1st Aug 2022, 7:39 PM – Senate Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 - in Committee - Immunity from prosecution

The majority voted in favour of a motion that items (3) and (4) of schedule 9 stand as printed. In other words, they voted to keep those items unchanged.

What are items (3) and (4) of schedule 9?

Victorian Senator Janet Rice (Greens), who proposed to remove these items from the bill, explained that:

I didn't receive any good rationale as to why there should be immunity from prosecution for restrictive practices after they've gone through all of the various hoops. Yes, let's make sure that the provisions are appropriate, but at the end of the day there does not seem to be any justification for giving immunity from prosecution to providers for those circumstances. My amendment would remove the second half of schedule 9.

Text of items (3) and (4) of schedule 9

3 At the end of Division 54

Add:

54-11 Immunity from civil or criminal liability in relation to the use of a restrictive practice in certain circumstances

(1) This section applies if:

(a) an approved provider provides aged care of a kind specified in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f) to a care recipient; and

(b) a restrictive practice is used in relation to the care recipient; and

(c) the care recipient lacked capacity to give informed consent to the use of the restrictive practice.

(2) A protected entity is not subject to any civil or criminal liability for, or in relation to, the use of the restrictive practice in relation to the care recipient if:

(a) informed consent to the use of the restrictive practice was given by a person or body specified in the Quality of Care Principles made for the purposes of this paragraph; and

(b) the restrictive practice was used in the circumstances set out in the Quality of Care Principles made for the purposes of paragraph 54-1(1)(f).

(3) Each of the following is a protected entity :

(a) the approved provider referred to in paragraph (1)(a);

(b) an individual who used, or assisted in the use of, the restrictive practice in relation to the care recipient referred to in that paragraph.

4 Clause 1 of Schedule 1

Insert:

protected entity has the meaning given by subsection 54-11(3).