2.1
This chapter examines key issues raised in evidence. It reviews comments about each schedule in turn, and then considers evidence on amendments proposed by Senator Rex Patrick. The chapter concludes by providing the committee's view.
Schedule 1—Residential aged care funding
2.2
Broadly speaking, inquiry participants supported a move from the current Aged Care Funding Instrument (ACFI) to the Australian National Aged Care Classification (AN-ACC), but some specific concerns were raised.
2.3
The Australian Aged Care Collaboration supported the introduction of the AN-ACC, subject to certain additional commitments from government. These related to provisions for stop-loss, release of the 'shadow assessment' data, and independent assessments.
2.4
Carers NSW supported 'the shift away from the [ACFI]', but raised:
…significant concerns that changes to residential aged care funding assessments and models, such as the removal of the respite supplement and removal of minimal requirements or incentives for the provision of respite, may further limit access to residential respite for carers and the people that they care for.
2.5
Some inquiry participants expressed concern that the AN-ACC would not appropriately provide for social and emotional supports, as well as allied health and physiotherapy. Mr Alwyn Blayse of Allied Aged Care referred to physiotherapy and allied health:
I'm seriously concerned about the government's decision not to separately fund physiotherapy and allied health in aged care. I do believe—and many in my industry do—that this will be the death of physiotherapy and allied health, which are absolutely vital and life-and-death for older people.
2.6
Mr Blayse explained the detail of the issue:
The author of the AN-ACC, the model that everybody seems to support coming in, called for allied health to be embedded in it, with separate mandated minutes of 22 minutes per day, which was based on recognised international standards. That recommendation has not come across despite the fact that recommendation 38 from the royal commission accepted the need for more allied health than the eight minutes a day at the moment. So it's really very simple. We need the same level of mandated, separate funding and minimum minutes for allied health and physiotherapy in aged care.
2.7
Ms Katie Snell of Palliative Care Australia told the committee that allied health is 'crucial' in the delivery of palliative care:
…I think our big concern around the AN-ACC would be the delivery of allied health and enough registered nurses in aged care. At the moment, it's not clear how that would be funded under that model. We would stress very clearly that, if we really want to take aged care to the next step and deliver a professional level of care and have things like palliative care delivered, we need an answer on how allied health and nursing will be funded.
2.8
The Older Persons Advocacy Network (OPAN) submitted that it 'supports the AN-ACC system of funding' but is concerned that 'the AN-ACC model deals only with care and supports and does not encompass access to and engagement with social and leisure activities'. COTA Australia 'welcomes the shift to a new classification and funding model', but has 'some concern as to whether the case-mix based model will result in a disproportionate emphasis on clinical treatment and insufficient on social, intellectual and emotional support'.
2.9
A representative of the Department of Health (the department) advised the committee on how allied health, social or leisure activities are covered:
In the act at the moment there are the quality of care principles. There's a schedule—schedule 1, the schedule of specified services. That outlines the type of care that should be provided to residents by a facility. AN-ACC is a funding model; AN-ACC is not a comprehensive assessment of someone's care needs. A facility would undertake that assessment and develop a care management plan. Then the quality of care principles that I just pointed to outline the type of care that a facility would be required to provide. Allied health, social or leisure activities are all covered under that schedule. If someone is assessed as requiring those, then a facility is meant to provide them.
2.10
Some submitters expressed concern that the AN-ACC model would not give appropriate consideration to those who are mobile but have high care needs. For example, HammondCare expressed concern that 'the classification system's primary focus on mobility is based on the assumption that if a person is mobile, they require less care'. It suggested that this:
…could lead to a funding system that favours residents who are physically frail over those whose primary care needs are related to cognitive impairment. A resident with dementia who may be physically mobile or able to self-mobilise with some assistance, may become lost easily or frequently wander into other people's bedrooms or personal space, requiring significantly more care, guidance and time from our care workers.
2.11
A representative of the Department of Health advised that HammondCare had approached the department about the funding model, and the department had sought 'to assure them that we do not believe that there will be a problem for that particular service, given their focus on people with dementia'. Another official provided further explanation, stating that the AN-ACC was:
…developed by the University of Wollongong. Clinical committees provided advice on AN-ACC and the instruments involved in the assessment process. There are seven tools. All those tools are recognised around the world. They all have cognition as part of the assessment process. You spoke about mobility. One of the tools goes to mobility. If someone was assessed as physically mobile but did not have the ability to take instructions, they would be assessed as 'assisted mobility'. So it's taken into account as part of each of the tools—that is my point—rather than there being a separate assessment in itself.
2.12
Some submitters expressed concern that the full detail of the AN-ACC is not yet known. For example, the Australian College of Nursing submitted that it supports the replacement of the ACFI with the AN-ACC, but 'there is significant concern among [Australian College of Nursing] members working in the sector that the fee structure for AN-ACC has not yet been outlined'.
2.13
The Queensland Government submitted that 'it remains to be seen whether the proposed AN-ACC will adequately reflect the complexity of service delivery for high need individuals and in rural and remote areas'. It also said that it:
…has reservations about the ability of the funding committed by the Commonwealth Government to build a sustainable aged care sector or deliver the improvements that were envisaged by the Royal Commission and expected by stakeholders.
