Opinion: With a new Aged Care Act in the wings, some important concerns are at stake

Written by Charles Maskell-Knight. This article first appeared on Croakey Health Media and has been republished on hello leaders with their permission.

The first recommendation of the Royal Commission into Aged Care Quality and Safety, when handing down its final report in March 2021, was that a new Aged Care Act should be enacted by 1 July 2023.

That recommendation also set out the objects of the new Act, while subsequent recommendations set an explicit statement of the rights of people seeking or receiving care (recommendation 2), a statement of principles to govern decisions under the Act (recommendation 3), and a definition of high quality care (recommendation 13).

The Morrison Government announced on 1 March 2021 that it accepted the recommendation about a new Act, which would commence from 1 July 2023 “subject to parliamentary processes”.

After the Albanese Government was elected, Minister Anika Wells in July 2022 said that work on the new Act was underway and that the Government was intending to deliver the new Act from 1 July 2023. That date came and went without any delivery.

Indeed, it was not until 14 December 2023 that the Government finally released an exposure draft of the bill for the new Act – 34 months after the Royal Commission report was presented. This is a remarkably long time – especially given that the entire Royal Commission process only lasted 27 months.

The release of the exposure draft was accompanied by a consultation paper – available in plain English and standard bureaucratese versions – setting out the major issues and a list of 46 consultation questions. While this is helpful given the length of the bill at 325 pages (excluding the table of contents), it does not cover a number of significant issues.

And the bill itself is incomplete, with the entire chapter covering fees, payments and subsidies yet to be drafted, together with the sections setting out the regulatory powers available in the event of a critical failure by a provider.

In this article I will focus on the objects, rights, and principles set out in the exposure draft, and how these have departed from the Royal Commission’s recommendations. In subsequent articles I will discuss other elements of the draft legislation.

Objects

The objects of the new Act, set out in clause 5 of the bill, broadly cover the same ground as the Royal Commission’s recommendations. There are several additions: paragraph 5(e) states as an object the provision of a “robust and risk-based regulatory framework”; and paragraph 5(g) includes the object of providing “for sustainable funding arrangements for the delivery of funded aged care services by a diverse, trained and appropriately skilled workforce”.

These inclusions simply reflect the scope of the new Act. The Royal Commission presumably regarded regulation and funding as a means of achieving other objectives, and not worthy of inclusion as objects in their own right.

What is more striking is the omission of the Royal Commission’s recommendation that an object of the Act should be to “ensure that older people receive high quality care in a safe and caring environment for dignified living in old age”.

The exposure draft simply does not include high quality care as an objective. The closest it comes is paragraph 5(d) ensuring people using aged care “are free from mistreatment, neglect and harm from poor quality or unsafe care”.

This is a far cry from ensuring the provision of high quality care.

Rights

The Royal Commission came up with a succinct (150 words) statement of rights. The exposure draft version runs to 626 words.

In many cases the additional verbiage expands on a high level statement in the Royal Commission’s version. For example, the Royal Commission proposed “the right to voice opinions and make complaints”.

This appears as “a right to express opinions about the funded aged care services the individual accesses and be heard” (paragraph 20(7)(b) and “a right to make complaints using an accessible mechanism, without fear of reprisal, about the delivery of funded aged care services to the individual, and have the… complaints dealt with fairly and promptly” (subclause 20(9)).

In other cases departure from the recommendations substantially waters down the intent. The Royal Commission recommended a “right to equitable access to care services”. The exposure draft includes:

“a right to equitable access to have the individual’s need for funded aged care services assessed, or reassessed, in a manner which is: culturally safe, culturally appropriate, trauma-aware and healing-informed; and accessible and suitable for individuals living with dementia or other cognitive impairment” (paragraph 20(2)(a)).”

A right to equitable access to assessments is not the same as a right to equitable access to services.

The Royal Commission did not recommend that these rights should be enforceable, much to the disappointment of many consumer groups, and the exposure draft is very clear that “nothing in this Division creates rights or duties that are enforceable by proceedings in a court or tribunal” (subclause 21(3).

The exposure draft provides at clause 92 that it is a condition of registration that aged care providers must demonstrate that they understand the rights, and “have in place practices designed to ensure delivery of… aged care services… is not incompatible with the rights”.

