Tuesday, 12 November 2024

Aged Care Restrictive Practices Substitute Decision-maker Bill 2024

Second reading

Debate resumed on motion of Mary-Anne Thomas:

That this bill be now read a second time.

Jade BENHAM (Mildura) (17:37): I am more than happy to rise today to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, because once you start thinking about aged care this is something that, speaking to the member for Gippsland East, the sector is supportive of. But it has been heartbreaking and gut-wrenching to listen to some personal stories, particularly from the member for South-West Coast earlier today – stories regarding the need for this legislation, even though it does not come into effect until 1 July next year.

The bill’s sole objective of course is to establish the framework for the appointment of substitute decision-makers to authorise the use of restrictive practices where a resident lacks capacity and who can act as restrictive practices substitute decision-makers. It was heartbreaking listening to the member for South-West Coast, and I thought it would also give me an opportunity to talk about my maternal grandmother, who went through the aged care system from one facility to the next over a 15-year, probably more like a 20-year, diagnosis period of Alzheimer’s.

I saw the challenges that my own mother faced as her main caregiver in not only trying to get her into the right care in regional and rural Victoria but find appropriate care for someone who was slowly declining and in the very early stages of Alzheimer’s. It is a slow and gradual decline, and some days you have to laugh, otherwise you will cry. It is difficult to find appropriate care. The only facility, after Nan had lived with us for, gosh, a number of years, was an hour and a bit down the road, so my mum every weekend would drive an hour to see her, to take her clothes and all of that kind of stuff, and then after she broke her hip she was moved to the Swan Hill District Health extended care unit (ECU).

There have been many members today acknowledging the staff that they have had interactions with in the aged care sector. I know Selina is still at Swan Hill District Health, and my mum in particular is very, very grateful to Selina for the care and the rest of the staff as well both at Northaven and Swan Hill District Health. But I think my sister and I, given there are only the two of us, are eternally grateful to my mother for the care that she showed too and the challenges that she had to face with being that sole caregiver, despite her brothers being around but located all over the state. I was located overseas and in Melbourne for much of that time. So my mother was really left on her own to face this on her own. It is hard watching your parent go through that.

My grandmother was a powerhouse of a woman. She grew up in Natya. She was the daughter of a World War I veteran who was allocated some land after winning a military medal. They lived in Kooloonong, and she went to the Natya school, which is long gone. But she was a powerhouse, and she was beautiful, looking at old photos. She was an A-grade netball umpire, the only one in northern Victoria at that stage for a long, long time. It took until the 1980s or 1990s until some followed in her footsteps. Watching someone like that, who has been so vivacious throughout their entire life – and the decline, like I said, is so gradual in something like Alzheimer’s, and every case is obviously very, very different – and full of life completely lose the capacity to understand that the person in the mirror that she is talking to and calls the ‘old woman’ is her, when she still believes that she is a 15-year-old girl on the farm, is really challenging. And essentially there was only my dad to support Mum. I think my sister and I are eternally grateful for everything that she did. Nan actually died while I was living overseas many years ago. And she had by then lost – she had not recognised me for a long time. She recognised my dad but did not recognise Mum a lot. But ageing is such an awful process. Like I said, I am not going to age gracefully. A long as I have the capacity to, I am going to do it as disgracefully as I possibly can. So now that is on the record too.

But I did just want to take a moment to recognise not only the frontline staff that care for our ageing and our elderly but the family members who are the silent heroes in the aged care sector. We try to keep them at home for as long as we can, and that is getting easier. This was – gosh, I was overseas – 20 years ago, and there was no choice of facility, there was no choice of doctors. There was no choice of anything, really, and trying to get the ability of power of attorney or a decision-maker was really tough. Even getting any sort of consultation was really tough. So it is not only our aged care workers ‍– who certainly will have some stories to tell, as well as the plumbers and the tradies that service these facilities – but the family members who are often the silent heroes, who dedicate so much of their lives.

When Nan went into the ECU Mum was in there every night to feed her, to take her treats. That was every single night, and then on weekends they would have outings, all while she was working. She was a real estate agent at the time and then bought into a small business. It is hard, and I do not think anyone has ever really acknowledged that. I just wanted to get that on the record and also to offer my support for this bill.

The Royal Commission into Aged Care Quality and Safety stated that restrictive practices had been identified as a problem in aged care for over 20 years, so we are making progress. You look back at some of the stories over the decades, and you can see why there has been inappropriate use or unsafe restrictive practices in aged care. Recommendation 17(b)(v) also adds that they can only be used:

in accordance with … State or Territory laws and with the documented informed consent of the person receiving care or someone authorised by law to give consent on that person’s behalf

Hopefully this will close a gap. There is still work to do in the aged care sector, but we are making progress. Again, I acknowledge the contribution by the member for South-West Coast. The carers and family members really are everyday heroes. Life – jeez, it is difficult when those loved ones are at that stage, but you are needed. I commend the efforts of everyone that cares for family members at that stage of life.

Chris COUZENS (Geelong) (17:46): I am pleased to rise to contribute to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. Can I start by thanking Minister Stitt in the other place and her team for this important work that they have done. I have to say I followed the Royal Commission into Aged Care Quality and Safety – it was a very long royal commission from memory – and listened to some of that evidence that was given. Like pretty much everyone in this country, I was shocked at some of the stories we heard. As the member for Melton in his contribution mentioned, people were being tied to chairs and food was put in front of them. These were horrific stories that we were hearing. I think we must do whatever we can to ensure that those most vulnerable people in our community are kept safe where you would expect them to be in a safe and secure environment – that that is always maintained. And we must ensure that older people, as I said, who are some of the most vulnerable people in our community, get what they deserve, and that is a safe, secure and comfortable environment where they are cared for.

We know that in response to the royal commission, which was 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. Obviously because of the evidence that was given, this was a recommendation that was taken seriously. We have taken it seriously here in Victoria, and we believe that for aged care residents who may not have capacity to make decisions, such as in cases of advanced dementia, a substitute decision-maker can provide that consent.

Having had both of my parents in nursing homes in recent years – my mother died during COVID in a nursing home, not from COVID, and then my father at a later time went into an aged care facility and died some months later – I have to say that the care they received was exceptional. I had no concerns with that.

