Inquiry into the Quality of Care in Residential Aged Care Facilities in

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Inquiry into the Quality of

Care in Residential Aged

Care Facilities in Australia

House of Representatives Standing Committee on Health, Aged Care and Sport

1 March 2018

 
 
Table of Contents 
About the Law Council of Australia ................................................................................3 
Acknowledgement ...........................................................................................................4 
Executive Summary .........................................................................................................5 
Introduction ......................................................................................................................7 
Mistreatment of residents and report and response mechanisms ...............................9 
Restrictive practices .......................................................................................................9 
Injury-related harm ....................................................................................................... 11 
Reporting and response mechanisms .......................................................................... 11 
Whistleblowers .............................................................................................................12 
The Australian Aged Care Quality Agency, Aged Care Complaints Commission 
and Charter of Care .......................................................................................................14 
Consumer protection .....................................................................................................15 
 
 
 

About the Law Council of Australia

The Law Council of Australia exists to represent the legal profession at the national level, to speak on

behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access

to justice and general improvement of the law.

The Law Council advises governments, courts and federal agencies on ways in which the law and the

justice system can be improved for the benefit of the community. The Law Council also represents the

Australian legal profession overseas, and maintains close relationships with legal professional bodies

throughout the world.

The Law Council was established in 1933, and represents 16 Australian State and Territory law societies

and bar associations and the Law Firms Australia, which are known collectively as the Council’s

Constituent Bodies. The Law Council’s Constituent Bodies are:

• Australian Capital Territory Bar Association

• Australian Capital Territory Law Society

• Bar Association of Queensland Inc

• Law Institute of Victoria

• Law Society of New South Wales

• Law Society of South Australia

• Law Society of Tasmania

• Law Society Northern Territory

• Law Society of Western Australia

• New South Wales Bar Association

• Northern Territory Bar Association

• Queensland Law Society

• South Australian Bar Association

• Tasmanian Bar

• Law Firms Australia

• The Victorian Bar Inc

• Western Australian Bar Association

Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers

across Australia.

The Law Council is governed by a board of 23 Directors – one from each of the constituent bodies and

six elected Executive members. The Directors meet quarterly to set objectives, policy and priorities for

the Law Council. Between the meetings of Directors, policies and governance responsibility for the Law

Council is exercised by the elected Executive members, led by the President who normally serves a 12

month term. The Council’s six Executive members are nominated and elected by the board of Directors.

Members of the 2018 Executive as at 1 January 2018 are:

• Mr Morry Bailes, President

• Mr Arthur Moses SC, President-Elect

• Mr Konrad de Kerloy, Treasurer

• Mr Tass Liveris, Executive Member

• Ms Pauline Wright, Executive Member

• Mr Geoff Bowyer, Executive Member

The Secretariat serves the Law Council nationally and is based in Canberra.

Acknowledgement

The Law Council of Australia is grateful for the assistance of the Law Institute of Victoria

(LIV), the Queensland Law Society (QLS), the Law Society of New South Wales

(LSNSW) and the Law Council’s National Elder Law & Succession Law Committee

(Committee) in the preparation of this submission.

Executive Summary

1. The Law Council welcomes the opportunity to comment on the Inquiry into the Quality

of Aged Care in Residential Aged Care Facilities in Australia (the Inquiry).

2. As an overarching comment, the Law Council is concerned that the Inquiry addresses

only some aspects of the failings of Australia’s aged care facilities and treatment of

older persons. The Law Council considers that much more needs to be done; namely,

a review of the entire system with a particular focus on the interaction of State and

Commonwealth agencies that regulate and have the ability to impact on each aspect

of the aged care quality provided to a consumer. This would require a review from the

perspective of the consumer, rather than a ‘top down’ approach focussing on

improving high level policies. The Law Council is concerned that there is a growing

separation between different State and Commonwealth agencies and the various

policies which are independently developed at different levels to address particular

issues, resulting in a program that does not necessarily improve outcomes for

residents.

