Introductory Info

Date introduced: 12 September 2018
House: House of Representatives
Portfolio: Health
Commencement: The Aged Care Quality and Safety Commission Act commences on 1 January 2019. The Consequential Amendments Act commences on various dates, as set out in the digest.

The Bills Digest at a glance

Purpose

• The Aged Care Quality and Safety Commission Bill 2018 establishes the Aged Care Quality and Safety Commission (the Commission) as an independent statutory body with a range of regulatory functions.
• The Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 makes consequential amendments that are required to transfer functions of the Aged Care Quality Agency and the Aged Care Complaints Commission to the new Commission from 1 January 2019.
• The Bills also signal the Parliament’s intention for future legislation to transfer the regulatory functions of the Department of Health from 1 January 2020.
• The establishment of the Commission is in response to the first recommendation of the Review of national aged care quality regulatory processes.

Commission’s functions and powers

• The Commission will be headed by the Commissioner whose functions will include:
  • protecting and enhancing the safety, health, well-being and quality of life of aged care consumers
  • promoting the provision of quality aged care and services
  • consumer engagement functions
  • complaints functions
  • regulatory functions
  • education functions
  • other functions as are conferred on the Commissioner by other Acts and legislative instruments
  • to seek and consider clinical advice and
  • to provide advice to the Minister on request.
• The Principal Bill also sets out the Commission’s responsibilities and powers in support of those functions, including information sharing and entry and search powers of authorised complaints officers and regulatory officials.

Rules

• The Bill confers on the Minister extensive powers to make Rules by legislative instrument, including for matters such as:
  • complaints handling processes
  • the accreditation of aged care services
  • the regulation and monitoring of quality of care and services
  • the functions or powers of quality assessors and
  • review decisions.

Committee and stakeholder views

• The Bills have been considered by Senate Community Affairs Legislation Committee, which recommended that the Bills be passed.
• Stakeholders are generally supportive of the establishment of the Commission but have recommended amendments to strengthen various aspects of the Bills.

Purpose of the Bills

The purpose of the Aged Care Quality and Safety Commission Bill 2018 (the Principal Bill) is to establish the Aged Care Quality and Safety Commission (the Commission) as a new independent statutory body with a range of regulatory functions. The Commission will replace the existing Aged Care Complaints Commissioner and Australian Aged Care Quality Agency.

The Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 (the Consequential Bill) deals with matters necessary to enact the Principal Bill and to enable transition to the new body. It repeals existing legislation and sets out transitional and application provisions to enable continuity of operations during the transition process.

Structure of the Bills

The Principal Bill is divided into nine parts. Parts 1–4 establish the Commission and set out the functions and powers of the Commissioner. Part 5 establishes the Aged Care Quality and Safety Advisory Council and its functions. Parts 6–8 set out operational matters, such as the Commission’s requirements for reporting and planning, information sharing, and its entry and search powers. Part 9 outlines delegations and the making of rules.

The Consequential Bill has two Schedules:

• Schedule 1 repeals and amends relevant legislation and
• Schedule 2 sets out transitional arrangements.

Background

Australian Government funded aged care services

Aged care refers to a range of services supporting older people to undertake their day-to-day activities.[1] The Australian Government is the primary funder and regulator of aged care in Australia.[2] Services are delivered by many different not-for-profit, for-profit and government providers.[3]

Types of aged care

The aged care system comprises a continuum of care from home support, to home care and residential care.

In order of increasing levels of support:

• the Commonwealth Home Support Programme (CHSP) provides entry-level support services to enable older people to remain independent at home[4]
• Home care provides a more comprehensive service, including personal care, support, clinical and other services to meet the clients’ needs via four levels of packages of home-based care, ranging from basic care needs (level 1) up to high care needs (level 4) and[5]
• Residential care provides accommodation and care services in residential aged care facilities for older people who need higher levels of care than can be provided at home[6]

In some circumstances, meeting the care needs of older people will require an alternative approach than the care provided through mainstream residential or home care services. Flexible care programs address such circumstances. There are five flexible aged care programs:

• Transition Care
• Short-Term Restorative Care (STRC)
• Multi-Purpose Services (MPS)
• Innovative Care
• National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP).[7]

Types of aged care under the Aged Care Act 1997 are residential care, home care and flexible care. Programs administered outside the Act are the CHSP and the NATSIFACP, which are governed by their respective program manuals.[8]

Aged care quality regulation

Responsibility for aged care quality regulation is currently split between three entities—the Department of Health (DoH), the Australian Aged Care Quality Agency (the Quality Agency) and the Aged Care Complaints Commissioner (the Complaints Commissioner).[9] The entities have memoranda of understanding outlining how they share information with each other in order to carry out their duties and are governed by a range of Acts, legislative instruments, guidelines and other policies.[10]

Department of Health

DoH is responsible for policy and compliance with the Aged Care Act. DoH approves providers to provide care under the Act, and contracts providers of CHSP and NATSIFACP services to provide care outside of the Act. Providers must meet a range of responsibilities specified in the Aged Care Act or in the relevant contract relating to the quality of care, the rights of care recipients and governance. This includes the responsibility to meet quality standards.[11]

DoH is responsible for taking regulatory action when providers fail to comply with their responsibilities, including when they fail to implement improvements required by the Quality Agency or by DoH.[12] Regulatory actions include imposing sanctions and issuing notices of
non-compliance.[13]

Australian Aged Care Quality Agency

The Quality Agency is an independent statutory agency established under the Australian Aged Care Quality Agency Act 2013 (Quality Agency Act).[14] The Quality Agency assesses services against the relevant standards through:

• accreditation of residential care services and residential STRC services
• quality reviews of home care services, CHSP services, home STRC services and NATSIFACP services and
• ongoing monitoring of performance.[15]

If the Quality Agency finds that a service has not met one or more outcomes under the relevant standards, it will require the service to rectify the non-compliance, and will also notify DoH. If the Quality Agency identifies non-compliance that poses a serious risk to care recipients, it notifies DoH of the serious risk. The Quality Agency can also decide to vary or revoke the accreditation of a residential care service.[16]

