there. That is why there has been an imperative and an urgency here in this country since the federal Albanese Labor government came to power to go and absolutely overhaul this industry and some of the practices that have taken place.

The main purpose of this bill is to bring out legislation in line with the requirements of the Commonwealth’s Aged Care Act 1997 and establish a hierarchy of decision-makers who will be able, most importantly, to act in Victoria as restrictive practice substitutes.

It is about making sure that when it comes to making those really big decisions about aged care residents, our centres have an order of people to go through to make those decisions. It is about ensuring that older people have as much autonomy as possible about the decisions that directly concern them. As my mum and dad get older and my in-laws get older they talk to me about the importance of still having that autonomy and that fierce independence of not only decisions that they are making about themselves, including where they will live as they get older, but also the ability to stay at home and be able to look after themselves into the much later years in their life. Autonomy and independence really matter to people.

I would say the aged care sector is hard work, and over the last couple of years all levels of government have had that really important conversation. They have woken up to how important this sector is, and they have had that important conversation about this work and this industry. Indeed our government really does believe that older Victorians should be able to access the high-quality care they need that works for them and that, most importantly, is closer to home. Whether they go into an aged care facility or a retirement village, folks still want to be close to their family. They want to be connected to their children, their grandchildren and their great-grandchildren. It is why our public sector residential aged care services play such an important role in making sure that all Victorians, regardless of where you live or who you are, can access this care.

I feel really proud of the fact that in Victoria we have the largest public sector aged care footprint of any state or territory, considering that the federal government is the primary source of funding and regulation for aged care services. It means that we have taken a hands-on approach to looking after vulnerable folks here in this state who require aged care services. We have not just left it up to the feds, we have been hands-on. We know we need to be in there, and we are committed to providing high-quality care and high-quality services that folks need and deserve. This footprint consists of more than 5400 beds across 171 facilities, with 90 per cent of them being in rural and regional areas. In more than 50 of them our public sector aged care providers are the only providers and at the same time a major employer for those towns.

I do have to say that I am really proud of the fact that our state-run facilities are governed by nation-leading nurse-to-resident ratios. I remember when we introduced this my mum said, ‘Thank God.’ She knew that it would make a difference. She knew what it was like working in an aged care facility where the buzzer was going off all night minute after minute because they did not have enough aged care workers or even nurses within the residential care facility to be able to help residents bathe and have a wash before bed, to turn them over so they did not end up with bed ulcers, to make sure that they had had dinner or to even just help them put on the TV.

I think one of the things in the national conversation that I felt we were finally talking about is that an aged care facility to us is about being a service and a facility. They are sort of really cold words. For people that live in these places, this is their home. That room is their home; the dining room is their kitchen. They may no longer be able to cook meals for themselves, but they certainly deserve the dignity of being able to be assisted to sit at a dining table and eat proper food in the aged care home. Being able to have the national conversation around that really highlighted the need to improve a lot of things, like the type of food that was being served at these facilities. I know that the nurse-to-resident ratio was really important. It was something that my mum talked to me daily about – she had a lot of grievances of the place that she worked – right up until the day that she left. She talked about the difference that that would make not only for aged care workers but, really importantly, for the residents that call those places home. That was a really good thing.

I will run out of time, but I do have to say this is a really great bill. This is a really, really important bill that is being brought before the house. I commend the minister, and I would like to give a big shout-out and thank all of the aged care workers that look after folks right across Victoria.

Roma BRITNELL (South-West Coast) (15:35): I rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. This is a bill that seeks to establish a framework to explicitly identify and authorise a substitute decision-maker in the event a residential aged care provider requires consent for the use of restrictive practices when a care recipient is in a residential aged care facility and does not have the capacity to provide that consent. Whilst I support this bill, I really do not think we give the aged care personnel, the medical staff and the mental health practitioners the tools to manage those who actually are suffering and need to have restraints put in place. Despite the promises of this Labor government, the mental health and aged care systems are broken. We have a legislative responsibility and duty of care to all vulnerable members of the community, and from my experience I think we have lost the balance. Clearly we should always take responsibility for using chemical or physical constraints on anyone very seriously. However, we also need to give health professionals and families the ability to make decisions and support them. Health professionals tell me how frustrated they are and that they feel they cannot provide a sufficient duty of care to people in their care, because the pendulum has swung too far in favour of clients rights and away from patient care. Patients are now called clients, and we seem to have lost sight of the duty of care that was once extended to patients.

I have personally been dealing with a very difficult situation – the story of my own mother, who is currently in an aged care facility and is not receiving essential psychiatric care. The individual staff, the carers, the cleaners – everyone is doing a wonderful job, but it is a difficult situation that she is in, due to the psychiatric aspect of it. The last two years have been a battle. She is suffering from paranoia and psychosis, effectively living in a horror movie in her own imagination where she believes she is under siege, being attacked, abused and tortured. As part of her care arrangements I regularly have to sign off on her physical restraints. Due to her behaviour my mother has been placed in the memory support unit or, as we are calling it here, the dementia unit, but continually manages to leave. Facility staff tell me they are unable to help physically once she is out of the locked unit, as the Aged Care Act 1997 prevents them from physically restraining her. On one occasion Mum escaped from the facility. She did not tell anyone. She booked herself into a motel room during the night. Her paranoia escalated, she believed she was being attacked and stalked and she called for help. The motel owners called the police. When they arrived, she turned on them and refused to cooperate. They did not want to put her in the police van at 2 am at 92 years of age, so they called me. When I arrived she turned on me. That was my first real awareness of how significant Mum’s paranoia, psychosis and delirium were.

So began many incidents over the next 12 months, and here are a few. My mother has reported my father to the police for abuse. They interview him and deduce that the allegations are false. She runs away from family when we take her out on outings, approaches strangers and claims that she is at risk and being abused. The good Samaritans call the police. The police call me. She gets to the police station, and the police have to do this reporting thing. She rejects advances from family, who are trying to help her, because of her extreme state of paranoia. These episodes are becoming more and more bizarre. One time Mum smuggled a screwdriver into the aged care facility. She then went on a rampage attacking staff as she believed in her paranoid state that they were trying to kill her. On another she took off from the aged care facility and again could not be restrained, because no-one could touch her, and stood in the middle of the freeway until police and ambulance somehow coaxed her off. She accused a man, who could not speak and who had dementia, of sexual assault. Quarterly I continually sign consent giving the staff the use of physical restraint. Mum continuously accuses the doctors and staff of drugging her. She accuses the doctors, staff and her family of trying to kill her. I have begged staff to get psychiatric help and treatment for my mother. I have begged them to administer available antipsychotic drugs. My hope is of course to get my mother back, the loving woman she once was.

There are drugs that could treat my mother’s psychosis and paranoia. But because she is treated as a client, she refuses to consent, and the staff tell me they are unable to administer these chemical restraint drugs against her will as it would infringe on her human rights.

She is also refusing to take her cardiac medication because she does not trust the staff and thinks she is being tricked, so she is putting her physical health and wellbeing at risk because she thinks it is unsafe. We are not going to drug her for psychosis, but we are allowing her to not be physically well – it makes no sense. She is causing this physical damage to herself because staff cannot demonstrate a duty of care. The health system is unable to administer essential drugs for my mother without approval because of her client rights. She is in physical and mental pain and unable to be treated.

As a former nurse, I feel like I am leaving a patient in excruciating pain. I have never walked past a broken leg, for example, without administering support and pethidine – the drug of choice when you are needing to alleviate someone’s pain – but I have to walk past my mother and can do absolutely nothing to alleviate her suffering. As a daughter, I am at my wits’ end and have exhausted every avenue.

The nurses tell me they cannot touch her when she escapes the facility, because of legislation. One day my son had to manhandle his grandmother because nobody else could, a very confronting event for a young man. The police, ambulance, medical staff and nursing staff are all unable to assist. They get called time and time again and have to take all their reports. It is actually an incredible use of resources. They said they are scared that they will be deregistered or their employment jeopardised. It is obvious my mother is experiencing intense mental pain, brought on by her age.

In January this year, after a year of this, I asked for a meeting to try and find a solution. There were 17 health professionals in attendance – psychiatric professionals, the head of the psych unit, nurses, doctors, psychiatrists, health support workers and an elder abuse rights representative. Yes, I did say 17. The conclusion was that because of legislation there is nothing that any of them or I – or anyone – can do to help her. Of course no-one would put that in writing.

This circus has been going on for two years. I was recently told my mother is too difficult for the facility to handle. Firstly they said they would send her to a psychiatric ward, where she would be committed. This is yet to happen because my mother has to accept voluntarily to go. Yes, that is the madness of all this. She refuses, as she does not think there is anything wrong with her. The idea of her going to a geriatric psych unit scares the hell out of me, but my mother’s current suffering scares me more. I just want my mother back, if that is at all possible, but if it is not, I would like her to be treated adequately to relieve her suffering.

We need to do more – it is as simple as that. The health staff do an incredible job, but they are absolutely hamstrung by a lack of legislation and a lack of staff. Whether it is aged care facilities working with mental health in this state or the mental health of patients in the mental health system, we just are not doing enough. I think that tells the story of many, many families who are frustrated and who cannot the assistance they need.

