On 22 October 2020, Counsel Assisting presented their final recommendations to the Royal Commission into Aged Care Quality and Safety to improve the aged care sector in Australia. The 124 recommendations represent the culmination of the largest inquiry into aged care in Australian history.

The Commissioners are expected to table their final report to Parliament in February 2021. If adopted and implemented, the final recommendations will have a transformative effect on the Australian aged care sector.

Formally commenced in October 2018, the Royal Commission examined the quality of aged care services across Australia and whether those services are meeting the needs of people accessing them. One of the purposes of the inquiry was to uncover the extent of substandard care and what actions should be taken to address any systemic failures.

In October 2019, the Royal Commission published its Interim Report ' Neglect' which, as the title suggests, painted a negative picture of the Australian aged care sector detailing instances of substandard care, mistreatment and abuse.

The onset of the COVID-19 pandemic further exposed some of the systemic failures in the relationship between aged care providers, regulatory bodies and State and Federal governments.

In response to these issues, Counsel Assisting submitted extensive (and in one instance, in Commissioner Briggs' view, 'courageous') recommendations and provided a timeline for their implementation. Some of the more significant include:

  • A new Act based on human rights principles for older people;
  • A new planning regime for aged care which provides demand-driven access rather than the current rationed approach;
  • A new and independent process for setting aged care quality standards;
  • An enforceable general duty of care on approved providers;
  • Mandated staffing ratios in residential aged care;
  • Compulsory registration of personal care workers;
  • An independent pricing authority that will determine aged care prices appropriate to the provision of high quality and safe aged care services; and
  • An independent Australian Aged Care Commission that will be responsible for administering and regulating the aged care system.

These recommendations, if implemented, will result in a fundamental restructure of the aged care regulatory framework taking the focus away from funding and refocussing on quality, choice-driven care where recipients of services have enforceable rights and providers will be held to standards with real bite.

Identifying the causes of systemic failures

Evidence presented throughout the Royal Commission discovered that at least 1 in 5 people receiving residential aged care have experienced substandard care. Systemic failures were identified in respect of access to and the delivery of aged care.

In an evaluation of Australian Government and wider community performance on aged care, Counsel Assisting submitted that systemic failures could be attributed to:

  • Apathetic or dismissive attitudes towards aged care;
  • The failure to consider the dignity and self-determination of older people when delivering services;
  • Insecure and insufficient government funding that has not kept pace with demand;
  • Inadequate governance and regulatory frameworks; and
  • Government failures to take opportunities for improvement due to a lack of comprehensive data.

Statutory duty of care

The current Aged Care Act 1997 (Cth) requires approved providers to comply with the Aged Care Quality Standards, but a failure to comply does not attract penalties.

It is recommended that a new Act create a clear obligation for providers to ensure the care delivered is safe and of a high quality, and impose a statutory duty attaching civil penalties. Similar duties exist in workplace and environmental contexts.

Significantly, it is proposed that contraventions of this duty of care will attract accessorial liability for directors, key personnel and any other people involved.

In a similar theme, it is proposed that the new Act should include stringent requirements aimed at improving provider governance, including a 'fit and proper person' test for key personnel.

Additionally, it is proposed that the Freedom of Information Act 1982 (Cth) be amended so that the exemption in section 38 does not apply to 'protected information' under the aged care legislation merely on the grounds that the information relates to the affairs of an aged care provider.

The underlying theme in these recommendations is promoting accountability and transparency. However, there is no doubt that implementing these recommendations will come at a cost and it is unclear how that cost is going to be met.

Structure - Departmental v Commission model

Counsel Assisting noted failures of the Department of Health and the Aged Care Quality and Safety Commission to recognise and take responsibility for longstanding issues in aged care. In particular, and inexplicably, previous governments had refused to make changes to the aged care system to address concerns and issues raised in numerous earlier reviews and reports.

The submissions followed on the October 2020 report detailing the aged care response to COVID-19 in which the Commissioner pointed to inadequacies and lack of direction in the Commonwealth's approach. In response, Counsel Assisting proposed a redesign of aged care governance.

Counsel Assisting identified two options for redesigning the governance of the aged care system:

  • The 'Departmental Model' which seeks to improve the system of governance and management of the Department of Health, but otherwise retain the essential characteristics of the current institutional arrangements; or alternatively
  • The 'Independent Commission Model' which introduces an independent statutory body known as the Australian Aged Care Commission which would assume responsibility from the Australian Department of Health as the overall governor to exercise regulatory, governance, management and administrative responsibilities of the aged care system.

Counsel Assisting recommended the 'Independent Commission Model', stating that the best way of achieving a reliable and sustainable governance structure for aged care is to confer clear system governance and management roles on independent statutory bodies which operate on their own budgets, free from Ministerial direction, and for the responsible Minister to retain an overarching supervisory and policy role.

Commissioner Briggs AO, expressed the view that the Independent Commission Model was 'extraordinary' and 'courageous' and questioned how any benefits of the proposal would outweigh the very substantial costs and disruption involved in such a radical transformation of the Government's administrative machinery. In contrast, Commissioner Pagone QC referred to the Government's overwhelming concern with the bottom line which results in "a rather cynical approach – when you have the combination of the people spending the money with those guiding the money".

