Purpose of the bill
1.1
The Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 was introduced into the House of Representatives on 27 May 2021.
1.2
The bill seeks to make amendments to the Aged Care Act 1997 (Aged Care Act) and the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety Commission Act) to implement three measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety (Royal Commission) and, in the case of restrictive practices, in response to the Independent review of legislation provisions governing the use of restraint in residential aged care.
1.3
The purpose of the bill is to:
further strengthen legislation on the use of restrictive practices in aged care;
empower the Secretary of the Department of Health to conduct assurance reviews to ensure the arrangements for the delivery and administration of home care are effective; and
remove the requirement for having an Aged Care Financing Authority committee.
Key provisions of the bill
Amendments relating to restrictive practices
1.4
Schedule 1 of the bill is to amend the Aged Care Act and the Quality and Safety Commission Act to further strengthen legislation on the use of restrictive practices (previously referred to as restraint) in relation to recipients of aged care of a kind specified in the Quality of Care Principles 2014 (Quality of Care Principles).
1.5
The amendments to the Aged Care Act introduce the term ‘restrictive practice’, and align its definition with the definition of restrictive practices applied under the National Disability Insurance Scheme (NDIS).
1.6
The amendments to the Aged Care Act set out the requirements that the Quality of Care Principles must provide for relating to the use of restrictive practices. The Quality of Care Principles will outline the limited circumstances in which a restrictive practice can be used in relation to a care recipient. The amendments clarify the current requirements in primary legislation, and enable delegated legislation to provide the detail of such requirements.
1.7
The amendments to the Quality and Safety Commission Act expands the ability of the Aged Care Quality and Safety Commissioner (Commissioner) to respond to breaches of approved providers’ responsibilities in relation to restrictive practices. This enables the Commissioner to issue a written notice to approved providers not complying with their responsibilities, and also to apply for a civil penalty if an approved provider does not comply with the written notice.
Amendments relating to home care assurance reviews
1.8
Schedule 2 of the bill amends the Aged Care Act to allow the Secretary of the Department of Health (Secretary) to conduct reviews to assure the arrangements for the delivery and administration of home care are effective and efficient. This enables the Secretary, or appropriate delegate, to issue notices to approved providers that are corporations to collect information in relation to an assurance review. Failure to comply with these notices or provide reasonable assistance will incur civil penalties.
Amendments relating to the Aged Care Financing Authority (ACFA)
1.9
Schedule 3 of the bill removes the requirement for the Aged Care Financing Authority (ACFA) committee. Once this requirement is removed, ACFA will be abolished and a new advisory body will be established to provide advice to Government on aged care financing issues. A separate instrument will repeal the Committee Principles 2014, which set out ACFA’s functions and governance arrangements.
Commencement
1.10
Should the bill be passed, the changes will commence on the day the Act receives Royal Assent. Schedule 1 and 3 are due to commence on 1 July 2021 and Schedule 2 on the day after the Act receives assent.
Financial implications
1.11
The financial impact of the changes introduced by this bill is $20.2 million over five years from 2020–21.
Legislative scrutiny
1.12
The Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights had not reported on their consideration of the bill at the time this report was prepared.
1.13
The Statement of Compatibility with Human Rights (statement of compatibility) in the Explanatory memorandum notes that the bill engages with a number of human rights, including the right to not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; the right to liberty and security of a person; the right to an adequate standard of living; the right to protection from exploitation, violence and abuse; the right to health; and the right to privacy.
1.14
The statement of compatibility explains that the bill is consistent with human rights as 'it advances protections for older Australians and strengthens the protection of care recipients by implementing measures to ensure greater protections from exploitation, violence, abuse and cruel, inhuman or degrading treatment'.
1.15
Further, the bill ensures the inclusion of civil penalties is consistent with human rights criminal process guarantees.
Conduct of the inquiry
1.16
Pursuant to a resolution of the Senate agreed to on 13 May 2021, the provisions of the bill have been referred to the committee on 27 May 2021 for inquiry and report by 11 June 2021.
1.17
Details of the inquiry were placed on the committee's website. The committee wrote to relevant organisations inviting submissions to the inquiry by 4 June 2021. Submissions continued to be accepted after this date.
1.18
The committee received six submissions. The committee thanks all of those who contributed to the inquiry. Submitters are listed at Appendix 1.
Rationale for change
1.19
The Final Report of the Royal Commission made 148 wide-ranging recommendations and was tabled in Parliament on 1 March 2021.
1.20
The Government provided its comprehensive response to the final report on 11 May 2021. The Government agreed with the commissioners that 'strong action is needed for fundamental and ambitious reforms'.
1.21
The 2021–22 Federal Budget provides a comprehensive response to the Royal Commission’s final report. The proposed $17.7 billion aged care reform package is designed to deliver sustainable quality and safety in home and residential aged care services.
