Thursday, 31 July 2025

Bills

Drugs, Poisons and Controlled Substances Amendment (Medication Administration in Residential Aged Care) Bill 2025

Statement of compatibility

Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Ambulance Services) (10:08): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Drugs, Poisons and Controlled Substances Amendment (Medication Administration in Residential Aged Care) Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Drugs, Poisons and Controlled Substances Amendment (Medication Administration in Residential Aged Care) Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill builds on a broader suite of reforms by the Victorian Government that are aimed at improving the quality and safety of care for older people living in residential aged care. Specifically, the Bill aims to build on existing legislative requirements that require a registered nurse to manage the medication administration process for people living in residential aged care.

The main purposes of the Bill are to amend the Drugs, Poisons and Controlled Substances Act 1981 (the Act) to:

• further provide for the administration of drugs of dependence and Schedule 4, 8 and 9 poisons to persons accessing funded aged care services in residential aged care homes; and

• make consequential amendments, including those required following the repeal of the Aged Care Act 1997 (Cth) and the enactment of the Aged Care Act 2024 (Cth).

Human rights issues

The Bill is relevant to the right to life (section 9) and promotes the right to freedom from forced medical treatment (section 10(c)) and right to privacy (section 13(a)).

Administration of medication in aged care services

The Bill amends Division 10A of Part II of the Act, which regulates the management and administration of drugs of dependence and Schedule 4, 8 and 9 poisons in residential aged care. Specifically, clause 8(2)(c) of the Bill amends section 36E(1)(a), which requires registered providers to ensure that a registered nurse manages the administration of any drug of dependence or Schedule 4, 8 or 9 poison to persons receiving funded aged care services in a residential aged care home. The effect of this amendment is to expand the application of section 36E from aged care residents receiving a high level of care to all residents accessing funded aged care services in a residential aged care setting.

New section 36EA, which is inserted by clause 9, requires registered providers to ensure that any drug of dependence or Schedule 4, 8 or 9 poison supplied to persons accessing funded aged care services in the residential aged care home, is administered by a registered nurse, an enrolled nurse who holds a specified qualification, or another registered health practitioner (eg, medical practitioner, pharmacist, dentist) who is authorised under the Act or regulations to do so.

This new requirement is subject to the conditions that the drug or poison has been supplied on prescription to that person who is on the premises of the residential care home when the drug or poison is administered to them. Non-compliance is subject to a criminal penalty. The effect of this amendment is to restrict who can lawfully administer medication in Victorian residential aged care homes to suitably qualified practitioners.

However, this provision is subject to limited exceptions: under new section 36EA(3), a registered provider does not contravene section 36EA(1) if:

• they have a reasonable excuse;

• a resident self-administers the drug or poison;

• person administers the drug or poison in accordance with circumstances prescribed in the Regulations.

Right to life

Section 9 of the Charter provides that every person has the right to life and to not be arbitrarily deprived of life. The right to life is one of the most fundamental of all human rights. It is concerned with both the protection and preservation of life.

The right to life has not been examined by the courts in any detail in Victoria. Under international human rights law, the right to life includes an obligation on the State to refrain from conduct that results in the arbitrary deprivation of life, as well as a positive duty to introduce appropriate safeguards to minimise the risk of loss of life. This includes an obligation on the State to prevent arbitrary deprivation of life, particularly towards persons in vulnerable situations where threats to life are reasonably foreseeable. An ‘arbitrary’ deprivation of life may be described as one that is unreasonable or disproportionate.

The amendments introduced by this Bill are intended to build on existing obligations with respect to the management and administration of medications in residential aged care settings by restricting who can lawfully manage and administer medication to suitably qualified practitioners. A large number of people living in residential aged care have complex health needs which typically require intricate medication regimes. While medicines can treat conditions, control symptoms, and prevent disease, people with complex health needs taking a high number of medications are at an increased risk of adverse drug events. Further, the management and administration of drugs of dependence and Schedule 4, 8 and 9 poisons by unqualified persons can risk compromising health outcomes for aged care residents and lead to serious adverse health events.

The Bill mandates the safe and effective administration of certain prescribed medicines by appropriately qualified nurses and health practitioners. Registered nurses have the clinical skills to understand the therapeutic action of medicines and recognise adverse reactions and respond appropriately. Enrolled nurses also have clinical training and work under the supervision and delegation of a registered nurse. Clinical judgement is required when managing and administering medication and often involves assessing whether medicines should be administered or withheld. Accordingly, as the Bill aims to reduce adverse event-related morbidity and mortality for older people living in residential aged care, it can be characterised as promoting the right to life.