3. The Law Council’s submission addresses each of the terms of reference of the Inquiry

as follows:

• incidence of all mistreatment of residents in residential aged care facilities and

associated reporting and response mechanisms, including the treatment of

whistleblowers;

• effectiveness of the Australian Aged Care Quality Agency (Agency), the Aged

Care Complaints Commission and the Charter of Care: Recipients’ Rights and

Responsibilities in ensuring adequate consumer protection in residential aged

care; and

• adequacy of consumer protection arrangements for aged care residents who

do not have family, friends or other representatives to help them exercise

choice and their rights in care.

4. Key comments and recommendations of this submission include:

Mistreatment of residents and report and response mechanisms

• The Law Council submits that the use of restrictive practices such as

chemical, physical and mechanical restraint practices needs to be reviewed,

with the objective of installing consistent standards at aged care facilities.

• The Law Council recommends that:

(i) aged care legislation should provide for a new serious incident response

scheme in line with the Australian Law Reform Commission’s (ALRC)

recommendation;

(ii) there should be a national employment screening process for Australian

government-funded aged care;

(iii) a national database should be established to record the outcome and

status of employment clearances; and

(iv) unregistered aged care workers who provide direct care should be

subject to the planned National Code of Conduct for Health Care

Workers.

• The Law Council submits that whistleblower protection should be incorporated

into the scheme as follows:

(i) facility staff should have the ability to appropriately report issues such as

poor care practices, financial abuse of residents by a facility, and

suspected ‘elder abuse’ of residents by family or other visitors; and

(ii) the complaints scheme should include independent, appropriately

staffed and accessible residential aged care facility inspectors who have

statutory ability to visit each facility at random and on at least a quarterly

basis; inspect facilities and conduct in person or phone conversations

with residents and their next of kin; issue fines and take other

appropriate actions in circumstances where a facility is not in

compliance; and receive reports from whistleblowers and investigate the

allegations, or direct the complaint to the appropriate authorities for

investigation and action.

The Agency, Aged Care Complaints Commission and Charter of Care

• The powers of the Commissioner should be expanded to include the ability to

delegate responsibility to inspectors to investigate residential aged care

services (RACS) on its own motion as well as upon receipt of a complaint

made by residents. This could include the Commissioner and its delegated

personnel, support persons, RACS employees, the Public Advocate/Guardian

in each State and Territory and official visitors, investigating suspected cases

of mistreatment or neglect.

Consumer protection

• In order to ensure consistent standards of consumer protection, the regulation

of aged care across jurisdictions and models of care, that is, the

Commonwealth (Home Care and Residential Aged Care) and State

(Retirement Villages and Supported Residential Services) should be

harmonised, and fall within the expanded powers of the Commissioner.

Introduction

5. Seven per cent of people aged 65 and over are currently residing in RACS.

However,

the proportion of older people in Australia’s population has increased considerably in

recent years. Projections indicate that this trend is set to continue.

Further, older

Australians are increasingly being classified as having a profound or severe disability.

These factors are likely to increase the demands on RACS, challenging their ability to

deliver a high standard of care.

6. Australia’s provision of RACS compares favourably, in most regards, with overseas

examples. It also aligns with some best practice guidelines.

However, preceding this

Inquiry, media and scholarly reports uncovered serious failings in the provision of

RACS which had resulted in the injury, sickness or death of residents and caused

trauma for staff and professionals in regulatory positions, who lost confidence in their

ability to ensure the safety of residents.

7. South Australia’s Oakden Aged Mental Health Service is one such example. The

facility demonstrated a significant failure of care in workplace practice and culture.

Consequently, many unwell and vulnerable residents received poor-quality care. The

Review of National Aged Care Quality Regulatory Processes (Review) stated that:

…the degree of seriousness of failures to care for residents that were reported

at Oakden may be relatively rare, but the types of issues found at Oakden

have much in common with the types of issues that arise for aged care

consumers whenever there are quality-of-care challenges.

