Aged Care, Detention and OPCAT

Australian parliaments and courts have recognised that aged care facilities with closed units can be places of (civil) detention where patients/consumers are deprived of their liberty. Current monitoring of these places of detention is substandard and inadequate, as evidenced by the multiple federal and state inquiries into South Australia’s Oakden Older Persons Mental Health Service. The monitoring of closed aged care facilities needs urgent strengthening via the use of rigorous, human-rights-based standards. The urgency to improve the system of monitoring for this form of civil detention coincides with Australia’s 2017 ratification of the Optional Protocol to the Convention Against Torture (OPCAT). Australia’s commitment to OPCAT ushers in the establishment of National Preventive Mechanisms (NPMs) at the federal and state levels to strengthen monitoring of all places of detention in Australia. The Federal Government has indicated that Australia’s NPMs will initially focus on ‘primary’ places of detention. While closed aged care facilities are less traditional places of detention, this paper argues that the Federal Government, if it has learned anything from Oakden, should not delay strengthening its system of monitoring for these closed facilities