Royal Commission – September Update

Written by Ilsa Bird, Sector Support Coordinator

Background Paper 7

On 2 August, Background Paper 7 was published by the Royal Commission. This paper is titled ‘Legislative Framework for Aged Care Quality and Safety Regulation’ and which summarises the key aspects of quality and safety regulation. Download the paper here.

“I felt it was useless to keep trying to complain so I didn’t pursue it. As a home care client, I feel like no one cares.” – Consumer Witness

During August, the Royal Commission held public hearings in Brisbane.

Brisbane Hearing

The Brisbane hearing was held from 5-9 August 2019 and looked at the regulation of aged care, with a focus on:

• regulation of quality and safety in aged care and how aspects of the current regulatory system operate
• different approaches to regulation, including in other sectors
• how regulation and oversight of quality and safety in aged care could be improved.

Hearing Summary

On the final day of the Brisbane Hearing, Mr Peter Gray, Counsel Assisting, summarised what he described as “serious defects in the regulation of quality and safety in aged care”.  Mr Gray’s critique was underpinned by the perceived failure to implement recommendations from the Carnell-Patterson Review, released two years ago.

Regulatory gaps

Mr Gray presented concern that the current regulatory system does not allow for a broad, agile or an integrated approach to risk analysis. Mr Gray stated, “there’s a legislative focus on providers’ funding entitlements to the detriment of the rights of people receiving care.” One issue raised was that the regulatory framework sets a minimum standard and does not provide incentive to providers for continual improvement or transparency for consumers. This means that providers are too focussed on processes rather than outcomes. He also described how regulators were apprehensive to enforce sanctions despite repeated failures from providers. Witnesses called for a wider range of sanctions including holding directors personally accountable for compliance failure.

Mr Gray also discussed witness statements related to the regulatory shortfalls of home care services including:

• the absence of accreditation against the standards before the commencement of service provision
• no statutory obligation to engage with care recipients when undertaking a quality review
• the absence of visibility on actual delivery of home care
• reporting requirements which do not require home care providers to advise the department of changes to key personnel and less transparency than in residential care
• the absence of compulsory reporting of incidents at present

Complaints handling processes

In addition to the regulatory processes, Mr Gray also discussed complaints handling processes. He shared consumer experiences including the lack of empathy from complaint handling bodies. Witnesses suggested that the complaints handling function of the Aged Care Quality and Safety Commission must be seen to be independent from regulatory functions. Mr Gray also presented an argument for greater transparency about complaint responses. He quoted a witness who suggested that lessons and trends from complaints should be publicised and available for consumers, community members and providers.

Lack of consumer voice

Throughout the hearing, the insufficiency of consumer voice was a constant theme. Mr Gray compared the regulation of aged care to other related sectors including disability and health. He quoted a witness in saying that the aged care sector is 20-30 years behind other sectors in terms of giving voice to consumers and care recipients. This was exemplified within the regulatory framework. Mr Gray described how consumer experience reports are still in the beginning stages in residential care and there is no statutory obligation to consult with home care recipients as part of the quality review process at all. Mr Gray suggested broader consultation across aged care and that results about providers be published.

Mr Gray also described the disparity between the voice of providers and consumers relative to influencing policy. He stated that “the voice of providers is predominant in the aged care system in debates with Ministers, departments and Agencies. The consumer voice is significant weaker.”

Closing remarks

In closing, My Gray suggested that fragmentary adjustments to the regulation of aged is unlikely to achieve the desired outcome. He declared that fundamental and philosophical change is required; a new system that places people receiving care at the centre of quality and safety regulation.

The full transcripts and witness lists for the July hearings can be found here:

https://agedcare.royalcommission.gov.au/hearings/Pages/Transcripts.aspx

The next hearing will take place 9-11 and 13 September 2019 in Melbourne. The hearing will inquire into younger people in residential care with a focus on:

• the policy responsibilities of the aged care system, the social service system and health systems
• the interfaces between the aged care system, social service system and health systems
• the profile of younger people in residential aged care and any specific circumstances which drive the admission of younger people into residential aged care
• the care of a younger person while they are in a residential aged care facility, and how this may impede their exit from residential aged care
• the special challenges faced by younger people seeking appropriate accommodation
• the nature of services typically provided to younger people in residential aged care.