Proposed federal aged care laws that would give providers immunity from prosecution over the use of restraints may breach international agreements on civil rights and torture, advocates say.
A bill legislating the aged care royal commission’s recommendations passed the House of Representatives last week, and is expected to pass the Senate this week. It implements 14 recommendations including new funding, a staff code of conduct, and an independent pricing authority.
It also mirrors a bill put forward by the Morrison government, which failed to pass the last parliament.
But advocates including the Australian Lawyers Alliance, Elder Law in Australia, and Aged Care Matters have called for urgent changes to schedule 9 of the bill. That section gives “immunity from civil or criminal liability” over the use of “restrictive practices in certain circumstances”.
The minister for aged care, Anika Wells, says the laws are necessary to prevent harm to other aged care residents and workers.
“It only protects people where all of the strong legal requirements around using restrictive practices are strictly followed,” a spokesperson from Wells’ office said.
According to the bill’s explanatory memorandum, the legislation will extend the provision “to the use of restrictive practices where a care recipient does not have capacity to consent”. It says the change is needed to address “unexpected outcomes” regarding interactions with state laws.
The memorandum notes it “may increase the use of” restraints, such as mechanical restraints like rails to prevent residents falling out of bed.
Rodney Lewis, an aged care law expert, said the provision must be “urgently” changed to not provide immunity when there is no informed consent, calling it an “appalling” idea that was not a recommendation of the royal commission.
“Aged care residents must retain the right to seek justice for a wrongdoing,” he told Guardian Australia.
“The current aged care bill includes a clause that will unfairly strip legal rights away from aged care residents.”
Lewis, Aged Care Matters director Sarah Russell, and Australian Lawyers Alliance solicitor Catherine Henry wrote a joint letter to Wells warning that the schedule 9 provisions were discriminatory.
“It is an extraordinary overreach of Constitutional powers for the federal government to grant aged care providers immunity from key legislation enacted by states and territories,” they wrote. “This includes immunity from writs of habeas corpus, consumer law, and the common law crimes of unlawful restraint, assault and battery.”
They claimed it may also breach Australia’s obligations under the International Covenant On Civil And Political Rights and the Optional Protocol to the Convention Against Torture.
They suggested the immunity proposal be changed to a government indemnity scheme for providers subject to legal action.
“People who have been abused should always have access to their common law rights, regardless of where the abuse occurred,” they wrote.
In a statement, Wells’s office said the measure would only grant protection in limited circumstances and would not give general immunity.
“There is no indemnity against the inappropriate use of restraint – there is only an indemnity if the provider has done everything right in a State or Territory that has no legislative provision for representative consent,” a spokesperson said.
“The amendment requires aged care providers to obtain consent for the use of restraint or ensure that a prescribing doctor has received consent.”
Wells’s spokesperson said the amendment was supported by the Council on the Ageing, adding that “without it, harm to older Australians and aged care workers could occur”.
Ian Yates, chief executive of the Council on the Ageing, said he supported the bill and did not share the concerns about schedule 9.
The Greens senator Janet Rice has proposed amendments to remove the immunity provisions.
“I’m yet to hear a reasonable case for why providers should be given this huge exemption if they have caused serious physical or psychological harm,” Rice said.
“Pursuing legal claims against aged care providers in response to abuse is already difficult and these changes would make it harder.”