Tuesday, 26 November 2024
Bills
Aged Care Restrictive Practices Substitute Decision-maker Bill 2024
Bills
Aged Care Restrictive Practices Substitute Decision-maker Bill 2024
Second reading
Debate resumed on motion of Harriet Shing:
That the bill be now read a second time.
Georgie CROZIER (Southern Metropolitan) (17:47): I am pleased to be able to rise and speak to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024, because this is an important bill that we are debating. As members will recall, the federal government held a royal commission into aged care. There were significant concerns that were raised around the aged care sector over a number of years, and the then federal government called a royal commission. That was a very thorough process and really did expose some very big failings within the system and areas of improvement that were required. One of the areas that was identified in response to the royal commission was the restrictive practices, and I will speak about that in a little bit more detail.
In 2021 in response to the Royal Commission into Aged Care Quality and Safety, which I have referred to, the federal coalition government introduced a framework for the appointment of substitute decision-makers in relation to restrictive practices in residential aged care. Those restrictive practices have been identified as a problem in aged care. As the royal commission said in their final report, they have been a problem 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.
That is why this bill is important – to go to assisting in what that framework and what this restrictive practices component means. While guidelines around the use of restrictive practices fall mainly under the jurisdiction of the Commonwealth, recommendation 17 of the royal commission states that restrictive practices can only be used:
in accordance with relevant 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
Hence why we are in the house debating this bill. The Commonwealth established a temporary hierarchy, which has been in place since 2022. It was originally due to cease in December of this year, 2024, but it has been extended until 1 July 2025. Victoria needs to have its own legislation to avoid the gap in relation to the substitute decision-maker process. There was a great deal of information received by the royal commission over the period that it had hearings and was going through its process, importantly, about the use and abuse of restrictive practices. Inappropriate use can lead to serious psychological and physical harm or even death. Some of those restrictive practices in residential aged care, as has been identified by the federal department, should only be used as a last resort to help prevent harm to older people in aged care and their carers. As they have highlighted, a restrictive practice is any action that restricts the rights and freedoms of movement of a care recipient. There are five types of restrictive practices. They are chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion.
In July 2021 amendments to the Aged Care Act 1997 and the Quality of Care Principles 2014 came into effect. They were designed to regulate and strengthen restrictive practices arrangements for the Australian funded government-approved aged care providers. That was around looking at safeguarding care recipients. I make mention of this because the federal government set up the aged care clinical advisory committee, which had a number of very eminent members, one of whom used to sit in this house, my great friend Mrs Andrea Coote. She has a great deal of experience in this area and was a shadow minister for ageing. That committee was really providing expert advice to the federal government around aged care. It was a very important committee – Mrs Coote was the chair – and they did extraordinary work. From time to time I would speak with her to understand exactly what improvements were being made, and she would often say just how far they had come – there were some heartbreaking stories – and really how well the committee had been working in looking to improve outcomes for residents in aged care facilities.
Can I say that as someone who has had a parent in an aged care facility recently our experience with the aged care facility was outstanding. Our family could not be happier with the care that my father received. The wonderful care that they gave him was just extraordinary. It is something that I will not forget, nor will our family forget. It was terribly moving after he died earlier this year – how they approached us and genuinely cared for our father. We were the lucky ones who had a very positive experience, and my father was terribly lucky at the age of nearly 97 to have all his mental faculties. But that is not always the case for people with dementia. That is why this bill is terribly important, so that those people that are vulnerable in those situations do have a hierarchy of care that can assist them with making those decisions on their behalf. That is why this is a terribly important piece of legislation, so that the safeguards and, as I said, the gaps that have been identified by state and territory legislation can come into place.