Reforms to the aged care quality standards are contained in the Aged Care (Single Quality Framework) Reform Act 2018 which will replace four sets of aged care quality standards with a single set of standards commencing on 1 July 2019.[17]

Aged Care Complaints Commissioner

The Aged Care Complaints Commissioner (the Complaints Commissioner) is a statutory office holder under the Aged Care Act. The functions of the Complaints Commissioner include:

• resolving complaints about aged care services
• developing resources and educating people and aged care providers about best practice in complaints handling and
• providing information to the Minister, by request, in relation to the Complaints Commissioner’s functions.[18]

The Complaints Commissioner is supported by around 150 complaints officers.[19] The Complaints Commissioner handles complaints about aged care services subsidised by the Australian Government, and can issue directions if he, or she, is not satisfied that a service provider is meeting its responsibilities.[20] A direction requires that a service provider demonstrate how it is meeting, or will meet, its responsibilities under the Act or their funding agreement.[21] The Commissioner can also refer complaints to other organisations. The Complaints Commissioner works closely with the Quality Agency and DoH, as well as the Australian Health Practitioner Regulation Agency, and in each state and territory, the coroner, police, and state and territory health commissions.[22]

Concerns about aged care quality

Concerns about the quality of aged care services, particularly residential aged care services, have led to a number of recent inquiries and reviews. In 2017, failures of care in the Oakden Older Persons Mental Health Service (Oakden) in Adelaide received high profile public attention following a report by Chief Psychiatrist of South Australia, Dr Aaron Groves.[23] Dr Groves found the facility to be unsuitable for its purpose and identified numerous areas of failings in the care and treatment of residents. The residential aged care wards of the facility were shut down in June 2017.[24]

Carnell Paterson review

The failures of care identified at Oakden prompted further inquiries and reviews. In May 2017, the Australian Government announced it was commissioning an independent review of the aged care quality regulatory processes to be undertaken by Kate Carnell and Professor Ron Paterson.[25]

The purpose of the review was to determine why regulatory processes did not identify failures of care at Oakden. While Oakden had sanctions imposed on it, and briefly lost accreditation in 2008, by the end of the year, sanctions were lifted and accreditation reinstated.[26] Accreditation then proceeded routinely for the next several years until a complaint by a family in 2016 prompted a series of events leading to the investigation by Dr Groves.[27]

The Review of national aged care quality regulatory processes (the Carnell Paterson review) reported on 25 October 2017. It found that the regulatory system was fragmented and that ‘current regulatory mechanisms do not consistently provide the assurance of quality that the community needs and expects’.[28] The Carnell Paterson review made ten recommendations:

• establish an independent Aged Care Quality and Safety Commission to centralise accreditation, compliance and complaints handling[29]
• the Aged Care Commission will develop and manage a centralised database for real-time information sharing[30]
• all residential aged care services in receipt of Commonwealth funding must participate in the National Quality Indicators Program[31]
• the Aged Care Commission will implement a star-rated system for public reporting of provider performance[32]
• the Aged Care Commission will support consumers and their representatives to exercise their rights[33]
• enact a serious incident response scheme (SIRS) for aged care[34]
• aged care standards will limit the use of restrictive practices in residential aged care[35]
• ongoing accreditation, with unannounced visits, to assure safety and quality of residential aged care[36]
• ensure that assessment against Standards is consistent, objective and reflective of current expectations of care[37] and
• enhance complaints handling.[38]

On the release of the Carnell Paterson review, the Minister for Aged Care, Ken Wyatt, announced that the Government would move to implement unannounced accreditation audits as soon as possible.[39]

In April 2018, Mr Wyatt announced the establishment of the Aged Care Quality and Safety Commission.[40] The appointment of Janet Anderson as the first aged care quality and safety Commissioner was announced in October 2018.[41]

Senate Standing Committee on Community Affairs inquiry

In June 2017, the Senate Standing Committee on Community Affairs (first Community Affairs Committee) commenced an inquiry into the ‘Effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting residents from abuse and poor practices, and ensuring proper clinical and medical care standards are maintained and practised’.[42] The inquiry was established to focus in the first instance on the critical failures at Oaken; however, in its interim report released in February 2018, the first Community Affairs Committee also highlighted its concerns with systemic issues impacting the quality of aged care services.

In the interim report, the Committee made two recommendations—that the inquiry be extended[43] and that dementia-related and other mental health services delivered in aged care contexts be classified as health services rather than aged care services, and therefore regulated by healthcare quality standards and accreditation processes.[44]

In its response to the interim report, the Government rejected the reclassification of
dementia-related and mental health services as health services, instead supporting good clinical governance within aged care services. The introduction of the Single Aged Care Quality Framework and the establishment of the new Commission were among the initiatives cited as strengthening oversight arrangements.[45] The Committee’s final report was due on 28 November 2018; however, the Committee has called for further submissions by 30 November 2018 and will seek a further extension for reporting until February 2019.[46]

House of Representatives Standing Committee on Health, Aged Care and Sport inquiry

In December 2017, the House of Representatives Standing Committee on Health, Aged Care and Sport (the House Committee) commenced an inquiry into the ‘Quality of care in residential aged care facilities in Australia’.[47] The House Committee’s report was tabled in October 2018. It made fourteen recommendations, including but not limited to, the development of national guidelines for the Community Visitors Scheme,[48] review of the Aged Care Funding Instrument[49] and Medicare Benefits Schedule,[50] and greater limitations placed on the use of restrictive practices in aged care facilities.[51] The House Committee’s report also recommended that an independent review and Parliamentary inquiry be undertaken into the proposed Aged Care Quality and Safety Commission after two years ‘to determine its effectiveness in ensuring high standards of care, best clinical practice and reducing mistreatment’.[52]

Four Corners broadcasts

Public focus again turned to concerns about the quality of aged care following the airing of a
two-part investigation by the Australian Broadcasting Corporation’s (ABC) Four Corners into the treatment of older people in residential care facilities. The special investigation was the ABC’s biggest crowd sourced investigation, with more than 4,000 people sharing their experiences of the aged care industry.[53] The episodes, which aired on Monday 17 September 2018 and Monday 24 September 2018 revealed cases of neglect, abuse and poor practice.

