FEATURE
Royal Commission into Aged Care Quality and Safety: Time for a paradigm shift to protect the human rights of older Australians DR SARAH MOULDS, SENIOR LECTURER, UNISA JUSTICE & SOCIETY
T
he deeply disturbing findings of the Royal Commission into Aged Care Quality and Safety (the Royal Commission), and the stories of personal anguish, abuse and neglect so courageously shared by older Australians and their families, demand our full attention. In its Final Report, publicly released in March, 2021, the Royal Commission confirmed what many older Australians and their families had known for some time: Australia’s aged care system is in crisis. In 2019–20, residential aged care services reported 5718 allegations of assault under the mandatory reporting requirements of the Aged Care Act 1997 (Cth).1 In a survey considered by the Commission, one in every 20 residents in aged-care facilities reported having been physically abused.2 Just over 30% of respondents said they had experienced neglect.3 Older people are waiting for years for home care packages, some dying or suffering significant physical harm before receiving the care they need.4 Accountability mechanisms remain insufficient and weak.5 Those working in the aged care system (87% of whom are women) are also suffering from low wages, high workloads and workplace abuse as they ‘plug the gaps in the system’.6 Against this backdrop of deep and systemic failings, the Royal Commission made 148 recommendations, some of which are focused on effecting a fundamental restructuring of Australia’s aged care system and others seek to implement urgent changes to existing processes. One central idea permeates the Final Report’s eight volumes: the concept of dignity. The core idea is to promote the right of older Australians to play an active, empowered role in managing their own lives and making decisions about their own care. The concept of dignity underpins internationally recognised human rights
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instruments including the Universal Declaration of Human Rights, which describes the ‘recognition of the inherent dignity … of all members of the human family as the foundation of freedom, justice and peace in the world’.7 The concept of dignity is the first and primary principle within the 1991 UN Principles for Older Persons, which also include principles of independence, participation, care, and self-fulfilment.8 The concept of dignity and the need to protect and promote the rights of older Australians is also familiar to policy makers in South Australia, particularly those who have developed the South Australian Charter of the Rights and Freedoms of Vulnerable Adults.9 However, as the Royal Commission into Aged Care shows, integrating the concept of dignity into aged care policies, service delivery and regulatory and oversight frameworks takes more than familiarity with human rights concepts and language. It demands a ‘paradigm shift’ in the way we go about developing, implementing, enforcing and reviewing these frameworks. This article seeks to briefly summarise some of the key rightsrelated recommendations made by the Royal Commission in its Final Report and discusses their relevance for South Australia. It concludes by offering some thoughts as to the potential benefits of adopting a human rights approach to policy-making in this area in the future.
THE KEY HUMAN RIGHTS RECOMMENDATIONS MADE BY THE ROYAL COMMISSION INTO AGED CARE QUALITY AND SAFETY Many of the Royal Commission’s recommendations addressed issues relating to functioning of the system of aged care in Australia and its resourcing,10 but two key areas of recommended legal reform related to: • Developing a rights-based legislative
and regulatory framework for a new aged care system,11 and • Implementing new legal duties and standards relating to quality and safety.12 The Royal Commission’s very first recommendation is that the Aged Care Act 1997 (Cth) should be replaced with a new Act to come into force by no later than 1 July, 2023.13 The new Act should contain a list of rights of people seeking and receiving aged care and make it clear that those rights should be taken into account in interpreting the new law.14 The list of rights should empower people seeking aged care to have equitable access to care services and the right to exercise choice between available services.15 The rights of those already receiving aged care should also be included, in particular the right to: • liberty, freedom of movement, and freedom from restraint; • autonomy and the presumption of legal capacity; • make decisions about their care and the quality of their lives; • social participation; • fair, equitable and non-discriminatory treatment in receiving care; and • voice opinions and make complaints.16 The Royal Commission also explained that the rights of those receiving end of life care should also be specifically protected, as well as the rights of those providing informal care for others.17 These rights are to be supported by a set of key principles, also enshrined in the new Act, that would guide the administration of the Act. These principles include ensuring the safety, health and wellbeing of people receiving aged care and putting older people first so that their preferences and needs drive the delivery of care.18 Additional principles focus on ensuring that older people are treated as individuals and are provided with