That is what this bill does. It establishes the process for the appointment of substitute decision-makers to authorise the use of restrictive practices in aged care when a resident lacks capacity to give informed consent. It brings Victorian law in line with the Commonwealth Aged Care Act and Quality of Care Principles, some of which I have just referred to. These principles include the requirement for aged care providers to only use restrictive practices as a last resort. They must be the least restrictive form for the shortest amount of time possible and only used after less restrictive measures have been attempted. As I have said, the appointment process has a hierarchy to be followed by providers when considering who should be in the position of that decision-maker. The hierarchy is a decision-maker nominated in advance in writing by the aged care resident if they have the capacity to do so; the next of kin, which is someone who has a close and continuing relationship with the aged care resident from a specific list, including spouse, partner, primary carer, oldest adult child, eldest parent or eldest sibling; or an appointee by VCAT should no other decision-maker be available. That sometimes happens if the next of kin or someone who has had that responsibility suddenly dies and there is no-one there able to make those decisions on behalf of the resident. That also includes someone with a close and enduring relationship beyond the definition of ‘next of kin’ – a GP or a close friend or the like.
The VCAT order – as a last resort VCAT has the power to act as the decision-maker if no other decision-maker is reasonably identifiable. They will also have the ability or the 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. These are very important elements of this legislation so that safeguards are in place when the need for a substitute arises, as I said, in case that resident is incapable of making the decisions.
I have spoken about a number of things. There is one thing that I wanted to raise, which was raised in the debate by Mr Bull, the Shadow Minister for Disability, Ageing and Carers. I will raise it in debate now, and the minister might be able to respond to that in summing up rather than going into it in the committee. Mr Bull, in his contribution, asked questions around the penalties. I will quote from his contribution:
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 –
well, now that we are in the last week, I do not think a bill is coming into this place –
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 –
and I have spoken about that gap that the federal government has highlighted –
that supporting legislation will need to come into this chamber in the interim period.
The question I really have – and I wonder if we could get some clarification from the government – is: will there be additional legislation coming into Parliament in the first six months before 1 July 2025 to cover off those issues around penalties for fraudulently acting? That is the question I wanted to understand, because the shadow minister was so advised but there is not really any clarification around whether that is the case. We assume that it is the case, to cover off the gap that is in this current legislation which is not addressed, but if the government could provide those answers.
As I said at the outset, this is an important bill we are debating today. It is part of the Commonwealth legislation and the work that has been carried out at the federal level. It is important that all states and territories come on board to have those issues resolved so there is not that gap, so that vulnerable elderly residents in aged care facilities do have the support and they do have people in place to assist in any decision-making that is required in those very important times of their life where they need the dignity and they need the security and they need the assurances that they are being cared for properly and appropriately and that government has done all they can to assist in that process, and that is what this bill does.
David ETTERSHANK (Western Metropolitan) (17:59): I rise to make a brief contribution to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. Following a recommendation of the Royal Commission into Aged Care Quality and Safety, the Commonwealth introduced legislation in 2021 requiring residential aged care providers to seek consent from substitute decision-makers to authorise the use of restrictive practices, pending complementary legislation at a state and territorial level. The bill before the house is that legislation. It establishes who can act as a decision-maker to give consent to restrictive practices in residential aged care settings when a care recipient is unable to give consent.
While the scope of the bill is limited to who can give consent to restrictive practices, I thought it would be useful to talk briefly about what restrictive practices actually are. When we talk about restrictive practices, we are talking about actions taken by an aged care provider and their staff that principally involve restraint of a resident who may be presenting with, for example, challenging behaviours that could pose a risk to themselves, other residents or staff. The restraint may take the form of physical or mechanical restraint, chemical restraint or seclusion in a secure place. In lay terms, restraint could mean strapping a resident to their bed or to furniture, it could mean sedating a patient so that they are virtually incapacitated, or it could mean simply locking them in a room. There are times when this type of restraint is necessary, but it must occur in the context of an appropriate behaviour management plan and in consultation with the resident or their representative, and it must always be a last resort. Restrictive practices are an extremely challenging issue in residential aged care. Unfortunately, there have been cases where restraint has been used by aged care providers as an alternative to having adequately trained and on-duty staff, something that was repeatedly exposed in the lead-up to and during the royal commission into aged care.
