Does the Albanian government really want to deprive older Australians of their rights?

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Does the Albanian government really want to be remembered as the one that stripped many older Australians of their fundamental human and legal rights?

The federal government has recently made numerous and welcome commitments to improve the lives of seniors living in nursing homes. However, there is a glaring problem with the elder care reform bill that was recently passed in parliament.

Schedule nine of the Elder Care Amendment Bill 2022 and Other Laws (Response of the Royal Commission) provides immunity to elderly care providers who comply with the quality of care principles under the Elderly Care Act of 1997. However, the specific principles of quality care needed to implement immunity provision have not yet been published.

Related: ‘Virtual’ nurses may be needed to fulfill 24/7 senior care team mandate, senior health executive says

Also, schedule 9 is unfair. It provides immunity for providers and their staff for some of the most objectionable aspects of elderly care – the use of restrictive practices without having obtained legal consent. Such practices, which include chemical restraint, physical restraint and seclusion, drew the greatest ire from the royal commissioners of elderly care.

The royal commissioners did not recommend that providers and their staff receive immunity for using restrictive practices. So why include this timeline in the elder care response bill?

It was claimed that legislative differences between states and territories pose a risk to elder care providers due to uncertainty and difficulty in identifying who has the legal authority to consent to restrictive practices.

The solution for elderly care providers is immunity if they comply with the unwritten Quality of Care Principles. The Morrison government, and now the Albanian government, simply adopted this solution.

However, granting this immunity is discriminatory because it denies seniors living in residential care – a vulnerable group of people – the same legal protections given to all other Australians.

It subordinates customary law developed over the centuries to regulations made under the Elderly Care Act. It is an extraordinary exaggeration of the constitutional powers to grant providers immunity from important legislation enacted by states and territories.

Annex nine could also violate Australia’s obligations under the international covenant on civil and political rights and the optional protocol to the convention against torture that Australia has signed.

It is also unprecedented to offer immunity to commercial companies. Many providers are private or publicly listed for-profit companies (Estia, Regis) and multinational corporations (Bupa, Opal).

Some government-funded “consumer” organizations have indicated support for schedule nine. However, independent elder abuse and human rights advocates and advocates who speak out without fear of losing government funding have expressed strong opposition.

The number of lawsuits filed against elderly care providers in the last 25 years is small, possibly only six, and the plaintiffs have not always been successful.

Given that residents and their families have rarely taken legal action – despite a well-documented record over decades of neglect, mistreatment and abuse of those in their care – the willingness of governments to protect approved elderly care providers is impressive.

One solution is to offer caregivers of the elderly indemnity rather than immunity. There are many examples of similar compensation schemes – most recently the one offered by the Morrison government to healthcare professionals who may be held liable to pay compensation for serious adverse events experienced by people receiving Covid-19 vaccines.

A compensation scheme would also avoid potential legal and constitutional challenges to the immunity proposal and ensure further delays in the Albanian government’s determination to reform the elderly care system.

Related: Immunity to use restraints on elderly Australians could violate torture conventions, lawyers say

People who have been abused must always have access to their common law rights, regardless of where the abuse took place. Rather than protecting suppliers from litigation, perhaps the government should encourage suppliers to take out insurance to protect their business interests if a resident takes legal action.

When the top three human rights and elder abuse advocates in Australia oppose this legislation, the government must listen. Certainly the Albanian government does not want to be remembered as one that has taken unprecedented action simply to protect the profits of elderly care providers, many of whom are multinationals, over the rights of vulnerable Australians.

A solution was on the table. The government is choosing not to accept.

• Dr. Sarah Russell is a public health researcher and elderly advocate

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