The Royal Commission into Victoria’s Mental Health System had so many recommendations, and the fact that we are still taking this levy from the community, really, to pay for a better system and delivering no better care is an absolute disgrace. Recently one mother told me her son will either be the next Gargasoulas or he will be dead. He was undiagnosed because they said he was no longer a schizophrenic, and he had been that since he was 17. At 40, just a month ago, he was found dead in the squalor of his home, which he had ransacked so many times. These are families that cannot tell their stories, because they are really hard to tell. I am really sorry I got emotional, but they are really hard to tell. The frustration and the pain and suffering you witness as a family when you have a person who is suddenly in this mental health system and the mental health system cannot cope and the government is saying they will make it better and they have had recommendations from royal commissions and they are not implementing them – it is simply criminal. I see the amount of money – I think it is a billion dollars – in the next budget that this government have put forward, and then I see people saying that they need help. Families approach me time and time again with young children or old people who are not getting any mental health support when they need it. We can change all the legislation we like around restraints and constraints, but when the staff do not have the government backing them in and really using lived experience to make changes, then unfortunately what we are seeing is inaction and a government who is doing nothing.

Bronwyn HALFPENNY (Thomastown) (15:45): Ms Britnell, I got a bit emotional when you were telling your family story, and I am really sorry. We all know people, and it is a sad area, whether it is aged care and things like dementia or it is mental ill health. It is about creating that balance between the rights of the individual, the rights of the family and the right to have autonomy in decision-making. For us as a government and for all of us in the Parliament as lawmakers it is about trying to get that balance right and really listening to the experts, to the lived experience and to the health practitioners and coming up with something that we hope in this case will make a big difference in the way residents in aged care homes are treated in respect of aged care restrictive practices. Just going back to the bill and what it means, the bill will establish a hierarchy or list of decision-makers who can act in Victoria as restrictive practices substitute decision-makers. This is really giving the right to the person in aged care to give informed consent and, in a situation where they may not have the capacity to make a decision around restrictive practices, to be able to nominate others. Mostly of course they will be family members and people close to them or friends that they have known for a long time.

In terms of what restrictive practices are, they are things around restraint and how an individual has to be restrained for the purpose of preventing them from harming themselves or harming others. There are definitions and a list that looks at chemical restraint, environmental restraint – where you are and what sort of room you are in – mechanical restraint, physical restraint and seclusion. Of course after some of the most horrific acts during the COVID pandemic and some of the situations that we saw residents in aged care places going through and having to experience, there was a Royal Commission into Aged Care Quality and Safety and the rights of the elderly. One of the issues raised in that was how to ensure that aged care residents did have more say in terms of nominating, in the event that they cannot decide, those people that they had the most trust in and believed would do the right thing on their behalf, and this is what this legislation is about. During the pandemic there were two aged care facilities that I had a bit to do with. They were St Basil’s and Epping Gardens, and of course we have all heard about the terrible treatment of residents in those places. We have to do better and make sure that the rights of the elderly are protected as well as providing them with proper places to live with good quality care as well as respect for those people in care.

There was a gap around being able to nominate decision-makers for restrictive practices decisions, and this is what this legislation is talking about. It allows the aged care provider to identify those substitute decision-makers other than the resident, and then there would be an order of precedence. There are nominees appointed by the aged care resident themselves in advance, then there are those next of kin identified based on close relationships and the last of that is a decision-maker appointed by VCAT should there be no other decision-maker available.

As I understand, the Council on the Ageing – COTA – and seniors rights organisations have supported this legislative change in Victoria. They do have a view that there ought to be some stronger provisions, but they also see that is really an area within the federal sphere and that is where that should be. This legislation means that they are supporting it, which is good. I know the Elder Rights Advocacy organisation. I have had a bit to do with them in recent times doing work in the Thomastown electorate. They do a lot of visiting of elderly residents who maybe want to remain in their own homes but are not really connected or do not have a lot of family nearby. All these organisations do really good work both in caring for, supporting and involving elderly Victorians. Then of course we also have legislation like this, which looks at alternative care settings and other supports for individuals but also tries to balance the rights of our elderly Victorians as well as to ensure that we have provisions in the event of people not being able to make those sorts of decisions for themselves.

I have gone through what restrictive practices are and how the hierarchy would work, and that would be of course that first the person nominates who they would prefer to make these decisions and very last is the more technical or legislative appointed organisation or person that would be making the decision. It is always better to have people that you know – family – that can support you through what is happening, and that is most important when it comes to these sorts of acts that we are looking at here, which of course nobody wants to see implemented, but there are cases and times where there is no choice and this has to be done. This legislation is probably one that we look at and say, ‘This is quite sad,’ but we also have to ensure that in all circumstances people find themselves in that there is some sort of protection in the way things are used. It makes it clearer for the health professionals and those that are running aged care facilities. Everyone knows where they stand, everyone sort of knows what they can and cannot do, and that is what we are looking to do here.

The bill also provides a number of safeguards to protect vulnerable older people. For example, there are criminal offences included within this legislation, and that is specifically to say that if you induce through dishonesty, undue influence or threats a substitute decision-maker nomination, then there are serious penalties for that – criminal penalties. Also if you knowingly make a false or misleading statement in relation to another person’s substitute decision-maker nomination or attempt to change that nomination by deceit or force or whatever, that is a criminal offence, just to make sure. We would hope that these things do not happen, but you have always got to make sure that you cover all bases to make sure that the person is at the centre of the care. In a society where we want to respect and look after elderly Victorians, just like all Victorians, there needs to be both penalties as well as very strict legislative procedures to follow. There are also further offences that try to prevent coercion, threats, violence or abuse in the case of nominating decision-makers. These are all contained in the legislation. It also ensures that it is not only just family members or people close, but that there are actions from employees and agents.

I think the fact that organisations such as COTA and seniors groups are supporting this legislation is a very good thing, because it is really important to bring on such stakeholders that do represent the interests of older Victorians. I have even had quite a bit to do in the past with COTA, which does really great work raising the issues experienced by older people. I know that they often take part in many parliamentary inquiries and provide submissions and provide information to governments, which of course is so valuable.

Wayne FARNHAM (Narracan) (15:55): I am pleased to rise today on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. Really this bill has been brought forward due to the Royal Commission into Aged Care Quality and Safety, which the Commonwealth coalition government did in 2021. Aged care, as everyone in this chamber would be aware, is probably one of the biggest sectors, not just in Victoria but in the country. Aged care is always emotive. There will be a lot of people in this chamber and those probably sitting watching in their offices who have parents in aged care at the moment, and all we want for our parents when they get older – because they have looked after us our whole life – is the best care available for them. Unfortunately, though, as people get older and certain conditions come on board, it does make the management of aged care very, very important – not just for the facility but for the individual person. What this is about is that that individual person has the best quality of life and consents to the way they are treated, especially in their later years, when they might have dementia or any of those types of things setting in.

It is always sad for a family to watch their loved ones degenerate over time. You quite often see as they get older – it could be their early 80s or mid-to-late 80s – that they start to degenerate, and it happens before your eyes. It can be quite upsetting. So to get restrictive practices right is extremely important, and this is what we are doing today. That is why the coalition on this side support this bill, because it is based on the recommendations from the royal commission.

When the royal commission completed its work, one of the comments in its report was:

Restrictive practices have been identified as a problem in aged care in Australia for more than 20 years. The inappropriate use of unsafe and inhumane restrictive practices in residential aged care has continued, despite multiple reviews and reports highlighting the problem. It must stop now.

I think that is a very important statement that was made by the royal commission. It must stop. This is why this is a good bill and this is why we support the bill 100 per cent, because this will give people a say and consent too. I think part of the problem – and we have seen it probably in the news every now and again – is when we get a horror story out of an aged care facility. Now, I am not by any means implying that all aged care facilities are bad. I actually think that, like any sector, you get 98 per cent doing the right thing and have the patients’ care to the fore, but unfortunately in every sector we have that very small percentage that do not follow the rules or may not be quite as caring as we would like them to be. At least this restrictive practices substitute decision-maker bill goes to the point of consent, and it is very important to have that.

There are, as previous speakers have pointed out, five main types of restraint. Chemical restraint is the most common form. It involves medications – antidepressants, antipsychotics – and it does not include medications for mental health disorders that are treated separately. Now, that is a bit of a problem. We just heard the member for South-West Coast talk about her experience with her mother and the challenges she is facing around getting mental health disorders treated. It is sad to hear that someone has to go through that.

