4.5 The Commonwealth provides funding for aged care and regulates its provision through granting approvals for providers of aged care and prescribing responsibilities for approved providers. Home care, flexible care and residential care are all regulated under the Aged Care Act 1997 (Cth). Additionally, entry-level home support services for older people are provided through the Commonwealth Home Support Programme (CHSP) in all states and territories except Western Australia.
4.6 A number of Principles made under the Aged Care Act also regulate the provision of aged care. Included among these Principles are Charters of Care Recipients’ Rights and Responsibilities. These include the right to be treated with dignity and to live without exploitation, abuse or neglect. In residential care, they also include the right to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction.
4.7 The majority of older people live at home without accessing Commonwealth-regulated aged care services. However, the proportion of people receiving aged care increases with age. For example, in 2014–15, 8.9% of people aged 70 years and over, and 29.7% of people aged 85 years and over, received permanent residential care.
4.8 More people receive some form of aged care at home than in residential aged care. In 2015–16, 234,931 people received permanent residential care, over 920,000 people accessed entry-level home care, and 88,875 people accessed home care packages provided under the Aged Care Act.
Regulating quality of care
4.9 Ensuring quality of care is perhaps the best safeguard against abuse and neglect. As Professor Simon Biggs submitted, ‘[i]n addition to adequate monitoring and reporting, residential care work should focus on increasing overall care quality as in these contexts mistreatment is much more likely to be a culture of care than a “bad apple” problem’.
4.10 The task of ensuring that approved providers meet their responsibilities in relation to quality of care is shared by the Department of Health (Cth) (the Department), the Australian Aged Care Quality Agency (Quality Agency), and the Aged Care Complaints Commissioner (Complaints Commissioner).
Department of Health (Cth)
4.11 The Department monitors compliance with the Act and with any agreements or contracts with providers. In the event of non-compliance, the Department may take action, including imposing sanctions on the provider. Sanctions include: revoking or suspending the approved provider’s approval as an aged care service provider; restricting such approval; revoking or suspending the allocation of some or all of the places allocated to a provider.
Australian Aged Care Quality Agency
4.12 The Quality Agency accredits residential aged care providers, and assesses existing providers against quality standards. Every residential aged care home receives one unannounced assessment against quality standards each year. The Quality Agency may also perform ‘review audits’ when there are concerns about a home’s performance.
4.13 The Quality Agency also reviews home care providers (provided under both the Act and the CHSP) as well as the National Aboriginal and Torres Strait Islander Flexible Aged Care Program against quality standards.
4.14 Where non-compliance with standards is identified, the Quality Agency will require the provider to address the non-compliance and inform the Department. The Department then makes a decision about whether to impose sanctions for non-compliance. Where the Quality Agency identifies a serious risk to care recipients, the service provider and the Department are notified immediately.
4.15 The Quality Agency also promotes high quality care, innovation in quality management and continuous improvement among approved providers, and provides information, education and training to approved providers.
Aged Care Complaints Commissioner
4.16 The Complaints Commissioner can receive complaints from any source about concerns relating to an aged care service provider’s responsibilities under the Act or a provider’s agreement with the Australian Government. The Complaints Commissioner has the power to direct a service provider to demonstrate that it is meeting its responsibilities under the Act or the agreement. The Commissioner can also refer matters to the Department, the Quality Agency and other relevant agencies.
Systemic concerns relating to quality of care
4.17 The Department stated that the existing regulatory framework in aged care ‘has a strong focus on the quality and accountability of aged care services’, and aged care providers argued that the existing regulatory framework was ‘rigorous’. Nonetheless, a number of stakeholders expressed significant concerns about systemic issues relating to the quality of care in aged care, and the processes for monitoring quality.
4.18 Just before the completion of this Report, the South Australian Chief Psychiatrist led a review of the Oakden Older Persons Mental Health Service—parts of which operated as a Commonwealth-regulated residential aged care facility. The Review found the Oakden facility so deficient in its standard of care as to require closure. The Oakden Report observed that the ‘Oakden facility is more like a mental institution from the middle of the last century than a modern Older Person’s Mental Health Facility’. The Commonwealth-accredited sections of this facility were nevertheless assessed as meeting 44 of the 44 expected outcomes of the Accreditation Standards in March 2016.
4.19 The Oakden Report observed that issues with the quality of care at the Commonwealth-regulated parts of the facility were notorious and long-standing:
The Review heard from many sources, including some through the media, that significant problems were known as far back as 2007 at Oakden when it first failed to meet certain Commonwealth Standards. At that time, [an] … external review … pointed to some of the reasons for these problems. This Review has confirmed that these problems remain and that … they have been present throughout the last 10 years.