2.14
Regarding the proposed use of delegated legislation, a departmental representative referred to the bill as 'coathanger' legislation. He said that this:
…is something that we worked on with the Office of Parliamentary Counsel. I think it mirrors in large respect the design of legislation that was undertaken for the NDIS. The aged-care legislation is quite old legislation, so we think this is a contemporary framing of the way legislation should look.
2.15
More broadly, the department explained that the bill is intended to replace the 'outdated' ACFI with the AN-ACC, and the amendments:
…create a contemporary, efficient, effective and stable funding approach, to promote investment in residential aged care refurbishment and expansion, provide the foundation for reforms like mandatory minimum care requirements and quality rating systems, and support providers to better deliver individualised care for residents.
Schedule 2—Screening of aged care workers, and governing persons, of approved providers
2.16
Noting that schedules 2 and 3 are related (as they both concern the aged care workforce), this section examines evidence regarding the proposed screening arrangements and associated database in schedule 2. These provisions attracted a range of comments from inquiry participants.
2.17
Mr Craig Gear said OPAN is supportive of workforce screening, and that 'we think that it is a good measure for where it will sit and the obligations that are on both the providers and individual workers, and on management'. OPAN acknowledged that:
…the screening will not prevent every form of abuse but it will make it more difficult for someone to commit abuse and will add a layer of accountability. This will mean that a person who abuses cannot just leave one employer and transfer to another. OPAN also acknowledges that the screening will only be as effective as the information that it collects.
2.18
OPAN also argued that 'a process must be included in the legislation for those people who self-manage their home care package and directly employ/subcontract their own workers to be able to access the Database'.
2.19
COTA Australia supported the proposed introduction of screening processes but expressed disappointment that 'currently there is no Government commitment to include a minimum qualification level in aged care, as recommended by the Royal Commission'. COTA also recommended that:
…the national Aged Care (and NDIS) screening and state and territory Working with Vulnerable Persons regulatory processes be aligned. This should be on the agenda of the Meeting of Attorney Generals and a progress report produced by 1 March 2022.
2.20
The Australian Human Rights Commission welcomed 'harmonisation of a centralised screening system and mutual recognition of screening checks across the aged care and disability support sectors'.
2.21
The Australian Aged Care Collaboration supported 'the alignment of NDIS and aged care worker screening arrangements, however 'under current workforce circumstances there is a risk that changes will create further restrictions on the supply of aged care workers'. It expressed support for schedule 2, subject to commitments from government that address cost impacts on workers and screening delays. Mr Paul Sadler, who gave evidence of behalf of the Australian Aged Care Collaboration, also referred to the worker screening provisions and said that '[a]nything that adds another barrier to people coming into aged care, be that a financial barrier or just a regulatory timing barrier, is not going to help us in the short term'.
2.22
The Queensland Government submitted that it 'appreciates the positive intent of the worker screening amendments in the Bill', but was:
…concerned by the lack of detail attached to the proposal to expand worker screening arrangements in the aged care sector, and the fact that only very preliminary consultation has been undertaken to date with States and Territories as the jurisdictions that are proposed to be responsible for administering the screening checks.
2.23
The Queensland Government raised certain 'issues and risks', including that it considers 'the introduction and commencement of the proposed legislation within 12 months of Royal Assent is not practically feasible'. It submitted that the bill will require Queensland to prepare new legislation, but that:
…the detail required for jurisdictions to support implementation of the proposed aged care worker screening requirements is not currently available to jurisdictions, having been deferred to future amendments to the Accountability Principles.
2.24
Further, the Queensland Government stated that it is 'not currently resourced to assume a Commonwealth responsibility to deliver an aged care screening check assessment', and that 'the Bill, and lack of policy development and consultation, does not account for technical requirements of the proposed legislation'.
2.25
The Queensland Government submitted that it 'seeks further genuine engagement with the Commonwealth Government on implementation issues and the proposed timeframes to help ensure that aged care reforms can be rolled out successfully'.
2.26
The Law Council of Australia (the Law Council) made certain recommendations in relation to schedule 2, including that the bill should better define the screening obligations of providers (rather than leaving this detail to delegated legislation) and that the provisions for disclosure of protected information in the database be tightened.
2.27
The Health Services Union recommended that the passage of schedule 2 should be delayed 'until it can be tabled with full detail. Concerns regarding intergovernmental agreement, worker blacklisting, duplication and privacy must be addressed.' Its concerns included that non-approved providers of aged care 'often operating as labour-hire or on-demand platforms, can circumvent their regulatory and safety obligations as they are not approved providers'. The Health Services Union submitted that '[p]articular attention must be paid to ensuring that screening requirements are stringent and extend far enough to capture these operators'.
2.28
A further concern related to the 'broad definitions' relating to the screening processes and database. The Health Services Union referred to 'an emphasis on worker "exclusion"' in these provisions and submitted:
We recognise exclusion as an important mechanism for egregious acts of abuse and neglect. However, the HSU is opposed to exclusion and individual blacklisting as a default. We advocate for a regulatory authority that is empowered to consider individual worker actions and organisational practices and systemic issues.
2.29
Ms Carolyn Smith of the United Workers Union told the committee that:
…we support a screening process, but we would support a positive one that comes with entitlement to training and support. My concern about this legislation is it's not what's going to fix the quality crisis in aged care in Australia.