1.22
As outlined by the Minister for Health and Aged Care (Minister), the Hon Greg Hunt MP, the Government is committed to generational reform of the aged care system to ensure senior Australians receive the high-quality and safe aged care services they deserve.
1.23
Specifically, this bill delivers the first stage of aged care reforms developed in response to the Royal Commission. The bill responds to recommendation 17, as well as supporting recommendations 118 and 27 of the Final Report.
Restrictive practices
1.24
In his second reading speech, the Minister explained that the Government had 'heard the calls to strengthen restrictive practice regulation, tighten requirements for the use of restrictive practices by aged-care providers' and stated that:
The bill clarifies the requirements approved providers must meet in relation to the use of restrictive practices.
1.25
Specifically, the amendments to the Aged Care Act will provide that the Quality of Care Principles set out matters in relation to restrictive practices and it is intended that approved providers will only be able to consider use of restrictive practices:
as a last resort to prevent harm after alternative best practice strategies have been explored, applied and documented, except in an emergency;
after considering the likely impact of the use of the practice on the care recipient;
to the extent necessary and proportionate to the risk of harm to the aged care recipient or other persons;
where the restrictive practice is the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons;
if informed consent to the use of the practice is given;
in accordance with the Charter of Rights and the Aged Care Quality Standards; and
if care recipients are monitored whilst the restrictive practice is in use and the use and effectiveness documented.
Issues raised by submitters
1.26
Inquiry participants were broadly supportive of the proposed legislative and policy changes in relation to the use of restrictive practices. For example, COTA Australia stated:
Establishing a new definition of ‘restrictive practice’, replacing the wording ‘chemical and physical restraint’, is a welcome change as it provides for a broader range of harmful actions and circumstances and aligns with the definition applied in the National Disability Insurance Scheme.
1.27
Similarly, Leading Aged Services Australia (LASA), a national association for providers of aged care services, expressed its support for the alignment of restrictive practices in residential aged care with the NDIS requirements.
1.28
However, LASA and other submitters warned that funding for staff training and additional resources would be needed to implement these changes.
1.29
Other issues raised by submitters included matters relating to the appointment of substitute decision makers for restrictive practices and the use of restrictive practices in emergency situations.
Home Care Assurance Reviews
1.30
The amendments to the Aged Care Act to allow the Secretary to conduct assurance reviews are aimed at providing transparency for consumers and increased program oversight for the Government.
1.31
In his second reading speech, the Minister explained how it will contribute to the continuous improvement of home care policy:
This builds on our existing work to improve transparency of the aged-care sector and fosters community confidence in the costs of the care they receive.
Issues raised by submitters
1.32
COTA Australia expressed support for greater oversight of home care providers through home care assurance reviews:
It is pleasing that the assurance reviews will provide greater transparency for consumers through the capacity of the Secretary to prepare and publish reports on assurance reviews including any recommendations and conclusions.
1.33
Similarly, the Health Services Union (HSU) expressed their support for the assurance reviews. However, the HSU is of the view that the bill 'does not go far enough to achieve these objectives in practice' and recommended that assurance reviews be carried out on a regular basis and be published.
1.34
LASA acknowledged that quality assurance reviews are important to support the effective and efficient administration of home care services. However, LASA expressed concerns that 'it should not take priority over the delivery of home care services' and recommended that:
… provision be made in the draft legislation for providers to have a right for response to an issued notice, in negotiating a reasonable timeframe for the provision of information.
Aged Care Financing Authority
1.35
The Government agreed to establish an advisory group to replace ACFA which will commence operations from July 2021 to ensure the government continues to receive advice on financing issues of the aged care sector. As mentioned earlier in the report, the new advisory body will be established to provide advice to Government on aged care financing issues. As such the bill repeals the requirement for the minister to establish the ACFA committee.
Issues raised by submitters
1.36
COTA Australia noted that since its establishment ACFA 'has published well respected and widely well received annual reports providing important longitudinal data about the aged care system'.
1.37
COTA Australia and LASA recommended that the Government ensures that independent annual reports continue to be delivered within the new arrangements starting from July 2021.
Committee view
1.38
The Government established the Royal Commission into Aged Care Quality and Safety to ensure that the oldest and most vulnerable Australians receive care that supports and respects their dignity, and recognises the contribution they have made to society. The Government welcomed the final report of the Royal Commission and has founded its response on the principles of respect, care and dignity.
1.39
The Government is committed to deliver a $17.7 billion package of support and a once in a generation reform to aged care. Overall, the reform to aged care will empower senior Australians to have more control and choice over the care services they need.
1.40
The bill provides the first stage of aged care reform in response to the Royal Commission and introduces a number of urgent amendments to ensure senior Australians receive the high-quality and safe aged-care services they deserve. It is a very significant first step to setting the foundations for key structural and governance change across the aged care system.
1.41
The committee recommends that the bill be passed.
Senator Wendy Askew
Chair