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Chapter 5: The Need for User Rights
3.1 Contributors to the inquiry emphasised the need for effective user rights (residents rights) protections to be in place in the reform package. The Australian Pensioners' and Superannuants' Federation (APSF) stated that the current user rights protections `are extremely important and have helped facilitate a positive change in the culture of many nursing homes'. [1]
3.2 The Australian Council of Social Service (ACOSS) argued that strong and effective mechanisms to protect the rights of users is essential particularly in the area of aged care where consumers `are likely to be more vulnerable to exploitation, abuse or benign neglect...This will require even stronger measures than in the past given the shift towards a more market-driven model of service provision'. [2]
Current arrangements
3.3 The current arrangements for user rights protections comprise a Charter of Residents Rights, resident agreements, a complaints mechanism, advocacy services and outcome standards and associated monitoring system. [3] These arrangements are outlined below.
Protection of rights
3.4 The current arrangements include a Charter of Residents Rights which covers amongst other things the right of residents to quality care, to be treated with dignity and respect, to live in a safe and secure environment, to continue cultural and religious practices, to have access to information about their rights and to have access to advocates and other avenues of redress. [4]
3.5 In addition, nursing home residents may sign an agreement which sets out the rights and responsibilities of the resident and the provider. Matters covered include security of tenure, arrangements for fees and charges and services provided. The rights of nursing home residents are also protected by section 40AA(bc)(ii) of the National Health Act 1953 where a resident is unable, or chooses not, to sign an agreement. As applied, this requires the nursing home to extend to the resident all the protections in the standard agreement. [5]
Standards
3.6 The existing arrangements provide for assessment of compliance by providers against defined outcome standards for nursing homes and hostels. [6]
Complaints mechanism
3.7 Complaints about nursing homes and hostel care are investigated by the Department of Health and Family Services (DHFS) and dealt with in the context of compliance with standards. Independent, community-based advocacy services are also available to deal with complaints. There is, however, no independent external complaints mechanism to address residents complaints. [7]
Advocacy program
3.8 The Advocacy Program provides funding to independent agencies which use trained advocates to represent residents and focus on the needs, preferences and rights of the person.
Community Visitors Scheme
3.9 The Community Visitors Scheme provides socially isolated residents with regular contact with trained visitors. The Scheme is managed by independent agencies funded by the Department.
Proposed arrangements
3.10 Under the proposed arrangements all the elements of the existing user rights strategy have been retained. DHFS stated that, in combination, the Aged Care Bill, the User Rights Principles in the subordinate legislation, and the draft standards provide the `same protections for residents as are provided in the existing arrangements'. [8] DHFS also noted that some elements of the user rights strategy will be `strengthened', such as the complaints resolution arrangements (that is, the establishment of an external complaints mechanism and the requirement for providers to have a complaints resolution process in place). [9] These proposed arrangements are outlined below.
Charter of Residents Rights
3.11 Under the new provisions, the Charter of Residents Rights is set out in the User Rights Principles to guide the provision of care and service for residents. The Charter is reproduced, without the existing Preamble, and with one additional `right', taken from the existing Preamble, which is `to full and effective use of his or her personal, civil, legal and consumer rights'. [10]
Resident agreements
3.12 The Aged Care Bill requires approved providers to offer a resident agreement to all care recipients (Division 56-1 (g)). The Bill (Division 59-1) further specifies requirements for resident agreements to include:
- level of care and services to be provided;
- policies and practices relating to fees;
- circumstances in which the resident can be asked to leave;
- extent of assistance to be provided in obtaining alternative accommodation;
- the complaints resolution mechanism; and
- the care recipient's responsibilities.
3.13 The Bill also provides for an accommodation bond agreement which must be agreed if a bond is to be paid (Division 57-2). This must cover, inter alia, the amount of the bond, date of entry, how the bond will be paid and the conditions relating to periodic payment if applicable, when the bond is payable and the amount of any retention amount. This agreement may be part of the resident agreement. Residents are able to use an advocate of their choice or have family members involved in discussions about agreements if they wish. [11]
Standards
3.14 The existing outcome standards for nursing homes and hostels will be replaced by new residential care standards and accreditation standards. The accreditation standards will cover four categories health and personal care, resident lifestyle, the physical environment, management systems and staffing and organisational development. The residential care standards will be the first three categories which cover issues addressed in the current outcome standards. The fourth category will establish new standards which will relate to management practices. [12]
Complaints mechanisms
3.15 As noted above, currently complaints about nursing home and hostel care are investigated by DHFS and dealt with in the context of compliance with standards.