Announcement of Royal Commission

On 16 September 2018, the day before the first part of the Four Corners investigation aired, the Government announced its decision to ask the Governor-General to establish a Royal Commission into the aged care sector.[54] Consultation on the Terms of Reference closed on 25 September 2018 with more than 5,000 submissions received from aged care consumers, staff, health professions, providers, community groups and other stakeholders.[55] On 9 October 2018, Prime Minister Scott Morrison announced the Terms of Reference for the Royal Commission into Aged Care Quality and Safety.[56] The Royal Commission’s interim report is due by 31 October 2019 and the final report due no later than 30 April 2020.

Committee consideration

Senate Community Affairs Legislation Committee

The Bills were referred to the Senate Community Affairs Legislation Committee (the second Community Affairs Committee) for inquiry and report by 12 October 2018. An extension for reporting was initially granted until 15 October 2018 and then until 19 October 2018.[57] The Committee received 33 submissions and held a public hearing in Canberra on 10 October 2018.

The second Community Affairs Committee tabled its report on 19 October 2018. The report recommended that the Bills be passed, strongly agreeing with the consensus of witnesses and submitters that the Commission (as established by the Principal Bill) is ‘a positive step forward in protecting the rights of older Australians receiving aged care services’.[58] The Committee viewed the recommendations proposed by witnesses and submitters as representing stakeholders’ shared desire for continued improvement in the aged care sector and oversight of care delivery, and endorsement of the Commission as the appropriate entity to improve services and regulation. The report suggested that some recommendations would require further legislative consideration; others could be incorporated into the Commission’s work once established.[59]

The Australian Greens (the Greens) provided extensive additional comments, broadly supporting the Bills but stating that some amendments were required.[60]

The Minister’s second reading speech in support of the Principal Bill refers to the Commissioner's specific function relating to:

... seeking and receiving clinical advice in relation to the functions of the Commissioner, which is envisaged to occur through the engagement of a Chief Clinical Advisor, with an Expert Clinical Panel to be established to support the role of the Chief Clinical Advisor.[61]

The Greens expressed concern that the Principal Bill makes no reference to any such role and consider that the Chief Clinical Advisor should be explicitly included. They want to see the Chief Clinical Advisor given responsibility for monitoring and oversight of restraints—chemical and physical—and medication management.[62]

In addition, the Greens disputed the description of the Commission as ‘a single point of contact’ for concerns about aged care, given the Commission will not be able to receive complaints about My Aged Care or assessment processes, and stated that the Commission’s complaint functions should be broadened so that processes of assessment and determination of eligibility are not separated out from service delivery.[63] Other suggested amendments were the inclusion of references in the Bill to:

• the rights of older Australians
• ‘representatives of aged care consumer’ to align with the definition in the Quality of Care Amendment (Single Quality Framework) Principles 2018
• representatives in the Commissioner’s consumer engagement functions
• the workforce in the Commission’s education functions
• Commonwealth-funded aged care services in clause 59 and
• provisions around consent and review.

The Greens also articulated expectations for the future Bills to include reference to sanctions and quality improvement as well as asking whether a serious incident reporting scheme—a recommendation from the Carnell Paterson review—would sit within the Aged Care Act or the next Bill.

The Greens recommended the Principal Bill be amended to address the issues outlined.[64]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee commented on the Bills in its Scrutiny Digest of 19 September 2018.[65] The Committee noted that a number of aspects of the Commissioner’s regulatory functions are to be set out in rules and expressed the view that significant matters, such as complaints and regulatory functions, and review rights, should be included in the primary legislation.

The Scrutiny of Bills Committee also drew attention to, and sought the Minister’s advice on, the broad discretionary powers the Principal Bill gives to the Commissioner to disclose protected information (paragraph 61(1)(a)), the proposal to use offence-specific defences, which reverse the evidential burden of proof (subclauses 60(3), (4) and 74(6)), as well as the broad delegation of administrative powers to a large range of staff members, without specifying their qualifications or attributes.

Minister’s response

The Minister’s response was considered by the Committee in its Scrutiny Digest of 17 October 2018.[66]

In response to the Committee’s concerns that significant matters relating to the Commission’s complaints and regulatory functions, including review rights, were in delegated legislation, the Minister advised that ‘[a]ll significant matters relating to the rights and responsibilities of persons involved in the complaints and regulatory functions will be established in primary legislation’ while operational matters will be prescribed in rules.[67] The Minister also noted that the Bills ‘elevate certain matters of significance currently in delegated legislation into the primary legislation’.[68]

In relation to the Committee’s concerns relating to the Commissioner’s broad discretionary powers (paragraph 61(1)(a)), the Minister advised:

Clause 61(1)(a) of the Bill is intended to be based on provisions contained in Division 86 Aged Care Act 1997 and Part 7 of the Australian Aged Care Quality Agency Act 2013. These provisions enable disclosures of protected information on similar terms to support the complementary functions of the CEO of the Quality Agency and the Secretary of the Department under the Aged Care Act 1997. Clause 61(1)(a) is therefore included in the Bill to maintain consistency with the Aged Care Act 1997.[69]

Regarding the offence-specific defences that reverse the evidential burden of proof in subclauses 60(3), (4) and 74(6), the Minister advised that under these subclauses, the defendant bears the evidential burden because they are matters peculiarly within the knowledge of the defendant.[70] This is consistent with Government policy, A guide to framing Commonwealth offences, infringement notices and enforcement powers.[71]

On the Committee’s concerns about the broad delegation of administrative powers, the Minister responded that the provision was consistent with the powers of the current Aged Care Complaints Commissioner, and that the flexibility was retained to ensure the Commissioner’s operational efficiency.[72] The Minister viewed the Bill’s provisions as appropriate and suggested that further refinements could be considered as part of the second stage of reforms.[73]

Committee response to the Minister

The Committee noted the Minister’s advice about the Commissioner’s complaints and regulatory functions being prescribed by the rules but reiterated its view that specific consultation obligations be included in the Bill.[74]

The Committee also remained concerned that paragraph 61(1)(a) conferred extremely broad discretion on the Commissioner to disclose personal information and reiterated that the Bill does not require the Commissioner to notify a person about a proposed disclosure of their information.[75]

