The government needs to stop illegal detention of older people

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It is 2020. This year I tried to get my parents out of jail many times. It was very hard to do and went on for months. In the end, it was only when my Dad started dying that things really changed.

Mum and Dad were in an aged care facility where management would not let them leave, detained them in their rooms, forced them to have COVID tests, and would not let them have visitors for weeks at a time.

Mum and Dad in illegal detention in Aged Care
Mum and Dad during a “window” visit. Dad is not impressed – the wheelchair hurts, he can’t hear me, and he can’t see me through the glass. Mum is complaining about the breakfast. How about soft boiled eggs for a change?

My Dad, aged 90, died in September. Mum, 92, died in October. COVID-19 had nothing to do with their deaths. But fear of COVID-19 had lots to do with how they were treated by their aged care provider in the months before they died.

I want to say thank you to the staff for looking after Mum and Dad and doing their best to support our family, especially in the last few weeks. And I acknowledge that this provider was great on infection control – to my knowledge no resident there was infected.

But I am concerned about the position that head office took and steadfastly held for months to overly restrict the lives of the residents – far beyond state government directive requirements.

From what I can see, illegal detention, false imprisonment and even the tort of battery have been “business as usual” across Australia under the reign of COVID-19. Even when nobody in a facility had the virus, or there was no real risk of transmission.

Even in the case of outbreaks, the spread of COVID in aged care was usually due to transmission from staff or poor infection control, not from residents, and not due to visitors.

Governments and regulators need to take simple steps to stop these unlawful restrictions across the aged care sector immediately.

Somehow the COVID reign ushered in a new world where we pretended the law didn’t exist, at least for older people. But fear of an infectious disease does not suddenly give property managers the right to detain people, ban them from seeing their families or prohibit them from getting exercise or fresh air.

Those who think that COVID changed our fundamental legal system are delusional. I am a barrister. I’ve done aged care legal work and I also train public servants in what is called ‘administrative law’. I teach people about legislation and where to find statutory power. I know from many years of training government that there is a widespread tendency to favour policies, codes and guidelines over the law. It’s wrong, but it’s common.

During my parents’ lives, we took for granted basic human rights that are an integral part of the Australian way of life, such as freedom of movement and the right to socialise.

Mum and Dad when they were free to walk around.  Before their illegal detention.
Mum and Dad in happier times of freedom – before they went into a Facility.

But our aged care providers, governments and regulators don’t seem to really care about these rights. They took them away, stood by watching, or encouraged their removal.

Providers can’t just sweep away these rights. They don’t have authority. They are just property managers who provide care to people. They are not lawmakers. Nor prison wardens. In Australia, if somebody detains you or imprisons you without lawful authority, they will be committing a tort or even a crime. They can be sued, and ordered to pay significant sums to the falsely imprisoned person.

Jeremy King, a solicitor who has sued the police for false imprisonment, has seen a court award $30,000 for 30 minutes of false imprisonment. He says: “In addressing the health concerns of COVID-19, it was imperative that a balance be struck between combating the virus and ensuring an individual’s basic civil liberties were protected. If those in aged care were simply locked away without lawful justification and/or without reference to the statutory health restrictions at the time, this is prima facie a case of false imprisonment.”

What would a provider have to pay in damages if they were sued for false imprisonment? What if they locked you up for two weeks? Or 66 days?

Providers have been locking up thousands of people and banning them from social contact – even when no rational threat of COVID existed in those homes. Residents have lost health and mobility. They haven’t been allowed to walk around the corridors or step out into the garden. They have become depressed. They have wanted to die. In fact, how many of them have actually died because of this inhumane and illegal treatment?

Let’s be clear. I am not raising issues about state government health directions made under legislation. I am only raising issues about providers locking people in their rooms and banning visitors with no statutory government directions. Fear of COVID-19 does not create the power to detain.