3.16 The proposed arrangements have provision for a tiered approach to the handling of complaints through:
- the requirement that approved service providers must have in place a complaints resolution mechanism to address complaints made by or on behalf of a resident and must also advise residents of other complaints mechanisms that are available;
- provision for the Department to investigate and assist in the resolution of any complaint; and
- provision for the complainant to be informed about the outcome of a complaint. [13]
3.17 In addition, the accreditation standards will provide for assessment of how well a service provider embraces the concept of encouraging and acting on resident feedback and concerns.
3.18 In addition, an independent external complaints process will be established. DHFS advised the Committee that a working group (which is a sub-group of the Quality Assurance Working Group) which includes industry and consumer representatives is currently developing a model for such a complaints mechanism. [14] It is expected that the sub-group will put a package of reforms to the Quality Assurance Working Group in late May. After this Group has considered the draft proposals, a final draft package will go the Minister. [15]
Advocacy program
3.19 DHFS advised the Committee that there are no changes to the arrangements for advocacy services under the reforms. [16] Access by residents to advocacy services are provided for in the Aged Care Bill under Division 56-1(k). Access to other advocates is provided for in the Bill under Division 56-1(j).
Community Visitors Scheme
3.20 DHFS advised that under the new arrangements the Community Visitors Scheme will continue as at present. [17] Access by residents to visitors is provided for in the Bill under Division 56-1(k).
Issues
3.21 A number of issues were raised in evidence to the Committee in relation to user rights and these are discussed below.
User Rights Principles
3.22 In a number of submissions, including those of Aged Care Australia (ACA), Community Services Australia (CSA) and the APSF, it was argued that the User Rights Principles should be embodied in the principal legislation rather than in the subordinate legislation. [18] APSF in arguing that the User Rights Principles be included in the principal legislation, noted that `this would be an important and transparent demonstration of the Government's commitment to supporting residents rights and would foster public confidence in aged care'. [19] The Committee supports the proposal that the User Rights Principles be incorporated in the principal Act.
External complaints mechanism
3.23 Evidence to the Committee, including evidence from advocacy and pensioner groups, argued that there is a need for an external independent complaints mechanism to be established. [20]
3.24 The Australian Law Reform Commission (ALRC), in a review of Commonwealth aged care legislation published in 1995, argued that older people or their representatives `should be able to complain to a body outside the service if the complaint has not been resolved or dealt with effectively by the service's internal mechanism or if they do not feel comfortable approaching the service with a complaint'. [21] The Human Rights and Equal Opportunity Commission (HREOC) argued that internal complaints mechanisms `are not likely to be suitable for all complaints and are unlikely to assure older people of fair resolution in matters over which there is dispute'. [22]
3.25 Several groups, including Residential Care Rights and the Combined Pensioners and Superannuants Association of NSW (CPSA) argued that the external complaints body should have the powers to investigate complaints, enforce a range of sanctions and have a negotiation, conciliation and arbitration role. [23]
3.26 The ALRC stated that the complaints body should have the power to obtain information and documents and question parties to a dispute; seek advice from and refer matters to relevant bodies; and make recommendations to DHFS, to service providers and to the complainant that certain action be taken. The Commission also argued that the body needed to handle complaints quickly, informally and in a non-legalistic way; be affordable for users; encourage older people and service providers to resolve disputes between themselves in the first instance; and have an emphasis on, and be staffed by people skilled in, investigation, mediation and dispute resolution policy and procedures. [24]
3.27 Residential Care Rights noted that in terms of its powers `it needs to be able to investigate, negotiate and conciliate, but also to make binding decisions when matters have not been resolved. Over the past few years we have been involved in some very difficult situations that have not been able to be resolved through investigation, negotiation and conciliation...That is a very difficult situation for service providers, consumers and everyone else involved'. [25]
