1.1
The Australian Greens broadly support the Aged Care Quality and Safety
Commission Bill 2018 (Commission Bill) and Aged Care Quality and Safety
Commission (Consequential Amendments and Transitional Provisions) Bill 2018
(Consequential Bill), however, we consider some amendments are required.
1.2
The Commission Bill establishes the new, independent Aged Care Quality
and Safety Commission (Commission), as announced in the 2018–19 Budget
following the recommendation of the Carnell Paterson review. The Commission
will initially bring together the functions of the Australian Aged Care Quality
Agency and the Aged Care Complaints Commissioner.
1.3
There is to be a Commissioner appointed by the Minister to lead the
Commission. The Commission Bill sets out the various functions of the
Commissioner, including the consumer engagement functions, complaints
functions, regulatory functions and education functions.
1.4
From 1 January 2020, the aged care regulatory functions of the Department
of Health (Department), including the approval of aged care providers,
compliance and compulsory reporting of assaults, will also transition to the
Commission. A separate bill will be needed to transfer the regulatory functions
from the Department and the Australian Greens understand that this bill is
anticipated to be introduced and debated sometime during 2019.
1.5
The establishment of the Commission will allow a more holistic approach
and better oversight of the aged care sector as a whole, where information will
flow more readily and easily throughout the Commission, allowing better
identification of where the risks are and for these to inform decision-making,
rather than being siloed within the various agencies and the Department. This
will allow better analysis of the data each agency is currently collecting and
assist in working out why there are certain trends and help drive quality
improvement.
1.6
We would like to a see a number of amendments to the Commission Bill to
strengthen it before it passes. Given recent events that have played out in the
media, it is incredibly important we get the Commission Bill right so that
older Australians, providers and the public have confidence in the aged care
sector and are clear on the purpose and the role of the Commission and there
are fewer grey areas than what currently exist.
1.7
Our concerns about the Commission Bill relate to the exclusion of the
Chief Clinical Advisor's role and the undefined scope of this position, the
Commission not being a single point of contact as indicated, the lack of
reference to the human rights of older Australians, the lack of reference to
representatives of older Australians and access for these representatives, the
scope of the Commissioner's consumer engagement and education functions, the
lack of reference to Commonwealth-funded aged care services in section 59 and
the lack of a review provision. There is also a need for clarity regarding what
will be included in the next bill due next year.
1.8
This report outlines a number of the issues we have with the Commission
Bill, but we acknowledge this report does not address all suggested
recommendations and additions made throughout the inquiry.
Chief Clinical Advisor role
1.9
The Second Reading Speech for the Commission 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.[1]
1.10
The Australian Greens welcome this reference to a Chief Clinical
Advisor, but we are concerned that the role is not set out in the Commission
Bill and is therefore not a statutory office.
1.11
During the hearing for the inquiry, a number of witnesses expressed
their support, or their lack of objection, for this role to be set out in the
Commission Bill and to be a statutory office.
1.12
Mr Toy, Director, Medical Practice Section, Australian Medical
Association, said:
I think we've made it fairly clear in our submission that it
should be a mandatory position—absolutely. I think earlier iterations of our
thinking were along the lines of the clinical adviser being potentially called
a commissioner or a deputy commissioner, with our intent there being that this
is an absolute must for the commission. How that gets enacted, I guess we'd
leave up to the department and the parliament. But, for us, it's an absolute
must, yes.[2]
1.13
Mr Richter, Chief Executive Officer, Aged Care Guild, said:
In terms of whether the role is statutory, much like Pat, I
don't have a strong view. But, if you look at chief psychiatrist-type roles
around the states and territories, they are generally statutory, and there's a
reason for that. So I think it should be something that's considered from a
perspective of whether it helps or hinders the role—and it probably helps it
and gives it authority. That's just a general view.[3]
1.14
While the Second Reading Speech makes reference to flexibility as a reason
for a single statutory office,[4]
that of the Commissioner, the Australian Greens cannot envisage a time when the
Chief Clinical Advisor's position will not be needed and are of the view that
the requirement for certainty for the position into the future outweighs the
need for flexibility. The role should be explicitly included in the Commission
Bill.
