Human Rights Accountability and Redress for Systems of Ill treatment in Residential Aged-Care

Abstract

Australia’s handling of the COVID-19 pandemic in 2020 will require significant reflection, scrutiny and systems-based reform because there were avoidable deaths, particularly in residential aged-care services (‘RACS’). The deaths in Newmarch House in Sydney in April-May 2020 made it the first RACS subjected to scrutiny by the media (an ABC investigation), and the Royal Commission into Aged Care Quality and Safety’s COVID-19 focused hearings and report. It will also be the subject of a coronial inquest in 2021. This article uses Newmarch as an illustration of the system-wide failure to protect the human rights residents in RACS. It is argued that the current system of monitoring by the Aged Care Quality and Safety Commission is deficient and that reactive mechanisms, including Royal Commissions and inquests, have significant limitations. Australia should therefore follow in the steps of New Zealand and extend the Optional Protocol to the Convention Against Torture (‘OPCAT’) monitoring regime to RACS. This would provide residents of RACS deprived of their liberty with the same preventive protections afforded by the OPCAT to all Australians deprived of liberty. This is protection that they are legally entitled to under the OPCAT, and which the events of Newmarch demonstrate is woefully lacking.

Keywords: human rights, aged care, OPCAT, COVID-19, Aged Care Quality and Safety Commission, Royal Commission into Aged Care Quality and Safety, coronial inquest