Does the Albanian government really want to strip older Australians of their rights?

Does the Albanian government really want to strip older Australians of their rights?

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Does the Albanian government really want to be remembered as the one that deprived many older Australians of their basic legal and human rights?

The federal government has recently made numerous welcome commitments to improve the lives of older people in residential care for the elderly. However, there is a glaring problem with the aged care reform bill recently passed by Parliament.

Schedule Nine of the Aged Care Amendment and Other Legislation (Response of the Royal Commission) Bill 2022 provides immunity for aged care providers who comply with the principles of quality of care under the Aged Care Act 1997. However, the specific quality care principles required to implement the immunity determination are not yet published.

Related: ‘Virtual’ nurses may be needed to fulfill the mandate of 24/7 elderly care workers, says a top health executive

In addition, Schedule 9 is unfair. It offers providers and their staff immunity from some of the most objectionable aspects of elder care – engaging in restrictive practices without legitimate consent. Such practices, which include chemical restraint, physical restraint and seclusion, aroused the utmost ire of the royal commissioners for elderly care.

The royal commissioners did not recommend giving providers and their employees immunity for using restrictive practices. So why include this schedule in the elderly care response bill?

It has been claimed that legal differences between states and territories pose a risk to aged care providers because it is uncertain and difficult to determine who has the legal authority to consent to restrictive practices.

The solution for aged care providers is immunity if they comply with the not yet written principles of quality of care. The Morrison government and now the Albanian government have simply adopted this solution.

But granting such immunity is discriminatory as it denies elderly people living in aged care homes – a vulnerable group of people – the same legal protections afforded to all other Australians.

It subordinates the customary law that has grown over centuries to the regulations of the law on care for the elderly. It is an extraordinary transgression of constitutional powers to grant providers immunity from important laws enacted by states and territories.

Schedule Nine could also breach Australia’s obligations under the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention against Torture, to which Australia is a signatory.

Granting immunity to commercial companies is also unprecedented. Many providers are private or publicly traded for-profit companies (Estia, Regis) and multinationals (Bupa, Opal).

Some government-funded “consumer” organizations have signaled their support for Schedule Nine. However, there has been strong opposition from independent and elder abuse advocates and human rights advocates, who speak without fear of losing government funds.

The number of recorded court cases against aged care providers over the past 25 years is tiny, possibly as little as six, and complainants have not always been successful.

Given that residents and their families have rarely taken legal action – despite the well-documented track record of decades of neglect, mistreatment and abuse of those in their care – the willingness of governments to protect licensed aged care providers is overwhelming.

One solution is to offer aged care providers compensation instead of immunity. There are many examples of similar compensation schemes – most recently the one being offered by the Morrison Government for healthcare professionals who may be required to pay compensation for serious adverse events in people receiving Covid-19 vaccines.

A compensation scheme would also avoid the potential legal and constitutional challenges to the immunity proposal and ensure that the Albanian government’s determination to reform the elderly care system is not further delayed.

Related: Immunity from the use of coercive measures in Australian elderly care could violate torture conventions, lawyers say

People who have been abused should always have access to their common law rights, regardless of where the abuse took place. Instead of protecting vendors from litigation, perhaps the government should instead encourage vendors to take out insurance to protect their commercial interests should a resident take legal action.

If the top three elder abuse and human rights advocates in Australia oppose this legislation, the government should listen. Surely the Albanian government does not want to be remembered as taking such unprecedented action just to protect the profits of aged care providers, many of which are multinationals, from the rights of vulnerable Australians.

A solution was on the table. The government decides not to take it.

• dr Sarah Russell is a health researcher and advocate for aged care

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