3.28 APSF noted that an external complaints mechanism is important as many residents and their families feel hesitant in complaining to their facility management fearing reprisals. The ability to lodge grievances anonymously is an important safeguard in protecting residents rights. [26] Residential Care Rights noted that older people living in nursing homes `are one of the most disempowered groups...One of the greatest fears of residents and their relatives is the fear of speaking up about their concerns, needs and complaints. There is a high level of fear of reprisal'. [27]
3.29 As noted above, a working group is currently developing a model for an external complaints mechanism. Full details of the model are not available, but DHFS advised the Committee that the new arrangements will focus on resolving disputes as they arise. Where systemic issues are identified, they will be referred to the Aged Care Standards Agency for consideration in the context of compliance with the accreditation criteria. Where a complaint indicates a serious health or safety issue, it will be referred to the Department for appropriate action. [28]
3.30 Residential Care Rights stated that an effective complaints mechanism needed to have a number of features including visibility, accessibility, transparency, a high profile in the aged care industry, provide a strong voice for consumers within the aged care system, recruit qualified staff with specialist skills in investigation, conciliation and arbitration and have sufficient independence to avoid the possibility of perceived or actual conflicts of interest. [29]
3.31 Several advocacy groups and the ALRC argued that the independent complaints unit should not be located within DHFS. [30] Residential Care Rights noted that the complaints unit within DHFS has failed to meet the needs of consumers `it has a very narrow focus and, because of constraints like the secrecy provision, people have not been able to get a personal and timely response in relation to the matter'. [31]
3.32 Residential Care Rights also expressed concerns about the possible siting of the complaints unit in the proposed Aged Care Standards Agency. The organisation noted that as the primary focus of the Agency is on quality assurance and accreditation of facilities `if a complaints mechanism is placed within this agency, conflicts of interest will inevitably arise in regard to effective handling of complaints. The lack of consumer confidence in [the Agency's] ability to remain independent, and serve both industry and consumers, would also mitigate against effective outcomes'. [32]
3.33 Residential Care Rights further noted that:
What we want to see as advocates, is a mechanism that is independent of all the stakeholders, including the Department. We would like to see it set up as an incorporated body and we would like to see the structure and functions of that taking into account the benchmarks that are still in draft stage but that had been done by the federal Bureau of Consumer Affairs as benchmarks for all industries in terms of setting up mechanisms. Those are under consideration in the current working group. [33]
Need for a residents' rights agency?
3.34 A number of advocacy groups and others argued that a specific agency needed to be established to deal with the complaints process and other broader issues of concern to the aged. [34]
3.35 As noted above, Residential Care Rights proposed the establishment of a statutory body to be known as the Aged Care Consumer Agency with a Commissioner for Aged Care responsible for its functions. This Agency would, in addition to dealing with complaints, have responsibility for ensuring the User Rights Principles are upheld, and for the functions of funding independent advocacy services and the Community Visitors Program. [35]
3.36 Residential Care Rights argued that the establishment of the Consumer Agency, headed by an independent commissioner would `ensure a real capacity to articulate issues arising from advocacy and complaints. This could, in turn, reflect the strengths and weaknesses of the accreditation process, providing for a system of checks and balances. It will enable consumers to act in an empowered relationship with service providers'. [36] The Council on the Ageing (COTA) also proposed the establishment of a specific residents' rights agency to, inter alia, oversee the complaints mechanism, quality assurance system and the dissemination of information to consumers. [37]
3.37 The Committee strongly supports the establishment of an independent complaints body, although it does not favour one kind of external body over another. However, the Committee believes that the body established should be independent of all stakeholders, including DHFS and should be given the powers to deal with disputes quickly and effectively.