The issue of appropriate restraint becomes even more problematic when a resident’s mental state precludes them from making informed decisions – for example, if the resident is impaired by neurodegenerative conditions such as advanced Alzheimer’s or dementia. For residents and their families and service providers this loss of competency by the resident, be it permanent or intermittent, can be an agonising conundrum. In this very difficult situation the consent for restrictive practices needs to be obtained by a substitute decision-maker. This bill establishes a hierarchy of who can be that decision-maker, starting with nominees who are chosen by the aged care recipient in advance, and this is obviously the preferred option. That is followed by a choice of next of kin, who would be identified through an agreed order of precedence identified in the bill. Then finally, if there is no-one else, VCAT can appoint the decision-maker and also act to resolve any disputes.
The bill establishes new offences and penalties for inducing a decision-making nomination or fraudulently acting as a decision-maker. Legalise Cannabis is supportive of the bill. It aligns Victorian law with the requirements of the Commonwealth legislation and gives certainty to both providers and recipients of residential aged care services. Stakeholders from the aged care sector have raised a few concerns about the bill, and I will be seeking to get some clarity and guidance for the benefit of the residential aged care services sector during the committee-of-the-whole stage.
John BERGER (Southern Metropolitan) (18:04): Today I rise to speak on the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. Thanks to the minister in the other place, Minister Thomas – Minister for Health, Minister for Health Infrastructure and Minister for Ambulance Services – and her team for getting this done. The bill concerns the establishment of a framework for appointing restrictive practices substitute decision-makers. It is a standalone piece of legislation that will function independently from but in parallel with other legislative frameworks for a substitute decision-maker. The bill will provide clarity for the meaning of restrictive practices substitute decision-maker. It will outline the responsibilities for aged care workers that utilise restrictive practices, and it will introduce a consent hierarchy like that which is used in medical treatment decision-making and which must be used when there has been no restrictive practices substitute decision-maker appointed. Finally, it will introduce criminal penalties that will make it an offence for someone to coerce a nomination or to fraudulently act as if they were a nominee.
This bill protects, prioritises and safeguards the autonomy of individuals using aged care services where restrictive practices may be employed. Restrictive practices in aged care facilities refer to any action that restricts the rights and freedoms of any individual under their care. They are oftentimes an unpleasant and intimidating course of action for both the individual and their carer. They are not therapeutic interventions. They include chemical restraint, environmental restraint, mechanical restraint, physical restraint and seclusion. Therefore they are always the last resort and only used to prevent the individual and their carer from experiencing harm. Aged care service providers undertake strict procedures to ensure that they are used appropriately. These include processes such as having the restrictive practice approved by a health practitioner after undertaking a documented assessment of the resident; obtaining informed consent from the person or their restrictive practices substitute decision-maker; using the least restrictive form of intervention for the shortest possible time; using restrictive practices that are proportionate to the perceived risk or harm; documenting alternative strategies to restrictive practices along with why they are unsuccessful; ensuring that they are used in line with the rights and responsibilities of care recipients outlined in the Charter of Aged Care Rights; and regularly monitoring for stress, harm, adverse events, changes in wellbeing and the ability to perform daily living activities.
The bill also makes necessary legislative changes to safeguard this autonomy by expanding upon the existing framework for reporting restrictive practices substitute decision-makers. A restrictive practices decision-maker refers to a person who can give informed consent to the use of restrictive practices in relation to a care recipient in a residential aged care facility in Victoria. The framework fills legislative gaps, and these amendments institute a temporary hierarchy that has been in place since 2022 and is set to be repealed on 1 December 2024. The Commonwealth government is committed to extending this arrangement, however, instead looking to repeal it in 2026. This bill will act to replace this temporary hierarchy. With that, I commend the bill to the house.
Ryan BATCHELOR (Southern Metropolitan) (18:07): I will make a very brief contribution on this legislation. The use of restrictive practices in aged care settings is exceptionally challenging. The Royal Commission into Aged Care Quality and Safety uncovered some very horrific practices, and the Commonwealth has rightly set about the task of regulating those practices, their use in aged care settings, how and what can be done. This legislation seeks to provide a framework so that substitute decision-makers can be appointed in cases where aged care residents lack the capacity to make the decisions themselves. Neurogenerative decline, Alzheimer’s, dementia – these are exceptionally challenging issues and questions that many in the community face, and I know those of us who have and have had relatives with these neurodegenerative conditions in aged care find these sets of circumstances very challenging. We know how much anguish and grief families go through to make the right decisions for the ones that they care about when they lack the capacity to make those decisions for themselves. This legislation is an important part of putting a framework in place to help make sure that practice is done appropriately, with proper oversight, proper conditions and the fundamental best interests of those residents at heart. With difficult issues, it is good to see that such sensitive work is being conducted by both the state ministers and the federal ministers. I commend the bill to the house.