4.20 Following the Oakden Report, the Minister for Aged Care, the Hon Ken Wyatt AM, MP, announced an independent review of the Commonwealth’s aged care quality regulatory processes. The independent review is to consider, among other things, what ‘improvements to the Commonwealth aged care regulatory system would increase the likelihood of immediate detection, and swift remediation by providers, of failures of care such as those identified in the Oakden Report’. The ALRC considers that the independent review should have regard to the recommendations in this Report, as well as the systemic concerns about quality assurance processes in aged care that have been raised by stakeholders in this Inquiry.
Aged care reforms
4.21 The aged care system is in a period of reform, the direction of which was broadly set in the 2011 Productivity Commission Report, Caring for Older Australians. The Australian Government responded to this report with the ‘Living Longer Living Better’ reform package. The goal of reform has been described as an aged care system that is ‘more consumer-driven, market-based and less regulated’. There is an increased emphasis on providing aged care in the home, and a shift to a ‘consumer-directed’ model of home care.
4.22 The move to marketisation and individualisation in aged care mirrors international trends in the provision of care for older people. Delivering services in this way is said to have a number of benefits:
First, giving service users (or their agents) purchasing power should empower users by enabling them to exercise consumer sovereignty. Second, this should improve the quality of services and reduce costs to purchasers, by forcing providers to compete for business.
4.23 However, for improved choice, efficiency and quality to be realised, ‘certain conditions must be met: information about the price and quality of competing suppliers must be freely available to consumers; the costs of changing suppliers must be low; and suppliers must operate in a competitive market’.
4.24 This may not be the case in aged care. For example, decisions about choosing aged care are frequently made at a time of crisis, and at short notice, which limit the ability to make informed choices. Additionally, where continuity of care is important, the transaction costs of switching providers may limit an aged care consumer’s ability to choose other, higher quality, service providers. And finally, consolidation of providers to achieve economies of scale may result in a concentrated market and limit competition over quality and price.
4.25 Some stakeholders were concerned by this market-based approach to the provision of aged care. For example, Aged Care Crisis argued that, because aged care recipients are vulnerable, ‘the necessary conditions for an unrestricted market to operate do not exist’. The result is that ‘aged care is a failed market and it has been failing citizens for a long time … The failure to provide basic and empathic care to the vulnerable is a form of elder abuse’.
4.26 Concerns also exist about the move to individualisation through consumer-directed care. Consumer-directed care is ‘both a philosophy and an orientation to service delivery’. It seeks to empower aged care recipients as ‘consumers’ and provide them with control of the types of care and services they receive, and how they are delivered. It also seeks to utilise market forces to promote improvements in quality.
4.27 However, some have argued that there are risks of abuse in this model. For example, the Office of Public Advocate (Vic) submitted that its main concern was ‘how people with cognitive impairment or mental ill-health are assisted to make decisions in these frameworks’. Other submissions raised concerns about the ability of older people to access and understand meaningful information about care choices. The Australian College of Nursing, for example, said that
a significant risk of [consumer directed care] is an older person’s lack of awareness or understanding of the range of services and service alternatives that are available to them. If a care and/or service recipient is not appropriately informed they may select service options that are not in their best interest or of greatest benefit to them.
4.28 The Complaints Commissioner emphasised that information provision in consumer-directed care is an important safeguard for older people:
Good information, including how to raise concerns … helps to correct the power imbalance for the consumer. The provision of information must be done well, and in accordance with the requirements of informed consent in the health sector.
4.29 A legislated review of the reforms made by the Living Longer Living Better package is underway at the time of writing this Report. The ‘Aged Care Legislated Review’ must consider, among other things: demand for aged care places; control of the number and mix of aged care places; further movement towards a consumer directed care model; equity of access; and workforce strategies. It must report by 1 August 2017. This review is the appropriate place to consider the broader policy settings for aged care, including in relation to marketisation and individualisation.
4.30 Further reform is also planned for quality assurance processes in aged care. There are plans to consolidate a range of standards applying to approved providers of residential and home care into a single set of aged care quality standards. Consultation on draft quality standards closed on 21 April 2017. Other reforms aim to improve transparency about quality of care. For example, a voluntary National Aged Care Quality Indicator Program began on 1 January 2016 for residential aged care. Home care quality indicators are being developed, with implementation planned for 2018.
4.31 Concerns were raised in this Inquiry about how quality and safety will be regulated in an environment in which approved home care providers can sub-contract or broker services to provide consumer-directed care to an older person. Where approved providers do sub-contract or broker services, they remain responsible for service quality and meeting all regulatory responsibilities. However, submissions to this Inquiry suggested that an emerging issue will be how best to regulate the quality and safety of home care in the further reforms that have been signalled to ‘streamline’ quality accreditation.
4.32 Improvements to quality assurance processes may prevent or lessen the risk of abuse in aged care. For example, in developing the single set of aged care quality standards, consideration could be given to including standards relating to approved providers’ provision of safeguards against abuse and neglect of care recipients.