In the Geelong region we have a number of state providers in aged care who do an absolutely incredible job. We have the McKellar Centre run by Barwon Health, which is a fantastic facility. They provide the best possible level of aged care at their North Geelong site but also around the region, so a huge shout-out to them.

I think when we are talking about these things we need to be talking about the workforce as well and the incredible work that they do every day looking after people in aged care facilities. Most are highly skilled and want to do the right thing, but we did hear during the royal commission that there were people employed that had no experience in aged care and that actually were doing the wrong things, but doing the wrong things without realising it. In those facilities, which were basically run by the Commonwealth, we saw what happened during the COVID period as well.

A bill like this is about ensuring that we do whatever is possible. I know our state-run facilities are very safe, secure environments for older people, for vulnerable people. It is really important that we continue to provide that. I think Victoria provides the most state aged care facilities in the country, so we know the importance of it and we know the importance of nurse-to-patient ratios. We introduced that legislation some years back. These are really important components to providing that safe care, and we know that because we heard some of the horror stories during that royal commission of people living in aged care that did not have a qualified nurse in the facility or did not have anybody with any qualifications. Some of the serious issues that occurred occurred because people that were working in those facilities were not qualified and did not have any understanding of what was meant to be happening, whether it was medication or just general care – ensuring that people were not left in their beds for days on end. All those things came to light through that royal commission.

For aged care residents it is really important for them if they do not have the capacity to make those decisions that they have somebody that can. 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 a restrictive practices substitute decision-maker.

As I said, the evidence that was given to the royal commission really reminds us of our responsibility to ensure that we do protect the most vulnerable in our community. As I said, I do want to give a shout-out to the aged care workers that are out there doing an amazing job every day. I know they are in our state facilities in my region. The work that they do and the support that they provide to those residents is incredible.

We want to make sure that older people can access the high-quality care that is appropriate for their needs and close to their home as well. Our public sector residential aged care services play an important role in ensuring that no matter who you are or where you live you can access the high-quality and safe care that you deserve. These services are an important safety net. They are often a provider of the last resort, providing care for residents with complex clinical needs or who are experiencing socio-economic disadvantage that would otherwise prevent them from accessing the care that they need and deserve. I think those state facilities are providing that care, particularly for low socio-economic people and their families. But I think in the royal commission, from what I recall, there were circumstances of private aged care providers not providing a great service to people in aged care. So I do not think it is a matter of who can pay and who cannot, I think it is a matter of making sure that we have regulations that protect older people – those most vulnerable in our community – and ensure that we are looking at every aspect possible – like in this bill, where if a person cannot make decisions themselves, someone is appointed to do that.

This is what this bill is all about, and that came about through the royal commission, which we know brought out many, many issues for those in our communities not just across Victoria but across the country, so dealing with those is really important.

Whilst the Commonwealth government is the primary funder and regulator of aged care services, Victoria has the largest public sector aged care footprint of any state or territory, and of course we are really proud of that, and I am really proud of what Barwon Health in my region contributes to our community of Geelong. Our public sector manages more than 5400 beds across 171 facilities in the state. Ninety per cent of these facilities are in rural and regional areas, and in more than 50 rural communities the service is the sole provider and a major employer in the town. Obviously, they are really important in those communities, and I think probably in those rural areas there is more scrutiny. People who live there are working there, and although Geelong is a big region, people do talk to each other about these sorts of things and what is happening in particular aged care facilities. I am really proud that in the Geelong region Barwon Health are providing those state-run facilities to the best of their ability. I commend the bill to the house.

Eden FOSTER (Mulgrave) (17:56): I am pleased today to rise in support of the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, and I thank the Minister for Ageing in the other place for this bill. Part of being a Labor member and being a part of this government is holding key values – recognising people’s autonomy, agency and dignity – and this is especially important for our ageing people. Our ageing Victorians have these rights too and deserve to be treated with respect, and that is what this bill seeks to ensure.

This Labor government has an excellent record when it comes to aged care and is not afraid to talk about it. Victoria’s public sector residential aged care services are vital to providing access to high-quality and safe aged care services for everyone, with the Victorian government being the largest public provider of residential aged care in Australia, managing 171 facilities and over 5400 beds. The Victorian government has invested a record-breaking amount in Victoria’s public sector residential aged care services, over $700 million, including more than $275 million to replace outdated aged care homes with modern and purpose-built facilities in metropolitan Melbourne.

But even more substantial than the metropolitan funding and additions is the Victorian government’s commitment to rural and regional public sector residential aged care services, contributing more than $370 million to replace and refurbish and $20 million as part of the facility renewals program. Ninety per cent of Victoria’s public sector residential aged care services are facilities that are in rural and regional areas, filling what would otherwise be an aged care shortfall in Victoria. They are the sole provider in over 50 regional communities, whilst also providing a key source of employment.

Central to this bill is honouring the values of dignity, autonomy and agency for our older Victorians. During my time as the member for Mulgrave I have come into contact with many ageing Victorians who are living wonderfully fulfilling lives. I was privileged enough to visit the Sir Weary Dunlop retirement village and aged care in Wheelers Hill to witness the great work being done there. I came at one of the best times too: every Thursday at 4 pm residents of the retirement village enjoy a beverage and a chance to connect with fellow residents in a relaxed environment, allowing for social interactions and leisure time, which all Victorians have the right to.

Dignity, autonomy and agency are important things and are central to the bill in seeking to bring requirements for restrictive practices into line with the Royal Commission into Aged Care Quality and Safety. With this in mind the bill seeks to ensure that informed consent is central to when restrictive practices are used, whilst acknowledging that not all aged care residents may have the ability to fully consent. In an ideal circumstance all aged care residents would have a clearly written decision-maker nominee when it comes to restrictive practices, but we understand that sometimes circumstances are out of our control.

Medical issues can move very fast, as I am personally experiencing. One minute you are fit and healthy and the next minute you get the call from your specialist to say you have cancer. We never know when and how health issues may affect us, and as it stands, Victoria does not currently have legislation that accounts for this when it comes to restrictive practices.

