Proposal 11–10 The Aged Care Act 1997 (Cth) should provide for an ‘official visitors’ scheme for residential aged care. Official visitors’ functions should be to inquire into and report on:
(a) whether the rights of care recipients are being upheld;
(b) the adequacy of information provided to care recipients about their rights, including the availability of advocacy services and complaints mechanisms; and
(c) concerns relating to abuse and neglect of care recipients.
Proposal 11–11 Official visitors should be empowered to:
(a) enter and inspect a residential aged care service;
(b) confer alone with residents and staff of a residential aged care service; and
(c) make complaints or reports about suspected abuse or neglect of care recipients to appropriate persons or entities.
11.266 The ALRC proposes that there should be an ‘official visitors’ scheme established for residential aged care. Such a program would offer an additional safeguarding mechanism for older people in residential aged care, providing independent monitoring of residential aged care to ensure that residents’ rights are being upheld, and to identify issues of abuse and neglect.
11.267 Such a scheme would complement existing (independent complaints and advocacy services) and proposed (reportable conduct, employment screening and oversight of restrictive practices) safeguards in aged care to provide an enhanced safeguarding strategy against abuse and neglect in aged care. Official visitors should be limited to residential aged care. While provision of aged care in the home is increasing, the ALRC considers that the powers of entry and inspection proposed for official visitors are not appropriate to private residential settings. The reportable incident scheme (Proposals 11-1 to 11-3) and the expanded powers proposed for public advocates or public guardians (Chapter 3) will assist in addressing concerns about abuse of recipients of home-based aged care.
11.268 Official visitors would perform a different function to advocacy services, who are reliant on being contacted by the care recipient or a representative. They would complement complaints and reportable incident schemes, by providing an additional opportunity to identify issues of concern, especially on behalf of those with cognitive or communication disabilities, and those with fewer social supports.
11.269 The ALRC has heard reports that some residential aged care staff, residents and family members felt inhibited to raise concerns about care through existing complaints and quality oversight processes. For example, the Australian Nursing and Midwifery Federation reported that:
Our members working in [residential aged care facilities] feel unable to be open with [Quality Agency] assessors about perceived care failures due to fear of reprisal from their employers. Few systems exist for reporting on the operation of the home between inspections, which are often over a year apart.
11.270 The ACT Disability, Aged and Carer Advocacy Service described its experience of aged care residents who ‘report that some staff are abusive in the manner in which they go about their work … yet are fearful of making a complaint due to anxiety about retribution’. Official visitors, operating as independent monitors, and empowered to speak to staff and residents, may enable the concerns of such residents and staff to be heard and appropriately responded to.
11.271 A number of submissions were supportive of a visitors program with a rights-monitoring focus in aged care. The Productivity Commission also recommended that there be a similar program introduced into aged care as part of its recommended reforms to aged care in Caring for Older Australians.
11.272 Similar visitors schemes operate in a number of states and the Northern Territory for people receiving mental health or disability services. In Victoria, for example, it is a function of a community visitor to inquire into any case of suspected abuse or neglect of a resident in a range of accommodation settings, and can make reports directly to the Department of Health and Human Services and the Victorian Parliament.
11.273 In NSW, the Ombudsman coordinates an ‘Official Community Visitor’ scheme. The Ombudsman reported that this scheme performed ‘a critical role in independent monitoring, resolution of complaints and emerging issues, and advocacy support’. The Ombudsman submitted that the close link between the Official Visitors and its own complaints function has
achieved substantial change and improved outcomes for people with disability … particularly in relation to matters concerning violence, abuse and neglect in residential care. These matters have benefitted from the separate but complementary functions we perform: notably, the ability of visitors to identify incidents of abuse and neglect … and to act to raise and resolve the issues as independent persons; and the powers and ability of our office to progress these matters on an individual and/or systemic basis.
11.274 The ALRC considers that integrating its proposed expanded reportable incident scheme with an official visitors scheme could achieve similar improvements in the safeguarding of older people in residential aged care. The proposed powers of official visitors build on existing powers of community visitors and advocates under aged care legislation, and are similar to many of the state and territory schemes.
11.275 An official visitors scheme adds an additional layer to the regulation and oversight of aged care that some stakeholders may consider unduly burdensome. However, the ALRC considers it is important to embed independent oversight mechanisms into aged care in concert with plans for increasing deregulation of aged care.
11.276 Some stakeholders suggested that the existing community visitors scheme could be reformed to take on a more active rights-monitoring role. However, existing visitors and their auspicing organisations may not be well suited to this role, given the primary focus of the CVS is on providing companionship for aged care recipients. The CVS is important in reducing social isolation for aged care recipients, and should be retained with clear guidance about how to deal with concerns about abuse or neglect.
Australian Nursing & Midwifery Federation, Submission 163.
ACT Disability, Aged and Carer Advocacy Service, Submission 139. See also Office of the Public Guardian (Qld), Submission 173; National Seniors Australia, Submission 154; Australian Research Network on Law and Ageing, Submission 90; Advocare Inc (WA), Submission 86; Queensland Nurses’ Union, Submission 47; NSW Nurses and Midwives’ Association, Submission 29; Quality Aged Care Action Group Incorporated, Submission 28.
See, eg, Office of the Public Advocate (Qld), Submission 149; United Voice, Submission 145; Australian College of Nursing, Submission 147; State Trustees Victoria, Submission 138; Office of the Public Advocate (Vic), Submission 95; Law Council of Australia, Submission 61.
Productivity Commission, above n 23, rec 15.3.
See, eg, Public Guardian Act 2014 (Qld) pt 6; Mental Health Act 2013 (Tas) pt 2; Disability Services Act 2012 (NT) pt 6.
Office of the Public Advocate (Vic), Submission 95.
NSW Ombudsman, Submission 160.
Aged care legislation currently makes provision for access to a residential care service at any time for a person acting for a care recipient, including a community visitor and advocate where the care recipient has asked for their assistance: User Rights Principles 2014 (Cth) ss 8(1), (2)(b). It also provides for access for advocates and community visitors during business hours in other circumstances: Ibid ss 8(2)(a), (3). For state and territory schemes, see, eg, Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s 8; Public Guardian Act 2014 (Qld) s 44; Disability Services (Community Visitor Scheme) Regulations 2013 (SA) s 4(2).
A number of submissions suggested, in relation to monitoring of quality, that standards are rigorous and independently assessed: UnitingCare Australia, Submission 162; Resthaven, Submission 114; Aged and Community Services Australia, Submission 102.
The Aged Care Roadmap suggests that the destination of reform in aged care is co-regulation and ‘earned autonomy’ for approved providers: Aged Care Sector Committee, above n 25.
See, eg, Australian College of Nursing, Submission 147; Office of the Public Advocate (Vic), Submission 95.