Given the inherent potential dangers of these drugs and poisons, this amendment may engage the right to life in relation to the adequacy of steps taken to safeguard against risks to life. The scheme is subject to strict regulatory controls that are reasonable and proportionate to the risks to human life posed by the amendments. First, the provisions will be subject to a range of regulatory requirements and sanctions relating to the management and administration of drugs of dependence and Schedule 4, 8 or 9 poisons, including:

• Stringent eligibility criteria in relation to the authorisation of enrolled nurses and other registered health practitioners, specifically:

• Enrolled nurses are required to hold a qualification approved by the Nursing and Midwifery Board of Australia in relation to the administration of medication (clause 9, new section 36E(2)(b)). This mandatory minimum requirement is aimed at facilitating high professional standards and ensuring that enrolled nurses have the knowledge and skills required to safely administer medication to the aged care residents;

• Other registered health practitioners must be authorised by or under the Act or regulations to administer the drug or poison (clause 9, new section 36E(2)(c));

• Existing practice limits apply in relation to registered nurses and registered health practitioners who are subject to a condition, limitation or restriction prohibiting the obtaining, possession, use, sale or supply of a drug of dependence or Schedule 4, 8 or 9 poison, where they will not to be authorised under the Act to use or supply the relevant poison. These restrictions protect against any risk of harm associated with the management and administration of drugs or poisons by practitioners who have been sanctioned by the Nursing and Midwifery Board of Australia; and

• Offence provisions in relation to a failure to comply with the drug and poison management and administration (clauses 8 and 9, sections 36E(1) and 36EA(1)).

These safeguarding provisions are directed at reducing the incidence of harm, including death, from the administration of drugs of dependence or Schedules 4, 8 and 9 poisons. Accordingly, I conclude the Bill is compatible with the right to life.

Additionally, the administration requirements do not apply in respect of residents who self-administer their own medication (clause 9, new section 36EA(3)(b)). Further, these offence provisions do not apply to the residents themselves. As such, the Bill promotes the right not to be subjected to medical treatment without one’s full, free and informed consent (section 10(c), and the right to bodily integrity, which protects against interference with a person’s physical self by others without their consent (section 13(a)).

For these reasons, I consider the Bill to be compatible with the human rights protected by the Charter.

The Hon. Mary-Anne Thomas

Leader of the House

Second reading

Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Ambulance Services) (10:09): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The purpose of this Bill is to improve the quality and safety of care for older people living in Victorian residential aged care homes.

It will amend the Drugs, Poisons and Controlled Substances Act 1981 so that only registered nurses, enrolled nurses with specified qualifications and other authorised registered health practitioners, administer drugs of dependence and Schedules 4, 8 and 9 medications to people in residential aged care for whom the medication has been supplied on prescription. This is a legislative change that will strengthen protocols around how medication is delivered to people living in Victoria’s residential aged care homes. The Bill will also modernise language to reflect amendments made to Commonwealth legislation.

These changes reflect the Victorian Government’s commitment to reduce the risk of medicine-related problems in residential aged care.

This Bill builds on existing state legislative requirements that aged care providers ensure that a registered nurse manages the medication administration process.

Older people are increasingly entering residential aged care later in life and with more complex health conditions that cannot be safely managed in their own home.

Complex care needs often means people have multiple medications. Based on Commonwealth data covering the period from July to September 2024, 36% of people living in Victorian residential aged care facilities are prescribed nine or more medications – which is the highest rate of polypharmacy in the country. Further, 19% receive antipsychotics which can carry particular risk if not managed appropriately.

Compared to older people living in the community, people living in residential aged care have complex health needs and intricate medication regimes that requires clinical skills when administering medication.

In 2020, the Pharmaceutical Society of Australia estimated that 20% of unplanned hospital admissions from residential aged care are a result of inappropriate medicine use.

The 2021 Royal Commission into Aged Care Quality and Safety identified medication management and safety in residential aged care as an essential area for improvement, and highlighted incidents of inappropriate management of medication regimens, including medicines not being administered correctly or residents being given tablets without oversight to ensure they swallow them.

The Royal Commission’s report also found that the routine care of older people in residential aged care often did not meet expectations.

Mandatory Care Minutes were introduced in response to the Royal Commission, to ensure that older people in aged care homes receive the dedicated care time they need. Since October 2023, providers have increased their staffing profile to meet targets – including 44 minutes of direct care by a Registered Nurse.

Commonwealth reforms to funding residential aged care and the implementation of the AN-ACC funding model has seen providers have greater certainty over their funding and more appropriate funding to meet the needs of their residents. This change has allowed for adequate staffing levels to provide quality care for residents.

This Bill helps ensure that older Victorians receive the best and highly skilled care from our registered and enrolled nurses in residential aged care.

