Human Rights Accountability for Systems of Ill-Treatment in Residential Aged Care

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 facilities (‘RACFs’). The deaths in Newmarch House in Sydney in April – May 2020 made it the first RACF 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 2022. This article uses Newmarch House as an illustration of the regulatory and governmental system-wide failure to adequately protect the human rights of residents in RACFs. 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 the lead of New Zealand and extend the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’) monitoring regime to RACFs. This would provide residents of RACFs deprived of their liberty with the same preventive protections afforded by the OPCAT to all Australians deprived of liberty. This is protection that such residents are legally entitled to under the OPCAT.