4.112 A safe, qualified aged care workforce in sufficient numbers is an essential safeguard against elder abuse in aged care. As the Older Women’s Network pointed out, aged care work is ‘important work, carrying high levels of responsibility, requiring well trained, compassionate care workers and care managers’. United Voice emphasised the important role to be played by the aged care workforce in safeguarding older persons from abuse, arguing that ‘[q]uality support that respects and advances the rights of older Australians to live free from harm and exercise choice and control in their own lives requires a stable, professionally trained, qualified and dedicated workforce’.
4.113 Strategies to address elder abuse in aged care must be integrated with broader aged care policy settings in relation to workforce planning and development. The NSW Nurses and Midwives’ Association, for example, observed that policy relating to
[c]onsumer directed care; increasing use of community based care services and workforce planning within the aged care sector will all impact on the ability of frontline staff and the wider community to ensure adequate protections are in place for the most vulnerable elderly.
4.114 Appropriate planning for a well-supported and qualified aged care workforce is particularly important given projections about the need for expansion of the aged care workforce as the population ages. Some estimates suggest that, by 2050, the number of employees engaged in the provision of aged care will account for 4.9% of all employees in Australia.
4.115 Additionally, implementing the NDIS may have an impact on the aged care workforce, with workers increasingly likely to work across sectors. This was identified as an emerging issue in the 2016 Aged Care Workforce Survey, which noted that, while
at present there appears to have been very little interaction at the workforce level between the aged care and disability sectors … [a]s the NDIS rolls out to full implementation and demand for disability supports increase, we can expect that the two sectors will end up sharing some of one another’s workforces. … Given the large numbers involved in the NDIS full roll out over the next two to three years, this could have substantial impacts on the aged care workforce.
4.116 Stakeholders raised a range of issues relating to staffing in aged care, including: the quality of training of aged care workers; their pay and conditions; and the challenges presented by an expanding need for care workers.
4.117 Many of these issues, while intersecting with the concerns of this Inquiry, extend beyond the issue of elder abuse. As such, they are more suited to being addressed in other reviews of aged care. The Aged Care Legislated Review, referred to above, is required to consider workforce strategies in aged care, and is better positioned to make recommendations relating to these issues.
4.118 The ALRC has made some specific recommendations involving the aged care workforce that it considers will assist in providing safeguards against elder abuse and neglect, in relation to: staffing numbers and models of care; codes of conduct applicable to the aged care workforce; and pre-employment screening.
Staffing numbers and models of care
Recommendation 4–7 The Department of Health (Cth) should commission an independent evaluation of research on optimal staffing models and levels in aged care. The results of this evaluation should be made public and used to assess the adequacy of staffing in residential aged care against legislative standards.
4.119 The ALRC recommends that there be an independent evaluation of best practice research on staffing models and levels in aged care, to inform quality assessment of aged care. Significant concerns have been raised in this Inquiry that current staffing practices in residential aged care involve staffing levels that are so inadequate as to result in neglect of care recipients. An independent evaluation, by a suitably qualified research body with expertise in aged and health care, can provide an evidence-based benchmark for assessing the adequacy of staffing arrangements.
Who works in residential aged care?
4.120 People who provide direct care in the residential aged care workforce are, in the main, nursing staff—registered nurses and enrolled nurses—and assistants-in-nursing (AINs). Registered and enrolled nurses are more highly qualified than AINs and are regulated by codes and guidelines developed by the Nursing and Midwifery Board of Australia pursuant to the Health Practitioner Regulation National Law. The composition of the residential aged care workforce has changed: between 2003 and 2016 the proportion of registered and enrolled nurses has decreased and the proportion of AINs has increased, such that over 70% of direct care workers in residential aged care are AINs.
Adequacy of staffing
4.121 Many submissions to this Inquiry raised significant concerns about the adequacy of staffing in residential aged care. For example, an Australian Nursing and Midwifery Federation (ANMF) survey about aged care reported that 80% of participants who worked in residential aged care considered that staffing levels were insufficient to provide an adequate level of care to residents. Emeritus Professor Rhonda Nay has commented that
[w]e tolerate a level of staffing and staff mix in aged care that would close wards in the acute system. Despite years of discussion and criticism it is still possible to work with extremely vulnerable older people while having no relevant qualification. This should be an outrage.
4.122 The Aged Care Act requires that residential aged care providers ‘maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met’. The Accreditation Standards include an ‘expected outcome’ that there are ‘appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with these standards and the residential care service’s philosophy and objectives’. The draft quality standards include a standard that the ‘organisation has sufficient skilled and qualified workforce to provide safe, respectful and quality care and services’.
4.123 However, there have been consistent calls, repeated in this Inquiry, for a legislated mandated minimum of staff and/or registered nurses in residential aged care. Concerns were raised that an adequate number and mix of staff are not being maintained in residential aged care. The NSW Nurses and Midwives’ Association provided this account from a care recipient’s relative:
On a public holiday there was one qualified nurse for 85 people. The catheter had fallen out [and] the nurse was unable to replace it. The hospital phoned for an ambulance to take dad to hospital. It was 8 hours before an ambulance arrived.
