Human Rights for the Elderly in Australia

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Just the other day on 15 June 2020 we honoured World Elder Abuse Awareness Day, a day that highlights elder abuse in all of the forms it manifests itself.

Australia has had its own recent and continuing struggles with prevention of spread of COVID-19, and I feel proud to be both an Australian and supporter of most of our aged care providers in how they have managed well in these complex times.  As we know, our experience has not been shared with numerous other western nations.

Just one week ago, the Kaiser Family Foundation (“KFF”) released the following summary of data around prevalence and mortality rates due to COVID-19 in USA long term care facilities – for ease of discussion, let’s call them all nursing homes.  Remembering that the population of the United States of America is about 13 times that of Australia:

  • As at 11 June 2020, 44 States reported 9,192 current cases of COVID-19 infection in nursing homes;
  • Collectively, 43 States have reported a total of 230,776 COVID-19 cases in nursing homes;
  • From 40 States, there has been a combined total of 45,833 COVID-19 related deaths reported in nursing homes;
  • From 43 States, nursing home facility COVID-19 cases represent an average 15% of the States’ total cases reported;
  • From 41 States, COVID-19 related deaths represent 45% of total States’ deaths.[1]

Quite early in this pandemic period we have known that the elderly and medically compromised people were likely to over represent in case load and mortality rates.  But what are we expected to think when on World  Elder Abuse Awareness Day, Human Rights Watch reports that nineteen States have legislators increasingly refusing residents of facilities, access to justice under around civil and criminal lawsuits, inclusive of some instances of gross negligence.[2]

From this same Human Rights Watch article, “Even before the Covid-19 pandemic, regular inspections turned up serious concerns about infection control in many nursing homes in the US for years”, and “In addition to the nineteen States that have already passed immunity provisions, at least five other States are considering similar bills or executive orders, including California and Florida. A national bill limiting legal liability for all businesses, including nursing homes, has been discussed in the US Senate.”

I want to be clear here that we do not have this level of legal immunity in Australia, and, in my view, neither should we.  This is clearly unjust and removes simple rights for all people to have equal access under the law.  But is it that simple … ?

In Australia, we have, for example under the Aged Care Act Cth (1997), legislation that requires that a provider must have adequate staffing to meet the reasonable needs of one and all residents in care.  We know from recent Royal Commission expert testimony, and a recently published journal article[3] that the level of understaffing in Australian residential aged care services exists in approximately sixty per cent of facilities. 

That is simply unacceptable.  It breaches the rights of elderly people and their families and carers to receive an appropriate level of service at a time in life of advanced age and/or frailty, and multiple morbidity.  But with a similar proportion of facilities reporting negative financial operating outcomes,[4] it is reasonably clear that there is only one solution – funding reformation of the residential aged care sector.  Additional operating income can only arise from three sources:

  1. The legislator/regulator/quality assurance agency/lessor of approved places/care funder (that is the Australian Department of Health); or
  2. The Approved Provider out of their (what) profits or improved management of services; or
  3. The Resident/Client.

I don’t think so!

Are we in an environment of systemic (elder) abuse in Australia, with the Australian Government controlling that environment?

I have written occasionally about there being no United Nations Convention of the Rights of the Elderly.  Australia has repeatedly rejected such a notion.  Why?  Is it because if Australia agrees to support and be a formal party to such a Convention our national Government and/or its economic ideologies might be seen to be the reason behind recent decades of systematically defunding and preferred commoditisation our aged care system?  Whatever it is, we seem to introduce advocated reform for the protection of our elderly at less than the pace of a moribund snail.

Our elderly friends and family members deserve more than this.  And Australia – we all need to do better.

So, at the end of this week in which we have honoured World Elder Abuse Awareness Day, let’s not get caught in the illusion that our protection of our elders is greatly improving.  The largely excellent work around our protection of elders from the impact of COVID-19 is but one standout in an environment where we have much still to do!

Nice chatting

Wayne


[1]   KFF.  State Data and Policy Actions to Address Corona Virus.  16 June 2020.  At https://www.kff.org/coronavirus-covid-19/issue-brief/state-data-and-policy-actions-to-address-coronavirus/#long-term-care-cases-deaths.  Accessed 18 June 2020.

[2]   Human Rights Watch.  US:  Oversight, Not Immunity, for Nursing Homes.  15 June 2020.  At https://www.hrw.org/news/2020/06/15/us-ensure-oversight-not-immunity-nursing-homes.  Accessed 18 June 2020.

[3]   Kathy Eagar, Anita Westera and Conrad Kobel.  Australian residential aged care is understaffed.  Med J Aust 2020; 212 (11).

[4]   StewartBrown.  Aged Care Financial Performance Survey Sector Report (March 2020).  StewartBrown, Sydney, 31 March 2020.

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