This is why this bill will establish a hierarchy of decision-makers who can act in Victoria as restrictive practice decision-makers, because at times in aged care, like for those with dementia, you may not be able to consent – hence the importance of substitute decision-makers. The proposed hierarchy will include at first a substitute decision-maker nominee, someone who the aged care resident has personally nominated in advance through writing. In the event that no nominee has been written down by the aged care resident in advance, next is someone who is the next of kin, who has a close and continuing relationship with the care recipient and who is willing and reasonably available to make restrictive practice decisions on behalf of the resident. This can include the resident’s spouse or domestic partner, their primary carer, their children, their parents or their siblings. If an aged care patient has no next of kin, VCAT will have the authority to pick a decision-maker and as a last resort can operate if appropriate as a substitute decision-maker. This may be complex, but again, it is important that dignity, agency and respect is exercised for Victorians in aged care homes, especially when restrictive practices are being used. The hierarchy has the depth to ensure that the aged care resident is foregrounded in choosing a decision-maker and ensuring as much autonomy can be afforded to the resident as possible.

Of particular importance is the care that was taken in drafting this bill. This includes the provision that states those with a family violence order cannot act as the decision-maker. This is consistent with the Allan Labor government’s approach to the prevention of family violence, which is leading the nation in prevention. The Allan Labor government has already implemented all 227 recommendations of the Royal Commission into Family Violence. The Allan Labor government’s ambitious agenda of reforms included the creation of Respect Victoria, the first ever agency dedicated to preventing violence and family violence, as well as opening 36 Orange Doors and implementing new minimum lengths for family violence intervention orders. Through all legislation the Allan Labor government is cognisant of the effects that the scourge of violence and family violence has on the community and individuals. There may be some on the other side that perhaps might oppose this bill, but I am hearing that there is collaboration here and agreement with this, which is fantastic to see.

I can assure those that might have some questions about this that safeguards have been put in place. This government has read the shocking findings of the royal commission and is fully aware that some older people may be vulnerable to elder abuse and coercive control, and this government is seeking to do whatever it can to minimise conditions where that can happen. As part of the bill’s safeguards, on top of family violence order provisions there are also provisions surrounding employees or agents of the aged care provider, ensuring that anyone involved in restrictive practice, be it assessing or executing restrictive practices, will not be able to act as a substitute decision-maker. The bill also includes two new criminal offences to protect vulnerable older people, with offences that will ensure that those coercing or forcing decision-maker appointments, or those that seek to fraudulently act as substitute decision-makers, will be held accountable and punished for seeking to compromise vulnerable older people. This includes making it a crime to induce, using threats or dishonesty, a substitute decision-maker or to make false or misleading statements knowingly in relation to another person’s substitute decision-maker nomination or attempted substitute decision-maker nomination.

I would also like to give a special shout-out to some of the public sector residential aged care services that Monash Health in my area delivers and that assist many of the families in the Mulgrave electorate. The Allambie Nursing Home, the Kingston Centre, the Mooraleigh Hostel, the Chestnut Gardens aged care home and the Yarraman Nursing Home are all so vital to the south-east’s aged care support, and I thank all those that play a role in working in these facilities.

Again, it is the workforce in these facilities that make them the best in Australia. These facilities are all supported by nation-leading nurse-to-resident ratios, with staff that are all paid above enterprise bargaining agreement rates. The care provided by this workforce is what allows for the high quality seen in Victoria, with a special emphasis on the nurse-to-resident ratios and the minimum staffing ratios.

It is also important not to misinterpret key elements of this bill. This bill does not regulate how restrictive practices are being applied and used; this remains the responsibility of the Commonwealth. This bill does not legislate how but instead focuses on the framework of how those who cannot consent to restrictive practices still can have some sense of personal agency through the selection of an authorised decision-maker.

I would like to finish by foregrounding and making clear the central themes of this bill. It is about autonomy, it is about agency, and at its core it is about dignity – treating each other with dignity and respecting one another. This is what is central to the bill, providing this to our older people, and I commend this bill to the house.

Matt FREGON (Ashwood) (18:06): I rise this afternoon to make a contribution on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. In its essence, as discussed by others, this bill will establish a hierarchy of decision-makers who can act in Victoria as restrictive practices substitute decision-makers in residential aged care. What does that actually mean on the ground for people who either are coming to the twilight of their lives or have family who are doing so? It is one of those parts of our lives where you do not really know what you need until you need it.

My family has had a little bit of experience with the aged care sector in the last five or six years. My father, who passed away earlier this year, had frontotemporal dementia for the last five years. As a family we have gone from the very start of that to using every assistance that our wonderful system can provide, and it did highlight some of the challenges that our society has with our aged care sector.

I guess I will make my comments in regard to the substitute decision-makers in this bill. Preferably, decisions would be made by the aged care recipient themselves, when they can, to dictate what will happen with them. I think it is crucial that that agency is enshrined for people. With a family like mine, where my grandfather got dementia and my father got dementia – I have got something to look forward to; hopefully not for a little while – I can imagine that in maybe 20 years from now I am going to have to start thinking about, ‘What if this happens to me?’ And my family and my kids will have to be thinking the same thing.

In the case of my grandfather, he would come in and out of his dementia and he would realise what was happening sometimes, and he did not like it too much. I can remember – this is going back 20 or 30 years now – I got a call. I was living with my grandparents at the time. My pop was not that well, and I got a call from my nan, who was in tears – I was at work – because he had thrown an axe at Nan. To put it in picture, Pop was about 80. I do not think he had thrown the axe too far, but when it came to restrictive practices, hiding sharp implements was a good step at that time in our family, because for people with dementia, like in the case of my grandfather, when they realise what is happening, it is not a lot of fun, and so they can act out.

So there are times when you do need to have restrictions on those people, whether they be, as the bill specifies, chemical restraints; environmental restraints, like the use of locked doors; mechanical restraints, such as the use of harnesses or bed rails; or physical restraints. Nobody wants to do those things to anybody, but the reality is that sometimes it is necessary. There was another time that my nan rang – I was at work as well – because he had thrown a TV. Again, I do not think he threw the TV too hard or too far. But it does highlight that as much as we do not want to restrict anyone’s freedom, no matter what their medical situation, there are times when it needs to be done. I go back to the order of precedence in this. It is very important – especially if you are looking forward, obviously not longingly, to a potential prognosis of you losing yourself in dementia – to give people more agency at the start of that disease to know who they are entrusting. Obviously that is the most important choice.