2.30
Ms Smith suggested that '[p]assing legislation that you don't really know the outcome of is a real concern'. She said of the bill:
In terms of the worker-screening process, it's, again, very light on detail. There's nothing about cost. Aged-care workers are some of the lowest paid workers in Australia. What we see from the recent workforce census is that casualisation has grown significantly in the workforce. It's four times higher, I think. The cost of the registration, the screening process, should not be a barrier. The lack of information about what processes workers are going to have, to challenge any decision or any order, is really worrying.
2.31
A departmental representative explained the rationale for seeking to align the proposed measures with regulations in the NDIS:
One of the reasons why there's a strong alignment between the NDIS and this bill is that we know that our workers work in and make choices between the three different care sectors and also the health sector. Where we can, having the same conditions—and that includes the screening processes and the code process—prevents the issue about people saying, 'I'm going to go and take my services to another service sector because that appeals to me more.'
2.32
Regarding the effect of the bill on the workforce, another official cited several government measures and advised the committee:
We're confident that a lot of the other measures that we've announced within the budget are going to provide workers with the support and the training that they need in order to remain in the sector.
2.33
The department was asked about concerns relating to labour-hire platforms and non-approved providers. An official explained that:
…non-approved providers aren't funded by the Commonwealth. If you're not an approved provider, you won't need to fit with the obligations of the code of conduct, but neither do you receive Commonwealth funding.
2.34
Furthermore, if a residential aged care facility employed a worker through a labour-hire platform, then that facility 'would be accountable to us because they're the funded entity'. A representative explained:
…I understand that the worker, having been engaged by the approved provider—the approved provider would be accountable, and the individual worker would be accountable, too, for the quality of their work. So, if they did something wrong, they would be covered.
Schedule 3—Code of conduct and banning orders
2.35
Inquiry participants presented a variety of views relating to the proposed code of conduct and banning orders.
2.36
Carers NSW supported the introduction of a code of conduct and banning orders 'as this is likely to improve the quality and safety of care'. It advanced that this 'must be able to be integrated with the [NDIS], with banning orders issued under the NDIS implemented within the aged care sector as well'.
2.37
Regarding the aged care and disability sectors, Mr Gear of OPAN told the committee that '[h]armonisation is really important because we are often talking about the same work or the same workforce'. He said that:
…a single code, I think, is appropriate, given the transition of the workforce between those sectors and it goes also to workforce mobility and access to workforce to make sure the workforce is adequate and that there is adequate access to that workforce.
2.38
The Australian Human Rights Commission submitted:
For a Code of Conduct to be effective, it must be linked to the Charter of Aged Care Rights and the Aged Care Quality Standards. Such a code should be consistent with and reinforce the expectations and requirements already outlined in these documents, rather than create potentially different expectations.
2.39
COTA Australia recommended that:
…in the development of the new Aged Care Act and single home care system, the Government consider how the Code of Conduct can be applied to non Approved Provider individuals and organisations who deliver aged care services to enhance consumer choice, control and self-direction.
2.40
The Australian Nursing and Midwifery Federation referred to the potential for 'unnecessary duplication and regulatory burden', submitting that:
…it is not necessary to include health practitioners, who are currently subject to the National Law registration scheme, in the proposed screening and code of conduct as these measures are already met, and exceeded, pursuant to the National Law.
2.41
The Federation of Ethnic Communities' Councils of Australia (FECCA) submitted that a 'combination of precarious conditions means that [culturally and linguistically diverse] aged care workers, particularly those on temporary visas, may have relatively little power in their workplaces'. It submitted that:
…the adherence of these workers to a Code of Conduct may be difficult or impossible where the operating environment created by provider organisation and their governing persons is poor to begin with. Punitive measures such as banning orders and civil penalty orders of $55,000 are exploitative where aged care workers may have little control over their working conditions.
2.42
As elucidated by Ms Mary Patetsos of FECCA, 'a code of conduct that applies to workers really needs to take into account the employer's responsibility within which they are working'. FECCA recommended that schedule 3 (and related schedules) should be:
…amended to adopt an alternative and less punitive approach of a care worker regulation scheme which embeds skills and training standards and ongoing professional development.
2.43
The Health Services Union recommended that the passage of schedule 3 'must be delayed until such time that sector-wide consultations have concluded and the Senate has full details of the Code of Conduct'. It expressed concern that schedule 3 implements 'the bare minimum' of Royal Commission recommendation 77.
2.44
One of the concerns raised by the Health Services Union related to the proposed civil penalties for breaches of the code. It said it 'is difficult to assess the proportionately of 250 civil penalty units ($55,000) against a breach of the Code without having the details of the Code'. Nonetheless, it submitted:
Given the average aged care worker salary is approximately $35,000/year and that these workers are more likely to be young, female, from a culturally or linguistically diverse background and insecurely employed, a penalty of this magnitude is grossly disproportionate.
2.45
On this point, the Health Services Union also termed it 'punitive' for '[b]anning orders and civil penalties [to be] imposed equally upon organisations as they are low paid workers'.
2.46
The Australian Aged Care Collaboration supported schedule 3 subject to certain amendments, including to ensure that:
…there is an explicit requirement to afford procedural fairness, including that a person or entity potentially subject to a banning order must be given access to all the information used by a delegate in making their decision to issue a banning order.
2.47
The department submitted that the proposed regulatory arrangements in schedules 2 and 3 'will prevent unsuitable workers from entering or remaining in the aged care sector and ensure that poor conduct is held to account'.
2.48
A departmental official advised that there will be 'imminent publication of a consultation discussion paper for the code of conduct'. She confirmed 'anyone is able to respond to the discussion paper and the consultation questions'.