Jacinta ERMACORA (Western Victoria) (18:09): I will also make a very brief contribution. As they grow older some people experience age-related illnesses that require choices, not just about medical care but also about keeping people safe from their own behaviour, health professionals safe and the community safe. For elderly people with conditions, for example, that disinhibit social norms or who simply cannot remember where they are, some form of restraint is part of the very difficult decision-making that needs to occur.
As a society we all benefit from the value of treating people with dignity and respect as they grow old, and this continues to apply in residential aged care. The Royal Commission into Aged Care Quality and Safety found that there was an overuse of restrictive practices in residential aged facilities. In response to that the amendments introduced new legislative requirements for residential aged care providers to seek informed consent for substantive decision-makers. The Commonwealth government are not continuing with their responsibility in this space, that has been agreed, hence the need for this bill today.
The bill specifically addresses the circumstances where restraint needs to be addressed in a decision-making process. The appointed substitute decision-maker is someone who is able to consent to restrictive practices – and they might be chemical or environmental restraint, mechanical restraint, physical restraint or seclusion. Restrictive practices are not a form of medical treatment and are not used to provide therapeutic benefit to aged care residents. Therefore it is not appropriate to use the Medical Treatment Planning and Decisions Act 2016 to identify how to deal with these issues. The act empowers decision-makers to provide informed consent based on the principle of what the person they are acting on behalf of would decide if they had the capacity.
The bill establishes a permanent framework for identifying and authorising substitute decision-makers. The bill establishes a hierarchy for who can act as a restrictive practices substitute decision-maker under the act, and that hierarchy – just very briefly – addresses vulnerable individuals and ensures that they are protected, that decisions are being made by the most appropriate person, that there is a clear process for decision-making and that accountability and transparency are maintained.
I note, just in closing, that the Council on the Ageing and Seniors Rights Victoria are supportive of the majority of what this bill is intended to do. I therefore support the bill.
Tom McINTOSH (Eastern Victoria) (18:12): This bill will establish a hierarchy of decision-makers who can act in Victoria as restrictive practices substitute decision-makers in residential aged care in line with requirements under the Commonwealth’s Aged Care Act 1997. The bill will allow aged care providers to identify substitute decision-makers through a hierarchy. Under this bill decision-makers will be identified in the following order of precedence: a substitute decision-maker nominated by the aged care resident, a 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 older people have as much autonomy as possible around decisions that concern them.
This bill is needed because it is in response to the Royal Commission into Aged Care Quality and Safety. The Commonwealth introduced new requirements for restrictive practices to be only used with the informed consent of the aged care recipient. For aged care residents who may not have the capacity to make decisions, such as in cases of advanced dementia, a substitute decision-maker can provide this consent. The bill is necessary to ensure that care recipients in residential aged care settings have choice in who they want to act as a substitute decision-maker, and where there is no such nominee, to identify who can be appointed as a substitute decision-maker. It will ensure that residents can trust, should the time come, that a loved one will be able to act in their interest. This bill will ensure that all residential aged care providers are able to be compliant with the requirement of Commonwealth legislation. I am happy to support this bill. It is an important piece of legislation. Given that we all have loved ones – and indeed ourselves – who at that time in their lives will likely need these services, I am glad to support it here in the house.