4.124 The Queensland Nurses Union (QNU) reported that
in one negotiation on behalf of an individual member, QNU officials discovered the RN member was accountable for the care of 136 high care residents during her shift, with the assistance of six AINs. This circumstance is repeated in many residential aged care facilities, where a single RN can be accountable for the care of up to 150 residents.
4.125 Stakeholders also cited a number of aged care workers who raised concerns about staffing levels. For example, an AIN said:
Lack of staffing and/or resources can lead to instances of inadvertent abuse of elders. Eg when residents unable to speak up for themselves are left for hours in wet/soiled beds or continence aids because staff are busy attending to other, more vocal residents.
4.126 A registered nurse reported:
Where I work NEGLECT would be without a doubt the main form of Elder Abuse in residential aged care. The cause is time constraints, inadequate training and lack of resources (registered nurses and assistants in nursing) I have seen people who may have difficulty walking soon become wheelchair bound because the nursing and care staff do not have time to walk the resident often enough.
4.127 In the Inquiry, concerns were raised about the number of staff being insufficient to provide adequate care, as well as the qualifications and skill mix of staff being inappropriate to providing appropriate clinical care.
4.128 These concerns have not been limited to this Inquiry—a number of Coronial Inquiries have also observed that staffing numbers were not appropriate in the circumstances of the death under Inquiry. In a coronial investigation into the death of a resident who suffocated when trapped between her mattress and a bed pole, Coroner McTaggart observed:
the industry benchmarks for adequate staffing did not provide for a realistic workload of the staff nor the ability to fulfil all of their tasks. On a wider scale, the evidence suggests that staffing levels are often inadequate across the aged care industry. The evidence also indicated that staff absenteeism was a significant factor in reducing staffing levels to below what was adequate to provide proper resident care. Again, the evidence gives me no reason to believe such an issue is confined to Vaucluse Gardens.
4.129 The authors of the 2016 aged care workforce census and survey note as an emerging issue that ‘facilities within the residential sector are growing by opting for a workforce composition with lower use of direct care staff, which may have future implications regarding quality of provision’.
4.130 The Australian College of Nursing (ACN) was ‘concerned by the trend in the makeup of the aged care workforce, which has seen a reduction in the proportion of regulated health professionals working directly at the bedside’. It argued that
direct care with patients at the bedside provides valuable opportunities where an appropriately trained health professional can assess and identify potential problems and respond accordingly. However, increasingly business models are being deployed where nurses are being utilised only for ‘legislative requirements’, with AINs (however titled) fulfilling most of the traditional care elements. This is problematic, as they have limited and varied degree of training and preparation.
4.131 The ACN argued that
AINs (however titled) work under RN direction and supervision and they do not possess the education, knowledge and skills to substitute for an RN. At a time of increasing aged care service demand, retaining the number of nurses should be a key priority and … regulation of residential aged care facilities should at a minimum mandate a requirement that a registered nurse be on-site and available at all times to promote safety and well-being for residents.
4.132 The ANMF asserted that ‘the ALRC Elder Abuse Inquiry has a duty of care to elderly people to include a specific proposal relating to staffing in aged care, in the final report’.
4.133 The Queensland Nurses’ Union was also concerned by changes to the aged care workforce, arguing that ‘changes to the composition of the aged care workforce and their increasing workloads provide the potential for incidents of elder abuse to occur and to go unreported’. It argued that workforce issues are ‘systemic and must not be attributed to individual staff already working to maximum capacity in a notoriously under-resourced sector’.
4.134 A 2011 systematic review concluded that research on the staffing models for residential aged care that provide the best outcomes for residents and staff is limited, and further research is required. In this Inquiry, the ACN also called for further research to ‘identify the right skill-mix of staff to prevent decreases in quality of care in aged care settings including the neglect of care recipients’.
4.135 One method of measuring adequacy of levels of care provided by staff estimates the hours of direct care received by a resident each day. One estimate suggested that, in 2015, residential aged care residents received 2.86 hours of direct care per day. A 2016 study has argued that the minimum care requirement for care residents should be an average of 4.30 hours per day. This same study argued that the optimal skills mix in residential aged care should be 30% registered nurses, 20% enrolled nurses and 50% assistants-in-nursing.
4.136 Where staffing numbers are insufficient, or the mix of staffing is inappropriate, there is potential for systemic neglect of residential aged care recipients. The ALRC therefore recommends that a clear evidence-based benchmark for ‘adequacy’ of staffing in residential aged care should be developed. The Department of Health should commission an independent evaluation by a properly qualified body of available research to provide this benchmark, which can be used to guide practice in aged care and to inform assessment of the adequacy of staffing against legislative standards.
Code of conduct for aged care workers
Recommendation 4–8 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers.
4.137 The ALRC recommends that, to provide a further safeguard relating to the suitability of people working in aged care, unregistered aged care workers who provide personal care should be subject to state and territory legislation giving effect to the National Code of Conduct for Health Care Workers.
4.138 Some people who work in aged care—such as registered and enrolled nurses—are members of a registered profession. The Health Practitioner Regulation National Law creates a National Registration and Accreditation Scheme (National Scheme) for registered health practitioners—14 professions, including medical practitioners, nurses and midwives, physiotherapists and psychologists. The professions are regulated by a corresponding National Board. The AHPRA supports the National Boards to implement the National Scheme.