The second one is obviously an environmental restraint, which generally involves restriction of movement to a particular space – for example, a room – or exclusion from a certain space such as a meal area or a maintenance area with tools. All these restraints – we have mechanical restraint, physical restraint and seclusion, being probably the most extreme – are there for a reason. They are there mainly to possibly stop the person from hurting themselves or hurting others. But the fact that now we have consent and the hierarchy around it to make the decisions is important. As I said earlier, we have heard those stories – unfortunately it does happen – where something has happened to an aged care resident and the family has not been told about it for three or four days; it has been reported as ‘an incident happened three days ago’. This provision makes it better for the aged care facility because it gives them a very clear set of guidelines for what should be happening and who the decision-makers will be. It says here that substitute decision-makers should preferably be nominated in advance and in writing by the aged care resident, and this is the case for almost all the clients. This is a really important point because, when people get older and they have still got all their faculties – that is the best way to put it – if they can make that decision and put that in writing, then the aged care facility has that clear direction: I want these people to make decisions for me.

A next of kin is to be identified based on someone who has a close and continuing relationship with the aged care resident – like a spouse or partner, primary caregiver, adult child or a person who has a long and enduring relationship. These are all really important. The classic example would be where, when an aged care resident is upset, the facility can make a phone call and talk to someone and say, ‘Listen, we need to restrain your loved one. We’re thinking of one of these five methods.’ That gives the person that has the relationship with the person in the aged care facility the up-front information, which is really important. There would be nothing more upsetting than if your parents or your loved had had an episode and you visited them, walked in and found them restrained to a bed when you did not know this was going to happen. That would be quite upsetting not only for the aged care resident but for the loved one coming in to visit them – when all of a sudden they find them in restraints, and they had no idea. This really does give clear guidelines to aged care facilities on how they can restrain a person and what they need to do to follow it up. I also think, for the loved ones of those people, it gives them comfort to know that they will be consulted in the decision-making on this.

My only point here, and I do not know if this will be problematic or not – I hope not – is about, if no person exists, as a last resort VCAT acting as the decision-maker. I do like the bill and I support the bill, but the only reason I have a little bit of hesitation around this is the current load that VCAT has. I suppose in my mind I am wondering how this is going to work. Are we going to have designated people in VCAT that will be available to make these decisions? Because they need to be made relatively instantaneously; it is not something you want to be put on hold about for two days or even 2 hours for that matter. Just for my own curiosity I would like to know how that is going to work, because we do know that VCAT is under pressure. They have a lot to deal with at the moment. Just that last piece is really the only piece that concerns me, and how is that going to be made up? Will it be a phone call to a VCAT officer to say, ‘Look, we need to restrain this person. They’re doing A, B, C. We suggest this method. Do you agree?’ I hope that the availability is almost instantaneous, because you would hate to see that delay cause a problem for the resident or someone else or put someone else in danger.

Other than that, we support this bill. We believe it is a good bill, and it is going on the back of the royal commission.

Josh BULL (Sunbury) (16:05): Thank you very much, Acting Speaker, for the opportunity to contribute to debate on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. As has been mentioned by previous speakers and in contributions thus far, the matters before the house this afternoon go to working with those that work in aged care, knowing and understanding that both as a government and as a Parliament we need to ensure that we are providing those safe settings, the very best settings, for those that are experiencing a time in their life that is challenging, making sure that we are listening to the reports that have been referenced in relation to the bill but also knowing and understanding that in many of these settings there are challenging and complex environments. Both members of this house and those that are in the Legislative Council, the other place, work with local communities and across local organisations, speaking to those that are in an aged care setting. Of course we all draw on our personal experiences when we come to this place, and wanting the very best care, the very best support and the opportunity for a loved and dignified existence for our loved ones as they age is something that I am sure is shared right across this house.

I do want to take the opportunity to reference the work of Gerard Mansour. When I was the Parliamentary Secretary for Carers and Volunteers I had the great privilege of working really closely with Gerard. After 10 years as the state’s inaugural Commissioner for Senior Victorians he finished his final term in 2023, and in that tenure he worked really closely with the government, being responsible and providing important independent advice on issues relevant to senior Victorians and also being a strong and powerful voice. He was someone that I know I spoke to a lot about many of these issues that we know were prevalent within the community. I worked with him and many others on some significant achievements, such as the launch of the Ageing Well in a Changing World report in 2020. Obviously, the year 2020 was a catastrophic year globally with the arrival of the pandemic, but I do remember speaking to Gerard on Zoom many times, and the knowledge, the importance, the contribution and in many ways the measures that were taken through that work were things that I know were very much valued by me as parliamentary secretary and widely across government.

The bill before us this afternoon establishes a hierarchy of decision-makers who can act in this state as restrictive practices substitute decision-makers in residential aged care in line with requirements under the Commonwealth Aged Care Act 1997. We know with the legislative framework that many of the practices that are contained within this bill go right across not just our state but the country. They go to some federal requirements that we know are important not just in our state but in others. The bill will allow aged care providers to identify substitute decision-makers through a hierarchy. Under the bill, decision-makers will be identified in the following order of precedence: substitute decision-makers nominated by the aged care resident; next of kin, identified based on close relationships; and a decision-maker appointed by VCAT should no other decision-maker be available.

The bill will ensure that our older people have as much autonomy as possible around decisions that concern them. I know from working with local communities, but also from just being a Victorian and being somebody who has seen people age throughout their course of life, the importance of autonomy, of listening and of understanding as those challenges arise which inevitably we will all face that go to the care of community and loved ones and family, and that is something that should always be at the forefront of what is needed.

The bill is in response to the Royal Commission – others have mentioned this in their contributions – into Aged Care Quality and Safety, and the Commonwealth introduced new requirements for restrictive practises to be used only with the informed consent of the aged care recipient. For aged care residents who may not have capacity to make decisions, such as cases of advanced dementia, a substitute decision maker can provide this consent.

Unlike other jurisdictions, Victoria does not have legislation that explicitly authorises substitute decision-makers to consent to the use of restrictive practices in residential aged care, and this is why – others have mentioned this as well – we have progressed the bill to clarify who in Victoria can act as restrictive practice substitute decision-makers. The current situation, which has been outlined, goes to the care and support that are surrounding those that are ageing, and those that I mentioned earlier – loved ones, family and friends, those within our local community – are of course incredibly important. What we want to say is that our government believes that older people within our community, our seniors, should be able to access high-quality care that is appropriate for their needs close to home. That is all about making sure that we are working with agencies and working right across government to provide for those settings that give the best support and indeed the care of our local communities.

I do want to take the opportunity to thank those who work incredibly hard within the sector, those who of course I have had personal experiences with, and I am sure you and many others within the house have had the same experiences. It does not take much in many instances to see some of the very troubling – and they are troubling in many instances – headlines that occur and hear about some cases which we need to be aware of and of course we need to address. This is one of the reasons why this is this bill is incredibly important, but we should not of course make the mistake of not recognising the fact that there are so many who do terrific work within local communities within these settings and so many people who give and give and provide for the important care, as people age in their life, that they rightfully are entitled to.

We have made some significant investments and major reforms within this space, and this piece of legislation goes to building on some of those commitments to providing for those within our community that need support through investments that have been mentioned in previous budgets and a whole range of other initiatives and particularly some of the work that has been done by our seniors groups – another area we know and understand, and some of the best conversations over a lovely cup of coffee can be with a local seniors group.

I want to give a particular shout-out to many in our community who speak to me about these issues. They are always conversations that are had in great spirit but are also conversations that are had with the intention of making sure that we are providing for the best care, both as a state and a government. I think there should constantly be a process of continued engagement whereby we are working with those in the sector that experience the job on the front line and of course with community representatives and advocates. For those reasons and many others, I happily commend the bill to the house.

Kim O’KEEFFE (Shepparton) (16:15): I rise to make a contribution to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. The purpose of this 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. In addition, the bill makes related amendments to the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes. The federal government in 2021 introduced new legislative requirements for residential aged care providers. Under the requirements, aged care providers are required 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 federal government introduced a temporary hierarchy to guide identification and appointment of substitute decision-makers. This hierarchy has been in place in Victoria for more than two years now, and aged care providers as well as residents have relied on it. However, currently as a state we do not have legislation that identifies and authorises substitute decision-makers to consent to the use of restrictive practices in residential aged care.

It is important that as a state we have legislation in place that addresses this gap by ensuring that we have frameworks that are clearly set out, ensuring that aged care residents receive appropriate supports. This bill seeks to establish a framework for identifying who can act as a restrictive practices substitute decision-maker. It does this by prescribing a hierarchy of decision-maker based on close and personal relationship to the aged care resident. Under the bill the hierarchy will only be engaged when the aged care resident does not have the capacity to provide consent for themselves. Under current legislation, providers are 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 the capacity. Instead this bill will allow aged care providers to identify substitute decision-makers through a hierarchy. Decision-makers will be identified in the following order of procedure: a substitute decision-maker nominated in advance and in writing by the aged care resident; a next of kin, who is to be identified based on someone who has a close and continuing relationship with the aged care resident; or finally, a decision-maker appointed by VCAT, should no other decision-maker be available. If no such person exists, as a last resort VCAT can act as the decision-maker.