It’s simple. We don’t need to overcomplicate things. Let’s just read the law. Commonwealth legislation says that aged care residents have rights to “move freely both within and outside the … service without undue restriction”, to “select and maintain social and personal relationships with anyone else without fear, criticism or restriction”. Providers have to protect these rights.

But the Aged Care Quality and Safety Commissioner’s letter to “approved providers” on December 7 does not highlight these legislative rights. Nor does the Industry Code for Visiting Residential Aged Care Homes during COVID-19, an “agreed industry approach” with input from government. Sorry, but you can’t “agree” amongst yourselves to imprison people. You can’t use terms like “balancing risk”, “best practice” or “escalation tiers” to avoid the clear imperatives of the law.

I don’t want to live in a country where we treat elderly people differently, trample on their rights, and ignore the law when we feel like it. I realise nobody wants to die from COVID-19. Nor does anyone want their aged care facility to be slack about hygiene.

But that doesn’t justify unlawful detention or banning visitors at a provider’s whim. If a provider claims: “I’m caring for you”, “I have the best intentions”, “I’m balancing risk” or “I don’t have enough staff to handle visitors”, it doesn’t mean they have the power to lock you up.

Providers need to follow the law. Regulators and governments need to enforce it. Clearly, succinctly, and swiftly. There’s one clear message for providers that regulators need to say now: “You cannot detain people or prevent visitors to them unless you have statutory authority. If you do this without authority, you could be sued for false imprisonment, and you will certainly be sanctioned.”

Fiona McKenzie is a Melbourne barrister and a trainer in administrative law.

This article was published in The Age and the The Sydney Morning Herald on Monday 14 December 2020.

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Hotel Quarantine Covid Decision Making

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Covid 19 has brought unprecedented times to Australia and the world.  Is this sometimes an excuse for lack of transparency by government?  What does our administrative law lens tell us?

administrative law training
Group Think Tank

Sometimes the community gets more passionate about administrative decision making than other times.

If that decision making appears to have led to illness and death, the community becomes more interested.  Like now.  We have a Hotel Quarantine Inquiry in Victoria, because the view has been taken that bad decisions led to many more Covid cases in Victoria than should have happened.

I said in my last post that administrators should be transparent about their decision making.  And they should also be transparent about who the decision makers are.  It is better for everyone.  More transparency in my view maximises the chances that administrators will make sure that their actions are lawful.  They will know that they are going to be called to account for any decision they make, because their name will be on the decision, and the community will be told who they are.  

As I sent my previous “Covid” post, Victorian Premier Daniel Andrews was being questioned in the Covid 19 hotel quarantine inquiry about who made any decision regarding the hiring of security guards for people in hotel quarantine in May.  This inquiry is important because failures in this quarantine process have been found to have led to almost all of the Covid cases in Victoria after that time. It’s been called a “second wave”.

The Premier agreed in sworn testimony on Friday 25 September 2020 that it looked as though “collective decision making” – where no decision maker is identified and where a group somehow forms a view together – had occurred.  He didn’t agree with it.  He said “My understanding of collective decision making does not remove accountability”. Jenny Mikakos, former Health Minister, has since resigned, even though she did not make the key decision or decisions regarding management of the Hotel Quarantine.

It’s all very well to put our collective sins onto a scapegoat, but what are the fundamental problems here? While scapegoats are being identified, nobody has come forward to claim key decisions as their own.

Individuals in government make administrative decisions.

When I run training seminars for government decision makers, I always emphasise that administrative decision making – particularly where it affects a person or two – is an individualistic activity in our democratic system.

We have Acts of Parliament which give powers (statutory powers) to individuals.  Those individuals might delegate those powers to other individuals.  But it is an individual who gets those powers – not a “team” or a “unit”. If the Act says an individual can make a decision to intrude on the rights of a citizen, or to take away an entitlement, or other things of this nature; then generally speaking it is only a named individual who can make those decision.