4.139 The National Scheme has, as one of its objectives, keeping the public safe by ‘ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’. Measures to ensure public safety include, among other things:
requiring that National Boards develop registration standards for registered professions;
requiring that certain conduct of a health practitioner (including engaging in sexual misconduct and placing the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards) be notified to AHPRA; and
allowing for complaints to be made about a registered health practitioner.
4.140 However, many aged care workers—variously employed as AINs, aged care workers, or personal care workers—are unregistered. The Council of Australian Governments (COAG) Health Council has noted that this may present risks to persons receiving care:
There is no nationally uniform or consistent mechanism for prohibiting or limiting practice when an unregistered health practitioner’s impairment, incompetence or professional misconduct presents a serious risk to the public. There is evidence that practitioners have moved to those jurisdictions that have less regulatory scrutiny, in order to continue their illegal or unethical conduct.
4.141 To address these concerns about unregistered health practitioners, state and territory Ministers have agreed, in principle, to implement a National Code of Conduct for Health Care Workers (National Code of Conduct).
4.143 The National Code of Conduct is to be implemented by state and territory legislation. The National Code of Conduct is a ‘negative licensing’ scheme. It does not restrict entry into health care work, but will set national standards against which disciplinary action can be taken and, if necessary, a prohibition order issued, in circumstances where a health care worker’s continued practice presents a serious risk to public health and safety. Any person would be able to make a complaint about a breach of the National Code of Conduct.
4.144 In its Final Report containing recommendations about the Code, the COAG Health Council defines ‘health care worker’ as a natural person who provides a health service. The COAG Health Council Report also provides a recommended definition of ‘health service’. Relevantly, a health service includes ‘health-related disability, palliative care or aged care service’, as well as support services necessary to implement these. However, the Report noted that it can sometimes be unclear whether a service provided by, for example, an assistant in nursing in aged care, is a ‘health service’. The ALRC considers that all aged care workers who provide direct care services should be covered by the National Code of Conduct and proposes that legislation enacting the Code should ensure that these workers are covered by the definition of ‘health care worker’.
4.145 Some aged care services regulated by the Aged Care Act or the CHSP may provide services that do not involve direct care, such as transport, home maintenance or domestic assistance services. The ALRC does not consider that workers providing these services should be subject to the Code, but should, in appropriate cases, be subject to employment screening processes as set out in Recommendation 4–9.
Registration of aged care workers or a specific code of conduct?
4.146 Some stakeholders criticised the inclusion of aged care workers in the planned National Code of Conduct as inadequate, arguing instead that aged care workers should be either registered or subject to an industry-specific code of conduct. Further, among those who supported the inclusion of aged care workers in the National Code of Conduct, some saw registration as a preferable longer term goal for regulating the aged care workforce.
4.147 Professional nursing organisations in particular urged that AINs be subject to the National Scheme. Future registration of AINs, or development of an industry-specific code of conduct is not precluded by Recommendation 4–8. However, a number of issues need to be addressed in considering the viability of registration of AINs, including a detailed examination of the characteristics of the occupation against the criteria for entry to the National Scheme. These issues were not canvassed in this Inquiry, and extend beyond responses to elder abuse.
Employment screening in aged care
Recommendation 4–9 There should be a national employment screening process for Commonwealth-regulated aged care. The screening process should determine whether a clearance should be granted to a person to work in aged care, based on an assessment of:
(a) a person’s criminal history;
(b) relevant incidents under the recommended serious incident response scheme; and
(c) relevant disciplinary proceedings or complaints.
4.148 An employment screening process would enhance safeguards for older people receiving aged care, by ensuring that people delivering aged care are screened for relevant prior history that may affect their suitability to work with older people.
4.149 The ALRC recommends that people wishing to work or volunteer in Commonwealth-regulated aged care should be required to undergo employment screening by a screening agency.
4.150 The employment screening process in aged care should assess a person’s criminal history, any adverse findings made about the applicant that resulted from the reporting of a serious incident, as well as any findings from disciplinary or complaint action taken by registration or complaint handling bodies.
4.151 The recommendation will enhance the existing employment screening mechanism—broadly, a police check—to allow non-criminal information to be assessed to determine suitability to work in aged care. Having an independent decision maker will provide greater consistency in decision making about a person’s suitability to work in aged care than the current system.
Current pre-employment checks in aged care
4.152 A number of provisions in the Aged Care Act and associated Principles set out suitability requirements for employment in aged care. These include:
Staff of approved providers must be issued with a police certificate. Police certificates are current for three years. Where a person has been convicted of murder or sexual assault, or has been convicted of any other form of assault where the sentence included a term of imprisonment, the person is unable to be employed or to volunteer in aged care.
Where a police certificate discloses something that is not an outright bar to employment, guidance has been developed to assist providers to assess the information. These note that an ‘approved provider’s decision regarding the employment of a person with any recorded convictions must be rigorous, defensible and transparent’.
4.153 Aged care providers are also likely to undertake reference checks. These may operate as an additional safeguard against employing unsuitable applicants.