It is important that providers cannot move to the next tier of the hierarchy simply because the decision-maker withholds consent. A decision to provide or withhold consent by a valid substitute decision-maker must be respected, but also the decision-maker must be someone who is willing and able to act at the time when a decision is required. They 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. The bill seeks to ensure that individuals have as much autonomy as possible around decisions that concern them through the nomination function. This is critically important because, as the bill prescribes, nominations by aged care residents must be in writing and witnessed appropriately to ensure that there is clarity and consistency around who such decision-makers are. 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 also makes minor amendments to the Victorian Civil and Administrative Tribunal Act 1998. VCAT will act in an oversight capacity, including resolving disputes around nominations, appointments or decisions in line with legislative principles. The amendments in the bill will empower VCAT to act in an oversight capacity for the appointment of a substitute decision-maker and to act as a decision-maker of last resort should there be no other decision-maker who was reasonably identified. Aged care residents will be assumed to have capacity to make change or withdraw a nomination unless it is demonstrated otherwise. Under the bill VCAT 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. Hopefully in these instances under the bill, as well as the hierarchy, any matter that has to be heard by VCAT can have some level of urgency applied in order for a decision to be made quickly.

It is important that aged care providers make decisions and act in accordance with the Commonwealth legislation, including both the Aged Care Act and the Quality of Care Principles 2014. Section 15FA of the Quality of Care Principles requires providers to only use restrictive practices as a last resort in the least restrictive form for the shortest amount of time possible, only issuing restrictive practices after less restrictive strategies have been attempted first.

The aged care provider must adhere to the Commonwealth 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. Under section 15HA of the principles, providers must assess the aged care resident’s behavioural support needs, and if restrictive practices are required, then providers must document this assessment and details of the proposed use of restrictive practices within a behavioural support plan. In addition to both of these sections, section 15HG requires that aged care providers must 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 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 for substitute decision-makers to consider the giving of consent without coercion or duress. The 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 emergency use.

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 be able to seek help from organisations such as Victoria Legal Aid, the Older Persons Advocacy Network and Seniors Rights Victoria, as appropriate.

I have seen firsthand the support a family member needs once they get to the stage of life of moving into aged care. My Uncle George never had a family of his own, and he was a very private person. He did not like to make a fuss, and he was a very independent man all of his life. My husband Brendan is his nephew, and he became his primary support person and next of kin. My husband did a wonderful job taking care of Uncle George – taking him to medical appointments, optometrist visits and even shopping for his favourite Tim Tams. Brendan recalls those times with such fondness. But as Uncle George aged and went into high care, I saw the importance of my husband’s role, having to make so many important decisions, and at times it can be really stressful because you want what is the very best for your loved one. Moving Uncle George into high care was a very stressful time, but it was the right decision. Uncle George passed away 12 months ago, and there would be many people like our uncle who do not have a family, as I mentioned, of their own. When someone else has to step in to make decisions when that person is no longer able, we now know that VCAT can assist.

The bill before the house is a step in the right direction by addressing the legislative gap we currently have as a state. By legislating a clear framework, it will ensure that aged care residents can receive appropriate behavioural supports in accordance with the Aged Care Act. Importantly, people entering or living in residential aged care can make decisions about their future care knowing that should the time come, a trusted and close loved one will have the ability to act in their best interest. It is crucial that we do as much as we can to support the elderly and their families to ensure that they are protected and that they are given the respect and the support they need to make the decisions that impact on them so greatly.

In closing, we know that there have been many issues with substantive care in aged care facilities, and this needs to be rectified. Aged care is a critical service for many vulnerable members of our community. I wish to acknowledge the many hardworking aged care workers. I have visited many of our local aged care residents many times. Like many industries, we know that there are staff shortages, which have an enormous impact on both the staff and the residents. We need to provide as much support as we can to ensure we are supporting people’s rights in aged care with dignity and respect and that they get the level of care they need and deserve.

Paul MERCURIO (Hastings) (16:23): I am very happy today to rise in support of and speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. It is a very important bill, and it is about time that it has come, which I think is terrific. It is also a fairly narrow bill, so I do apologise if I repeat some things other people have said. It has been really great to hear some of the debate and also incredibly moving with some of the stories. I will talk about my lack of experience in terms of aged care and my mother and the journey we are about to undertake a little bit later if I get to it.

This bill addresses a critical gap in our aged care system, and it offers an essential layer of protection and respect for some of our most vulnerable citizens. Of course my mother comes to mind, although I do not look at her as vulnerable; she is a very feisty lady and always fun. This bill comes in response to recommendations from the Royal Commission into Aged Care Quality and Safety, which highlighted significant shortcomings in protecting the rights and dignity of aged care residents.

In recent years the Commonwealth introduced new standards through the Aged Care Act 1997 to ensure that restrictive practice measures are used only when necessary to manage behaviours that may pose a risk and are employed with the informed consent of the resident or an authorised decision-maker. These practices include quite a few different things, including measures like medication or physical restraints. They can be sensitive and impact a resident’s freedom. However, in cases where residents cannot provide consent themselves, clear rules are needed on who can make these decisions on their behalf.

Currently, Victoria lacks specific legislation that authorises a substitute decision-maker to provide consent for restrictive practices in aged care settings. In the absence of such legislation a temporary hierarchy was introduced, but this temporary arrangement has left many families, carers and providers without clear or lasting guidance. Restrictive practices are actions that limit a person’s freedom or choices. They are things like locking doors, using rail beds or medications to manage difficult behaviours. These measures should only ever be used as a last resort and only when there is no other way to protect the safety of the resident and, importantly, other residents and also healthcare workers. Importantly, they require informed consent, just as any of us would expect if we were in their place. Yet in Victoria we currently do not have legislation that says who can give this consent on behalf of residents who are unable to make decisions for themselves. In other areas of health we have clear frameworks that guide who can make decisions if a person cannot, but aged care restrictive practices have not been covered. This gap in the law has left residents, their families and aged care providers in a very difficult, precarious and uncertain situation.

This bill gives us a straightforward solution. It sets out a clear order of hierarchy of who can make decisions for a resident who cannot give consent on their own. And so here is how it works: first, it respects the wishes of resident by allowing them to nominate their own substitute decision-maker in advance; second, if there is no prior nomination, it looks to those closest to the residents, like their spouse or primary carer or adult children; and finally, if there is no-one available or willing from the resident’s close circle, VCAT can appoint someone with a trusted relationship to act as a decision-maker. By establishing this hierarchy, the bill gives families peace of mind that, if the time comes, someone close to their loved one, and preferably someone that their loved one has chosen, will be able to step in and make the best decision on their behalf. It gives certainty to everyone involved, from the resident and family to the aged care provider. This bill also introduces strict protections to make sure that no-one is pressured or tricked into choosing a decision-maker. It is now a criminal offence to try to manipulate someone’s choice of decision-maker or to lie about it. VCAT will also have oversight powers to step in if there are concerns about the appointed decision-maker’s actions. We know that elder abuse can be a serious issue, especially when it comes to vulnerable people in aged care, and this bill aims to prevent abuse by stopping anyone who has harmed or posed a threat to a resident from becoming their substitute decision-maker. These safeguards are vital to protect the wellbeing of our aged care residents.

This bill is not only necessary, it is overdue. It aligns Victoria’s laws with the Commonwealth’s Aged Care Act, which requires aged care providers to seek informed consent for restrictive practices. Without a clear law in Victoria, families and providers have faced confusion and residents’ rights have sometimes been compromised. This bill resolves that issue with a permanent solution that ensures compliance with national standards while upholding the dignity of our older citizens. The hierarchy does not include guardians or attorneys, because the Guardianship and Administration Act 2019 and the Powers of Attorney Act 2014 in Victoria do not authorise these roles to make decisions specifically about the use of restrictive practices. Under these acts, guardians and attorneys are empowered to provide informed consent based on what the person they represent would decide if they were able to do so.

Restrictive practices often conflict with the core principles of these roles, which are grounded in respecting and supporting the will and preferences of the individual as outlined in sections 8 and 9 of the Guardianship and Administration Act 2019 and section 21 of the Powers of Attorney Act 2014. Guardians are appointed to make decisions on behalf of someone else in a manner that respects the individual’s known will and preferences, only intervening when it is necessary to prevent serious harm. Likewise, attorneys under an enduring power of attorney must act in ways that respect and promote the person’s wellbeing and wishes and share alignment with the individual’s personal values.

To uphold the integrity of the guardianship and power of attorney frameworks while meeting the requirements specified in the Aged Care Act 1997, a tailored arrangement has been implemented. This arrangement includes essential safeguards to protect the rights and interests of older adults in Victoria, ensuring their dignity and autonomy are respected in aged care settings without undermining the principles guiding guardians and attorneys. This bill places the resident’s preferences at the centre. By prioritising the resident’s own choice of substitute decision-maker, the bill upholds the autonomy and dignity of older Victorians. This ensures that even if a resident cannot make decisions directly, their own wishes are still respected as much as possible.

