Kim O’KEEFFE (Shepparton) (16:15): I rise to make a contribution to the Aged Care Restrictive Practices Substitute Decision-maker Bill 2024. The purpose of this bill is to provide for the appointment of restrictive practices substitute decision-makers for the purposes of the Aged Care Act 1997 of the Commonwealth. In addition, the bill makes related amendments to the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes. The federal government in 2021 introduced new legislative requirements for residential aged care providers. Under the requirements, aged care providers are required to seek informed consent from substitute decision-makers to authorise the use of restrictive practices where a resident lacks capacity. As an interim measure the federal government introduced a temporary hierarchy to guide identification and appointment of substitute decision-makers. This hierarchy has been in place in Victoria for more than two years now, and aged care providers as well as residents have relied on it. However, currently as a state we do not have legislation that identifies and authorises substitute decision-makers to consent to the use of restrictive practices in residential aged care.
It is important that as a state we have legislation in place that addresses this gap by ensuring that we have frameworks that are clearly set out, ensuring that aged care residents receive appropriate supports. This bill seeks to establish a framework for identifying who can act as a restrictive practices substitute decision-maker. It does this by prescribing a hierarchy of decision-maker based on close and personal relationship to the aged care resident. Under the bill the hierarchy will only be engaged when the aged care resident does not have the capacity to provide consent for themselves. Under current legislation, providers are expected to seek informed consent from the aged care resident first and only seek out a substitute decision-maker if the aged care resident does not have the capacity. Instead this bill will allow aged care providers to identify substitute decision-makers through a hierarchy. Decision-makers will be identified in the following order of procedure: a substitute decision-maker nominated in advance and in writing by the aged care resident; a next of kin, who is to be identified based on someone who has a close and continuing relationship with the aged care resident; or finally, a decision-maker appointed by VCAT, should no other decision-maker be available. If no such person exists, as a last resort VCAT can act as the decision-maker.
It is important that providers cannot move to the next tier of the hierarchy simply because the decision-maker withholds consent. A decision to provide or withhold consent by a valid substitute decision-maker must be respected, but also the decision-maker must be someone who is willing and able to act at the time when a decision is required. They cannot be employed by the provider or have been involved in the development, implementation or review of the aged care resident’s behavioural support plan as an employee or agent of the aged care provider. The bill seeks to ensure that individuals have as much autonomy as possible around decisions that concern them through the nomination function. This is critically important because, as the bill prescribes, nominations by aged care residents must be in writing and witnessed appropriately to ensure that there is clarity and consistency around who such decision-makers are. New criminal penalties will also be created that will make it an offence for someone to coerce a nomination or to fraudulently act as if they are a nominee.
The bill also makes minor amendments to the Victorian Civil and Administrative Tribunal Act 1998. VCAT will act in an oversight capacity, including resolving disputes around nominations, appointments or decisions in line with legislative principles. The amendments in the bill will empower VCAT to act in an oversight capacity for the appointment of a substitute decision-maker and to act as a decision-maker of last resort should there be no other decision-maker who was reasonably identified. Aged care residents will be assumed to have capacity to make change or withdraw a nomination unless it is demonstrated otherwise. Under the bill VCAT will have jurisdiction to determine whether an individual has the capacity to make, change or withdraw a nomination and whether an individual is willing and able to act as a substitute decision-maker. Hopefully in these instances under the bill, as well as the hierarchy, any matter that has to be heard by VCAT can have some level of urgency applied in order for a decision to be made quickly.
It is important that aged care providers make decisions and act in accordance with the Commonwealth legislation, including both the Aged Care Act and the Quality of Care Principles 2014. Section 15FA of the Quality of Care Principles requires providers to only use restrictive practices as a last resort in the least restrictive form for the shortest amount of time possible, only issuing restrictive practices after less restrictive strategies have been attempted first.
The aged care provider must adhere to the Commonwealth requirements regarding determining whether an individual has capacity to provide informed consent for the use of restrictive practices or whether they require a substitute decision-maker. Under section 15HA of the principles, providers must assess the aged care resident’s behavioural support needs, and if restrictive practices are required, then providers must document this assessment and details of the proposed use of restrictive practices within a behavioural support plan. In addition to both of these sections, section 15HG requires that aged care providers must consult with the substitute decision-maker when preparing, reviewing or revising the use of restrictive practices.
In practice, substitute decision-makers can ask the aged care provider questions to satisfy themselves that they understand what they would be consenting to and whether it meets the Commonwealth requirements for appropriate use. Substitute decision-makers will be able to exercise their discretion to consent or withhold consent for the use of the restrictive practices. Aged care providers must allow for substitute decision-makers to consider the giving of consent without coercion or duress. The bill does not change how aged care providers can use restrictive practices in emergencies, such as in cases of immediate threat to life or harm. Aged care providers must still uphold their responsibilities under the Aged Care Act and the Quality of Care Principles, including on mandatory reporting and notification of emergency use.
Independent advocacy and support services will continue to have a role in assisting substitute decision-makers to make decisions about their loved ones living in residential aged care, including decisions related to financial matters, living arrangements and medical treatment decisions. As required, Victorians will be able to seek help from organisations such as Victoria Legal Aid, the Older Persons Advocacy Network and Seniors Rights Victoria, as appropriate.
I have seen firsthand the support a family member needs once they get to the stage of life of moving into aged care. My Uncle George never had a family of his own, and he was a very private person. He did not like to make a fuss, and he was a very independent man all of his life. My husband Brendan is his nephew, and he became his primary support person and next of kin. My husband did a wonderful job taking care of Uncle George – taking him to medical appointments, optometrist visits and even shopping for his favourite Tim Tams. Brendan recalls those times with such fondness. But as Uncle George aged and went into high care, I saw the importance of my husband’s role, having to make so many important decisions, and at times it can be really stressful because you want what is the very best for your loved one. Moving Uncle George into high care was a very stressful time, but it was the right decision. Uncle George passed away 12 months ago, and there would be many people like our uncle who do not have a family, as I mentioned, of their own. When someone else has to step in to make decisions when that person is no longer able, we now know that VCAT can assist.
The bill before the house is a step in the right direction by addressing the legislative gap we currently have as a state. By legislating a clear framework, it will ensure that aged care residents can receive appropriate behavioural supports in accordance with the Aged Care Act. Importantly, people entering or living in residential aged care can make decisions about their future care knowing that should the time come, a trusted and close loved one will have the ability to act in their best interest. It is crucial that we do as much as we can to support the elderly and their families to ensure that they are protected and that they are given the respect and the support they need to make the decisions that impact on them so greatly.
In closing, we know that there have been many issues with substantive care in aged care facilities, and this needs to be rectified. Aged care is a critical service for many vulnerable members of our community. I wish to acknowledge the many hardworking aged care workers. I have visited many of our local aged care residents many times. Like many industries, we know that there are staff shortages, which have an enormous impact on both the staff and the residents. We need to provide as much support as we can to ensure we are supporting people’s rights in aged care with dignity and respect and that they get the level of care they need and deserve.