2.49
Another official explained measures for procedural fairness in relation to the code of conduct and banning orders:
Breaches of the code of conduct are civil penalties, so any breach of the code of conduct would have to go to a court to determine whether a civil penalty should be applied and the amount of that penalty. The court would take into account things like the surrounding circumstances or the gravity of the breach. In relation to banning orders, the commissioner would have to issue a notice to the individual notifying them that the commissioner is considering imposing a banning order, and the person would have a right to respond to that notice. In the event that the person considers that the banning order shouldn't have been imposed, there's still AAT review available to them.
2.50
It was also clarified that the maximum penalties for breaching the code of conduct differ between individual workers and providers. A departmental representative explained that:
…under the regulatory powers act, penalties for bodies corporate can be five times higher than they are for individuals. The penalty, if you're talking in dollar terms, for individuals is a maximum of $55,000. For a body corporate, it would be a maximum of $277,500. They are equivalent to the penalties in the NDIS, for breaches of the NDIS code of conduct, and they are maximum penalties. As I mentioned earlier, those civil penalties can only be imposed by a court, and the court would take into account all of the surrounding circumstances.
Schedule 4—Extension of incident management and reporting etc.
2.51
A range of inquiry participants welcomed the extension of the Serious Incident Response Scheme (SIRS) to cover home care and flexible care delivered in a home or community setting.
2.52
Palliative Care Australia expressed support for schedule 4, submitting:
This will ensure that those receiving care in both home care and flexible care, are protected against incidents of violence or abuse. People who are palliative and receiving home care can be very vulnerable and deserve full protection from abuse. They need to feel safe in their homes and to be assured those providing their care will not abuse them in any way.
2.53
The Australian Aged Care Collaboration expressed support for the amendments but recommended that the bill be amended to ensure that relevant delegated legislation meets certain requirements. These related to limiting reporting requirements to matters within the scope of the Aged Care Quality and Safety Commission, recognition that providers in a home setting are guests with limited means for managing certain incidents, and applying a 'proportionate reporting approach'.
2.54
COTA Australia supported the extension of the SIRS. It noted that 'the specific requirements relating to the management, assessment and response to incidents will be included in the Quality-of-Care Principles', and called on the government to 'ensure there is an Exposure Draft consultation of the proposed principles, [and] to have finalised Quality of Care Principles available no later than 28 February 2022 (four months prior to their commencement)'.
2.55
The Australian College of Nursing supported the proposal with the caveat that 'any mandatory reporting be proportionate to the level of care a worker provides and contact they have with the older person'.
2.56
The Health Services Union acknowledged 'the need for improving the quality of care, and its regulation, in people's homes', but expressed concern that 'the detail for how the SIRS will operate in home care is to be contained in delegated legislation'. The Health Services Union recommended:
An individual's right to privacy and access to procedural fairness must be protected in any changes to the Rules regarding banning orders and the SIRS. The Government must provide this assurance prior to passage of the Bill.
2.57
The Health Services Union also made several points in relation to the SIRS, including that the 'introduction of new and additional reporting systems must be accompanied by adequate funding and changes to organisational practices'.
2.58
The Health Services Union also commented on how the SIRS should be applied:
It is essential that the legislation allow consideration of whether misconduct or neglect is attributable to an individual worker's behaviour or if the behaviour arose from systemic shortcomings of a provider e.g. not enough staff or training to enable the workforce to deliver safe and quality care. Therefore, the regulatory body must have the ability to view situations holistically with the appropriate investigatory powers. Aged care workers must be afforded access to advocacy and representation rights during any SIRS investigations.
2.59
Finally, the Health Services Union submitted that the SIRS will only place responsibilities on 'approved providers', and argued that these measures should also capture independent contractors.
2.60
The department explained that under the SIRS:
…providers of in-home aged care services will gain additional responsibilities to identify, record, manage and resolve all incidents that occur. The SIRS will support providers to engage in risk management and continuous improvement activities to deliver safe quality care to aged care consumers. The SIRS places a greater focus on how providers investigate and respond to incidents by introducing more detailed responsibilities to manage and take reasonable steps to prevent incidents.
2.61
The department also submitted that it has 'conducted extensive consultation in relation to the SIRS', and that it intends to undertake further consultation in relation to proposed delegated legislation. The department clarified that:
…it is recognised that there are significant contextual differences between residential care and in-home care, and that this will mean that the SIRS will need to differ in some minor ways for in-home care. Based on the outcomes of consultation so far, it is proposed that incident management requirements will be refined to ensure incidents only connected through the location of services delivered but that are outside a provider's control, are not considered a reportable incident (for example, if an incident were to occur between a family member and a neighbour while an aged care worker was delivering services to a consumer).
Schedule 5—Governance of approved providers etc.
2.62
Several inquiry participants offered support for Schedule 5, some of whom nonetheless raised certain issues about it.
2.63
COTA Australia submitted that is it 'very supportive of changes designed to ensure approved providers increase the independence and skills of their board or other governance body'. It also recommended that 'targeted transitional support to meet new governance arrangements be implemented for appropriate Commonwealth Home Support Program (CHSP) providers'.