As I said, my mum is 88. She recently had a mastectomy – I hope you do not mind me telling people that, Mum. She is an incredibly strong woman, but we did have that discussion about power of attorney and also that other discussion: ‘What happens if the operation doesn’t go well, if I don’t come out of it?’ We had that discussion about what my mum wanted and what she preferred. My brother and I have started discussions about my mum and her future also in terms of what would be going on if she goes into residential aged care. What this bill will also do, I think, is stop family infighting. I know my sister – who will not be reading Hansard, because she lives in America – will not be able to assist or be the person that will have say over what happens with my mum. My brother and I – my brother lives in Sydney and I live here – as I said, have been talking about the future for Mum and what might happen. My brother and I get on very well, but we do not always agree on the same thing, and I think this bill is important because we will go to our mother and we will ask her who she would like to represent her in terms of restrictive practices. We can be assured that we are fulfilling Mum’s wishes – we are doing what she wants.

Somewhere one would hope that there will be the knowledge within Mum and that she feels safe in that wherever she may go. Heaven help her if she gets dementia – I know the member for South-West Coast spoke emotionally and really poignantly about her experience with her mother, and I think that would be an incredibly difficult thing to stand by and watch. I have some good friends whose mother did the same thing – she got dementia and was very violent and spiteful towards their kids. I am hoping with my mum, if she ever gets a little bit grumpy, she will know that with my brother or me – whoever she decides to be the person to make these decisions – she is in safe hands and that she is loved. So I certainly commend this bill to the house.

Dylan WIGHT (Tarneit) (16:33): It gives me great pleasure to rise this afternoon to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. It is a bill that raises the important matter of the dignity, rights and welfare of our older Victorians. Just before I get into the substantive content of the bill, I would ask the house to indulge me just for a moment while I thank the hardworking staff at residential care facilities across Tarneit, Hoppers Crossing and more broadly in Victoria. These facilities include but are not limited to the John Atchison Centre in Hoppers Crossing, Sunset Views Manor in Tarneit, Lifestyle Seasons in Tarneit and of course Tarneit Skies retirement village.

I thank them for all the hard work that they do taking care of and providing dignity to older citizens. In my time as the member for Tarneit I have also had the pleasure of working with residents from a number of these local aged care facilities. They are incredible people with a wealth of knowledge, so I wanted to start by thanking both residents and staff at those aged care facilities.

This is a piece of legislation arising from the recommendations of the 2021 Royal Commission into Aged Care Quality and Safety, which laid bare the systematic failures in our aged care system as it stands at the moment. It is a piece of legislation that is aimed at taking care of and fulfilling the wishes of our oldest citizens and at times some of our most vulnerable citizens. It is a piece of legislation that I think is incredibly timely and incredibly appropriate given the mountain of evidence that we heard during that royal commission, and I think this government fulfilling those recommendations is incredibly important.

One of the key findings of that royal commission was the need for robust mechanisms to ensure that restrictive practices are used appropriately and only with informed consent. I have not had a situation in my life yet where I have had to deal with this sort of situation for a loved one, but if I am ever in the position where I do, I will be incredibly thankful that we have responded to these recommendations and brought forward this incredibly important piece of legislation.

Until now Victoria has lacked specific legislation to address this need and to address the restrictive practices angle or framework within this sector and has instead relied on temporary Commonwealth measures. So I think it is appropriate today that we bring forward specific legislation to deal with what is a very specific issue. The Commonwealth’s temporary hierarchy has provided interim guidance, but of course it is not a long-term solution. Without a permanent framework we risk leaving aged care residents and providers in legal limbo, which could of course compromise the quality of care and lead to significant and several disputes. Other states and territories have already taken steps to address this gap. This does bring us into line with other jurisdictions, with other states, in Australia, and it is imperative that we follow suit and that we pass this piece of legislation to ensure the necessary protections for our aged care residents.

This bill establishes a permanent, clear and person-centred hierarchy of substitute decision-makers, ensuring that decisions about restrictive practices are made lawfully and with the residents’ best interests at heart. Beyond addressing legal gaps, this bill is a testament to our commitment to the rights of older Victorians. It acknowledges the complexities of aged care and the delicate balance required to protect both the safety and autonomy of the residents. By legislating a clear hierarchy we provide certainty to aged care providers, residents and of course their families and we uphold the highest standards of care and accountability in this incredibly vital sector.

The bill, as we have heard, is of course all about strengthening the legislative framework for those aged care facilities and it is of course about looking after some of our oldest Victorians and looking after the families that have loved ones in aged care facilities. It is once again all about the dignity, the rights and the welfare of our oldest Victorians. It fills a significant gap, ensuring that aged care residents who lack capacity to make decisions about restrictive practices are supported by a clear lawful process for appointing a substitute decision-maker. Every person has the right to have ownership of their own care, so in the case where they are no longer able to do so we must make sure that there is a safe substitute decision-making process that will provide the best possible outcomes for that individual.

The bill also aligns Victoria’s laws with the requirements set forth by the Commonwealth, specifically following the amendments to the Aged Care Act 1997. The importance of this bill cannot be overstated. Restrictive practices such as physical or chemical restraints involve significant limitations on an individual’s autonomy and freedom, not to mention just the traumatic nature of them. While these measures may be necessary in certain situations, they must be applied judiciously and with informed consent. This bill ensures that aged care providers and substitute decision-makers act in the best interests of residents, safeguarding their rights while also providing the necessary protections for their wellbeing.

We spoke this morning as part of the contributions on the government business program about the fact that we had an incredibly important government business program this week. This aged care bill, the Aged Care Restrictive Practices Substitute Decision-maker Bill, is a really clear example of that. It is about protecting the rights of some of Victoria’s oldest residents. It is about protecting the rights of potentially some of Victoria’s most vulnerable people – people that are ageing, people that may have dementia, people that may have other illnesses – and making sure that their dignity is protected through this legislation, which is not just protecting the rights of some of Victoria’s oldest and most vulnerable but also protecting the rights of their families and their loved ones as well. It addresses key recommendations from the royal commission, some of the evidence from which was pretty harrowing. I note that there is bipartisan support on this, which I think is appropriate. This is an incredibly important piece of legislation. It is an important piece of the puzzle in the framework that makes up aged care, and I commend it to the house.

Juliana ADDISON (Wendouree) (16:43): I too am pleased to be able to stand before the house today to speak in support of the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, which will introduce clear guidelines for who has decision-making power regarding the use of restrictive practices. This is a very important and necessary bill to safeguard the dignity, the respect and the care of vulnerable Victorians in aged care settings. I note that it was a recommendation of the Royal Commission into Aged Care Quality and Safety, which I will talk about further in my contribution today.

I welcome the support of the opposition for this bill. I did think that there would be more opposition speakers given their discussions regarding the government business program in the debate earlier today, but alas I am on my feet and delighted to be contributing at this time in the debate.

I would really like to thank the many, many dedicated, skilled and hardworking staff across our aged care sector, who do such a great job in both our public and private aged care settings. In my electorate of Wendouree we have got Bupa Aged Care in Delacombe, we have got Nazareth House at Lake Wendouree, we have got Calvary Kelaston in Wendouree, we have got Pineview in Black Hill and a number of others in the neighbouring electorate of Eureka but particularly Mercy Place in Ballarat East. The aged care workforce plays such an important role in our community. I particularly want to acknowledge the many members of our multicultural communities as well who work in aged care. Many of them are the backbone of aged care in Victoria, and I really want to thank them for the roles that they do.

My mum, as many of you know, was a physiotherapist, and she worked predominantly with the youngest members of our community, in disability. But when I was in primary school she also worked at Nazareth House. So whenever there was a day off, guess where I spent it? It was with Mum at Nazareth House. So I spent a lot of time at Nazareth House, both there with Mum and with my grandmother Eileen Dickinson, who spent her final years at Nazareth House. So it is part of Ballarat and part of my electorate that I do have firsthand experience of, as well as that connection with Mum working at Nazzy, as we like to call it.

I wish to thank the Minister for Ageing and her ministerial office as well as the Department of Health for the work that they have completed in bringing this bill to the house. I can see that Kitty is in the house at the moment, who does a great job, as does Harriet, who was just here earlier – another outstanding member of the minister’s office.

I am proud that Victoria has the largest public sector aged care involvement of any state or territory in Australia, with over 171 facilities, 90 per cent of which are in regional and rural Victoria. In my electorate of Wendouree we have many, many public sector aged care beds, and across Ballarat Grampians Health operates 429 beds across 10 residential aged care facilities and more than 600 beds across the Grampians region. So the largest provider of public aged care comes from my health service, Grampians Health, one that I was very proud to be on the board of. Only Labor governments support these public sector residential aged care services by topping up Commonwealth funding to ensure appropriate access to care and maintenance of Victoria’s nurse-to-resident ratios that we are so proud of.

Our government also funds new and upgraded facilities, including over $500,000 for improvements to Talbot Place in my electorate of Wendouree. I have often visited Talbot Place, and it is really great to see that that investment continues to be put into Talbot Place so that it is a nice place in which to age and be cared for. This is one of several public sector residential aged care services in my electorate, and it is so important that the elderly members of my community have a place to access quality care and a comfortable, supportive and social place to live. Just while I am talking about Talbot Place, a shout-out to the wonderful members of the Sebastopol and District Lions Club, who recently transformed the outdoor area at Talbot Place with the assistance of Bunnings Delacombe and the Ballarat East Community Men’s Shed. It is fantastic to see local community groups contribute to our aged care residential homes, making them an even better place to live.