Under clause 88, breach of a condition of registration may expose a provider to a civil penalty of 250 penalty units (almost $80,000), or 500 penalty units if the breach “involves a significant failure or is part of a systematic pattern of conduct”.

However, the penalty does not apply for failing to deliver care in accordance with the rights – it is for failure to implement practices to ensure care is not incompatible with the rights.

The Royal Commission recommended that the Act should declare that “the rights may be taken into account in interpreting the Act and any instrument made under the Act”, but this does not appear in the exposure draft.

Such a provision may be technically redundant – statutory interpretation requires that an Act should be read as a whole – but it would still have served as a useful signal of the importance of the rights as part of the Act.

Principles

In recommending that the new Act should include a set of principles to guide the administration of the Act, the Royal Commission was drawing on the model of the National Disability Insurance Scheme Act 2013.

Section 4 of that Act sets out a series of “General principles guiding actions under this Act”, and enjoins the Ministerial Council, the Minister, the NDIA Board and CEO, the regulator, and any other person or body to perform functions or exercise powers under the Act in accordance with the principles (subsection 4(17)).

The principles are set out at a high level, and focus on the individual requiring or receiving support. For example, “People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports” (subsection 4(4)).

The principles recommended by the Royal Commission for the new Aged Care Act have the same tenor: “older people are entitled to receive support and care that acknowledges the aged care setting is their home and enables them to live in security, safety and comfort with their privacy respected”.

The exposure draft principles at clause 22 depart significantly in form and substance from the NDIS Act model and the Royal Commission recommendations.

In terms of form, the principles are generally expressed from the perspective of the aged care system, rather than the individuals receiving care.

The Royal Commission recommended that:

“older people are entitled to pursue (and to be supported in pursuing) physical, social, emotional and intellectual development and to be active and engaged members of the community, regardless of their age or level of physical or cognitive capability”.

This is reflected in subclause 22(2) as:

“The Commonwealth aged care system supports individuals to… maintain or improve the individual’s physical, mental, cognitive and communication capabilities to the extent possible, except where it is the individual’s choice to access palliative care and end-of-life care”.

This is not a principle to guide decision makers, but a statement of expectations. The Government may argue that it will achieve the same result – but in that case, why depart from a model focussed on older people?

In terms of substance, the exposure draft principles ignore many of the Royal Commission recommendations.

For example, the principle that “older people should have certainty that they will receive timely high quality support and care in accordance with assessed need” does not appear. Nor does “care should be provided in an environment which protects older people from risks to their health” – a principle which could be helpful in guiding action to address the ongoing decimation of aged care residents by COVID-19.

The exposure draft adds a number of “principles” to those recommended by the Royal Commission. These include providing that the aged care system is not used to address service gaps in other sectors (subclause 22(11)), and that the aged care system is managed to ensure “it is sustainable and resilient”, and that “public resources are used in the most efficient, effective, ethical and economic manner” (subclause 22(12)).

There are only two “principles” expressed from the perspective of older people. The first is that “the safety, health, wellbeing and quality of life of individuals is the primary consideration in the delivery of funded aged care services” (subclause 22(1)).

The second is that “individuals accessing funded aged care services are expected to meet some of the costs of those services if those individuals have the financial means to do so”.

Summary

The Royal Commission set out a template for the underpinnings of a new Aged Care Act focussed on the delivery of high quality care and the rights of individuals. The exposure draft departs from the template in many ways, usually with the effect of diluting the intent of the Royal Commission’s recommendations.

Following the Royal Commission’s findings of widespread poor quality care, often amounting to neglect, it should be uncontroversial that one of the objects of a new Act should be to “provide a system of aged care based on a universal right to high quality, safe and timely support and care” (recommendation 1).

It is astounding that the exposure draft does not include high quality care as one of the objects.

But it is also illuminating – the Government is happy to have a system that simply avoids poor quality or unsafe care. This is entirely consistent with an approach that does not impose a positive duty on providers to adhere to a statement of users’ rights.

The period for comments on the exposure draft ends on 16 February.

My next article will examine the treatment of high quality care and the duty of care in the exposure draft more closely.

Charles Maskell-Knight PSM was a senior public servant in the Commonwealth Department of Health for over 25 years before retiring in 2021. He worked as a senior adviser to the Aged Care Royal Commission in 2019-20. He is a member of Croakey Health Media.