In the case of my father, who had frontotemporal dementia, by the time we realised that there was something really going on, he probably did not have the cognisance to really make those choices. My mother would not have had it any other way, as a lot of people would not, and she would not let him go into a home. She looked after him for five years, and that was easier at the start and very difficult at the end. There was no question in our circumstances who would be in charge, but that does not work for everybody – not everyone has what my father had. I had been doing the finances for five years. My sister happens to be a lawyer and does all the legal stuff, so that is handy. We had the power of attorney sorted out. We were in a very lucky position that we could be there and could assist Mum, but carers do so much work.

Having a next of kin identified based on close relationships, as it says in the bill, when that ability, like my father’s, is taken away from you by the disease that you have got, having the ability to know that it is someone close to you, it is someone you trust, and in a situation where a family can come together ‍– that is the next best thing. But not everyone has that either. There are times where practitioners, the state, need to come in because there is no-one else. I think our aged care sector and our aged care workers – whether they be public, private, faith-based organisations or whatever – by and large do everything they can to benefit the people that are in their care, and they do a fantastic job. While I have got the moment, I could not speak higher of the care and support that Uniting AgeWell gave my mother, and the family doctor – everyone chipped in.

I would say, though – and again this is federal, and I am not necessarily having a go at our federal government – that the current system for dementia that we have in funding care is not adequate to the costs of looking after someone, and we discovered this. For the last six months of my father’s life he was pretty well in a bed, or he would get moved to the chair in the morning and he would get moved back to the bed in the evening. He would be changed, he would be fed and we had care coming in. He worked as a pharmacist. He made good money. We were in a very luxurious position. We could afford to pay whatever it cost. He deserved all of that, and good on him. But for the last five or six months – again, we were looking after him at home, and there is a lot of privilege there – the cost to Mum effectively was about 16 grand a month.

Again, we could afford that, and I am not begrudging it. We got the money that we got from the government and then we paid whatever else it was, and he deserved every cent. But we are very lucky. Most people do not have anywhere near that amount of money to care for a loved one. Yet we all expect that we will have dignity for every day that we are on this earth. I think as a country we could do a little bit more in regard to funding for that care. As I said, I have no complaints with Uniting AgeWell. They were fantastic. It is a very stressful situation for people to go through end of life with a loved one, much more stressful if you happen to be the loved one themself. I am glad to hear that the opposition are with us on this; I appreciate that. I think it is a good bill. I commend it to the house.

Iwan WALTERS (Greenvale) (18:16): It is a pleasure to rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, particularly after the contribution of the Deputy Speaker. A lot of the themes that he discussed I think are resonant to all of us in this house who have had family members experience dementia. As I will reference later in my contribution, in the context of an ageing society the incidence of dementia is rising as a consequence of people living for longer. The shards of fate and the quirks of genetics mean that none of us really know what future awaits us, and in the context of aged care and dementia we do not know who among us may be afflicted by that disease in later years. There is that expectation that we will be treated with dignity, as we would wish our family members to be treated with dignity, so I thank the Deputy Speaker for his contribution.

I do at the outset pick up on some of his comments in relation to the federal responsibilities in this sphere. This is a very welcome bill and it is an important bill, and I am glad that it will enjoy bipartisan support, but the bill in itself does not provide for any regulation or oversight of the use of restrictive practices or aged care services more broadly. They are in the remit of the Commonwealth, primarily via the Aged Care Act 1997 and the amendments made to that subsequent to the Royal Commission into Aged Care Quality and Safety that was instigated by the previous federal government. That is in contrast to the regulation of restrictive practices in the context of disability services in Victoria, for example. Acting Speaker Mullahy, this Parliament has passed a number of pieces of legislation even in the time that you and I have been here, picking up on another royal commission, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, and the lessons out of that on the need for appropriate regulation and oversight of restrictive practices in disability accommodation and to ensure that they are there as a last resort. I think that last resort point is really critical, both in the context of disability services and accommodation and also in the context of aged care.

As the Deputy Speaker in his contribution referenced in the context of some of his family members, there are instances where people who are afflicted by dementia are confused and frightened and exhibit behaviours which they would not if they were, as it were, compos mentis and their previous selves, and that confusion and fear can lead to violence. There is a case before a New South Wales court at the moment of a tragic incident in Cooma, and I am not going to talk about that in too much detail because it is clearly sub judice. There is that story and so many others – including what the Deputy Speaker has talked about and what I have experienced in my own family – where loved ones demonstrate behaviours that are so divorced from what you would associate with their normal personality and where they exhibit that violence. It is born of confusion and fear from not knowing who they are or where they are.

I think it is important to say as well at the outset that that is the reality that aged care workers are grappling with on a daily basis. I pay tribute to our aged care workers in Victoria, many of whom are employed directly by the state government, who are providing care for the residents of the some 9000 ‍beds that are provided directly by the state government – disproportionately in rural and regional areas, where often that public aged care is the only form of care that is available in those towns. I thank those aged care workers for the incredibly important work that they do and the genuine care that they provide, because it is a difficult job, it is an important job and it is something which so many of us will come to depend on ourselves and so many of our family members either have depended or will depend upon. It is something that we owe a significant debt of gratitude for, because it is work that is not paid well enough. That is one of the findings, clearly, out of the royal commission. It has been an area that has had poor regulation and it is an area where the use of restrictive practices has been I think inadequately oversighted, to mangle a phrase. It is a really difficult environment, in part because of the challenging behaviours that some people living with dementia can exhibit.

We have heard a lot about the nature of this bill and the way in which it provides for a hierarchy of decision-makers and, as the Deputy Speaker again was saying in his contribution, seeks to provide agency to people while they have the capacity to use it and appoint nominees or nominate next of kin. This bill also provides as a last resort for decision-makers to be appointed by VCAT if there are no nominees or next of kin. It really provides clarity for the operators of aged care facilities and those who work within them and also includes new offences for inducing decision-making nomination or fraudulently acting as a decision-maker, so it really strengthens the consequences for malfeasance in this space, which is so important.