Additionally, the public sector residential aged care services, PSRACS, and the community kitchen garden initiative are brightening the lives of aged care residents through grants to construct and improve kitchen gardens at several local services. The grants program was established following recommendations from the Royal Commission into Aged Care Quality and Safety concerning community engagement, social isolation and resident wellbeing. It has led to $133,000 in grants for Grampians Health Ballarat Aged Care facilities, including Bill Crawford Lodge, Talbot Place aged care, Steele Haughton at the Queen Elizabeth Centre, James Thomas Court and Jack Lonsdale Lodge in Sebastopol, Hailey House in Ballarat North and the Queen Elizabeth Village Hostel and PS Hobson nursing home in Wendouree.

Since our government was elected it has invested over $700 million in Victoria’s public sector residential aged care. Older Victorians deserve our care and support, and I am proud that our government is investing in exactly that.

The bill which is before us for consideration today comes in the wake of the federal aged care legislative changes regarding the use of restrictive practices. In the aged care setting, restrictive practices are actions which restrict a person’s rights or freedom of movement. They include chemical restraints, which include medications prescribed with the purpose of managing behaviours rather than for management of a specific medical condition. They also include environmental restraints, mechanical restraints and physical restraints. Restrictive practices also include seclusion, which can only be used if all other options for behavioural management, including other restrictive practices, have been exhausted, so it really is to be done only as a matter of last resort. While all of these practices may be used in other circumstances or for other means, they become restrictive practices when they are specifically intended to modify a person’s practices. As such, they are to be used sparingly and only with great consideration. Restrictive practices must be a last resort, used only when necessary and implemented for as little time and with as little restriction as possible.

Oversight of aged care, including restrictive practices, is the responsibility of the Commonwealth. Changes to federal legislation in 2021 introduced a requirement for aged care providers to seek consent before implementing restrictive practices. This is applicable for the use of restrictive practices in all situations bar unanticipated emergencies, in which case other stringent disclosure and reporting requirements come into play. Who is able to provide or withhold consent on a care recipient’s behalf is determined by the Commonwealth’s temporary hierarchy and includes a succession of family members, carers, friends and others. But this hierarchy is only temporary while each individual state and territory organise their own processes for identifying substitute decision-makers, which is what this bill is all about and why we are debating it today.

This bill will introduce the new Aged Care Restrictive Practices Substitute Decision-maker Act 2024, in addition to amending the Victorian Civil and Administrative Tribunal Act 1998. Together these will clarify who may provide consent for the use of restrictive practices in Victoria under the Commonwealth Aged Care Act 1997. A bill overview in the last 30 seconds: a restrictive practices nominee is someone nominated in advance by the care recipients; a temporary restrictive practices substitute decision-maker is close family or a carer; a VCAT-appointed nominee is someone who has a close personal or professional relationship; and there is VCAT themselves. In closing, I welcome the Aged Care Restrictive Practices Substitute Decision-maker Bill, and I commend this bill to the house.

Pauline RICHARDS (Cranbourne) (16:53): Acting Speaker Kathage, I am so pleased to see you in the chair undertaking a really important role. I am very pleased to have the opportunity to rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, and I am always very pleased to follow on from the member for Wendouree, who has added a new word to my vernacular, which I will get to in a minute – I think it was Nazcare.

Juliana Addison interjected.

Pauline RICHARDS: Nazzy House. I am going to be talking about Nazzy House as well. I thought it was called Nazareth House, but it is now forever going to be called Nazzy House.

I am also going to pay credit to many of the speakers on this important bill. They have been really heartfelt about why aged care is extraordinarily important, and I will pay credit to the many people who have made contributions.

I do want to firstly thank the Minister for Ageing in the other place for the always detailed and cautious and considered role that she undertakes as a legislator, and this is another example of what is really important. With the member for South-West Coast here I do want to pay credit for the contribution that was made on this bill earlier. It was really important to be able to hear those really heartfelt contributions, and I was listening carefully, so I pay credit to her for that. Of course, I was also pleased to hear the Member for Tarneit and others and, as I said, the Member for Wendouree.

I rise to support this bill, which will establish a hierarchy of decision-makers that aged care providers must refer to when identifying who can act as a restrictive practices substitute decision-maker under the Commonwealth Aged Care Act 1997. It will give the Victorian Civil and Administrative Tribunal powers to make orders to oversee the appointment of decision-makers, resolve disputes and act as a decision-maker of last resort. This bill also creates new offences for inducing a decision-making nomination or fraudulently acting as a decision-maker.

I have some very important stakeholders in my life. I often talk about those stakeholders, and I am going to, before moving on to other elements of this bill, make sure that I acquit the consideration of my mother and my mother’s contribution on this bill. I do not think my mother would mind me saying she is 92 years old and was singing Kumbaya to a group of a hundred of my brother’s nearest and dearest on Sunday at my brother’s 60th birthday. To say she is well and full of the joy of life would be an understatement. We did hear Kumbaya a lot as children. So when I saw that my brother had a muso performing at his 60th – and happy birthday, Marty – we were not surprised to find my mother getting pretty close to that singer-songwriter and taking the opportunity to contribute what I know to be a tune that is not just important to my childhood but something that was well received by the 100 or so people of my age who were there.

My mother is currently living her best life in Nazareth House in Camberwell. The text conversation I had with my mother – my mum Margaret – was to ask if she wanted me to say something about the people she lives with and the care that she receives, and my mother very enthusiastically texted back with great speed, as is her inclination, and asked me to single out Jenny Emmanoulidis, who is the manager at Nazareth House; the Sisters of Nazareth broadly; and particularly Sister Margaret, who does not just share my mother’s first name but also shares a great joy in life. When I visited last, on Cup Day, there was great enthusiasm as everyone was watching the cup wearing hats, and there was a great sweep being undertaken.

What I now know to be, from the member for Wendouree, referred to as Nazzy House but I thought of as Nazareth House is a place where there is great care, great love and great consideration. From the writing group to every other activity that you could imagine that takes place there, this is a place full of life and full of joy. So thank you, Nazareth House, for the wonderful care that goes into consideration for my mother. My father, before he passed away, had been at Samarinda. Bob Stensholt is the chair at Samarinda. Bob Stensholt is somebody who is known well to many people in this place, and I can tell you that the role he played at Samarinda was incredibly important. That is me making sure that the important stakeholders in my family know that they are on my mind and certainly are people I consult with when it comes to this important legislation.

Back to the community I serve in Cranbourne – which we know is a large and growing community – it is a young community but it also has a great many aged care facilities. There are some community members that I consult with always when it comes to aged care, and so with this legislation, as usual, I heard from Liz Barton, who is a very formidable previous member. She is a retired nurse. I am going to say ‘retired’ in inverted commas because although she is theoretically retired, she is very busy and very active. One of the many parts of her excellent work is as part of the Aged Care Justice group.

She was a palliative care nurse and now actually also is grandmother, and I was very pleased to have a very fulsome set of questions from Liz, because she wanted to get to the absolute detail of what this legislation does and how it impacts on people in aged care. I am always interested in what Liz has to say, and I know the minister for aged care has taken the time as well to meet with Liz, because it is people who are at the front line, including people who are retired nurses, who we ought to listen to to make sure that when we are formulating policies and legislation we are getting the levers right. It also gives me an opportunity to say how always grateful I am to Hannah Spanswick, of course previously the state assistant secretary of the Australian Nursing and Midwifery Federation, for the important work she does in bringing me up to speed on what is happening in aged care, somebody well known to many of us as well.

Back to this legislation, of course this does fulfil a legislative gap. We know that there was an important Royal Commission into Aged Care Quality and Safety. I do note it was a royal commission that went for many years and was a really incredibly detailed piece of work, and I do commend those people who did make contributions to the royal commission into aged care. We know that this legislation does in fact respond to one of the recommendations of the royal commission. In 2021 the Commonwealth government implemented its legislative amendments to how restrictive practices are regulated in residential aged care settings, with a new requirement for aged care providers to seek informed consent from the care recipient or their substitute decision-maker before they can use restrictive practices. This bill will introduce rules that will require informed consent in aged care, but this temporary hierarchy for decision-makers that is set in place by the Commonwealth is set to expire, so without this bill there would be uncertainty in Victoria about who can make decisions on behalf of aged care residents when they lack the capacity to do so.

So again, we are given the opportunity to understand that this bill will give the Victorian Civil and Administrative Tribunal powers to make orders to oversee the appointment of decision-makers, resolve disputes and act as a decision-maker of last resort. I could not help but check the hierarchy of decision-makers, and as the youngest child in a family of four, I was curious to see how the hierarchy works. Maybe this is an opportunity for me to thank my oldest sister, who has really been a person who has stepped in in so many ways. Next of kin is defined in the legislation as ‘the spouse or domestic partner of the care recipient’. In the context of my family, as with so many, my mother is widowed, so the primary carer of the care recipient obviously logically would be the next person, and then the oldest adult child of the care recipient. My sister certainly fills that role with extraordinary care and love and sacrifice indeed in my family, and I am conscious of that, especially in the context of me being the youngest in the family, so in terms of it being in descending order, it does feel like perhaps sometimes that burden falls very much to those that are the oldest in families.