Advocacy services
3.38 Advocacy services provide confidential information, advice and referral services to residents of nursing homes and hostels. The services, which are funded by the Commonwealth Government, act as advocates and promote awareness of residents' rights through information and education strategies. Evidence suggested that advocacy services are a crucial component in the user rights program by assisting individuals who cannot or do not have a representative to speak for themselves. [38] HREOC stated that:
Complaints processes are most effective where advocates and advisers are involved with residents and service providers. Advocates assist to overcome the barriers that exist where people affected seek to address issues surrounding treatment by those on whom they are either financially, emotionally or physically dependent. Advocates are uniquely placed to assist individuals to raise their concerns [and] run their complaints. [39]
3.39 HREOC argued that the Commonwealth should recognise to a greater extent than at present the important role of advocates in the internal and external complaints handling process, and support this role by adequate funding. [40] The ALRC also suggested that the Commonwealth Government should consider more funding to existing advocacy services because of the crucial role they play in helping older people in protecting their rights. The ALRC argued that the level of resourcing should be adequate to provide for any new responsibilities expected of services and to ensure services can manage their existing workloads. [41]
3.40 The Committee recognises the important role advocacy services play as a means of ensuring that older people, often in a vulnerable position, have a better chance of ensuring that their rights are not infringed. The Committee believes that this advice should be independent and objective. Family and friends, while often an important source of advice, often lack the necessary expertise or detachment from the particular situation to effectively represent the interests of residents. The Committee believes that the role of advocates needs to be properly recognised and that advocacy services should be funded at a level sufficient to ensure that they can fulfil their important role in protecting residents' rights.
Residential care agreements
3.41 As noted above, the Aged Care Bill requires approved providers to offer a resident agreement to all care recipients. The ALRC, in its 1995 review of the aged care legislation, recommended `a scheme in which the new legislation sets out implied legislative terms covering the same types of matters that are now dealt with by written agreements. These implied terms would be terms of the contract which already exists between the service provider and the consumer (whether written or oral)'. [42]
3.42 The Commission argued that this a better option than imposing statutory obligations directly on service providers because it gives consumers individual rights which they can, in theory at least, enforce in the courts. Where a service breaches implied terms, consumers and their representatives would also be able to take complaints to DHFS or to the independent complaints body. Any breach of the implied terms would also be a breach of provider obligations and subject to sanctions under the Bill. [43]
3.43 HREOC and Residential Care Rights also recommended that implied contractual terms be incorporated in all residential care agreements. [44] Residential Care Rights argued that the implied terms should cover the areas listed in the current nursing home agreement. These core standard protection terms cover such items as the grounds on which the agreement can be terminated, temporary leave provisions, resident's bed location, the right to complain, access to financial information and information on fee increases. [45]
3.44 In addition, HREOC argued that standard form agreements that outline the implied terms and a model agreement that incorporates fundamental rights should be developed. The Commission argued that these measures would safeguard the rights of older people, especially during the often difficult negotiation period. The Commission also argued that entitlements to basic human rights, such as the right to be treated with dignity and respect, the right to adequate medical treatment, non-discrimination between concessional residents and other residents and non-discrimination on the grounds of race, gender or disability should be included. [46]
3.45 The Committee believes that, to enhance the rights of older people, the implied contractual terms should be incorporated in all residential care agreements and that standard form agreements that outline the implied terms and a model agreement that incorporates fundamental rights should be developed.
Conclusion
3.46 The Committee believes that an effective user rights system needs to be in place to protect the rights of residents in aged care facilities. Considerable progress has been made in this area in recent years and it is of critical importance that the proposed arrangements continues this progress. Given the emphasis in the reforms towards a more market-driven model of service provision this will require stronger measures to protect residents' rights than in the past. The Committee considers, therefore, that user rights protections would be enhanced by the incorporation of the User Rights Principles in the principal Act. The Committee also believes that the user rights protections need to be underwritten by access to an independent complaints mechanism and that implied contractual terms should be incorporated in all residential care agreements.
Recommendation 12: The Committee recommends that the User Rights Principles be embodied in the principal legislation.
Recommendation 13: The Committee recommends that:
- an independent complaints mechanism be established as a matter of priority to deal with complaints made by older people or their representatives about aged care facilities;
- in formulating the model for such a mechanism, the Quality Assurance Working Group take into account the comments made by organisations and groups referred to in this chapter to enhance the functioning of the complaints mechanism; and
- the complaints mechanism be independent of all stakeholders, including the Department of Health and Family Services.
