On Tuesday, at an Aged Care Royal Commission public forum, it was heard that staff at a Victorian nursing home complained that Ruth Lyall – an elderly woman suffering dementia – was taking up too much of their time and they labelled her daughter Janet a “troublemaker” for making complaints.
As reported in the Guardian, Janet Lyall said that it was common for her mother to be left in bed until 11 am without having been bathed or used the toilet. And amongst the 300 people at the Bendigo forum a shortage of aged care staff and a lack of empathy were reoccurring issues raised.
The royal commission was established in response to the inquiry into the Oakden nursing home. It found evidence of numerous incidents of rough handling, excessive use of physical and chemical restraints and a high level of injuries having taken place at the since-closed Adelaide facility.
At the first hearing of the royal commission on 18 January, commissioner Richard Tracey said, “The hallmark of a civilised society is how it treats its most vulnerable people and our elderly are often amongst our most physically, emotionally and financially vulnerable.”
And while the commission is receiving submissions until mid-year, one that’s already with the inquiry suggests that a UN oversight protocol to prevent abusive treatment in closed environments that the government is about to apply to places of detention should be rolled out into aged care facilities.
“The royal commission announcement being made exactly one year after the closure of the Oakden Older Persons Mental Health Service was no mistake,” explained Steven Caruana, an inspection and research officer for the Office of the Inspector of Custodial Services Western Australia.
Making clear that the views he expressed were his own and not those of his employer, Caruana said that while inquiries into Oakden “uncovered gross mistreatment and significant systemic failures”, the Carnell-Paterson report on the Adelaide centre stated these were not unique to it.
A further telling sign of just how common mistreatment and neglect is in the Australian aged care system, Mr Caruana points out, is that the royal commission has already received over 1,200 submissions.
Mr Caruana is a Winston Churchill Memorial Trust fellow. The report he produced for his fellowship outlined the effect the Optional Protocol to the Convention Against Torture (the OPCAT) is having overseas. And in his royal commission submission he suggests this be applied to aged care.
Preventing abuse inside
The OPCAT was adopted by the UN General Assembly in 2002. And although Australia signed it in 2009, it wasn’t until December 2017 – following the Don Dale revelations – that the federal government ratified it and agreed to roll it out by 2020/21.
This means that closed environments in this country, such as prisons and secure mental health facilities, will be randomly inspected by local bodies called National Preventive Mechanisms (NPMs), as well as the United Nations Subcommittee on the Prevention of Torture (SPT).
The difference with OPCAT inspections compared to more traditional forms of monitoring is it has a focus on prevention, whereas in the past inspecting bodies have tended to give reactive responses to problems once they have already arisen.
Protection from reprisals
According to Caruana, OPCAT inspections should be applied to the aged care sector as they provide a number of benefits. And he suggested that the two most significant ones are “protection from reprisal and a preventive, rather than compliance focus”.
“An oversight system cannot be conducive to the free flow of information if residents and their families feel they will be punished, or provider staff fear their employment will be terminated,” Mr Caruana told Sydney Criminal Lawyers.
The custodial services inspection officer pointed to the Carnell-Paterson report, which identified the greatest “barrier to making a complaint was the fear of reprisals”. But, the OPCAT provides statutory protections to any one supplying information, whether that be a patient, family member or staff.
“This means retaliation or payback could lead to financial penalty or imprisonment,” Mr Caruana continued, adding that this safeguard should actually “encourage people to come forward with their grievances and to speak to inspectors”.
Before mistreatment occurs
The preventative nature of OPCAT inspections is another key element that makes it an attractive option for aged care, explained Caruana. The “approach is consumer centred looking beyond mere compliance with standards and regulations to identify those issues that are not easily quantifiable”.
Former SPT member and New Zealand High Court Judge Dame Lowell Goddard told Mr Caruana in the past that the “tick box approach” doesn’t actually reveal anything about the atmosphere and culture within a closed environment. And nor does it reveal “how people are actually being treated”.
“The OPCAT focus is on the ‘lived experience’ of those who are institutionalised and those who work within the facilities, seeking to be collaborative rather than adversarial,” Mr Caruana stressed.
Existing regulatory mechanisms
The Productivity Commission in 2011 found the aged care regulatory system was unsatisfactory and needed consolidating. It used to be comprised of the Aged Care Quality Agency and the Aged Care Complaints Commission, along with some functions being carried out by the health department.
Established last January, the Aged Care Quality and Safety Commission has amalgamated the regulatory tasks the other agencies had formerly undertaken. And Caruana said that it’s too early for anyone to comment on the adequacy of the new oversight body.
Protecting the elderly
Mr Caruana stated that where it has been applied to the aged care sector elsewhere in the world the OPCAT has had positive outcomes. And he pointed to its successful implementation in the United Kingdom and New Zealand as having most relevance to Australia.
UK Care Quality Commission inspector Mat Kinton has stated that over recent decades in England he has witnessed cases of elderly patients being strapped to chairs or toilets, give poor dietary and fluid care, as well as having heard of the verbal, physical and sexual abuse of those in aged care.
And with the revelations of mistreatment already provided to the royal commission, including the reported 3,773 assaults in nursing homes during 2017/18 the inquiry was told about last month, it seems certain more horror stories similar to Kinton’s will surface during the investigation.
“It is unsurprising then that Mat believes that it is ‘a primary duty of an OPCAT body to cover elderly residential care facilities”, Mr Caruana concluded.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.