The Committee did not find it apparent that the each of the matters in subclauses 60(3) and (4) would be peculiarly within the knowledge of the defendant, and disagreed with the Minister’s description of the maximum penalty of two years’ imprisonment as a ‘low penalty’.[76]

In line with its initial comments, the Committee noted that it may be appropriate to amend clause 76 of the Principal Bill and item 19 of Schedule 1 of the Consequential Bill to require the Commissioner be satisfied that persons on whom functions or powers are delegated or sub-delegated have appropriate expertise.[77] It reiterated:

... it has not generally considered administrative or operational flexibility, or consistency with existing legislation, to be sufficient justification for allowing a broad delegation of administrative powers to officials at any level.[78]

The Committee requested that key information provided by the Minister be included in the Explanatory Memorandum.[79] It also drew to the attention of senators its scrutiny concerns, as discussed above.[80]

Policy position of non-government parties/independents

The Greens and the Australian Labor Party (Labor) have expressed broad support for the establishment of the Commission, as well as calling for further reform and strengthening of the powers of the Commission. For instance, in response to the announcement of the establishment of the Commission in April 2018, Australian Greens Senator, Rachel Siewert, stated:

The reforms announced today are a step in the right direction, particularly plans to establish a national independent Aged Care Quality and Safety Commission.

I will note though that the Government has not responded to all the recommendations in the various recent reviews, they must commit to further reform so that aged care facilities are as safe as can be for older Australians.

I welcome that there will be a public rating against quality standards, which will increase transparency, but more work needs to be done to ensure that the standards meet community expectations of the best possible care.[81]

Julie Collins stated that Labor supports ‘what the [Principal] Bill is trying to do’ but called for the powers of the Commissioner to be strengthened:

We also think that these Bills are a missed opportunity for the government to give the Commission stronger arbitrary powers, given the level of public concern in relation to some of the disputes people have with service providers. We don't want to see this become a toothless tiger. We think it is a shortfall that government didn't consider giving the new commissioner greater arbitrary powers to resolve disputes between consumers and providers in the aged-care system.[82]

Position of major interest groups

The Bills have generally been welcomed by the majority of stakeholder groups. In response to the original announcement of the Commission (as established by the Principal Bill) in April, major interest groups have given it their support.[83] For example, COTA Australia welcomed measures to strengthen protections for older people receiving aged care:

“Jointly the new Standards and the Quality and Safety Commission represent a landmark advance for consumer rights in aged care. We still need more to be done but these are essential steps forward to driving out poor quality providers of support and care for older Australians,” Mr Yates [COTA Australia Chief Executive] said.[84]

The national peak body for providers of age services, Leading Age Services Australia (LASA), also welcomed the announcement, stating that ‘quality in Australia’s aged care system is
non-negotiable’[85] LASA’s Chief Executive Officer, Mr Sean Rooney, emphasised the quality of the aged care sector, stating that ‘the overwhelming majority of aged care providers in Australia are delivering excellent services, underpinned by dedicated and professional staff’. Mr Rooney expressed his hope that the Commission would ‘improve information sharing across existing Government agencies, minimise red tape, and enable a more efficient regulatory system’.[86]

However, the Combined Pensioners and Superannuants Association (CPSA) was less optimistic about the state of aged care services in Australia and the impact of the new Commission on the quality of care:

The new Aged Care Quality and Safety Commission will not change anything until objectively measurable aged care quality standards are introduced and nursing homes are compelled to hire sufficient and adequately qualified staff to meet those standards.[87]

The Australian Nursing and Midwifery Federation (ANMF) has argued that chronic understaffing is the core of problems in the quality of aged care, and is calling for mandated minimum staffing ratios and skill mix.[88] The Australian Medical Association (AMA) has also called for regulation around minimum acceptable staffing levels in residential aged care facilities, as well as calling for the Commission to recommend ways to improve the aged care system, on the basis of its work.[89]

Although in the minority, some stakeholders do not support the establishment of the Commission. With the Royal Commission into Aged Care Quality and Safety announced shortly after the introduction of the current Bills into the Parliament, some stakeholders expressed the view that establishing the Commission while the Royal Commission is underway is unproductive.[90]

Financial implications

According to the Explanatory Memorandum, the Bill will have no financial impact.[91] The Commission will be partly funded by combining existing budget allocations for the Quality Agency and Complaints Commissioner and partly funded by fees charged by the Commission for services.[92]

Measures to improve the quality of aged care were included in the 2018–19 Budget, one of which was $253.8 million over four years to establish the Commission.[93]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.[94]

The Government regards the Principal Bill to be compatible because it supports rights to an adequate standard of living and health and as well as rights to protection from exploitation, violence and abuse. The Principal Bill includes protections for personal information collected by staff about individuals.[95] Under these provisions, the penalty for using or disclosing protected information for unpermitted uses is imprisonment for a maximum period of two years. The Commissioner ‘may disclose personal information in a limited range of circumstances’ for example, public interest, and risk to health or safety of an aged care consumer.[96]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Principal Bill on 17 October 2018.[97] The Committee raised concerns with the Bill’s information provisions. It requested advice from the Minister as to:

• whether the power of the Aged Care Quality and Safety Commissioner to disclose protected information (clause 61) is a proportionate limitation on the right to privacy, including:
  • whether information may be disclosed to organisations that are not covered by the Privacy Act 1988 (Cth)
  • to what factors the Commissioner will have regard in disclosing information where necessary for the ‘public interest’ (which is undefined in the Bill) (paragraph 61(1)(a)) and
  • whether the power to disclose information pursuant to rules (paragraph 61(1)(j)) is ‘sufficiently circumscribed and accompanied by adequate safeguards’—the Committee requested a copy of the proposed rules, if available
• the proportionality of the Bill’s information sharing provisions (clauses 56 to 58) in relation to the right to privacy, including whether personal information can be shared and published and if so, whether the circumstances in which this can occur are sufficiently prescribed and
• in relation to the prohibition on the use or disclosure of protected information under clause 60, whether the reversal of the evidential burden of proof is compatible with the right to be presumed innocent.[98]

At the time of writing, the Minister’s response had been received by the Committee, but not published.[99]

The Consequential Bill did not raise human rights concerns.[100]

Key issues and provisions

Existing legislative scheme

As explained above, responsibility for aged care quality regulation is currently divided between three entities, and is contained in a range of Acts, legislative instruments, guidelines and other policies.