Ingrid STITT (Western Metropolitan – Minister for Mental Health, Minister for Ageing, Minister for Multicultural Affairs) (18:14): I thank all members for their very succinct contributions, and I will try and be succinct as well. I think it is really important from the outset to recognise that this is part of working with the Commonwealth, who have introduced some really significant reforms to the aged care system following on from the Royal Commission into Aged Care Quality and Safety, which we, I think, have to acknowledge did uncover some fairly shocking examples of care not being to the standard that it ought to be. Of course the amendments that we are introducing today are part of that reform journey that we are on, and it is a result of the overuse of restraint in many of our aged care facilities that was uncovered by the evidence given to the aged care royal commission. These changes to the Aged Care Act 1997 allow residents and their supporters to make their own informed decisions about the care and services they receive and deserve, and they do create a more rigorous regime for the use of restrictive practices, including that they can only be used as a last resort. Our government welcomes the changes that are being led by the Commonwealth with a new rights-based Aged Care Act that puts older people in the centre of the aged care system and responds to the royal commission’s findings. Our aged care facilities play a really critical role in the clinical care of ageing Victorians, and our government believes that all older people should be able to access that high-quality care close to home. There are many decisions that need to be made about care that you receive in a residential aged care facility, and while we hope that all our parents and loved ones, or even ourselves, will retain that capacity to make our own decisions about care while in residential facilities, it is not always possible, as people may physically and mentally deteriorate.
This bill ensures that care recipients in residential aged care settings have choice in who they want to act as a substitute decision-maker, and where there is no such nominee, who can be appointed as a substitute decision-maker to make decisions on the use of restrictive practices. It gives certainty to residents that, should the time come, a loved one will be able to act in their interests. It does provide the necessary framework to ensure that all residential aged care providers in Victoria are able to be compliant with the requirements of the Commonwealth legislation.
If I can just touch very, very briefly on a couple of aspects of the bill that I know people will be interested in, and if I can go to VCAT and the role that VCAT will play, the bill does make some minor amendments to the Victorian Civil and Administrative Tribunal Act 1998 to empower the tribunal to act in an oversight capacity for the appointment of substitute decision-makers and to act as a decision-maker of last resort should there be no other decision-maker reasonably identifiable. VCAT will also have the power to intervene if there are disputes or conflicts and set aside an appointment, a nomination or a decision. The bill is drafted in a way that provides VCAT flexibility and discretion in how to manage any matters related to this bill – for example, there will be exemptions around emergencies in times of critical cases, like the way in which it operates under the Guardianship and Administration Act 2019. Making time-limited orders will be another option for VCAT that can address immediate issues and deal with more complex but less time-critical matters at a later date.
In terms of some of the safeguards, we have also ensured that the bill provides several safeguards to protect vulnerable older people. The bill introduces two new criminal offences, and I think this goes to the questions that Ms Crozier put on record in her contribution. Can I just take the opportunity to thank the member for Gippsland East, who is the Shadow Minister for Disability, Ageing and Carers, for his constructive engagement with my office on this bill. I can confirm that clauses 18 and 19 of the bill do cover off the new criminal offences that will apply should this bill be successfully passed. There are two new criminal offences specifically making it a crime for someone to induce through dishonesty, undue influence or threats a substitute decision-maker nomination or knowingly make a fake 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 face justice, and the bill does indeed set out penalties associated with these criminal offences. I think that goes to the nub of Ms Crozier’s question that she put on record. Again we thank all members for their engagement about the provisions of this bill.
In terms of implementation I just want to make the point quickly that the bill has a default commencement date of 1 July 2025, and that is all about making sure that we have got the time available for the sector to get ready for these changes and ensure a smooth transition from the current arrangements – the temporary measures that the Commonwealth have put in place. The bill provides for any nomination made under the Commonwealth’s temporary hierarchy to carry over into the new framework, meaning that any nomination that has already been made by residents will be honoured and will continue through to the new regime.
Prior to commencement the Department of Health will engage extensively with the sector, including providers, peak bodies, unions, and residents and their advocates, to raise awareness of the new legislation and co-develop supporting materials such as fact sheets and template forms tailored to a range of audiences, including providers, care recipients and their supporters and substitute decision-makers. Finally, I thank the sector for the incredible care that they continue to provide to older Victorians in our aged care residential facilities. I am happy to answer any member’s questions in committee of the whole.
Motion agreed to.
Read second time.
Committed.
Committee
Clause 1 (18:23)
David ETTERSHANK: I have got a series of questions which I think we will just try and deal with in this section if the minister is happy in that regard. Firstly, can I ask the minister to confirm that the provisions of this bill apply purely to residential aged care providers and not, for instance, to home care providers?
