Improving the protection of Human Rights for residents of Aged Care facilities

Publication published 4 June 2009

Improving the protection of Human Rights for residents of Aged Care facilities

Which human rights (including corresponding responsibilities) should be protected and promoted?

The rights to be protected and promoted under a Human Rights Act in Australia should stem from United Nations agreements to which Australia is a signatory. First and foremost these are the Universal Declaration of Human Rights; the Covenant on Civil and Political Rights; and the Covenant on Economic, Social and Cultural Rights. Australia is also a signatory to a number of other international human rights agreements which should also be readily considered.

Are these human rights currently sufficiently protected and promoted?

To a large extent, only a few human rights are expressly protected under the Australian Constitution. Other rights are provided protection as implied rights through federal and state legislation or are implemented through policy directives.

There are certain and significant limitations to how well human rights are protected in this manner. Along the political process – from legislation to policy directives and then on to service delivery – there are a number of ways for the protection of human rights to be eroded or annulled.

There are a number of areas concerning pensioners and the wider community in which human rights can be better protected. These range from transportation services; workers rights; health services; tenants’ rights; and care provision.

Nursing homes and aged care facilities are one such section in the field of care provision where the protection of human rights is continuously found to be severely lacking. The situation is all the more striking because residents of aged care facilities are afforded a “Charter of Residents Rights and Responsibilities” under the Aged Care Act 1997. Tragically, there are legislative, policy and service delivery procedures which fail to ensure that these rights are well protected.

The most immediate area in which the protection of residents’ human rights is noticeably lacking is in the direct provision of care. Strikingly, there is no mandated staff-to-resident ratio in aged care. As such, it is the aged care provider’s prerogative to determine the adequate number of staff. Without a required ratio, providers find this an easy avenue to reduce costs by reducing staff to the minimum level with which they feel they can get by. There is also no requirement for facilities to have nursing staff with an appropriate skill mix.

These two related staffing issues lead to most breaches of care. CPSA knows of many situations where patients have been left unfed and/or have been given the wrong medicine – either unintentionally or to be kept sedated – or have not been medicated at all. These instances compound the health issues felt by residents. Often, nurses have either a lack of time or a lack of experience in being able to adequately assess each individual resident’s state of health, allowing such things as bed sores, infections or other conditions to gradually worsen over time. These situations often become very acute because the majority of residents are in high care with very complex health needs. Residents who suffer from dementia, neurological disorders or a physical disability usually require constant and very structured care which simply goes unprovided.

A lack of adequate staffing can also mean that facilities fail to enact programs for proper, holistic and qualitative aged care. Diversional therapy programs can be inadequate or culturally inappropriate and fail to meet the physical and mental needs and capabilities of each resident. Without proper sensory stimulation residents experience loss of appetite and enthusiasm which leads to or exacerbates illnesses; face greater risk of falls due to weakness; have an increased chance of suffering from bed sores, bruising and other such chronic wounds from not moving for long periods; and are more likely to suffer from depression and isolation.

Residents in aged care facilities are also meant to have appropriate access to health care facilities. Due to a lack of adequate staff numbers or staff attentiveness, the need to bring in doctors or other health professionals may be disregarded. The situation is worse should residents need to visit a doctor or dentist at a health centre. In these situations, it can become the responsibility of the resident’s carer or next of kin to take them or organise transport to the health centre. Should this person charged with the responsibility not be able to do so, the provider is well within their rights to charge them or the resident so that a nursing staff member can accompany the resident. Considering such a high proportion of the resident’s income is paid in care fee, one has to question how the facility would treat a resident who cannot afford to pay whilst their carer or next of kin cannot afford to or refuses to pay as well.

CPSA knows of a number of instances where people have been forced to take their relatives to dentists to avoid additional charges. This is allowed to occur even though they have placed their relative in residential care because they can no longer adequately provide the care themselves. The provision of adequate health care is one of the fundamental reasons aged care facilities are part of the care system. How do these instances reconcile with a facility’s duty of care to its residents?

When residents’ human rights have been violated in nursing homes, it is very often the case that they are further violated by the very complaints processes under which residents are meant to be protected. The accountability of aged care providers is such that quality in aged care is measured more by the quality of compliance to standards and guidelines than by the quality of care provided.

There are serious concerns in the way complaints are investigated through the Complaints Investigation Scheme (CIS). Investigations are often heavily reliant on the recordings of the provider. This, of course, does not regard as an issue the fact that providers have an interest in maintaining their accounts in a better light than is really the case. The seriousness of this issue is illustrated through the fact that of some 7,500 CIS cases considered ‘in-scope’ – that is, were a breach of providers’ responsibilities may have occurred – in only some 12 per cent of these was a breach found. Considering the seriousness of ‘in-scope’ breaches, there is either an issue with investigation procedures or there are a very many people willing to make unsubstantiated serious complaints.

Furthermore, when the Aged Care Commissioner finds deficiencies in the way the CIS carries out investigations, there is no obligation on the CIS to act upon recommendations. This is all the more grave because the public has no way of finding information about complaints records. The naming of offending facilities can be avoided simply by those providers agreeing to enact a plan of action to correct transgressions. Whether these plans are actually enacted upon is not of any significance.

Spot checks, or visits, can also fail residents. The introduction of unannounced visits was intended to catch aged care facilities in the process of service provision. This compares to an announced visit which by nature could allow facilities the chance to ‘prepare’ by way of hiring additional staff and increasing supplies and equipment to give the impression of smoothly-run operation. Whilst assessors can turn up at a facility without prior notification, they are still unable to enter the premises until the provider approves their access. In essence this could also allow the provider to clean up certain obvious failings before assessment. Visits can only take place during business hours, which means the assessment of how a facility performs during nights and weekends cannot be assessed. It is the case that staff-to-resident ratios are lowest during the night even though the complex needs of many patients do not ease because it is time to sleep. Moreover, visits focus on a small set of specific outcomes which may mean that deficiencies against outcomes not assessed are ignored. Again, compliance is measured against provider records. Whether or not, for example, residents are regularly turned is inconsequential if charts say that this care has been provided.

How could Australia better protect and promote human rights?

Legislative and non-legislative measures are required to ensure that laws, policy development and service provision are all delivered with respect to human rights. Corporate and not-for-profit organisations, especially those charged with the provision of services subsidised or funded by the government – as is the case with aged care facility providers – should also be accountable against human rights obligations.

If a Human Rights Act were to be passed, it should ensure that bills introduced into parliament are accompanied by a statement of compatibility against the Act. A committee on Human Rights can also be enacted to examine bills in detail. Should a bill not be compatible with the Act, the government should have to provide a public explanation for this and, if an ‘incompatible’ bill passes into law, parliament should also be required to explain.

The Act should also ensure that public authorities develop Human Rights assessments or plans as part of policy development and decision-making. Public Authorities should also report annually on their compliance with the Human Rights Act. Corporate and not-for-profit organisations should also be required to enact such plans and reporting especially when providing services funded or subsidised by the government.

Through such legislation, the protection of human rights for those living in aged care facilities should be better assured. A Human Rights Act should help guide policy in a way that ensures the physical and psychological health and welfare of the resident is first and foremost. Providers should be more accountable for their duty of care to residents. Furthermore, the actions of government authorities should become more accountable and transparent, ensuring that the human rights of residents are not violated and that, should there be a violation, appropriate resolution is readily implemented.

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