What we have is a terrific system of law that requires decision makers to “make up their own mind”, to exercise their own individual judgment, and to be accountable for their decisions.  Accountability means that those decision makers might be challenged by the citizen.  It’s part of our democratic rule of law.

Group Meeting
Group Meeting

Group think tanks are not accountable and can be unlawful.

Collective decision making by some kind of ESP process, or series of meetings and emails, without identification of a decision maker, or of a date on which a decision was made, is sometimes adopted in government departments. I get the impression that it is seen as a good thing by some consultants who have some odd view about “risk”.  They seem to think that group decision making is risk averse.  If everybody “agrees”, then we will avoid the risk of an individual “getting it wrong”.

Group decision making like this isn’t risk averse.  It’s risky. Particularly if you are restricting the rights of citizens. And especially if you are exercising powers under a statute. It’s risky because decisions made under a statute are often required to be made by one individual. Parliament determined that this was the way to do it when they passed the statute.  

A “risk” analyst should be taking into account the risk of making unlawful decisions which are contrary to the statutory regime.

But often they don’t.

Group decision making is also risky because it doesn’t allow the community to identify when a decision is made, who is accountable for it, and how it could be challenged, or how it could have been avoided.
It’s risky because, in the end, a collective “decision” or forming of a view, with no documentation evidencing it, does not allow for monitoring of that position, or testing of it against either rule of law or the risk of certain outcomes.

Scapegoating someone isn’t enough to change the system.

In government, people should be very careful about the group think tank approach.  They should get training in administrative law rather than relying on consultants who don’t know about the law, and who have some kind of limited view of “risk”.

In the current hotel quarantine inquiry, one or more scapegoats are being sent out into the wilderness.  Job done.

But what about the faulty decision making processes adopted within government – the ones that seem to be so favoured and so entrenched?
What about the cultural norms regarding so called “risk averse” group think tanks – which are so risky?

Get some admin law training!

If you think your organisation needs a cultural shift – something to edge it towards lawful and transparent decision making, and away from collective avoidance of accountability and risk – they can certainly get some administrative law training.  We’ll be happy to help. 

Let’s not be afraid of being accountable, it will make all our lives better.

admin law
Group Decision

If you need to know more about administrative law sooner rather than later, you can purchase access to our videos and do our quizzes online.  Or sign up to our next online course coming up soon. There are a couple in November.

Unprecedented Unlawfulness in Covid Times

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administrative law
Architecture with Mask

Covid 19 has brought unprecedented times to Australia and the world.  Is this sometimes an excuse for lack of transparency or unlawful action by government?  What does our administrative law lens tell us?

Administrative law compliance is fundamental for government administrators, and private operators in regulatory environments.

I always say this.  That’s what our training and video series is about.
I also think that administrators should be transparent about the legal requirements they impose – so that the community can understand what they can and can’t do, and the legal basis for it.

That will reduce the chance of manipulation and fear. It will also maximise the chances that administrators will make sure that their actions are lawful.

admin law au
United Nations Covid-19 Swab Test Image

Like most of us, I have been quite shocked at what has happened this year since Covid 19 entered the world.  I have been particularly surprised at the lack of understanding of lawfulness, and how to communicate it, by those in government or those responsible for communicating government messages.

It’s amazing what fear and rhetoric can do.  No matter how little evidence or legal framework underpins such fear or rhetoric.

Get ready for complaints, because once the Covid panic is over (which will surely happen), and we reflect, there will likely be a few legal cases challenging the “unprecedented” unlawful decisions made in these “unprecedented” times.

As I said to an administrator the other day – yes, these are unprecedented times, but we still have to follow the law!

United Nations Covid Response – Truth v Rumors

I will have a few more things to say about admin law and Covid in the coming weeks.  For this email, I say this.

Be careful about oversimplification. 
Maybe this message applies to “Comms” people in government, or politicians, or bureaucrats sending people letters.  But it is also a useful message for those receiving messages from those in power.  Maybe the messages that you are reading are oversimplified.

