Overall observations
I thank the committee for its detailed consideration of this important Bill. I also thank all the witnesses and submitters for their rich contributions.
I support the objectives of the Bill, noting that each provision is aimed at responding to a recommendation of the Royal Commission into Aged Care Quality and Safety.
In particular, I strongly support the one registered nurse requirement. This will significantly strengthen staffing standards in aged care facilities across the country and contribute to improved safety and quality of care for older Australians. Importantly, having a registered nurse will also be a tremendous and much-needed support to other aged care workers onsite.
I note the commitment by the Australian Government to ensure this new requirement is accompanied by mandated care minutes, as recommended by the Royal Commission.
While I broadly support the Bill, I share the concerns reflected in the submissions and expert testimony provided to the Committee relating to the unlimited power given to the Executive to establish an exemption framework for the one registered nurse requirement in subordinate legislation.
I also note that the subordinate legislation was not available for scrutiny at the time of this inquiry.
This concern was expressed by the Law Council of Australia (the Law Council) among others in their submission to this inquiry:
It is a principle of the rule of law that executive powers to prescribe regulatory frameworks in legislative instruments should be carefully defined by law, such that it is not left to the Executive to determine for itself what powers it has and when and how they are used.
I agree with the Law Council that given much of the Bill allows for the Executive to issue subordinate legislation, the scope of that delegated authority should be carefully confined. In this case, I feel strongly that the scope of this delegated authority should align with the recommendations and spirit of the recommendations of the Royal Commission.
I am pleased to recommend several additional changes, informed by those that contributed to the inquiry process.
Recommendations relating to the one registered nurse requirement
A decision-maker should be identified
At present, subclause 54-IA does not identify a person whom the Minister may, through the Quality of Care Principles, authorise to grant an exemption. Consequently, it is unclear whether the Secretary of the Department of Health and Aged Care (the Secretary) or the Aged Care Quality and Safety Commissioner (the Commissioner), or another department or agency altogether, will be responsible for the granting of exemptions.
I note the following advice of the Law Council within their submission:
Despite section 96-2, it is not clear that the Minister may only validly authorise the Secretary [of the Department of Health and Aged Care] to grant exemption – a court may interpret the absence of an express decision-maker to be intentional.
Without any limitation, it is conceivable a regulatory framework could be established wherein a non-government organisation could be charged with granting exemptions. This would be out of step with Recommendation 86 of the Royal Commission, which states:
Approved providers should be able to apply to the System Governor for an exemption from the quality and safety standard relating to staff skills mix, but not the standard relating to numbers of staff.
Therefore, I recommend amending the Bill to identify a government decision-maker who will be responsible for granting exemptions.
Recommendation
The Bill be amended to identify either the Secretary of the Department of Health and Aged Care or the Aged Care Quality and Safety Commissioner as the decision-maker for granting exemptions.
Limits to be placed on the power to grant exemptions
Several organisations and individuals pointed to the need for exemptions to be time limited and subject to review at regular intervals. Some examples are given below.
…it is critical that providers before engaging the exemption process, exhaust every measure to meet staffing standards, are required to demonstrate they have exhausted all measures, are granted a time-bound exemption…
Council on the Aging (COTA) Australia:
We consider that the legislation should provide than an exemption may only be granted for a specified period of time, which we suggest be three months, with the ability for subsequent extensions.
Australian Nursing and Midwifery Federation:
Any exemption must be time limited, we recommend three months, and there must be limits in the number of consecutive exemptions that can be sought.
Older Persons Advocacy Network:
OPAN would support exemptions in these limited circumstances if they are time limited, and cannot extend beyond 12 months, unless through independent evaluation demonstrates that the alternative to a registered nurse is working effectively in meeting resident needs.
The need for exemptions to be time-limited was central to Recommendation 86 of the Royal Commission, which states:
Any exemption should be granted for a limited time…
There are differing views from submitters and witnesses on the time limit that should be applied to exemptions.
The circumstances that could prompt the need for an exemption could differ widely depending on the location of a facility, the availability of registered nurses in the area and the nature of any workforce shortage.
Some facilities could have structural difficulties in achieving the minimum requirement initially. For example, this could be the case for speciality facilities for Aboriginal and Torres Strait Islander people, and I note the submission by the National Aboriginal Community Controlled Health Organisation, which raised that a culturally appropriate workforce of registered nurses is currently not widely available to service the specialty needs of older Aboriginal and Torres Strait Islander people. In a situation such as this, it’s clear time and a concerted effort by the Australian Government will be needed to train and recruit such a workforce.