4.154 Members of some health professions working in aged care are subject to the National Registration and Accreditation Scheme. A registered health professional must meet registration requirements, which include an assessment of criminal history.
Pre-employment checks in other sectors
4.155 All Australian jurisdictions require people who work with children to hold a ‘working with children’ check. Two Australian jurisdictions, the ACT and Tasmania, have moved to broaden their employment screening to people working with other vulnerable groups.
4.156 The NDIS Quality and Safeguarding Framework has signalled that a nationally consistent employment screening process will be developed for workers who have significant contact with people with disability as part of their work. The screening process will take into account:
information such as convictions, including spent and quashed convictions; other police/court information, such as current or pending charges; Apprehended Violence Orders, Child Protection Orders and child protection information; international police checks for those who have worked overseas, when feasible; and workplace misconduct, which comes to light through complaints and serious incident reporting.
4.157 Working with children checks generally capture a broader range of information than that reported in a national police check. Working with children checks may include assessment of convictions, charges, relevant allegations or police investigations and relevant employment proceedings and disciplinary information from professional organisations. In NSW, the working with children check also considers adverse findings made in relation to reportable conduct.
4.158 The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) has recommended that there be a national model for working with children checks, with consistent standards and a centralised database to facilitate cross-border information sharing.
What information should be assessed?
4.159 The ALRC recommends that both criminal history and some forms of non-criminal information be assessed as part of pre-employment screening for aged care. Most submissions responding to this issue supported an employment screening process. The ALRC agrees with stakeholders that, as far as practicable, the process for screening workers in the aged care, disability and child sectors should be compatible. For example, the NSW Ombudsman suggested that there was ‘strong merit in developing a consistent national approach to screening in relation to people seeking to work with vulnerable people more broadly … In the absence of a national screening system for vulnerable people, we are keen to see alignment between the screening systems’.
4.160 Not all supported further screening. ACSA suggested that, while it understood the intent behind such schemes, it was
cautious about introducing another administrative process unless there is clear evidence from an ageing/aged care sector perspective that demonstrates such a check provides additional protection for older people and employers without infringing on the rights of employees.
4.161 Similar limitations in evidence exist for working with children screening processes. Background checking is premised on the concept that prior behaviour can be an indicator of future behaviour, and can serve to inform risk assessment. There is some contention about this—for example, research in the context of child abuse suggests that the majority of perpetrators have not been convicted of child abuse in the past.
4.162 Nonetheless, in a 2015 report evaluating working with children check schemes, the Royal Commission concluded that it shared ‘the view held by the majority of government and non-government stakeholders whom we consulted … they deliver unquestionable benefits to the safeguarding of children’.
4.163 Criminal conduct:A person’s criminal history should be screened before a clearance to work in aged care is granted. The ALRC does not make specific recommendations about the kind of criminal conduct that should be assessed, and when such conduct should be disqualifying or evaluated as part of an overall risk assessment. A discussion of stakeholder views is provided to inform the further detailed policy work that is required on these questions.
4.164 Stakeholders in this Inquiry strongly supported an assessment of a person’s criminal history as part of pre-employment screening. Some considered that the existing list of offences disqualifying a person from working in aged care should be maintained. Many suggested that the relevant criminal history should align with pre-employment checks in other sectors. However, there was also significant support for including fraud offences or offences relating to financial abuse as disqualifying a person from working in aged care. Some considered that drug offences should be disqualifying.
4.165 A number of stakeholders argued that international criminal history should also be assessed for workers who had lived overseas. This was considered particularly important given the large, and increasing, numbers of migrant workers in aged care. The ANMF noted that, given ‘around one-third of unregulated health workers who are employed in direct care work within the aged care sector (both residential and community) were born outside Australia … the criminal history declaration for this group must also encompass national and international convictions’.
4.166 Some submissions argued that having been a respondent to intervention orders should be considered as part of the employment screening process, although evidence of this did not necessarily require an outright bar.
4.167 Stakeholders also warned that an overzealous approach to preventing people from working in aged care as a result of prior criminal history can be unfair. For example, Legal Aid NSW warned that a system that prohibits services from employing people who have been convicted of certain offences, with no discretion or procedure for review, can ‘lead to the unfair and perhaps unintended outcome of prohibiting people who do not pose a risk’.
4.168 Registered health professionals are already required to have an annual criminal record check as part of the conditions of their registration. Consideration might be given to whether registration should provide sufficient screening of criminal history so as not to require an additional criminal history check.
4.169 Non-criminal information:Information about adverse findings arising out of the serious incident response scheme should be considered in the employment screening process, as well as information relating to a person’s professional registration.
4.170 Only screening criminal history has limitations in terms of assessing someone’s suitability to work in aged care. Conduct must meet a very high evidentiary threshold before it will be recorded on a police check. Capturing conduct that meets a lower threshold would allow a more comprehensive risk assessment of a person’s prior history. As the ACT Disability Aged and Carer Advocacy Service noted, ‘Criminal charges are rarely progressed in elder abuse cases, therefore the employment screening process would also need access to the reportable incident register so that past allegations of abuse or neglect can be considered in determining whether a person is fit to work in the sector’.