Regulation of aged care

Under the proposed Independent Commission Model, the Australian Aged Care Commission would be the primary regulator of aged care. One of the key responsibilities of the Commission would be to ensure that providers have the financial capacity to deliver high quality care.

The current enforcement powers of the aged care regulator are relatively limited, which has likely contributed to a lack of transparency and accountability in a system which is already significantly underfunded. It is proposed that the regulator be given statutory powers to:

  • Conduct inquiries including into complaints or reported serious incidents;
  • Enter and search the premises of residential aged care facilities without warrant or consent;
  • Compel the production of documents and information; and
  • Compel an officer or employee of an approved provider to appear before the regulator for examination.

Counsel Assisting recommended the regulator be empowered to require aged care providers to provide quarterly financial reports detailing what care was delivered and at what cost. Again, there is a focus on transparency and identifying providers who are at financial risk with flow-on negative effects on care delivery and performance.

Funding of aged care

Counsel Assisting recommended the introduction of an Australian Aged Care Pricing Authority which would assume the role of ensuring prices for aged care services are determined independently on the basis of benchmarking and cost data, rather than allowing the Government to decide what the Budget can afford.

The introduction of independent pricing may go some way to restoring trust between the sector and the Government, which is imperative to the sustainability of the system in the wider community.

A 2019 study developed a new case-mix adjusted model known as the Australian National Aged Care Classification which adopts a base tariff, an individualised care payment and an initial tariff payable to meet the costs of settling or moving residents. Some concerns have been expressed about the model and whether it provides a proper basis for assessing and funding the needs of individual care recipients.

In the interim, Counsel submitted that urgent changes to the indexation arrangements are needed as well as an immediate increase to the Basic Daily Fee. The Department accepted that the revenue generated by the existing Basic Daily Fee is insufficient, which has led reduction in the quality of goods and services provided to meet everyday living needs.

Counsel Assisting observed that it appeared there had never been a study of the costs of providing high quality aged care to which subsidies could be accurately calibrated.

Minimum staff time standard

Counsel submitted that evidence linked low staffing levels with poor quality aged care. While recognising that increasing staffing levels is only part of the solution to improve quality of care, Counsel recommended implementing a mandatory minimum staff time for residential care as part of a quality and safety standard.

Under this proposal, by July 2022, approved providers would be required to engage registered nurses, enrolled nurses and personal care workers for at least 215 minutes per resident per day (with at least 36 minutes of that time being provided by a registered nurse), and engage at least one registered nurse on site for 16 hours per day.

By July 2024, the overall minimum staff time should increase to 264 minutes, or alternatively the registered nurse staff time should increase to 44 minutes per resident per day. Further, a registered nurse will be required on site at all times.

The recommendation allows providers to apply for exemptions where there would be a genuine difficulty in meeting the requirements because of staff shortages and cases where the mix of residents may not necessitate the full time presence of a registered nurse.

Counsel Assisting submitted that the recommendation would particularly benefit the residents in the 57.6% of facilities that currently staff at levels characterised as 'unacceptable'.

Aged care workforce

The quality of aged care is largely determined by the people who deliver it on a daily basis. The COVID-19 pandemic exposed structural weaknesses in the aged care workforce, but it also revealed the dedication and commitment of many individual aged care workers.

In February 2020, Counsel Assisting made several recommendations regarding improving the stability and sustainability of the aged care workforce which, aside from some increased funding in the recent Federal Budget, have not been advanced in any meaningful way.

Counsel Assisting recommended that the Fair Work Commission make a determination to vary the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010, to better reflect the value of the work performed by aged care workers. In conjunction with award changes, Counsel Assisting suggested that wage increases should be an explicit policy objective of the aged care funding system, taking into account the need to attract sufficient staff with the appropriate skills to the sector.

Counsel Assisting recommended that the Australian Health Practitioner Regulation Agency should establish a registration scheme for all personal care workers which is expected to increase the professionalism of the industry, along with minimum qualifications.

Industry and community response

Counsel Assisting recommendations have received broad support from industry bodies, particularly the creation of an independent pricing authority and the introduction of human-rights based legislation. Industry appears to broadly support the de-politicisation of aged care to an evidence-based approach which supports the best interests of older people.

Some critics of the imposition of a statutory duty of care believe personal liability may have unintended consequences and drive smaller providers away, or make providers less responsive to urgent situations because of increased bureaucratic and management burdens.

However, statutory duties of care, as well as accessorial liability, exist in a wide variety of current legislative frameworks, from environmental protection to employment entitlements to workplace health and safety, and are widely recognised to have improved performance across these areas.

Despite the significant work involved in producing the submissions, the recommendations themselves are not binding. The Commissioners will review the recommendations and the evidence presented throughout the Royal Commission before submitting their own recommendations and final report. It is then up to the Federal Government to accept any of the recommendations and implement policy changes.

Following the Commissioner's special report into the aged care response into COVID-19, the Honourable Greg Hunt, Minister for Health and the Honourable Richard Colbeck, Minister for Aged Care and Senior Australians, published the Government's response. Although they accepted all of the recommendations in their initial response, it is fair to say that they effectively denied any responsibility for the outbreaks of the virus in aged care.

When the Commissioners table their final report to Parliament in February 2021, implementing wide ranging reform in the aged care sector will require the Government to sideline politics and embrace a leadership role in driving meaningful change.

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