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uth Australia’s government has enacted new legislation aimed at accelerating the transfer of elderly hospital patients into aged care facilities, sparking significant controversy. Critics contend the reforms, which expand the powers of substitute decision-makers, risk jeopardising the rights and safety of vulnerable older individuals by reducing independent oversight. The amendments passed parliament recently, drawing accusations of prioritising administrative efficiency over patient protection.
The contentious bill allows substitute decision-makers, typically family members or close associates, to authorise the “detention” and transportation of patients with diminished capacity from hospitals to specialised dementia care facilities. Crucially, these powers can now be exercised without immediate prior approval from the South Australian Civil and Administrative Tribunal (SACAT), a departure from previous requirements for such authorisations.
Under the revised framework, a substitute decision-maker can approve an individual’s placement and detention in an aged care facility if deemed “reasonably necessary” to prevent serious harm to themselves or others. Previously, these specific powers necessitated an application to SACAT, requiring a formal justification for their implementation. This tribunal review acted as a critical safeguard for the patient’s autonomy and welfare.
Aged Rights Advocacy Service chief executive Carolanne Barkla has voiced profound concerns, asserting that the new laws weaken independent scrutiny. She highlights that SACAT may not review these detention orders for up to six months, a significant delay compared to the previous system which mandated pre-placement tribunal approval. Ms. Barkla argues that the state appears to be “sacrificing the rights of older people for expediency.”
Barkla presented a hypothetical scenario where an older person with dementia, living with full support at home, might suffer a fall leading to hospital admission. Under the new legislation, a substitute decision-maker could then approve their involuntary transfer and detention in an aged care facility, without an immediate independent review, potentially against the individual’s wishes. This scenario underscores fears of expedited placement without sufficient checks.
Furthermore, Ms. Barkla warned of potential exploitation, suggesting that some substitute decision-makers might perceive an “opportunity” to place an older person into residential care, potentially accelerating access to their inheritance or control over their finances. She stressed the paramount importance of independent oversight to protect the liberty of older individuals, allowing them to contest decisions, rather than having reviews occur months later.
Professor Richard Bruggemann, a long-standing advocate for individuals with intellectual disabilities, echoed these concerns, accusing the government of attempting to resolve hospital system issues by “trampling on the rights of older people.” He also expressed skepticism regarding the legislation’s practical impact, noting that a persistent lack of aged care beds might undermine the intended goal of freeing up hospital capacity.
The state government, however, maintains the changes are vital to streamline administrative processes and address significant delays in transferring patients. Health Minister Chris Picton stated the amendments align South Australia’s laws with those in other Australian states, ensuring residents do not miss out on federal aged care beds due to “additional delays that do not happen in other states.” The government also affirmed that aged care remains tightly regulated federally.
Officials clarified that while substitute decision-makers could already move individuals into aged care without prior SACAT approval, the new legislation specifically extends this power to include specialised dementia facilities. They also noted that substitute decision-makers are expected to consult hospital clinicians, and while the six-month review period is a maximum, many orders would be reviewed by SACAT earlier.
Liberal MLC Michelle Lensink, who led the opposition’s debate on the bill and has personal experience with substitute decision-making due to her parents’ dementia, supported the changes. She argued that removing steps in the SACAT process would alleviate the “phenomenal” paperwork and red tape burden on carers, making their lives “a little bit easier” while still acknowledging the necessity of checks and balances.
The Malinauskas government has frequently cited the shortage of aged care beds as a primary factor contributing to ambulance ramping in Adelaide hospitals. Government data from last month revealed over 370 patients within SA Health’s care, including 262 in public hospital beds, were awaiting placement in a federal aged care facility. The legislative changes are part of a broader strategy to alleviate this pressure.
Despite the government’s assurances and the bipartisan support the bill received, a fundamental tension remains between the drive for efficiency in the healthcare system and the imperative to protect the autonomy and rights of vulnerable older persons. The debate continues to highlight the complex ethical and practical challenges in balancing patient welfare with systemic pressures in aged care.