The Aged Care Complaints Commissioner is a statutory office established under the Aged Care Act 1997. The Commissioner’s complaints-handling functions are primarily set out under the Aged Care Act and the Complaints Principles 2015.

The Aged Care Quality Agency is an independent statutory agency established under the Aged Care Quality Agency Act 2013. A range of matters relating to its functions, including in relation to accreditation, quality reviews and monitoring, are set out in the Quality Agency Principles 2013.[101] The responsibilities of the DoH in regards to approval of providers and regulatory action in response to non-compliance are provided for under the Aged Care Act.

The Aged Care (Single Quality Framework) Reform Act 2018, which will commence on 1 July 2019, replaces four sets of standards applying to different types of aged care with a single set of Aged Care Quality Standards.

Scope of the proposed framework

The Principal Bill proposes bringing together the functions of the Complaints Commissioner and the Quality Agency into a single body, the Aged Care Quality and Safety Commission. The Bill does not transfer the DoH’s approval and enforcement functions to the proposed Commission; however, the Government intends that subsequent legislative amendments will transfer these functions to the Commission from 1 January 2020. This is discussed further below.

The object of the Principal Bill, as set out in subclause 5(1), is to establish a regulatory framework that will:

• protect and enhance the safety, health, well-being and quality of life of aged care consumers and promote their confidence in the provision of aged care services and
• promote engagement with aged care consumers about the quality of care and services provided by:
  • approved providers of aged care services and
  • service providers of Commonwealth-funded aged care services.

These terms are defined in clause 7. An aged care consumer is either a care recipient (that is, approved as a recipient of aged care under the Aged Care Act) or a person who is a recipient of a Commonwealth-funded aged care service).[102]

An aged care service is defined in the Aged Care Act, and captures services which provide residential care, home care and flexible care (discussed above under ‘Types of aged care’).[103] A Commonwealth-funded aged care service is defined in subclause 8(1) as a service provided under a funded program of a kind specified in rules made by the Minister (the rules are discussed further below), and is intended to include the CHSP and NATSIFACP.[104] An approved provider is a person or body who has been approved as a provider of aged care under the Aged Care Act, and includes state and territory governments and authorities, and local government authorities.[105]

Stakeholder comments

Some stakeholders expressed views that the ambit of the Commissioner’s authority could be extended in various ways. For example, COTA Australia advocated for My Aged Care and assessment processes to be included in the scope of the Commission, particularly in relation to complaints.[106] The New South Wales Nurses and Midwives’ Association expressed hope that the care provided to people in retirement villages be included in definitions of aged care or residential aged care.[107] The South Australian Office of the Public Advocate suggested that family members, supporters and carers of an aged care consumer should be included in subclause 5(1) to ensure their involvement in the engagement process.[108]

Aged Care Quality and Safety Commission

Part 2 of the Principal Bill establishes the Aged Care Quality and Safety Commission (Commission), which is a listed entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and therefore subject to the governance and accountability requirements of that Act.[109] The Commission is made up of the Commissioner and Commission staff.[110] Clause 13 states that its function is to assist the Commissioner in the performance of the Commissioner’s functions.

Part 3 establishes the office of the Commissioner. The Commissioner is appointed by the Minister on a full-time basis, for up to five years (and may be reappointed).[111] Remuneration and leave entitlements are to be determined by the Remuneration Tribunal.[112] The Minister may determine other terms and conditions applicable to the Commissioner’s office, and has the power to terminate the appointment for reasons including: misbehaviour; physical or mental incapacity; bankruptcy; extended absence; engagement in unapproved paid outside work; or failure to comply with disclosure requirements under the PGPA Act.[113]

The Minister also has the power to appoint an acting Commissioner during periods in which the office is vacant or the Commissioner is absent from duty or Australia, or otherwise unable to perform the duties of the office.[114]

Commissioner’s functions

The Bill sets out the functions of the Commissioner in broad terms. As discussed below, these will be subject to more detailed rules, and directions made by the Minister.

Clause 16 provides that the Commissioner’s functions include to ‘protect and enhance the safety, health, well-being and quality of life of aged care consumers’ and to ‘promote the provision of quality care and services’ by aged-care service providers. Other functions include providing advice to the Minister on request; seeking and considering clinical advice in relation to the performance of its functions; and functions which may be conferred on the Commissioner by other laws or instruments.

The Commissioner also has the following specific functions:

• consumer engagement functions: to develop (in consultation with aged care consumers) and promote best practice models for engagement between aged care providers and their consumers[115]
• complaints functions: to, in accordance with the rules, deal with complaints made or information given to the Commissioner, in relation to the responsibilities of aged care providers[116]
• regulatory functions: these include to, in accordance with the rules, accredit aged care services, conduct quality reviews and monitor the quality of care and services provided, as well as to register persons as ‘quality assessors’ for the purposes of performing functions or exercising powers under the Act or rules[117] and
• education functions: to provide information and education about matters relating to the Commission’s functions to aged care service providers, aged care consumers and their representatives, and the public; and to collect, correlate, analyse and disseminate information relating to the Commissioner’s functions.[118]

Clause 23 provides that the Commissioner may charge fees for services provided in performance of these functions.

Rules and directions

The Principal Bill does not provide significant detail about the way in which the Commissioner is to perform these functions. For example, it does not set out a complaints-handling process or accreditation scheme. Instead, these processes and requirements will be contained in rules made by the Minister, in the form of a disallowable legislative instrument.[119]

Clause 21 contains an extensive—but non-exhaustive—list of matters relating to the Commissioner’s functions which the rules may cover. These include, for example:

• the establishment of a complaints handling scheme, including requirements as to: how complaints may be made, managed and resolved; relevant considerations for resolving complaints; actions which may be taken to address such complaints; and the review or reconsideration of decisions
• the accreditation of aged care services and circumstances in which a service is taken to be accredited and
• the monitoring of the quality of care and services provided, including requirements for providers to have a written plan and timetable for continuous improvement, and for the conduct of audits of services in specific circumstances.