4.33 Some stakeholders advocated for increased transparency of quality information. For example, Alzheimer’s Australia submitted that such information would ‘assist consumers in making informed choices in regard to the services they receive … [and] drive service competition and quality improvement’.
4.34 However, National Seniors expressed caution about the ability of quality indicators to address elder abuse, arguing that these may increase risk:
There have already been concerns expressed, for example, that specific quality indicators create perverse incentives which divert resources at the expense of other areas. … Unless quality indicators are able to focus resources towards the things that residents and their representatives themselves believe make them safe and supported, quality monitoring systems … will not actively reduce the risks of abuse in residential care. The same will be true in the home care setting.
4.35 The Aged Care Legislated Review, in its analysis of whether further steps could be taken to move to a consumer-driven demand model of aged care service delivery, provides an opportunity to consider the sufficiency of publicly available information about quality of care. In particular, it might explore possibilities for making available information relating to a provider’s provision of safeguards against abuse and neglect of care recipients.
People aged 65 years and over, or 50 years and over for Aboriginal and Torres Strait Islander people: Department of Health (Cth), Commonwealth Home Support Programme Manual 2017 (2017) ch 5.
Entry level home care services for older people in Western Australia will transition to the CHSP from 1 July 2018: Department of Health (Cth), Commonwealth Home Support Programme <www.agedcare.gov.au>. There are plans to integrate the two home-based aged care programmes—home care regulated under the Aged Care Act, and entry-level care provided under the CHSP—into a single care at home programme: Department of Health (Cth), Home Care Packages—Reform <www.agedcare.health.gov.au>. Recipients of grants to provide services under the CHSP must comply with a range of requirements, including in relation to quality and reporting: Department of Health (Cth), above n 2, 86.
User Rights Principles 2014 (Cth) schs 1–3. Approved providers have a responsibility not to act in a way that is inconsistent with care recipients’ rights and responsibilities: Aged Care Act 1997 (Cth) ss 56-1(m), 56-2(k), 56-3(l).
User Rights Principles 2014 (Cth) sch 1 cl 1(d), sch 2 cl 1(b), (g), sch 3 cl 2(d).
Ibid sch 1 cl 1(g).
Department of Health (Cth), 2014–15 Report on the Operation of the Aged Care Act 1997 (2015) 9.
Department of Health (Cth), 2015–16 Report on the Operation of the Aged Care Act 1997 (2016) xiii. The number of home care packages under the Act will increase to around 100,000 places nationally by 2017–18: Department of Health (Cth), above n 3.
S Biggs, Submission 235.
Department of Social Services (Cth), Aged Care Compliance Policy Statement 2015–2017 (2015) 4.
Aged Care Act 1997 (Cth) s 66-1.
Australian Aged Care Quality Agency Act 2013 (Cth) s 12. See also Australian Aged Care Quality Agency, Annual Report 2014–2015 (2015) 30. The Accreditation Standards are set out in the Quality of Care Principles 2014 (Cth).
Australian Aged Care Quality Agency, above n 13, 32.
A review audit is an assessment of the quality of care provided by a home against all 44 expected outcomes of the Accreditation Standards. They are carried out on-site by an assessment team made up of at least two quality assessors and generally take two to four days: Ibid.
The Home Care Standards are specified in the Quality of Care Principles 2014 (Cth). The National Aboriginal and Torres Strait Islander Flexible Aged Care Program has a separate quality framework, the National Aboriginal and Torres Strait Islander Flexible Aged Care Program Quality Standards.
Department of Social Services (Cth), above n 11, 8.
Department of Health (Cth), Submission 113.
Australian Aged Care Quality Agency Act 2013 (Cth) ss 9, 12(e)–(f).
Including residential, home or flexible care.
Complaints Principles 2015 s 15.
Ibid s 19; Aged Care Complaints Commissioner, Annual Report 2015–16 (2016).
Department of Health (Cth), Submission 113.
UnitingCare Australia, Submission 162; Leading Age Services Australia, Submission 104; Aged and Community Services Australia, Submission 102.
See, eg, Seniors Rights Service, Submission 169; Aged Care Crisis, Submission 165; Australian Nursing & Midwifery Federation, Submission 163; Elder Care Watch, Submission 84; NSW Nurses and Midwives’ Association, Submission 29; Quality Aged Care Action Group Incorporated, Submission 28.
A Groves, D Thomson, D McKellar and N Procter, ‘The Oakden Report’ (Department for Health and Ageing (SA) 2017).