We know of course that the bill has its origins in that royal commission that I spoke of earlier. In Victoria we have had a temporary hierarchy in place since 2022 but no legislative underpinning for that hierarchy. It is so important that we bring that through this house and the other place as quickly as possible to provide certainty to the operators of aged care facilities and those who work within them but also confidence to families and indeed Victorians who may be ageing and, as with all of us, may find themselves living in residential aged care facilities in due course.

What I want to really dwell upon is the need for restrictive practices to be a last resort. As I say, the incidence of dementia in our community is growing. Because of the many advances that have been made in the fields of public health and preventable medicine, we are living, on average, for longer. The corollary of that longevity, though, is that the diseases of ageing are becoming more prevalent – diseases like dementia perhaps visibly, although maybe it is not visible. Maybe that is part of the problem. Maybe the fact that so many Victorians who live with dementia are living in residential aged care facilities means that it is not necessarily front of mind for us as legislators or the community more broadly, yet it is something which is so prevalent and will impact many of us directly in our later years and, as I say, touches upon so many families.

That is why I think the bill is really important, because it touches upon the principle of how we would want to be treated. It is a really practical application of the golden rule, if you like. It is not an abstract one. We talk about doing unto others as we would have done unto ourselves quite a lot in those abstract terms. This is really practical and relevant, because one of the immutable facts of life is that we will all get older and we will indeed leave this mortal coil at some point, and along the way we do not know who among us may be affected by dementia at some point and lose that sense of personhood and agency that is integral to the human experience. The Deputy Speaker spoke very eloquently about that as well. What would we want for ourselves in that circumstance? What is it that we would want for our family members? It is not abstract. These are the shards of fate that exist. My grandmother lived with dementia in her later years. I think we as a family were blessed in the sense that Nanna was not violent. In part that was because she was at home for most of that journey with family members who loved and cared for her and provided that familiarity to the greatest extent possible. There was a sense of surety that surrounded her.

I was in a position a few years ago where I was the only member of my extended family who was close to my grandfather in his last years. He did not suffer from dementia, but he suffered from ageing. He became old and he became frail, and he was in and out of hospital. I was there with him for a lot of that experience. It was in another jurisdiction where, frankly, the hospital care and the social care were not as good as they are in Victoria and Australia. I recall very vividly the experience of being with him on a geriatric ward and the terror that surrounded him, the shrieks and the screams and the deep distress of so many of the other patients on that ward who were suffering from dementia, who did not know where they were or why they were there and who were encumbered by restrictive practices. It was really quite confronting to see and experience. It drove home to me the need to ensure that, wherever possible, we have appropriate regulation in the application of those restrictive practices and, in the context of this bill, to ensure that wherever possible there is agency for those who are experiencing dementia. This bill, with the hierarchy that it imposes, gives them that right at the earliest possible opportunity and then builds in some safeguards once people have dementia and may not have that agency directly. I commend the bill to the house.

Anthony CIANFLONE (Pascoe Vale) (18:26): I too rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. In doing so I would like to of course commend the Minister for Ageing, Minister Stitt in the other place, for bringing this bill to the Parliament. I acknowledge her office, departments and stakeholders for their work in progressing these reforms.

I would also like to particularly acknowledge some of the other contributions that we have heard through this really wideranging and in-depth debate, particularly the member for South-West Coast, who is at the table, for her very heartfelt contribution in relation to her story and her family’s experience with respect to her mother, which we all acknowledge and sympathise with in many different ways. Thank you for sharing that. The member for Ashwood shared the very in-depth recent experience of his family with respect to his father, who passed away in April this year. Also I thank the member for Greenvale for his very insightful and thought-provoking contribution in relation to the fact that all of us will end up, whether we want to or not, at the end of life’s journey one day and some of us may experience it more healthily than others. Ensuring we progress reforms such as the ones contained in this bill in a manner that makes that provision for all of us, regardless of how we are at that stage in life, and gives us that capacity to make decisions, informed or otherwise, is very, very important.

I would like to also acknowledge the contribution generally of our aged and elderly community in helping to build a modern, vibrant and prosperous Victoria that we are so fortunate to have inherited. Yesterday we commemorated 11 November on Remembrance Day. Every year on the 11th day of the 11th month at 11 am we pause to remember the anniversary of when the guns fell silent on the Western Front, marking the end of World War I. But we also pause to reflect on the sacrifices of generations of veterans, men and women who diligently served our country, state and community when called upon to do so.

Along with giving thanks to our service personnel, it is also the contribution of generations of previous Victorian elders that we must never forget but continue to respect: elders from our First Nations communities who for 60,000 years provided custodianship for the lands we have now founded our communities on; our first settlers, pioneers and early generations of migrants, who went on to create and build the modern Australia we now inherit; and the generations of culturally and linguistically diverse migrants who worked hard and who continue to contribute to make Victoria an even more vibrant place. When combined, it really is the contributions and sacrifices of our elders across our community that we should remain eternally grateful and thankful for.

That is why we must continue to do all that we can as policymakers to ensure that we treat and support our older, elderly, retiree and pensioner communities as best we can so that all Victorians can be supported to age well and live healthy, active and purposeful lives as they grow older. We must ensure older Victorians are able to safely age at home or in appropriate care settings, with the opportunity to maintain independence, dignity and connection to family, friends and community, whether they have the capacity to decide for themselves, as I said earlier, or not. For elderly residents who may not have the health means or capacity to remain in their own homes, we know that aged care homes, accommodation and facilities play that critical role in delivering aged care for older Victorians who would otherwise struggle to find and afford appropriate care.

As highlighted by the Commonwealth 2021 Royal Commission into Aged Care Quality and Safety, Australia’s aged care system has long provided subsidised care and support to older people. It is a large and complex system that has evolved over time, with Australia’s demographics significantly influencing demand for the provision and types of care. The aged care sector is now, as the member for Greenvale pointed out, experiencing an ageing population with increasing frailty as Australians live longer than ever before.