The Minister may also give written, binding directions to the Commissioner about the performance of these functions.[120] Subclause 22(2) provides that directions must be of a general nature, and cannot relate to a particular aged care consumer or service provider.[121] Unlike the rules, the Minister’s directions will not be subject to disallowance or sunsetting.[122]

Future functions

Subclause 5(2) further notes that it is the Parliament’s intention to confer ‘through future legislative change’, additional functions on the Commissioner relating to matters ‘such as the approval of providers of aged care and compliance’.

As acknowledged in the Explanatory Memorandum, this refers to the planned transfer of approval and compliance functions from the DoH to the Commission from 1 January 2020.[123]

Reporting requirements

Under clause 54, the Commissioner must give the Minister a written annual operational plan for each financial year. This must specify the Commissioner’s priorities for the period; set out the intended action to be taken during the period to give effect to or further the objectives set out in the plan; state how the Commissioner will apply the Commission’s resources to achieve these objectives; and include a risk assessment plan and performance indicators for the relevant period. The Commissioner is required to consult the Minister and Advisory Council in preparing the plan (as well as in preparing a corporate plan as required by the PGPA Act).[124]

Additionally, the Commissioner’s annual report (as required by the PGPA Act) must include the following information:

• an assessment of the extent to which the Commission’s operations during the relevant period have contributed to the priorities identified in the annual operational plan
• particulars of any variation of the plan during the period and
• an evaluation of the Commission’s overall performance against the performance indicators set out in the plan.[125]

Transitional provisions

The Consequential Bill provides that things done by, or in relation to, the CEO of the Quality Agency or Complaints Commissioner before the transition time will have effect as if they were done by, or in relation to, the Quality and Safety Commissioner.[126] Similarly, the Commissioner will be substituted for the CEO of the Quality Agency or the Complaints Commissioner in any pending court or tribunal proceedings to which the CEO or Complaints Commissioner is a party.[127]

Stakeholder comments

Leading Age Services Australia (LASA) has suggested that a distinct complaints service be maintained within the new agency and that there be an external and independent review body for decisions made by the Commission about complaint or accreditation issues.[128]

Some stakeholders have recommended changes to the proposed reporting requirements. For example, the Queensland Office of the Public Advocate (QOPA) has suggested the Commissioner should be required to provide greater detail to the public about its complaints functions, including the type and nature of complaints received and the outcomes. The QOPA states that strengthened reporting requirements ‘will facilitate greater system transparency and accountability’.[129]

Advisory Council

Part 5 of the Principal Bill establishes the Aged Care Quality and Safety Advisory Council. The Council’s structure and functions are largely similar to those of the existing Aged Care Quality Advisory Council.[130] The functions of the proposed Advisory Council are to provide advice to:

• the Commissioner in relation to the Commissioner’s functions (on request or on its own initiative) or
• the Minister, at the request of the Minister, in relation to the performance of the Commissioner’s functions.[131]

The Advisory Council is to consist of a Chair and between six and ten other members.[132] Members are appointed by the Minister on a part-time basis for a maximum period of three years (and can be reappointed).[133] In making appointments, the Minister must be satisfied that the person has ‘substantial experience or knowledge’ in at least one of the fields specified at subclause 41(3)—these include: evaluation of quality management systems; provision of care and services to aged care consumers; aged care or health consumer issues; geriatrics; gerontology; aged care nursing; public administration; management; law; or ‘any other appropriate field of expertise’.

Similar provisions apply to the appointment of Advisory Council members as to the Commissioner—the Minister may determine in writing the terms and conditions of appointment not set by the Remuneration Tribunal, and may terminate appointment on the same grounds as those applying to the Commissioner.[134]

Disclosure of interests

Clause 45 requires Advisory Council members to give written notice to the Minister of all interests (whether pecuniary or otherwise) which conflict or could conflict with the proper performance of the member’s functions.

Additionally, clause 46 requires a member with an interest in a matter being considered or about to be considered by the Advisory Council, to disclose the nature of the interest to a meeting of the Council. The disclosure must be made as soon as possible after the relevant facts have come to the member’s knowledge, and must be recorded in the minutes of the meeting.[135] The member must not be present during any deliberations by the Advisory Council on the relevant matter, or take part in any decision in respect of the matter, unless the Advisory Council determines otherwise.[136]

These same requirements apply to the existing Quality Advisory Council.[137]

Minister’s directions

The Minister may give binding, written directions to the Advisory Council about the performance of its functions.[138] As with Ministerial directions to the Commissioner, these will be in the form of a non-disallowable legislative instrument and cannot relate to a specific aged care consumer or service provider.[139] The Minister may also give the Advisory Council written directions about the procedures to be followed in relation to Council meetings. These directions are not legislative instruments.[140]

Transitional provisions

The Consequential Bill provides that current members of the Advisory Council under the Quality Agency Act will be taken to have been appointed to the Advisory Council under the new legislative scheme for the balance of their term of appointment.[141]

Numerous stakeholders expressed concern that the Consequential Bill transfers the current members of the Aged Care Quality Agency Advisory Council to the Commission Advisory Council. For example, Painaustralia stated:

Reinstating its current members to the new Aged Care Safety and Quality Commission will only perpetuate the executive level disregard for consumer safety and quality that has led to the instigation of a Royal Commission.[142]

Information sharing

Part 7 of the Principal Bill deals with the authorised and unauthorised use and disclosure of information. These provisions are similar to existing provisions under the Aged Care Act and Quality Agency Act.[143]

Sharing and publication of information

Clauses 56 and 57 authorise the sharing of information between the Commissioner and Secretary of the Department of Health. Clause 56 requires the Commissioner to provide information to the Secretary for the purposes of the Secretary’s functions or powers, either:

• in circumstances provided for in the rules or
• on request by the Secretary, where the Secretary requires the information for the purposes of their functions or powers and the information is available to the Commissioner.

