Top concerns over the new Aged Care Act revealed

The Government’s hotly anticipated introduction of a new Aged Care Act is one step closer after a consultation feedback report was published to highlight provider and stakeholder concerns.

The new Aged Care Act signals the beginning of a fresh era for aged care. The Royal Commission into Aged Care Quality and Safety found that the current Aged Care Act is not fit for purpose as it should focus on the people accessing aged care services rather than providers.

Therefore, a draft Act was produced and released in December 2023 with the focal point of person-centred care and rights-based legislative framework. Stakeholders were given the time to provide their feedback to influence the Act’s final version. These are the common themes from that consultation. 

Key points

• The Government received 320 submissions and 800 survey responses during a frantic consultation period, while they heard from over 10,000 at webinars, workshops and roundtables
• The most common matters raised included having the time available to implement the new Act, how elements such as supported decision-making will work in practice plus the influence of a new diligence duty on board members and responsible people
• Subject to parliamentary processes, the new Act will commence on 1 July 2025 to align with the launch of the new Support at Home program

One progressive step forward, two steps back 

Overall, feedback on Chapter 1 – Key concepts was largely positive, although stakeholders were concerned by issues regarding language, feasibility, definitions and intersection with other legislative frameworks. 

For example, providers are worried about their ability to uphold an individual’s right to equitable access to aged care services, especially in thin marks or regional, rural and remote locations. 

The aspirational nature of the rights outlined might set high expectations that are challenging to meet in practice and could result in an influx of complaints and additional regulatory action if they’re not upheld. 

Elsewhere, many stakeholders suggested reviewing and refining definitions and key concepts. Specifically, the definition of an ‘aged care worker’ was contentious as it included volunteers. Stakeholders argued for a clear distinction between paid employees, carers and volunteers to better represent their different roles and responsibilities.

Concerns were also raised about the use of terms like ‘sickness,’ which some found ageist, implying that aged care recipients are fragile and dependent. There was a call for more inclusive language that supports reablement and independent living. Similarly, the use of ‘connected to island home’ was seen as confusing and for First Nations people more appropriate language would be ‘connected to country’.

Stakeholders felt that a greater focus on people under the age of 65 who require aged care services need to have additional services made available to them rather than accessing the aged care system. For example, people with early onset dementia under 65 are not deemed eligible for aged care services under the new Act, while are ineligible for other services such as the NDIS.  

A cautious approach to statutory duties and regulations

Responses to Chapter 3 – Registered providers, aged care workers and digital platforms indicate a cautious approach from stakeholders towards the proposed statutory duties and regulations for registered providers, aged care workers, and digital platforms. 

While there is support for improved governance and protection measures, there is also significant concern about the practical implications, especially regarding workforce impacts and the need for clear government accountability.

Concerns were raised about workforce shortages, with the current screening and background checks potentially eliminating skilled individuals due to previous criminal convictions. There was a specific concern for First Nations people, who are disproportionately represented in the criminal justice system.

Stakeholders suggested increased flexibility in including aged care workers with minor historic criminal convictions.

Additionally, there are calls for digital platform operators to become registered providers to ensure user protection, while increased regulation and oversight are needed to protect the personal data of older people. 

Providers also requested clear timelines for decisions made by the Government as the exposure draft only sets out required timeframes for providers.

More consultation and clarification required

Given Chapter 4 – Fees, payments and subsidies was not included in the exposure draft, stakeholders emphasised the importance of further consultation on this chapter to ensure the provisions effectively address affordability, transparency, accountability, and sustainability in aged care funding.

Meanwhile, there was a lack of clarity regarding the distinct roles, autonomy and interplay of various roles such as the Aged Care Quality and Safety Commissioner, Aged Care Quality and Safety Advisory Council, Complaints Commissioner and Inspector-General. The absence of the Interim First Nations Commissioner was noted by First Nations stakeholders who said this must be acknowledged and outlined.

One of the newest features of the Act is the whistleblower framework and providers were generally supportive of this. Eliminating the ‘act in good faith’ requirement is a cause for concern, though, as it might lead to malicious reporting. Comprehensive training over the entire framework was a consistent request.

The Department says it will now consider relevant feedback received through the consultation process and make necessary revisions to the Exposure Draft before it is introduced to Parliament. The feedback report can be viewed in full here.