On the other hand, some facilities may face only a brief shortage in their workforce in response to illness. In this case, a review of that facility’s circumstances after a month may be the most appropriate option.
In my view, there should be flexibility in the time limits that are imposed on an exemption based on the circumstances, however, on balance, I believe that there should be at least an annual review of those circumstances. Therefore, I recommend that a time limit should be applied to each exemption, with that time limit not exceeding 12 months.
At the same time, there is currently no obligation on a decision-maker to consider the one nurse requirement in granting an exemption. As a result, the Quality of Care Principles could be instituted to authorise a decision-maker to grant an exemption for any reason, without limit; potentially for reasons outside the scope anticipated by the Royal Commission.
As such, it is conceivable that exemptions could be continually granted to exempt facilities from ever needing to meet the one registered nurse requirement.
I note the advice from the Australian Nursing and Midwifery Federation:
A registered nurse must not be substituted by another nursing or care-worker – the RN 24/7 requirement is intended for the entire sector, older Australians in rural and remote areas are therefore entitled to receive care at the same standard as the rest of the community. They should not have to accept a lower standard simply because of where they live.
If a one registered nurse requirement is to become a minimum standard, it should apply equally. While some specific facilities may need assistance in meeting this requirement initially, it should be the ambition that every facility meets the requirement over time.
Where a facility cannot meet the one nurse requirement, it is necessary to consider the safety of older Australians in aged care facilities and the quality of care they will be receiving in the interim.
The one registered nurse requirement is intended to ensure there is ongoing availability of clinical care and high care generally. This is a principle that should not be the subject of an exemption.
Therefore, I also believe the Bill should be amended so that the Quality of Care Principles must only permit exemptions to be granted when to do so would be consistent with the purpose of the one registered nurse requirement – to ensure the ongoing availability of clinical care and high quality of care generally.
Taken together with a mandated time limit, this would ensure there is an obligation on a decision-maker to:
ensure there is alternate care in place that would still support the safety of older Australians in aged care; and
regularly review these arrangements with a view to meeting the standard of a registered nurse being available 24/7.
Recommendation
Clause 54-1A of the Bill should be amended to require:
The decision maker to consider the purpose of the one registered nurse requirement and satisfy themselves that alternative arrangements are available to support the safety and delivery of high-quality care to older Australians in aged care facilities.
Each exemption to be for a limited period not exceeding 12 months.
All exemptions should be made public
Currently, there is no obligation for exemption decisions to be published and made publicly available.
Recommendation 86 of the Royal Commission recommended that any exemption be published on the My Aged Care website.
In the interests of transparency and accountability, not least for the older Australians who may be living in a facility where an exemption applies, there should be a requirement for those decisions—and the reasons for those decisions—to be made publicly available.
I consider that this is an important accountability mechanism and would provide a further check and balance on the use of this power by the Executive.
Recommendation
Clause 54-1A of the Bill should be amended to require either the Department or the Commission to publish the outcomes of a decision made on exemption applications and the reasons for that decision.
A review mechanism for exemption decisions
Currently, if an exemption application is rejected, there is no recourse for an aged care provider to seek a review of that decision, even if they believe there has been an error of fact.
Given the failure to comply with the one registered nurse requirement could result in a sanction, I believe it is fair for there to be a mechanism where a provider could seek a merits review of a decision to reject an application.
Recommendation
Consideration be given to providing a mechanism, which would enable providers to seek a merits review of a decision not to grant an exemption.
Recommendations relating to transparency
Require a minimum set of aged care information to be published
Under the current text of Schedule 3 of the Bill, the Secretary must, in accordance with the Information Principles, make publicly available information in relation to aged care services.
Under s86-10(1), the Information Principles may provide for information to be made publicly available.
Therefore, it appears that under this Bill, the Executive is not obligated to make any aged care information available, if it so chooses.
I note that both Commissioners agreed on a basic set of information that should be made available, including the names and positions of all key personnel and information on staffing levels, qualifications, hours worked, employment status and staff turnover.
I note that Commissioner Briggs considered that additional information be made available, including financial reports and information on complaints.
I consider that this is another area where it would be appropriate to enshrine in the primary legislation at least a basic set of information that must be published by the Secretary in relation to aged care providers.
Recommendation
The Bill be amended to require the Secretary to publish the minimum set of information identified by both Commissioners in the Royal Commission, with a further power to outline additional information in the Information Principles.