Australian Aged Care Quality Agency, Makk and McLeay Nursing Home RACS ID 6010200 Accreditation Report (2016). A review of the Oakden facility was commissioned in January 2017 by the South Australian Mental Health Minister, in the wake of allegations of mistreatment of a resident. The Quality Agency undertook a full audit of the home in March 2017, and on 17 March 2017, imposed sanctions upon the facility: Compliance Information <www.myagedcare.gov.au/compliance-information>. The CEO of the Quality Agency has said that he is ‘taking action to understand’ how the home was found to be compliant with the Accreditation Standards: Australian Aged Care Quality Agency, ‘Makk and McLeay Nursing Home’ (Media Statement, 28 April 2017).
A Groves, D Thomson, D McKellar and N Procter, ‘The Oakden Report’ (Department for Health and Ageing (SA) 2017) 77.
Ken Wyatt, MP, ‘Federal Aged Care Minister to Commission Review of Aged Care Quality Regulatory Processes’ (Media Release, 1 May 2017). The review is to report by 31 August 2017.
Productivity Commission, Caring for Older Australians (Report No 53, 2011).
Rebecca de Boer and Peter Yeend, Department of Parliamentary Services (Cth), Bills Digest, No 106 of 2012–13 (May 2013).
Department of Health (Cth), above n 3. See also Aged Care Sector Committee, Aged Care Roadmap (2016); Department of Health (Cth), What Has Been Achieved so Far <www.agedcare.health.gov.au>.
Department of Health (Cth), Why Is Aged Care Changing <www.agedcare.health.gov.au>. Additional changes to home care commenced on 27 February 2017. From that date, funding for a home care package follows the consumer: Department of Health (Cth), Increasing Choice in Home Care <www.agedcare.health.gov.au>.
See, eg, Deborah Brennan et al, ‘The Marketisation of Care: Rationales and Consequences in Nordic and Liberal Care Regimes’ (2012) 22(4) Journal of European Social Policy 377, 378; Michael D Fine, ‘Individualising Care. The Transformation of Personal Support in Old Age’ (2013) 33(3) Ageing & Society 421.
Brennan et al, above n 35, 379.
Aged Care Crisis, Submission 165.
Department of Health (Cth), Consumer Directed Care <www.agedcare.health.gov.au>.
ARC Centre of Excellence in Population Ageing Research, Aged Care in Australia: Part II—Industry and Practice (Research Brief 2014/02) 18.
Office of the Public Advocate (Vic), Submission 95.
See, eg, Aged Care Complaints Commissioner, Submission 148; Australian College of Nursing, Submission 147; Queensland Nurses’ Union, Submission 47.
Australian College of Nursing, Submission 147.
Aged Care Complaints Commissioner, Submission 148.
Aged Care (Living Longer Living Better) Act 2013 (Cth) ss 4(1), (4); Department of Health (Cth), Aged Care Legislated Review <www.agedcare.health.gov.au>.
Aged Care (Living Longer Living Better) Act 2013 (Cth) s 4(2).
Department of Health (Cth), above n 46.
Department of Health (Cth), Single Set of Aged Care Quality Standards <www.agedcare.health.gov.au>.
Department of Health (Cth), About the National Aged Care Quality Indicator Program <www.agedcare.health.gov.au>; Department of Health (Cth), Home Care Quality Indicators <www.agedcare.health.gov.au>. The Department has also indicated that it is developing options for making additional quality information publicly available to ‘help consumers make informed choices’ about care: Department of Health (Cth), Improved Information on Quality of Services <www.agedcare.health.gov.au>.
Department of Health (Cth), Home Care Packages Programme Operational Manual: A Guide for Home Care Providers (2015) 38.
Department of Health (Cth), Streamlined Accreditation Arrangements Across Residential and Community Aged Care <www.agedcare.health.gov.au>. Submissions raising this issue included Australian Nursing & Midwifery Federation, Submission 163; Older Women’s Network NSW, Submission 136; NSW Nurses and Midwives’ Association, Submission 29. Further changes that allow funds to be used to purchase care services other than through brokerage by approved providers will require consideration of how quality and safety of such services might be regulated: whether through aged care legislation or through general consumer protection legislation. For a discussion of the applicability of consumer law in aged care, see, eg: Seniors Rights Service, Submission to Australian Consumer Law Review Issues Paper (27 May 2016); R Lewis, Submission 100.
Safeguarding people from abuse is a fundamental standard for care in the UK: The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 cl 13. See also ADA Australia, Submission 150; Townsville Community Legal Service Inc, Submission 141; Queensland Nurses’ Union, Submission 47; Alice’s Garage, Submission 36.
See, eg, Australian Nursing & Midwifery Federation, Submission 163; Townsville Community Legal Service Inc, Submission 141; Capacity Australia, Submission 134; Elder Care Watch, Submission 84; Australian and New Zealand Society for Geriatric Medicine, Submission 51; Queensland Nurses’ Union, Submission 47.
Alzheimer’s Australia, Submission 80.
National Seniors Australia, Submission 154.
Aged Care (Living Longer Living Better) Act 2013 (Cth) s 4(2)(c).