The government needs to stop illegal detention of older people

By Fiona McKenzie
December 13, 2020
Original Article


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.


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. 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.”


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