2.64
FECCA supported the proposed amendments and submitted that they are 'critical for improving care outcomes for older people'. FECCA highlighted that older people of culturally and linguistically diverse backgrounds make up 'approximately a third of people aged 65 and over', and argued that:
…there is a need for balancing strengthening governance arrangements with transitional support for multicultural and ethnospecific providers delivering culturally responsive care. Alongside amendments to reporting and governance requirements, FECCA believes there must be a transitional support plan for ethnospecific and multicultural providers to improve their governance to support these services to stay viable where possible.
2.65
Several submitters commented on exemptions for certain providers from the proposed requirements to ensure that:
a majority of members of the governing body are independent non-executive members; and
at least one member of the governing body has experience in the provision of clinical care.
2.66
Under the bill, a provider would be exempt from these requirements if the governing body has fewer than five members and the provider provides care to fewer than 40 care recipients across its services.
2.67
Aged and Disability Advocacy Australia supported the new requirements but suggested that the exemption 'may be exploited by operators who intend to circumvent the new requirements'.
2.68
The Australian College of Nursing acknowledged that certain requirements 'can be onerous for particularly small, independent providers', but submitted that the 'figure of 40 clients or less appears arbitrary, and should be based instead on residents' acuity and other contextual factors'.
2.69
The Australian Nursing and Midwifery Federation advanced that it is 'essential that any approved provider that offers or provides aged care must have clinical experience and expertise on their governing body'. More generally, the Foundation advanced that 'the base requirement for only one member with "experience in the provision of clinical care" seems insufficient based on the degree to which clinical care and expertise are part of the core business of aged care providers'.
2.70
OPAN submitted that while the exemption:
…may support providers based in areas of low-density populations it would seem to imply that care recipients, in these circumstances, are not worthy of the same level of protections through their governing bodies as those with larger governing bodies or providing services to larger numbers of care recipients.
2.71
Regarding other amendments in schedule 5—those relating to consumer advisory groups—Mr Gear of OPAN told the committee:
We have long been a supporter of the idea of the quality of care body but also the idea of consumer advisory groups. We would have liked to have seen the consumer advisory groups legislated, but we are pleased that there are still measures in there [the bill] that point to those as well. We think that there needs to be regular reporting from those advisory groups and a process that strongly encourages re-engaging with consumers around the wish for an advisory body and that that occurs on a regular occasion.
2.72
The Australian Aged Care Collaboration supported 'stronger governance for aged care providers' but held 'significant concerns' with elements of schedule 5. These included that the bill should be amended to ensure 'board composition requirements reflect principles for good governance and are adaptable for organisations in different circumstances', and that 'requirements for annual statements are in primary legislation (in-line with reporting obligations for companies under the Corporations Act)'. Mr Sadler, Australian Aged Care Collaboration, told the committee:
We need to ensure that any new legislative obligations in the bill promote meaningful improvement to quality of care without being detrimental to the provision of care in areas like remote Australia or for diverse communities.
2.73
The Law Council made recommendations regarding several aspects of schedule 5, including in relation to the membership of governing bodies, staff qualifications, and 'suitability matters' relating to individuals. One matter related to proposed section 63-1H of the Aged Care Act, which:
…places a positive obligation on the duty of directors of an approved provider that is a wholly owned subsidiary to ensure that the Constitution does not authorise a director of the approved provider to act in good faith in the best interests of the holding company.
2.74
The Law Council recommended that consideration be given to removing this provision, suggesting that it:
…puts the aged care providers in a standalone position which is contrary to the principles of Corporations Law and obligations on directors (outside the Aged Care Act) to meet their fiduciary obligations. An aged care provider that is losing money that must act only in the interests of the aged care provider, and not its parent funder, is put into an impossible position of continuing to meet its ongoing ability to operate.
2.75
The Department submitted that the 'strengthened governance arrangements are designed to improve the transparency and accountability of approved providers and change the culture from the top down'.
2.76
The Department explained that exemptions to the governing body membership requirements are to address the fact that 'some approved providers have a governing body that is formed by a sole director, or a small number of members'. In addition, the government amendments agreed by the House of Representatives respond to feedback from COTA Australia that:
…not specifying an additional requirement about the number of care recipients who are provided services by the approved provider may provide an incentive for approved providers to simply reduce the size of their governing body to avoid the requirement, contrary to the intention of the Bill.
2.77
The department confirmed that '[f]urther consultation on amendments to subordinate legislation will occur', and this will include consultation regarding providers' 'responsibilities relating to key personnel, governing bodies and reporting responsibilities'.
2.78
Finally, it is intended that the new governance responsibilities for approved providers will come into effect on 1 March 2022, 'to ensure providers have sufficient time to prepare to meet their new responsibilities'. For existing approved providers, a grace period of one year will apply to certain new responsibilities in recognition that:
…depending on the constitution of the corporation, a full cycle of meetings may need to occur for new members of a governing body to be appointed, and for changes to be made to the constitution.
Schedule 6—Information sharing
2.79
Schedule 6 received support from various inquiry participants.
2.80
The Australian College of Nursing submitted that it 'strongly supports any measures to improve the consistency of quality and safety protections across the aged care, disability and Veterans' Affairs sectors'.
2.81
The Australian Nursing and Midwifery Federation submitted that greater information sharing between sectors:
…is consistent with our position and highlights that the main goal of any amendments and reforms to information sharing within and across sectors must be to improve the sector for staff and consumers.
