Locking up our oldies: who agreed to that? Legal issues on consent in aged care

Restriction of personal liberty to choose where to live, and who to associate with, is usually only permitted under criminal law, following legal processes. Mental health legislation also permits restraints on freedom of individuals, subject to legal oversight of the process.

Admission into an aged care facility may restrict a person’s liberty, if placed in a locked area which they cannot leave without staff assistance. Laws regulating these procedures should be fair, open to scrutiny, and meet international standards of law and good practice.

Informal detention in aged care has received substantial examination overseas and in other states of Australia. In WA, authorities up to now have shown limited interest in the ethical and human rights aspects. The ‘Bournewood’ case in England provoked extensive attention and litigation, but the lessons derived have received little attention in WA. The fact that mental health care and legislation is a State responsibility, while aged care is under Commonwealth government control, creates a gap in ownership of this problem.

English reports indicate serious problems with the costly and burdensome legislation adopted there. My thesis concluded with suggested measures which may assist in remedying some of the defects in current law and practice, while avoiding unduly complex and ineffective legislation.

Dr Neville Hills

I was born in Perth and have worked in forensic and old age psychiatry posts in WA and England. As the last psychiatrist-superintendent of Swanbourne Hospital I was closely involved with its transformation into a range of alternative facilities. Retiring from full-time work in 1999 I was a member of the Mental Health Review Board for five years. At the UWA Law School I completed a PhD in 2017 which examined issues of detention and human rights of older people in mental health and aged care facilities.

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• Students (full time, unsalaried only) – $20
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• Non-members – $35

A drink on arrival and light canapés will be provided prior to the presentation.