It is projected that the number of Australians aged 85 years and over will increase from 515,000, or 2 ‍per cent of the population today, to more than 1.5 million by 2058, or almost 4 per cent of the population. With advanced age comes greater frailty, with older people more likely to have more than one health condition as their life expectancy increases, namely around memory and mobility disorders, including dementia and Alzheimer’s more predominantly. The commission also identified that the aged care sector is one of Australia’s largest employer and service industries, with the most recent national aged care workforce census finding that the sector was home to 366,000 paid workers, making up 84 per cent of the sector, and 68,000 volunteers, or 16 per cent of the sector. At a state level we have got the Ageing Well in Victoria strategy to guide our work as a government. In 2021 we had 1.5 ‍million Victorians aged 60 and over, or 22 per cent of the population, and by 2046 it is anticipated that this age cohort will increase by 60 per cent to more than 2.3 million people and over 25 per cent of the population will be over the age of 60. Of course our ageing well strategy sets out our aspirations and key policy initiatives to help support that growing community cohort.

At a local level, at Merri-bek in my community we are supporting our elderly community through the council’s Living and Ageing Well in Merri-bek framework. We currently have quite a high proportion of residents in all age groups over 75, which is higher than the Melbourne and Australian averages. Empty nesters and retirees aged 60 to 69 account for 12,900 residents, or 7.6 per cent of our community, and over 12,400 residents are considered seniors, aged between 70 and 84 years of age, making up 7.3 per cent of our community. Over 4600 residents are aged 85 years and over, or 2.7 per cent of our community, compared to 2 per cent across greater Melbourne.

Council does magnificent work in this space. I have got to commend them in that respect. They continue to engage their aged services in-house, contrary to some of the federal government reforms in recent years, and council’s Meals on Wheels program last year delivered almost 60,000 meals to local residents. The Bob Hawke community centre just behind Sydney Road, which has been going strong for many years, continues to produce and deliver those meals to this very day. In June the council also hosted a northern elder abuse prevention network event at the town hall in partnership with Merri Health. Of course, as we have seen through the Australian Commonwealth government’s Royal Commission into Aged Care Quality and Safety, there have been a number of issues, to say the least, that have been highlighted that require urgent attention, more so at a federal level but which also have a flow-on effect at a state level, which brings me to the bill today.

One of those most concerning areas of shortcoming across the sector relates to the use, or the overuse, of restrictive practices, which are actions that restrict the rights and freedom of movement of an aged care resident and are intended to manage the behaviour of an aged care resident which poses a risk to safety for aged care residents, staff and visitors, and supposedly they are to be used as a last resort. The five categories with respect to restrictive practices include chemical restraint, such as the use of medication; environmental restraint, such as the use of locked doors; mechanical restraint, such as the use of harnesses or bed rails; physical restraints, such as the use of force; and seclusion. Restrictive practices can only be used 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. I draw the chamber’s attention to page 93 in particular of the royal commission’s report, which goes through the issues around restrictive practices in quite some detail and informs the recommendations and in many ways sets the framework for today’s reforms, because this bill will basically bring Victoria into line with the federal reforms that have been introduced that really do provide that clear consistency at a state and a national level as to how, when and why these practices can be utilised.

With the time I have I would also like to pay tribute to the aged care home services and workers across my community for the roles they play in supporting our older residents. I would like to acknowledge Dorothy Impey Home at 317A O’Hea Street in Pascoe Vale. It is a community not-for-profit aged care facility, and the complex is named after long-time Coburg resident and former mayoress Dorothy Impey. Opening its doors in 1971, the home emerged and grew out of the early work of Dorothy alongside the Coburg Benevolent Society, Rotary and community support, and created a dedicated hostel-type accommodation and aged care facility which was originally further north up on Cumberland Road. But in 2009 Dorothy Impey Home relocated to its new, modern, expanded facility on O’Hea Street, bound by Cumberland Road and Eastgate Street, and now supports just under 100 ‍residents in its state-of-the-art facility.

It is just over the road from my place as well. Guided by their motto ‘Tapestry of caring’, the home has continued to be led and guided by Dorothy’s daughter Heather Gray, who literally was born into the job through the family and continues to do a great job to this very day. It supports many of our local homes with its aged care workers, and it services many neighbouring training organisations, including the Victorian Co-operative on Children’s Services for Ethnic Groups. VICSEG was established in 1981 and focuses its efforts on training and skilling up newly arrived migrants and refugees in sectors of skills demand, including aged care. It currently provides a certificate III in ageing and disability support.

It was an absolute pleasure, to say the least, to welcome the Premier last week, on 6 November, to officially open VICSEG’s new jobs, skills and learning hub on the corner of Sydney Road, Munro Street and Harding Street. Expanding from their spiritual home further down Munro Street, VICSEG’s newest home will help accommodate 60 local jobs of their 160 statewide staff and support local job skill outcomes, including in the aged care sector, while also supporting important Coburg Central revitalisation efforts.

Commendations to all who welcomed the Premier, including Maree Raftis, John Raftis, and Casper Zika, and those from our multicultural communities who provided a really warm welcome, including the Italian, Pakistani, Filipino, Lebanese, Persian, Iranian, Punjab Indian, Sri Lankan, Chinese and Iraqi communities.

Alison MARCHANT (Bellarine) (18:36): It is a pleasure to rise and speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. I would like to start at the outset by saying thank you to those who have given really thoughtful contributions today on this bill. Whether it is today or tomorrow or in years to come, we are all going to face the challenges of ageing. Each day we are all a bit older, and hopefully a bit wiser, but as we age we will need to face those questions of our care, our health and our independence. I know as a community and a society we do care deeply about the dignity, the comfort and the rights of those who we love and, indeed, their own futures as we all move into those older stages of life. For many, the prospect of entering an aged care facility may be very daunting, a period of transition that means a shift in routines and environments and maybe even personal autonomy. However, when we ensure that there are choices in that decision-making and choices remain central to that care, we can preserve the individuality and dignity of those in the aged care setting. When individuals have choice in their care and their daily routines – it might be meals, social activities or their care plans – they continue to shape their own lives. These choices reinforce that autonomy, giving them control over their experiences in a way that truly gives aged care the continuity of their unique journey rather than a loss of independence.

Choices in aged care can lead to better mental and physical wellbeing. Studies have shown that when people have a say in their care they are happier, healthier and more engaged. They feel respected, seen and valued. Families too find peace when they know their loved ones are supported in making decisions that reflect their wishes. Knowing that their parents or grandparents can decide what they want in their care plan can bring comfort and alleviate concerns for families in knowing that their loved ones are valued.