4.171 Submissions were supportive of including non-criminal information in the pre-employment screening process. A number suggested that any adverse finding from the serious incident scheme should disqualify a person from working in aged care. Others considered that such information should not automatically disqualify a person, but should be assessed as part of an evaluation of a person’s suitability.
4.172 In NSW the pre-employment process for working with children requires prescribed organisations to report findings that a worker has engaged in sexual misconduct committed against, with, or in the presence of a child; or any serious physical assault of a child to the employment screening body. This is a narrower class of conduct than is required to be reported to the Ombudsman under the reportable conduct scheme in relation to children in NSW.
4.173 The NSW Ombudsman has noted that its oversight of the reportable conduct scheme provides ‘confidence in the integrity of the findings of misconduct reported to the screening agency’. It further observed that its oversight role allows it to assess
the quality of the agency investigation and the validity of the related findings. Both of these elements need to be properly addressed so that they can be relied on by the [Office of the Children’s Guardian] for the purposes of informing the … screening process.
4.174 The ALRC considers that similar benefits would accrue from the integration of the serious incident response scheme with pre-employment screening in aged care. Adverse findings should be assessed as part of the screening process. However, it considers that such information should be assessed as part of an overall consideration of risk rather than acting to automatically exclude a person from aged care work.
4.175 Information from professional registration bodies should also be assessed in the pre-employment screening process. For example, information relating to a health practitioner’s registration should be considered (such as previous cancellation of registration, suspension, conditions on registration). The planned National Code of Conduct for Health Care Workers will allow for complaints to be made against unregistered practitioners, and any relevant information relating to such complaints should also form part of the information that is assessed.
How long should clearances last?
4.176 Police certificate information may not be current. Although police clearances are required to be obtained and/or renewed every three years, and providers must take ‘reasonable steps’ to ensure staff notify them of any convictions, there is no capacity for continuous monitoring of national criminal records.
4.177 Most stakeholders in this Inquiry suggested three years would be an appropriate timeframe for clearances. A number of submissions considered that appropriate timeframes for clearances would depend on whether there was capacity for continuous monitoring of criminal history.
Who should screen?
4.178 An appropriate independent organisation should be responsible for employment screening, and for making a determination about whether a person should be granted a clearance to work in aged care.
4.179 Having an independent decision maker will provide greater consistency in decision making about a person’s suitability to work in aged care than the current system, which, where information is available that might suggest risk, but does not disqualify a person from working in aged care, leaves individual providers to make a final decision on suitability.
4.180 Approved providers should still take other steps to establish a person’s suitability, including by conducting reference checks with a person’s previous employers.
Who should be screened?
4.181 The ALRC considers that potential ‘staff members’, as currently defined in the Aged Care Act, should be required to undergo employment screening as a pre-condition to employment, that is, a person ‘who is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruiting agency) to provide care or other services’.
4.182 There should be a process for review and appeals of decisions made about whether a person be excluded from working in aged care that affords procedural fairness for those who are subject to the screening. In the NSW screening process for working with children, for example, this process includes:
notifying a person of a proposal to bar them from working with children and inviting them to submit information which may affect the decision, which is taken into account in the final decision;
informing a person of a decision not to grant a clearance; and
the opportunity to appeal a decision in the NSW Civil and Administrative Tribunal.
Older Women’s Network NSW, Submission 136.
United Voice, Submission 145.
NSW Nurses and Midwives’ Association, Submission 29.
Productivity Commission, above n 31, 354.
Kostas Mavromaras et al, ‘The Aged Care Workforce 2016’ (Department of Health (Cth), March 2017) 165.
See, eg, Seniors Rights Service, Submission 169; Australian Nursing & Midwifery Federation, Submission 163; L Barratt, Submission 155; Australian College of Nursing, Submission 147; Older Women’s Network NSW, Submission 136; Capacity Australia, Submission 134; Advocare Inc (WA), Submission 86; Alzheimer’s Australia, Submission 80; Queensland Nurses’ Union, Submission 47.
Department of Health (Cth), above n 46. The Senate Standing Committee on Community Affairs is also conducting an Inquiry into the future of Australia’s aged care sector workforce, to report on 21 June 2017: Future of Australia’s Aged Care Sector Workforce <www.aph.gov.au>.
Such as, eg, a specialist university research centre.
Direct Care employees provide care directly to care recipients as a core component of their work: Mavromaras et al, above n 159, xiv.
AINs are also referred to as personal care workers or personal care attendants.
Generally, registered nurses are degree qualified, enrolled nurses require a Diploma of Nursing: Australian Health Practitioner Regulation Agency, Approved Programs of Study <www.ahpra.gov.au>. AINs generally have a vocational education qualification such as a certificate III or IV. See, eg, CHC33015—Certificate III in Individual Support <www.training.gov.au>.
See, eg, Health Practitioner Regulation National Law (NSW) No 86a s 39.
In 2003, 21% of the direct care workforce were registered nurses and 13.1% were enrolled nurses; in 2016 this had decreased to 14.6% and 10.2% respectively: Mavromaras et al, above n 159, table 3.2.
From 58.5% in 2003 to 70.3% in 2016: Ibid.