1.15
With regards to the Expert Clinical Panel referenced in the Second
Reading Speech, the Australian Greens are of the view that it needs to be made
up of a range of different clinical experts so that the Chief Clinical Advisor
can draw on their expertise as required. We will continue to ask questions of
the Government during the debate on this Bill regarding this Expert Clinical
Panel to ensure that it is established and that it meets the needs of the Chief
Clinical Advisor and the Commission more broadly.
Scope of the Chief Clinical Advisor
role
1.16
The Australian Greens want to see the Chief Clinical Advisor's role
given responsibility for oversight and monitoring of physical and chemical
restraints and medication management. Both of these areas came up repeatedly
during the hearing of the inquiry.
1.17
Mr Richter, Chief Executive Officer, Aged Care Guild, said:
In terms of restraint, I think they do have a role here and
we need to work out what it is. You are both saying things which are absolutely
correct. In prescribing you should be considering the ambient environment that
the individual is in. We know that doesn't always happen. So we clearly need an
additional layer of something there to help with that. It's not just an
aged-care thing; this is a health thing across the country. Prescription
happens inappropriate all the time in communities as well as in hospitals. So
that is something that we have to remember. If this role a can help that and
help educate, then I think that's important.[5]
1.18
Mr Mitchell, Older Persons Legal Services Network, National Association
of Community Legal Centres, said:
We don't have an understanding of restrictive practices,
because we don't collect information about them. Until we collect information
about them, we don't even really know what it is we're regulating, because we
don't know what the unregulated landscape looks like.[6]
1.19
Mr Gear, Chief Executive Officer, Older Persons Advocacy Network, said:
Pointing to some mechanism where the clinical adviser's role
could be further unpacked may be a way to start to determine what that role's
scope is and its ability to look at or monitor some of these issues.[7]
1.20
Dr Brooke, Member, Australian Association of Gerontology, said:
However, evidence and evidence based practice to support that
needs to be improved. The bill should require the commission to provide
leadership in this area—not just a function of it, but leadership—and open
disclosure goes to that, as well as looking at resources. If you look at the
resources that are available in community care and residential care, many of
those resources have not been reviewed in more than 15 to 20 years, including
medication management, palliative care—you name it. It's very hard to stay
contemporary if there's not leadership from the commission.[8]
1.21
Dr Kidd, Chair, Australian Medical Association Council of General
Practice, said:
Many of the cases of abuse and neglect in aged-care settings
involve inadequate clinical care. The clinical care accreditation standard was
the single highest outcome not met by residential aged-care facilities in
2016-17, followed by the medication management standard. This shows that
aged-care staff find it difficult to understand or are unable to carry out what
is expected of them, in terms of clinical care. This must be improved to ensure
older people receive high-quality care. The clinical adviser to the commission...needs
to have real power to direct outcomes and be properly resourced.[9]
1.22
In relation to restrictive practices, the Carnell Paterson review
recommended the Commission have oversight of the use of restrictive practices
in residential aged care. While the Carnell Paterson review also recommended
the Chief Clinical Advisor have responsibility for approving the use of
antipsychotic medications, the Australian Greens would be satisfied with the
Chief Clinical Adviser having oversight and monitoring responsibilities for
restrictive practices and medication management in the first instance. This is
incredibly important; we need to ensure that there is someone responsible for
ensuring that restrictive practices are used only as a last resort and in the
least restrictive way as well as someone advocating and pursuing the
elimination of their use. Medication management is also desperately in need of
oversight.
Not a single point of contact
1.23
The Second Reading Speech for the Commission Bill refers to the
Commission as 'a single point of contact' for older Australians and their
families with regards to concerns and queries about their aged care.[10]
1.24
Unfortunately, the Commission will not actually be a 'single point of
contact' as the Commission will be unable to receive complaints about My Aged
Care or the assessment processes. This seems counterintuitive.