But in the event that a family member cannot make those decisions, there are further choices to be made, and this is the conversation that we are having today in this place. This does impact countless families and communities. The decisions that we make for our loved ones when they can no longer make decisions for themselves never involve easy conversation, but they are ones that we must face with empathy, responsibility and dignity. For many, there will come a time that cognitive decline or health challenges diminish their capacity to make decisions around their own care. When that time arrives, families, caregivers and professionals do face those profound responsibilities.

I would like to acknowledge the critical role of care providers and those who work in the aged care space. Doctors, nurses, aged care staff and social workers are all integral to providing that guidance, expertise and care. They are not only offering medical insight but providing passionate care that aligns with the dignity and respect that each person deserves.

We have heard a little bit today about the Royal Commission into Aged Care Quality and Safety, which investigated the Australian aged care system. Through that process there were significant concerns about the quality of care, the safety and the transparency. The commission’s findings revealed widespread neglect, inadequate staffing, overuse of chemical and physical restraints, which are what we are speaking to today, and a failure to support residents’ dignity and wellbeing. That final report offered nearly 150 recommendations for substantial reform to improve the standard of care, and I will note that the federal government has begun that journey of major reform to protect the safety, dignity and wellbeing of all of our older Australians. One of the areas, though, addressed in the royal commission was the restrictive practices – methods like physical restraints or sedatives often used to manage behaviours in aged care settings. In response to this the Commonwealth introduced new regulatory requirements aimed at ensuring that restrictive practices were only used as a last resort and under strict conditions.

I just want to talk a little bit about what this bill today does. This bill will establish a hierarchy of decision-makers who can act as a restrictive practice substitute decision-maker in a residential aged care setting in line with the requirements under the Commonwealth Aged Care Act 1997. This bill will allow aged care providers to identify a substitute decision-maker through that hierarchy, and under this bill decision-makers will be identified in the following order of precedence: a substitute decision-maker nominated by the aged care resident, a next of kin identified based on a close relationship and then further a decision-maker appointed maybe by VCAT should no other decision-maker be available. This bill is much needed in that for aged care residents who may not have that capacity to make decisions, such as in the instance of dementia, a substitute decision-maker can provide consent. It really is necessary to ensure that aged care recipients in that aged care setting have choice over who they want to act as a substitute decision-maker and, where there is no such nominee, who can be appointed as such. It will ensure that residents can trust that, if the time does come, a loved one will be able to act in their best interest.

This bill will ensure that all aged care providers are able to be compliant with the requirements of legislation. It will ensure, as I have said, that there is that trust that we can have someone that will act in our best interest, and the bill will ensure that the aged care providers can have that framework to go to. I do want to, though, just make clear that restrictive practices are actions that are intended to manage the behaviour of aged care residents which may pose a risk to the safety of themselves, staff or visitors. There are five categories that allow restrictive practices: chemical restraints such as medication, environmental restraints, mechanical restraints, physical restraints and seclusion. These are a last resort, where all other options have been explored. This approach today does give appropriate safeguards to protect the rights and interests of people who are living in residential aged care settings.

In conclusion, I would like to just reflect a little bit on a personal situation. I am currently in the situation where I am starting to have a conversation with my own parents. They are both fit. They both still work, volunteer and keep active. But with a recent medical episode we have had to start having the conversation about how at some point they may need assistance at home. Caring for any ageing parent is filled with that love and responsibility but a lot of worry. As our parents age we are in the reverse role, finding ourselves in the role of asking how to best support those who have raised us. I often feel, and I am sure others do, that weight of responsibility, ensuring that they have that comfort and dignity that they deserve. It does come with a bit of anxiety. Are we making the right decisions? Are we doing enough? Is it what they would like? How would they feel about the decisions being made? And if it does come to a point where care is needed, maybe in an aged care home, how will that transition look and feel for all involved?

Making these decisions is not easy, but our loved ones also may need round-the-clock care, and they need those resources to still continue to enjoy a life safely and comfortably. Although this bill does take a piece of legislation that has been devolved from the Commonwealth to the state, I think in this place we would all agree that every Australian and every older Australian should feel confident about accessing that care – high-quality and safe care – where it is needed, whether it is at home or in residential care. In the end, how we care for our ageing loved ones I think speaks volumes to who we are as a society and as a community, and I would like to think that we will choose compassion when dealing with this issue. They may be our parents or our grandparents, and it is clear that we need to treat them with the respect, compassion and dignity that they have earned.

Jordan CRUGNALE (Bass) (18:46): I rise to also speak on this bill and at the outset I acknowledge the very moving, very personal, very raw and emotional contributions from many members sitting in the chamber over the course of the day – the member for Mildura, the member for South-West Coast, the Deputy Speaker, the member for Geelong. It is something that we all will face, and we want to make sure that we have that dignity and comfort and respect, and also we acknowledge the journey that the person who is going into aged care has had over the course of their life. Comfort and dignity and compassion are words that have come up in many contributions.

On a personal level, my father went into a nursing home. He is no longer with us. We tried to keep him at home as long as possible, even when he burnt the coffee machine, which he did all the time anyway growing up. It was more around chainsawing the lawn, which was very long, when the lawnmower was not working. It was just one of those signs that it was probably time. This was over in Western Australia, and as much as I would have loved to have him over here, the family thought it best to keep him in the home town. It was really fortunate, as he was dealing with dementia when I went to visit him what turned out to be three weeks before he passed away, that I had a beautiful week with him where I actually took him out of where he was, and we went on a car trip. He was saying he had issues with his teeth, and I said, ‘Well, we’ll go to the dentist.’ Of course he would not have remembered that the next day, but they had him ready at 9 o’clock and I said, ‘Let’s just get in the car and go for a drive.’ He remembered every landmark of where we grew up. Down at the beach where we used to swim, he really loved looking at the kids playing, remembering that he used to swim with us and teach us how to swim. We had Frank Sinatra playing in the car and I Did It My Way came on, and I said to him, ‘I’m going to sing this at your funeral. It’s just perfect; it just encapsulates you to a tee.’ Whilst I did not sing it, we did play it at his funeral three weeks later. He never wanted to go into a home. He was up a ladder up until he was about 87, chainsawing. The chainsaw itself had a few cuts where he had gone from branch to branch and cut the chainsaw. I think he would have probably preferred just falling off a ladder and his life ending at that point, really. But that was just the journey that he was on. Having those moments with him a couple of weeks before he died was very treasured.