This Bill will not remove a person’s right to administer their own medication – if it is safe and they wish to do so. The Commonwealth Government has Guiding Principles for medication management in residential aged care which includes the importance of regular clinical assessment to determine a person’s capacity to self-administer medicines safely and document their consent to do so.

This Bill will also not change how medication is administered in other settings, such as in someone’s own home or in hospitals. This Bill will also not change how the Voluntary Assisted Dying scheme operates.

The Bill will not have any effect on the ability of registered health practitioners with existing authorisation under the DPSCA or Regulations to administer medication to residents, such as general practitioners, geriatricians, pharmacists or dentists.

Building on consultation undertaken in 2022 and 2024, we have consulted widely in the development of this Bill. This year alone more than 29% of the non-government sector has been consulted and contributed to the development of this Bill, and we have also worked closely with the Public Sector Residential Aged Care Services. We’ve consulted with peak bodies including Ageing Australia, the Victorian Healthcare Authority, and unions including, the Australian Nursing and Midwifery Federation and the Health Services Union; and the Commonwealth Government, including the regulatory bodies that oversee aged care.

I thank these valued stakeholders for their meaningful input into this reform.

This Bill incorporates what we have heard and learnt from our extensive consultation and engagement with the sector. We understand that it is common practice in most Victorian homes to have registered and enrolled nurses to administer Schedules 4, 8 and 9 medication to people for whom the medication has been supplied on prescription. We also recognise that in some residential aged care homes, there may be a need to shift away from having non-nursing staff, such as personal care workers, undertaking this responsibility.

We understand there may be unforeseen circumstances that impacts nursing availability – a serious resident emergency, temporary unexpected staff shortages at the commencement of a shift, or other factors impacting nursing availability to administer medication on time. For that reason, the Bill provides power to make regulations to prescribe exceptional circumstances where the obligation will not be breached. For example, this power may be used to specify circumstances where another person may administer prescribed medication if there is a risk to a resident from delayed or missed medication because of nursing availability. This is not intended to cover rosters with insufficient nurses, but rather unplanned situations that may occur from time to time.

Consistent with the broader Drugs, Poisons and Controlled Substances Act, the Health Regulator will adopt a risk-based and responsive approach to enforcement, with a priority focus on addressing significant harms from non-compliance, consistent with a public compliance and enforcement policy. Consistent with the Act, the Bill will provide for a criminal penalty of 100 penalty units for non-compliance with the new requirements without reasonable excuse. This criminal penalty will not apply in situations where a person self-administers or there is a prescribed circumstance.

We recognise that change may be difficult for some providers. And in addition to the commencement of this reform on 1 July 2026 - nearly 12 months away, the Victorian Government is committed to a 90-day grace period – a policy position where no enforcement action will be pursued until 29 September 2026 to give providers additional flexibility as they implement these changes.

In the 2025/26 budget, $7.6 million over four years was allocated to support State Government funded services – the Public Sector Residential Aged Care Services – with implementation of the reform.

In addition, the Victorian Government has ongoing initiatives, incentives and policies to support and increase the nursing workforce, including in aged care:

A Diploma of Nursing is available under the Victorian Government’s free TAFE initiative, which will increase the pipeline for additional enrolled nurses for government and non-government health and care sectors.

• The Making it Free to Study Nursing initiatives aiming to increase the public sector nursing workforce, including in Public Sector Residential Aged Care Services.

• The landmark 28.4% increase (over 4 years) to Nurses and Midwives’ Enterprise Agreement 2024-2028 which is expected to assist with attracting and retaining nurses in the government sector.

• The Nurses and Midwives’ Enterprise Agreement also enables and encourages diploma of nursing students to be employed in the public sector as Registered Undergraduate Students of Nursing (RUSONs - Bachelor students) and Registered Enrolled Nurse Students (RENS - Diploma students) whilst they complete their studies.

• $95.1 million over four years was announced in the 2025/26 State Budget to support Victoria’s health workforce through initiatives including registered undergraduate students of nursing, transitional support programs and capacity development for rural nurses.

The Department of Health will be supporting the sector with change management through sector communications and an opportunity for government and non-government providers to come together to exchange best practices in medication management, prior to the reform commencing.

To ensure these changes are working as intended, and that aged care providers are adequately supported, a five-year review will be undertaken by the Department of Health. This review will gauge the implementation of the reform against implementation objectives as proposed. From day one, the Department will also regularly engage with the broader sector through voluntary and anonymised surveys to gather insights and information on implications of the reform.

With this Bill, the Victorian Government will be the only jurisdiction to explicitly legislate that registered health practitioners can administer schedules 4, 8 and 9 medications to some of our most vulnerable people. It is part of the Government’s commitment to ensure Victorians living in residential aged care homes receive the highest quality care and their medication from the most qualified workers.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:09): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 14 August.