If the Commissioner requests the Secretary give them information that is required for the purpose of their functions or powers, and the information is available to the Secretary, the Secretary must give the information to the Commissioner.[144]

Clause 58 gives the Minister the power to require the Commissioner to prepare for the Minister a report about one or more specified matters or a document setting out specified information, in relation to the performance of the Commissioner’s functions. The Minister may publish (on the internet or otherwise) this report or document.[145]

Publication of information

Clause 59 states that the Commissioner may make publicly available certain information about an aged care service, including:

• the name and address of the service and the approved provider
• the number of places, services provided and facilities available through the service
• information about the service’s status under this Act and the Aged Care Act (such as its accreditation record) and its performance in relation to its statutory responsibilities
• any action taken to protect the welfare of care recipients receiving care through the service, and reasons for the action and
• any other information of a kind specified in the rules.

However, the information disclosed must not include personal information—that is, information or an opinion about an individual (whether true or not) whose identity is apparent or can reasonably be ascertained from the information or opinion.[146]

This appears largely equivalent to the existing power of the CEO of the Quality Agency to publish information about an aged care service.[147] The Secretary has the same powers under the Aged Care Act.[148]

Stakeholder comments

Stakeholders have raised concerns that these disclosure requirements are discretionary. The NSW Nurses and Midwives Association has argued that ‘the suggestion that the Commission may not make information about an aged care facility or service publicly available is not fully transparent’, and has recommended that clause 59 be amended to require information be made publicly available unless it is not in the public interest.[149] A number of stakeholders have suggested that the Commissioner be required to publicise information on matters including staffing ratios, the skill mix of staff, as well as safety and quality outcomes.[150]

Clause 59 refers only to information about aged care services; unlike other provisions in the Bill it does not specify Commonwealth-funded aged care services.[151] It is unclear why such services are not captured. In their Additional Comments to the Senate Inquiry report, the Greens stated that they ‘want to see Commonwealth-funded aged care services included in this section’.[152]

Protected information and permitted disclosures

The Aged Care Act and Quality Agency Act both include offences relating to using or disclosing protected information.[153] The Principal Bill contains an equivalent offence at clause 60. This provides that a person commits an offence if they make a record of, use or disclose protected information obtained in the course of performing functions or exercising powers under the Act. There is a maximum penalty of two years’ imprisonment.[154] Protected information is defined as information acquired under, or for the purposes of, the Act or rules that:

• is personal information or
• relates to the affairs of an approved provider or a service provider of a Commonwealth-funded aged care service.[155]

Subclause 60(3) provides for exceptions to the offence where the person makes the record or uses/discloses the information in the course of performing functions or exercising powers under this Act, the rules, the Aged Care Act or Aged Care Principles; where the conduct is authorised by the person or body to whom the information relates; or where the conduct is otherwise authorised by this Act, the rules, or by another Act. Subclause 60(4) sets out further exceptions where the disclosure is to the person or body to whom the information relates or to the Minister or Secretary. The defendant bears an evidential burden to establish that one of these exceptions applies.[156]

Under clause 61, the Commissioner is permitted to disclose protected information in certain circumstances. This includes where he, or she, determines in writing that it is ‘necessary in the public interest’ to disclose the information in a particular case.[157] Other examples of permitted disclosures include where the Commissioner reasonably believes it is necessary to prevent or lessen a serious risk to the safety, health or well-being of an aged care consumer,[158] or for the purposes of reporting a breach of professional standards of conduct,[159] or for law enforcement purposes.[160] Protected information may also be disclosed to a court or other investigative body in limited circumstances.[161] However, a person who receives information from the Commissioner under clause 61 will nonetheless commit an offence if they make a record of, use or disclose the information for a different purpose.[162] A maximum penalty of two years’ imprisonment applies.

Additionally, paragraph 61(1)(j) permits disclosures to a person of a kind specified in the rules, for the purposes specified in the rules in relation to persons of that kind. As noted above, the Parliamentary Joint Committee on Human Rights raised concerns about this provision, stating:

It is not clear...whether the rules will contain safeguards on the disclosure of personal information, such as requiring the consent of the person affected, or providing for review of the disclosure by an independent body. A copy of the proposed rules would assist in this respect.[163]

Entry and search powers

Existing arrangements

Under the current regulatory arrangements, the Complaints Commissioner is responsible for appointing authorised complaints officers to exercise certain ‘complaints powers’ under the Aged Care Act.[164] These include powers to enter and conduct searches of premises, and to ask persons at the premises to answer questions or produce documents.

In comparison, quality assessors engaged by the Quality Agency to assess residential and home care services are registered in accordance with the Quality Agency Act and Quality Agency Principles.[165] Quality assessors have the power to conduct audits (including unannounced audits) to assess a residential care or flexible care service for accreditation or re-accreditation, and review an approved provider’s performance against the relevant standards.[166] They also carry out site visits in conducting quality reviews of home care services.[167] Access to such services is subject to the Accountability Principles 2014.[168]

Appointment of complaints officers and other officials

Part 8 of the Principal Bill maintains both types of officials—complaints officers and quality assessors—with both having the power to search and enter premises. Clause 73 provides that the Commissioner may appoint staff members of the Commission as authorised complaints officers, to exercise certain search and entry powers, or for other purposes provided in the rules.[169] The Commissioner must not make an appointment unless satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised complaints officer.[170] An authorised complaints officer must comply with any directions of the Commissioner.[171]

In comparison, the registration, requirements and functions of quality assessors will be dealt with in the rules.[172]

The Commissioner must cause an identity card to be issued to a person who is an authorised complaints officer or quality assessor—such persons must carry the card at all times when performing the relevant functions.[173]

Exercise of powers

Division 2 of Part 8 deals with the powers of authorised complaints officers; Division 3 of Part 8 deals with the powers of regulatory officials (defined as the Commissioner and quality assessors).[174] The powers are the same for each, though exercised for different purposes.

Under clause 65, an authorised complaints officer may, in certain circumstances:

• enter any premises and
• exercise search powers in relation to the premises

for the purposes of the Commissioner resolving a complaint or dealing with information, in accordance with the rules, about an aged care provider’s responsibilities.