Just in the last seconds I have got left, I am very pleased about the role our government is taking in providing culturally appropriate care. Indian aged care – expressions of interest have gone out on that particular really important commitment. I commend this bill to the house.

Luba GRIGOROVITCH (Kororoit) (17:04): I stand quite proudly to speak to this bill, and I do so because it obviously takes in part of our most vulnerable cohort in society. I think anything increasing the quality of life for our eldest Victorians is of the utmost importance, and the rights of older Victorians are also incredibly important. I want to thank all of the aged care workers out there. They do an incredible job day in, day out, and it is not something that is easy. I also want to thank the minister in the other place for all of the work that has gone towards this.

But before I do go into the substantial part of the bill, I want to talk about and acknowledge the tragic death of a man at his workplace yesterday and the horrifying circumstances surrounding it. I do so because early yesterday morning a 36-year-old installation technician was crushed to death beneath a turbine blade while performing his work at the Golden Plains Wind Farm in Rokewood, west of Geelong.

The turbine supplier is the company Vestas, and just two weeks ago union delegates from three different unions had met with Vestas to raise serious safety concerns, telling Vestas it was only dumb luck that nobody had been killed yet onsite. I am told that their near misses had been happening at the Golden Plains site since day one, and this is just tragic and completely unacceptable. In September small parts fell from some turbines, triggering a WorkSafe investigation, and yet even after being alerted by these unions it is clear that Vestas chose to neglect their duty to deliver adequate health and safety standards for the workers on site. As a consequence this man will never go home to see his parents, his family or his friends again.

Every workplace death is preventable, and it is clear that this man’s death was preventable. I hope that the WorkSafe investigation into this will bring complete answers and justice. This tragic incident highlights yet again the crucial role which unions play in upholding health and safety standards, not just for the workers who belong to them but crucially also for the people who use these worker services. I raise this in speaking to this bill because every worker deserves to go to work to be safe, to be respected at work and most importantly to come home safe from work. This is no truer than in aged care, where our incredible aged care workers, together with their union, the mighty Health Services Union, help look after the elderly and help to provide them with a good quality of life in every way imaginable. It is part of why I am so proud to speak to this legislation today, the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. This bill establishes a hierarchy of decision-makers that aged care providers must refer to when identifying who can act as a restrictive practices substitute decision-maker under the Commonwealth’s Aged Care Act 1997. The bill will give the Victorian Civil and Administrative Tribunal powers to make orders to oversee the appointment of decision-makers, resolve disputes and act as a decision-maker of last resort. The bill also creates new offences for inducing a decision-making nomination or fraudulently acting as a decision-maker.

My grandpa was in an aged care facility prior to passing, St George’s nursing home in Altona Meadows. It was a wonderful facility, and the nurses there were really salt of the earth people. They were fantastic, looking after him day and night. Unfortunately my grandpa Beepa had dementia. He was never abusive or anything like that, but I must say he was incredibly forgetful. However, there is no way that my family or he would ever want to think that he would be abusive or nasty to any of the staff, and I am so pleased that that did not happen. None of us would want that for any of our family members or for our older Victorians, who we all look after and care for so deeply. By introducing this legislation our hope is that the life of the patient, the family and of course the worker will be made better.

In response to the Royal Commission into Aged Care Quality and Safety the Commonwealth introduced new requirements for restrictive practices to be used only with the informed consent of the aged care recipient. For aged care residents who may not have capacity to make decisions, such as in the case of advanced dementia, a substitute decision-maker can provide this consent. Unlike other jurisdictions, Victoria does not have legislation that explicitly authorises substitute decision-makers to consent to the use of restrictive practices in residential aged care. This is why we have progressed this bill to clarify who in Victoria can act as restrictive practices substitute decision-makers. This bill is necessary to ensure that care recipients in residential aged care settings have choice – choice in who they want to act as a substitute decision-maker and, where there is no nominee, who can be appointed as a substitute decision-maker. It will ensure that residents can trust that, should the time come, a loved one will be able to act in their best interests.

This bill in no way overrides the Commonwealth legislation, but rather it will ensure that all residential aged care providers are able to be compliant with its requirements. Under the Commonwealth Aged Care Act 1997 there are five categories of restrictive practices. These are chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion. Restrictive practices can be used only where necessary for the least amount of time in the least restrictive form and only as a last resort, where all other options have been explored.

Recently I visited Arcare Aged Care facility, which is in Burnside in my electorate of Kororoit. I was the guest of honour at a morning tea, and it was a wonderful afternoon. I enjoyed chatting to the residents about a range of issues, and I am due to visit there again just prior to Christmas. I look forward to discussing this legislation with them at that time so that they properly know their rights.

Victoria currently does not have legislation to authorise substitute decision-makers. The Commonwealth introduced a temporary hierarchy to guide the identification and appointment of a decision-maker based on proximity and personal connection to the resident, and consequently Victoria has had the temporary hierarchy in place since 2022. The hierarchy within the bill will operate very similarly to that of the Commonwealth’s temporary legislative instrument. This bill will form a clear framework for identifying who can act as a restrictive practices substitute decision-maker by prescribing a hierarchy of decision-makers based largely on close and personal relationships. Under this bill, decision-makers will be identified in the following order: substitute decision-makers, a next of kin and a decision-maker appointed by VCAT should there be no other decision-makers made available. The bill differs from the temporary arrangement by providing more clarity around how the next of kin is defined and how an aged care provider can identify one person from several potential decision-makers through a clear order of priority based on proximity of relationships. As a very last resort, VCAT will be able to also make decisions to authorise restrictive practices if there are no other suitable decision-makers available.

This approach enshrines a person-centred approach by prioritising the nomination of an aged care resident in the first instance. Aged care residents will also be able to document their preferences for the decision-maker to consider when making these decisions. The decision-maker must be willing to and able to act at a time a decision is required. If there is no nomination 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 order of the hierarchy. Importantly, providers cannot shop around for consent – that is, they cannot move to the next tier of hierarchy simply because a decision-maker withholds consent. A decision to provide or withhold consent by a valid substitute decision-maker must be respected. Most crucially, this bill provides a permanent solution to the legislative gap, providing aged care recipients, their loved ones and supporters and aged care providers certainty around substitute decision-making appointments. As a very last resort, VCAT will be able to make decisions to authorise restrictive practices if there are no other suitable decisions.

This legislation is fantastic: it is working with organisations, it is talking to communities and it is wanting the very best care for our loved ones at the age that they crucially need it. Our most vulnerable Victorians are of course our youngest ones and our oldest ones, and this legislation makes sure that we look out for them. They are our most vulnerable in society. We need to give our elderly autonomy, and that is part of what this legislation aims to do. Thank you again to all of the aged care workers. These are rights for older Victorians and rights that they need. This legislation will help make aged care more humane and decent for everybody who uses it, and that means all of us when we reach the end of our lives. That is why I am so proud to commend this legislation today.

Martin CAMERON (Morwell) (17:13): I am thrilled to rise and talk about the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. I would firstly like to thank the member for East Gippsland for sitting down and actually taking us through what this means on our side of the house. It was great for him to be able to relay his story about his 98-year-old mother and to have someone that is going through those aged care issues now. It was great to be able to call on his knowledge about how this all does work. The one thing that we do know – I think everybody that stood up in this chamber spoke about it – is how we need to make sure that our ageing community, when they are in these situations, are respected as they travel through the later years of their life, and that if they are in need of some help, like going into aged care facilities, we have the structures in place to make sure that these do work.

Like everyone else, I give a shout-out to the workers that work in aged care, because it can be a tough job, and it can also be a very rewarding job as well. A big shout-out to them right across Victoria, but particularly in the Latrobe Valley and out through Gippsland. We have some wonderful organisations down there, and if you are lucky enough to have your parents as they get older in life, you want to return the favour of them looking after you when you were younger and you want to make sure that in their latter years they are well taken care of.

The bill stems from, obviously, the royal commission that was conducted. Back in the day we all did hear some horror stories. You would like to think now that we have weeded those institutions out. You have only got to see aged care facilities in my region now to know just how really wonderful they are for our ageing community and how they respectfully take care of our parents, whether it is both your parents going in or whether one of your parents has passed away and you need that full-time help and care for the other parent. We want to make sure, and I know I want to make sure, for anybody that has to reach in to our aged care services that it is done properly, it is done right and it is done respectfully.

In my job before this one I used to do a lot of plumbing inside aged care facilities.

Danny O’Brien interjected.

Martin CAMERON: It is how I got elected. They still all have to vote, member for Gippsland South. They all need to vote. If they can put a smiley face to their plumber who is running for Parliament, all the better. I have been inside these facilities and seen them firsthand. When you go in as a family you are sort of ushered around a little bit and into the room where your parents could be or into a common area. I was lucky enough to have access to virtually all areas in these facilities. Across the journey from when I first started there were a few dubious providers who fortunately are no longer with us. When you walk through now, from 18 months ago, you are able to see the food that these people eat and the conditions that they stay in and live in, and these are great facilities for them to be able to go and spend the latter years of their life. It gives you a lot of heart as a son looking after your elderly parents or your grandparents as they go through, so it is great that we are discussing this today.