8. This point was also emphasised in the ALRC report, Elder Abuse – A National Legal

Response.

The report highlighted that existing regulation failed to respond to the

‘many instances of abuse of people receiving aged care’.

Similarly, a report released

in 2017 by Monash University and the Victorian Institute for Forensic Medicine detailed

the extent to which injury-related deaths occur in RACS (Ibrahim Report). Together,

these reports demonstrate the complex and multifaceted nature of resident

mistreatment. This is mistreatment that the Commonwealth’s existing regulatory

framework has often failed to detect.

9. The Commonwealth’s ability to make laws for aged care has been described as

‘limited’.

The existing framework, being the Aged Care Act 1997 (Cth) (Act), is

founded upon the corporations’ power

and the pensions power

of the Australian

Constitution. The Act allows the Commonwealth to make payment of grants for the

provision of aged care, and matters connected with aged care.

In relation to the

quality of care, Division 54 of the Act sets out the responsibilities of service providers,

Joseph Ibrahim, ‘Recommendations for Prevention of Injury-Related Deaths in Residential Aged Care

Services’ (Victorian Institute of Forensic Medicine, 2017) 199.

Ibid 196.

Kate Carnell and Rob Paterson, ‘Review of National Aged Care Quality Regulatory Processes’ (2017) 73.

Ibid 1.

Ibid 42.

Australian Law Reform Commission, Elder Abuse – A National Legal Response, Report No 131 (2016) 199.

Ibid.

Australian Institute of Family Studies, ‘Elder Abuse: Understanding Issues, Frame-works and Responses’

(2015) 26.

Aged Care Act 1997 (Cth) s 51(xx).

Ibid s 51(xxiii).

Ibid s 3-1(1).

including those responsibilities contained in the Quality of Care Principles 2014 (Cth)

(Principles).

10. Despite the Principles, the Law Institute of Victoria has advised that there remains

uncertainty as to what ‘quality of care’ entails. This is, in part, due to the array of

public, private and community-based providers of RACS, each emphasising different

priorities and perspectives on ‘quality’. As the Ibrahim Report states, ‘the system is

complex, fragmented, and risk averse with divergent or contradictory approaches’.

is also due to ageist attitudes and assumptions about ‘old age’ and ‘aged care’.

Rather than viewing RACS as a place for older persons to thrive, the atmosphere and

culture in many RACS are akin to hospital settings. Many are regimented with set

times each day for the various activities of daily living. Spontaneity is seen as risky by

many RACS providers. Personal privacy is often compromised and is more closely

aligned to what a hospital patient can expect, rather than a resident in a ‘home’

environment.

11. The United Nations’ (UN) Principles of Older Persons (UN Principles) provide a

strong basis for conceptions of ‘quality’. Enshrined within the UN Principles is the need

for consumer protection. Specifically, that older persons ‘should be able to enjoy

human rights and fundamental freedoms when residing in any shelter, care or

treatment facility’.

In ensuring these rights and freedoms are upheld, the regulation

should ensure that aged care workers are well-trained, with an emphasis on care and

compassion. They should also be supported by an effective organisational structure

with mandated minimum staff-to-resident ratios to ensure high-quality care and clear

policies and procedures to meet expected standards of care.

12. Although many of these features are already included within the current Act, its

effectiveness at protecting care recipients’ rights is questionable following its

implementation some twenty-one years ago. There have been substantial changes

over this period to the measuring, regulating and investigating of care, but the complex

legislative framework for consumer protection and complaints mechanisms has fallen

short of meeting its aims of protecting residents from mistreatment and neglect.

13. As the Review noted, the aged care system gives the impression of resulting from

multiple incremental changes, rather than ‘system-based design to achieve the most

efficient and effective regulation of quality in aged care’.

