A legal perspective on the proposed single Draft Charter of Aged Care Rights

Minister for Senior Australians and Aged Care, Ken Wyatt, has announced a public consultation on a draft Charter of Aged Care Rights, which both the person entering care and provider will be expected to sign. However, there are a significant number of 'rights' which appear in the current Charter, which are not replicated in the proposed Charter.

The rights proposed to be omitted include:

  • the right to live without exploitation, discrimination or victimisation;
  • to move freely within and outside the aged care home without undue restrictions;
  • continue religious practices;
  • freedom of speech;
  • take responsibility for actions and choices involving risk;
  • maintain control over possessions;
  • being involved in activities inside and outside the home;
  • to be consulted on living arrangements;
  • to have access to advocates and to be free from reprisal.

On the positive side, care and services are to be 'safe and [of] high quality' - although how this is to be achieved in the absence of federally legislated staffing levels and skills remains to be seen.

The Charter refers to consumer rights. This is another step along the pathway leading away from the notion of care and into the business realm of consumer. However, if aged care providers take this path they are bound to acknowledge and disclose to the people to whom they have a duty to inform, of their real consumer rights - the rights to which all Australians have access.

The rights which are applicable and to which the Minister, the Department of Health and aged care providers have been derelict in their duty by not drawing them to the attention of residents when they complain, include:

  • The implied guarantees of service;
  • Claims of unconscionable conduct, and
  • The prohibition on the use of force in providing services (as, for example, in unlawful restraint).

None of these consumer rights, which appear in the Australian Consumer Law, have ever featured in any publication from the Department responsible for Ageing and Aged Care.

Another feature of the current and all previous iterations of the Rights, is that the Aged Care Act itself renders them unenforceable. It is therefore, quite misleading for the Minister to be trumpeting simpler, better “Rights”.

He and his Department know, or ought to know by common sense, that many of the residents or ‘consumers’ when they are told they have Rights, assume they or their families could initiate action themselves to achieve those Rights, as opposed to merely lodging a complaint and waiting for a bureaucratic response.

The Minister has the power to require the Rights to be incorporated into residential care contracts (contracts which must be offered to every intending resident), without amending the Act. That step alone will allow the Charter of Rights to become enforceable.

He therefore needs to amend the (so-called) User Rights Principles by Ministerial instrument. No funds needed from the Budget. Over to you, Minister.

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Author: Copyright 2018 Rodney Lewis, Senior Solicitor, practising in Elder Law (Mona Vale, NSW) - Contact the author