Implementation of the Government’s aged care reform package has reignited debate regarding the role of human rights in aged care in Australia. The reforms present Australia with the opportunity to redefine our approach to the rights of older Australians, ensuring respect and dignity are at the centre of aged care, and seeking alignment with the UN Principle set out below.

UN Principles of Older Persons (1991)

14 Older persons should be able to enjoy human rights and fundamental freedoms when residing in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and the quality of their lives.

A report released by the Australian Human Rights Commissioner in 2012, Respect and Choice: A human rights approach for ageing and health, outlines a human rights approach for implementing the latest aged care reforms. In releasing the paper the Age Discrimination Commissioner noted that such an approach seeks to “promote people-centred decision-making and real change in organisational culture”.1

Where are we now?

From a legal perspective, the existing framework in Australia is largely inconsistent between states. Only the ACT and Victoria currently have Human Rights Acts or Charters required to inform legislation and policy, and these are not directly relevant to aged care. Notwithstanding the Aged Care Act 1997 (Cth), which deals largely with governance of residential aged care in Australia, no legislation expressly articulates or seeks to protect the rights of those in aged care.

The absence of a harmonised legal framework is coupled with the absence of a unified national policy or service delivery system. A unified system would require careful consideration as well as an understanding of the breadth of providers in the aged care sphere (community-based, private, religious etc.), who may have varying value sets underpinning the services they provide.

Best interests vs personal freedom

Those in aged care are a particularly and uniquely vulnerable group, especially where a person lacks decision-making capacity or has a cognitive impairment (such as dementia). In residential or aged care facilities people are often completely dependent on staff and carers. Concern for protection of human rights in such care has stemmed from recent reports of personal rights being compromised, particularly freedom of movement, food and hygiene standards, and personal autonomy. Despite the lack of sufficient or accurate data, and on occasion, sensational media reporting, any mention of such issues should warrant concern.

For medical professionals and care staff, questions arise pertaining to the appropriate balance between the ‘best interests’ of a patient and allowing fulfilment of personal freedoms like individual decision-making and physical expression. To what extent should non-medical interests be imputed into medical decision-making? And when does a decision made for a seemingly legitimate purpose become an invasion of human rights? These are very difficult decisions for people at the coalface, particularly in aged care.

The push for a human rights-based framework is not limited to the aged care sector. Such an approach could be considered for any profession where there is an ‘inherently unequal’2 (but not necessarily negative) power relationship, for example doctorpatient or lawyer-client.

A key element in successfully upholding human rights in aged care is that recipients must have the choices to which they are entitled. As the Productivity Commission commented in its Caring for Older Australians report, those in aged care should not just be passive participants in a system that is not rights-based and not culturally or even individually appropriate.

Where to from here?

These issues give rise to obvious challenges for healthcare professionals in the aged care sector. There is a balance to be attained about whether decisions should be informed by professional judgment, and/or by non-medical, human-rights based concerns. At the very least, those in aged care should expect the Government to support and guide healthcare professionals by developing a co-ordinated, accessible and well-monitored framework that centres on strong rights-based