Proposal 11–6 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers.
11.215 The ALRC proposes 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.
11.216 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 Australian Health Practitioner Regulation Agency (AHPRA) supports the National Boards to implement the National Scheme.
11.217 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.
11.218 However, many aged care workers—variously employed as assistants in nursing, 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 will move to those jurisdictions that have less regulatory scrutiny, in order to continue their illegal or unethical conduct.
11.219 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). Some stakeholders argued that a specific licensing body or registration scheme should be established for aged care workers. However, given that there is agreement in relation to enacting a National Code of Conduct, the ALRC proposes instead that aged care workers providing direct care should be included in the planned National Code of Conduct.
11.220 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.
11.221 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’.
11.222 Some Australian Government-funded aged care services 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 required to be subject to employment screening processes as set out in Proposals 11-4 and 11-5.
Other staffing issues
11.223 Stakeholders raised a range of other issues relating to staffing in aged care, including: the adequacy of numbers and mix of staff; appropriate qualifications for performing aged care work; the quality of training of aged care workers; pay and conditions; and the challenges presented by an expanding need for care workers. The Aged Care Legislated Review is required to consider workforce strategies in aged care, and is better positioned to make recommendations relating to these issues.
11.224 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 also emphasised the important role to be played by the aged care workforce in safeguarding older persons form 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’.
11.225 As stakeholders argued, strategies to address elder abuse in aged care must be integrated with broader aged care policy settings. The NSW Nurses and Midwives Association, for example, observed that
There will be increasing reliance on registered nurses, enrolled nurses and assistants in nursing to meet the needs of the ageing population. This means that strategies to reduce the incidence of elder abuse must be aligned with wider government reform within the aged care sector as a whole. Consumer 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.
11.226 Appropriate planning for a well-supported and qualified aged care workforce is particularly important given projections about the 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.
11.227 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 Australian College of Nursing 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’.
11.228 A number of submissions to the Inquiry raised significant concerns about the adequacy of staffing in residential aged care. For example, an Australian Nursing and Midwifery Federation 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
We 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.
11.229 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’. 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.
11.230 They also cited a number of aged care workers who raised concerns about staffing levels. For example, an assistant in nursing said that
Lack of staffing and /or resources can lead to instances of inadvertent abuse of elders. E.g. 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.
11.231 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.
11.232 Another concern raised by submissions related to the qualifications of workers who may provide home-based aged care. The Queensland Nurses Union noted, for example, that people with complex health needs are increasingly receiving aged care in the home, and argued that such care should be ‘provided or supervised and evaluated by a registered nurse’.
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>.
See, eg, 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.
COAG Health Council, above n 219.
The Code includes requirements such as: health care workers are to provide services in a safe and ethical manner; are not to financially exploit clients; engage in sexual misconduct: Ibid appendix 1.
Ibid rec 5. The Complaint would be made to the relevant state or territory health complaints entity.
Ibid rec 4.
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 38. 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 28 April 2017: Future of Australia’s Aged Care Sector Workforce <www.aph.gov.au>. See also Debra King et al, ‘The Aged Care Workforce, 2012—Final Report’ (Department of Health and Ageing, 2013).
Older Women’s Network NSW, Submission 136.
United Voice, Submission 145.
NSW Nurses and Midwives’ Association, Submission 29.
Productivity Commission, above n 23, 354.
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.
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.
See, eg, People with Disability Australia, Submission 167; Australian Nursing & Midwifery Federation, Submission 163; L Barratt, Submission 155; Australian College of Nursing, Submission 147; Capacity Australia, Submission 134; Alzheimer’s Australia, Submission 80; Queensland Nurses’ Union, Submission 47; Australian National University Elder Abuse Law Student Research Group, Submission 146. 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 47.