2.82
Carers NSW acknowledged 'the importance of privacy and confidentiality' but submitted that:
…improved information sharing, where consent to share information between departments or agencies is provided, will enable easier navigation of services by carers who often navigate the aged care and surrounding systems with or on behalf of the person that they care for.
2.83
The department advised that the proposed amendments would enable certain bodies to 'be proactive in their management of risk across sectors, particularly in relation to provider or worker conduct that may put people receiving care, support or treatment at risk of harm'. Regarding privacy considerations, the department submitted that the 'information sharing provisions are designed to be reasonable and proportionate'.
Schedule 7—Use of refundable deposits and accommodation bonds
2.84
Schedule 7 was supported by several submitters. This included the Australian College of Nursing, which expressed support for the proposal and suggested 'extending this monitoring and oversight to aged care delivered in the community'.
2.85
The Australian Nursing and Midwifery Federation presented a qualified position, stating that the proposed changes:
…appear consistent with the ANMF's position and our recommendations to the Royal Commission, however in-depth analysis would be required to ascertain the degree to which they improve the sector for consumers and staff.
2.86
The Australian Nursing and Midwifery Federation also raised several associated issues, including in relation to transparency of government funding for approved providers. It advanced that information about 'how much each provider, and each site they operate, is funded and how they deploy that funding is essential information required to assess the performance of the provider and specific site'. The Federation proposed that certain 'transparency and accountability measures' relating to funding be legislated.
2.87
The Law Council supported schedule 7, and commented that:
…the extension of responsibility to borrowers should be allowed with some caution as they are not persons directly involved in the operation of the aged care service, and may often be an arms-length organisation.
2.88
The Law Council also recommended that consideration be given to extending the provisions relating to compensation from the Commonwealth; specifically:
…whether the compensation provisions envisaged in Schedule 7 should be extended to provide for a statutory cause of action for compensation from an approved provider, not limited by the words 'such reasonable amount of compensation as the court determines'.
2.89
The department explained that the bill is part of the second phase of a three-phase reform process to establish a new 'financial and prudential monitoring, compliance and intervention framework (FPMCI framework) for the aged care sector'. The remainder of the second phase 'will be implemented through subordinate legislation to take effect from 1 July 2022'.
2.90
The department advised that the FPMCI framework will:
…build the sector's financial resilience and improve its accountability and support continuity of care. It will enable the Government to identify at risk providers earlier and help ensure providers meet their obligations to refund deposits to residents. The framework will also increase provider accountability and help ensure providers meet their obligations to refund deposits to residents.
2.91
As part of this framework, schedule 7 of the bill is intended to result in:
…greater oversight of providers' financial viability and refundable accommodation deposits and bonds, streamlined legislative interpretation and greater disincentives for providers against misuse of refundable accommodation deposits and bonds.
Schedule 8—Independent Health and Aged Care Pricing Authority
2.92
The proposed reforms relating to the Independent Health and Aged Care Pricing Authority (the Pricing Authority) attracted some support. For example, OPAN supported the expansion of the Independent Hospital Pricing Authority to cover aged care pricing, observing that '[t]ransparency of pricing and decisions is essential to older people and the general Community and to restoring trust in the aged care system.'
2.93
HammondCare supported the proposed amendments, observing:
As recommended in the Aged Care Royal Commission's Final report, the sector needs to incorporate the expertise and level of detail afforded to our hospitals to ensure the delivery of financial sustainability and quality of care to those within our care.
2.94
The Australian Nursing and Midwifery Federation submitted that the proposed independent pricing authority 'is consistent with our recommendations and underpins a transparent, fair, and fit-for purpose funding instrument (i.e. the ANACC)'. However, it added that:
…the funding needs to be right and accountably used by the provider for care which does not appear to be specified in the Bill. Importantly too, the Independent Health and Aged Care Pricing Authority should ensure that all their work leading to establishing pricing is transparent and publicly available.
2.95
The Australian College of Nursing supported amendments relating to the Pricing Authority but outlined some concerns, including about the potential for confusion in relation to terminology.
2.96
COTA Australia supported the establishment of the Pricing Authority, but highlighted that:
…the publication of certain "independent information" appears to be at the discretion of the Minister, whereas the current Independent Hospital Pricing Authority has a legislated mandate to publish independent advice about Hospital Pricing, with or without the approval of the Minister (Section 4).
2.97
COTA Australia urged the committee to consider whether 'there should be a legislated mandate on the [Pricing] Authority to publish a report each year for both hospitals and aged care'.
2.98
The Australian Aged Care Collaboration supported schedule 8 subject to certain considerations, which included that reports prepared by the Pricing Authority 'must be tabled in Parliament in a timely fashion', and that the Pricing Authority:
…must prepare and publish annually a report on funding and financing issues in the context of maintaining a viable and sustainable aged care sector which is accessible by all assessed as needing aged care irrespective of means and geography, including services in 'thin markets'.
2.99
The Queensland Government submitted that 'the independence of the [Independent Hospital Pricing Authority] is vital and should continue as the body transitions to the Independent Health and Aged Care Pricing Authority'. It raised some concerns about schedule 8, including those discussed below.
2.100
A first concern related to the process for appointments to the Pricing Authority. The Queensland Government observed:
Under current [Independent Hospital Pricing Authority] arrangements, decision-making for appointments is shared between the Commonwealth, States and Territories. Maintaining this approach for the proposed [Pricing Authority] will help ensure a broad representation and diversity of perspectives on its board.