1.25
As Mr Yates, Chief Executive, COTA Australia, said:
There are complaints processes that apply there but, if this
is supposed to be a one-stop shop, the consumer will find it confusing if there
are different places to go to and complain.[11]
1.26
In COTA Australia's submission it says:
Feedback received by COTA from consumers of aged care
services starts with their interactions with My Aged Care and its subsequent
assessment processes Consumers do not always know who employs the workers from
Aged Care Assessment Teams and Regional Assessment Services – in consumers'
minds they are part of the aged care 'system' and assessment is an essential
and determinative component of accessing service delivery. Government
communications to consumers and prospective consumers refer to the processes of
assessment and determination of eligibility as part of the suite and continuum
of aged care services.[12]
1.27
The Government should not be separating the processes of assessment and
determination of eligibility from the service delivery – this is illogical as
they are entwined with one another. The Commission's complaints function should
be broadened to allow older Australians and their families to lodge complaints
about their experiences with My Aged Care and the assessment teams with the
Commission.
Human rights
1.28
Mr Mitchell, Older Persons Legal Services Network, National Association
of Community Legal Centres, made an opening statement to the inquiry outlining
his concerns regarding the Commission Bill's focus on consumer rights, rather
than human rights. He acknowledged that the Department are currently consulting
on a single charter of rights for aged care,[13]
but said:
The national association notes that the bills engage older
Australians from the perspective of consumers and build a guarantee of a
quality base within the frame of consumer rights. The various incidents,
inquiries, reports and reviews that have led us to this point in time have been
very clearly about the human rights of older persons. The national association
respectfully submits that the framing of rights expectations for older persons
within the regulatory framework of aged care should be on the basis of inherent
human rights, acknowledging the interdependence and interconnectedness of those
rights.[14]
1.29
Later in the hearing, he said:
You could, in fact, make clause 18 of the bill clearer—that,
in fact, the complaints functions of the commissioner are about resolving
complaints about rights. At this stage, the form of the bill is that it's
really talking about complaints functions in respect of responsibilities of the
provider. Even it isn't framed in such a way as to be clear that the complaints
functions are about the rights of older persons. Without having any time,
unfortunately, to spend time looking at the words and the text, the absence of
a clear rights base within clause 18 is of some concern. Again, it reduces the
spirit of this bill to an accreditation focus, when it should include a rights
focus as well. We are not saying the accreditation focus is not important—it's
very important—but that's only one side of the coin. The other side of the coin
is the right that older Australians have to have standing and agency to make
their own complaints about the rights that they say have been infringed.[15]
1.30
The Australian Greens believe there should be reference made to the
rights of older Australians in the Commission Bill.
Representatives of older Australians
1.31
As the Older Persons Advocacy Network (OPAN), who are funded by the
Government to deliver the National Aged Care Advocacy Program (NACAP), says in
its submission:
It is important that the role of the NACAP be acknowledged as
important, but independent, element of the overall Aged Care Quality and
Complaints system. As the provider of NACAP OPAN recommends the NACAPs ongoing
interactions with the Commission be formalised.[16]
1.32
OPAN propose having 'representative of aged care consumer' added to the
definitions section of the Commission Bill and giving the Commissioner the
power to determine additional classes of 'authorised officers' who may enter
premises with consent.[17]
1.33
The phrase 'representative of aged care consumers' is used in section 20
of the Commission Bill, but is not defined in the Commission Bill. We
understand that the term 'representative' in regards to care recipients is
defined in Quality of Care Principles 2014 and that the definition is carried
over in the Quality of Care Amendment (Single Quality Framework) Principles
2018, with a change only in technical terminology.
1.34
In relation to access, OPAN say in their submission:
There is a risk that the specification of authorising entry
by the Commissioner to only a Complaint Officer and regulatory officers may
lead to confusions as to the right of access to support individual advocacy and
information to aged care recipients. While strongly supporting the need for
OPAN and NACAP to remain independent of the [Commission], the lack of mention
of NACAP and access to advocates risks disconnecting advocacy from the rest of
the quality, safety and complaints system.[18]
1.35
Mr Westacott, representing a Service Delivery Organisation in the Older
Persons Advocacy Network, said:
...in Seniors Rights Service experience in New South Wales,
over the last two years we've been refused entry to aged-care facilities on 30
occasions.[19]
1.36
When asked why they were refused entry, he said:
'Too busy', 'Not a good time to see us'—they're all very
vague. Or, 'We don't need you.' Sometimes it can be quite blunt: 'We don't need
you here right now.' But the advocate is not allowed into the facility.