14. The need for a comprehensive review of the aged care sector is best demonstrated by

the complex arrangement of agencies that oversee the sector. Agencies that may be

involved with mandatory reporting and responding to complaints include the Aged

Care Complaints Commissioner, the Agency, the Australian Competition and

Consumer Commission, the Australian Health Practitioner Regulation Agency, police

services and the Coroner. There are often a lack of structures to support coordination

and information sharing between these agencies.

15. In addition to the Ibrahim Report, the Australian Institute of Family Studies has noted

that there is an increasing recognition for the need of systematic research in this area.

Joseph Ibrahim, ‘Recommendations for Prevention of Injury-Related Deaths in Residential Aged Care

Services’ (Victorian Institute of Forensic Medicine, 2017) 29.

Ibid 30.

The preceding section is based directly on input from the Law Institute of Victoria.

United Nations’ Principles for Older Persons, adopted by General Assembly resolution 46/91, 16 December

1991, 14.

Kate Carnell and Rob Paterson, ‘Review of National Aged Care Quality Regulatory Processes’ (2017) 28.

Mistreatment of residents and report and response

mechanisms

16. This section of the submission addresses the incidence of all mistreatment of

residents in residential aged care facilities and associated reporting and response

mechanisms, including the treatment of whistleblowers.

17. The aged care sector should ensure that a rigorous accreditation process occurs, and

that RACS providers (that receive a Commonwealth licence) meet high standards of

safety.

18. Despite being signatory to these international frameworks, the Ibrahim Report found

that older Australians living in RACS are at significant risk of experiencing abuse,

mistreatment and injury-related harm.

This mistreatment often arises due to the

residents’ physical frailty, cognitive impairment, multiple co-morbidities and complex

drug regimens,

and may also be exacerbated by the facility’s poor or inadequate

care coordination, infrastructure and design, lack of training for staff, limited access to

specialist services, and lack of adequate monitoring of preventable harm and

injuries.

19. There is a lack of substantial research providing a reliable indication of the prevalence

of elder abuse. The Ibrahim Report and the Australian Institute of Family Studies note

that there is an increasing recognition for the need of systematic research in this area.

As recommended by the ALRC, systematic research would involve a national

prevalence study into elder abuse.

If conducted, a study like this would help reveal

the extent of mistreatment within RACS and the data collected could enable the

Commonwealth to develop an effective response.

20. The ALRC has also stated that definitions are ‘significant where data about prevalence

of abuse is to be collected’.

Definitions affect how abuse and mistreatment are

perceived by victims and perpetrators, whilst also shaping research aims and policy

interventions.

21. It can be difficult to define the mistreatment that occurs within RACS, often due to the

fact that some residents are unable to communicate their experiences of mistreatment.

22. A nationally consistent approach to defining elder abuse is vital for systematic

research. Due to the sector’s cross-disciplinary nature, it is essential to incorporate

understandings of elder abuse from different perspectives. This should cover forms of

abuse that are common in a residential setting, including: exposure to degrading

treatment; poor hygiene; indignity; invasion of privacy; neglect; resident-on-resident

aggression (RRA); the inappropriate use of restrictive practices; and injury-related

harm.

Restrictive practices

23. Safety standards can also be improved by requiring the reporting of all serious

incidents, and mandating compliance with guidelines that limit the use of restrictive

Joseph Ibrahim, ‘Recommendations for Prevention of Injury-Related Deaths in Residential Aged Care

Services’ (Victorian Institute of Forensic Medicine, 2017) 30.

Ibid.

Ibid 31.

Kate Carnell and Rob Paterson, ‘Review of National Aged Care Quality Regulatory Processes’ (2017) 93.

Australian Law Reform Commission, Elder Abuse, Issue Paper No 47 (2016) 13.

practices. Restrictive practices include: the use of medication to control behaviour,

physically, chemically or mechanically restricting the free movement of one’s body,

limiting access to a particular object, and seclusion.