Ingrid STITT: Mr Ettershank, I can confirm that the bill only applies to the provision of residential aged care.
David ETTERSHANK: Another concern that has been raised is around the appointment of a restrictive practices nominee at clause 5(2)(b), namely, that the person must have it signed ‘in the presence of an authorised affidavit taker’ – so a lawyer or a justice of the peace. Stakeholders are concerned that the list of people who can do this is very limited, more so than, for example, in the case of a statutory declaration. This may also require consulting a lawyer, which will probably involve paying a fee, which may deter some residents from making a nomination. We understand this provision is consistent with the appointment of medical treatment decision-makers under the Medical Treatment Planning and Decisions Act 2016, but I ask the minister: will the government be providing any additional support or guidance to people to assist them in appointing their decision-maker? I do take on board the minister’s comments with regard to fact sheets and information like that, so I suppose it principally strikes to the support element as much as the guidance.
Ingrid STITT: Mr Ettershank, as you have noted, the requirements for a nomination to be made in the presence of someone who can take an affidavit are consistent with the appointment of a medical treatment decision-maker under the Medical Treatment Planning and Decisions Act. This is intentional because the authorised affidavit taker must certify that the person appears to have the capacity to make the decision and understand the nature and consequences of the nomination and that they are doing so freely and voluntarily. The requirement for an authorised affidavit taker will I think reduce the risk of invalid nominations occurring that would require providers to identify alternative restrictive practices substitute decision-makers or to seek intervention from VCAT to clarify whether an appointment is valid, so we obviously want to avoid that situation where we can.
As you say, as part of the implementation and the comments that I have just made on the record, the Department of Health will work closely with the sector to develop the resources and templates that will be needed to assist people to make nominations that reflect their preferences, that are valid and that are not going to be the subject of any question. That would obviously include guidance for people to consider these nominations at the same time as they are undertaking other advance care planning – for example, medical treatment decision-makers and powers of attorney. As I have already indicated, we will work closely with a number of the advocacy organisations in this space, peak bodies and of course the sector to make sure that everybody is cognisant of what their rights and responsibilities are and that there are the appropriate resources in place.
David ETTERSHANK: Under clause 8(4)(b) a person cannot be appointed as a restrictive practices nominee if they were, are or will be involved in the preparation or amendment of the resident’s behaviour support plan. However, the quality-of-care principles require that providers consult with a person nominated by the care recipient in relation to that behavioural support plan. The resident may want to nominate the same person as their restrictive practices nominee, but this provision seemingly makes that person ineligible, which is presumably not the intention of the government. Could I ask the minister to please provide clarity around this question and the intention of the clause?
Ingrid STITT: The intention of that clause – and there are a number of other similar clauses in the bill – is not to preclude family or other decision-makers that have been consulted on the care recipient’s needs and care more broadly. ‘Involved’ is intended to mean someone who is responsible for the development of the behavioural support plan – that is, they are providing care and behavioural support – and the decision-maker 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. Therefore family members or potential decision-makers that are not providing care under the Aged Care Act 1997 are not caught up and they are not considered to be employees or agents of the aged care provider. That is the clarity in terms of not knocking out anybody who has had some involvement in discussions around the behavioural support plan by virtue of the fact that they are a family member.
Business interrupted pursuant to standing orders.
Ingrid STITT: I move:
That the meal break scheduled for this day pursuant to standing order 4.01(3) be suspended.
Motion agreed to.
David ETTERSHANK: Clause 10 of the bill gives VCAT the authority to approve the use of restrictive practices; however, providers are required to continually review this approval in the context of updating the behavioural support plan. I guess that raises the question about how this process will work in practice, so I ask the minister: will providers need to go back to VCAT every time they need to review consent for a restrictive practice?
Ingrid STITT: Under the Aged Care Act providers are not required to review the approval for restrictive practices; however, providers are obligated to regularly review behavioural support plans. The use of restrictive practices is also not a static thing that needs to be the subject of regular review. If there is a proposed change to the use of restrictive practices such as, for example, an additional or expanded use of the practice that is beyond what was originally consented to, then yes, providers will be required to seek fresh informed consent – that is, if things are changing in their nature. Aged care providers in those sorts of circumstances should review the hierarchy from the top each time informed consent is required, even for subsequent occasions where informed consent is required. When identifying the appropriate restrictive practices, substitute decision-maker providers should not just rely on the previous state of facts. They have got to reassure themselves that there is no-one higher up in the hierarchy that should be engaged.