Obviously that concerns us, because it means that we have limited capacity to
go back and ensure that we get entry within 24 hours or whatever the time
period might be. We go back and negotiate with the management of that facility,
and it may be three months before we can get entry. It begs the question:
what's happening?[20]
1.37
Mr Mitchell, Older Persons Legal Services Network, National Association
of Community Legal Centres, said:
Our own service here has, on occasion, had our lawyers seek to
visit someone in a residential aged-care facility and has been refused the
ability to enter on the basis that it was not convenient or, in fact, more
recently, that the person lacked capacity to give us instructions, so why would
we want to see them? In those cases, many times the person does, in fact, have
capacity; they are simply having their legal capacity denied for no good
reason. I do think the points that have been made by OPAN and Seniors Rights
Service are important—that independent advocates and advisers can have contact
with their clients and their persons of interest when they need to. If that's
not clear in the bill, it is something that might need to be corrected.[21]
1.38
The Australian Greens want to ensure that advocates and other
representatives are able to enter aged care services and Commonwealth-funded
aged care services as appropriate. To ensure this, it may be appropriate to
include a definition of 'representative of aged care consumer' in the Bill that
aligns with the definition in the Quality of Care Amendment (Single Quality
Framework) Principles 2018 and provide the Commissioner the power to determine
additional classes of 'authorised officers' who may enter aged care services
and Commonwealth-funded aged care services with consent.
Commissioner's functions
Consumer engagement functions
1.39
The consumer engagement functions of the Commissioner should include
reference to representatives of consumers, including informal family and friend
carers as well as more formal representatives in a similar vein to section 20
of the Commission Bill (Education Functions of the Commissioner). As COTA
Australia says in its submission:
... many consumers of aged care services (in particular those
care recipients in residential aged care) require support to be involved in
these functions of the Commissioner, and indeed family and friend carers are a
key and absolutely valid consumer constituency.[22]
Education functions
1.40
The education functions of the Commissioner should include specific
reference to the workforce. The Australian Greens are concerned that the
education functions of the Commissioner, as set out in section 20, refer to
providers, but not the workforce of these providers. At the inquiry, it was
clear that the Australian Aged Care Quality Agency and the Aged Care Complaints
Commissioner both currently provide education to the workforce, in the broader
sense of the term.[23]
We do not want to see this disappear once the Commission is established and
want to see the workforce explicitly referenced in this section.
Making information publicly available
1.41
Section 59 of the Commission Bill should include specific reference to
Commonwealth-funded aged care services. It is important that once all
Commonwealth-funded aged care services come under the remit of the Commission
that the Commissioner is empowered to release information about them
publically, as they will be able to about an aged care service. COTA Australia
says in its submission that we need:
...to ensure Commonwealth Home Support Services, and any other
Commonwealth-funded aged care services, are fully covered.[24]
1.42
At the hearing, the Department confirmed that the Commonwealth Home
Support Program is not included in section 59.[25]
The Australian Greens want to see Commonwealth-funded aged care services
included in this section.
Consent
1.43
Section 66 and 69 of the Commission Bill respectively deal with consent
in relation to the powers of authorised complaints officers and regulatory
officials in relation to premises.
1.44
COTA Australia says in its submission, with regard to section 66 of the
Commission Bill, that they believe:
...the Bill must be amended to ensure that only consumers are
required to give consent to meeting with authorised complaints officers when
they are only onsite to meet with consumers and/or their representatives.