These practices can lead to

negative physical and psychological effects on residents in aged care, and there are

also serious questions in relation to the degree to which some facilities seek consent

for use of chemical restraint.

24. The Law Council recommends that these practices be reviewed, with the objective of

implementing consistent standards at aged care facilities.

25. The Law Council suggests a more comprehensive regulatory framework should be

considered as a potential model for Commonwealth reform regarding the use of

restrictive practices in aged care to provide greater transparency, consistency,

professionalism and oversight of these practices in addressing the capacity of

residents in aged care to provide informed consent for the purposes of treatment or

medical treatment,

and/or the use of bodily restraints and other restrictive

intervention in order to protect the dignity

of residents.

26. In its current form the Act does not regulate the use of restrictive practices such as

chemical, physical and mechanical restraint. Rather, their regulation falls under state

and territory laws, particularly those relating to disability, mental health and

guardianship, as well as voluntary codes of conduct. State-based laws limiting

restrictive practices do not extend to RACS, which are governed by Commonwealth

legislation.

27. The Principles outline some standards that may be used at the Commonwealth level

to protect residents who are vulnerable to restrictive practices. These standards

involve requirements to manage challenging behaviours effectively, provide a safe

living environment and ensure respect for residents’ independence, dignity, choice and

decision-making.

28. By way of example, the Law Council notes that the inclusion of restrictive practice

provisions in the Disability Services Act 2006 (Qld) has resulted in greater

transparency, consistency, professionalism and oversight of these practices. This

regulatory framework could be considered in the context of guiding Commonwealth

reform. In Victoria, the Medical Treatment Planning and Decisions Act 2016 (Vic),

which is yet to come into force, may limit the use of restrictive practices by way of

chemical intervention by defining medical treatment to include prescription medication.

29. The Law Council submits that the Council of Australian Governments (COAG)

facilitates the development of a nationally-consistent approach to the regulation of

restrictive practices. This reflects the Senate Community Affairs References

Committee's recommendation that the ‘Commonwealth develop, in consultation with

dementia advocates and service providers, guidelines for the recording and reporting

on the use of all forms of restraints in residential facilities’. This recommendation

mirrors Recommendation 8-2 of the ALRC’s report, Equality, Capacity and Disability in

Commonwealth Laws, which called for the development of a national approach to the

regulation of restrictive practices in sectors other than disability services.

Office of the Public Advocate (Qld), ‘Legal Frameworks for the Use of Restrictive Practices in Residential

Aged Care: An Analysis of Australian and International Jurisdictions’ (2017) i.

Mental Health Act 2014 (Vic) ss 68-71; Disability Services Act 2006 (Qld) s 168.

Mental Health Act 2014 (Vic) s 16; Disability Services Act 2006 (Qld) Div 5.

Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No

124 (2014) 251.

30. With regards to capturing statistical data on the use of restrictive practices in aged

care, the following should be required to be clearly documented by RACS (as soon as

reasonably practicable after the restraint occurs):

(a) the form of restraint applied;

(b) the reasons for use;

(d) the outcome of the restraint; and

(e) any adverse events that occurred.

31. Additionally, following the use of any restrictive intervention used in order to control

behaviour, the resident(s) restrained should have their behavioural support plan

reviewed, and modified where necessary to avoid the use of restrictive practices as a

means of controlling behaviour. As soon as reasonably practicable after a restraint is

applied, a formally appointed substitute and support decision maker(s) of the

person(s) affected or, if none appointed, the person’s primary carer or nearest relative,

must be notified of the matters documented (as outlined above) and provided with the

written report upon request. Where a person has no medical treatment decision maker

or no primary carer or relatives, the Public Advocate/Guardian should be informed.

32. Where the Public Advocate suspects abuse or mistreatment has occurred, the Law

Council considers it should be able to enter the RACS to investigate the allegations

and observe the older person whether or not an application for guardianship is sought

or on foot. Increasing the powers of the Public Advocate may require increased

funding to support its functions.