2.101
Noting that the proposed process for appointing the Deputy Chair (Hospital Pricing) 'requires agreement from each State and Territory Health Minister', the Queensland Government submitted that appointment of the Deputy Chair (Aged Care Pricing) should also be subject to state and territory agreement, 'given the significant interface issues between the aged care and hospital systems'. The Queensland Government also noted that members of the Pricing Authority are 'to be appointed by the Commonwealth Minister with only a requirement to "consult" with each State and Territory Health Minister', and proposed that appointment of members should 'require agreement from each state and territory Health Minister', as this would 'help to ensure meaningful engagement of States and Territories and the independence of appointees'.
2.102
With respect to the proposed appointment of the Chief Executive Officer (CEO) by the Commonwealth Minister, the Queensland Government expressed concern that the approach:
…does not appear to be consistent with clause B36 of the National Health Reform Agreement, which provides that the IHPA Board is responsible for appointing the IHPA CEO in consultation with the parties to the Agreement.
2.103
The issue of appointment processes was also raised by:
the Australian Aged Care Collaboration, which submitted that 'the independence of the Authority would be stronger if existing appointment mechanisms to the Board and position of CEO are retained'; and
COTA Australia, which submitted that the proposal to transfer responsibility for appointing the CEO from the board to the minister 'could be perceived as reducing the independence of the Pricing Authority'.
2.104
In respect of the bill overall, the department submitted that the bill responds to recommendations of the Royal Commission and the 'extensive consultation process' conducted by the Royal Commission 'was not duplicated by the Department'. Instead, consultation about the bill 'builds on the work of the Royal Commission' and '[i]n some cases, consultation is continuing, particularly on details to be included in subordinate legislation.'
2.105
Regarding schedule 8 specifically, the Commonwealth Minister 'wrote to all states and territory Health Ministers on 2 September 2021, advising them that the Bill had been introduced and seeking any comments'. Responses were received from Western Australia, Queensland, Victoria, Tasmania and New South Wales'.
2.106
With regard to certain concerns raised by those jurisdictions, the department submitted:
The Bill would require that the Minister consult with all state and territory Health Ministers before making appointments of general board members, and have agreement of all Ministers to the appointment of the Deputy Chair (Hospital Pricing). There is no intent to change the existing processes for pricing of public hospital services and additional resources are being providing to the Pricing Authority to support it undertaking its new role without affecting existing activities. State Health Ministers have also sought assurance that the aged care pricing processes will be supported by broad consultation, noting that some states are also significant providers of aged care services. It is expected that the Pricing Authority will undertake suitably broad consultation with the aged care sector in relation to pricing of aged care and will take into consideration requests from the Commonwealth, the states and territories, and its new legislative responsibilities in developing its work plan.
Schedule 9—Restrictive practices
2.107
COTA Australia welcomed schedule 9 and submitted the government's recent amendments 'followed our initial feedback on the draft Bill'. The AACC also supported schedule 9, observing that it is required to address 'perverse outcomes' arising from earlier legislation.
2.108
The Australian College of Nursing supported 'the introduction of consent by a substitute decision-maker, where an individual is unable to consent themselves', but expressed concern that the giving of consent 'appears to be a one-off process, rather than requiring the substitute decision-maker to regularly review their consent'. It also submitted that consent should be 'both informed and valid', and that the substitute decision maker should 'understand the implications and risks of what they are consenting to'.
2.109
The Aged Rights Advocacy Service suggested it is concerning that the provisions are required and submitted that it 'would expect that any such provision limiting liability would be time limited and that jurisdictions move swiftly to ensure their citizen's rights and freedoms are upheld'.
2.110
OPAN submitted that 'it would be reasonable to assume that a sunset clause is also established so that these exemptions do not continue beyond amendments of State and Territory laws or into the new proposed Aged Care Act'. OPAN further suggested:
It would also be appropriate to include a clause to enable a person to appeal and/or contest a decision by the "restrictive practices substitute decision-maker". For example, where one family member is approached and agrees to the use of restrictive practices and another disagrees with the decision or how the decision maker was determined.
2.111
Aged and Disability Advocacy Australia submitted that it is 'uncomfortable' with the proposal to implement an interim arrangement. It acknowledged that this 'will continue to be a difficult issue for providers to navigate' until state and territory laws are amended, but submitted that the proposed interim arrangement 'suggests what appears to be a broad immunity for the use of restrictive practices'. It stated:
If such an immunity is to be offered, it must be accompanied by an appropriately rigorous and independent oversight function. Further, a reliance on any interim consent arrangement should also legislate a requirement for the process to be supported by adequately qualified clinicians.
2.112
The Law Council raised some concerns about schedule 9, including that the amendments would:
…give rise to outcomes where individuals without power under State and Territory law to authorise restrictive practices will nonetheless be empowered under the Quality Principles to authorise restrictive practices, including chemical and physical restraints. It is unclear what kinds of duties and obligations such individuals will be under in making such authorisations, outside of the broader requirements of the Aged Care Act and Quality of Care Principles.
2.113
The Law Council recommended that schedule 9 'should not be progressed until it, and the proposed amendments to be made to Quality Principles under the proposed subsection 54-10(1A), have been subjected to further detailed consultation amongst stakeholders'.
2.114
Mr Rodney Lewis, who submitted in a personal capacity and is a Senior Solicitor at Elderlaw Legal Services, expressed a range of concerns about schedule 9, stating that 'the measure offering immunity is entirely inappropriate'. His submission was endorsed by other inquiry participants.