Oversimplification can be extremely misleading.  It can cause anxiety unnecessarily, or it can make people think that the law requires them to do certain things, when it doesn’t (which might be a desirable outcome for some, but I doubt is in the public interest).

“Stay at home” story
An obvious example of Covid messaging is found on our freeways.

On the freeway in Melbourne are signs for travellers.  Some of them are so short that they are incorrect.  For example, those saying “You must stay home” are not true.  It is not true that every person driving under that sign must stay home.

A better sign which you may have seen (also a short one), says “Avoid unnecessary travel”.  It’s not much longer, but much more accurate.

The first sign prompts anxiety “I’m not at home. I’m in a car on the freeway. I thought I was complying with the law. What am I missing. Oh no!”

The second sign prompts a reminder. “Is this trip necessary? Oh yes, it is necessary because I need to buy that thing. (Or visit that sick person, or…)”

If you read the Victorian Directions applying to the Stage 4 lockdown, you will find pages of detail as to when you can leave home, and it changes often.  That detail just can’t be summarised into “You must stay at home” full stop.

If people in government are responsible for sending messages to the community regarding what is the law, they should do their best to make those messages correct.  Incorrect messages like “You must stay home” can serve to feed anxiety rather than helpfully reminding the community of their obligations.

For me, such simplification has caused quite a bit of trouble in our attempt to empty my parents’ house.  My parents have entered Aged Care (more about that in later posts), and have sold their house.

People are too scared to help with emptying the house, or taking any of the furniture, because they are afraid they will be breaking the law.  Opshops are closed, and even the local tip is closed, so emptying the house (which is required by law) has proved particularly difficult. 

The freeway signs saying “you must stay at home” don’t help.

Clear messaging is better.

Communicators of government messages in these unprecedented times should be clear and accurate.  Yes, Covid makes many of us anxious, but there is no need to add unnecessary anxiety through incorrect messaging.  But to be clear and accurate, communicators need to know more about administrative law.  They need to know the difference between a legal requirement, a recommendation, and – even – making things up.

If you need to know more about administrative law sooner rather than later, you can purchase access to our videos and do our quizzes online.  Or sign up to our next online course coming up soon.

University students, misconduct and admin law

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Y v University of Queensland [2019] QSC 282 is the latest case in the vexed world of university student misconduct, disciplinary proceedings, and criminal law.

What does Y’s case teach us?

Before we talk about the case, what “take aways” did another student (who is doing a summer placement with me) get out of reading it? It was interesting to hear her observations. She thinks:

  • the case highlights the importance of understanding your organisation’s own policy and procedures;
  • clarity in those procedures is so, so important;
  • universities (and employers) need to be consistent when disciplining students (or employees);
  • as a decision maker, you need to think about not just what you can do, but what you cannot do;
  • be aware of the duty of care owed to students and staff, but don’t forget the university’s reputation either.

What’s this case about?

Y, a student, obtained judicial review of a decision of the University of Queensland and the Disciplinary Board of the University of Queensland.

The Board had sent a notice of allegations to the student, and was ready to hear and decide those allegations. They were allegations of sexual assault, and the hearing was to be under the University’s Student Integrity and Misconduct Policy.

The Supreme Court restrained the Board from hearing the allegatinos. The Court found that the Board did not have jurisdiction.

The allegations were at least partly found to be allegations of criminal offences.

They were not just allegations of breaches of a sexual misconduct policy.

How does this case affect your University or government employer?

It’s common for criminal acts, or allegedly criminal acts, to be part of a disciplinary investigation. Or part of the landscape of a disciplinary investigation. This can happen in the public service, or in a university, or anywhere, really.

You are an employer, or university, or some sort of regulator. But you are not the police, and you can’t lay criminal charges. How are you supposed to work out what to do?

I will add to this article in the coming weeks. But what do you think?

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