This bill also places residents’ preferences at the centre and prioritises the residents’ own choice of substitute decision-making, as has been spoken about. It upholds the autonomy and dignity of older Victorians, and this ensures that even if a resident cannot make decisions directly, their own wishes are still respected as much as possible. Also there are a lot of people that are not elders in the community that are having to go into aged care or are having dementia at a very, very young age, and that is a topic for another conversation.

Our government recognises the importance of aged care and ensuring that it is funded properly. Since 2015–16 we have invested more than $700 million in public sector residential aged care facilities. I want to acknowledge a few in my electorate. The Kooweerup Regional Health Service have a beautiful aged care service. It is safe, secure, caring and comfortable; it is set in verdant surrounds; it is really homely and welcoming; and everyone that works in that facility is just gold – an absolute gem. There are pianos placed in different sections, and it is one of those places that are truly supported by the nurses, support workers, doctors, allied health, cleaners, cooks – everyone that works there. The staff in these services wrap their arms around the family as well, because it can be a really difficult journey to go through. In the Bass Coast I have Kirrak House and Griffiths Point Lodge. Griffiths Point Lodge is in a very beautiful setting overlooking San Remo in Western Port Bay, and Kirrak House is in Wonthaggi. The staff at our aged care services are dedicated, they care, and as I said they are a beautiful support to families. They really do keep residents at the centre.

With this bill we have spoken about the hierarchy – that is actually 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 consent of the aged care recipient, or their substitute decision-maker if the resident does not have capacity to provide consent. The substitute decision-maker is determined by state or territory law. Victoria’s existing legislation does not cover who can act on behalf of another person in relation to consenting to restrictive practices in residential aged care. Under the Aged Care Act 1997 the aged care provider is required to seek informed consent for the use of restrictive practices, either from the care recipient or from the substitute decision-maker if they do not have the capacity. The burden to ensure that informed consent is received falls on the aged care provider, and the aged care provider must be satisfied that the aged care recipient has the capacity to understand the reason for the proposed intervention, the available options and the risks and benefits of those options; has come to a considered decision; and is able to communicate the decision. If the individual is not able to understand, make or communicate a decision, even with appropriate support, then they do not have the capacity to provide informed consent for themselves.

People will be supported to make decisions. Older Victorians will be able to access existing supports to assist them in making advance decisions around their care and substitute decision-makers. Independent advocacy and support services will continue to have a role in assisting decision-makers to make decisions about their loved ones living in residential aged care, and as needed Victorians will continue to be able to seek help from organisations such as Victoria Legal Aid; the Older Persons Advocacy Network, who are amazing; and Seniors Rights Victoria. Under the Quality of Care Principles 2014substitute decision-makers must receive a copy of the behavioural support plan. Aged care providers must also consult with substitute decision-makers on this plan, which will include allowing decision-makers to ask questions, review details of the proposed restrictive practices and work with a provider to develop appropriate behavioural supports for the care recipient.

The bill provides much-needed clarity, in summation, for aged care providers, who often face difficult situations where it is unclear who has the authority to make decisions. It also gives families reassurance that decisions will be made by those who know and care about the resident, or by VCAT if necessary. The bill will come into effect in July 2025, allowing time for everyone involved – residents, families and aged care providers – to prepare. This timeline means that we can engage with the sector and educate and inform everyone about the new processes as well. Supporting materials will be provided to help everyone understand and work within the new framework. This bill is about respect, protection and clarity. It gives aged care residents the assurance that their wishes will be respected and that their safety is protected. It gives their families peace of mind knowing that there is a clear process in place to make these tough decisions, and it provides aged care providers with clarity so they can focus on what truly matters – the quality of care. I commend the bill to the house.

Belinda WILSON (Narre Warren North) (18:56): I have had the pleasure, I guess, or a lovely afternoon listening to people’s stories in this chamber. It is interesting because on both sides of this chamber many people think that we do not like each other or do not know each other and do not know our stories. I think what has been quite lovely and endearing is that this bill has brought a really personal aspect to everyone today. I am really pleased that the member for South-West Coast is in the chamber. I wanted to say your story was heart-wrenching, and I am sorry for what you are going through. I just want to let you know that we are thinking of you, and I know that all of us that heard your contribution felt your pain. I cannot imagine what you are going through, so I really hope that it improves.

As daughters and children to our parents, it is always difficult to see them age and get old. We do not think we are ageing or getting old, and then suddenly our grandparents are not there anymore and we turn then to our parents ageing. They are hard things to face. For me, it was my grandma. I was very, very close with my grandma, and she had a major stroke. This all happened about 10 years ago. She was incredible for her age. She was 88, very fit, went out every day on her own, and then suddenly overnight she had a major stroke and she became a different person. We wanted to give her the best care we could. We always said we would never put her into care, but for us that option was taken away. I know the member for Ashwood spoke about how expensive aged care can be, and we went through that process. For us, we were able to visit her every day, between my mum and me, over a five-year period, where we fed her and gave her company. It was difficult to see other people in that place that never got a visitor. The care shifted; it was different for them. I think because we were around so much they could see how much care and love we had. That is not to say that other people in her facility did not have any care or love. I think what is interesting when people go into care is that they think they will be looked after, but the visitors drop away. That is hard.

I think COVID showed us very strongly, through that period, our aged care system and its flaws. I think many of those flaws came to light. I know that our federal government has been working really hard to try and fill those gaps and make some major changes to our aged care system, which I know our state government really supports and we feel really strongly about. Aged care is challenging. I know that there have been many contributions about dementia. There have been many contributions about people not being able to walk anymore and being on lifting hoists, about people with one partner with dementia, with one very well and one looking after the other one. I think the other thing that happens with aged care is that once one partner falls or has an episode we suddenly see the gaps in the second partner. That is what happens.

Business interrupted under sessional orders.