Clause 68 provides the same powers may be exercised by a regulatory official if the Commissioner considers it necessary for a ‘regulatory purpose’. This may relate to the accreditation, quality review or monitoring of the quality of care and services provided by an aged care provider.[175]

These powers can only be exercised with the consent of the occupier of the premises.[176] Clauses 66 and 69 set out certain requirements for consent—the occupier must be informed that they can refuse or withdraw consent, and the consent must be voluntary to have effect.[177] However, where the occupier is an approved provider, they have a responsibility under the Aged Care Act to cooperate with the officer or official exercising powers to enter and search premises, and may be subject to sanctions for non-compliance.[178]

An officer or official who has entered premises may request a person at the premises to answer questions and produce any documents or records.[179] A person is not required to comply with such a request; however, as noted above, they may have obligations under the Aged Care Act to cooperate.[180]

Clauses 71 and 72 set out the search powers available to an authorised complaints officer or regulatory official who has entered premises in accordance with the Act. These include the power to search the premises, observe any activity, take photos or make recordings, inspect, take extracts from or make copies of documents, and to operate electronic equipment on the premises.

Stakeholder comments

A number of stakeholders expressed concern that the search and entry powers provided in the Principal Bill are insufficient, particularly due to the requirement that the occupier consent to the entry. For example, the Victorian Office of the Public Advocate has suggested the requirement for voluntary consent:

... inhibits the capacity of an authorised complaints officer to effectively investigate a complaint where their admission to an aged care facility rests on the consent of the occupier...This seems manifestly inadequate.[181]

The Queensland Nurses and Midwives Union similarly noted that this requirement allows the occupier the opportunity to deny access to authorised officers until they can rectify staffing or other deficits.[182] The Community and Public Sector Union (CPSU) proposed that the Bill be amended so that the provider be restricted to specific reasons for denying consent to Commission staff to enter the premises, such as an outbreak of a contagious illness.[183]

Rule-making

The Minister’s rule-making power is contained in clause 77. This provides that the Minister may make rules prescribing matters as required or permitted by the Act, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Rules made by the Minister will take the form of a disallowable legislative instrument.[184] Subclause 77(2) sets out some limitations on this power, stating that the rules may not create an offence or civil penalty; provide powers of arrest, detention, entry, search or seizure; impose a tax; provide for an appropriation from the Consolidated Revenue Fund; or directly amend the text of the Act.

Subclause 77(3) provides that the rules may apply, adopt or incorporate (with or without modification) any matter contained in any other instrument or writing ‘as in force or existing from time to time’. This effectively overrides the presumption in the Legislation Act against such incorporation.[185] The Explanatory Memorandum states that this will allow the rules to incorporate the Quality Framework, as it is amended from time to time.[186]

Other provisions

Delegation

Clause 76 of the Principal Bill states that the Commissioner may delegate to a member of the Commission staff ‘all or any’ of the Commissioner’s functions or powers under the Act or rules. The delegate is required to comply with any written directions of the Commissioner.

Consequential amendments

The Consequential Bill contains a range of consequential amendments to the existing aged care laws. Part 1 of Schedule 1 repeals the Quality Agency Act and the Australian Aged Care Quality Agency (Transitional Provisions) Act 2013. This will effectively abolish the Quality Agency.

Part 2 of Schedule 1 makes consequential amendments to the Aged Care Act. These include:

• replacing references to the Complaints Commissioner and CEO of the Quality Agency with references to the Quality and Safety Commissioner[187]
• repealing existing Parts 6.4A and 6.6 of the Act, which respectively deal with complaints and authorised complaints officers and the office of the Complaints Commissioner[188] and
• removing obsolete references, such as to the Complaints Commissioner and authorised complaints officers, the Complaints Principles, Accountability Principles, Quality Agency Reporting Principles and User Rights Principles.[189]

The amendments in Parts 1 and 2 commence on the later of the day after Royal Assent and the commencement of the Quality and Safety Commission Act, and are contingent on the passage of that Act.[190]

Part 3 of Schedule 1 contains two consequential amendments to provisions of the Aged Care Act and Freedom of Information Act 1982 which are to be amended by the Single Quality Framework Reform Act. These replace references to the Quality Agency Act with the Quality and Safety Commission Act.[191] The two amendments will commence immediately after the commencement of the Single Quality Framework Reform Act (being 1 July 2019).[192]

Schedule 2 of the Consequential Bill contains application and transitional provisions, which have been discussed above in relation to the Principal Bill. Schedule 2 will commence on the later of the day after Royal Assent and the commencement of the Quality and Safety Commission Act, and is contingent on the passage of that Act.[193]

Concluding comments

The Bills establish the Aged Care Quality and Safety Commission as a new independent statutory body, bringing together the regulatory functions of the current Australian Aged Care Quality Agency and the Aged Care Complaints Commissioner from 1 January 2019. The Bills also signal the Parliament’s future intention to enact legislative change that will confer the regulatory functions of the Department of Health—accreditation of approved providers and compliance functions—to the Commission. The Principal Bill establishes the Commission and the Consequential Bill deals with the consequential matters that are required to transfer operations from the Australian Aged Care Quality Agency and Aged Care Complaints Commissioner to the new Commission.

The Bills were introduced in an environment of heightened public concern about and political focus on the quality of aged care. The establishment of the Commission responds to the first recommendation of the Carnell Paterson review. The Commission is intended to address the problems of fragmentation in the regulatory system that the Carnell Paterson review identified and to enhance the safety, well-being and quality of life of aged care consumers.

The Aged Care Quality and Safety Commission is to be established at the same time as the Royal Commission into Aged Care Quality and Safety is underway. The Royal Commission will undoubtedly have implications for the new Commission and its operations. Some stakeholders have suggested the establishment of the new Commission should be deferred until after the Royal Commission reports its findings; however, other stakeholders consider that reforms to aged care quality and safety regulation cannot wait until the Royal Commission reports in 2020 and that more immediate action is needed.

A challenge for the Aged Care Quality and Safety Commission as it establishes itself will be the heightened public focus that the Royal Commission will inevitably bring to it and the sector. It will not just be stakeholders, but also the media and the public who will be watching closely to see if and how the new Commission differentiates itself from the previous regulatory system—one which oversaw and was not able to detect or prevent significant failures of care and neglect.