33. The Law Council considers that RACS which report multiple instances of the use of

restraints in any given reporting year should be required to undertake training in

procedures for managing challenging resident behaviours. Compliance with any such

training should be monitored by the Department of Health (DHS) and publicly reported

on each year.

34. In addition, the Law Council supports random on-site auditing of RACS to identify

mistreatment of residents, including the use of restrictive practices.

Injury-related harm

35. The Ibrahim Report surveyed the cause of death of 56,855 deaths of residents in aged

care occurring between 2000 and 2012 and identified 1,926 ‘externally caused’ deaths

– that is, deaths not caused by illness or disease. The report also identified and

classified intentional and unintentional causes of death (in order of prevalence): falls,

choking, suicide, compromise of clinical care, and RRA. The report made 104

recommendations regarding quality improvement for those aspects of risk in

residential care, which the Law Council supports and notes for consideration to this

Inquiry.

Reporting and response mechanisms

36. Division 63 of Part 4.3 of the Act relates to accountability, and outlines the

responsibilities of approved providers, including the requirement that providers report

Paragraphs 30-31 based directly on input from the Law Institute of Victoria.

Paragraphs 33-35 based directly on input from the Law Institute of Victoria.

allegations or suspicions based on reasonable grounds of ‘reportable assaults’ to the

police and to DHS. This reporting provision is limited, however, to physical assaults.

37. Sexual assaults form a part of mandatory annual reporting requirements, though data

on the incidence of these types of assaults is difficult to obtain. This may often be due

to interpretation as to what classifies as ‘sexual assault’.

38. The Act also includes a discretion for providers not to report incidents of RRA if the

alleged offender has a previously assessed cognitive impairment and a behaviour

management plan has been put in place for the care recipient within 24 hours of

receipt of the allegation or suspicion of assault. Consequently, the most common

types of RRA incidents – those involving cognitively impaired residents – are not

identified and publicly reported.

39. The reporting of resident mistreatment is a complex area given the difficulties in

identifying mistreatment, and the conditions within which it occurs. Cognitive

impairment can prevent reporting as residents may not be believed, and shame,

embarrassment, and fear of punishment from RACS staff and management are also

factors. This can be compounded by the dependency of the resident on the provider’s

care for them. An older person may be prevented from disclosing mistreatment if it

was perpetrated by someone on whom they depend for care, fearing further neglect or

mistreatment.

40. The Law Council supports the ALRC’s recommendation that aged care legislation

should provide for a new serious incident response scheme.

The scheme would

require approved providers to notify an independent oversight body of any allegation

or suspicion of a serious incident in their facility. In relation to RRA, these notifications

would include incidents of physical abuse causing serious injury, or incidents occurring

as part of a pattern of abuse.

41. Further, the Law Council supports the following proposals made by the ALRC:

42. there should be a national employment screening process for Australian government-

funded aged care;

43. a national database should be established to record the outcome and status of

employment clearances;

and

44. unregistered aged care workers who provide direct care should be subject to the

planned National Code of Conduct for Health Care Workers.

Whistleblowers

45. The Law Council is concerned that whistleblowers are inadequately protected under

Commonwealth legislation, and that clear procedures to enable anonymous reporting

should be implemented.

46. The Law Council believes that whistleblowers should be given statutory protection

through qualified privilege (excluding reporting that is motivated by malice).

47. The Law Council submits that whistleblower protection be incorporated into the

scheme to ensure that facility staff can appropriately report issues such as poor care

Australian Law Reform Commission, Elder Abuse – A National Legal Response, Report 131 (2016) 10.

Australian Law Reform Commission, Elder Abuse, Discussion Paper No 83 (2016) 13.

Ibid 200.

This section is based on input from the Law Institute of Victoria.

practices, financial abuse of residents by a facility, and suspected ‘elder abuse’ of

residents by family or other visitors.