See, eg, Seniors Rights Service, Submission 169; Australian Nursing & Midwifery Federation, Submission 163; L Barratt, Submission 155; Australian College of Nursing, Submission 147; Elder Care Watch, Submission 84; Alzheimer’s Australia, Submission 80; Queensland Nurses’ Union, Submission 47; NSW Nurses and Midwives’ Association, Submission 29; Quality Aged Care Action Group Incorporated, Submission 28.
Australian Nursing & Midwifery Federation, ANMF National Aged Care Survey Final Report (2016) 13. The survey was referred to in Australian Nursing & Midwifery Federation, Submission 163.
Rhonda Nay, ‘The Good, the Bad and the Downright Ugly: Reflections on 10 Years’ (2016) 11(4) Residential Aged Care Communiqué 6.
Aged Care Act 1997 (Cth) s 54-1(b). The Quality Agency, when assessing a residential aged care service, should assess the adequacy of staffing numbers and types: Australian Aged Care Quality Agency, Pocket Guide to the Accreditation Standards (2014) 12.
Quality of Care Principles 2014 (Cth) sch 2 item 1.6. There are a number of other outcomes that relate to the qualifications and sufficiency of staffing: see further Australian Aged Care Quality Agency, Results and Processes Guide (2014) 24–25.
Department of Health (Cth), Single Aged Care Quality Framework: Draft Aged Care Quality Standards Consultation Paper (2017) standard 7.
See, eg, People with Disability Australia, Submission 167; Australian Nursing & Midwifery Federation, Submission 163; L Barratt, Submission 155; Australian College of Nursing, Submission 147; Australian National University Elder Abuse Law Student Research Group, Submission 146; Capacity Australia, Submission 134; Alzheimer’s Australia, Submission 80; Queensland Nurses’ Union, Submission 47. For previous calls for mandated minimum staffing levels, see, eg, Legislative Council General Purpose Standing Committee No 3, Parliament of NSW, Registered Nurses in New South Wales Nursing Homes (27 October 2015) 30–1; NSW Nurses and Midwives’ Association, Let’s Have RNs 24/7 in Aged Care Across Australia! <www.nswnma.asn.au>.
NSW Nurses and Midwives’ Association, Submission 29.
Queensland Nurses’ Union, Submission 245. QNU also argued that the staffing ratios were such that registered nurses are unable to comply with professional codes and guidelines regarding delegation of care.
NSW Nurses and Midwives’ Association, Submission 29.
See, eg, Ambrose, Inquest into the Death of Ambrose, Joan (COR 2009 0711)  VicCorC 120 (1 August 2012); Epsimos, Inquest into the death of Savvas Epsimos (Unreported, NSWCorC, 20 October 2016); Westcott, Inquest into the death of Barbara Westcott (Unreported, TASMC, 1 September 2016); Watson, Inquest into the death of Beryl Joyce Watson (Unreported, NSWCorC, 23 May 2014).
Westcott, Inquest into the death of Barbara Westcott (Unreported, TASMC, 1 September 2016).
Mavromaras et al, above n 159, 165.
Australian College of Nursing, Submission 379.
Australian Nursing and Midwifery Federation, Submission 319.
Queensland Nurses’ Union, Submission 245.
Brent Hodgkinson et al, ‘Effectiveness of Staffing Models in Residential, Subacute, Extended Aged Care Settings on Patient and Staff Outcomes’  (6) Cochrane Database of Systematic Reviews. The review used the term ‘staffing models’ to mean how staffing was organised to meet resident/patient needs and included the mix, and the level of skills, as well as interventions such as staffing ratios, skill mixes, continuity of care and primary nursing: Ibid 3.
Australian College of Nursing, Submission 147. See also United Voice, Submission 145.
E Willis et al, National Aged Care Staffing and Skills Mix Project Report 2016 Meeting Residents’ Care Needs: A Study of the Requirement for Nursing and Personal Care Staff, 2016) (Australian Nursing and Midwifery Federation, 2016) 15.
The National Law is enacted through legislation in each state and territory: Australian Health Practitioner Regulation Agency, Legislation <www.ahpra.gov.au>.
Australian Health Practitioner Regulation Agency, Who We Are <www.ahpra.gov.au>.
Australian Health Practitioner Regulation Agency, Home <www.ahpra.gov.au>.
Health Practitioner Regulation National Law s 38.
Health Practitioner Regulation National Law pt 8 div 2.
Health Practitioner Regulation National Law pt 8 div 3.
Many of these will have obtained a vocational qualification such as a Certificate III in Individual Support: CHC33015—Certificate III in Individual Support <www.training.gov.au>.
COAG Health Council, Final Report: A National Code of Conduct for Health Care Workers (2015) 14.
Ibid 8, 11. NSW and South Australia have previously implemented a Code of Conduct for unregistered health practitioners: Ibid 12. Queensland has implemented the National Code of Conduct, effective from 1 October 2015: Office of the Health Ombudsman (Qld), Unregistered Health Practitioner Notifications <www.oho.qld.gov.au>.
COAG Health Council, above n 199.