I guess this is, again, all about making sure that there is a sort of rights-based frame around these issues. For example, while VCAT may have provided informed consent under clause 10 in the past, it is possible that an immediate family member is now willing to act when previously they might not have been willing to act. That is why it is important to go through that hierarchy when there are changed circumstances; there might be options available that were not previously available. I hope that makes sense. Aged care providers are able to quickly identify decision-makers if there is a valid nomination in place under these arrangements or where VCAT has appointed an individual by a court order.
David ETTERSHANK: The only time a provider would go to VCAT is when there is no-one else to temporarily act as a restrictive practices decision-maker. While VCAT can appoint someone from a wider list under clause 9, there still may be situations where no-one is available to act, meaning the provider will need to go back to VCAT each time. I think this follows on from the last question. I guess the concern would be, in the eventuality that VCAT is the port of last resort: given VCAT’s workload and current delays, has the government considered providing for a fallback decision-maker, such as the Office of the Public Advocate, when there are no other options, or will people just have to wait until a listing becomes available in VCAT?
Ingrid STITT: There is certainly flexibility for VCAT to make a judgement about the urgency of any matter. In terms of the Guardianship and Administration Act 2019 and the Powers of Attorney Act 2014, they do not empower guardians or attorneys to make decisions regarding the use of restrictive practices. These acts empower decision-makers to provide informed consent based on the principle that the person they are acting on behalf of would decide if they had capacity. Rather than trigger those arrangements, we have created a bespoke arrangement to satisfy the requirements of the Aged Care Act through the provisions of this bill while also building in those safeguards to protect the rights and interests of older Victorians in residential aged care. Certainly in developing the bill, we looked at a number of different options and landed on the one that is contained in the bill now.
While the hierarchy does not specifically allow for guardians to be automatically appointed as a substitute decision-maker, the bill also does not preclude VCAT from appointing a guardian. In those circumstances, they could act as a substitute decision-maker if VCAT saw fit to make such an order.
David ETTERSHANK: In that context, if I just follow your logic there, Minister, would I be correct in saying that it would be within the capacity of VCAT to, for example, appoint the Office of the Public Advocate as that decision-maker?
Ingrid STITT: Yes.
David ETTERSHANK: Brevity is next to godliness. Clauses 18 to 20 introduce serious criminal penalties for aged care providers and their staff. A concern that has been highlighted to us is around a provider encouraging a resident to choose a restrictive decision-maker before they lose capacity and whether or not this encouragement of a resident to make a timely decision could be seen as undue influence or dishonesty. Could this example be seen as a care provider exerting undue influence on a care recipient?
Ingrid STITT: Mr Ettershank, clauses 18 to 20 are the clauses that go to serious criminal penalties for certain offences, and the offences that are contained in those clauses ensure that any individual who coerces or forces a decision-maker appointment or fraudulently acts as a substitute decision-maker can be held accountable. ‘Undue influence’ and ‘dishonesty’ are terms common in Victorian legislation. They have an understood meaning. Suggesting to a care recipient that they should nominate a restrictive practices nominee of their choosing will not meet that definition of ‘dishonesty’ or ‘undue influence’, so encouraging residents to make a nomination would not inherently be undue influence, as this would really be about informing residents of their rights to make a nomination of their choosing and encouraging them to undertake advance care planning. That is a common conversation that happens in the context of aged care facilities very often. The proposed criminal offences are largely consistent with provisions within the Medical Treatment Planning and Decisions Act 2016, where similar protections are required to protect appointed medical decision-makers from dishonesty or undue influence.
Clause agreed to; clauses 2 to 25 agreed to.
Reported to house without amendment.
That the report be now adopted.
Motion agreed to.
Report adopted.
Third reading
That the bill be now read a third time.
Motion agreed to.
Read third time.
The DEPUTY PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.