48. The Law Council recommends that the complaints scheme should include

independent, appropriately staffed and notionally available residential aged care

facility inspectors who have statutory ability to:

(a) visit each facility on at least a quarterly basis;

(b) make unscheduled visits to facilities on an ‘as-required’ basis;

and their next of kin; and

(d) issue fines and take other appropriate actions in circumstances where a

facility is not in compliance.

49. Furthermore, the Law Council submits that the complaints scheme should include

receiving reports from whistleblowers and investigating the allegations, or directing the

complaint to the appropriate authorities for investigation and action.

Recommendation 1

The use of restrictive practices such as chemical, physical and mechanical

restraint practices should be reviewed, with the objective of installing consistent

standards at aged care facilities.

Recommendation 2

In line with the ALRC’s recommendation, aged care legislation should provide for

a new serious incident response scheme. The Law Council also supports the

following proposals made by the ALRC:

• there should be a national employment screening process for

Australian government-funded aged care;

• a national database should be established to record the outcome and

status of employment clearances; and

• unregistered aged care workers who provide direct care should be

subject to the planned National Code of Conduct for Health Care

Workers.

Recommendation 3

Whistleblower protection should be incorporated into the scheme as follows:

•

facility staff should have the ability to appropriately report issues such

as poor care practices, financial abuse of residents by a facility, and

suspected ‘elder abuse’ of residents by family or other visitors;

•

the complaints scheme should include independent, appropriately

staffed and accessible residential aged care facility inspectors who

have statutory ability to visit each facility on at least a quarterly basis;

make unscheduled visits to facilities on an ‘as-required’ basis; inspect

facilities and conduct in person or phone conversations with residents

This recommendation is based directly on input from the Law Society of New South Wales.

and their next of kin; and issue fines and take other appropriate

actions in circumstances where a facility is not in compliance; and

receive reports from whistleblowers and investigate the allegations, or

direct the complaint to the appropriate authorities for investigation

and action.

The Agency, Aged Care Complaints Commission and

Charter of Care

50. This part of the submission concerns the effectiveness of the Agency, the Aged Care

Complaints Commission and the Charter of Care: Recipients’ Rights and

Responsibilities in ensuring adequate consumer protection in residential aged care.

51. The Act establishes the Aged Care Complaints Scheme

and the office of the Aged

Care Commissioner.

The Commissioner is tasked with the responsibility of handling

and investigating complaints made against Commonwealth-subsidised RACS. The

complaints process works to protect consumers who make a complaint, as well as

ensure existing standards of care are being met. The Commissioner can give early

warnings of deficiencies in quality of care, and identify the likelihood for system

failures. Although this education function exists, the Commissioner’s role is primarily

reactive (when complaints and concerns are put forward).

52. Some complaints against the Commissioner concern a lack of timeliness, clarity and

fairness. The Commissioner is not considered accessible or user-friendly by many

residents and their representatives, but rather as protracted and bureaucratic.

53. While funding is not a solution on its own, the Law Council also queries whether these

entities are sufficiently resourced to undertake their objectives. This may in fact be

compounding the problem, as:

(a) increased funding might allow for more robust and meaningful review

capabilities, leading to greater compliance and consumer confidence in the

accreditation system; and

(b) less financial strain on these agencies may allow a more tailored approach to

dealing with facilities where there is a failing. It may be more appropriate to

assist those facilities which are genuinely striving to be compliant by taking a

more collaborative and education-based response to issues affecting

accreditation.

54. There is little evidence to suggest that the expansion of the Charter will result in any

meaningful change for residents. Staff in some facilities do not seem to be aware of

the Charter’s existence. Including an obligation for facilities to regularly provide

education or information on rights, support for making complaints and the complaint

process would assist to ensure that residents and their families are better informed

about their rights.

