Can the new Aged Care Act balance consumer and human rights?

The new Aged Care Act places older people at the forefront of aged care, displacing service providers from being the focal point of the current Aged Care Act that has been in place since 1997.

A rights-based Act is viewed as a major step forward for the sector, although it provides new challenges which were explored at the recent ACCPA National Conference in Adelaide.

Speaking in a panel on the event’s final day, the Australian Human Rights Commission Age Discrimination Commissioner Robert Fitzgerald said modern aged care is ‘an enormous improvement from where we’ve been, even over the last 15 years’. 

However, while the new Act embeds a rights-based framework, Mr Fitzgerald brought up a common concern: the rights and principles in the Act are not enforceable by law.

“There is a catch that you can’t exercise these rights in any court of law or tribunal. So I think it’s high time Australia grew up. If it really believes in the rights of people we need to make them enforceable,” he said.

“These are the rights that travel with you as an individual. What occurs in this particular Act is a different version [of rights] and they only exist for as long as the providers and the regulators ensure they exist.”

Homestyle Aged Care Services CEO Tim Humphries was equally surprised to learn the rights mentioned in the Act are not enforceable by law. He queried why the government would go to the trouble of listing them and not make them enforceable.

Currently, there are pathways to ensure providers and stakeholders uphold the rights of older people. These include a complaints process with providers and additional pathways involving the Aged Care Quality and Safety Commission.  

The aged care executive said it could be challenging to define clear punishments, though, given the ‘very human environment’ the sector operates in. 

Speaking from the consumer’s point of view, Older Person’s Advocacy Network (OPAN) CEO Craig Gear said there needs to be a mechanism for older people to access when their rights are not upheld.

Mr Gear pointed to the human rights model used by Queensland where the Human Rights Act (2019) says that courts and tribunals have to think about human rights when interpreting the law.

“It is about the intersecting or conflicting rights. Understanding there are times when proportionate constraint may have to happen. Someone needs to work through that process and I think providers themselves will need to do that because that will make a difference,” he explained. 

However, there is no push from Mr Gear or OPAN to see those rights embedded in the law. He was not interested in the idea of people having to engage with lawyers to have their rights upheld.

“This is about day-to-day relationships,” he added, “That’s where the rubber hits the road. It will be about the rights translating into aged care practice. There’s pragmatic stuff you wouldn’t want to run up to a lawyer, but there are other ways this can be achieved, maybe with framing that strengthens the obligations.”

Victor Harcourt, Principal at Russell Kennedy, said one option would be to establish a ‘truly independent complaints resolution scheme’.

Complaints Commissioner Louise Macleod will be a separate statutory appointment within the Quality and Safety Commission under the new Act, although she will govern the aged care system alongside Janet Anderson PSM, Aged Care Quality and Safety Commissioner and Blair Comley PSM, the System Governor. 

“I think it’s more mature to try and create a relationship pathway to resolve disputes and to give them meaning so people can live, and continue to live together, and not let the lawyers become involved,” Mr Harcourt said. 

With all panel members keen to avoid litigation in aged care but a certain amount of wiggle room in the Act, Mr Fitzgerald said he hopes all providers do follow the principles and rights.

“Time will tell whether the regulator does [enforce] it, the providers do it and the consumer groups frankly have the strength and courage to ensure that happens,” he added.

A provider’s perspective

As the lone provider in the panel, Mr Humphries emphasised that his organisation is in the business of providing care. While he said there can be challenges when juggling human rights and consumer rights, as long as they provide effective care then they will comply with both.

“Do we get it right all the time? We don’t. My concern is when we have these conversations and I’m surrounded by lawyers who use very complex language, we have a 570-page Act and thousands more pages of documentation… how does the person providing care understand that?” he explained. 

“That’s the complexity of this whole problem. We have well-intended legislators who want to provide a good solution but we shouldn’t forget the hard-working, wonderful people caring for older people.”

It can often be the simplest scenario that results in these complexities, too. Mr Gear shared an example where one woman on OPAN’s reference group who regularly travels with the organisation to advocate and speak to politicians. 

However, her own aged care service provider only communicates with her family members despite instructions to communicate with her directly. Mr Gear said this is a clear breach of her rights and service expectations as the provider continues to ignore her wishes. 

Mr Gear said key elements such as supported decision-making and dignity of risk help when striking a balance between rights and providers need to consider a different way of facilitating a person’s needs.

Mr Humphries reinforced that many providers ask and document what the resident’s wishes are to reduce the likelihood of supported decision-making being ignored.