Schedule 9 of the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 provides immunity to aged care providers who comply with the Quality of Care Principles under the Aged Care Act, 1997.
Rodney Lewis, Catherine Henry and Professor Wendy Lacey, three top elder abuse and human rights lawyers in Australia, oppose this legislation. To avoid stripping older Australians of their legal and human rights, Rodney Lewis suggests providers be given indemnity rather than immunity.
The following outlines Rodney Lewis’ proposal.
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In 2021 the former Federal government offered an indemnity scheme for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.
In the case of the offer of immunity to aged care providers, the legal risk arises in some states and territories because there is uncertainty and difficulty identifying who has the lawful authority to consent to restrictive practices. In the absence of lawful consent, the legal defences are imminent harm to the person, or imminent harm to others.
The solution proposed by aged care providers and adopted by the present and former Commonwealth governments is to offer immunity to providers who comply with the Quality of Care Principles.
Regrettably, immunity removes the basic legal and human rights of residents which has serious and some unprecedented social policy, legal and human rights consequences.
The possible solution is the offer of an indemnity, rather than immunity. Such a solution is workable based on the history of claims arising from unlawful restrictive practices in aged care. The number of recorded court cases over the last 25 years could be as little as six and not all were a success for the complainant.
To avoid the legal and constitutional challenges to the immunity proposal, the indemnity scheme may be vastly more acceptable, reasonable and preferable for all parties to the debate.