Providers must not be able to prevent access to residents or consumers by
refusing consent for authorised officers to enter the premises. This is
particularly the case in residential aged care settings, where the resident may
not be deemed to be the only "occupier of the premises."[26]
1.45
With regard to section 69 of the Commission Bill, COTA Australia says in
its submission that it:
...holds similar views in respect of the entry of regulatory
officials to premises that are occupied by approved providers or service
providers yet are the home(s) of consumers as residents. We are concerned that
in some cases providers could withhold consent and wish to ensure that this
does not occur where consumers may be at risk.[27]
1.46
As Mr Yates, Chief Executive, COTA Australia, said at the hearing:
The final one is...around the 'consent to enter' issue. Our
belief is that, if a commission officer is trying to enter a provider premises
to investigate a complaint or an issue, they shouldn't be able to be refused
consent—or, if they should, it should be on extremely restricted grounds. The
bill has become a bit convoluted in terms of the issue of consent by consumers.
Yes, a consumer should be able to decline consent, particularly if it's someone
in a home care service in their own home—they might want a support person
there. But, if a consumer wants someone to come into a residential care
facility, the provider shouldn't be able to refuse consent.[28]
1.47
The Australian Greens agree that only consumers should be able to
withhold consent if the premises are their own home, and that only consumers
should be able to withhold consent in residential aged care facilities if the
Commission officer is there to see them.
Review
1.48
The Australian Greens want to see a review provision added to the
Commission Bill. As Dr Brooke, Member, Australian Association of Gerontology,
said:
The review of legislation needs to occur not just with
crisis. We know that the 1997 act came out of a crisis. We know the royal
commission has come out of crisis. We have been speaking as an industry to the
challenges of a contemporary piece of legislation for a long time, and it needs
to be able to be responded to more effectively. The current bill doesn't
actually stipulate that a review of this legislation needs to occur. With the
acuity changing and the expectations of the community and the needs of our
residents and customers changing, we know that the changes are happening more
substantially than ever before. With the changing population and cohort that
we're expecting, we need to be more fluent in our responsiveness.[29]
1.49
The Australian Greens believe a review should be undertaken after three
years of operation of the Commission.
Next bill
1.50
The Australian Greens understand that the process to transfer the
regulatory functions, including the approval of aged care providers, compliance
and compulsory reporting of assaults, from the Department is a more complicated
one and that the Government made the decision to proceed with the Commission
Bill and Consequential Bill and then bring a separate bill to the Parliament in
2019 for the transfer of the regulatory functions.
Sanctions
1.51
While there was discussion with the Department during the hearing that
sanctions will be part of the compliance functions of the Commissioner from
1 January 2020,[30]
the Australian Greens will be expecting reference to sanctions, specifically
under Part 4.4 of the Aged Care Act 1997, in the next bill. We will
continue to ask questions of the Government regarding sanctions to ensure that
they too are transferred to the Commission in due course.
Serious incidents
1.52
One of the recommendations of the Carnell Paterson review was for the
enactment of a Serious Incidence Response Scheme. Senator Siewert asked the
Department about this during the hearing for the inquiry and where they were up
to implementing this.[31]
The Department indicated that they were working on options for Government and
consulting on those options.[32]
The Australian Greens will continue to ask questions regarding this
recommendation and whether it will sit within the Aged Care Act 1997 or
be part of the next bill.
1.53
Concerns were raised by numerous submitters regarding the Commission
Bill's lack of reference to quality improvement. As Mr Gear, Chief Executive
Officer, Older Persons Advocacy Network, said:
Also there is the fact that there isn't in this bill focus on
a continuous quality improvement framework that would allow organisations to
demonstrate a continuous journey to improvement in care rather than just
meeting audit requirements.[33]
1.54
Dr Kidd, Chair, Australian Medical Association Council of General
Practice, said:
In that regard, the serious incident reporting is very
important, but it's a little bit like the horse has bolted. The other thing
that you really want in this space is to actually encourage a culture of
near-miss reporting, where people are actually picking things up before there
is some bad outcome and starting to put policies and behaviours in place that
are going to start avoiding things before they become a problem.[34]
1.55
The Australian Greens want to see a quality improvement framework
adopted – in some form – to ensure that near-misses are being reported and that
work is being done to continuously improve care for older Australians.
Recommendation 1
1.56
The Commission Bill be amended to address the issues outlined
above.
Senator Rachel Siewert
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