Recommendation 14: The Committee recommends that the independent complaints body be given the powers necessary to deal with disputes expeditiously and effectively.
Recommendation 15: The Committee recommends that the role of advocates and advocacy services be encouraged and expanded and that advocacy services be supported by guarantees of recurrent funding sufficient for the services to fulfil their role and responsibilities.
Recommendation 16: The Committee recommends that implied contractual terms be incorporated in all residential care agreements; and that these implied terms relate to national standards of care and that any breach be legally enforceable.
Recommendation 17: The Committee recommends the development of standard form agreements that outline the implied terms and a model agreement that incorporates fundamental rights.
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Footnotes
[1] Submission No.58, p.23 (APSF).
[2] Submission No.80, p.10 (ACOSS).
[3] Submission No.94, pp.51-52 (DHFS); Submission No.58, p.23 (APSF).
[4] Submission No.94, p.51 (DHFS).
[5] Submission No.94, p.51 (DHFS).
[6] Submission No.94, p.51 (DHFS). See also Chapter 4.
[7] Advice from DHFS, 21.5.97.
[8] Submission No.94 (DHFS), Appendix 2, p.1.
[9] Submission No.94, pp.28, 53 (DHFS).
[10] Submission No.94 (DHFS), Appendix 2, p.1.
[11] Submission No.94, pp.52-3 (DHFS). See also Appendix 2 to the Submission.
[12] Submission No.94, p.53 (DHFS).
[13] Submission No.94 (DHFS), Appendix 2, p.3.
[14] Submission No.94, p.53 (DHFS).
[15] Additional Information, Residential Care Rights, 12 May 1997, p.4.
[16] Submission No.94, pp.52-3 (DHFS); and Appendix 2.
[17] Submission No.94, pp.52-53 (DHFS); and Appendix 2.
[18] Submission No.60, p.17 (ACA); Submission No.66, p.16 (CSA); Submission No.58, p.24 (APSF).
[19] Submission No.58, p.24 (APSF).
[20] Submission No.105, p.22 (HREOC); Submission No.51, p.12 (Residential Care Rights).
[21] ALRC, The Coming of Age: New Aged Care Legislation for the Commonwealth, Report No. 72, 1995, p.208.
[22] Submission No.105, p.22 (HREOC).
[23] Submission No.51, p.12 (Residential Care Rights); Submission No.50, pp.15-16 (CPSA of NSW)
[24] ALRC, op.cit., p.209.
[25] Transcript of Evidence, p.223 (Residential Care Rights).
[26] Submission No.58, p.25 (APSF).
[27] Submission No.51, p.13 (Residential Care Rights). See also Submission No.75, p.14 (TARS).
[28] DHFS, Additional Information, 22 May 1997, p.2.
[29] Submission No.51, pp.13-14 (Residential Care Rights).
[30] Submission No.51, p.14 (Residential Care Rights); Submission No.75, p.14 (TARS); ALRC, op.cit., p.208.
[31] Transcript of Evidence, p.222 (Residential Care Rights).
[32] Submission No.51, p.22 (Residential Care Rights).
[33] Transcript of Evidence, p.223 (Residential Care Rights).
[34] Submission No.51, pp.21-24 (Residential Care Rights); Submission No.65, p.8 (COTA).
[35] Submission No.51, pp.21-24 (Residential Care Rights).
[36] Submission No.51, pp.21-22 (Residential Care Rights).
[37] Submission No.65, p.8 (COTA).
[38] Submission No.65, p.8 (COTA); ALRC, op.cit., pp.171-72.
[39] Submission No.105, p.22 (HREOC).
[40] Submission No.105, p.22 (HREOC).
[41] ALRC, op.cit., p.172.
[42] ibid., p.169.
[43] ibid.
[44] Submission No.105, pp.22-23 (HREOC); Submission No.51, p.11 (Residential Care Rights).
[45] Submission No.51, p.11 (Residential Care Rights).
[46] Submission No.105, p.23 (HREOC). See also Submission No.51, p.11 (Residential Care Rights). See also Submission No.48, p.7 (Aged Rights Advocacy Service).