Exploitation fears over SA government aged care changes
Previously, a substitute decision-maker or guardian had to apply to the South Australian Civil and Administrative Tribunal (SACAT) for the powers. (ABC News: Eugene Boisvert)
In short:
The South Australian government has passed law changes that make it easier for a family member to move an elderly loved one from hospital into aged care.
But aged care advocates fear it weakens independent oversight of these decisions and leaves older people with dementia more vulnerable to financial abuse.
The changes come as the state government grapples with more than 250 patients in public hospitals who are waiting for an aged care bed.
The state government has been accused of jeopardising the rights of older people as it tries to speed up the movement of hospital patients into aged care.
The accusations centre on a bill which quietly passed parliament last month expanding the powers of substitute decision-makers and guardians to move hospital patients into specialised dementia facilities.
The legislation gives substitute decision-makers — typically a family member, carer or friend of an older person who has diminished capacity to make their own decisions — the power to "authorise the detention of the person for the purposes of transporting" them from hospital to an aged care facility.
They will also be allowed to authorise that person's detention in an aged care facility, provided it is "reasonably necessary" to prevent or reduce a "significant risk of serious harm that the person presents to themselves or to others".
Previously, a substitute decision-maker or guardian had to apply to the South Australian Civil and Administrative Tribunal (SACAT) for these special powers and justify why they were necessary.
The state government said the changes, which passed with bi-partisan support two weeks ago, were intended to "alleviate any delays associated with administrative processes" when moving a hospital patient into aged care.
But aged care advocates claim it weakens independent oversight because SACAT would not need to review detention orders for up to six months.
"The current system requires that to be done before the person is effectively moved," Aged Rights Advocacy Service chief executive Carolanne Barkla said.
"So, we seem to be sacrificing the rights of older people for expediency."
Carolanne Barkla is concerned about the changes. (ABC News: Nicola Gage)
Ms Barkla offered the hypothetical example of an older person with dementia who was living at home with full support.
If that person had a fall and was admitted to hospital, a substitute decision-maker could then approve the detention and transportation of that person into an aged care facility — against their will — without an independent review for up to six months, Ms Barkla said.
"[The substitute decision-maker] may well see an opportunity that they can now place an older person into a residential aged care facility and possibly accelerate their inheritance or access to controlling the older person's finances," she said.
"We should not be sacrificing the liberty of older people without having some independent oversight and the ability for them to be able to say, 'I don't agree, and this is why I don't agree'.
"Doing that six months later is not appropriate."
The government has previously said the six-month review time frame was a maximum and "in many cases" SACAT would review the order earlier.
It has also said substitute decision-makers would be taking advice from hospital clinicians as to whether the older person needed to be in aged care.
Changes align with other states, government says
A decision-maker's order to detain a person for transport to aged care must be made in writing to the hospital, which then must immediately refer it to the tribunal for review.
The government said substitute decision-makers and guardians could already move their loved ones into an aged care facility without going to SACAT, with the new legislation only extending that power to include specialised dementia facilities.
"These changes align our laws with states across the country," Health Minister Chris Picton said.
"South Australians should not miss out on a federal aged care bed while they are awaiting additional delays that do not happen in other states.
"Aged care is tightly regulated by the federal government to ensure the safety and rights of all residents."
Chris Picton says the changes "align our laws" with states across the country. (ABC News)
'I can't see how this legislation is going to work'
The Malinauskas government has regularly cited a lack of aged care beds as one of the key reasons ambulance ramping persists across Adelaide metropolitan hospitals.
More than 370 patients were in SA Health's care last month — including 262 in public hospital beds — waiting for a federal aged care place, according to government data.
Professor Richard Bruggemann, a long-time advocate for people with an intellectual disability, accused the government of trying to "[solve] a problem in the hospital system by trampling on the rights of older people".
"I can't see how this legislation is going to work," he said.
"Because even if you have that authority to have your mum put into an aged care facility, there are no places in aged care."
Richard Bruggemann says he "can't see how this legislation is going to work". (ABC News: Che Chorley)
Professor Bruggemann said while guardians have always had the capacity to make aged care decisions for their parents, he was still worried about unintended consequences.
"Some slimeball might be looking at this saying, 'oh, I can use this to get mum out of our house and sell the place'," he said.
"Because this legislation speeds up the process whereby those decisions can be made.
"Now if somebody's looking at that decision [at the tribunal] and saying, 'oh no, I understand what you're doing, your mum doesn't need this level of intervention' — I think that's a safeguard, and that's going."
Changes to make carers lives 'a little bit easier'
Liberal MLC Michelle Lensink was the opposition's lead speaker on the bill in the Upper House.
She also has experience dealing with SACAT and substitute decision-making, given both her mum and dad have had dementia. Her dad passed away in September.
She said removing steps in the SACAT process would make the lives of carers "a little bit easier".
"Just dealing with these issues with my own parents — you need the checks and balances in there, but you've got to be realistic about dementia and it's non-reversible," she said.
Michelle Lensink has personal experience dealing with SACAT and substitute decision-making. (ABC News)
"The amount of paperwork and red tape that you have to go through is just phenomenal.
"So, I think we need to be mindful of trying to make the right decisions on behalf of people who are affected by these conditions, but not make it unnecessarily onerous for families, carers and also the places in which they're cared for."
Ms Lensink added that she thought the law changes were a "small thing" and she was not sure they were going to "revolutionise anyone's experience".
A spokesperson for SACAT said it was an independent decision-making body tasked with undertaking work deemed appropriate by the parliament.
"SACAT was consulted and is ready to implement the changes," the spokesperson said.