55. Residents should have access to an advocate that investigates their, or their

representatives’, complaints. The effectiveness of such an authority would lie in its

Aged Care Act 1997 (Cth) s 94A-1.

Ibid div 95A.

Paragraphs 48-49 based on input from the Law Institute of Victoria.

ability to: provide redress for mistreated residents; make findings that can be used for

quality improvement; and identify patterns of concern within complaints.

56. The Law Council suggests that the powers of the Commissioner should be expanded

to include the ability to delegate responsibility to inspectors to investigate RACS on its

own motion or upon receipt of a complaint made by residents. This could include the

Commissioner and its delegated personnel investigating suspected cases of

mistreatment or neglect, their support persons, RACS employees, the Public

Advocate/Guardian in each State and Territory and official visitors.

Recommendation 4

The powers of the Commissioner should be expanded to include the ability to

delegate responsibility to inspectors to investigate RACS on its own motion or

upon receipt of a complaint made by residents. Delegated personnel could

promptly investigate suspected cases of mistreatment or neglect, their support

persons, RACS employees, the Public Advocate/Guardian in each State and

Territory and official visitors.

Consumer protection

57. This part of the submission concerns the adequacy of consumer protection

arrangements for aged care residents who do not have family, friends or other

representatives to help them exercise choice and their rights in care.

58. The Law Society of New South Wales advises that consumer protections currently

available to residents and their carers and families (the consumers) under the

existing aged care legislative framework are confusing and inadequate. There are

multiple points of contact for consumers to seek recourse in the event of a dispute with

the aged care provider.

59. Recourse for mistreatment is even harder for residents without representatives or

support persons. Difficulties faced include that the person may not be aware of their

rights; the person may not have the resources to make a complaint; the person may

not have sufficient capacity to make a complaint; the person’s physical and emotional

health is not being monitored independently of the RACS and any deterioration in the

person’s wellbeing can be justified as the effects of ‘institutionalisation’; and the

person may fear retribution or victimisation by management or staff of the RACS.

60. There is also some concern about the lack of agency for residents in aged care

facilities. A resident who moves into an aged care facility often has a new and

unknown doctor. This can be unnerving and distressing for an elderly patient who may

struggle with the imposition of a new doctor, after potentially spending many years

building a relationship of trust with one general practitioner. The Law Council

considers that revision of the legislation should include greater consideration of the

mechanisms whereby general practitioners can continue to visit their patients at the

aged care facility, once they have become a resident.

61. Harmonisation of the regulation of aged care across jurisdictions and modes of care,

that is, the Commonwealth (Home Care and Residential Aged Care) and State

This paragraphs is based directly on input from the Law Institute of Victoria.

(Retirement Villages) would be desirable. This harmonisation should lead to a

rationalisation of the handling of consumer protection issues in aged care.

62. A revised and harmonised framework should have clear and efficient pathways to

address all matters which cause consumers of aged care services concern – from

quality of care, fees and charges, and disputes with the operator of the aged care

services. The framework should distinguish between those consumer complaints that

are a consequence of a medical condition, such as dementia, and those which are

genuine complaints about the aged care services they are receiving.

63. The current framework requires consumers to apply to different regulators for

particular issues, for example, quality or fees. Further, those regulators hear the

complaints on a single issue (such as quality or fees) when the ability to hear a full

complaint would give a more accurate picture of the consumer’s complaint and the

aged care operator’s practices. In addition, those regulators can only give orders for

limited remedies. The Inquiry should consider whether there are opportunities for

complaints raising multiple issues to be dealt with as part of the same proceedings.

Recommendation 5

In order to ensure constituent standards of consumer protection, the regulation

of aged care across jurisdictions and modes of care, that is, the Commonwealth

(Home Care and Residential Aged Care) and State (Retirement Villages) should be

harmonised, and fall within the expanded powers of the Commissioner.

Paragraphs 62-63 are based directly on input from the Law Society of New South Wales.