The aged care workforce

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’.^[155] 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’.^[156]

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.^[157]

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.^[158]

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.^[159]

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.^[160]

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.^[161]

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

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,^[162] 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^[163] in the residential aged care workforce are, in the main, nursing staff—registered nurses and enrolled nurses—and assistants-in-nursing (AINs).^[164] Registered and enrolled nurses are more highly qualified than AINs^[165] and are regulated by codes and guidelines developed by the Nursing and Midwifery Board of Australia pursuant to the Health Practitioner Regulation National Law.^[166] The composition of the residential aged care workforce has changed: between 2003 and 2016 the proportion of registered and enrolled nurses has decreased^[167] and the proportion of AINs has increased, such that over 70% of direct care workers in residential aged care are AINs.^[168]

Adequacy of staffing

4.121  Many submissions to this Inquiry raised significant concerns about the adequacy of staffing in residential aged care.^[169] 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.^[170] 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.^[171]

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’.^[172] 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’.^[173] 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’.^[174]

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.^[175] 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.^[176]

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.^[177]

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.^[178]

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.^[179]

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.^[180] 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.^[181]

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’.^[182]

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.^[183]

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.^[184]

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’.^[185]

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’.^[186]

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.^[187] 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’.^[188]

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.^[189] A 2016 study has argued that the minimum care requirement for care residents should be an average of 4.30 hours per day.^[190] 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.^[191]

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

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.^[192] The professions are regulated by a corresponding National Board. The AHPRA supports the National Boards to implement the National Scheme.^[193]

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’.^[194] Measures to ensure public safety include, among other things:

• requiring that National Boards develop registration standards for registered professions;^[195]

• 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;^[196] and

• allowing for complaints to be made about a registered health practitioner.^[197]

4.140  However, many aged care workers—variously employed as AINs, aged care workers, or personal care workers—are unregistered.^[198] 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.^[199]

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).^[200]

4.142  The ALRC recommends that aged care workers providing direct care should be included in the planned National Code of Conduct.^[201] A number of stakeholders supported this recommendation.^[202]

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.^[203] Any person would be able to make a complaint about a breach of the National Code of Conduct.^[204]

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.^[205] 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’.^[206] 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.^[207] 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.^[208]

4.147  Professional nursing organisations in particular urged that AINs be subject to the National Scheme.^[209] Future registration of AINs, or development of an industry-specific code of conduct^[210] 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.^[211] These issues were not canvassed in this Inquiry, and extend beyond responses to elder abuse.

Employment screening in aged care

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^[212] 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:

• Any person who is ‘key personnel’^[213] of an approved provider must not have been convicted of an indictable offence, be insolvent, or be of ‘unsound mind’.^[214]

• Staff^[215] of approved providers must be issued with a police certificate.^[216] 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.^[217]

• 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.^[218] These note that an ‘approved provider’s decision regarding the employment of a person with any recorded convictions must be rigorous, defensible and transparent’.^[219]

4.153  Aged care providers are also likely to undertake reference checks.^[220] 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.^[221]

Pre-employment checks in other sectors

4.155  All Australian jurisdictions require people who work with children to hold a ‘working with children’ check.^[222] Two Australian jurisdictions, the ACT and Tasmania, have moved to broaden their employment screening to people working with other vulnerable groups.^[223]

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.^[224]

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.^[225] In NSW, the working with children check also considers adverse findings made in relation to reportable conduct.^[226]

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.^[227]

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.^[228] 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.^[229] 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’.^[230]

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.^[231]

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.^[232]

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’.^[233]

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.^[234] 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.^[235] Some considered that drug offences should be disqualifying.^[236]

4.165  A number of stakeholders argued that international criminal history should also be assessed for workers who had lived overseas.^[237] 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’.^[238]

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.^[239]

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’.^[240]

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.^[241] 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’.^[242]

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.^[243] 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.^[244]

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.^[245] 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.^[246]

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.^[247]

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.^[248]

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.^[249]

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’.^[250]

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.^[251]