Australian College of Nursing, Submission 379; Victorian Multicultural Commission, Submission 364; National Older Persons Legal Services Network, Submission 363; Office of the Public Advocate (Qld), Submission 361; M Berry, Submission 355; CPA Australia, Submission 338; V Fraser and C Wild, Submission 327; Institute of Legal Executives (Vic), Submission 320; Darwin Community Legal Service Aged and Disability Advocacy Service, Submission 316; Public Guardian (NSW), Submission 302; Mecwacare, Submission 289; ADA Australia, Submission 283; The Benevolent Society, Submission 280; Office of the Public Advocate (Vic), Submission 246; Lutheran Church of Australia, Submission 244; Brotherhood of St Laurence, Submission 232; W Millist, Submission 230; Aged and Community Services Association, Submission 217; Advocare, Submission 213.
The Code includes requirements such as: health care workers are: to provide services in a safe and ethical manner; not to financially exploit clients; and not to engage in sexual misconduct: COAG Health Council, above n 199, appendix 1.
Ibid rec 5. The Complaint would be made to the relevant state or territory health complaints entity.
Ibid rec 4.
See, eg, Leading Age Services Australia, Submission 377; Elder Care Watch, Submission 326; Australian Nursing and Midwifery Federation, Submission 319; NSW Nurses and Midwives’ Association, Submission 248; W Bonython and B Arnold, Submission 241; Australian Nursing & Midwifery Federation, Submission 163; National Seniors Australia, Submission 154; United Voice, Submission 145. See also Legislative Council General Purpose Standing Committee No 3, Parliament of NSW, Registered Nurses in New South Wales Nursing Homes (27 October 2015) rec 6: the NSW Government, through the Council of Australian Governments, urge the Commonwealth Government to establish a licensing body for aged care workers.
See, eg, Australian College of Nursing, Submission 379; Elder Care Watch, Submission 326; Office of the Public Advocate (Qld), Submission 361.
See, eg, Australian Nursing and Midwifery Federation, Submission 319; NSW Nurses and Midwives’ Association, Submission 248.
A Code of Conduct for NDIS providers forms part of the NDIS Quality and Safeguarding Framework: Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 93–96.
The COAG Health Council is responsible for agreeing on the inclusion of new professions in the scheme. A health profession must be able to demonstrate that it meets a number of criteria to be considered for registration, including whether: it is appropriate for Health Ministers to exercise responsibility for regulating the occupation; the activities of the occupation pose a significant risk of harm to the health and safety of the public; existing regulatory or other mechanisms fail to address health and safety issues; regulation is possible and practical to implement for the occupation: Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions (2008) attachment B. See further Kim Snowball, ‘Independent Review of the National Registration and Accreditation Scheme for Health Professions’ (Final Report, Australian Health Ministers’ Advisory Council, 2014) 24–27.
That is, regulated by the Aged Care Act or the Commonwealth Home Support Programme.
Key personnel include members of the group of persons who are responsible for the executive decisions of the entity; and any other person with authority or responsibility (or significant influence over) planning, directing or controlling the activities of the entity at that time: Aged Care Act 1997 (Cth)s 8-3A.
Ibid s 10A-1. Penalties may apply where an approved provider has a ‘disqualified person’ in a key personnel role: Ibid s 10A-2.
‘Staff member’ is defined as being a person that is at least 16 years old; and is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruitment agency) to provide care or other services under the control of the approved provider; and has, or is reasonably likely to have, access to care recipients: Accountability Principles 2014 (Cth) s 4.
A police certificate discloses whether a person has been convicted of an offence; has been charged with and found guilty of an offence but discharged without conviction; or is the subject of any criminal charge still pending before a Court: Department of Social Services, Aged Care Quality and Compliance Group—Police Certificate Guidelines (2014) 10.
Accountability Principles 2014 (Cth) s 48.
Department of Social Services, above n 216, 11.
Leading Age Services Australia, Submission 104; Alzheimer’s Australia, Submission 80.
Australian Health Practitioner Registration Agency, Registration Standard: Criminal History (1 July 2015). The standard is made under the Health Practitioner Regulation National Law s 38.
Working with Vulnerable People (Background Checking) Act 2011 (ACT); Child Protection (Working with Children) Act 2012 (NSW); Care and Protection of Children Act 2007 (NT); Working with Children (Risk Management and Screening) Act 2000 (Qld); Children’s Protection Act 1993 (SA); Registration to Work with Vulnerable People Act 2013 (Tas); Working With Children Act 2005 (Vic); Working with Children (Criminal Record Checking) Act 2004 (WA).
Working with Vulnerable People (Background Checking) Act 2011 (ACT); Registration to Work with Vulnerable People Act 2013 (Tas). See also Safeguarding Vulnerable Groups Act 2006 (UK).
Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 62.
Australian Institute of Family Studies, Pre-Employment Screening: Working With Children Checks and Police Checks (2016). The information captured across jurisdictions can vary.
Child Protection (Working with Children) Act 2012 (NSW) s 35; sch 1. The NSW Ombudsman may disclose information to the Office of the Children’s Guardian, including information about reports of investigations into reportable conduct by the Ombudsman or a designated government or non-government agency: Ombudsman Act 1974 (NSW) s 25DA.
Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report (2015) 5.
See, eg, Office of the Public Guardian (Qld), Submission 384; National LGBTI Health Alliance, Submission 373; National Legal Aid, Submission 370; Victorian Multicultural Commission, Submission 364; National Older Persons Legal Services Network, Submission 363; Office of the Public Advocate (Qld), Submission 361; Eastern Community Legal Centre, Submission 357; Legal Aid NSW, Submission 352; Law Council of Australia, Submission 351; NSW Ombudsman, Submission 341; AnglicareSA, Submission 299; Holman Webb Lawyers, Submission 297; Mecwacare, Submission 289; ACT Disability Aged and Carer Advocacy Service (ADACAS), Submission 269; Office of the Public Advocate (Vic), Submission 246; Aged and Community Services Association, Submission 217; UnitingCare Australia, Submission 216; Advocare, Submission 213.
See, eg, Office of the Public Guardian (Qld), Submission 384; Victorian Multicultural Commission, Submission 364; Disabled People’s Organisations Australia, Submission 360; Office of the Public Advocate (Qld), Submission 361; COTA, Submission 354; Law Council of Australia, Submission 351; NSW Ombudsman, Submission 341; AnglicareSA, Submission 299; Mecwacare, Submission 289. Some stakeholders suggested that information from past conduct in all three sectors should be used to screen aged care workers: see, eg Ibid.
NSW Ombudsman, Submission 341.
Aged and Community Services Australia, Submission 102. See also Leading Age Services Australia, Submission 377; Carroll & O’Dea, Submission 335; Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291; Brotherhood of St Laurence, Submission 232.
Royal Commission into Institutional Responses to Child Sexual Abuse, above n 227, 29. See also Clare Tilbury, ‘Working with Children Checks—Time to Step Back?’ (2014) 49(1) Australian Journal of Social Issues 87.
Royal Commission into Institutional Responses to Child Sexual Abuse, above n 227, 4.
Legal Aid NSW, Submission 352.
See, eg, Law Council of Australia, Submission 351; AnglicareSA, Submission 299; Mecwacare, Submission 289; Office of the Public Advocate (Vic), Submission 246.
Law Council of Australia, Submission 351; Lutheran Church of Australia, Submission 244.
Australian Nursing and Midwifery Federation, Submission 319; Name Withheld, Submission 266; NSW Nurses and Midwives’ Association, Submission 248.
Australian Nursing and Midwifery Federation, Submission 319.
See, eg, National LGBTI Health Alliance, Submission 373; Churches of Christ Care, Submission 254.
Legal Aid NSW, Submission 352. See also, eg, Leading Age Services Australia, Submission 377; National LGBTI Health Alliance, Submission 373.
National Disability Services, Improving Safety Screening for Support Workers (2014) 9.
ACT Disability Aged and Carer Advocacy Service (ADACAS), Submission 269.
Office of the Public Advocate (Qld), Submission 361; Law Council of Australia, Submission 351; AnglicareSA, Submission 299; Holman Webb Lawyers, Submission 297; Mecwacare, Submission 289; ADA Australia, Submission 283; Churches of Christ Care, Submission 254.
Legal Aid NSW, Submission 352; Institute of Legal Executives (Vic), Submission 320; Seniors Rights Service, Submission 296; Lutheran Church of Australia, Submission 244.
Child Protection (Working with Children) Act 2012 (NSW) s 35, sch 1. The NSW Ombudsman may disclose information to the Office of the Children’s Guardian, including information about reports of investigations into reportable conduct by the Ombudsman or a designated government or non-government agency: Ombudsman Act 1974 (NSW) s 25DA. The NSW Ombudsman has stated that, in ‘determining whether an investigation into a reportable allegation has been properly conducted, and whether appropriate action has been taken in response, we check to see whether, as required under the Working with Children Act, relevant misconduct findings have been notified to the Office of the Children’s Guardian’: NSW Ombudsman, Strengthening the Oversight of Workplace Child Abuse Allegations. A Special Report to Parliament under Section 31 of the Ombudsman Act 1974 (2016) 9.
Ombudsman Act 1974 (NSW) pt 3A.
NSW Ombudsman, above n 245, 9.
The duration of working with children and vulnerable person checks in Australian jurisdictions varies across jurisdictions. South Australia has a ‘point in time’ check, while a clearance lasts for two years in the Northern Territory, three years in the ACT, Queensland, Tasmania, and Western Australia, and five years in New South Wales and Victoria: Australian Institute of Family Studies, above n 225. Most working with children checks have capacity for continuous monitoring: see Royal Commission into Institutional Responses to Child Sexual Abuse, above n 227.
See, eg, ADA Australia, OPA Vic, Churches of Christ Care. The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that, if criminal history was continuously monitored, working with children checks should remain valid for five years: Royal Commission into Institutional Responses to Child Sexual Abuse, above n 227, rec 31.
Aged Care Act 1997 (Cth) s 63-1AA(9).
Office of the Children’s Guardian, Bars and Appeals (Fact Sheet 12, 2014) 12. See also, eg, Department of Justice and Regulation (Vic), Failing the Check <www.workingwithchildren.vic.gov.au>.