2.115
Mr Lewis' concerns included that schedule 9 is 'open ended as to the time required to achieve uniform legislation among the States and Territories', and that 'the apparent interim nature of the measure might actually take years'. He also advanced that while debate on the bill:
…conveys the context as being within the bounds of the Royal Commission's recommendations and the Commonwealth response, there is no such recommendation of the Commissioners which suggests that Providers and their staff should have immunity for some of the things which attracted their most vocal disapprobation.
2.116
A further issue advanced by Mr Lewis is that the bill 'represents an astounding discrimination' because it would result in 'the removal of basic legal rights of those Australians who happen to be confined by restrictive practices in the aged care system'. Mr Lewis suggested the following:
The age care system will be unique as removing fundamental legal and human rights from its own "consumers". Moreover, they will be the only consumers within the Commonwealth who are or will be disentitled from seeking access to justice through the application of the Australian Consumer Law, if this measure is allowed to pass.
2.117
The department explained that the strengthened arrangements relating to the use of restrictive practices, which commenced on 1 July 2021, were in response to recommendation 17 of the Royal Commission as well as other reviews. The department also undertook consultation on those arrangements.
2.118
The department clarified that '[i]t was only after the introduction of the strengthened arrangements on 1 July 2021 that the Government began to fully understand the practical issues with the interactions with State and Territory consent laws'. The department then consulted each jurisdiction and 'key stakeholders' about the issue, and intends to undertake further consultation on the delegated legislation.
2.119
Regarding the proposed interim arrangements, the department advised:
At this stage it is proposed that the Quality of Care Principles will authorise certain persons or bodies to consent to the use of restrictive practices where state and territory laws do not otherwise provide for consent to be provided.
2.120
The department also explained that the proposed immunity would be limited:
The new immunity arrangements will only apply where restrictive practices have been used in a way that is consistent with the requirements under the Quality of Care Principles. For example, the Quality of Care Principles require that restrictive practices must only be used as a last resort, only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient. It is therefore proposed that amendments will also be made to the Quality of Care Principles to ensure that a restrictive practice may only be used in accordance with the consent that has been provided (such as the particular type of restrictive practice, for the time specified).
Amendments proposed by Senator Patrick
2.121
The amendments circulated by Senator Rex Patrick have not been moved in the Senate but are publicly available and attracted some comments from submitters.
2.122
Palliative Care Australia supported the proposal to require residential aged care providers to ensure at least one registered nurse is on duty at all times, noting that 'there may be some rare exceptions to this based on strict criteria such as geography'. Aged and Disability Advocacy Australia also supported the proposal, stating that it considers having at least one registered nurse available 24 hours per day to be 'a minimum care standard'.
2.123
The Australian Nursing and Midwifery Federation 'strongly' recommended that the government implement a 'phased introduction of 24/7 [registered nurses] in nursing homes as a matter of urgency'.
2.124
OPAN expressed support for the 24 hour proposal while submitting that 'we acknowledge that the Royal Commission into Aged Care Quality and Safety recommended one registered nurse be on staff for both morning and afternoon shifts (16 hours per day)'.
2.125
The Aged Rights Advocacy Service was supportive of the proposal as a minimum requirement but expressed concern about:
…the ability for this measure to be able to be actioned due to the significant shortage of aged care workforce and the competition between the acute health sector, disability and aged care sector to attract the appropriate skilled workforce.
2.126
The department's written and oral submissions did not comment on these amendments.
Committee view
2.127
As recognised throughout this inquiry, the bill is part of the government's response to the Royal Commission. That Royal Commission highlighted serious problems with the aged care system, and all inquiry participants supported action to improve the sector.
2.128
Extensive consultation was undertaken with regard to the Royal Commission and will be ongoing. This legislation is the framework to provide better quality of care and services to our senior Australians.
2.129
The bill would progress a range of important reforms, such as:
replacing the out-dated ACFI model of funding with the AN-ACC;
improving regulation of the aged care workforce through worker screening and a code of conduct that applies to both workers and providers;
extending the coverage of the existing Serious Incident Response Scheme; and
enacting measures to improve the governance of providers and financial oversight.
2.130
The intent of the bill was broadly supported by inquiry participants, as were many specific provisions. However, the committee recognises that concerns were raised about certain provisions. Some of these concerns related to matters that are to be included in delegated legislation and, as such, may not have been finalised. The committee accepts departmental assurances, outlined above, about proposed consultation on these changes.
2.131
The committee had the benefit of an opportunity to put submitters' concerns directly to the department at a public hearing. The committee highlights the department's responses on these matters, reviewed in detail above. To take one example, the department confirmed that the maximum penalties for breaches of the proposed code of conduct would differ between individual workers and providers.
2.132
Regarding the amendments proposed by Senator Patrick, the committee does not consider that there is adequate evidence about the feasibility of the proposal, nor how it would relate to other reforms and the broader aged care system.
2.133
The committee considers that the bill is an important reform that will implement recommendations of the Royal Commission. Given that some recommendations are time limited, the committee accepts departmental evidence that timely passage of the bill is important.
2.134
The committee thanks all inquiry participants for their contribution to this inquiry and their genuinely positive intentions to improve the aged care sector for all Australians.
2.135
The committee recommends that the Senate pass the bill.
Senator Wendy Askew
Chair