In 2021 the former federal coalition 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 to give informed dissent. You always think to yourself that you are probably going to outlive your parents, and you can have that consent in place with whatever it is, whether it is going into an aged care facility or if they are living at home. But if we are inside that aged care facility, sometimes the people that are in there do not have that next of kin in place, so it is great to see we are putting protective areas around that. This was in response, as I said before, to the 2021 Royal Commission into Aged Care Quality and Safety. The member for Gippsland East spoke in his contribution about the substitute decision-makers preferably being nominated in advance in writing by the aged care residents to make sure that these services were all in place, if they had the time to be able to do it. Sometimes everyone is busy and you do not have these things in place, and unforeseen circumstances do take place.

I will pop back to my journey as a plumber because there is one story that I do have about when I was inside an aged care facility many, many years ago. There were two elderly gentlemen that sort of did not get on a lot, and they used to do some not terrible stuff to each other but they used to want to upset each other.

One of these gentlemen had a massive, big Australian flag in his room. It went missing one day and it was missing for about two weeks. I was called in to unblock a toilet in the facility, so I went in there and we ended up having to dig it up. The flag that I pulled out of the drain, which had been put in by one particular gentleman because he was having terse words with another particular gentleman, must have taken him days to flush down this toilet, because the flag was huge. He did get the flag down there, and I did get it out, and it was washed and returned to this particular resident in an aged care facility in Traralgon. So they do have a sense of humour at some stages, but retribution, I am told, was swiftly sought, and the perpetrator of the flag incident might have found that his clothes when they were returned may have been a little bit itchy when he did put his clothes on the following week. So they do have some fun inside these areas. I hope that if I get to the stage where I am in an aged care facility I can have a sense of humour and provide light entertainment for the staff that are looking after me.

I do note the restrictive practices guidelines. This might come in for me. It might be Martin from Morwell or it might be Wayne from Narracan that has to be locked out of certain areas because we are trying to get our hands on power tools and plumbing equipment because we are former tradies and we might think we are still up to being those tradies.

Danny O’Brien interjected.

Martin CAMERON: Farnham – he might be very close to needing to go in sometimes, the member for Narracan. We can see the overarching aspect of this bill is making sure that we do have certain safety measures in place for our elderly. Hopefully, everyone here will move through and live to a ripe old age, and it might be that we do need to be in these facilities. I do hope that these particular changes that we do make today as we speak about this bill – I said before and the member for Gippsland East said we support this bill going through so we can have these safety measures in place. The one thing we do know is we are all going to age, and age gracefully, hopefully –

Jade Benham: Not me.

Martin CAMERON: No, maybe not the member for Mildura. Maybe the processes we are putting in today we might be needing to use. So, as I said, we support the bill and commend it to the house.

Steve McGHIE (Melton) (17:23): Today I rise to contribute to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. It probably will not surprise many in the house that aged care is very important to me. Every day it gets a bit more important, and just listening to the member for Morwell I think if I went into an aged care facility I probably would not be let out. I think they would go for restraints straightaway, but not to worry – I will stay away from those places.

Firstly, I want to thank the Minister for Ageing, Minister Stitt in the other place, and her staff for bringing this bill forward. I really appreciate that, and it is timely that this bill is brought on today. The bill introduces a structured hierarchy of substitute decision-makers in Victoria for restrictive practices in residential aged care, which brings us into alignment with the Commonwealth’s Aged Care Act 1997. Of course the Council on the Ageing support this bill, and I think that is great.

I am just going to go back to the 1980s and 90s and my days as a paramedic and the experiences that I had with aged care facilities. We heard some terrible stories before the royal commission. My experiences were that all of the things that we are talking about today in regard to restrictive practices occurred, and I witnessed them on many occasions, going in and out of aged care facilities: the residents being tied to chairs for most of the day with a meal stuck in front of them, some of them with their face down in the meal and not even being helped to feed, and restraints and rails on beds and things like that, restraining them. Of course some of this was under the premise of the safety of those individuals or safety of staff or safety of other residents, and there is no doubt there were some situations where it was about safety. We see a lot of aged care facilities now that are almost gated facilities because of the safety of the residents, because a number of them do go wandering, and it is really hard.

What is important is that they have enough staff, and the extension of the nurse–patient ratio was really important in regard to having qualified staff to deal with the clinical and the medical situations of the residents within these facilities. While COVID was terrible at the time, I suppose one thing that came out of COVID was that it continued to highlight the issues in aged care facilities and some of the terrible circumstances – you know, putting our elderly people behind bricks and mortar. I have got to suggest that in aged care, like any health and welfare thing, profits should not come before people. Surely people’s welfare is the priority, and profits should not be part of the equation. As I said, the extension of the nurse–patient ratio in aged care facilities has been very helpful. On a day shift now I think it is one to seven, and a nurse has to be in charge during the day in public aged care.

Of course, as has already been raised, there are the staff that work in aged care. It is a really demanding area. Just on that, there was an Australian government workforce report back in 2016, and more than 52 per cent of people living in permanent residential aged care had dementia and nearly half had depression. It just goes to show the types of residents that we are talking about and the conditions that they have and how difficult it might be. If we turn the clock back to 1998, 60 per cent of the residents needed high care, but that grew to 83.5 per cent in 2016. I would hate to think what it is today. As I said, those figures came about from the workforce data report conducted by the federal government at the time.

This legislation will help protect residents’ rights, allowing them to choose trusted individuals to make future decisions, and it will ensure aged care providers operate within the Commonwealth guidelines. It is clearly about care, dignity and respect, and that is the fundamental thing. Respect has got to be the key issue in dealing with the residents of aged care facilities.

The bill addresses a legislative gap in Victoria that arose after the Commonwealth amended the Aged Care Act 1997, requiring informed consent from substitute decision-makers for the use of restrictive practices when an aged care resident lacks capacity. Of course those restrictive practices, like chemical, environmental, mechanical and physical restraints, as well as seclusion, should only be used as a last resort. As I said before, in my experience of going into aged care facilities I have seen all of those aspects being used on residents, and sometimes not for a last-resort situation; they were being used as a priority to be able to manage the numbers of people within those facilities and also, the staff would say, for their own safety. But it was more about not having enough staff in the facilities to be able to deal with the number of residents and with the complexities of the interactions between the residents.

The member for Morwell referred to a story about two gentlemen and the flag down the toilet and all that sort of stuff. You could write a book with some of the stories about aged care facilities and how residents relate to each other, in more ways than one – and intimately relate to each other, whether they like it or not. People wander through the residences at different times, and we have seen serious cases in regard to the interactions of some of the residents.

The bill introduces two new criminal offences, specifically making it a crime for someone to induce through dishonesty, undue influence or threats a substitute decision-maker nomination; and knowingly make a false or misleading statement in relation to another person’s substitute decision-maker nomination or attempted substitute decision-maker nomination. These offences ensure that any individual who coerces or forces a decision-maker appointment or fraudulently acts as a substitute decision-maker can be held accountable for their actions and will face the justice system.

Restrictive practices in aged care are measures that limit a resident’s rights or freedom of movement and are intended to manage behaviours that can pose safety risks. As I say, historically we have hidden behind the issue of safety as the priority reason for doing some of these things in regard to these restrictive practices. The Commonwealth Aged Care Act 1997 has defined it and characterises these practices into five types, and we referred to them previously: chemical restraint broadly encompasses medications; environmental restraints like locked doors; mechanical restraints like harnesses or bed rails; physical restraints, which includes the use of force when necessary; and of course seclusion, which was utilised quite regularly. All the above are utilised regularly, even up to this day.

Under the Aged Care Act the use of chemical restraints is permitted only when a medical practitioner has prescribed the medication specifically for this purpose and informed consent has been obtained from either the aged care recipient or their substitute decision-maker. Medical practitioners are required to adhere to all the legal obligations regarding prescriptions in these circumstances. As I say, previously it was utilised to make it more convenient for the medicos or for the staff or for the aged care facility to be able to manage the number of residents and the complexities around their issues.

It would be remiss of me not to mention the incredible work of our very own former commissioner for senior Victorians Gerard Mansour. Mr Mansour had four terms over a period of 10 years. He served as our first commissioner for senior Victorians and acted as a vital conduit between the community and the Victorian government. His work for senior Victorians and his advocacy against elder abuse is surely something that I am going to appreciate every day for a long time. I think some of the things that he did have made it a much better place for aged care residents.

This bill is really important. I am pleased it has come on this week. I commend the minister in regard to bringing this bill forward. This is about the protection of people within residential aged care, and that should be the priority. I commend this bill to the house.

Natalie HUTCHINS (Sydenham – Minister for Jobs and Industry, Minister for Treaty and First Peoples, Minister for Women) (17:33): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned until later this day.